EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), executed this 7th day of
November, 2000 to be effective as of October 16, 2000, is between
GlobalScape, INC., a Delaware corporation (the "Employer"), and Timothy
Nicolaou ("Employee").
R E C I T A L S:
A. The Employer desires to offer employment to the Employee and
Employee desires to be employed by Employer.
B. Employer and Employee agree to enter into an Executive
Employment Agreement for a one-year term on the terms and
conditions herein provided.
C. The Employer considers the maintenance of a sound and
effective management team, including Employee, essential to
protecting and enhancing its best interests and those of its
stockholders.
D. Employee will be an officer of the Employer and Employee will
be nominated to become a member of Employer's Board of
Directors.
NOW, THEREFORE, in consideration of the Employer's agreement to
employ Employee pursuant to the terms of this Agreement and Employee's future
employment with Employer, and other good and valuable consideration, the
parties agree as follows:
SECTION 1. EMPLOYMENT. The Employer hereby employs Employee, and
Employee hereby accepts employment, upon the terms and subject to the
conditions stated in this Agreement.
SECTION 2. DUTIES. Employee shall be employed as Chief Executive
Officer of the Employer, or such other comparable positions with Employer to
which he may be appointed by the Board of Directors of the Employer (the
"Board"). It is understood that Employee may be requested from time to time
to provide assistance or services to, or act as an officer or director of,
the Employer or any of its subsidiaries or other 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 this Agreement does not prohibit (or require) the
affiliates of Employer from offering additional compensation. Employee agrees
to devote his full work time and best efforts to the performance of the
duties as an Employee of Employer and to the
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performance of such other duties as assigned him from time to time by the
Board or the Chairman of the Board.
SECTION 3. TERM. The initial term of employment of Employee
hereunder shall continue for one year, from October 16, 2000 ("Employment
Date") until September 30, 2001, unless earlier terminated pursuant to
Section 6 herein. The term of this Agreement shall continue for an additional
one year term unless either Employee or Employer notifies the other party no
less than thirty (30) days prior to the end of the initial term or any
subsequent term.
SECTION 4. COMPENSATION AND BENEFITS. In consideration for the
services of Employee hereunder, the Employer shall compensate Employee as
follows:
(a) BASE SALARY. Until the termination of Employee's employment
hereunder, Employer shall pay Employee a base salary at the rate of at least
$180,000 per year ("Base Salary"), payable in accordance with the regular
payroll practices of the 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 by Employee. The Base Salary may not be decreased at any time
during the term of Employee's employment hereunder. Any increase in Base
Salary shall be in the sole discretion of the Compensation Committee of the
Board.
(b) EXECUTIVE BONUS PLAN. Employee shall be eligible to receive from
the Employer such management incentive bonuses as may be provided in
management incentive bonus plans adopted from time to time by Employer. The
terms stated on the attached EXHIBIT A are incorporated herein.
(c) VACATION. Employee shall be entitled time off in accordance with
the Employee's vacation and absence policy, as it may be modified from time
to time during Employee's employment hereunder, provided that Employee will
have no less than four (4) weeks of paid vacation during the initial term of
this Agreement, and each subsequent year if the initial term is extended.
(d) LIFE INSURANCE BENEFITS. Employer shall pay the premiums
allocable to a term life insurance policy in the face amount of $150,000
covering Employee as the named insured, subject to Employee's passing a
standard physical examination in order to permit issuance of the policy at
standard (non-rated) premiums and satisfaction of any other standard
underwriting requirements. Employee shall be the owner of such policy and
shall have the right to designate the beneficiary of the policy proceeds.
Employee shall be liable for income taxes with respect to premium amounts
includable in Employee's taxable income.
(e) GROUP INSURANCE BENEFITS. Employee shall be entitled to
participate in the Employer's group health and disability programs as are
made available to the Employer's other
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executives and officers and the Employee's participation in such programs
shall be at the same rates which are available to the Employer's other
executives and officers.
(f) 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 the Employer's other executives and officers on the same terms
which are available to the Employer's other executives and officers;
SECTION 5. EXPENSES. The parties anticipate that in connection with
the services to be performed by Employee pursuant to the terms of this
Agreement, Employee will be required to make payments for travel,
entertainment of business associates and similar expenses. Employer shall
reimburse Employee for all appropriate and reasonable expenses authorized by
Employer and incurred by Employee in the performance of his duties hereunder.
