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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
December 19, 1997
To those Stockholders of Premenos
Technology Corp. listed on Annex I
attached hereto
Dear Sirs:
This letter will confirm that in order to induce Premenos Technology
Corp., a Delaware corporation ("Premenos"), to consummate the transactions
contemplated under that certain Merger Agreement, dated as of October 23, 1997,
by and among Harbinger Corporation, a Georgia corporation ("Harbinger"), Olympic
Subsidiary Corporation, a Delaware corporation and a wholly owned subsidiary of
Harbinger ("Harbinger Sub"), and Premenos (the "Merger Agreement"), and for
other good and valuable consideration, the receipt and sufficiency of which are
acknowledged and confirmed, Harbinger covenants and agrees with the stockholders
of Premenos listed on Annex I attached hereto (collectively referred to as the
"Stockholders" and individually as a "Stockholder" in this Agreement) as
follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
Premenos Stock means the common stock, par value $.01 per share, of
Premenos.
Commission means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
Harbinger Stock means the common stock, par value $.0001 per share, of
Harbinger.
Pooling Period means the period beginning at the Effective Time of the
Merger and running through such time as financial results covering at least
thirty days of combined operations of Harbinger and Premenos shall have
been published by Harbinger within the meaning of Section 201.01 of the
Commission's Codification of Financial Reporting Policies.
Registration Expenses means the expenses so described in Section 8 of
this Agreement.
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Registration Shares means the shares of Harbinger Stock issued to the
Stockholders pursuant to the Merger Agreement, the certificates
representing which bear the legend set forth in Section 2 below.
Securities Act means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, all as the
same shall be in effect at the time.
Selling Expenses means the expenses so described in Section 8 of this
Agreement.
In addition to the foregoing defined terms, any capitalized terms used
in this Agreement with out definition will have the meanings ascribed to such
terms in the Merger Agreement.
2. Harbinger Stock Legend. Each certificate representing the
Registration Shares will be stamped or otherwise imprinted with a legend
substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") IN A MERGER
TRANSACTION SUBJECT TO RULE 145 UNDER THE ACT AND ARE HELD BY AN
AFFILIATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR
IN A TRANSACTION WHICH IS NOT SUBJECT TO THE REGISTRATION REQUIREMENTS
OF THE ACT AND IN THE CASE OF A TRANSACTION NOT SUBJECT TO SUCH
REGISTRATION REQUIREMENTS UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT
REQUIRE REGISTRATION UNDER THE ACT."
Each certificate issued upon exchange or transfer of any such
Registration Shares will bear the legend set forth in this Section 2, except
that such certificate will not bear such legend if (i) such transfer is in
accordance with the applicable provisions of Rule 145 under the Securities Act,
(ii) such transfer is made pursuant to an effective registration statement under
the Securities Act, or (iii) Harbinger is provided with an opinion of counsel
reasonably satisfactory to Harbinger to the effect that such transfer of the
Registration Shares may be effected without registration under the Securities
Act and that the transferee and any subsequent transferee (other than an
affiliate of Harbinger) would be entitled to transfer such securities in a
public sale without registration under the Securities Act.
3. Demand Registration.
(a) At any time during the period beginning at the expiration of the
Pooling Period and ending on the Termination Date, Xx. Xxx Xxxxxxx, as
representative of the Stockholders
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under this Agreement (the "Representative"), may request on one occasion only
that Harbinger register the Registration Shares under the Securities Act for
public sale (the "Demand Rights"). Such Demand Rights request must be provided
by the Representative to Harbinger in writing and must designate the specific
number of Registration Shares proposed to be sold by each of the Stockholders in
such public offering and the proposed plan of distribution for the Registration
Shares. Prior to providing Harbinger with any such Demand Rights request, the
Representative shall provide reasonable notice to the other Stockholder of his
intention to so request a Demand Right and provide such other Stockholder with
the opportunity to sell Registration Shares in connection with such
registration.
