**Exhibit 10.64**

 

 

December22, 2004

 

 

Mr.Joseph P. Dwyer

3Cordwood Court

EastNorthport, NY  11731

 

DearJoe:

 

This letter is to confirm our offer ofemployment to you under the following terms and conditions to join AXS-One Inc.(“the Company”) as its Executive Vice President and Chief Financial Officer,reporting directly to me, based out of our Rutherford, NJ office, startingemployment on or before December 31, 2004.

 

***Salary:***  Starting salary will be $10,416.66semi-monthly, paid on the 15th and last business day of each month, whichequates to 24 pay periods.

 

***Bonus: ***You will be eligible for a target bonus in2005 of $100,000 for achievement of 100% of your target objectives (“TargetBonus”). These targets will be finalized within two weeks of your start date.  (Attached as Exhibit A and Bis 2004’s bonus formula as an example). Such bonus will be paid promptly following the computation of therelevant 2005 year-end financial metrics and at the same time that annual bonuspayments are made to the other senior offices of the Company.  During subsequent years, your Target Bonusand bonus program(s) shall be agreed upon between you and the Company (andapproved by the Compensation Committee of its Board of Directors), and bothparties will use their best efforts to agree on such program(s) prior toJanuary 31 of said year; provided, that if you and the Company are unable toreach agreement before March 31 of any calendar year, then the bonus program(s)in effect for the immediately preceding calendar year (adjusted only to ensurethat you have a comparable ability to earn bonuses as under the precedingcalendar year’s program(s)) shall also govern the current calendar year.

 

***Signing Bonus****:* You will be granted a $50,000 signing bonus asan inducement to accept employment with the Company and as a replacement forother amounts potentially waived from previous employment.  This will be paid to you within 15 days ofyour commencement of employment.

 

***Stock Options:*** You will be awarded a stockoption grant of 300,000 shares of the Company’s common stock (“Stock Options”),and such options will have an exercise price equal to the closing market priceon January 3, 2005.  The options will begranted pursuant to the terms and conditions of the AXS-One Stock Option Planwith vesting to occur over a four year period, with 25% vesting each year onthe anniversary of the date of grant.  Inaddition, you will be granted 25,000 restricted shares of the Company’s commonstock (“Restricted Stock”), pursuant to the

 

----

 

Company’sStock Option Plan, within two weeks of your start date, to be valued on thedate of grant at fair market value for tax purposes.  Such Restricted Stock will cliff vest in 5years and will be subject to accelerated vesting based on specific objectivesto be approved prior to the grant by the Compensation Committee.  You must be an active employee to vest theseshares or the acceleration conditions must have been met or the Change ofControl provisions must have been triggered.

 

***Change of Control***:  Upon the occurrence of aChange of Control of the Company, all Stock Options and Restricted Stock thengranted to you which are unvested at the time of the Change of Control will beimmediately vested and you shall have a period of 12 months to exercise such StockOptions.

 

Asused herein, a “Change of Control” of the Company shall be deemed to haveoccurred:

 

(i)            Upon any person or group (within the meaningof applicable securities laws) acquiring or having beneficial ownership of morethan 30% of the voting power (including voting power exercisable on acontingent or deferred basis as well as immediately exercisable voting power)of the Company (excluding only any person or group having a greater than 30%beneficial ownership as of the Commencement Date), whether as a result of atender offer or otherwise; or

 

(ii)           Upon consummation of a merger orconsolidation in which the Company or an affiliate of the Company is aconstituent corporation and in which the Company’s stockholders immediatelyprior thereto will beneficially own, immediately thereafter, securities of theCompany or any surviving or new corporation resulting there from having lessthan a majority of the voting power of the Company or any such surviving or newcorporation; or

 

(iii)          Upon the consummation of a sale, lease,exchange or other transfer or disposition by the Company of all orsubstantially all of its assets to any person or group or related persons.

