☐
|
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
|
SUBJECT COMPANY INFORMATION.
|
•
|
the authorized capital stock of the Company consisted of 40,000,000 shares and 10,000,000 shares of the Company’s preferred stock, par value $0.001 per share (“Company Preferred Stock”);
|
•
|
the Company held 5,379,500 shares of Company Common Stock in its treasury;
|
•
|
18,782,318 shares of Company Common Stock were issued and outstanding (not including shares held in treasury or Company Restricted Stock, as defined below);
|
•
|
no shares of Company Preferred Stock were issued and outstanding;
|
•
|
1,466,398 shares of Company Common Stock are subject to issuance pursuant to options to purchase shares of Company Common Stock (whether granted by the Company pursuant to the Company’s equity plans or otherwise issued or granted, “Company Options”);
|
•
|
2,661,925 shares of Company Common Stock are reserved for future issuance pursuant to the Company Equity Plans (as defined in the Merger Agreement); and
|
•
|
the Company had 121,994 shares of Company Common Stock subject to vesting or other lapse restrictions (whether resulting from awards granted by the Company pursuant to the Company Equity Plans or otherwise issued or granted, “Company Restricted Stock”) outstanding.
|
IDENTITY AND BACKGROUND OF FILING PERSON.
|
•
|
there will have been validly tendered and not validly withdrawn prior to one (1) minute after 11:59 p.m., New York City time, on August 27, 2020 (the “Expiration Time” and such date, or such subsequent date to which the expiration of the Offer is extended in accordance with the Merger Agreement, the “Expiration Date”) that number of Shares which, considered together with all other Shares, if any, beneficially owned by Parent and its affiliates, but excluding, for the avoidance of doubt, any Shares tendered pursuant to guaranteed delivery procedures that have not yet been received, represent one more than 50% of the sum of (x) the total number of Shares outstanding at the expiration
|
•
|
that the applicable waiting period (or any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”), relating to the purchase of Shares pursuant to the Offer or the consummation of the Merger under the HSR Act will have expired or otherwise been terminated;
|
•
|
that no governmental authority of competent jurisdiction will have enacted, issued, promulgated, enforced or entered any law or order (whether temporary, preliminary or permanent) that is then in effect and has the effect of making the Offer or the Merger illegal or otherwise preventing or prohibiting consummation of the Offer or the Merger;
|
•
|
that since the date of the Merger Agreement, there shall not have occurred any change, event, violation, inaccuracy, effect or circumstance that, individually or taken together with all other effects that exist or have occurred, (A) has had or would reasonably be expected to have a material adverse effect on the business, properties, assets, financial condition or results of operations of the acquired entities, taken as a whole; or (B) would reasonably be expected to prevent or materially impair or materially delay the consummation of the Merger (“Company Material Adverse Effect”);
|
•
|
that (A) except as provided in clauses (B) and (C) below, the representations and warranties of the Company contained in the Merger Agreement will have been true and correct (in each case, disregarding all qualifications and exceptions contained therein regarding materiality or Company Material Adverse Effect or similar standard or qualification) as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representations and warranties expressly speak as of an earlier date, in which case such representation and warranty will not have been true and correct as of such earlier date), except where the failure of any such representations and warranties to be so true and correct would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect; (B) the representations and warranties of the Company set forth in certain sections of the Merger Agreement will have been true and correct in all material respects as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will not have been true and correct in all material respects as of such earlier date); and (C) the representations and warranties of the Company set forth in certain sections of the Merger Agreement will not have been true and correct as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date and time, except for de minimis inaccuracies; provided, that solely for purposes of clause (C) above, if one or more inaccuracies in the representations and warranties set forth in certain sections of the Merger Agreement would cause damages or diminution in value to Parent or Merger Sub of $100,000 or more, such inaccuracy or inaccuracies will be considered material for purposes of clause (C) of this paragraph;
|
•
|
that the Company will not have failed to perform or comply with, in all material respects, its obligations required to be performed or complied with by it under the Merger Agreement; and
|
•
|
that the Merger Agreement will not have been terminated in accordance with its terms.
|
PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
|
•
|
the accelerated vesting and payment in respect of Company Options and Company Restricted Stock;
|
•
|
the potential receipt of certain payments and benefits pursuant to individual employment agreements upon certain types of terminations of employment following the consummation of the Transactions; and
|
•
|
the entitlement to indemnification benefits in favor of directors and executive officers of the Company.
|
Name
|
| |
Number of Shares
Owned (#)(1) |
| |
Cash Consideration
Payable in Respect of Shares |
Executive Officers
|
| |
|
| |
|
Robert H. Alpert
|
| |
37,645(2)
|
| |
$357,627.50
|
Michael P. Canavan
|
| |
0
|
| |
$0
|
Mark C. Hood
|
| |
0
|
| |
$0
|
David C. Mello
|
| |
0
|
| |
$0
|
Karen J. Young
|
| |
0
|
| |
$0
|
|
| |
|
| |
|
Non-Employee Directors
|
| |
|
| |
|
Dr. Thomas E. Hicks
|
| |
67,000
|
| |
$636,500.00
|
David L. Mann
|
| |
1,155,261
|
| |
$10,974,979.50
|
C. Clark Webb
|
| |
61,507(2)
|
| |
$584,316.50
|
|
| |
|
| |
|
All of the Company’s current directors and executive officers as a group (8 persons)
|
| |
1,321,413
|
| |
$12,553,423.50
|
(1)
|
In calculating the number of Shares beneficially owned for this purpose, Shares underlying Company Options (whether or not they are currently exercisable) and the Company Restricted Stock held by the individual are excluded.
|
(2)
|
Amounts exclude 3,268,900 Shares owned by 210/GSB Acquisition Partners, LLC (“210/GSB”), an affiliate of Robert H. Alpert and C. Clark Webb. Upon tendering its Shares in the Offer, 210/GSB shall be entitled to receive $31,054,550 in cash consideration payable in respect of such Shares.
|
|
| |
Number of Shares
Underlying Company Options (#) |
| |
Cash Consideration
Payable in Respect of Company Options |
Executive Officers
|
| |
|
| |
|
Robert H. Alpert
|
| |
300,000
|
| |
$171,000
|
Michael P. Canavan
|
| |
284,405
|
| |
$1,063,439
|
Mark C. Hood
|
| |
250,005
|
| |
$591,528
|
David C. Mello
|
| |
225,007
|
| |
$810,789
|
Karen J. Young
|
| |
85,126
|
| |
$502,861
|
Name
|
| |
Number of
Company Restricted Stock |
| |
Cash Consideration
Payable in Respect of Company Restricted Stock |
Executive Officers
|
| |
|
| |
|
Robert H. Alpert
|
| |
12,972
|
| |
$123,234.00
|
Michael P. Canavan
|
| |
23,961
|
| |
$227,629.50
|
Mark C. Hood
|
| |
17,329
|
| |
$164,625.50
|
David C. Mello
|
| |
25,039
|
| |
$237,870.50
|
Karen J. Young
|
| |
12,701
|
| |
$120,659.50
|
•
|
an amount equal to the executive’s annual base salary that the executive would have received over the twelve (12) months following the termination as if his or her employment had not been terminated;
|
•
|
a bonus that the employee would have received during the year of such termination as if the termination had not occurred, prorated based on the number of months of the then current year term that the employee was employed;
|
•
|
immediate vesting and exercisability of all outstanding Company Options (with such Company Options remaining exercisable throughout their entire term) and the lapsing of any restrictions or restriction periods imposed on any Company Restricted Stock awards; and
|
•
|
reimbursement for the executive for the Company’s portion of COBRA premiums for a period of six months or until such executive’s rights to COBRA continuation expires, whichever is earlier.
|
Name
|
| |
Cash
($)(1) |
| |
Equity
($)(2) |
| |
Perquisites/Benefits
($)(3) |
| |
Total
($) |
Robert H. Alpert
|
| |
$652,500.00
|
| |
$651,861.50
|
| |
$12,819.00
|
| |
$1,317,180.50
|
Michael P. Canavan
|
| |
$235,000.00
|
| |
$1,291,068.60
|
| |
$12,819.00
|
| |
$1,538,887.60
|
David C. Mello
|
| |
$307,844.33
|
| |
$1,048,659.03
|
| |
$12,819.00
|
| |
$1,369,322.36
|
(1)
|
The cash amount payable to the named executive officers consists of cash severance payments equal to (i) 12 months of the named executive officer’s annual base salary and (ii) 66.67% of the named executive officer’s annual target bonus (assuming the named executive officer is terminated immediately following the closing of the Offer). The cash severance payments are “double trigger” and would be due upon either a termination of the named executive officer by the Company without “cause” within one year following the closing of the Offer or a termination by the named executive officer for “good reason” upon the closing of the Offer. The cash severance payment is subject to the execution and effectiveness of a release of claims in favor of the Company, as well as continued compliance with any applicable restrictive covenants.
|
(2)
|
The amount listed in this column includes the aggregate value of unvested Company Options and Company Restricted Stock, the vesting of which are subject to “single-trigger” acceleration pursuant to the terms of the Company Equity Plans and will be fully accelerated upon the Effective Time, calculated based on the number of Shares subject to the named executive officer’s unvested Company Options and/or Company Restricted Stock, multiplied by the Offer Price (less the aggregate exercise price for any Company Options); provided, that any Company Options where the applicable exercise price equals or exceeds the Offer Price will be cancelled for no consideration.
|
(3)
|
The amount listed in this column represents the estimated value of the monthly Company premium payment for COBRA health continuation coverage for 6 months for each named executive officer. With respect to COBRA continuation, the amount is based on the named executive officer’s elected level of coverage and the rate applicable to such coverage.
|
THE SOLICITATION OR RECOMMENDATION.
|
•
|
The Company’s Operating and Financial Condition; Prospects of the Company. The Company Board considered the Company’s business, financial condition and results of operations and concluded that the Offer Price is more favorable to the Company’s stockholders than the potential value that could reasonably be expected to be generated were the Company to remain independent and execute on its current standalone, single-product strategy. Among the potential risks identified by the Company Board were:
|
○
|
The continued uncertainty about the impact of COVID-19 (novel coronavirus) on the Company, its customers and the market, and its negative affect on the Company’s business momentum as performance has been below the Company’s 2020 budget.
|
○
|
The Company is involved in a mature market with larger players and competitors which are part of larger organizations that often bundle their products together making it difficult for the Company to compete.
|
○
|
As a single-product Company, the Company is especially exposed to general market risk and technological obsolescence.
|
○
|
Research and development capabilities have been significantly reduced and any innovation will require reinvesting in the Company’s product in a more robust way with accompanying risk and impact on the Company’s cash flow and earnings.
|
○
|
There are future pressures building for the Company’s income statement in terms of increased cost and the Company would need to invest in sales and marketing in order to grow new software license sales.