(b) Notwithstanding anything to the contrary set forth in this Section
3, Harbinger shall have no obligation hereunder to: (i) register Registration
Shares if such registration involves 250,000 or fewer Registration Shares; or
(ii) maintain the effectiveness of any registration statement filed pursuant to
this Section 3 for a period of time exceeding the Distribution Period.
(c) Harbinger shall be entitled to delay undertaking efforts to
register Registration Shares pursuant to this Section 3 if the Board of
Directors determines in its sole discretion that such delay is in the best
interest of Harbinger and its shareholders; provided, however, that in no event
shall Harbinger be permitted hereunder to delay undertaking such efforts for a
period of more than ninety (90) days from the date of receipt of the request for
Demand Rights specified in Section 3 (a) of this Agreement.
4. Incidental Registration. If at any time following the Pooling Period
and prior to the Termination Date, Harbinger proposes to register any Harbinger
Stock under the Securities Act (other than on Forms X-0, X-0 or any other form
which does not permit registration of securities by selling stockholders for
sale to the public for cash) in connection with the proposed offer and sale for
cash either for its own account or on behalf of any holder of Harbinger Stock
(but not any holder of any security convertible into or exchangeable or
exercisable for Harbinger Stock), it will give written notice to each of the
Stockholders of its intention to do so. Upon the written request of a
Stockholder, given within five business days after receipt of any such notice,
to register any of such Stockholder's Registration Shares, Harbinger will use
its reasonable efforts to cause the Registration Shares as to which registration
has been so requested to be included in the shares of Harbinger Stock to be
covered by the registration statement proposed to be filed by Harbinger, all to
the extent required to permit the sale or other disposition by such Stockholder
(in accordance with its written request) of such Registration Shares so
registered. If a registration effected pursuant to this Section 4 involves a
firm commitment underwritten public offering, Harbinger shall have the sole
right to select the managing underwriters. The managing underwriters for such
offering shall have the authority to reduce the number of Registration Shares to
be included in such registration if and to the extent they are of the opinion
that inclusion of such Registration Shares would adversely affect the marketing
of the Harbinger Stock to be sold under such offering. Any such reduction or
cutback in the shares included in any such offering shall be effected in
accordance with the following priorities: (a) First, the managing underwriters
shall exclude shares ("Piggyback Shares") of Harbinger Stock included in such
registration by stockholders (including the Stockholders) by virtue of
incidental or piggyback registration rights (but not demand registration rights)
granted to such stockholders, which exclusion shall be effected on a pro rata
basis based upon the number of shares
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of Harbinger Stock so requested to be registered in such offering by all such
stockholders proposing to sell Piggyback Shares, subject to any incidental
registration rights which are superior to the registration rights of the
Stockholders pursuant to this Section 4, which superior rights were granted
prior to the date of this Agreement; and (b) Second, and only to the extent
necessary and after the exclusion of all Piggyback Shares, the managing
underwriters shall exclude shares of Harbinger Stock included in such
registration by Harbinger and any stockholder of Harbinger who shall have
exercised a demand registration right in connection with such offering, which
exclusion shall be effected on a pro rata basis based upon the number of shares
of Harbinger Stock proposed to be registered on behalf of Harbinger and on
behalf of any such holder of demand registration rights. Notwithstanding
anything to the contrary contained in this Section 4, if there is a firm
commitment underwritten public offering of Harbinger Stock pursuant to which a
Stockholder has incidental registration rights under this Section 4 and such
Stockholder elects to sell Registration Shares in connection with such
underwritten public offering, such Stockholder shall enter into an agreement
(the "Lockup Agreement"), pursuant to which such Stockholder shall refrain from
selling any Registration Shares (other than Registration Shares included in such
Registration) then owned by such Stockholder during the period of distribution
of Harbinger Stock by such underwriters and for a period of ninety days
following the effective date of such registration.
