Exhibit 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”), dated as of September 22, 2006 by and between Availl, Inc., a Delaware corporation (“Employer”), GlobalSCAPE, Inc., a Delaware corporation (“Parent”), and Ellen Ohlenbusch (“Employee”).
R E C I T A L S:
A. Pursuant to the terms of that certain Agreement and Plan of Merger dated as of September 22, 2006 (the “Merger Agreement”) by and among Parent, GA Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), Availl, Inc., a Delaware corporation (“Availl”), the stockholders of Availl, and the Stockholders’ Representative named therein, Sub will merge with and into Availl.
B. As a result of the Merger (as defined in the Merger Agreement), Employer is a wholly-owned subsidiary of Parent.
C. Section 7.02 of the Merger Agreement provides that as a condition to the Closing (as defined in the Merger Agreement), Employer and Employee shall execute and deliver this Agreement at the Closing.
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.
Section 2. Duties. Employee shall be employed as Vice President – Sales of Employer. Employee shall report to the President of Employer, who, as of the date hereof, is Charles R. Poole. Employee shall perform such duties as are customary to this position including, without limitation, supervising and directing the sales integration of the products marketed, sold and distributed by Employer, Parent and Availl in accordance with Employer’s business plan. Employer may reasonably require Employee from time to time to provide assistance or services to, or act as an officer or director of Employer’s affiliates. Employee shall perform such services and, if elected as a director or officer of any such company, shall hold such office (and discharge its duties) without additional compensation other than the compensation set forth in this Agreement; provided, however, that Employer provides Employee customary director and officer indemnification and insurance coverage reasonably satisfactory to Employee. 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 Vice President – Sales of Employer.
cessation of his employment with Employer at any time and for any reason, and regardless of whether any payments are made to Employee under this Agreement as a result of such termination (but subject to the provisions of Section 13 hereof), Employee shall not, directly or indirectly, for himself or on behalf of any other corporation, person, firm, partnership, association, or any other entity (whether as an individual, agent, servant, employee, employer, officer, director, shareholder, investor, principal, consultant or in any other capacity), engage or participate in any business which engages in competition with the businesses being conducted by Employer or any of its Affiliates during the term of employment anywhere in any state in the United States or in any foreign country where Employer or any of its Affiliates distributes software or performs services related to the distribution of software, or any other business in which Employer or any of its Affiliates was actively engaged at the time of termination of Employee’s employment with Employer; provided, however, that this provision shall not prohibit Employee or any of his Affiliates from (i) purchasing or holding an aggregate equity interest of up to 1%, so long as Employee and his Affiliates combined do not purchase or hold an aggregate equity interest of more than 5%, in any business in competition with Employer, or (ii) engage in competition with any Affiliate or business division of Employer, unless Employee has had during the term of his employment hereunder access to the Confidential Information of such Affiliate or business division; or (iii) serving as an officer, employee or consultant to any entity or business which operates through multiple Affiliates or business divisions, as long as Employee is serving as an officer, employee or consultant to an Affiliate or business division which is not engaged in competition with Employer or any of its Affiliates.
Section 13. Effect of Termination. The provisions of Section 11 and Section 12 shall terminate and be of no further force and effect in the event (i) Employee’s employment is terminated by Employer without Cause or by Employee for Good Reason, and (ii) Employer fails to timely pay Employee the Accrued Amounts and/or any other amounts due pursuant to Section 7.
Section 14. General.
(a) Notices. All notices and other communications hereunder shall be in writing or by written telecommunication, and shall be deemed to have been duly given if delivered personally or if mailed by certified mail, return receipt requested or by written telecommunication, to the relevant address set forth below, or to such other address as the recipient of such notice or communication shall have specified to the other party in accordance with this Section 14(a):
If to Employer, to:
Availl, Inc.
c/o GlobalSCAPE, Inc.
6000 Northwest Parkway, Suite 100
San Antonio, Texas 78249
(210) 690-8824 facsimile
Attention: President
If to Employee, to Employee’s last known address appearing on Employer’s records
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