THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.2
THIRD
AMENDMENT
TO
This
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT (this “Third Amendment”) is
made the 30th day of June, 2009, by and between AXS-One Inc., a Delaware
corporation (the “Company”), and Xxxxxx
X. Xxxxx (the “Employee”). Capitalized
terms used but not otherwise defined herein have the meanings ascribed to such
terms in the Employment Agreement (as defined below).
WHEREAS,
the Company and the Employee are parties to an Employment Agreement dated as of
February 15, 2007, as amended by a First Amendment to Employment Agreement dated
as of August 12, 2008 and a Second Amendment to Employment Agreement dated as of
January 27, 2009 (collectively, the “Employment Agreement”), pursuant
to which the Company retained the Employee to serve as Executive Vice President,
Treasurer, Secretary and Chief Financial Officer of the Company;
and
WHEREAS,
the parties now wish to effect certain changes to the severance benefits payable
to the Employee pursuant to the Employment Agreement and in accordance with that
certain Agreement and Plan of Merger dated as of April 16, 2009 (the “Merger Agreement”) by
and among Unify Corporation (“Parent”), UCAC, Inc.
and the Company.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained and for
other good and valuable consideration, receipt of which is hereby acknowledged,
the Company and the Employee hereby agree as follows:
1. Amendments. The
following provisions of the Employment Agreement are hereby amended as
follows:
(a) Section 10(a)
of the Employment Agreement is amended by deleting the first paragraph thereof
and substituting the following therefor:
‘‘(a) Effect of
Termination. If the employment of the Employee is terminated by the
Company (or a successor thereto) without Serious Cause (including by
cancellation or non-renewal of this Agreement) or the Employee terminates
employment with the Company (or a successor thereto) for Good Reason and, in
either case, the Employee’s employment is terminated under circumstances
constituting an Involuntary Separation from Service within the meaning of
Treasury Regulations Section 1.409A-1(n) and within the period beginning on
the date that a Change of Control is formally proposed to the Company’s Board of
Directors and ending on the second anniversary of the date on which such Change
of Control occurs, the Company shall pay the Employee a separation pay benefit
(the “Change of
Control Severance Payments”) equal to the amount of the Severance
Payments payable pursuant to Section 9(e) hereof (i.e., nine (9) months of the
Employee’s annual rate of base salary (as of the Employee’s Separation from
Service date)), payable over a nine-month period as provided in Section 9(e)
hereof; provided, that if
Parent sells or otherwise transfers all or substantially all of the Company’s
assets prior to the end of such nine-month period, or if Parent is acquired (by
merger, tender offer or otherwise) by a third-party acquirer prior to the end of
such nine-month period, then Parent (or the surviving company) shall, within
five business days following such change of control event, pay to the
Employee, in a lump sum, the full amount of the remaining Change of Control
Severance Payments. For purposes of this Section 10(a), the
Employee’s “annual rate of base salary” means such rate as was in effect on the
original effective date of the Employment Agreement (i.e.,
$250,000). In addition, if COBRA continuation coverage under any
Company (or successor) healthcare plan is elected, the Company (or successor)
shall provide such coverage at no cost to the Employee for the period of the
COBRA coverage or eighteen months, whichever is shorter. The Employee
will also be entitled to prompt payment of (A) any accrued but unpaid
salary, automobile allowance and vacation, (B) any earned but unpaid bonus
(subject, if applicable, to the terms of any deferred compensation
arrangements), and (C) reimbursement of business expenses incurred prior to
the date of termination.”
(b) Section 10
of the Employment Agreement is amended by adding the following as a new
subsection (c) as follows:
“(c) Management Performance
Shares. For purposes of this Section 10(c), the terms “Net
License Revenue”, “Old Notes”, “Earn-Out” and “Parent Shares” have the meanings
ascribed to such terms in the Merger Agreement. In addition to the
Change of Control Severance Payments described above, if the employment of the
Employee is terminated by the Company (or a successor thereto) without Serious
Cause (including by cancellation or non-renewal of this Agreement) or the
Employee terminates employment with the Company (or a successor thereto) for
Good Reason and, in either case, the Employee’s employment is terminated under
circumstances constituting an Involuntary Separation from Service within the
meaning of Treasury Regulations Section 1.409A-1(n) and within the period
beginning on the date that a Change of Control pursuant to the Merger Agreement
is formally proposed to the Company’s Board of Directors and ending on the
second anniversary of the date on which such Change of Control occurs, the
Employee will be eligible to receive additional compensation in the form of
earn-outs (collectively, the “Management Performance
Shares”) based upon Net License Revenue recorded over the same
period in which the holders of Old Notes will be eligible to receive their
Earn-Out shares. The Management Performance Shares shall be
earned and distributed in accordance with the provision of Section 4.7(b) of the
Merger Agreement, so that after holders of Old Notes have received 2,580,000
Parent Shares (as adjusted to reflect stock splits, stock dividends and reverse
stock splits of Parent) as Earn-Out, the Employee will receive 21.90% of
one-half of the next 342,500 Parent Shares (as adjusted to reflect stock splits,
stock dividends and reverse stock splits of Parent) distributed as Earn-Out, up
to a maximum of 37,500 Parent Shares. Issuance of the Management
Performance Shares will be made to the Employee on the same basis as the
issuance of Earn-Out Parent Shares to the holders of Old Notes. The
protective provisions described in Section 4.7 of the Merger Agreement shall
apply for the benefit of the Employee as if incorporated in this Section
10(c).”
(c) The
phrase “(such period to be eighteen (18) months in the case of a termination
resulting in payments pursuant to Section 10)” contained in subsections (a) and
(b) of Section 11 is deleted in its entirety.
2. Effect of
Amendment. The parties hereby agree and acknowledge that
except as provided in this Third Amendment, the Employment
Agreement remains in full force and effect and has not been modified or
amended in any other respect, it being the intention of the Company and the
Employee that this Third Amendment and the Employment Agreement be read,
construed and interpreted as one and the same instrument.
3. Governing Law. This
Third Amendment shall be interpreted under, and construed in accordance with,
the laws of the State of New Jersey, exclusive of its choice of law
provisions.
4. Counterparts. This
Third Amendment may be executed and delivered (including by facsimile or
electronic transmission) in multiple counterparts, each of which shall be an
original, so that all of which taken together shall constitute one and the same
instrument.
5. Further
Assurances. Each of the parties hereto will, at the request of
the other party, execute, deliver and acknowledge, without any consideration,
such additional documents, instruments or certificates or do or cause to be done
such other things as are reasonably necessary or desirable to make effective the
agreements and transactions contemplated by this Third Amendment.
[Signature page
follows.]
IN
WITNESS WHEREOF, the parties hereto have executed this Third Amendment on the
year and date first above written.
AXS-ONE
INC.
By: /s/ Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Chief
Executive Officer
EMPLOYEE:
/s/ Xxxxxx X.
Xxxxx
Xxxxxx X.
Xxxxx
[Signature Page to Third Amendment to
Employment Agreement]
