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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") dated as of the 3rd day
of January, 1997, is made by and between Harbinger Corporation, a Georgia
corporation (the "Company"), and the holders of the common stock of the Company
listed in Schedule I, attached hereto (the "Shareholders").
W I T N E S S E T H:
WHEREAS, the Shareholders are the owners of the shares of Common Stock of
the Company listed on Schedule I hereto; and
WHEREAS, it is a condition to the consummation of the transactions
contemplated by that certain Merger Agreement, dated as of the date hereof, by
and among the Company, Supply Tech, Inc. ("Supply Tech"), and Harbinger
Acquisition Corporation II (the "Merger Agreement"), that this Agreement be
executed by the parties hereto;
WHEREAS, it is a condition to the consummation of the acquisition by the
Company of all of the issued and outstanding capital stock of Harbinger
Acquisition III, Inc. and Harbinger Acquisition IV, Inc. that this Agreement be
executed by the parties hereto; and
WHEREAS, the parties are willing to execute this Agreement and to be bound
by the provisions hereof.
NOW, THEREFORE, in consideration of the mutual agreements and promises
contained herein, in the Merger Agreement and in the other agreements
contemplated thereby, and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Shareholders and the Company,
each with the other, do hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
"Common Stock" means the common stock, $0.0001 par value per share, of the
Company.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Holder" means any Shareholder and any permitted transferee of
Shareholder's rights under this Agreement pursuant to Section 2.7.
"Registrable Securities" means the Shares. The term "Registrable
Securities" does not include shares of Common Stock that have been registered,
as defined below, and sold pursuant to such registration.
The terms "register," "registered," and "registration" refer to a
registration effected by preparing the filing of a registration statement in
compliance with the Securities Act, and the declaration or order by the
Commission of the effectiveness of such registration statement.
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"Requesting Holders" has the meaning assigned to it in Section 2.1.
"Restricted Period" means the period beginning on the Closing Date (as
defined in the Merger Agreement) and ending on the date of filing by the
Company with the Commission of the Company's annual report on Form 10-K,
quarterly report on Form 10-Q or other filing with the Commission, or a press
release, that reports the combined financial results of the Company and Supply
Tech covering at least 30 days of combined operations of the Company and Supply
Tech within the meaning of Section 201.01 of the SEC's Codification of
Financial Reporting Policies.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Shareholders" means the persons listed on Schedule I attached hereto.
"Shares" means the shares of Common Stock of the Company listed on
Schedule I hereto. In the event the Company shall declare a stock split, stock
dividend or other distribution of capital stock in respect of, or issue capital
stock in replacement of or exchange for, the Shares, such shares shall be
Shares within the meaning of this Agreement.
"Underwritten Public Offering" means a public offering of Common Stock for
cash which is offered and sold in a registered transaction on a firm commitment
underwritten basis through one or more underwriters, all pursuant to an
underwriting agreement between the Company and any selling shareholders on the
one hand and such underwriters on the other hand.
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ARTICLE II
REGISTRATION RIGHTS
2.1 Demand Registration Rights.
(a) Upon written notice delivered by the Holder Representative (as defined
below) to the Company following the expiration of the Restricted Period, the
Company agrees to effect on one occasion a registration with respect to such
number of Registrable Securities not to exceed one-half of the number of Shares
outstanding as of the date hereof on behalf of the Holders designated in the
written notice (the "Requesting Holders") as to the number of Registrable
Securities for each Holder as designated in the written notice, subject to the
terms hereof, on a "shelf" registration statement for sale in the open market
for a period not to exceed 45 days as provided in this Section 2.1. Upon
written notice delivered by the Holder Representative to the Company at any
time following the first anniversary of the effectiveness of the registration
described in the foregoing sentence, the Company agrees to effect on one
occasion a registration with respect to such number of Registrable Securities
not to exceed one-half of the number of Shares as of the date hereof on behalf
of the Requesting Holders on a "shelf" registration statement for sale in the
open market for a period not to exceed 45 days as provided in this Section 2.1.
Such registration statements shall be on Form S-3 if the Company is eligible
to use such form. The fees and expenses of such registrations and offerings
pursuant to this Section 2.1 shall be borne by the Company; provided, however,
that the Holders will pay all of the underwriting discounts and commissions,
transfer taxes, transfer agent fees and the expenses, disbursements and charges
of their own counsel with respect to the Registrable Securities and, in the
case of an Underwritten Public Offering, the expenses of the Company, including
travel expenses, incurred in connection with the marketing of the Registrable
Securities. As used in this Agreement, the "Holder Representative" shall mean
Xxx X. Xxxxx or, at such time that he no longer owns any Registrable
Securities, the Holder who owns the largest number of Registrable Securities.
