Exhibit 10.64


 


 


December
22, 2004


 


 


Mr.
Joseph P. Dwyer


3
Cordwood Court


East
Northport, NY  11731


 


Dear
Joe:


 


This letter is to confirm our offer of
employment 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, starting
employment on or before December 31, 2004.


 


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


 


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


 


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


 


Stock Options:  You will be awarded a stock
option 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 price
on January 3, 2005.  The options will be
granted pursuant to the terms and conditions of the AXS-One Stock Option Plan
with vesting to occur over a four year period, with 25% vesting each year on
the anniversary of the date of grant.  In
addition, you will be granted 25,000 restricted shares of the Company’s common
stock (“Restricted Stock”), pursuant to the


 





















 


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


 


Change of Control:  Upon the occurrence of a
Change of Control of the Company, all Stock Options and Restricted Stock then
granted to you which are unvested at the time of the Change of Control will be
immediately vested and you shall have a period of 12 months to exercise such Stock
Options.


 


As
used herein, a “Change of Control” of the Company shall be deemed to have
occurred:


 


(i)            Upon any person or group (within the meaning
of applicable securities laws) acquiring or having beneficial ownership of more
than 30% of the voting power (including voting power exercisable on a
contingent 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 a
tender offer or otherwise; or


 


(ii)           Upon consummation of a merger or
consolidation in which the Company or an affiliate of the Company is a
constituent corporation and in which the Company’s stockholders immediately
prior thereto will beneficially own, immediately thereafter, securities of the
Company or any surviving or new corporation resulting there from having less
than a majority of the voting power of the Company or any such surviving or new
corporation; or


 


(iii)          Upon the consummation of a sale, lease,
exchange or other transfer or disposition by the Company of all or
substantially 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, NJ
office, the Company will reimburse you for the cost of your accommodations
during 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.


 


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Severance Package:  If, at any time, the Company
terminates your employment for any reason other than for cause, the Company
will pay you a severance benefit equal to 3 months of your base salary payable
in 6 semi-monthly installments.  The Company
will continue to provide you with employee benefit coverage during the
severance period.  Additionally, you will
be entitled to receive any earned but unpaid salary and any unreimbursed
business expenses.  For the purposes of
this letter, “Cause” shall mean a termination of employment by the Company for
any of the following reasons that remains uncured (if curable) for 10 days
after 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 proprietary
information of the Company by you; (iii) your conviction of, or plea of nolo
contendere to, a felony or other crime involving morale turpitude (other than
as a result of a traffic violation); or (vi) a material breach by you of any
provision of this letter or any other material breach of any agreement entered
into with the Company.  “Cause” shall not
include the failure to obtain the objective metrics set forth in the Company’s
business plans.  If your employment is
terminated by the Company for Cause, you shall not be entitled to receive any
severance benefits, provided that you shall receive any amount of base salary
earned but unpaid, through the date of your termination and any unreimbursed
business expenses.


 


Benefits:  During your employment with the Company, you
will be entitled to receive all such benefits and perquisites as are routinely
provided 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 such
modification, amendment or termination is applicable to all executives
receiving such benefits) but shall, in any case, provide reasonable health and
disability benefits to Executive while Executive is a full-time employee of the
Company.


 


Employment:  AXS-One is an equal opportunity
employer.  In addition, it is understood
that your employment is “at will”, as defined under the laws of New Jersey, and
thus such employment can be terminated with or without cause, at the option of
either party.


 


Confidentiality:  You agree that any confidential
information that becomes available to you in the course of employment is the
sole property of the Company and shall not be used by you for any purpose other
than fulfilling your position’s objectives. 
This applies while an active or inactive employee.  A partial list of items
covered by confidentiality include:


 


	
  •      Employee
  Lists

  	
   

  	
  •      Technical
  Product Knowledge

  
	
  •      Customer
  Lists

  	
   

  	
  •      Confidential
  Financial Data

  
	
  •      Prospect
  Lists

  	
   

  	
  •      Product
  Price Lists

  
	
  •      Product
  Materials

  	
   

  	
  •      Sales/Marketing
  Strategy

  



 


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The above information and any other
confidential material will remain confidential for a period of two years after
employment at the Company, except for customer lists and possible other
technical data, which remains confidential indefinitely, unless the Company
makes it available to the public.


 


Please
countersign this offer of employment and Non-Disclosure Agreement and return
the originals to me to officially indicate your acceptance.


 


This
offer is contingent upon your review and acceptance of this offer letter, on or
before 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


 


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