|
○
|
The Company’s management team is currently working at full capacity and if the Company needed to undertake acquisitions and integration processes in order to continue its growth, this would add additional stress to the team and the Company’s infrastructure and necessarily lead to increases in compensation expenses.
|
•
|
Cash Tender Offer; Certainty of Value. The consideration to be received by the Company’s stockholders in the Offer and the Merger consists entirely of cash, which provides liquidity and certainty of value. The receipt of cash consideration eliminates uncertainty and risk for the Company’s stockholders related to the continued execution of the Company’s business. The Company Board also considered that the terms of the Equity Commitment Letter (along with the Company’s right to seek specific performance of the Merger Agreement) provided substantial assurance of a successful closing.
|
•
|
Results of Strategic Review Process. The Offer and the Merger were the result of an extensive strategic review process overseen by the Company Board, which was terminated in January 2020. Subsequent to the termination of this process, the Company and Stephens’ representatives received and responded to multiple inbound inquiries from various parties and had substantive discussions about a possible sale transaction with a total of 14 parties prior to the approval of the Merger. The Company Board considered that Stephens contacted a total of 34 potential strategic acquirers and 134 financial acquirers concerning their interest in an acquisition of the Company, and that of these potential acquirers Parent made the proposal that the Company Board determined was in the best interests of stockholders for the reasons described herein.
|
•
|
Best Value Reasonably Obtainable. The belief of the Company Board that the Offer Price represents the best value reasonably obtainable for the Shares, taking into account the Company Board’s familiarity with the business, operations, prospects, business strategy, recent dividends and incurrence of indebtedness, assets, liabilities and general financial condition of the Company on a historical and prospective basis.
|
•
|
Opinion of B. Riley to the Company Board. The financial analysis reviewed by B. Riley with the Company Board as well as the oral opinion of B. Riley rendered to the Company Board on July 19, 2020 (which was subsequently confirmed in writing by delivery of B. Riley’s written opinion addressed to the Company Board dated July 19, 2020), as to, as of such date, the fairness, from a financial point of view, to the holders of Company Common Stock other than Parent, Merger Sub and their respective affiliates of the Offer Price to be received by such holders in the Transactions pursuant to the Merger Agreement. B. Riley, as set forth in such opinion and as more fully described in the section of this Schedule 14D-9 statement captioned “—Opinion of Financial Advisor to the Company”;
|
•
|
Potential Strategic Alternatives. The (1) possible alternatives to the Offer and the Merger, including the possibility of continuing to operate the Company as an independent entity, or pursuing another transaction, and the desirability and perceived risks of those alternatives; (2) potential benefits to the Company’s stockholders of these alternatives and the timing and likelihood of effecting such alternatives; and (3) Company Board’s assessment that none of these alternatives was reasonably likely to present superior opportunities for the Company to create greater value for the Company’s stockholders, taking into account risks of execution as well as business, competitive, financial, industry, legal, market and regulatory risks.
|
•
|
Return of Capital; Incurrence of Indebtedness. In May 2019 and December 2019, the Company paid a cash dividend of $0.50 per Share and the Special Dividend, respectively. To finance the Special Dividend, the Company entered into a credit agreement (the “Credit Agreement”) with JPMorgan Chase Bank, N.A., in its capacity as administrative agent, the lenders party thereto and the other loan parties thereto. The Credit Agreement provides for a term loan facility in the principal amount of $50,000,000 (the “Term Loan”) and revolving commitments in an aggregate principal amount of $5,000,000. The proceeds of the Term Loan were primarily used to fund the Special Dividend. As of the date of the Merger Agreement, approximately $46,875,000 is outstanding under the Term Loan.
|
•
|
Premium to Market Price. The Company Board perceived the Offer Price to be fair, considering among other things the recent market prices for the Shares, as compared to the consideration payable in the Offer and the Merger, including the fact that the Offer Price of $9.50 per Share payable in the Offer and the Merger represents a premium of approximately 16.0% over the closing price of $8.19 for the Shares on July 17, 2020 (the last trading day before public announcement of the Merger Agreement).
|
•
|
Negotiations with Parent and Terms of the Merger Agreement. The terms of the Merger Agreement, which was the product of arms’-length negotiations, and the belief of the Company Board that the Merger Agreement contained terms that provided the Company with a high level of closing certainty. The factors considered include (subject to the terms and conditions of the Merger Agreement):
|
○
|
The Company’s ability to solicit Acquisition Proposals (as defined in the Merger Agreement), among other things, during the period (which is referred to as the “Go-Shop Period”) beginning on the date of the Merger Agreement and continuing until 12:01 a.m. on August 24, 2020 (the “No-Shop Period Start Date”) pursuant to the terms of the Merger Agreement, and following the No-Shop Period Start Date, under certain circumstances, to furnish information to, and conduct negotiations with, third parties regarding Acquisition Proposals.
|
○
|
The Company’s view that the terms of the Merger Agreement would be unlikely to deter third parties from making a Superior Proposal (as defined herein).
|
○
|
The Company Board’s ability, under certain circumstances, to withdraw or modify its recommendation that the Company’s stockholders tender their Shares pursuant to the Offer.
|
○
|
The Company Board’s ability, under certain circumstances, to terminate the Merger Agreement to enter into an Alternative Acquisition Agreement (as defined in the Merger Agreement). In that regard, the Company Board believed that the termination fee of $5,527,500.00 (or $3,685,000.00 if the Merger Agreement is terminated prior to the No-Shop Period Start Date) payable by the Company in such instance was reasonable, consistent with or below similar fees payable in comparable transactions, and not preclusive of other offers.
|
○
|
The reverse termination fee of $11,055,000.00 payable by Parent in certain circumstances and the other remedies available to the Company under the Merger Agreement and the Limited Guarantee guaranteeing payment thereof (subject to the terms and conditions of the Limited Guarantee).
|
○
|
The Company’s right to specific performance to enforce Parent’s and each Borrower’s obligation to cause the Equity Financing to be funded and to consummate the Merger.
|
○
|
The anticipated timing of the consummation of the Offer and the Merger, and the structure of the Transactions as a tender offer for the Shares pursuant to Section 251(h) of the DGCL, which, subject to the satisfaction or waiver of the applicable conditions set forth in the Merger Agreement, permits the consummation of the Offer and the Merger in a timely manner.
|
•
|
Opportunity to Receive Alternative Proposals and to Terminate the Transaction in Order to Accept a Superior Proposal. The Company Board considered the terms of the Merger Agreement permitting the Company to solicit alternative proposals during a 35 day “go-shop period” and receive unsolicited alternative acquisition proposals, and the other terms and conditions of the Merger Agreement, including:
|
○
|
The right, pursuant to a customary 35-day “go-shop” period, which began on July 19, 2020 and expires on the No-Shop Period Start Date to solicit alternative Acquisition Proposals from, and participate in discussions and negotiations with, third parties regarding any Alternative Acquisition Proposals.
|
○
|
The ability, under certain circumstances after the No-Shop Period Start Date, to furnish information to, and conduct negotiations with, third parties regarding Alternative Acquisition Proposals.
|
○
|
Parent’s obligation to pay the Company a termination fee of $11,055,000.00, if the Merger Agreement is terminated by the Company due to any breach of representations or covenants made
|
○
|
The Company’s ability to terminate the Merger Agreement in order to accept a Superior Proposal, subject to certain conditions of the Merger Agreement and paying Parent a termination fee of $5,527,500.00 (or $3,685,000.00 if the Merger Agreement is terminated prior to the No-Shop Period Start Date).
|
○
|
The fact that the Company Board believed that the termination fee of $5,527,500.00 (or $3,685,000.00 if the Merger Agreement is terminated prior to the No-Shop Period Start Date) payable by the Company in the circumstances described above, is reasonable, is within the market averages for such fees, and is not preclusive of, or a substantial impediment to, other offers.
|
•
|
Support Agreements. Senior Company management and current and former Company directors and their affiliates, who collectively hold approximately 33% of the outstanding Shares, agreed to tender their respective Shares in the Offer, and to appoint Parent as their irrevocable proxy to vote each of the Shares with respect to the Offer, on the terms provided for in the Merger Agreement and related Support Agreement.
|
•
|
No Stockholder Participation in Future Growth or Earnings. The nature of the Offer and the Merger as cash transactions means that the Company’s stockholders will not participate in the future earnings or growth of the Company and will not benefit from any appreciation in value of the Company after the Merger.
|
•
|
Taxable Consideration. The receipt of cash in exchange for Shares pursuant to the Offer and the Merger will be a taxable transaction for U.S. federal income tax purposes for many of the Company’s stockholders.
|
•
|
Small Discounts to Certain VWAP Measurements. Due to increases in the market price of the Company Common Stock beginning a few weeks before the Merger Agreement was entered into, the consideration payable in the Offer and the Merger represents a small discount (1.4% - 2.8%) to the 30-, 60- and 90-day volume weighted average price (“VWAP”) of the Company Common Stock and a slight premium (1.5%) to the 180-day VWAP. The Company Board believes that such increases in the market price of the Company Common Stock could be attributable, to some extent, to the expectation of the inclusion of the Company Common Stock in the Russell 2000 stock index on June 26, 2020.
|
•
|
Risk Associated with Failure to Consummate the Offer and the Merger. The possibility that the Offer and the Merger might not be consummated, and if they are not consummated, that (1) the Company’s directors, senior management and other employees will have expended extensive time and effort and will have experienced significant distractions from their work during the pendency of the Offer and the Merger; (2) the Company will have incurred significant transaction and other costs; (3) the Company’s continuing business relationships with customers, business partners and employees may be adversely affected; (4) the trading price of the Shares could be adversely affected; (5) the reverse termination fee of $11,055,000.00 payable by Parent to the Company will not be available in all instances in which the Merger Agreement is terminated and the reverse termination fee may not be sufficient to compensate the Company for the damage suffered by its business as a result of the pendency of the Offer and the Merger or of the strategic initiatives forgone by the Company during this period; (6) the other contractual and legal remedies available to the Company in the event of termination of the Merger Agreement may be insufficient, costly to pursue or both; (7) the potential adverse perception of the market on the Company’s prospects; and (8) the termination fee of $5,527,500.00 (or $3,685,000.00 if the Merger Agreement is terminated prior to the No-Shop Period Start Date) may become payable by the Company to Parent upon termination of the Merger Agreement under specified circumstances.
|
•
|
Interim Restrictions on the Company’s Business Pending the Completion of the Offer and the Merger. The restrictions on the conduct of the Company’s business prior to the consummation of the Offer and
|
•
|
Effects of the Offer and the Merger Announcement. The effect of the public announcement of the Merger Agreement, including (1) effects on the Company’s sales, employees, customers, operating results and stock price; (2) the impact on the Company’s ability to attract and retain key management, sales and marketing and technical personnel; and (3) the potential for litigation in connection with the Offer and the Merger.
