THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.1
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
Xxxxxxx X. Xxxxx (the “Executive”).
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 Executive are parties to an Employment Agreement dated as of
April 21, 2004, 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 Executive to serve as President and Chief
Executive Officer of the Company; and
WHEREAS,
the parties now wish to effect certain changes to the severance benefits payable
to the Executive 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 Executive hereby agree as follows:
1. Amendments. The
following provisions of the Employment Agreement are hereby amended as
follows:
(a) Subsection
(1) of Section 7.e of the Employment Agreement is deleted in its
entirety.
(c) Subsection
(2) of Section 7.e of the Employment Agreement is deleted and the following
substituted therefor:
‘‘(2) Involuntary
Termination. In the event of a termination of the Executive’s
employment hereunder by the Company without Cause or by the Executive for Good
Reason and, in either case, under circumstances constituting an Involuntary
Separation from Service on or within 12 months following a Change of Control,
the Company will pay the Executive a separation pay benefit (the “Change of Control Severance
Payments”) equal to the amount of the Severance Payments
payable pursuant to paragraph (ii) of Section 7.b hereof (i.e., twelve (12)
months of the Executive’s annual rate of base salary (as of the Executive’s
Separation from Service date)), payable over a twelve-month period as provided
in Section 7.b(ii) hereof; provided, that if
Parent sells or otherwise transfers all or substantially all of the Company’s
assets prior to the end of such twelve-month period, or if Parent is acquired
(by merger, tender offer or otherwise) by a third-party acquirer prior to the
end of such twelve-month period, then Parent (or the surviving company) shall,
within five business days following such change of control event, pay to the
Executive, in a lump sum, the full amount of the remaining Change of
Control Severance Payments. For purposes of this Section 7.e(2), the
Executive’s “annual rate of base salary” means such rate as was in effect on the
Commencement Date (i.e., $400,000). 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 Executive for the period of the COBRA coverage or twelve months, whichever
is shorter. The Executive 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.”
(d) Section
7.e of the Employment Agreement is amended by adding the following as a new
subsection (3):
“(3) Management Performance
Shares. For purposes of this Section 7.e(3), 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, in the event of a
termination of employment hereunder by the Company without Cause or by the
Executive for Good Reason and, in either case, under circumstances constituting
an Involuntary Separation from Service on or within 12 months following a Change
of Control pursuant to the Merger Agreement, the Executive 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 Executive will receive
70.07% 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 120,000 Parent Shares. Issuance of the
Management Performance Shares will be made to the Executive 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 Executive as if incorporated in this Section
7.e(3).”
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
Executive 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/ Xxxxxx X.
Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: Chief
Financial Officer
EXECUTIVE:
/s/ Xxxxxxx X.
Xxxxx
Xxxxxxx
X. Xxxxx
[Signature Page to Third Amendment to
Employment Agreement]