Employee shall comply with such budget limitations and approval and reporting
requirements with respect to expenses as Employer may establish from time to
time.
SECTION 6. TERMINATION.
(a) GENERAL. Employee's employment hereunder shall commence on the
Employment Date and continue until the end of the term specified in Section
3, except that the employment of Employee hereunder shall terminate prior to
such time in accordance with the following:
(i) DEATH OR DISABILITY. Upon the death of Employee during the
term of his employment hereunder or, at the option of Employer, in the
event of Employee's Disability, upon 30 days' notice to Employee.
"Disability" with respect to an Employee shall be deemed to exist if
the Employee meets the definition of either "disabled" or "disability"
under the terms of the Employer's long-term disability benefit program
(including the definitions for total or partial disability). Any
refusal by Employee to submit to a reasonable medical examination to
determine whether Employee is so disabled shall be deemed to constitute
conclusive evidence of Employee's disability.
(ii) FOR CAUSE. For "Cause" immediately upon written notice by
Employer to Employee. A termination shall be for "Cause" if:
(1) Employee commits fraud, bribery, embezzlement or
other material dishonesty with the respect to the
business of Employer, or Employer discovers that
Employee has committed any such act in the past with
respect to a previous employer, or;
(2) Employee commits a felony or any criminal act
involving moral turpitude or Employer discovers that
Employee has committed any such act in the past; or
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(3) Employee commits a material breach of any of the
covenants, representations, terms or provisions
hereof; or
(4) Employee violates any material instructions or
policies of Employer with respect to the operation of
its business or affairs or Employee fails in a
material way to obey written directions delivered to
Employee by the Employer's Board or Chairman of the
Board; or
(5) Employee commits or omits to perform any act the
performance of which or the omission of which
constitutes substantial failure of Employee to
diligently and effectively perform his duties to
Employer or has a material adverse effect or could
materially adversely affect the Employer's business
reputation; or
(6) Employee uses illegal drugs.
(iii) WITHOUT CAUSE. Without Cause immediately upon notice by
Employer to Employee.
(iv) BY THE EMPLOYEE FOR GOOD CAUSE. Employee may terminate
his employment hereunder for Good Cause upon written notice to the
Company setting forth the nature of such Good Cause in reasonable
detail. "Good Cause" shall mean:
(1) the material failure of Employer to provide Employee
the base salary and incentive compensation and
benefits in accordance with the terms of Section 4
herein;
(2) the material diminution in the nature or scope of
Employee's responsibilities, duties or authority;
(3) the occurrence of a Change in Control (as defined
herein);
(4) Notice by the Employer under Section 3 that the
Employer will not renew this Agreement; or
(5) Failure to elect Employee to the Board of Directors
of Employer or removal of Employee from his Board
position, once elected;
(6) Failure to issue the options described in the Offer
Letter to Employee on Exhibit A on or before January
16, 2001.
(b) SEVERANCE PAY.
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(i) TERMINATION UPON DEATH OR DISABILITY; TERMINATION WITHOUT
CAUSE; TERMINATION FOR EMPLOYEE'S GOOD CAUSE. In the event Employee's
employment hereunder is terminated pursuant to Section 6(a)(i), (iii)
or (iv), Employer shall pay Employee (or his estate) a cash amount
equal to Employee's then current Base Salary. Additionally, following
such termination, the Employer shall have the continuing obligation to
contribute to the cost of Employee's participation in the Employer's
group medical and insurance plans, if any, provided that Employee is
entitled to continue such participation under applicable law and plan.
Employer will also pay Employee (or his estate), in the event of such
termination, any incentive compensation that is earned but unpaid,
based on operations of the Company for the whole year, prorated through
the date of his termination or death. Any unvested stock options held
by Employee at the time of death or termination shall vest on the date
of death or termination. The exercise period for all non-qualified
options (as determined on the vesting date), whether vested prior to
or on the date of death or termination, shall be six months from the
date of death or termination if death or termination occurs on or
before October 16, 2001, nine months from the date of death or
termination if death or termination occurs after October 16, 2001 and
before October 16, 2002 and twelve months from the date of death or
termination if death or termination occurs on or after October 16,
2002. Termination by Employee for good cause under clause 6(a)(iv)(i)
above does not waive the Employer's obligation to issue the stock
options described on Exhibit A or Employee's right to specific
performance of the obligation, or the economic equivalent thereof, even
after termination.
