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EXHIBIT 99.1
OPTION NOTICE, ASSUMPTION AND SUBSTITUTION AGREEMENT
THIS OPTION NOTICE, ASSUMPTION AND SUBSTITUTION AGREEMENT (the
"Agreement") is made and entered into as of this __ day of December, 1997, by
and among HARBINGER CORPORATION, a Georgia corporation ("Harbinger"), PREMENOS
TECHNOLOGY CORP., a Delaware corporation ("Premenos"), and the individual listed
on Exhibit A to this Agreement ("Optionee").
W I T N E S S E T H
WHEREAS, Harbinger, Olympic Subsidiary Corporation, a Delaware
corporation and a wholly-owned subsidiary of Harbinger ("HarbingerSub"), and
Premenos have entered into that certain Merger Agreement, dated as of October
23, 1997 (the "Merger Agreement");
WHEREAS, pursuant to the Merger Agreement, Harbinger will acquire
Premenos through the merger of HarbingerSub with and into Premenos (the
"Merger");
WHEREAS, as a result of the Merger, Premenos will become a wholly-owned
subsidiary of Harbinger;
WHEREAS, Premenos previously granted to Optionee stock options (the
"Old Options") to purchase such shares of common stock, $.01 par value per
share, of Premenos as are listed on Exhibit A to this Agreement ("Premenos
Common Stock"), which Old Options were granted under and pursuant to the
Premenos Program (the "Premenos Program") attached as Exhibit B;
WHEREAS, pursuant to the Merger Agreement, Harbinger will assume at the
Effective Time all of Premenos' rights and obligations with respect to the Old
Options and shall substitute therefor non-qualified stock options (the "New
Non-Qualified Options") under the Harbinger 1996 Stock Option Plan (the "Plan")
to purchase shares of common stock, par value $.0001 per share of Harbinger (the
"Harbinger Common Stock") for each Old Option that constituted a non-qualified
stock option prior to the Effective Time, and shall substitute therefor
incentive stock options (the "New Incentive Options" and together with "New
Non-Qualified Options" hereinafter collectively referred to as the "New
Options") under the Plan for each Old Option that qualified as an incentive
stock option prior to the Effective Time;
WHEREAS, the New Options shall be evidenced by, and shall be subject to
the terms and conditions of, the stock option grant certificate in the form of
Exhibit C to this Agreement (the "New Stock Option Grant Certificate(s)") which
will be issued under the Plan attached as Exhibit D to this Agreement; and
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WHEREAS, in connection with the Merger and to induce Harbinger to
consummate the transactions contemplated by the Merger Agreement and to grant to
Optionee the New Options, Optionee wishes to enter into this Agreement to
facilitate the matters contemplated hereby.
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
SECTION 1. DEFINITIONS. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such
terms in the Merger Agreement.
SECTION 2. ASSUMPTION AND SUBSTITUTION OF OPTIONS.
A. OPTION ASSUMPTION AND SUBSTITUTION. Promptly following
the Effective Time and upon receipt of this Agreement
duly executed by Optionee and Premenos, Harbinger shall
execute and deliver to Optionee a New Stock Option Grant
Certificate evidencing the New Options being granted to
Optionee in connection with the assumption of the Old
Options and the substitution of the New Options therefor
pursuant to the terms and conditions of the Merger
Agreement and this Agreement. The New Stock Option Grant
Certificate shall evidence the right to purchase the
number of shares of Harbinger Common Stock as is equal
to the product (rounded up or down as appropriate to a
whole share) of (i) the number of shares of Premenos
Common Stock subject to the Old Options immediately
prior to the Effective Time, multiplied by (ii) the
Conversion Ratio and the exercise price per share of
Harbinger Common Stock set forth in such New Stock
Option Grant Certificate shall be equal to the quotient
(rounded up or down as appropriate to a whole cent)
obtained by dividing (i) the per share exercise price
for a share of Premenos Common Stock subject to the Old
Options immediately prior to the Effective Time, by (ii)
the Conversion Ratio. In connection with such assumption
and substitution, Harbinger shall substitute a
non-qualified stock option under the Plan for each Old
Option held by Optionee that constituted a non-qualified
stock option prior to the Effective Time, and shall
substitute an incentive stock option under the Plan for
each Old Option held by Optionee that constituted an
incentive stock option prior to the Effective Time.
B. TERMINATION. Optionee hereby acknowledges and agrees
that the receipt of the New Options and the New Stock
Option Grant Certificate in accordance with the
provisions hereof shall constitute full satisfaction
and discharge of all rights of Optionee in respect of
the Old Options.