Each Holder agrees that the Holder Representative shall have the authority to
act, or to forebear from acting, pursuant to this Agreement as he or she may
determine in his or her discretion.
(b) Whenever required under this Section 2.1 to effect the registration
of the Registrable Securities, the Company shall use its reasonable efforts to:
(i) Prepare and file with the Commission a registration statement
with respect to all of the Registrable Securities, cause such
registration statement to become effective, and keep such
registration statement effective for up to forty-five (45) days
or until all such shares are sold, whichever is earlier; and
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
used in connection with such registration statement (including
documents incorporated therein) as may be necessary to comply
with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such
registration statement.
(c) The Holder Representative may request that the offer and sale of
Registrable Securities by the Requesting Holders be made in an Underwritten
Public Offering and shall include in its request made pursuant to this Section
2.1 the name of the managing underwriter or underwriters, if any, that the
Holder Representative would propose to employ in connection with the public
offering proposed to be made pursuant to the registration requested. The
Company, in its sole discretion, may refuse the request to use an underwriter in
favor of the "shelf" registration described in 2.1(a) above. Alternatively, the
Company may object to any managing underwriter or underwriters proposed by the
Holder Representative, in which case the Holder Representative shall propose
another managing underwriter or underwriters that is or are reasonably
acceptable to the Company. The Company and
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each Requesting Holder shall use its reasonable efforts to enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting in the manner set forth above. The Company will
take such reasonable actions as are necessary to comply with the terms and
obligations of such underwriting agreement and will furnish such underwriters
and their respective representatives full access to all information reasonably
requested in connection with their due diligence review of the Company and its
operations.
(d) The Company shall be entitled to defer for a reasonable period of
time, but not exceeding one hundred twenty (120) days, the filing of any
registration statement otherwise required to be prepared and filed by it
pursuant to this Section 2.1 if the Company's Board of Directors determines in
good faith that such deferral is necessary to avoid a requirement to disclose
prematurely information regarding a possible merger or acquisition transaction
or they otherwise determine in good faith that such deferral is in the best
interests of the Company and its shareholders. If the Company shall so
postpone the filing of a registration statement, the Holder Representative
shall have the right to withdraw such request for registration by giving
written notice to the Company within fifteen (15) days after receipt of notice
from the Company of such postponement. In the event of such withdrawal, such
request shall not be counted for purposes of Section 2.1 hereof.
(e) The Company shall be entitled to include in any registration statement
referred to in this Section 2.1, for sale in accordance with the method of
disposition specified by the Holder Representative, shares of the Company's
Common Stock to be sold by the Company for its own account, or other
shareholders for their own account (except as and to the extent that, in the
opinion of the managing underwriter if such method of disposition shall be
effected in the Company's sole discretion as an Underwritten Public Offering,
such inclusion would result in any of the Registrable Securities being excluded
from the offering or would materially adversely affect the marketing of the
Registrable Securities).
(f) Anything in this Section 2.1 to the contrary notwithstanding, the Company
shall not be required to file a registration statement requested pursuant to
this Section 2.1 which would be declared effective after the last day of a
fiscal year of the Company and prior to the date on which the Company's audited
financial statements for such fiscal year are first available, or in a manner
which would require the inclusion of financial statements other than such
audited financial statements.
(g) No request for registration under this Section 2.1 may be made within six
(6) months after the effective date of any other registration statement filed
by the Company or within three (3) months after the completion of the sale of
the securities included in any other registration statement filed by the
Company or such other amount of time that is required of the Company or
similarly situated shareholders of the Company. If a registration statement
requested pursuant to this Section 2.1 shall not have become effective within
twelve (12) months after the initial filing thereof with the Commission as a
result of any reason other than (i) a material adverse development in the
business or condition (financial or other) of the Company or (ii) any act or
matter within the control of the Company, or if such registration statement
shall be abandoned or withdrawn at the request of the Holder, then the Company
shall be deemed to have satisfied its obligation to register the Registrable
Securities pursuant to this Section 2.1.
