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EXHIBIT 99.1
IRREVOCABLE PROXY AGREEMENT
THIS PROXY AGREEMENT (the "Agreement"), dated as of October 23, 1997,
by and between _______________, a stockholder ("Premenos Stockholder") of
Premenos Technology Corp., a Delaware corporation ("Premenos"), and HARBINGER
CORPORATION, a Georgia corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company, Premenos and Olympic Subsidiary Corporation, a
Delaware corporation and a wholly owned subsidiary of the Company ("Merger
Sub"), have entered into an Merger Agreement, dated as of October 23, 1997 (the
"Merger Agreement"), pursuant to which Merger Sub will be merged with and into
Premenos with Premenos as the surviving corporation (the "Merger");
WHEREAS, Premenos Stockholder is the owner of the number of shares (the
"Shares") of Common Stock, par value $.01 per share, of Premenos (the "Premenos
Common Stock") set forth on Annex I (the term "Shares" shall also include any
shares of Premenos Common Stock of which Premenos Stockholder currently has
beneficial ownership (including sole voting power) or obtains beneficial
ownership during the term of this Agreement);
WHEREAS, concurrently with the execution and delivery of the Merger
Agreement and as a condition and inducement to the Company's willingness to
enter into the Merger Agreement, Premenos Stockholder desires to grant to the
Company an irrevocable proxy to vote the Shares;
NOW, THEREFORE, in consideration of the premises and the agreements
herein contained and intending to be legally bound, the parties agree as
follows:
1. Proxy. Subject to the terms and conditions hereof, Premenos
Stockholder hereby appoints the Company, with full power of substitution, as
proxy holder (the duly authorized officers of the Company hereinafter referred
to as the "Proxy Committee"), to represent and to vote the Shares in favor of
the Merger Agreement and the Merger, at any meeting (whether special or annual,
and whether or not adjourned) or by written action of stockholders of Premenos;
the authority granted hereunder (the "Proxy") shall be irrevocable during the
term of this Agreement and deemed to be coupled with an interest sufficient in
law as required by Section 212(e) of the Delaware General Corporation Law.
2. Changes in Shares. For all purposes of this Agreement, the Shares
shall include any securities issued or exchanged with respect to such Shares
upon any recapitalization, reclassification, merger, consolidation, spin-off,
partial or complete liquidation, stock dividend, split-up or combination of the
securities of Premenos or any other change in Premenos's capital structure.
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3. Representations and Warranties of Premenos Stockholder. Premenos
Stockholder represents and warrants to the Company as follows:
3.1 Ownership of the Shares. Premenos Stockholder has valid and
marketable title to the Shares listed on Annex I, free and clear of all security
interests, liens, claims, pledges, assessments, options, equities, charges and
encumbrances whatsoever, and with no proxies or restrictions on the voting
rights or other incidents of record or beneficial ownership pertaining thereto
(except for the Proxy being granted pursuant to this Agreement, the Voting
Agreement dated July 12, 1995 between Xxxxx Xxxxxx and Xxx Xxxxxxx (the "Voting
Agreement") and any applicable restrictions under the securities laws) and there
are no outstanding options, warrants or rights to purchase or acquire or
agreements relating to any of such Shares. Such Shares are validly issued and
outstanding, fully paid and non-assessable with no personal liability attaching
to the ownership thereof.
3.2 Valid and Binding Agreement; No Violation. This Agreement
constitutes a valid and binding agreement of Premenos Stockholder, enforceable
in accordance with its terms. Neither the execution of this Agreement, the
granting of the Proxy, nor the voting of the Shares by the Proxy Committee, will
constitute a violation of, or conflict with, or result in a default under, any
contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which Premenos Stockholder is a party or by which Premenos
Stockholder is bound or to which Premenos Stockholder's Shares are subject.
4. Representations and Warranties of the Company. The Company
represents and warrants to Premenos Stockholder as follows:
4.1 Authorization. The execution and delivery of this Agreement by the
Company has been duly authorized by all requisite corporate action.
4.2 Valid and Binding Agreement. This Agreement constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms.
5. Impact on Voting Agreement. Premenos Stockholder hereby acknowledges
that, during the term of this Agreement, this Agreement supersedes the Voting
Agreement with respect to all matters governed by this Agreement.
6. Publication of Interim Financial Results. The Company agrees to: (a)
publicly release a thirty (30) day interim financial statement (that includes
the combined operations of the Company and Premenos) covering the first full
calendar month of combined operations following the Closing (as defined in the
Merger Agreement) within the meaning of Section 201.01 of the SEC Codification
of Financial Reporting Policies as promptly as reasonably practicable, but in
any event no later than twenty-five (25) days following the end of such first
full calendar month (the "Interim Statement"); and (b) to deliver the Interim
Statement to Premenos Stockholder at least five (5) days prior to its public
release.