|
•
|
Termination Fee Payable by the Company. The requirement that the Company pay Parent a termination fee under certain circumstances following termination of the Merger Agreement, including if the Company Board terminates the Merger Agreement to accept a Superior Proposal. The Company Board considered the potentially discouraging impact that this termination fee could have on another company’s interest in making a competing proposal to acquire the Company.
|
•
|
Regulatory Approval. The Company Board considered the risks associated with obtaining antitrust consents and approvals, and the fact that the obligation of Parent to accept for payment and to pay for Shares tendered pursuant to the Offer is subject to a condition that there be no order by any governmental entity or other legal or regulatory restraint or prohibition preventing the consummation of the Offer.
|
|
| |
LTM
6/30/20 |
| |
Projected
|
||||||||||||
($ 000's)
|
| |
2020E
|
| |
2021E
|
| |
2022E
|
| |
2023E
|
| |
2024E
|
|||
Total Revenue
|
| |
$40,404
|
| |
$42,337
|
| |
$47,415
|
| |
$50,978
|
| |
$53,992
|
| |
$56,819
|
Growth
|
| |
|
| |
4.9%
|
| |
12.0%
|
| |
7.5%
|
| |
5.9%
|
| |
5.2%
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
EBITDA
|
| |
$17,273
|
| |
$18,905
|
| |
$22,880
|
| |
$24,812
|
| |
$25,140
|
| |
$25,850
|
Growth
|
| |
|
| |
9.6%
|
| |
21.0%
|
| |
8.4%
|
| |
1.3%
|
| |
2.8%
|
Margin
|
| |
42.8%
|
| |
44.7%
|
| |
48.3%
|
| |
48.7%
|
| |
46.6%
|
| |
45.5%
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
Adjustments:
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
(+) Stock-Based Compensation
|
| |
1,874
|
| |
2,473
|
| |
3,065
|
| |
3,294
|
| |
3,652
|
| |
3,920
|
(+) One Time Payment in Lieu of Stock Option Reset
|
| |
1,314
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
(+) Certain Professional Fees
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
(+) Transaction Expenses
|
| |
507
|
| |
191
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
(+) Special Investigation Fees & Settlements
|
| |
271
|
| |
577
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
Adjusted EBITDA
|
| |
$21,239
|
| |
$22,146
|
| |
$25,945
|
| |
$28,106
|
| |
$28,792
|
| |
$29,770
|
Growth
|
| |
|
| |
3.5%
|
| |
17.2%
|
| |
8.3%
|
| |
2.4%
|
| |
3.4%
|
Margin
|
| |
52.6%
|
| |
52.3%
|
| |
54.7%
|
| |
55.1%
|
| |
53.3%
|
| |
52.4%
|
1.
|
reviewed the financial terms of a draft of the Merger Agreement dated July 18, 2020, the most recent draft made available to it;
|
2.
|
reviewed certain publicly available business and financial information relating to GlobalSCAPE;
|
3.
|
reviewed certain other business, financial and operating information relating to GlobalSCAPE, including the Projections prepared and provided to B. Riley by the management of GlobalSCAPE;
|
4.
|
spoke with certain members of the management of GlobalSCAPE and its advisors to discuss the business and prospects of GlobalSCAPE and the proposed Transaction;
|
5.
|
reviewed certain financial data for GlobalSCAPE and compared that data with similar data for companies with publicly traded equity securities that B. Riley deemed relevant;
|
6.
|
reviewed certain financial terms of the proposed Transaction and compared certain of those terms with the publicly available financial terms of certain business combinations and other transactions that B. Riley deemed relevant; and
|
7.
|
considered such other information, financial studies, analyses and investigations and financial, economic and market criteria that B. Riley deemed relevant.
|
•
|
Enterprise Value — generally, the value as of a specified date of the relevant company’s outstanding equity securities plus the amount of debt outstanding, preferred stock and non-controlling interests, and less the amount of cash and cash equivalents on its balance sheet.
|
•
|
EBITDA — generally, the amount of the relevant company’s earnings before interest, taxes, depreciation and amortization for a specified time period.
|
•
|
Adjusted EBITDA — generally, the amount of the relevant company’s earnings before interest, taxes, depreciation and amortization for a specified time period, as adjusted for stock-based compensation and certain non-recurring items.
|
•
|
Enterprise value as a multiple of estimated revenue for the year ending December 31, 2020, or “2020E Revenue”;
|
•
|
Enterprise value as a multiple of estimated adjusted EBITDA for the year ending December 31, 2020, or “2020E Adjusted EBITDA”;
|
•
|
Enterprise value as a multiple of estimated revenue for the year ending December 31, 2021, or “2021E Revenue”; and
|
•
|
Enterprise value as a multiple of estimated adjusted EBITDA for the year ending December 31, 2021, or “2021E Adjusted EBITDA.”
|
|
| |
Enterprise Value /
|
|||||||||
|
| |
Revenue
|
| |
Adjusted EBITDA
|
||||||
|
| |
2020E
|
| |
2021E
|
| |
2020E
|
| |
2021E
|
Oracle Corporation
|
| |
5.1x
|
| |
5.0x
|
| |
10.4x
|
| |
10.3x
|
International Business Machines Corporation
|
| |
2.2x
|
| |
2.2x
|
| |
9.4x
|
| |
8.6x
|
VMware, Inc.
|
| |
5.3x
|
| |
4.8x
|
| |
15.1x
|
| |
13.5x
|
Infosys Limited
|
| |
3.8x
|
| |
3.6x
|
| |
15.1x
|
| |
14.6x
|
Citrix Systems, Inc.
|
| |
6.4x
|
| |
6.3x
|
| |
19.1x
|
| |
18.6x
|
CGI Inc.
|
| |
2.2x
|
| |
2.1x
|
| |
11.3x
|
| |
10.8x
|
Akamai Technologies, Inc.
|
| |
6.1x
|
| |
5.7x
|
| |
14.1x
|
| |
13.1x
|
Science Applications International Corporation
|
| |
1.0x
|
| |
0.9x
|
| |
11.0x
|
| |
9.8x
|
DXC Technology Company
|
| |
0.6x
|
| |
0.6x
|
| |
4.3x
|
| |
3.3x
|
J2 Global, Inc.
|
| |
2.6x
|
| |
2.5x
|
| |
6.8x
|
| |
6.2x
|
Varonis Systems, Inc.
|
| |
12.6x
|
| |
10.5x
|
| |
NM
|
| |
NM
|
Progress Software Corporation
|
| |
3.9x
|
| |
3.9x
|
| |
9.6x
|
| |
9.5x
|
Axway Software SA
|
| |
1.6x
|
| |
1.6x
|
| |
14.8x
|
| |
NA
|
Absolute Software Corporation
|
| |
4.1x
|
| |
3.8x
|
| |
18.9x
|
| |
17.1x
|
•
|
Enterprise value as a multiple of revenue for the last twelve months available prior to the date of announcement, or “LTM Revenue”; and
|
•
|
Enterprise value as a multiple of EBITDA for the last twelve months available prior to the date of announcement, or “LTM EBITDA.”
|
|
| |
|
| |
|
| |
Transaction Value/ LTM
|
|||
Date Announced
|
| |
Acquiror
|
| |
Target
|
| |
Revenue
|
| |
EBITDA
|
12/19/2019
|
| |
Xperi Corporation
|
| |
TiVo Corporation
|
| |
2.9x
|
| |
10.8x
|
12/17/2019
|
| |
Francisco Partners, Evergreen Coast Capital Corp.
|
| |
LogMeIn, Inc.
|
| |
3.7x
|
| |
12.5x
|
10/22/2019
|
| |
Platinum Equity
|
| |
Cision Ltd.
|
| |
3.7x
|
| |
11.4x
|
8/22/2019
|
| |
VMware, Inc.
|
| |
Pivotal Software, Inc.
|
| |
4.3x
|
| |
NM
|
2/11/2019
|
| |
GB Group plc
|
| |
IDology, Inc.
|
| |
7.9x
|
| |
18.5x
|
2/7/2019
|
| |
Carbonite, Inc.
|
| |
Webroot Inc.
|
| |
2.9x
|
| |
NA
|
11/27/2017
|
| |
Thoma Bravo, LLC
|
| |
Barracuda Networks, Inc.
|
| |
3.8x
|
| |
NM
|
11/8/2017
|
| |
Schneider Electric Industries SAS
|
| |
IGE+XAO SA
|
| |
4.6x
|
| |
16.3x
|
10/26/2017
|
| |
Elliott Management Corporation
|
| |
Gigamon Inc.
|
| |
4.4x
|
| |
NM
|
10/23/2017
|
| |
Cisco Systems, Inc.
|
| |
BroadSoft, Inc.
|
| |
5.3x
|
| |
NM
|
|
| |
|
| |
|
| |
Transaction Value/ LTM
|
|||
Date Announced
|
| |
Acquiror
|
| |
Target
|
| |
Revenue
|
| |
EBITDA
|
6/27/2017
|
| |
Francisco Partners
|
| |
Sandvine Corporation
|
| |
2.9x
|
| |
19.4x
|
6/21/2017
|
| |
True Wind Capital
|
| |
ARI Network Services, Inc.
|
| |
2.7x
|
| |
21.1x
|
5/1/2017
|
| |
Wave Systems Corp.
|
| |
Jive Software, Inc.
|
| |
1.7x
|
| |
NM
|
1/30/2017
|
| |
Keysight Technologies, Inc.
|
| |
Ixia
|
| |
3.3x
|
| |
21.0x
|
7/7/2016
|
| |
Avast Software B.V.
|
| |
AVG Technologies N.V.
|
| |
3.4x
|
| |
11.7x
|
4/18/2016
|
| |
Silver Lake; Altaone Capital LLP
|
| |
Cegid Group SA
|
| |
2.1x
|
| |
16.8x
|
9/13/2015
|
| |
Vista Equity Partners LLC
|
| |
Solera Holdings, Inc.
|
| |
5.5x
|
| |
15.2x
|
9/10/2015
|
| |
Siris Capital Group, LLC
|
| |
Premiere Global Services, Inc.
|
| |
1.7x
|
| |
13.2x
|
12/15/2014
|
| |
Ontario Teachers’ Pension Plan Board; Thoma Bravo, LLC
|
| |
Riverbed Technology, Inc.
|
| |
3.4x
|
| |
19.9x
|
9/15/2014
|
| |
Micro Focus International plc
|
| |
The Attachmate Group, Inc.
|
| |
2.5x
|
| |
7.6x
|
PERSON/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED.
|
INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
|
PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
|
ADDITIONAL INFORMATION.