5. Registration Procedures. If and whenever Harbinger is required by
the provisions of Sections 3 or 4 of this Agreement to effect the registration
of any of the Registration Shares under the Securities Act, Harbinger shall, as
expeditiously as practical:
(a) prepare and file with the Commission a registration statement on
the applicable form with respect to such Registration Shares and use its
reasonable best efforts to cause such registration statement to become and
remain effective for the Distribution Period, but no longer and to promptly
notify the Stockholders of when such registration statement and any amendment to
such registration statement becomes effective, and to provide the Stockholders
with reasonable access to any written comments received from the Commission in
connection with such registration and any written responses to such registration
statement and any stop order received from the Commission in connection with
such registration statement;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to keep such registration
statement effective for the Distribution Period, but no longer, and to comply
with the provisions of the Securities Act with respect to the disposition of all
Registration Shares covered by such registration statement;
(c) furnish to each Stockholder such number of copies of the
registration statement and the prospectus included in such registration
statement (including each preliminary prospectus) as such persons may reasonably
request in order to facilitate the public sale or other disposition of the
Registration Shares covered by such registration statement;
(d) use its reasonable best efforts to register or qualify the
Registration Shares covered by such registration statement under the securities
or blue sky laws of such jurisdictions as the Stockholders or, in the case of an
underwritten public offering, the managing underwriters, shall
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reasonably request; provided, however, that Harbinger shall not for any purpose
be required to execute a general consent to service of process or to qualify to
do business as a foreign corporation in any jurisdiction where it is not so
qualified;
(e) immediately notify each Stockholder selling Registration Shares
under such registration statement and each underwriter, at any time when a
prospectus relating to such registration statement is required to be delivered
under the Securities Act, of the happening of any event as a result of which the
prospectus contained in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements in such
registration statement not misleading in the light of the circumstances then
existing and prepare a supplement to or an amendment to such prospectus as may
be necessary so that, as thereafter delivered to the purchasers of such
Registrable Shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated in such
registration statement or necessary to make the statements in such registration
statement not misleading in the light of the circumstances then existing;
(f) use its reasonable best efforts to furnish, at the request of any
Stockholder, on the date that Registration Shares are delivered to the
underwriters for sale pursuant to such registration: (i) an opinion dated such
date of counsel representing Harbinger in connection with such registration,
addressed to the underwriters or broker(s) and to such Stockholder, stating that
such registration statement has become effective under the Securities Act and
that (A) to the best knowledge of such counsel, no stop order suspending the
effectiveness of such registration statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
Securities Act, (B) the registration statement, the related prospectus, and each
amendment or supplement of such registration statement or prospectus, comply as
to form in all material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission under the Securities Act
(except that such counsel need express no opinion as to the financial statements
and the other financial and statistical data contained or incorporated by
reference in such registration statement or prospectus) and (C) to such other
effects as may reasonably be requested by counsel for the underwriters or
broker(s), and (ii) a letter dated such date from the independent public
accountants retained by Harbinger, addressed to the underwriters or broker(s)
and to such Stockholder, stating that they are independent public accountants
within the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of Harbinger included or incorporated by
reference in the registration statement or the prospectus, or any amendment or
supplement of such registration statement or prospectus, comply as to form in
all material respects with the applicable accounting requirements of the
Securities Act, and such letter shall additionally cover such other financial
matters (including information as to the period ending no more than five
business days prior to the date of such letter) with respect to the registration
in respect of which such letter is being given as such underwriters may
reasonably request; and
(g) make available for inspection by each Stockholder, any underwriter
participating in any distribution pursuant to such registration statement and
any attorney, accountant or other agent retained by such Stockholder or
underwriter, all financial and other records, pertinent corporate documents and
properties of Harbinger, and cause Harbinger's officers, directors and
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employees to supply all information reasonably requested by any such
Stockholder, underwriter, attorney, accountant or agent in connection with such
registration statement.