(c) CHANGE IN CONTROL. If a "Change in Control" occurs during
Employee's employment under this Agreement, and if Employee's employment is
terminated "Without Cause" pursuant to Section 6(a)(iii) above prior to the
end of a period of twenty-four (24) months beyond the month in which a
"Change in Control" of the Employer occurs, or if Employee voluntarily
terminates his employment prior to the end of a period three (3) months
beyond the month in which a Change in Control of the Employer occurs,
Employee shall receive the amount determined pursuant to Section 6(b)(i)
above. A "Change in Control" of Employer shall be deemed to have occurred if
(i) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Act")),
becomes the "beneficial owner" (as such term is defined in Rule 13d-3 under
the Act), directly or indirectly, of outstanding securities of Employer
representing 40% of more of the combined voting power of the outstanding
securities of the Employer, or (ii) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board
cease for any reason to constitute a majority of the Board (except that any
new director who is elected by the Board to fill a vacancy created by the
death, resignation or disqualification of a member of the Board shall not be
considered a new member of the Board for purposes of this definition), or
(iii) the shareholders of Employer approve (A) a merger or consolidation of
Employer with any other entity, other than a merger or consolidation which
would result in the voting securities of Employer outstanding immediately
prior thereto continuing to represent (either by remaining
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outstanding or by being converted into voting securities of the surviving
entity) at least 60% of the combined voting power of the voting securities of
Employer, or (B) a plan of complete liquidation of Employer, or (C) an
agreement or agreements for the sale or disposition, in a single transaction
or series of related transactions, by the Employer of all or substantially
all of the property and assets of Employer.
(d) VOLUNTARY TERMINATION BY EMPLOYEE. Except as provided in Section
6(a)(iv), in the event that Employee's employment with Employer is
terminated by Employee, such termination shall be a breach of this Agreement
and the Employer shall have no further obligations hereunder from and after
the date of such termination.
SECTION 7. INVENTIONS; ASSIGNMENT.
(a) INVENTIONS DEFINED. All rights to discoveries, inventions,
improvements, designs and innovations (including all data and records
pertaining thereto) that relate to the business of Employer, including its
affiliates, whether or not able to be patented, copyrighted or reduced to
writing, that Employee may discover, invent or originate during the term of
his employment hereunder, and for a period of six months thereafter, either
alone or with others and whether or not during working hours or by the use of
the facilities of Employer ("Inventions"), shall be the exclusive property of
Employer. Employee shall promptly disclose all Inventions to Employer, shall
execute at the request of Employer any assignments or other documents
Employer may deem necessary to protect or perfect its rights therein, and
shall assist Employer, at Employer's expense, in obtaining, defending and
enforcing Employer's rights therein. Employee hereby appoints Employer as his
attorney-in-fact to execute on his behalf any assignments or other documents
deemed necessary by Employer to protect or perfect its rights to any
Inventions.
(b) COVENANT TO ASSIGN AND COOPERATE. Without limiting the
generality of the foregoing, Employee shall assign and transfer to Employer
the world-wide right, title and interest of Employee in the Inventions.
Employee agrees that Employer may apply for and receive patent rights
(including Letters Patent in the United States) for the Inventions in
Employer's name in such countries as may be determined solely by Employer.
Employee shall communicate to Employer all facts known to Employee relating
to the Inventions and shall cooperate with Employer's reasonable requests in
connection with vesting title to the Inventions and related patents
exclusively in Employer and in connection with obtaining, maintaining and
protecting Employer's exclusive patent rights in the Inventions.
(c) SUCCESSORS AND ASSIGNS. Employee's obligations under this
Section 7 shall inure to the benefit of Employer, its affiliates and their
respective successors and assigns and shall survive the expiration of the
term of this Agreement for such time as may be necessary to protect the
proprietary rights of Employer and its affiliates in the Inventions.
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SECTION 8. CONFIDENTIAL INFORMATION.
(a) ACKNOWLEDGMENT OF PROPRIETARY INTEREST. Employee acknowledges
the proprietary interest of Employer and its affiliates in all Confidential
Information (as defined below). Employee agrees that all Confidential
Information learned by Employee during his employment with Employer or
otherwise, whether developed by Employee alone or in conjunction with others
or otherwise, is and shall remain the exclusive property of Employer.