|
(i)
|
within the later of the consummation of the Offer (which will occur at the date and time the Shares are irrevocably accepted for purchase pursuant to and subject to the conditions of the Offer and Section 251(h)) and 20 days after the date of this Schedule 14D-9, deliver to the Company at 4500 Lockhill-Selma Road, Suite 150, San Antonio, Texas, 78249, Attention: Corporate Secretary, a written demand for appraisal of the Shares held, which demand must reasonably inform the Company of the identity of the stockholder and that the stockholder is demanding appraisal;
|
(ii)
|
not tender his, her or its Shares in the Offer; and
|
(iii)
|
continuously hold of record the Shares from the date on which the written demand for appraisal is made through the Effective Time.
|
•
|
each person known by the Company to be the beneficial owner of more than 5% of the outstanding Shares of Company Common Stock;
|
•
|
each director of the Company;
|
•
|
our former President and Chief Executive Officer;
|
•
|
our current Chief Executive Officer;
|
•
|
each of the other named executive officers, as described below, of the Company; and
|
•
|
all executive officers and directors of the Company as a group.
|
Shares Beneficially Owned as of July 28, 2020
|
||||||||||||||||||
Name of
Beneficial Owner |
| |
Common
Shares Currently Owned (# of shares) |
| |
Common
Shares That May Be Acquired By Exercise of Stock Options (# of shares) |
| |
Total
Common Shares Held (# of shares) |
| |
Additional
Common Shares That May Be Acquired within 60 Days of July 28, 2020 (# of shares) |
| |
Total
Beneficial Ownership (# of shares) |
| |
Percentage
of Class |
210/GSB Acquisition Partners, LLC et. al.
|
| |
3,268,900(1)
|
| |
—
|
| |
3,268,900
|
| |
—
|
| |
3,268,900
|
| |
17.40%
|
C. Clark Webb
|
| |
3,330,407(2)
|
| |
—
|
| |
3,330,407
|
| |
—
|
| |
3,330,407
|
| |
17.73%
|
Robert H. Alpert
|
| |
3,319,517(3)
|
| |
—
|
| |
3,319,517
|
| |
—
|
| |
3,319,517
|
| |
17.67%
|
Thomas W. Brown
|
| |
1,545,368(4)
|
| |
—
|
| |
1,545,368
|
| |
—
|
| |
1,545,368
|
| |
8.23%
|
Long Path Smaller Companies Fund, LP
|
| |
1,286,872(5)
|
| |
—
|
| |
1,286,872
|
| |
—
|
| |
1,286,872
|
| |
6.85%
|
Renaissance Technologies LLC
|
| |
1,228,390(6)
|
| |
—
|
| |
1,228,390
|
| |
—
|
| |
1,228,390
|
| |
6.54%
|
David L. Mann
|
| |
1,155,261(7)
|
| |
—
|
| |
1,155,261
|
| |
—
|
| |
1,155,261
|
| |
6.15%
|
Dr. Thomas G. Hicks
|
| |
67,000
|
| |
—
|
| |
67,000
|
| |
—
|
| |
67,000
|
| |
*
|
Matthew C. Goulet
|
| |
17,000(8)
|
| |
—
|
| |
17,000
|
| |
—
|
| |
17,000
|
| |
*
|
Michael P. Canavan
|
| |
23,961
|
| |
92,735
|
| |
116,696
|
| |
8,335
|
| |
125,031
|
| |
*
|
David C. Mello
|
| |
25,039
|
| |
—
|
| |
25,039
|
| |
—
|
| |
25,039
|
| |
*
|
All current directors and executive officers as a group (8 persons)
|
| |
|
| |
111,191
|
| |
4,767,073
|
| |
8,335
|
| |
4,775,408
|
| |
25.26%
|
*
|
Less than one percent
|
(1)
|
Based on information set forth in Schedule 13D/A (Amendment No. 6) filed on July 21, 2020, 210/GSB holds directly 3,268,900 Shares of Company Common Stock of GlobalSCAPE. 210/GSB is managed by its sole member, 210 Capital, LLC (“210 Capital”), which is managed by its members Covenant RHA Partners, L.P. (“RHA Partners”) and CCW/LAW Holdings, LLC (“CCW Holdings”). C. Clark Webb has the power to direct the affairs of CCW Holdings as its sole member. RHA Partners is managed by its general partner RHA Investments, Inc. (“RHA Investments”), and Robert H. Alpert has the power to direct the affairs of RHA Investments as its President and sole shareholder. Accordingly, 210/GSB may be deemed to share voting and dispositive power with 210 Capital, RHA Partners, CCW Holdings, RHA Investments, Mr. Alpert and Mr. Webb over the Shares of the Company Common Stock that it holds. The address of 210/GSB and Messrs. Webb and Alpert is 8214 Westchester Drive, Suite 950, Dallas, Texas 75225.
|
(2)
|
In addition to the 3,268,900 Shares of Company Common Stock owned by 210/GSB, Mr. Webb holds directly 61,507 Shares of Company Common Stock. Mr. Webb has sole voting and dispositive power over the 61,507 Shares of Company Common Stock that he holds directly.
|
(3)
|
In addition to the 3,268,900 Shares of Company Common Stock owned by 210/GSB, Mr. Alpert holds directly 32,972 Shares of Company Common Stock and Atlas Capital Management, L.P. (“ACM”) holds directly 17,645 Shares of Company Common Stock. ACM is managed by its general partner, RHA Investments. Accordingly, Mr. Alpert may be deemed to share voting and dispositive power with RHA Investments over the 17,645 Shares of Company Common Stock owned by ACM.
|
(4)
|
Includes 650 Shares owned by Mr. Brown’s spouse. Mr. Brown disclaims beneficial ownership of the Shares owned by his spouse.
|
(5)
|
Based on the information set forth in a Schedule 13G/A (Amendment No. 1) filed on February 12, 2020 by Long Path Partners, LP, a Delaware limited partnership (“LP Partners”), Long Path Holdings LLC, a Delaware limited liability company (“LP Holdings”), Long Path Fund GP, LLC, a Delaware limited liability company (“LPGP”), Long Path Smaller Companies Fund, LP, a Delaware limited partnership (“LPSC”), William Brennan and Brian Nelson (collectively, the “LP Reporting Persons”), the LP Reporting Persons own 1,286,872 Shares of Company Common Stock, each with shared voting and dispositive power. The address of the principal office of each of the LP Reporting Persons is 4 Landmark Square, Suite 301, Stamford, Connecticut 06901.
|
(6)
|
Based on the information set forth in a Schedule 13G/A (Amendment No.1) filed on February 13, 2020 by Renaissance Technologies, LLC, a Delaware limited liability company, and Renaissance Technologies Holdings Corporation, a Delaware Corporation (collectively, “Renaissance Reporting Persons”). The Renaissance Reporting Persons own 1,228,390 Shares of Company Common Stock, each with sole voting and dispositive power. The address of the principal office of each of the Renaissance Reporting Persons is 800 Third Avenue, New York, New York 10022.
|
(7)
|
Based on information provided to the Company by Mr. Mann. Mr. Mann has pledged 750,000 Shares to secure his obligations under a personal loan.
|
(8)
|
Includes 2,000 Shares owned by Mr. Goulet’s minor children. Mr. Goulet passed away in March 2019.
|
EXHIBITS.
|
| |
Offer to Purchase dated July 31, 2020 (incorporated by reference to Exhibit (a)(1)(A) to Schedule TO filed with the Commission by Merger Sub and Parent on July 31, 2020).
|
|
| |
Form of Letter of Transmittal (incorporated by reference to Exhibit (a)(1)(B) to Schedule TO filed with the Commission by Merger Sub and Parent on July 31, 2020).
|
|
| |
Form of Notice of Guaranteed Delivery (incorporated by reference to Exhibit (a)(1)(C) to Schedule TO filed with the Commission by Merger Sub and Parent on July 31, 2020).
|
|
| |
Form of Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to Exhibit (a)(1)(D) to Schedule TO filed with the Commission by Merger Sub and Parent on July 31, 2020).
|
|
| |
Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated by reference to Exhibit (a)(1)(E) to Schedule TO filed with the Commission by Merger Sub and Parent on July 31, 2020).
|
|
| |
Summary Advertisement as published in the New York Times on July 31, 2020 (incorporated by reference to Exhibit (a)(1)(F) to Schedule TO filed with the Commission by Merger Sub and Parent on July 31, 2020).
|
|
| |
Press Release issued by the Company, Parent and Merger Sub on July 20, 2020 (incorporated by reference to Exhibit 99.3 to Form 8-K filed with the Commission by the Company on July 20, 2020).
|
|
| |
Robert Alpert email to customers dated July 20, 2020 (incorporated by reference to Schedule 14D-9C filed with the Commission by the Company on July 21, 2020).
|
|
| |
Robert Alpert email to partners dated July 20, 2020 (incorporated by reference to Schedule 14D-9C filed with the Commission by the Company on July 21, 2020).
|
|
| |
Opinion of B. Riley FBR, Inc. (incorporated by reference to Annex A of this Schedule 14D-9).
|
|
| |
Agreement and Plan of Merger dated as of July 19, 2020, by and among the Company, Merger Sub, Parent and solely with respect to certain sections therein, HS Purchaser, LLC and Help/Systems Holdings, Inc. (incorporated by reference to Exhibit 2.1 to Form 8-K filed with the Commission by the Company on July 20, 2020).
|
|
| |
Amended and Restated Employment Agreement between the Company and Michael P. Canavan, dated as of April 5, 2019 (incorporated by reference to Exhibit 10.1 to Form 8-K filed with the Commission by the Company on April 5, 2019).
|
|
| |
Amended and Restated Employment Agreement between the Company and David C. Mello, dated as of April 4, 2019 (incorporated by reference to Exhibit 10.2 to Form 8-K filed with the Commission by the Company on April 4, 2019).
|
|
| |
Amended and Restated Employment Agreement between the Company and Karen J. Young, dated as of April 4, 2019 (incorporated by reference to Exhibit 10.1 to Form 8-K filed with the Commission by the Company on April 4, 2019).
|
|
| |
Amended and Restated Employment Agreement between the Company and Mark C. Hood, dated as of April 4, 2019.
|
|
| |
Employment Agreement between the Company and Robert Alpert, dated as of May 14, 2019 (incorporated by reference to Exhibit 10.1 to Form 8-K filed with the Commission by the Company on May 14, 2019).
|
|
| |
Amended and Restated Bylaws of the Company effective as of October 30, 2008 (incorporated by reference to Exhibit 3.2 to Form 8-K filed with the Commission by the Company on November 5, 2008).
|
|
| |
Amendment No. 1 to the Amended and Restated Bylaws of the Company effective as of August 6, 2019 (incorporated by reference to Exhibit 3.1 to Form 10-Q filed with the Commission by the Company on August 9, 2019).
