Exhibit 10.2
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This Amended and Restated Employment
Agreement (“ Agreement ”), dated as of
October 1, 2009 (“ Effective Date ”)
by and between GlobalSCAPE, Inc., a Delaware corporation (“
Employer ” or the “ Company ”), and
Craig Robinson (“ Employee ”).
R E C I T A L S
:
WHEREAS, pursuant to the terms of
that certain Employment Agreement dated as of October 6, 2008
(the “ Original Agreement ”) by and between the
Company and Employee, Employee has been employed as the Chief
Operating Officer of the Company;
WHEREAS, the Company and Employee
desire to amend and restate the Original Agreement as set forth in
this Agreement.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements hereinafter set forth, the
parties hereto agree as follows:
Section 1.
Employment
. Employer hereby employs Employee,
and Employee hereby accepts employment, upon the terms and subject
to the terms and conditions of this Agreement. Unless otherwise
consented to by Board of Directors, Employee’s principal
place of employment shall be at the Company’s headquarters in
San Antonio, Texas.
Section 2
. Duties. During the Term (as
defined below), Employee shall be employed as Chief Operating
Officer of Employer. Employee shall report to the Chief Executive
Officer of Employer. Employee agrees to diligently and honestly
exercise his business judgment in the discharge of the duties as
are customary to this position as those duties are determined from
time to time by the Board of Directors of the Employer (the “
Board ”) and to fully comply with all laws and
regulations pertaining to the performance of this Agreement, all
ethical rules, Employer’s Code of Business Conduct &
Ethics for Members of the Board of Directors and Executive Officers
as well as any and all of policies, procedures and instructions of
the Company including, but not limited to, the provisions of
Section 304 of the Sarbanes-Oxley Act of 2002. Employee agrees
to devote his full work time and best efforts to the performance of
the duties as an employee of Employer; provided, however ,
that Employee shall not be precluded from engaging in non-profit
activities (such as serving on the boards of trade and industry
associations, or religious, charitable or other community
organizations), as long as such activities do not unreasonably
interfere with Employee’s duties and responsibilities as
Chief Operating Officer of Employer. Employee will not, during the
Term, directly or indirectly, engage in any other business, either
as an employee, employer, consultant, principal, officer, director,
advisor, or in any other capacity, either with or without
compensation, without the prior written consent of the Employer.
Employee shall also comply with all reasonable rules and
regulations and policies now in effect or as subsequently modified,
governing the conduct of Employer’s employees, including
policies relating to insider trading and reporting obligations
intended to comply with the Securities Exchange Act of
1933.
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Section 3.
Term . The term of employment of Employee hereunder
shall be four (4) years beginning on October 6, 2008
and ending on October 30, 2012 (the “ Term
”). This Agreement may be terminated prior to the end of the
Term pursuant to Section 6 below.
Section 4.
Compensation and
Benefits . In
consideration for the services of Employee hereunder, Employer
shall compensate Employee as follows:
(a) Base Salary . Until the
termination of Employee’s employment hereunder (but subject
to any severance or other payment to which Employee may be entitled
pursuant to this Agreement or otherwise following termination of
his employment), Employer shall pay Employee a base salary of
$225,000 annually (the “ Base Salary ”), payable
in accordance with the regular payroll practices of Employer for
executives, less such deductions or amounts as are required to be
deducted or withheld by applicable laws or regulations and less
such other deductions or amounts, if any, as are authorized in
writing by Employee. Such Base Salary shall be reviewed at least
annually by the Compensation Committee of the Board (the “
Committee ”), and may be increased in the sole
discretion of the Committee, but not decreased (any increased
amount thereupon being the Base Salary hereunder).
(b) Incentive Compensation .
For each fiscal year of the Company which ends during the Term,
beginning with the fiscal year ending December 31, 2009,
Employee shall be eligible to receive an annual cash bonus of up to
50% of the Base Salary (the “ Annual Bonus ”),
as recommended and approved by the Committee, if the Company and
Employee, as applicable, achieve the performance targets set by the
Committee and communicated to the Employee. Incentive Compensation
shall be paid (i) in accordance with, and subject to those
terms and conditions of, the Company’s annual incentive
compensation plan which are administrative or which are required
for compliance with Section 162(m) of the Internal Revenue
Code of 1986 (the “ Code ”); provided that
nothing in the Company’s plan shall apply adversely with
respect to Employee to the extent inconsistent with the express
terms of this Agreement; and (ii) in no event later than the
15th day of the third month following the end of the taxable year
(of the Company or Employee, whichever is later) in which the
performance targets have been achieved. Employee shall be required
to repay any after-tax portion of Annual Bonus received in respect
of any year in which there is an accounting restatement due to the
material noncompliance of the Company with any financial reporting
requirement under the securities laws as a result of
misconduct.
(c) [Intentionally Omitted]
.
(d) Stock Option Plan .