 

***Commuting/Accommodations:*** Given the fact that you will need to work out of the Rutherford, NJoffice, the Company will reimburse you for the cost of your accommodationsduring the week if you need to stay in New Jersey.  You will also be given a car allowance of$750.00 per month for automobile expenses.

 

2

----

 

***Severance Package:***  If, at any time, the Companyterminates your employment for any reason other than for cause, the Companywill pay you a severance benefit equal to 3 months of your base salary payablein 6 semi-monthly installments.  The Companywill continue to provide you with employee benefit coverage during theseverance period.  Additionally, you willbe entitled to receive any earned but unpaid salary and any unreimbursedbusiness expenses.  For the purposes ofthis letter, “Cause” shall mean a termination of employment by the Company forany of the following reasons that remains uncured (if curable) for 10 daysafter your receipt of written notice thereof: (1) gross misconduct or gross neglect of duties related to the Company;(ii) fraud, embezzlement, or misappropriation of any property or proprietaryinformation of the Company by you; (iii) your conviction of, or plea of nolocontendere to, a felony or other crime involving morale turpitude (other thanas a result of a traffic violation); or (vi) a material breach by you of anyprovision of this letter or any other material breach of any agreement enteredinto with the Company.  “Cause” shall notinclude the failure to obtain the objective metrics set forth in the Company’sbusiness plans.  If your employment isterminated by the Company for Cause, you shall not be entitled to receive anyseverance benefits, provided that you shall receive any amount of base salaryearned but unpaid, through the date of your termination and any unreimbursedbusiness expenses.

 

***Benefits:***  During your employment with the Company, youwill be entitled to receive all such benefits and perquisites as are routinelyprovided to other comparable senior executives of the Company.  The Company reserves the right to modify,amend or terminate any such benefits at any time for any reason (provided suchmodification, amendment or termination is applicable to all executivesreceiving such benefits) but shall, in any case, provide reasonable health anddisability benefits to Executive while Executive is a full-time employee of theCompany.

 

***Employment:***  AXS-One is an equal opportunityemployer.  In addition, it is understoodthat your employment is “at will”, as defined under the laws of New Jersey, andthus such employment can be terminated with or without cause, at the option ofeither party.

 

***Confidentiality:***  You agree that any confidentialinformation that becomes available to you in the course of employment is thesole property of the Company and shall not be used by you for any purpose otherthan fulfilling your position’s objectives. This applies while an active or inactive employee.  A partial list of itemscovered by confidentiality include:

 
| •      Employee  Lists    |   | •      Technical  Product Knowledge |
|---------------------------------------------------------|--------|-------------------------------------------------------------------|
| •      Customer  Lists    |   | •      Confidential  Financial Data |
| •      Prospect  Lists    |   | •      Product  Price Lists         |
| •      Product  Materials |   | •      Sales/Marketing  Strategy    |

 

3

----

 

The above information and any otherconfidential material will remain confidential for a period of two years afteremployment at the Company, except for customer lists and possible othertechnical data, which remains confidential indefinitely, unless the Companymakes it available to the public.

 

Pleasecountersign this offer of employment and Non-Disclosure Agreement and returnthe originals to me to officially indicate your acceptance.

 

Thisoffer is contingent upon your review and acceptance of this offer letter, on orbefore December 31, 2004 and the execution of our Non-Disclosure Agreement.

 

Sincerely,

 
| /s/ Bill Lyons                          |   |   |
|-----------------------------------------|--------|--------|
|                                    |   |
| Bill  Lyons                             |   |
| Chairman  & Chief Executive Officer |   |

 

 
|   | I  ACCEPT:       |   |     |
|--------|------------------|--------|----------|
|   |             |   |     |
|   | /s/  J.P. Dwyer  |   | 12/31/04 |   |   |
|   | Joseph  P. Dwyer | Date   |     |
|        |                  |        |          |  |  |

 

 

Enclosures

 

4

----