|
|
| |
Form of Support Agreement, dated as of July 19, 2020, by and among Parent, Merger Sub and certain Stockholders listed therein (incorporated by reference to Exhibit (d)(5) to Schedule TO filed with the Commission by Merger Sub and Parent on July 31, 2020).
|
|
| |
Equity Commitment Letter, dated as of July 19, 2020, from HS Purchaser, LLC and Help/Systems Holdings, Inc. to Parent (incorporated by reference to Exhibit (d)(3) to Schedule TO filed with the Commission by Merger Sub and Parent on July 31, 2020).
|
| |
Limited Guarantee, dated as of July 19, 2020, delivered by HS Midco, Inc. in favor of the Company (incorporated by reference to Exhibit (d)(4) to Schedule TO filed with the Commission by Merger Sub and Parent on July 31, 2020).
|
|
| |
Amended and Restated Debt Commitment Letter, dated as of July 30, 2020, by and among HS Purchaser, LLC, Help/Systems Holdings, Inc., Jefferies Finance LLC, Hudson Post Credit Opportunities Aggregator (2019-2), LLC, Hudson Post Credit Opportunities Aggregator II, LLC, Golub Capital LLC and Ares Capital Management LLC (incorporated by reference to Exhibit (b)(1) to Schedule TO filed with the Commission by Merger Sub and Parent on July 31, 2020).
|
|
| |
Confidentiality letter agreement, dated May 2, 2019, as amended on June 2, 2020, between the Company and Parent.
|
|
| |
Form of Indemnification Agreement by and between GlobalSCAPE and each of its directors and named executive officers (incorporated by reference to Exhibit 10.1 to Form 8-K filed with the Commission by the Company on May 18, 2015).
|
|
| |
GlobalSCAPE, Inc. 2015 Non-Employee Directors Long-Term Equity Incentive Plan (incorporated by reference to Appendix A to the Definitive Proxy Statement filed with the Commission by the Company on April 2, 2015).
|
|
| |
Form of Restricted Stock Award Agreement pursuant to the GlobalSCAPE, Inc. 2015 Non-Employee Directors Long-Term Equity Incentive Plan (incorporated by reference to Exhibit 10.2 to Form 8-K filed with the Commission by the Company on May 18, 2015).
|
|
| |
Form of Incentive Stock Option Agreement GlobalSCAPE, Inc. 2010 Employee Long-Term Equity Incentive Plan dated June 3, 2010 (incorporated by reference to Exhibit 10.1 to Form 8-K filed with the Commission by the Company on February 4, 2016).
|
|
| |
GlobalSCAPE, Inc. 2016 Employee Long-Term Equity Incentive Plan (incorporated by reference to Annex A to Schedule 14A, filed with the Commission by the Company on March 31, 2017).
|
|
| |
Amendment to 2016 Employee Long-Term Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to Form 8-K filed with the Commission by the on Company October 31, 2018).
|
|
|
| |
|
| |
Opinion of B. Riley FBR, Inc., Financial Advisor to the Company, dated July 19, 2020
|
|
| |
Section 262 of the Delaware General Corporation Law
|
*
|
Included in materials delivered to stockholders of the Company.
|
**
|
Filed herewith.
|
|
| |
GLOBALSCAPE, INC.
|
||||||
|
| |
|
| |
|
| |
|
|
| |
By:
|
| |
/s/ Karen J. Young
|
|||
|
| |
|
| |
Name:
|
| |
Karen J. Young
|
|
| |
|
| |
Title:
|
| |
Chief Financial Officer
|
(i)
|
reviewed the financial terms of a draft of the Agreement dated July 18, 2020, the most recent draft made available to us;
|
(ii)
|
reviewed certain publicly available business and financial information relating to GlobalSCAPE;
|
(iii)
|
reviewed certain other business, financial and operating information relating to GlobalSCAPE, including financial forecasts for GlobalSCAPE for the fiscal years ending December 31, 2020 through 2024 prepared and provided to us by the management of GlobalSCAPE (the “Projections”);
|
(iv)
|
spoke with certain members of the management of GlobalSCAPE and its advisors to discuss the business and prospects of GlobalSCAPE and the proposed Transaction;
|
(v)
|
reviewed certain financial data for GlobalSCAPE and compared that data with similar data for companies with publicly traded equity securities that we deemed relevant;
|
(vi)
|
reviewed certain financial terms of the proposed Transaction and compared certain of those terms with the publicly available financial terms of certain business combinations and other transactions that we deemed relevant; and
|
(vii)
|
considered such other information, financial studies, analyses and investigations and financial, economic and market criteria that we deemed relevant.
|
(a)
|
Any stockholder of a corporation of this State who holds shares of stock on the date of the making of a demand pursuant to subsection (d) of this section with respect to such shares, who continuously holds such shares through the effective date of the merger or consolidation, who has otherwise complied with subsection (d) of this section and who has neither voted in favor of the merger or consolidation nor consented thereto in writing pursuant to § 228 of this title shall be entitled to an appraisal by the Court of Chancery of the fair value of the stockholder’s shares of stock under the circumstances described in subsections (b) and (c) of this section. As used in this section, the word “stockholder” means a holder of record of stock in a corporation; the words “stock” and “share” mean and include what is ordinarily meant by those words; and the words “depository receipt” mean a receipt or other instrument issued by a depository representing an interest in 1 or more shares, or fractions thereof, solely of stock of a corporation, which stock is deposited with the depository.
|
(b)
|
Appraisal rights shall be available for the shares of any class or series of stock of a constituent corporation in a merger or consolidation to be effected pursuant to § 251 (other than a merger effected pursuant to § 251(g) of this title) § 252, § 254, § 255, § 256, § 257, § 258, § 263 or § 264 of this title:
|
(1)
|
Provided, however, that, except as expressly provided in § 363(b) of this title, no appraisal rights under this section shall be available for the shares of any class or series of stock, which stock, or depository receipts in respect thereof, at the record date fixed to determine the stockholders entitled to receive notice of the meeting of stockholders to act upon the agreement of merger or consolidation (or, in the case of a merger pursuant to § 251(h), as of immediately prior to the execution of the agreement of merger), were either: (i) listed on a national securities exchange or (ii) held of record by more than 2,000 holders; and further provided that no appraisal rights shall be available for any shares of stock of the constituent corporation surviving a merger if the merger did not require for its approval the vote of the stockholders of the surviving corporation as provided in § 251(f) of this title.
|
(2)
|
Notwithstanding paragraph (b)(1) of this section, appraisal rights under this section shall be available for the shares of any class or series of stock of a constituent corporation if the holders thereof are required by the terms of an agreement of merger or consolidation pursuant to §§ 251, 252, 254, 255, 256, 257, 258, 263 and 264 of this title to accept for such stock anything except:
|
a.
|
Shares of stock of the corporation surviving or resulting from such merger or consolidation, or depository receipts in respect thereof;
|
b.
|
Shares of stock of any other corporation, or depository receipts in respect thereof, which shares of stock (or depository receipts in respect thereof) or depository receipts at the effective date of the merger or consolidation will be either listed on a national securities exchange or held of record by more than 2,000 holders;
|
c.
|
Cash in lieu of fractional shares or fractional depository receipts described in the foregoing paragraphs (b)(2)a. and b. of this section; or
|
d.
|
Any combination of the shares of stock, depository receipts and cash in lieu of fractional shares or fractional depository receipts described in the foregoing paragraphs (b)(2)a., b. and c. of this section.
|
(3)
|
In the event all of the stock of a subsidiary Delaware corporation party to a merger effected under § 253 or § 267 of this title is not owned by the parent immediately prior to the merger, appraisal rights shall be available for the shares of the subsidiary Delaware corporation.
|
(4)
|
In the event of an amendment to a corporation’s certificate of incorporation contemplated by § 363(a) of this title, appraisal rights shall be available as contemplated by § 363(b) of this title, and the procedures of this section, including those set forth in subsections (d) and (e) of this section, shall apply as nearly as practicable, with the word “amendment” substituted for the words “merger or consolidation,” and the word “corporation” substituted for the words “constituent corporation” and/or “surviving or resulting corporation.”
|
(c)
|
Any corporation may provide in its certificate of incorporation that appraisal rights under this section shall be available for the shares of any class or series of its stock as a result of an amendment to its certificate of incorporation, any merger or consolidation in which the corporation is a constituent corporation or the sale of all or substantially all of the assets of the corporation. If the certificate of incorporation contains such a provision, the provisions of this section, including those set forth in subsections (d), (e), and (g) of this section, shall apply as nearly as is practicable.
|
(d)
|
Appraisal rights shall be perfected as follows:
|
(1)
|
If a proposed merger or consolidation for which appraisal rights are provided under this section is to be submitted for approval at a meeting of stockholders, the corporation, not less than 20 days prior to the meeting, shall notify each of its stockholders who was such on the record date for notice of such meeting (or such members who received notice in accordance with § 255(c) of this title) with respect to shares for which appraisal rights are available pursuant to subsection (b) or (c) of this section that appraisal rights are available for any or all of the shares of the constituent corporations, and shall include in such notice a copy of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Each stockholder electing to demand the appraisal of such stockholder’s shares shall deliver to the corporation, before the taking of the vote on the merger or consolidation, a written demand for appraisal of such stockholder’s shares; provided that a demand may be delivered to the corporation by electronic transmission if directed to an information processing system (if any) expressly designated for that purpose in such notice. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such stockholder’s shares. A proxy or vote against the merger or consolidation shall not constitute such a demand. A stockholder electing to take such action must do so by a separate written demand as herein provided. Within 10 days after the effective date of such merger or consolidation, the surviving or resulting corporation shall notify each stockholder of each constituent corporation who has complied with this subsection and has not voted in favor of or consented to the merger or consolidation of the date that the merger or consolidation has become effective; or
|
(2)
|
If the merger or consolidation was approved pursuant to § 228, § 251(h), § 253, or § 267 of this title, then either a constituent corporation before the effective date of the merger or consolidation or the surviving or resulting corporation within 10 days thereafter shall notify each of the holders of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger or consolidation and that appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such notice a copy of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Such notice may, and, if given on or after the effective date of the merger or consolidation, shall, also notify such stockholders of the effective date of the merger or consolidation. Any stockholder entitled to appraisal rights may, within 20 days after the date of giving such notice or, in the case of a merger approved pursuant to § 251(h) of this title, within the later of the consummation of the offer contemplated by § 251(h) of this title and 20 days after the date of giving such notice, demand in writing from the surviving or resulting corporation the appraisal of such holder’s shares; provided that a demand may be delivered to the corporation by electronic transmission if directed to an information processing system (if any) expressly designated for that purpose in such notice. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such holder’s shares. If such notice did not notify stockholders of the effective date of the merger or consolidation, either (i) each such constituent corporation shall send a second notice before the effective date of the merger or consolidation notifying each of the holders of any class or series of stock of such constituent corporation that are entitled to appraisal rights of the effective date of the merger or consolidation or (ii) the surviving or resulting corporation shall send such a second notice to all such holders on or within 10 days after such effective date; provided, however, that if such second notice is sent more than 20 days following the sending of the first notice or, in the case of a merger approved pursuant to § 251(h) of this title, later than the later of the consummation of the offer contemplated by § 251(h) of this title and 20 days following the sending of the first notice, such second notice need only be sent to each stockholder who is entitled to appraisal rights and who has demanded appraisal of such holder’s shares in accordance with this subsection. An affidavit of the secretary or assistant secretary or of the transfer agent of the corporation
|
(e)
|
Within 120 days after the effective date of the merger or consolidation, the surviving or resulting corporation or any stockholder who has complied with subsections (a) and (d) of this section hereof and who is otherwise entitled to appraisal rights, may commence an appraisal proceeding by filing a petition in the Court of Chancery demanding a determination of the value of the stock of all such stockholders. Notwithstanding the foregoing, at any time within 60 days after the effective date of the merger or consolidation, any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party shall have the right to withdraw such stockholder’s demand for appraisal and to accept the terms offered upon the merger or consolidation. Within 120 days after the effective date of the merger or consolidation, any stockholder who has complied with the requirements of subsections (a) and (d) of this section hereof, upon request given in writing (or by electronic transmission directed to an information processing system (if any) expressly designated for that purpose in the notice of appraisal), shall be entitled to receive from the corporation surviving the merger or resulting from the consolidation a statement setting forth the aggregate number of shares not voted in favor of the merger or consolidation (or, in the case of a merger approved pursuant to § 251(h) of this title, the aggregate number of shares (other than any excluded stock (as defined in § 251(h)(6)d. of this title)) that were the subject of, and were not tendered into, and accepted for purchase or exchange in, the offer referred to in § 251(h)(2)), and, in either case, with respect to which demands for appraisal have been received and the aggregate number of holders of such shares. Such statement shall be given to the stockholder within 10 days after such stockholder’s request for such a statement is received by the surviving or resulting corporation or within 10 days after expiration of the period for delivery of demands for appraisal under subsection (d) of this section hereof, whichever is later. Notwithstanding subsection (a) of this section, a person who is the beneficial owner of shares of such stock held either in a voting trust or by a nominee on behalf of such person may, in such person’s own name, file a petition or request from the corporation the statement described in this subsection.