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7. Covenants of Premenos Stockholder. Premenos Stockholder hereby
covenants and agrees as follows:
7.1 Inquires or Proposals. From the date of execution of this Agreement
to termination hereof, Premenos Stockholder shall not, directly or indirectly,
through any officer, director, employee, representative or agent (i) solicit,
initiate, or encourage any inquiries or proposals that constitute, or could
reasonably be expected to lead to, a "Competing Offer" (as defined in the Merger
Agreement), or (ii) engage in negotiations or discussions concerning, or provide
any non-public information to any person or entity relating to, any Competing
Offer.
7.2 Legend. Until termination of this Agreement, each certificate
representing the Shares (the "Certificates") shall include a legend (the
"Legend") in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN
IRREVOCABLE PROXY AGREEMENT, DATED AS OF OCTOBER 23, 1997, A
COPY OF WHICH IS ON FILE AT THE OFFICE OF THE CORPORATION. NO
VOTE OR TRANSFER OF ANY SHARES REPRESENTED BY THIS CERTIFICATE
SHALL BE VALID UNLESS MADE IN ACCORDANCE WITH THE TERMS OF
SUCH AGREEMENT.
Within 10 days of the execution of this Agreement, Premenos Stockholder
shall deliver the Certificates to the Company for purposes of affixing the
Legend. The Legend shall be removed upon the termination of this Agreement
pursuant to Section 8.8 hereof.
7.3 Stockholder Capacity. Premenos Stockholder has executed this
Agreement in his capacity as a Stockholder of Premenos and not in his capacity
as an officer or director of Premenos. Without limiting the foregoing, nothing
herein shall limit or affect any actions taken by Premenos Stockholder in his
capacity as an officer or director of Premenos in exercising Premenos's rights
under the Merger Agreement.
8. Miscellaneous.
8.1 Expenses. All costs and expenses (including legal fees) incurred in
connection with this Agreement shall be paid by the party incurring such
expense.
8.2 Survival of Representations. Notwithstanding any provision of this
Agreement, all representations, warranties, covenants and agreements made by
Premenos Stockholder and the Company in this Agreement shall survive until the
earlier of (a) the closing of the Merger or (b) the termination of the Merger
Agreement in accordance with its terms; provided, however, if the Merger is
closed in accordance with the terms of the Merger Agreement, Section 6 of this
Agreement shall survive termination of this Agreement until satisfied in
accordance with the terms thereof.
8.3 Further Assurance and Cooperation. From time to time, and without
further consideration, each party will execute and deliver to the other such
documents and take such action
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as the other may reasonably request in order to consummate more effectively the
terms of this Agreement.
8.4 Parties in Interest; Complete Agreement; Amendment. All authority
herein conferred or agreed to be conferred by Premenos Stockholder shall survive
Premenos Stockholder's death, incapacity, dissolution, liquidation or
termination. This Agreement constitutes the sole understanding of the parties
hereto with respect to the subject matter hereof; provided, however, that this
provision is not intended to abrogate any other written agreement between or
among the parties executed with or after this Agreement or any written agreement
pertaining to another subject matter. No amendment of this Agreement shall be
binding unless made in writing and duly executed by the Company and Premenos
Stockholder. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto without the prior written consent of the
Company (if such assigning party is Premenos Stockholder) or Premenos
Stockholder (if such assigning party is the Company).
8.5 Specific Performance. Each party acknowledges that its obligations
hereunder are unique, and agrees that the other shall have the right, in
addition to any other rights it may have at law, to specific performance or
equitable relief by way of injunction if it shall fail to perform any of its
obligations hereunder.
8.6 Law Governing; Construction. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware. Unless
otherwise expressly provided herein, all references in this Agreement to
Section(s) shall refer to the Section(s) of this Agreement. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning of this Agreement. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
8.7 Consent to Jurisdiction; Venue. Each of the parties hereto
irrevocably submits to the exclusive jurisdiction of the state courts of
Delaware and to the jurisdiction of the United States District Court for the
District of Delaware, for the purpose of any action or proceeding arising out of
or relating to this Agreement, and each of the parties hereto irrevocably agrees
that all claims in respect to such action or proceeding may be heard and
determined exclusively in any state or federal court sitting in Wilmington,
Delaware. Each of the parties hereto agrees that a final judgment in any action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Each of the parties
hereto irrevocably consents to the service of any summons and complaints and any
other process in any other action or proceeding relating to this Agreement, on
behalf of itself or its property, by the personal delivery of copies of such
process to such party. Nothing in this Section 6.7 shall affect the right of any
party hereto to serve legal process in any other manner permitted by law.
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8.8 Term of the Agreement. This Agreement shall terminate upon the
first to occur of (i) the termination of the Merger Agreement in accordance with
its terms, or (ii) the closing of the Merger.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
HARBINGER CORPORATION
By:
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Name:
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PREMENOS STOCKHOLDER
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Annex I
Name Shares
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