2.2 "Piggyback" Registration Rights. If the Company, at any time after
the expiration of the Restricted Period and prior to the date on which the
Holder Representative delivers the notice contemplated by Section 2.1(a),
proposes to register under the Securities Act any class of the Company's equity
or debt securities for sale to the public on a registration statement on Form
X-0, X-0, X-0 or any successor form for the sale of equity securities to the
public and within the 12 months immediately preceding such time Holders have not
disposed of more than one-half of the Shares outstanding as of the date hereof,
then and in each such case the Company shall give fifteen (15) days prior
written notice of such proposed registration to the Holder Representative and
shall cause such number of Registrable Securities (which in no event shall
exceed one-half of the Shares) as shall be requested by the Holder
Representative on behalf of the Holders
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included in such request within ten (10) days thereafter to be included, upon
the same terms (including the method of distribution), in any such offering. The
Company may, without the consent of the Holder Representative, withdraw any such
registration and abandon any proposed offering if in the reasonable good faith
belief of the Board of Directors of the Company such withdrawal and abandonment
appears to be in the Company's best interests. The failure of the Holders to
exercise their rights hereunder with respect to any registration shall not
constitute a waiver of its rights to participate in any other registration. The
foregoing obligations shall be subject to the following conditions and
limitations:
(i) The Company shall not be required to give such
notice or include any Registrable Securities in any form of
registration statement unless such Registrable Securities of
such Holder are eligible for inclusion in the applicable form
of registration statement as described above;
(ii) In an Underwritten Public Offering of the
Registrable Securities, each Holder shall agree (a) to have
the Registrable Securities sold to or by such underwriter or
managing agent on terms substantially equivalent to the terms
upon which the Company is selling the securities so
registered by it, and (b) to delay the sale of any securities
of the Company not sold by it in such registration statement
for the period requested by such underwriter or managing
agent up to 180 days (or such lesser amount of time if
permitted by such underwriter or managing agent) following
the effective date of such registration statement;
(iii) If any underwriter in such Underwritten Public
Offering shall advise the Company that it declines to include
a portion of the Registrable Securities requested by the
Holders to be included in the registration statement, then in
case of an exclusion as to a portion of such Registrable
Securities, such portion shall be allocated among the Holders
in proportion to the respective number of shares of common
stock requested to be registered by such Holders of the
Company's securities. The Holders hereby acknowledge and
agree that the Holders shall be subordinate in priority of
registration to any person to whom the Company has granted
registration rights prior to the date hereof; and
(iv) The fees and expenses of the offering shall be
borne by the Company; provided, however, that the Holders
will pay all of the underwriting discounts and commissions,
transfer taxes, transfer agent fees and the expenses,
disbursements and charges of their own counsel with respect
to the Registrable Securities.
2.3 Undertakings of Holders. As a condition of the registration
provided for in this Section 2, each Holder who includes Registrable Securities
in such registration shall (a) furnish such information concerning itself and
the terms of its proposed offering to the Company as requested in connection
with such registration; (b) agree to indemnify the Company (and each of its
officers and directors who have signed the registration statement relating to
the registration) and each person, if any, who controls the Company within the
meaning of the Securities Act, the underwriters and each person, if any, who
controls such underwriter within the meaning of the Securities Act, to the
extent reasonably deemed necessary by the Company with respect to the accuracy
of any information so furnished by such Holder; and (c) reasonably cooperate
with the Company and its representatives to cause such registration to become
effective at the earliest practicable time.
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2.4 Additional Undertakings of the Company. Without limiting the
generality of the provisions of Section 2, if and whenever the Company is under
an obligation to effect the registration of any Registrable Securities, the
Company shall at its sole cost and expense:
(i) furnish to the Holder such numbers of each prospectus
(including each preliminary prospectus and prospectus
supplement) in conformity with the requirements of the
Securities Act, and such other documents as are reasonably
requested by the Holder to facilitate the public offering of
its Registrable Securities; and
(ii) use its reasonable efforts to register or qualify the
Registrable Securities covered by such registration under the
securities or blue sky laws of such jurisdictions (and shall do
any and all other acts or things) as is reasonable to enable
the Holder to consummate the public sale or the disposition of
its Registrable Securities; provided, however, that the Company
shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
2.5 Indemnification.
(a) In the case of each registration effected by the Company pursuant to
this Agreement in which any Holder's Registrable Securities are included, the
Company agrees to indemnify and hold harmless such Holder against any and all
losses, claims, damages or liabilities to which they or any of them may become
subject under the Securities Act or any other statute or common law, including
any amount paid in settlement of any litigation, commenced or threatened, if
such settlement is effected with the written consent of the Company, and to
reimburse them for any reasonable legal or other reasonable expenses incurred
by them in connection with the investigation of any claims and defenses of any
actions (subject to Section 2.5(c)), insofar as any such losses, claims,
damages, liabilities or actions arise out of or are based upon: any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto or any document
incorporated by reference therein, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the indemnification
agreement contained in this Section 2.5(a) shall not (i) apply to such losses,
claims, damages, liabilities or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon and in
conformity with information furnished to the Company in writing by a Holder for
use in connection with the preparation of the registration statement or any
preliminary prospectus or final prospectus contained in the registration
statement or any such amendment thereof or supplement thereto or any document
incorporated by reference therein or (ii) inure to the benefit of any person to
the extent such person's claim for indemnification hereunder arises out of or
is based on any violation by such person of applicable law.
(b) In the case of each registration effected by the Company pursuant to
this Agreement in which any Holder's Registrable Securities are included, such
Holder shall be obligated, in the same manner and to the same extent as set
forth in Section 2.5(a), to indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, its directors and officers, with respect to any statement or
alleged untrue statement in, or omission or alleged omission from, such
registration statement or any post-effective amendment thereof or any
preliminary prospectus or final prospectus (as amended or supplemented, if
amended or supplemented as aforesaid) contained in such registration statement,
if such statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company by such indemnifying person for
use in connection with the preparation of such registration statement or any
preliminary prospectus or final prospectus contained in such registration
statement or any such amendment thereof or supplement thereto; provided,
however, that the liability of each Holder hereunder shall be limited to the
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proceeds received by each Holder from the sale of Registrable Securities
covered by such registration statement, amendment, supplement or prospectus, as
the case may be.
(c) Each person to be indemnified pursuant to this Section 2.5 shall,
promptly after its receipt of written notice of the commencement of any action
against such indemnified person in respect of which indemnity may be sought
from an indemnifying person under this Section 2.5, notify the indemnifying
person in writing of the commencement thereof. The omission of any indemnified
person so to notify an indemnifying person of the commencement of any such
action shall relieve the indemnifying person from any liability in respect of
such action which it may have to such indemnified person on account of the
indemnity agreement contained in this Section 2.5, but shall not relieve the
indemnifying person from any other liability which it may have to such
indemnified person. If any such action shall be brought against any
indemnified person and it shall notify an indemnifying person of the
commencement thereof, the indemnifying person shall be entitled to participate
therein and, to the extent it may desire, jointly with any other indemnifying
persons similarly notified, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified person, and after notice from the
indemnifying person to such indemnified person of its election so to assume the
defense thereof, the indemnifying person shall not be liable to such
indemnified person under this Section 2.5 for any legal or other expenses
subsequently incurred by such indemnified person in connection with the defense
thereof other than reasonable costs of investigation unless (i) the indemnified
party shall have employed counsel in an action in which the indemnified party
and indemnifying party are both defendants and there is a conflict of interest
between such parties that would prevent counsel from adequately representing
both parties, (ii) the indemnifying party shall not have employed counsel
satisfactory within the exercise of reasonable judgment of the indemnified
party to represent the indemnified party within a reasonable time after the
notice of the commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of the indemnifying party. The undertaking contained in this Section 2.5 shall
be in addition to any liabilities which the indemnifying person may have
pursuant to law.
2.6 Rule 144 Requirements. For a period commencing on the date of this
Agreement ending upon the first to occur of (i) the third anniversary of the
date of this Agreement or (ii) the sale of all Registrable Securities by the
Holders, with a view to making available to each Holder the benefits of Rule
144 (or any successor rule thereto) promulgated under the Securities Act, the
Company agrees to file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act. Each Holder's right to require the Company to register the
Registrable Securities pursuant to Sections 2.1 and 2.2 shall expire at such
time as any Registrable Securities are eligible for sale in the open market
pursuant to Rule 144 (or any successor rule thereto) under the Securities Act.