Employee further acknowledges and agrees that his disclosure of any
Confidential Information will result in irreparable injury and damage to
Employer.
(b) CONFIDENTIAL INFORMATION DEFINED. "Confidential Information"
means all trade secrets, copyrightable works, confidential or proprietary
information of Employer or its affiliates, including without limitation, (i)
information derived from reports, investigations, experiments, research and
work in progress, (ii) methods of operation, (iii) market data, (iv)
proprietary computer programs and codes, (v) drawings, designs, plans and
proposals, (vi) marketing and sales programs, (vii) the identities of clients
or customers, (viii) historical financial information and financial
projections, (ix) pricing formulae and policies, (x) all other concepts,
ideas, materials and information prepared or performed for or by Employer and
(xi) all information related to the business, services, products, purchases
or sales of Employer or any of its suppliers and customers, other than
information that is publicly available.
(c) COVENANT NOT TO DIVULGE CONFIDENTIAL INFORMATION. Employer is
entitled to prevent the disclosure of Confidential Information. As a portion
of the consideration for the employment of Employee and for the compensation
being paid to Employee by Employer, Employee agrees at all times during the
term of his employment hereunder and thereafter to hold in strict confidence
and not to disclose or allow to be disclosed to any person, firm or
corporation, other than to persons engaged by Employer to further the
business of Employer, and not to use except in the pursuit of the business of
Employer, the Confidential Information, without the prior written consent of
Employer.
(d) RETURN OF MATERIALS AT TERMINATION. In the event of any
termination or cessation of his employment with Employer for any reason,
Employee shall promptly deliver to Employer all documents, data and other
information derived from or otherwise pertaining to Confidential Information.
Employee shall not take or retain any documents or other information, or any
reproduction or excerpt thereof, containing or pertaining to any Confidential
Information.
SECTION 9. NON-SOLICITATION.
(a) SOLICITATION OF EMPLOYEES. During Employee's employment with
Employer and for a period of twelve (12) months after termination of such
employment at any time and for any reason, Employee shall not solicit,
participate in or promote the solicitation of any person who was employed by
Employer or any of its affiliates at the time of Employee's termination of
employment with Employer to leave the employ of Employer or any of its
affiliates, or, on behalf
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of himself or any other person, hire, employ or engage any such person.
Employee further agrees that, during such time, if an employee of Employer or
any of its affiliates contacts Employee about prospective employment,
Employee will inform such employee that he or she cannot discuss the matter
further without the consent of Employer (and the applicable affiliate).
(b) SOLICITATION OF CLIENTS, CUSTOMERS, ETC. During Employee's
employment with Employer and for a period of twelve (12) months after
termination of Employee's employment at any time and for any reason, Employee
shall not, directly or indirectly, solicit any person who, at the time of
termination of Employee's employment with Employer, was a client, customer,
policyholder, vendor, consultant or agent of Employer or its affiliates to
discontinue business, in whole or in part, with Employer or its affiliates.
Employee further agrees that, during such time, if such a client, customer,
policyholder, vendor, or consultant or agent contacts Employee about
discontinuing business with Employer or moving that business elsewhere,
Employee will inform such client, customer, policyholder, vendor, consultant
or agent that he or she cannot discuss the matter further without the consent
of Employer (and the applicable affiliate).
SECTION 10. NO-COMPETE.
(a) COMPETITION DURING EMPLOYMENT. Employee agrees that during the
term of his employment with Employer, neither he nor any of his affiliates,
will directly or indirectly compete with Employer or its affiliates in any
way, and that he will not act as an officer, director, employee, consultant,
shareholder, lender, or agent of any entity which is engaged in any business
of the same nature as, or in competition with, the businesses in which
Employer and its affiliates are now engaged or in which Employer or its
affiliates become engaged during the term of employment; provided, however,
that this Section 10(a) 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 and its affiliates. Furthermore, Employee agrees that during
the term of employment, he will undertake no planning for the organization of
any business activity competitive with the work he performs as an employee of
Employer and Employee will not combine or conspire with any other employees
of Employer and its affiliates for the purpose of the organization of any
such competitive business activity.