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SECTION 3. REPRESENTATIONS AND WARRANTIES OF HARBINGER.
Harbinger represents and warrants to Optionee as follows:
A. CORPORATE EXISTENCE AND POWER. Harbinger is a
corporation duly incorporated, validly existing and
in good standing under the laws of the State of
Georgia and has full power and authority to execute,
deliver and perform this Agreement.
B. AUTHORITY. The execution, delivery and performance of
this Agreement and the issuance and delivery of the
New Options have been duly and validly authorized by
all necessary corporate action on the part of
Harbinger.
C. BINDING EFFECT. This Agreement has been duly executed
and delivered by Harbinger and constitutes the valid
and binding agreement 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 and the discretion of courts in granting
equitable remedies.
D. REGISTRATION. Harbinger shall, promptly following the
Effective Time, cause the shares of Harbinger Common
Stock issuable upon exercise of the New Options to be
registered with the Securities and Exchange
Commission on a Form S-8 Registration Statement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF OPTIONEE.
Optionee represents and warrants to Harbinger as follows:
A. AUTHORITY. Optionee has full right, power, authority
and capacity to enter into this Agreement and to
relinquish all of his/her rights in respect of the
Old Options in accordance with the terms and
provisions hereof.
B. BINDING EFFECT. This Agreement has been duly executed
and delivered by Optionee, and, upon consummation of
the transactions contemplated hereby, Optionee shall
have relinquished all of his/her rights in respect of
the Old Options, and this Agreement constitutes the
valid and binding agreement of Optionee, enforceable
against Optionee in accordance with its terms,
subject to applicable bankruptcy, insolvency and
other similar laws affecting the enforceability of
creditors' rights generally, general equitable
principles and the discretion of courts in granting
equitable remedies. Optionee acknowledges that (a)
he/she has read this Agreement and all Exhibits
hereto, understands the contents hereof and thereof
and has signed this Agreement of his/her own
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free will, and (b) he/she understands that Harbinger
and Premenos will rely on this Agreement in
connection with the consummation of the transactions
contemplated by the Merger Agreement. Optionee
further acknowledges that he/she has received a copy
of the Joint Proxy Statement/Prospectus and the
Merger Agreement delivered therewith and has had
sufficient time to review each such document in full,
including, but not limited to, the provisions therein
relating to the assumption of the Old Options and
substitution of the New Options.
C. STOCK OPTION AGREEMENTS. Optionee hereby agrees that
upon execution of this Agreement he/she will deliver
this Agreement along with his/her original Premenos
stock option agreement(s) to Harbinger. If Optionee
cannot locate his/her original Premenos stock option
agreement(s), he/she will complete and execute the
affidavit of loss enclosed herewith for each missing
Premenos stock option agreement and return it to
Harbinger.
SECTION 5. MISCELLANEOUS.
A. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the
State of Delaware, without regard to Delaware's
conflict of law rules.
B. BINDING EFFECT. This Agreement shall be binding on
and inure to the benefit of Harbinger, Premenos and
Optionee and their respective successors, assigns,
heirs, executors and legal representatives; provided,
however, that none of the rights or obligations of
Optionee hereunder may be assigned or otherwise
transferred by Optionee.
C. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed
to be an original but all of which together shall
constitute one and the same instrument.
D. ENTIRE AGREEMENT. This Agreement is intended by the
parties hereto to be their complete agreement with
respect to the subject matter hereof, and this
Agreement supersedes any prior agreements or
understandings (oral or written) with respect to the
subject matter hereof between the parties hereto.
E. SPECIFIC PERFORMANCE. The parties hereto each
acknowledge that the rights of each party to
performance of the covenants and agreements herein
are special, unique and of extraordinary character,
and that, in the event that any party violates or
fails or refuses to perform any covenant or agreement
made by it herein, the non-breaching party may be
without an adequate remedy at law. The parties each
agree, therefore, that in the event that either party
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violates or fails or refuses to perform any covenant
or agreement made by such party herein, the
non-breaching party or parties may, subject to the
terms of this Agreement and in addition to any
remedies at law for damages or other relief,
institute and prosecute an action in any court of
competent jurisdiction to enforce specific
performance of such covenant or agreement or seek any
other equitable relief.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
HARBINGER CORPORATION
By: ________________________________________
Name: _____________________________
Title: ____________________________
PREMENOS CORPORATION
By:________________________________________
Name: ___________________________
Title: _________________________
OPTIONEE
Signature:
Name (print name):__________________________
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