The period of distribution (the "Distribution Period") of Registration
Shares in a firm commitment underwritten public offering shall be deemed to
extend until, but not beyond, such time as each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Registration Shares in any other registration shall extend until, but not
beyond, the earlier of the sale of all Registration Shares covered by such
registration or seven (7) days following the effective date of the registration
statement utilized in connection with such registration under the Securities
Act. Harbinger shall have the right to deregister with the Commission any
Registration Shares which remain unsold at the conclusion of any Distribution
Period.
6. Stockholders' Cooperation. In connection with each registration
pursuant to Sections 3 and 4 of this Agreement, the Stockholders selling
Registration Shares shall furnish in writing to Harbinger and any underwriter
participating in such offering such information with respect to themselves and
the proposed distribution by them as is reasonably necessary in order to assure
compliance with federal and applicable state securities laws.
7. Underwriting Agreement. In connection with each registration
pursuant to Sections 3 or 4 of this Agreement covering an underwritten public
offering, Harbinger and the Stockholders agree to enter into a written agreement
with the managing underwriters in such form and containing such provisions as
are customary in the securities business for such an arrangement between major
underwriters and companies of Harbinger's size and investment stature; provided,
however, that such agreement shall not contain any such provision applicable to
Harbinger or the Stockholders which is inconsistent with the provisions of this
Agreement; provided, further, however, that the time and place of the closing
under said agreement shall be as mutually agreed upon between Harbinger and such
managing underwriters.
8. Expenses.
(a) All expenses incurred by Harbinger in connection with the
registration contemplated by Sections 3 and 4 of this Agreement, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel and independent public accountants for Harbinger,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, but excluding any Selling Expenses, are
called "Registration Expenses" in this Agreement. All underwriting discounts,
selling commissions and brokerage fees, fees and expenses of each of the
Stockholder's counsel relating to the sale of Registration Shares are in this
Agreement called "Selling Expenses."
(b) The participating Stockholders shall pay all Registration Expenses
in connection with each registration statement filed pursuant to Section 3 of
this Agreement. In connection with registration statement filed pursuant to
Section 4 of this Agreement, each participating Stockholder shall pay such
portion of the Registration Expenses associated with such registration as is
equal to the ratio of the number of Registration Shares sold or proposed to be
sold by such Stockholder in such registration in relation to the total number of
shares sold or proposed
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to be sold by all parties under such registration statement. All Selling
Expenses in connection with any registration statement filed pursuant to Section
3 or 4 of this Agreement, shall be borne by the participating Stockholders in
proportion to the number of Registration Shares sold or proposed to be sold by
such Stockholders in such registration in relation to the total number of shares
sold or proposed to be sold by all parties under such registration statement.
9. Indemnification.
(a) In the event of a registration of any of the Registration Shares
under the Securities Act pursuant to Section 3 or 4 of this Agreement, Harbinger
will indemnify and hold harmless each Stockholder selling Registration Shares
under such registration (a "Selling Stockholder"), each underwriter of
Registration Shares under such registration, if any, each broker, dealer or any
other similar person acting on behalf of such Stockholder and each other person,
if any, who controls any of the foregoing persons within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which any of the foregoing persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect of this Agreement) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Registration Shares
were registered under the Securities Act pursuant to Sections 3 or 4 of this
Agreement, any preliminary prospectus or final prospectus contained in such
registration statement, or any amendment or supplement of this Agreement, or
arise out of or are based upon the omission or alleged omission to state in such
registration statement a material fact required to be stated in such
registration statement or necessary to make the statements in such registration
statement not misleading, and will reimburse each such Selling Stockholder, each
such underwriter, broker, dealer or other person acting on behalf of such
Stockholder and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
Harbinger will not be liable in any such case if and to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished to Harbinger in writing by such Selling
Stockholder, such underwriter, broker, dealer or other person acting on behalf
of such Stockholder or such controlling person in writing specifically for use
in such registration statement or prospectus.