|
(f)
|
Upon the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the surviving or resulting corporation, which shall within 20 days after such service file in the office of the Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all stockholders who have demanded payment for their shares and with whom agreements as to the value of their shares have not been reached by the surviving or resulting corporation. If the petition shall be filed by the surviving or resulting corporation, the petition shall be accompanied by such a duly verified list. The Register in Chancery, if so ordered by the Court, shall give notice of the time and place fixed for the hearing of such petition by registered or certified mail to the surviving or resulting corporation and to the stockholders shown on the list at the addresses therein stated. Such notice shall also be given by 1 or more publications at least 1 week before the day of the hearing, in a newspaper of general circulation published in the City of Wilmington, Delaware or such publication as the Court deems advisable. The forms of the notices by mail and by publication shall be approved by the Court, and the costs thereof shall be borne by the surviving or resulting corporation.
|
(g)
|
At the hearing on such petition, the Court shall determine the stockholders who have complied with this section and who have become entitled to appraisal rights. The Court may require the stockholders who have demanded an appraisal for their shares and who hold stock represented by certificates to submit their certificates of stock to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings; and if any stockholder fails to comply with such direction, the Court may dismiss the proceedings as to such stockholder. If immediately before the merger or consolidation the shares of the class or series of stock of the constituent corporation as to which appraisal rights are available were listed on a national securities exchange, the Court shall dismiss the proceedings as to all holders of such shares who are otherwise entitled to appraisal rights unless (1) the total number of shares entitled to appraisal exceeds 1% of the outstanding shares of the class or series eligible for appraisal, (2) the value of the consideration provided in the merger or consolidation for such total number of shares exceeds $1 million, or (3) the merger was approved pursuant to § 253 or § 267 of this title.
|
(h)
|
After the Court determines the stockholders entitled to an appraisal, the appraisal proceeding shall be conducted in accordance with the rules of the Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding the Court shall determine the fair value of the shares exclusive of any element of value arising from the accomplishment or expectation of the merger or consolidation, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the Court shall take into account all relevant factors. Unless the Court in its discretion determines otherwise for good cause shown, and except as provided in this subsection, interest from the effective date of the merger through the date of payment of the judgment shall be compounded quarterly and shall accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the effective date of the merger and the date of payment of the judgment. At any time before the entry of judgment in the proceedings, the surviving corporation may pay to each stockholder entitled to appraisal an amount in cash, in which case interest shall accrue thereafter as provided herein only upon the sum of (1) the difference, if any, between the amount so paid and the fair value of the shares as determined by the Court, and (2) interest theretofore accrued, unless paid at that time. Upon application by the surviving or resulting corporation or by any stockholder entitled to participate in the appraisal proceeding, the Court may, in its discretion, proceed to trial upon the appraisal prior to the final determination of the stockholders entitled to an appraisal. Any stockholder whose name appears on the list filed by the surviving or resulting corporation pursuant to subsection (f) of this section and who has submitted such stockholder’s certificates of stock to the Register in Chancery, if such is required, may participate fully in all proceedings until it is finally determined that such stockholder is not entitled to appraisal rights under this section.
|
(i)
|
The Court shall direct the payment of the fair value of the shares, together with interest, if any, by the surviving or resulting corporation to the stockholders entitled thereto. Payment shall be so made to each such stockholder, in the case of holders of uncertificated stock forthwith, and the case of holders of shares represented by certificates upon the surrender to the corporation of the certificates representing such stock. The Court’s decree may be enforced as other decrees in the Court of Chancery may be enforced, whether such surviving or resulting corporation be a corporation of this State or of any state.
|
(j)
|
The costs of the proceeding may be determined by the Court and taxed upon the parties as the Court deems equitable in the circumstances. Upon application of a stockholder, the Court may order all or a portion of the expenses incurred by any stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorney’s fees and the fees and expenses of experts, to be charged pro rata against the value of all the shares entitled to an appraisal.
|
(k)
|
From and after the effective date of the merger or consolidation, no stockholder who has demanded appraisal rights as provided in subsection (d) of this section shall be entitled to vote such stock for any purpose or to receive payment of dividends or other distributions on the stock (except dividends or other distributions payable to stockholders of record at a date which is prior to the effective date of the merger or consolidation); provided, however, that if no petition for an appraisal shall be filed within the time provided in subsection (e) of this section, or if such stockholder shall deliver to the surviving or resulting corporation a written withdrawal of such stockholder’s demand for an appraisal and an acceptance of the merger or consolidation, either within 60 days after the effective date of the merger or consolidation as provided in subsection (e) of this section or thereafter with the written approval of the corporation, then the right of such stockholder to an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery shall be dismissed as to any stockholder without the approval of the Court, and such approval may be conditioned upon such terms as the Court deems just; provided, however that this provision shall not affect the right of any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such stockholder’s demand for appraisal and to accept the terms offered upon the merger or consolidation within 60 days after the effective date of the merger or consolidation, as set forth in subsection (e) of this section.
|
(l)
|
The shares of the surviving or resulting corporation to which the shares of such objecting stockholders would have been converted had they assented to the merger or consolidation shall have the status of authorized and unissued shares of the surviving or resulting corporation.
|
1.
|
Title and Job Duties.
|
(a)
|
Subject to the terms and conditions set forth in this Agreement, the Company agrees to employ Employee as Senior Vice President of Operations. In this capacity, Employee shall have the duties, authorities and responsibilities that are designated from time to time by the Company’s Chief Executive Officer (the “CEO”) and commensurate with his title. In performing his duties under this Agreement, Employee shall report to the CEO.
|
(b)
|
Employee accepts such employment and agrees, during the term of his employment, to devote his full business and professional time and energy to the Company. Employee agrees to carry out and abide by all lawful directions of the CEO and to comply with all standards of performance, policies, and other rules and regulations heretofore established by Company and or hereafter established by Company. In addition, Employee agrees to serve in such other capacities or offices to which he may be assigned, appointed or elected from time to time by the CEO.
|
(c)
|
Without limiting the generality of the foregoing, Employee shall not, without the written approval of the CEO, render services of a business or commercial nature on his own behalf or on behalf of any other person, firm, or corporation, whether for compensation or otherwise, during his employment hereunder; provided that the foregoing shall not prevent Employee from (i) serving on the boards of directors of, or holding any other offices or positions in non-profit organizations and, with the prior written approval of the Board, other for-profit companies, (ii) participating in charitable, civic, educational, professional, community or industry affairs, and (iii) managing Employee’s personal investments, so long as such activities in the aggregate do not materially interfere or conflict with Employee’s duties hereunder or create a potential business or fiduciary conflict. Notwithstanding the foregoing, Employee shall be able to engage in the following activities listed in Exhibit A so long as they continue not to materially interfere or conflict with Employee’s duties hereunder or create a potential business or fiduciary conflict.
|
2.
|
Compensation. Employee shall receive a base salary of $242,050 (“Base Salary”). In addition, Employee may be entitled to participate in any additional bonus, incentive compensation or employee benefit programs which may be established from time to time by the Company in its sole discretion and in accordance with the provisions of the programs as the same may be in effect from time to time.
|
3.
|
Expenses. In accordance with Company policy, the Company shall reimburse Employee for all reasonable business expenses, including travel expenses, properly and reasonably incurred and paid by Employee in the performance of his duties under this Agreement upon his presentment of detailed receipts in the form required by the Company’s policy.
|
4.
|
Term of Employment. The terms set forth in this Agreement will commence upon the Effective Date and shall remain in effect for one (1) year (the “Initial Term”) unless earlier terminated as otherwise provided in Section 5 below. The Initial Term shall automatically renew for additional one (1) year periods (each a
|
5.
|
Termination.
|
(a)
|
Termination at the Company’s Election.
|
(i)
|
For Cause. At the election of the Company, Employee’s employment may be terminated for Cause (as defined below) immediately upon written notice to Employee. For purposes of this Agreement, “Cause” for termination shall mean: (A) Employee substantially fails to perform his duties with the Company (other than any such failure resulting from his incapacity due to Disability) 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, (B) Employee knowingly or recklessly engages in conduct which is demonstrably and materially injurious to the Company or any of its affiliates, monetarily or otherwise, (C) 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, (D) 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, (E) Employee commits a material breach of any of the covenants, representations, terms or provisions of this Agreement, (F) Employee knowingly or recklessly violates any instructions or policies of the Company with respect to the operation of its business or affairs that causes material harm, economic or otherwise, to the Company; or (G) Employee abuses illegal drugs. Notwithstanding the foregoing, Employee shall not be deemed to have been terminated for Cause unless and until Employee has had a reasonable opportunity to cure any such failure or breach in Clauses (A), (B), (E) or (F), to the extent curable, and there shall have been delivered to Employee a copy of a resolution duly adopted by the affirmative vote (which cannot be delegated) of not less than a majority of the members of the Board at a meeting of the Board called and held for such purposes (after reasonable notice to him and an opportunity for Employee, together with his counsel, to be heard before the Board), finding that in the good faith opinion of the Board, Employee (1) committed the conduct set forth above in clauses (A) through (G) of the first sentence of this Subsection and specifying the particulars thereof in detail and (2) did not cure such failure or breach in a reasonable period of time, to the extent such failure or breach was curable.