Employee shall be granted options to purchase a total of 400,000
shares of common stock, par value $0.001 per share, of Employer
(“ Stock Options ”), 300,000 of which were
granted on the date of the execution and delivery of the Original
Agreement, under the GlobalSCAPE, Inc. 2000 Stock Option Plan (the
“ Plan ”) and pursuant to the terms of the Stock
Option Agreement in substantially the form used by Employer in
connection with the grant of stock options to their officers and
executives, a copy of which is attached as Exhibit A hereto.
The per share exercise price under the Stock Option shall equal the
price established pursuant to the Plan.
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(e) Paid Time Off . Employee
shall be entitled to vacation and other paid time off in accordance
with Employer’s policies for officers and executives, as they
may be modified from time to time during Employee’s
employment hereunder, provided that Employee will have no less than
fifteen (15) days of paid vacation during each year of this
Agreement, six (6) days of paid sick leave, and three
(3) days of personal leave during each one year term accruing
bi-weekly. Vacation and personal days shall be scheduled in advance
and must be taken at such time or times as approved by the
Board.
(f) Group Insurance and Other
Benefits . Employee shall be entitled to receive the same
benefits Employer makes generally available to their officers and
executives, including, without limitation, participation in
Employer’s group health, life and disability programs, and
Employee’s entitlement to and participation in such benefits
programs shall be at the same rates which are available to
Employer’s other executives and officers.
(g) Savings Plans. Employee
shall be entitled to participate in Employer’s 401(k) plan,
or other retirement or savings plans as are made available to
Employer’s other executives and officers and on the same
terms which are available to Employer’s other executives and
officers.
Section 5.
Expenses . Employer will reimburse Employee for expenses
related to the performance of his duties in accordance with its
reimbursement policies for executives and officers in effect from
time to time.
Section 6.
Defined Terms Relating to
Termination . The
following capitalized terms used in this Agreement shall have the
meanings set forth in this Section 6 :
(a) Change in Control . For
purposes of this Agreement, a “ Change in Control
” shall be deemed to have occurred if (a) any
“person” or “group” (as such terms are used
in Section 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended, (the “ Exchange Act ”)) is or
becomes the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act as in effect on the date hereof,
except that a person shall be deemed to be the “beneficial
owner” of all shares that any such person has the right to
acquire pursuant to any agreement or arrangement or upon exercise
of conversion rights, warrants, options or otherwise, without
regard to the sixty day period referred to in such Rule), directly
or indirectly, of securities representing 50% or more of the
combined voting power of Employer’s then outstanding
securities; provided, however, that if Thomas W. Brown and/or David
Mann acquire, directly or indirectly, securities representing 50%
or more of the combined voting power of Employer’s then
outstanding securities it shall not be deemed a Change in Control,
(b) any person or group (other than Thomas W. Brown or David
Mann or entities controlled by either) shall make a tender offer or
an exchange offer for 50% or more of the combined voting power of
Employer’s then outstanding securities, (c) at any time
during any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who
at the beginning of such period constituted the board of directors
of Employer and any new directors, whose election by the board of
directors of Employer or nomination for election by
Employer’s stockholders was approved by a vote of at least
two-thirds (2/3) of Employer’s directors then still in
office who either were Employer’s directors at the beginning
of the period or whose election or nomination for election was
previously so approved (“ Current Directors ”),
cease for any reason to
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constitute a majority thereof, (d) Employer
shall consolidate, merge or exchange securities with any other
entity and the stockholders of Employer immediately before the
effective time of such transaction do not beneficially own,
immediately after the effective time of such transaction, shares or
other equity interests entitling such stockholders to a majority of
all votes (without consideration of the rights of any class of
stock or other equity interests entitled to elect directors by a
separate class vote) to which all stockholders of the corporation
or owners of the equity interests of any other entity issuing cash
or securities in the consolidation, merger or share exchange would
be entitled for the purpose of electing directors or where the
Current Directors immediately after the effective time of the
consolidation, merger or share exchange would not constitute a
majority of the board of directors or similar governing body of the
corporation or other entity issuing cash or securities in the
consolidation, merger or share exchange, or (e) any person or
group acquires all or substantially all of Employer’s
assets.
Notwithstanding the foregoing,
however, a Change in Control shall not be deemed to occur merely by
reason of (1) an acquisition of Employer’s securities
by, or any consolidation, merger or exchange of securities with,
any entity that, immediately prior to such acquisition,
consolidation, merger or exchange of securities, was a
“subsidiary,” as such term is defined below. For these
purposes, the term “subsidiary” means (i) any
corporation, limited liability company or other entity of which 80%
of the capital stock or other equity interests of such entity is
owned, directly or indirectly, by Employer and (ii) any
unincorporated entity in respect of which Employer has, directly or
indirectly, an equivalent degree of ownership or (2) an
acquisition of Company securities by Thomas W. Brown or David
Mann.