2.7 Transfer of Registration Rights. The registration rights described in
this Section 2 shall not be transferable without the prior consent of the
Company; provided, however, that a Holder may transfer such registration rights
to a permitted transferee of Shares so long as (i) such transfer of Shares is
conducted in compliance with all applicable transfer restrictions, whether
imposed by contract, applicable law or otherwise, and (ii) such transferee is a
member of the Holder's immediate family or is a trust or family limited
partnership established for the benefit of such a family member; provided
further, that such registration rights shall not be transferable by any
transferee contemplated by the foregoing proviso.
ARTICLE III
TRANSFERABILITY
3.1 Transferability. Transfer of the Shares shall be made only on the
books of the Company by the holders of record thereof or by their legal
representatives who shall furnish proper evidence of authority to transfer, or
by their attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Company, subject to the restrictions set forth
in the Merger Agreement and the documents and agreements
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contemplated thereby. The holder(s) in whose name the Shares stand on the books
of the Company shall be deemed by the Company to be owner(s) thereof for all
purposes.
3.2 Restrictive Legends. Unless and until otherwise permitted by this
Section, each instrument evidencing Shares shall contain or otherwise be
imprinted with a suitable legend in substantially the following form:
The shares evidenced by this certificate have not been registered under
the Securities Act of 1933, as amended, or under the securities laws of
any state, and such shares may be sold, transferred, pledged or
hypothecated unless (1) covered by an effective registration statement
under the Securities Act of 1933; (2) in accordance with (i) Rule 145(d)
(in the case of shares issued to an individual who is not an affiliate of
the Company) or (ii) Rule 144 (in the case of shares issued to an
individual who is an affiliate of the Company) of the rules and
regulations of such act; or (3) in accordance with some other transaction
which is exempt from the registration requirements of such act.
Furthermore, the shares evidenced by this certificate have been issued or
sold in reliance on section 10-5-9(13) of the Georgia Securities Act of
1973, as amended, and may not be sold or transferred except in a
transaction that is exempt under such act or pursuant to an effective
registration under such act.
The shares represented by this certificate were issued pursuant to a
business combination that is accounted for as a 'pooling of interest' and
may not be sold, nor may the owner thereof reduce his risk relative
thereto in any way (except as permitted by SEC Staff Accounting Bulletin
No. 76), until such time as Harbinger has published financial results
covering at least 30 days of combined operations after the effective date
of the Merger through which the business combination was effected.
The Company is hereby authorized to place "stop transfer" instructions on its
records or to instruct any transfer agent to prevent the transfer of such
shares except in conformity with this Article.
3.3 Restriction on Transfer. No Shares may be transferred prior to the
expiration of the Restricted Period. In addition, no Shareholder may transfer
Shares other than under Sections 2.1 or 2.2 until it has delivered written
notice to the Company describing briefly the manner of any such proposed
transfer and until (i) the Company has received from the Shareholder's counsel
an opinion (reasonably satisfactory in form and substance to the Company's
counsel) that such transfer can be made without compliance with the
registration provisions of the Securities Act or any state securities law, or
(ii) such transfer complies with Rules 144 and 145 (or comparable successor
provisions) promulgated under the said Securities Act and applicable state
securities act requirements, or (iii) a registration statement filed by the
Company is declared effective by the SEC and under applicable state securities
laws or steps necessary to perfect exemptions from such registration are
completed.
Notwithstanding anything to the contrary herein, in the event that there
is an Underwritten Public Offering of securities of the Company pursuant to a
registration covering Registrable Securities and a Holder of Registrable
Securities does not sell his Registrable Securities to the underwriters of the
Company's securities in connection with such offering, such Holder shall
refrain from selling such Registrable Securities during the period of
distribution of the Company's securities by such underwriters and the period in
which the underwriting syndicate participates in the after market; provided,
however, that such Holder shall, in any event, be entitled to sell its
Registrable Securities commencing on the ninetieth (90th) day after the
effective date of such registration statement in accordance with the terms
hereof, or such other amount of time that may be required of by the underwriter
of similarly situated holders of the Company's securities.