|
(ii)
|
Upon Disability, Death or Without Cause. At the election of the Company, Employee’s employment may be terminated: (A) should Employee become physically or mentally unable to perform his duties for the Company hereunder and such incapacity has continued for a total of ninety consecutive days or for any one hundred eighty days in a period of three hundred sixty-five consecutive days (a “Disability”); (B) upon Employee’s death (“Death”); or (C) upon written notice to Employee for any other reason or for no reason at all.
|
(b)
|
Termination at Employee’s Election
|
(i)
|
Voluntary Resignation or Retirement. Notwithstanding anything contained elsewhere in this Agreement to the contrary, Employee may terminate his employment hereunder at any time and for any reason whatsoever or for no reason at all in Employee’s sole discretion by giving twenty-one days’ written notice pursuant to Section 10 of this Agreement (“Voluntary Resignation”), but the Company may waive any continued employment or right to compensation or benefits, except as provided in Section 6(b) of this Agreement, during this notice period.
|
(ii)
|
Good Reason Following a Change in Control. At the election of the Employee, Employee’s employment may be terminated for Good Reason (as defined below) upon written notice to the Company. For purposes of this Agreement, “Good Reason” shall mean the occurrence of one of
|
(a)
|
the sale, transfer, or assignment to, or other acquisition by any other entity or entities (other than a Subsidiary), of all or substantially all of the Company’s assets and business in one or a series of related transactions;
|
(b)
|
a third person, including a “group” as determined in accordance with Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, (the “Exchange Act”)), 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) of securities representing 50% or more of the combined voting power of GlobalSCAPE’s then outstanding securities;
|
(c)
|
during any 12-consecutive month period, the individuals who, at the beginning of such period, constitute the Board (“Incumbent Directors”) cease for any reason other than death to constitute at least a majority of the members of the Board; provided, however, that except as set forth in this Section 4(c), an individual who becomes a member of the Board subsequent to the beginning of the 12-month period, shall be deemed to have satisfied such 12-month requirement and shall be deemed an Incumbent Director if such Director was elected by or on the recommendation of, or with the approval of, at least two-thirds of the Directors who then qualified as Incumbent Directors either actually (because they were Directors at the beginning of such period) or by operation of the provisions of this Section; if any such individual initially assumes office as a result of or in connection with either an actual or threatened solicitation with respect to the election of Directors (as such terms are used in Rule 14a-12(c) of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitations of proxies or consents by or on behalf of a person other than the Board, then such individual shall not be considered an Incumbent Director; or
|
(d)
|
a merger, consolidation, reorganization or other business combination (a “Transaction”), as a result of which the stockholders of the Company immediately prior to such Transaction own directly or indirectly immediately following such Transaction less than 50% of the combined voting power of the outstanding voting securities of the entity resulting from such Transaction.
|
6.
|
Payments Upon Termination of Employment.
|
(a)
|
Termination for Cause, Upon Death or Disability, or Voluntary Resignation/Retirement. If Employee’s employment is terminated by the Company for Cause, upon Death or Disability, or is terminated by Employee as a Voluntary Resignation, then the Company shall pay or provide to Employee (or his estate in case of Death) the following amounts only: (i) his Base Salary accrued up to and including the date of termination or resignation paid at the next payroll of the Company, (ii) accrued, unused vacation time, paid in accordance with the Company’s written policies and applicable law, (iii) unreimbursed expenses, paid in accordance with this Agreement and the Company’s written policies, and (iv) accrued benefits under any Company benefit plan, paid pursuant to the terms of such benefit plan (collectively, the “Accrued Obligations”). Payments under Subsections (ii) to (iv) shall be paid within ten days after termination, after presentment of expense receipts, or at such earlier time required by applicable law.
|
(b)
|
Termination Without Cause or Termination upon Non-renewal of the Term. If the Company terminates Employee’s employment Without Cause, Employee terminates his employment for Good Reason upon Change in Control, or Employee’s employment terminates upon non-renewal of the Term by the Company, in addition to paying the Accrued Obligations, the Company shall, subject to Employee’s execution and delivery of a customary general release (that is no longer subject to revocation under applicable law) of the Company, (i) pay to Employee (A)severance payments, in equal monthly installments, that are equal, in the aggregate, to the Base Salary, less applicable taxes and withholdings, that Employee would have received over the six months following Employee’s termination as if Employee’s employment had not been terminated (the “Salary Severance Payment”), and (B) any bonus that Employee would have received during the year of such termination as if the termination had not occurred, prorated based on the number of months of the Initial Term or Renewal Year that Employee was employed (e.g., if Employee was terminated five months into the bonus year, Employee would receive 5/12 of the bonus amount, if any, that he would have received, with such prorated payment to be made at the time the payment would have been made if the Employee was still employed), (ii) provide for immediate vesting and exercisability of all outstanding stock options (with such options remaining exercisable throughout their entire term) and the lapsing of any restrictions or restriction periods imposed on any restricted stock awards, and (iii) reimburse Employee for the Company’s portion of the COBRA premiums associated with health insurance continuation coverage for six months or until his right to COBRA continuation expires, whichever is shorter; provided that Employee timely elects and is eligible for COBRA coverage. The Company shall reimburse Employee within ten business days of its receipt of documentation from Employee showing proof of payment of such COBRA premiums. All payments under clause (i)(A) above shall begin to be made within thirty (30) days following termination of employment; provided, however, that to the extent required by Code Section 409A (as defined below), if the thirty (30) day period begins in one calendar year and ends in the second calendar year, all payments will be made in the second calendar year. All payments made under clause (i)(B), if any, shall be made paid at such time as Employee’s bonus would otherwise have been payable. The payments under this Section 6(b) shall immediately cease should Employee violate any of the obligations set forth in Sections 7 or 8 below, provided that the Company gives written notice to Employee of the alleged breach within 30 days of the Company’s knowledge of the alleged breach and provided further that, if the basis for the alleged breach is curable, then the Employee shall have fifteen days after receipt of such written notice to cure such basis.
|
(c)
|
Termination Following a Change in Control. If (i) the Company terminates Employee’s employment Without Cause within one year following a Change in Control, (ii) Employee’s employment terminates upon non-renewal of the Term within one year following a Change in Control, or (iii) Employee
|
7.
|
Confidential Information; Trade Secrets; Retention.
|
(a)
|
Employee understands that until his termination, he may have access to unpublished and otherwise confidential information both of a technical and non-technical nature, relating to the business of the Company or any of its parents, subsidiaries, divisions, and affiliates (collectively, “Affiliated Entities”), or clients, including without limitation any of their actual or anticipated business, research or development, any of their technology or the implementation or exploitation thereof, including without limitation information Employee and others have collected, obtained or created, information pertaining to clients, accounts, vendors, prices, costs, materials, processes, codes, material results, technology, system designs, system specifications, materials of construction, trade secrets or equipment designs, including information disclosed to the Company or any of its Affiliated Entities by others under agreements to hold such information confidential, all proprietary software and system designs owned by or licensed to Company or any of its affiliates, the marketing plans of Company and its affiliates, the prices Company or any of its affiliates obtains or has obtained or at which Company or any of its affiliates sells or has sold products or services, compensation paid to employees, all confidential information and trade secrets provided to Company or any of its affiliates by customers or vendors, all financial statements and other information relating to the financial condition of Company and its affiliates, and all information relating to research and development activities, ideas or projects of Company or any of its affiliates (collectively, the “Confidential Information”).
|
(b)
|
Employee agrees to observe all reasonable policies and procedures of the Company and its Affiliated Entities that are provided to him concerning such Confidential Information to which he has knowledge or access. Employee further agrees not to disclose or use, either during his employment or at any time thereafter, any Confidential Information for any purpose, including without limitation any competitive purpose, unless authorized to do so by the Company in writing, except that he may disclose and use such information in the good faith performance of his duties for the Company. Employee’s obligations under this Agreement will continue with respect to Confidential Information, whether or not his employment is terminated, until such information becomes generally available from public sources through no fault of Employee or any representative of Employee. Notwithstanding the foregoing, however, Employee shall be permitted to disclose Confidential Information as may be required by a subpoena or other governmental order, provided that, if not prohibited by law, he first notifies the Company in writing of such subpoena, order or other requirement and such that the Company has the opportunity to obtain a protective order or other appropriate remedy.
|
(c)
|
During Employee’s employment, upon the Company’s request, or upon the termination of his employment for any reason, Employee will promptly deliver to the Company all documents, records, files, notebooks, manuals, letters, notes, reports, customer and supplier lists, cost and profit data, e-mail, apparatus, laptops, computers, smartphones, tablets or other PDAs, hardware, software, drawings, blueprints, and any other material of the Company (“Company Material”) or any of its Affiliated Entities or clients, including all materials pertaining to Confidential Information developed by Employee or others, and all copies of such materials, whether of a technical, business or fiscal nature, whether on the hard drive of a laptop or desktop computer, in hard copy, disk or any other format, which are in his possession, custody or control. Employee shall delete any Company Material from his personal devices and, upon written request of the Company, confirm in writing that such deletions were made.
|
8.
|
Assignment of Intellectual Property. The Company Confidentiality, Non- Disclosure, Non-Solicitation, Non-Compete and Inventions Agreement signed by Employee upon commencement of Employee’s employment by Company will continue pursuant to its terms and will not be superseded by this Agreement.
|
9.
|
Representation and Warranty. Employee represents and warrants to the Company that he is not subject to any agreement restricting his ability to enter into this Agreement and fully carry out his duties and
|
10.
|
Notice. Any notice or other communication required or permitted to be given to any of the parties hereto shall be in writing and shall be deemed to have been given if personally delivered, or if sent by nationally recognized overnight courier, and addressed as follows:
|
|
| |
If to Employee, to:
|
|||
|
| |
|
| |
the address shown on the records of the Company.
|
|
| |
|
| |
|
|
| |
If to the Company, to:
|
|||
|
| |
|
| |
GlobalSCAPE, Inc.