(b) COMPETITION FOLLOWING EMPLOYMENT. In order to protect Employer
against the unauthorized use or the disclosure of any Confidential
Information of Employer and its affiliates presently known or hereinafter
obtained by Employee during his employment under this Agreement, Employee
agrees that for a period of twelve (12) months after the termination or
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, neither Employee nor any of his affiliates,
shall, directly or indirectly, for itself or 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):
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(i) engage or participate in any business which engages
in competition with such 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 the Employer or any of its affiliates writes, develops or
markets file management software for the Internet, multimedia
utilities or Internet or Web based development tools, including
file compression, zipping or ripping capabilities, or any other
business in which the Employer or any of its affiliates has been
actively engaged during the term Employee performed services for
the Employer; provided, however, that this provision shall not
prohibit Employee from 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;
(ii) assist or finance any person or entity in any
manner or in any way inconsistent with the intents and purposes
of this Agreement.
SECTION 11. 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 11(a):
If to Employer, to:
GlobalScape, Inc.
6000 Northwest Parkway, Suite 100
San Antonio, Texas, 78249
Attention: Chairman of the Board
If to Employee, to the Employee's last known address appearing on
Employer's records
(b) WITHHOLDING. All payments required to be made to Employee by
Employer under this Agreement shall be subject to the withholding of such
amounts, if any, relating to federal, state and local taxes as may be
required by law.
(c) EQUITABLE REMEDIES. Each of the parties hereto acknowledges and
agrees that upon any breach by Employee of his obligations under any of
Sections 7, 8, 9, and 10 Employer shall suffer immediate, great and
irreparable injury and shall have no adequate remedy at law. Accordingly, in
event of such breach, Employer shall be entitled, in addition to other
remedies
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and without showing actual damages, to specific performance and other
appropriate injunctive and equitable relief.
(d) SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, such provision shall be fully severable,
and this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision never comprised a part hereof, and the
remaining provisions hereof shall remain in full force and effect and shall
not be affected by the illegal, invalid or unenforceable provision or by its
severance. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
(e) WAIVERS. No delay or omission by either party in exercising any
right, power or privilege hereunder shall impair such right, power or
privilege, nor shall any single or partial exercise of any such right, power
or privilege preclude any further exercise thereof or the exercise of any
other right, power or privilege.
(f) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
(g) CAPTIONS. The captions in this Agreement are for convenience of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
(h) INTERPRETATION OF AGREEMENT. This Agreement shall be construed
according to its fair meaning and not for or against either party. Use of the
words "herein," "hereof," "hereto," "hereunder" and the like in this
Agreement refer to this Agreement only as a whole and not to any particular
section or subsection of this Agreement, unless otherwise noted. The
masculine gender shall be deemed to denote the feminine or neuter genders,
the singular to denote the plural, and the plural to denote the singular,
where the context so permits.
(i) BINDING AGREEMENT; ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties and shall be enforceable by the
personal representatives and heirs of Employee and the successors and assigns
of Employer. The affiliates of Employer shall be considered third party
beneficiaries of this Agreement with respect to any services provided by
Employee to them and in connection with Employee's covenants in Sections
7,8,9 and 10 hereof. This Agreement may be assigned by the Employer; provided
that in the event of any such assignment, the Employer shall remain liable
for all of its obligations hereunder and shall be liable for all obligations
of all such assignees hereunder. If Employee dies while any amounts would
still be payable to him hereunder, such amounts shall be paid to Employee's
estate. This Agreement is not otherwise assignable by Employee.
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(j) ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties, supersedes all prior agreements and
understandings relating to the subject matter hereof and may not be amended
except by a written instrument hereafter signed by each of the parties
hereto; provided, however, that the Employer and Employee agree that the
terms of Exhibit A are incorporated herein.
(k) GOVERNING LAW. This Agreement and the performance hereof shall
be construed and governed in accordance with the laws of the State of Texas,
without regard to its choice of law principles.
