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AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Employment Agreement

AMENDED AND RESTATED EMPLOYMENT AGREEMENT | Document Parties: GLOBALSCAPE INC You are currently viewing:
This Employment Agreement involves

GLOBALSCAPE INC

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Title: AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Governing Law: Texas     Date: 10/2/2009
Industry: Software and Programming     Law Firm: Jackson Walker     Sector: Technology

AMENDED AND RESTATED EMPLOYMENT AGREEMENT, Parties: globalscape inc
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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


 
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