(b) Disability . For purposes
hereof, “ Disability ” shall be deemed to exist
if Employee (A) meets the definition of either “totally
disabled” or “total disability” (or terms with
like meaning) under the terms of the Company’s long-term
disability benefit program, and (B) is suffering from any
medical or mental condition that in the Board’s reasonable
opinion would prevent him from carrying out his normal duties. Any
refusal to submit to a reasonable medical examination by an
independent physician to determine whether Employee is so totally
disabled shall be deemed to constitute conclusive evidence of his
disability. The determination of such physician made in writing to
the Company and to Employee shall be final and conclusive for all
purposes of this Agreement. Termination by the Company or by
Employee of his employment based on “Disability” shall
be deemed to have occurred if, within thirty (30) days after
written Notice of Termination (as hereinafter defined) is given,
Employee shall not have returned to the full-time performance of
his duties.
(c) Retirement . Termination
by the Company or Employee of his employment based on “
Retirement ” shall mean termination in accordance with
the Company’s retirement policy, generally applicable to its
salaried employees or in accordance with any retirement arrangement
established with Employee’s consent.
(d) Cause . Termination by
the Company of Employee’s employment for “ Cause
” shall mean termination upon:
(i) the continued failure by
Employee to substantially perform his duties with the Company
(other than any such failure resulting from his incapacity due to
Disability or any such actual or anticipated failure resulting from
termination by Employee
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for Good Reason) after a written
demand for substantial performance is delivered to Employee by the
Board, which demand specifically identifies the manner in which the
Board believes that Employee has not substantially performed his
duties;
(ii) Employee engages in conduct
which is demonstrably and materially injurious to the Company or
any of its affiliates, monetarily or otherwise;
(iii) Employee commits fraud,
bribery, embezzlement or other material dishonesty with respect to
the business of the Company or any of its affiliates, or the
Company discovers that Employee has committed any such act in the
past with respect to a previous employer;
(iv) Employee is indicted for any
felony or any criminal act involving moral turpitude, or the
Company discovers that Employee has been convicted of any such act
in the past;
(v) Employee commits a breach of any
of the covenants, representations, terms or provisions of this
Agreement;
(vi) Employee violates any
instructions or policies of the Company with respect to the
operation of its business or affairs; or
(vii) Employee uses illegal
drugs.
(e) Good Reason . For
purposes of this Agreement, “ Good Reason ”
shall mean, without Employee’s express written
consent:
(i) the material failure by the
Company, without Employee’s consent, to pay to Employee any
portion of his current compensation within ten (10) days of
the date any such compensation payment is due;
(ii) Employer commits a material
breach of any of the covenants, representations, terms or
provisions hereof, and such breach is not cured within thirty
(30) days after written notice thereof to the Company, which
notice shall identify in reasonable detail the nature of the breach
and gives Company an opportunity to respond, excluding, however,
failure to pay salary within ten (10) days as further provided
in subsection (i) above;
(iii) any material diminution of
Employee’s title, function, duties, authority or
responsibilities (including reporting requirements);
(iv) a reduction in Employee’s
salary as in effect on the date of this Agreement or as may be
increased from time to time;
(v) a material reduction in the
benefits that are in effect from time to time for Employee;
or
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(vi) a relocation of the
Employee’s principal place of employment to a location which
is beyond a 50 mile radius from San Antonio, Texas.
Employee must provide notice to the
Company within 90 days of the initial existence of the condition
giving rise to “Good Reason”. Upon the receipt of such
notice, the Company shall have 30 days to remedy the condition
giving rise to “Good Reason”.
(f) Notice of Termination .
Any purported termination of Employee’s employment by the
Company or by Employee shall be communicated by written notice to
the other party hereto in accordance with Section 15(a)
hereof (“ Notice of Termination ”). Such Notice
of Termination shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of Employee’s employment under the provisions so
indicated.
(g) Date of Termination, Etc
. “ Date of Termination ” shall mean (i) if
Employee’s employment is terminated for Disability, thirty
(30) days after Notice of Termination is given (provided that
Employee shall not have returned to the full-time performance of
his duties during such thirty (30) day period), or
(ii) if Employee’s employment is terminated for Cause or
by Employee for Good Reason or for any other reason (other than
Disability), the date specified in the Notice of Termination as the
date on which it is reasonably anticipated that no further services
would be performed by Employee for the Company, as an employee or
independent contractor (which, in the case of a termination by
Employee for Good Reason, shall not be less than two (2) weeks
nor more than two (2) months from the date such Notice of
Termination is given).
Section 7.
Compensation Upon Termination or
During Disability .
(a) Upon termination of
Employee’s employment or during a period of Disability,
Employee shall be entitled to the following benefits:
(i) During any period that Employee
fails to perform his full-time duties with the Company as a result
of his Disability, Employee shall continue to receive his Base
Salary at the rate in effect at the commencement of any such
period, together with all compensation payable to Employee under
the Company’s disability plan or other plan during such
period, until this Agreement is terminated as a result of his
Disability. Thereafter, Employee shall be provided with disability
benefits that shall be no less than the benefits that
Employee