(b) In the event of a registration of any of the Registration Shares
under the Securities Act pursuant to Sections 3 or 4 of this Agreement, each
Selling Stockholder under such registration, will indemnify and hold harmless
Harbinger and each person, if any, who controls Harbinger within the meaning of
the Securities Act, each officer of Harbinger who signs the registration
statement, each director of Harbinger, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which Harbinger or
such officer or director or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect of such losses, claims, damages or
liabilities) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
under which such Registration Shares were registered under
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the Securities Act pursuant to Section 3 or 4 of this Agreement, any preliminary
prospectus or final prospectus contained in such registration statement, or any
amendment or supplement of such registration statement this Agreement, or arise
out of or are based upon the omission or alleged omission to state in such
registration statement a material fact required to be stated in such
registration statement or necessary to make the statements in such registration
statement not misleading, and will reimburse Harbinger and each such officer,
director, underwriter and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that such
Selling Stockholder will be liable under this Agreement in any such case if and
only to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
pertaining to such Selling Stockholder, furnished in writing to Harbinger by
such Selling Stockholder specifically for use in such registration statement or
prospectus; provided, further, however, that the liability of each Selling
Stockholder under this Agreement shall be limited to the proportion of any such
loss, claim, damage, liability or expense which is equal to the proportion that
the public offering price of shares sold by such Selling Stockholder under such
registration statement bears to the total public offering price of all
securities sold under such registration statement, but not to exceed the net
proceeds received by such Selling Stockholder from the sale of Registration
Shares covered by such registration statement.
(c) Promptly after receipt by an indemnified party under this Agreement
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect of such action is to be made against the indemnifying party
under this Agreement, notify the indemnifying party in writing of such claim,
but the omission so to notify the indemnifying party as provided in this
Agreement shall not relieve the indemnifying party of its obligations under this
Section 9 except to the extent that the omission results in a failure of actual
notice to the indemnifying party and such indemnifying party is damaged solely
as a result of the failure to give notice. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement of such action, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake the
defense of such action with counsel satisfactory to such indemnified party, and,
after notice from the indemnifying party to such indemnified party of its
election so to assume and undertake the defense of such action, the indemnifying
party shall not be liable to such indemnified party under this Section 9 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense of such action other than reasonable costs of investigation and
of liaison with counsel so selected; provided, however, that if the defendants
in any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded based upon advice of
counsel that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, then the indemnified party shall have
the right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the reasonable
expenses and fees of such separate counsel and other reasonable expenses related
to such participation to be reimbursed by the indemnifying party as incurred.
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(d) Notwithstanding the foregoing, in any such action, any indemnified
party shall have the right to retain its own counsel, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that the indemnifying party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the indemnified party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in paragraphs (a) and (b) of
this Section 9 is unavailable or insufficient to hold harmless an indemnified
party under such paragraphs in respect of any losses, claims, damages or
liabilities or actions referred to in such paragraphs, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party, as a result of such losses,
claims, damages, liabilities or actions in such proportion as appropriate to
reflect the relative fault of Harbinger, on the one hand, and such Selling
Stockholder, on the other, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or actions as well as any
other relevant equitable considerations, including the failure to give the
notice required under such paragraphs. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by Harbinger, on the one
hand, or such Selling Stockholder, on the other hand, and to the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Harbinger and the Stockholders agree that it
would not be just and equitable if contributions pursuant to this paragraph were
determined by pro rata allocation (even if the Stockholders were treated as one
entity for such purpose) or by any other method of allocation which did not take
account of the equitable considerations referred to above in this paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or actions referred to above in this paragraph,
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this paragraph, the Selling
Stockholders shall not be required to contribute any amount in excess of the
amount, if any, by which the total price at which the Registration Shares sold
by each such Selling Stockholder was offered to the public exceeds the amount of
any damages which they have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11 (f) of
the Securities Act) is entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
(f) The indemnification of underwriters provided for in this Section 9
shall be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters. To the extent Harbinger agrees to
provide such underwriters with indemnification rights which differ in substance
from the rights offered the Selling Stockholders in this Section 9,
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then the indemnification of the Selling Stockholders in such underwriting shall
at such Selling Stockholder's request be modified to conform to such terms and
conditions.
