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EXHIBIT 10.1
ADDENDUM TO THE
EMPLOYMENT AGREEMENT
OF
XXXXXX X. XXXXXX
THIS AMENDMENT is made this 1st day of May, 1999, by and between
HARBINGER CORPORATION, a Georgia corporation (the "Company"), and Xxxxxx X.
Xxxxxx (the "Executive").
A. Purpose. The Executive is now employed by the Company pursuant
to an Employment Agreement dated December 4, 1996 (the
"Agreement") and the Company desires to provide an incentive
to the Executive to continue to devote his full attention and
undistracted dedication to the performance of his duties in
the potentially disturbing circumstances of a Change of
Control of the Company.
X. Xxxxxxxxx Benefits and Limitations on Payment. If the
Executive's employment with the Company is terminated by the
Company other than for Cause or by the Executive for Good
Reason within the period beginning ninety (90) days before and
ending one hundred and eighty (180) days after a Change of
Control, (i) any stock options awarded the Executive which
remain outstanding and not vested as of the Date of
Termination shall be deemed vested and exercisable; provided
that acceleration in 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, and (ii) the Executive will receive severance pay
equal to his annual base salary for six (6) months. However,
should the Executive's employment be terminated due to a
Change in Control within one year of the effective date of
this agreement, the severance pay will equal nine (9) months
of his annual base salary.
C. Definitions. For purposes of this Amendment, the following
definitions shall apply:
1. Change of Control. A "Change of Control" shall be
conclusively deemed to have occurred if (and only if) any of
the following shall have taken place: (i) a Change of 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
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or indirectly, of securities of the Company representing forty
percent (40%) or more of the combined voting power of the
Company's 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.
2. Date of Termination. "Date of Termination" means the
date on which a notice of termination is given either by the
Company or by the Executive.
3. Good Reason. "Good Reason" means the Executive's
termination of employment for any of the following events,
unless such event occurs with the Executive's express prior
written consent:
(a) The assignment to the Executive of any
duties materially inconsistent with, or a
diminution of, his position, duties, titles,
offices, responsibilities and status with
the Company as in effect immediately prior
to the Change of Control of the Company,
except in connection with the termination of
the Executive's employment for disability,
retirement, or Cause or as a result of the
Executive's death or termination of
employment other than for Good Reason;
(b) A reduction in the Executive's base salary
as in effect on the date of this Amendment
or as the same may be increased from time to
time;
(c) A change in the location of the Executive's
principal place of employment by more than
seventy-five (75) miles from the location
where he was principally employed
immediately prior to the Change of Control;
(d) Any material breach by the Company of any
provision of this Amendment or the
Agreement; or
(e) Any failure by the Company to obtain the
assumption of the Agreement by any successor
or assign of the Company.
4. Cause. "Cause" means termination of the Executive's
employment under any one or more of the following events:
(a) Executive's knowing and willful misconduct
with respect to the business and affairs of
the Company;
(b) Any material violation by Executive of any
policy of the Company relating to ethical
conduct or practices or fiduciary duties of
a similarly situated executive;
(c) Knowing and willful material breach of any
provision of this Agreement which is not
remedied within thirty (30) days after
Executive's receipt of notice thereof;
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(d) Executive's commission of a felony or any
illegal act involving moral turpitude or
fraud or Executive's dishonesty which may
reasonably be expected to have a material
adverse effect on the Company; and/or
(e) Failure to comply with reasonable directives
of the Board which are consistent with the
Executive's duties, if not remedied within
thirty (30) days after the Executive's
receipt of notice thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the 1st day of May, 1999.
HARBINGER CORPORATION: EMPLOYEE:
Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxxx
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Name Name
President & Chief Operating Officer /s/ Xxxxxx X. Xxxxxx
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Title Signature
/s/ Xxxxx X. Xxxxxxx
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Signature