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ARTICLE IV
MISCELLANEOUS
4.1 Notices. All notices, communications and deliveries hereunder shall
be made in writing signed by the party making the same, shall specify the
Section hereunder pursuant to which it is given or being made, and shall be
delivered personally or by telecopy transmission or sent by registered or
certified mail or by any express mail service (with postage and other fees
prepaid) as follows
If to Company: Harbinger Corporation
0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: President
Telecopy No.: 000-000-0000
with a copy to: Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: 000-000-0000
If to the Shareholders: c/o Xxx X. Xxxxx
0000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Telecopy No.: 000-000-0000
with a copy to: Xxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Telecopy No.: 000-000-0000
4.2 Remedies. Each party hereto acknowledges that a remedy at law for any
breach or attempted breach of this Agreement will be inadequate, agrees that
each other party hereto shall be entitled to specific performance and
injunctive and other equitable relief in case of any such breach or attempted
breach, and further agrees to waive any requirement for the securing or posting
of any bond in connection with the obtaining of any such injunctive or any
other equitable relief.
4.3 Effect of Sale. Any Holder who sells all of his Registrable
Securities pursuant to the terms of this Agreement shall cease to be a party to
this Agreement and shall have no further rights or obligations hereunder.
4.4 Amendment. This Agreement may not be modified or amended except in a
writing signed by the Company and the holders of 66-2/3% of the total
Registrable Securities outstanding at such time (with any shares of Registrable
Securities issuable upon conversion of other securities deemed to be outstanding
for these purposes).
4.5 Governing Law. This Agreement shall be subject to and governed by the
laws of the State of Georgia.
4.6 Jurisdiction. All legal actions to enforce or interpret the provisions
of this Agreement shall be filed in a court of the State of Georgia or of the
United States District Court having jurisdiction over Xxxxxx County, Georgia.
All parties irrevocably waive any objection they may have to the laying of venue
of any suit,
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action or proceeding arising out of or relating hereto brought in any such
court, irrevocably waive any claim that any such suit, action or proceeding so
brought has been brought in an inconvenient forum and further waive the right to
object that such court does not have jurisdiction over such party. No party
shall bring a suit, action or proceeding in respect of this Agreement in any
other jurisdiction than as aforesaid.
4.7 Successors and Assigns. This Agreement shall be binding upon and
inure to the parties contained in this Agreement and their respective heirs,
executors, distributees, successors (including successors by merger) and
permitted assigns.
4.8 Invalid Provisions. Should any portion of this Agreement be adjudged
or held to be invalid, unenforceable or void, such holding shall not have the
effect of invalidating or voiding the remainder of this Agreement and the
parties hereby agree that the portion so held invalid, unenforceable or void
shall, if possible, be deemed amended or reduced in scope, or to otherwise be
stricken from this Agreement to the extent required for the purposes of
validity and enforcement thereof.
4.9 Section Headings. The section and paragraph headings contained herein
are for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement.
4.10 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute only one
instrument.
4.11 Entire Agreement. This Agreement constitutes the sole and entire
agreement between the parties hereto with respect to the subject matter hereof.
4.12 Time of the Essence. Time is of the essence with respect to every
provision of this Agreement.
4.13 Pooling of Interests. If any provision of this Agreement or the
application of any such provision to any person or circumstance precludes the
use of "pooling of interests" accounting treatment in connection with the
Merger (as defined in the Merger Agreement), 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.
4.14 Number; Gender. Whenever the context so requires, the singular
number shall include the plural and the plural shall include the singular, and
the gender of any pronoun shall include the other gender.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
on its behalf and its corporate seal to be hereunto affixed by its duly
authorized officers and the Shareholders have executed this Agreement, as of
the day and year first above written.
HARBINGER CORPORATION
ATTEST:
By: /s/ Xxxxx X. Xxxxx, President, Group
------------------------------------
Operations
Secretary Xxxxx X. Xxxxx, President, Group
Operations
/s/ Xxxx X. Xxxx
----------------
Xxxx X. Xxxx, Secretary
SHAREHOLDERS:
/s/ Xxx X. Xxxxx
----------------
Xxx X. Xxxxx
/s/ A. Xxxx Xxxxxxx
-------------------
A. Xxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx by Xxx X. Xxxxx
---------------------------------
Xxxxx Xxxxxxx by Xxx X. Xxxxx as agent and
attorney-in-fact for Xxxxx Xxxxxxx
ENDEAVOR CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxxxx Xxxxx
-----------------
Xxxxxxx Xxxxx, authorized
representative
57
12
Schedule I
----------
Shareholder Number of Shares
----------- ----------------
Xxx Xxxxx 694,368
A. Xxxx Xxxxxxx 694,368
Xxxxx Xxxxxxx 91,298
Endeavor Capital Management, LLC 119,966
58