10. Changes in Harbinger Stock. To the extent that there are any
changes in Harbinger Stock by way of stock split, stock dividend, combination or
reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions of this Agreement, as may be required, so that the rights and
privileges granted to the Stockholders under this Agreement shall continue with
respect to the Registration Shares as so changed.
11. Termination. Notwithstanding anything to the contrary set forth in
this Agreement, this Agreement shall terminate and be of no further force or
effect upon the earlier to occur of: (a) such time as the Stockholders shall be
able to sell all remaining Registration Shares then outstanding within a three
(3) month period under Rule 144 under the Securities Act; (b) such time as the
Stockholders shall have disposed of all of the Registration Shares; or (c) the
date of the first year anniversary of the Closing Date (the "Termination Date");
provided, however, that no termination of this Agreement shall affect the
parties obligations under Sections 8 and 9 of this Agreement, which Sections
shall survive any termination of this Agreement.
12. Representations and Warranties of Harbinger and the Stockholders.
(a) Harbinger represents and warrants to the Stockholders as follows:
(i) The execution, delivery and performance of this Agreement by
Harbinger have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other
agency of government, the Articles of Incorporation or Bylaws of
Harbinger, or any provision of any material indenture, agreement or other
instrument to which it or any of its properties or assets is bound, or
conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any such material indenture,
agreement or other instrument, or result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of Harbinger; and
(ii) This Agreement has been duly executed and delivered by Harbinger
and constitutes the legal, valid and binding obligation of Harbinger,
enforceable against Harbinger in accordance with its terms, subject to
applicable bankruptcy, insolvency and other similar laws affecting the
enforceability of creditors' rights generally, general equitable
principles, the discretion of courts in granting equitable remedies and
public policy considerations.
(b) Each of the Stockholders represents and warrants to Harbinger as
follows:
(i) The execution, delivery and performance of this Agreement by such
Stockholder will not violate any provision of law, any order of any court
or any agency of government, or any provision of any material indenture or
agreement or other instrument to
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which it or any of its properties or assets is bound, or conflict with,
result in a breach of or constitute (with due notice or lapse of time or
both) a default under such material indenture, agreement or other
instrument, or result in the creation or imposition of any lien, charge,
or encumbrance of any nature whatsoever upon any of the properties or
assets of such Stockholder; and
(ii) This Agreement has been duly executed and delivered by such
Stockholder and constitutes the legal, valid and binding obligation of
such Stockholder, enforceable against such Stockholder in accordance with
its terms, subject to applicable bankruptcy, insolvency and other similar
laws affecting the enforceability of creditors' rights generally, general
equitable principles, the discretion of courts in granting equitable
remedies and public policy considerations. In the case of any person who
executes this Agreement in a fiduciary capacity, including, but not
limited to as trustee, on behalf of any Premenos Stockholder, the terms,
conditions and obligations of this Agreement shall inure to the benefit of
and be binding upon such Premenos Stockholder and the trust estate of such
Premenos Stockholder.
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties to this Agreement shall bind and inure to the
benefit of the respective successors and permitted assigns of the parties to
this Agreement whether so expressed or not.