(l) ARBITRATION. Without limiting Employer's right to seek equitable
remedies under Section 11(c) above, Employer and Employee agree that any
dispute or controversy arising under or in connection with this Agreement
shall be settled first by attendance at a mandatory mediation process and, if
not resolved by mediation, by arbitration. If the parties are unable to agree
on a mediator, either party may petition a Travis County state district court
judge for assistance in selecting a mediator. Arbitration under this
Agreement shall be governed by the Federal Arbitration Act and proceed in San
Antonio, Texas in accordance with the rules of the American Arbitration
Association ("AAA"). Arbitration will be conducted before a panel of three
neutral arbitrators selected from a AAA list of proposed arbitrators with
business law experience. Either party may take any legal action needed to
protect any right pending completion of the arbitration. The arbitrator will
determine whether an issue is arbitrable and will give effect to applicable
statutes of limitation. The arbitrator has the discretion to decide, upon
documents only or with a hearing, any motion to dismiss for failure to state
a claim or any motion for summary judgment. Discovery shall be governed by
the Federal Rules of Civil Procedure and the Federal Rules of Evidence. All
information developed by the arbitration or litigation shall be held in
confidence subject to such protective orders as the arbitrator deems useful
to ensure complete confidentiality. The decision of the arbitrator shall be
final and binding on all parties to this Agreement, and judgment thereon may
be entered in any court having jurisdiction over the parties. All costs of
the arbitration proceeding or litigation to enforce the arbitration award
shall be paid by the party against whom the arbitrator decides.
(m) EMPLOYEE REPRESENTATIONS. Employee represents and certifies to
Employer that he: (i) has received a copy of this Agreement for review and
study and has had ample time to review it before signing; (ii) has read this
Agreement carefully; (iii) has been given a fair opportunity to discuss and
negotiate the terms of this Agreement; (iv) understands its provisions; (v)
has had the opportunity to consult his attorney; (vi) has determined that it
is in his best interest to enter into his Agreement; (vii) has not been
influenced to sign this Agreement by any statement or representation by
Employer or its counsel not contained in this Agreement; and (viii) enters
into this Agreement knowingly and voluntarily.
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EXECUTED as of the date and year first above written.
GLOBALSCAPE, INC.
By:
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Chairman of Board of Directors
----------------------------
Tim Nicolaou
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EXHIBIT A
Terms and Conditions
Title: Chief Executive Officer, reporting to the Chairman of the
Board, Art Smith
Salary: $180,000 annually; to be paid bi-weekly
Bonus: Potential award of a minimum of 100% of a bonus pool set at
$220k. You will be guaranteed a minimum bonus of $100,000
for the first year. Said bonus to be on a calendar quarterly
basis and to be paid within 30 days of the closing of the
quarter.
Stock options: You will be granted 700,000 options priced at $1.00; 200,000
to vest on the date of GlobalSCAPE's IPO or at the end of
the first year of employment, whichever comes first; 200,000
to vest one year from the date of GlobalSCAPE's IPO or at
the end of the second year of employment, whichever comes
first; 100,000 to vest on each of the first, second and
third anniversary of hire.
Relocation: The company will pay for the moving of household goods from
your current residence to a location in the San Antonio
area. [Such location to be determined at a later date.] The
company will pay for the storage of such household goods
should that be required. The company will provide temporary
living expenses until you relocate to the San Antonio area.
The company will compensate you for four return trips to
your present home each month. The company will also pay for
two house hunting trips for your spouse. You will be
reimbursed for the expenses associated with the selling of
your primary residence and the purchasing of a new
residence. Expenses associated with your relocation will be
grossed up for tax purposes. Your relocation must be
completed within one year from your date of hire.
Benefits: You will be eligible to participate in all the company
benefits that GlobalSCAPE provides to its employees
according to their respective participation dates. You will
be eligible for four weeks of vacation.
Signing bonus: You will be paid a signing bonus of $50,000. Such
bonus will be paid as follows, $25,000 to be paid on date of
hire, and $25,000 to be paid upon you and your family's
relocation to the San Antonio area.
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As the Chief Executive Officer of GlobalSCAPE, you will have a seat on
GlobalSCAPE's board of directors. In this role, and working in conjunction
with GlobalSCAPE's board of directors, you will be responsible for recruiting
independent directors for GlobalSCAPE. The recruitment of independent
directors, along with the creation and acceptance of a strategic plan for
GlobalSCAPE have to be at the top of your priority list. I would also think
that the recruiting of key senior personnel, especially a CFO, would be a
priority. Tim, you will have full P&L responsibility for GlobalSCAPE, and you
will be given whatever authority that the board of directors deems it
necessary for you to fulfill your responsibilities as CEO.
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