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EXHIBIT 10.13
FIRST AMENDMENT TO
EXECUTIVE EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT ("Amendment") is entered
into this 1st day of July, 1997, by and between HARBINGER CORPORATION
("Company"), a Georgia corporation, and C. XXXXX XXXXX ("Employee"), an
individual, and amends that certain Executive Employment Agreement
("Agreement") entered into the 4th day of March, 1997, by and between the
Company and Employee. Capitalized terms used herein without definition shall
have the meanings ascribed to such terms in the Agreement. For and in
consideration of the mutual covenants described below, the parties hereby agree
as follows:
1. AMENDMENT. The Agreement is hereby amended by adding the following as
Section 18 of the Agreement:
"18. ACCELERATION OF OPTIONS. Employee has been and in the future may be
awarded options to purchase shares of the Companys common stock ("Employee Stock
Options") pursuant to the terms of the Companys stock option plans previously,
now or hereafter in effect (collectively, the "Plans"). The following terms
shall be applicable to all Employee Stock Options. In the event of any conflict
between the following terms and an Employee Stock Option, the following terms
shall control. For purposes of this Section, Continuous Service means a period
of continuous performance of services by Employee for the Company, a Parent or
a Subsidiary, as determined by the Board or Committee.
a. ONGOING VESTING. Notwithstanding anything herein or in any
Employee Stock Option to the contrary, if Employee is terminated by the Company
as a result of a Termination Without Cause, then for purposes of subsection (a)
of this Section 18 and the Employee Stock Options, the Employee Stock Options
shall continue to vest over time as if Employee was in Continuous Service
during such time.
b. ACCELERATION. Notwithstanding this Section 18 or anything in an
Employee Stock Option to the contrary, the Employee Stock Options shall be
deemed accelerated, fully vested and fully exercisable in the event of a Change
in Control (defined below) as long as such acceleration and vesting does not
adversely impact the availability of pooling of interests accounting treatment,
as such determination is made by the Board in its reasonable discretion.
c. CHANGE IN CONTROL. A "Change in Control" shall be conclusively
deemed to have occurred if (and only if) any of the following shall have taken
place: (i) a change in control is reported by the Company in response to either
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended (Exchange Act), or Item 1 of Form 8-K
promulgated under the Exchange Act; (ii) any person (as such term is used in
Section 13(d) and 14(d)(2) of the Exchange Act) is or becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly,
of securities of the Company representing forty percent (40%) or more of the
combined voting power of the Companys then outstanding securities; or (iii)
following the election or removal of directors, a majority of the Board
consists of individuals who were not members of the Board two years before such
election or removal, unless the election of each director who was not a
director at the beginning of such two-year period has been approved in advance
by directors representing at least a majority of the directors then in office
who were directors at the beginning of the two-year period."
IN WITNESS WHEREOF, the parties hereto have executed this Amendment and
affixed their hands and seals effective as of the date first above written.
Company: HARBINGER CORPORATION Employee: C. XXXXX XXXXX
By: /s/ Xxxxx X. Xxxxx Signature /s/ C. Xxxxx Xxxxx
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Title: Chief Executive Officer
Address: 0000 Xxxxx Xxxx Xxxxxxxxx Address: 000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