(b) All notices, requests, consents and other communications under this
Agreement shall be in writing and delivered personally or by telecopy
transmission or sent by registered or certified mail or by any express mail
service, postage or fees prepaid, addressed as follows:
TO HARBINGER: Harbinger Corporation
0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: C. Xxxxx Xxxxx
Telecopy No.: (000) 000-0000
with a copy to: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
TO THE STOCKHOLDERS: Xxx Xxxxxxx
Premenos Technology Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
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with a copy to: Xxxxx Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
Telecopy No.: (000) 000-0000
or, in any case, at such other address or addresses and telecopy number or
numbers as shall have been furnished in writing to Olympic (in the case of a
Stockholder) or to the Representative (in the case of Harbinger).
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to Delaware's choice
of law rules.
(d) This Agreement constitutes the entire agreement of the parties with
respect to the subject matter of this Agreement.
(e) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(f) The registration and other rights granted to the Stockholders under
this Agreement are non-transferrable and cannot be assigned or transferred in
any manner to any third-party without the prior written consent of Harbinger.
(g) With the written consent of the holders of the then outstanding
Registration Shares and the written consent of Harbinger, the obligations of
Harbinger and the rights of the Stockholders under this Agreement may be waived
or modified (either generally or in a particular instance, either retroactively
or prospectively and either for a specified period of time or indefinitely).
(h) If any provision of this Agreement or the application of any such
provision to any person or circumstance shall preclude the use of "pooling of
interests" accounting treatment in connection with the Merger, then such
provision shall be of no force and effect to the extent, and solely to the
extent, necessary to preserve such accounting treatment for the Merger, and in
that event, the remainder of this Agreement shall not be affected, and in lieu
of such provision there shall be added as part of this Agreement a provision as
similar in terms as may be possible for the Merger to be treated as a "pooling
of interests" for accounting purposes.
(i) In the event of the death or incapacity of the Representative, the
executor, guardian or other representative of the Representative's estate shall
have the authority under this Agreement to act as Representative under this
Agreement or to appoint a successor to act as Representative under this
Agreement, provided any such successor or Representative is reasonably
acceptable to Harbinger.
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Please indicate your acceptance of the foregoing by signing and
returning the enclosed counterpart of this letter, whereupon this letter (herein
sometimes called this "Agreement") shall be a binding agreement between
Harbinger and the Stockholders.
Very truly yours,
HARBINGER CORPORATION
Attest:
By:/s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------ -------------------------------
Title: Director, Legal Affairs Title: President and Chief
------------------------ Operating Officer
------------------------
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AGREED TO AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN.
Witness: LAW XXXXXXX
By:/s/ Xxxxxxx X. Xxxxxxxxxx /s/ Law Xxxxxxx
-------------------------- --------------------------------
AGREED TO AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN.
Witness: XXXXXXX X. XXXXXX
By:/s/ X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxx
-------------------------- --------------------------------
AGREED TO AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN.
Witness: XXXXXXX X. XXXXXXXXX
By:Xxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------- --------------------------------
AGREED TO AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN.
Witness: XXXXXXX X. XXXXXXXX
By:/s/ /s/ Xxxxxxx X. Xxxxxxxx
-------------------------- --------------------------------
AGREED TO AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN.
Witness: XXXXXXX X. XXXXXXXXXX
By: /s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------- --------------------------------
AGREED TO AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN.
Witness: XXXXX XXXXXX
By:/s/ Xxxxxxx Xxxxxx /s/ Xxxxx Xxxxxx
-------------------------- --------------------------------
AGREED TO AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN.
Witness: H. XXXX XXXXX
By: /s/ Xxxx Xxxxxxxx /s/ H. Xxxx Xxxxx
-------------------------- --------------------------------
AGREED TO AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN.
Witness: XXXXX XXXXXXX
By:/s/ Xxxx Xxxxxxxx /s/ Xxxxx Xxxxxxx
-------------------------- --------------------------------
AGREED TO AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN.
STOCKHOLDER
Witness: XXXXXX X. XXXXXXXX
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------- --------------------------------
[Stockholder Signature Counterpart to Registration Rights Agreement]
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Annex I
Xxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxxx
X. Xxxx Xxxxx
Xxxxx Diamond
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
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