|
|
| |
|
| |
4500 Lockhill-Selma Road, Suite 150
|
|
| |
|
| |
San Antonio, Texas 78249
|
|
| |
|
| |
Attention: Board of Directors and President
|
|
| |
|
| |
|
|
| |
with a copy to:
|
|||
|
| |
|
| |
|
|
| |
|
| |
Olshan Frome Wolosky LLP
|
|
| |
|
| |
1325 Avenue of the Americas
|
|
| |
|
| |
New York, New York 10019
|
|
| |
|
| |
Attention: Adam W. Finerman
|
11.
|
Severability. If any provision of this Agreement is declared void or unenforceable by a court of competent jurisdiction, all other provisions shall nonetheless remain in full force and effect.
|
12.
|
Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Texas without regard to the conflict of laws provisions thereof. The Parties irrevocably and unconditionally agree that any past, present, or future dispute, controversy, or claim arising under or relating to this Agreement shall be submitted for resolution to binding arbitration administered by the American Arbitration Association under its Employment Arbitration Rules and shall take place in San Antonio, Texas. Each of the parties hereto hereby irrevocably waives, to the fullest extent legally possible, the defense of an inconvenient forum to the maintenance of such action or proceeding.
|
13.
|
Code Section 409A Compliance.
|
(a)
|
The intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Internal Revenue Code (“Code”) Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered accordingly.
|
(b)
|
A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Code Section 409A unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
|
(c)
|
With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated without regard to expenses reimbursed under any arrangement covered by Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of Employee’s taxable year following the taxable year in which the expense occurred.
|
(d)
|
For purposes of Code Section 409A, Employee’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “within sixty (60) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.
|
(e)
|
If Employee is a specified employee within the meaning of Section 409A(a)(2)(B)(i) of the Code and would receive any payment sooner than 6 months after Employee’s “separation from service” that, absent the application of this Section 13(e), would be subject to additional tax imposed pursuant to Section 409A of the Code as a result of such status as a specified employee, then such payment shall instead be payable on the date that is the earliest of (i) 6 months after Employee’s “separation from service,” or (ii) Employee’s death.
|
14.
|
Section 280G. In the event that any payments, distributions, benefits or entitlements of any type payable to Employee (the “Total Payments”) would (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this paragraph would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be either: (a) provided in full, or (b) provided as to such lesser extent as would result in no portion of such Total Payments being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in Employee’s receipt on an after-tax basis of the greatest amount of the Total Payments, notwithstanding that all or some portion of the Total Payments may be subject to the Excise Tax. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 14 shall be made in writing in good faith based on the advice of a nationally recognized accounting firm selected by the Company (with approval of Employee) (the “Accountants”). In the event of a reduction of benefits hereunder, benefits shall be reduced by first reducing or eliminating the portion of the Total Payments that are payable in cash under Section 6 and then by reducing or eliminating any amounts that are payable with respect to long-term incentives including any equity-based or equity-related awards (whether payable in cash or in kind). For purposes of making the calculations required by this Section 14, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accountants such information and documents as the Accountants may reasonably require in order to make a determination under this Section 14, and the Company shall bear the cost of all fees the Accountants charge in connection with any calculations contemplated by this Section 14.
|
15.
|
Waiver. The waiver by any of the parties hereto of a breach of any provision of this Agreement shall not be construed as a waiver of any subsequent breach. The failure of a party to insist upon strict adherence to any provision of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that provision or any other provision of this Agreement. Any waiver must be in writing.
|
16.
|
Assignment. This Agreement is a personal contract and Employee may not sell, transfer, assign, pledge or hypothecate his rights, interests and obligations hereunder. Except as otherwise herein expressly provided, this Agreement shall be binding upon and shall inure to the benefit of Employee and his personal representatives and shall inure to the benefit of and be binding upon the Company and its successors and assigns, except that the Company may not assign this Agreement without Employee’s prior written consent, except to an acquirer of all or substantially all of the assets of the Company.
|
17.
|
Injunctive Relief. Without limiting the remedies available to the Company, Employee acknowledges that a breach of any of the covenants contained in Sections 7 or 8 would result in material irreparable injury to the goodwill of the Company for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof, the Company shall be entitled, without the requirement to post bond or other security, to obtain a temporary restraining order and/or preliminary or permanent injunction restraining Employee from engaging in activities prohibited by this Agreement or such other relief as may be required to specifically enforce any of the covenants in Sections 7 or 8 of this Agreement, in addition to all other remedies available at law or in equity.
|
18.
|
Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. Facsimile, electronic or .pdf signatures shall have the same force and effect as original signatures.
|
19.
|
Entire Agreement. This Agreement embodies all of the representations, warranties and agreements between the parties hereto relating to Employee’s employment with the Company, supersedes and nullifies all previous agreements between the Parties about the Company’s employment of Employee, including the 2018 Agreement. No other representations, warranties, covenants, understandings, or agreements exist between the parties hereto relating to Employee’s employment. This Agreement may not be amended or modified except by a writing signed by each of the parties hereto. Sections 7 through 19 and the last sentence of Section 4 of this Agreement shall survive the expiration or termination of this Agreement.
|
|
| |
GLOBALSCAPE, INC.
|
|||
|
| |
By:
|
| |
|
|
| |
|
| |
Name: Robert H. Alpert
|
|
| |
|
| |
Title: Interim CEO
|
Agreed to and Accepted:
|
||||||
|
||||||
MARK HOOD
|
|
| |
May 2nd, 2019
|
Wes Fredenburg, General Counsel
|
| |
|
6455 City W Pkwy
|
| |
|
Eden Prairie, MN 55344
|
| |
|
1.
|
“Confidential Information” and Certain Other Terms Defined.
|
(a)
|
“Affiliate” has the meaning given to it in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
|
(b)
|
“Agreement” means this agreement.
|
(c)
|
“Confidential Information” means all information concerning the Company or any of its Affiliates that is furnished (whether before, on, or after the date hereof) by or on behalf of the Company to you or any of your Affiliates or Representatives, in whole or in part, regardless of the form of communication and whether or not identified as confidential, together with all notes, analyses, compilations, studies, interpretations, or other documents prepared by you or any of your Affiliates or Representatives to the extent containing or otherwise reflecting, in whole or in part, any of such information (such notes, analyses, compilations, studies, interpretations and other documents are referred to collectively as “Recipient Analyses”). Additionally, notwithstanding the following sentence, the fact that such information has been or will be so furnished, the existence and nature of discussions or negotiations (if any) involving the Parties regarding a possible Transaction, and any of the terms, conditions or other facts about a possible Transaction, including the current status, is “Confidential Information” that is deemed to be so furnished by the Company to you. The term “Confidential Information” does not include information that:
|
(1)
|
is or becomes generally available to the public, other than as a result of a disclosure by you or any of your Affiliates or Representatives in breach or violation of this Agreement;
|
(2)
|
was within your possession prior to its being furnished by or on behalf of the Company, so long as the source of such information was not known by you or any of your Affiliates to be bound by an obligation of confidentiality to the Company or any of its Affiliates regarding such information; or
|
(3)
|
becomes available to you on a non-confidential basis from a source other than the Company or any of its Affiliates or Representatives, so long as the source of such information was not known by you or any of your Affiliates to be bound by an obligation of confidentiality to the Company or any of its Affiliates regarding such information.
|
(d)
|
“Party” means you or the Company.
|
(e)
|
“Representatives” means, with respect to any Party, any of the Party’s, or any of the Party’s Affiliates’, directors, officers, board observers, managers, employees, lenders (current or prospective), agents, or advisers, including attorneys, accountants, consultants, bankers, and other financial advisers, in each case who have received Confidential Information.
|
2.
|
Confidentiality and Non-Disclosure Obligations.
|
(a)
|
You will, and will cause each of your Affiliates and Representatives to, keep all Confidential Information confidential. You will not, and will cause each of your Affiliates and Representatives not to, without the prior written consent of the Company:
|
(1)
|
disclose any Confidential Information, in any manner, in whole or in part; or
|
(2)
|
use any Confidential Information, other than in connection with considering a Transaction.
|
(b)
|
Moreover, you will disclose Confidential Information only to your Affiliates and Representatives who:
|
(1)
|
need to know such Confidential Information in connection with considering a Transaction; and
|
(2)
|
are informed by you of the confidential nature of such Confidential Information and of the restrictions on its disclosure and use.
|
3.
|
Permissible Contacts. You will not, and you will cause each of your Affiliates and Representatives not to, initiate or maintain contact (except in the ordinary course of business) with the Company or any of its Affiliates or Representatives regarding the business, operations, prospects, or finances of the Company or any of its Affiliates or any Transaction, except for the Company’s Interim Chief Executive Officer and such other persons as the Company or its Representatives may designate to you in writing.
|
4.
|
Return and Destruction of Confidential Information. Promptly upon the Company’s written request, you will either return to the Company or destroy all Confidential Information, and all copies thereof, except for the portion of Confidential Information that consists of Recipient Analyses. Recipient Analyses will be kept confidential pursuant to the terms hereof and retained by you or, at the written request of the Company (or at your election), immediately destroyed. Promptly following such request (or election), you will confirm such destruction to the Company in writing. Notwithstanding the return, retention, or destruction of such Confidential Information, you will continue to be bound by your obligations hereunder.
|
5.
|
Compelled Disclosure. Nothing herein precludes you or any of your Affiliates or Representatives from disclosing Confidential Information that you or such Affiliate or Representative is compelled to disclose under applicable legal requirement, stock exchange rule, or similar rule regarding the securities of you or such Affiliate, so long as the procedures in this Section 5 are satisfied. If you or any of your Affiliates or Representatives becomes so compelled to disclose any Confidential Information, then you will provide the Company with prompt written notice thereof and will reasonably cooperate, and cause such Affiliate or Representative (as applicable) to reasonably cooperate, with the Company, to the extent the Company reasonably requests, so that the Company may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If such protective order or other remedy is not obtained, or if the Company waives compliance with the provisions of this Agreement, then you will, and will cause such Affiliate or Representative (as applicable) to, furnish only that portion of such Confidential Information that is required to be furnished and exercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to such portion of Confidential Information.
|
6.
|
No Representations or Liability Regarding Confidential Information. Neither the Company nor any of its Affiliates or Representatives (a) makes any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information or (b) will have any liability to you or any of your Affiliates or Representatives relating to or resulting from the use of, or any error in, any Confidential Information or omission therefrom. Only representations or warranties made in a final definitive agreement regarding any Transaction contemplated hereby, when, as, and if executed, and subject to the limitations and restrictions stated therein, will have any legal effect.
|
7.
|
Trading of Securities. You hereby acknowledge that you are aware, and that each of your Affiliates and Representatives apprised of any of the matters herein have been or will be advised, that the Confidential Information may relate to publicly traded securities. You hereby acknowledge that you are aware of your, and that each of your Affiliates and Representatives apprised of any of the matters herein have been or will be advised of their, responsibilities under United States federal and state securities laws regarding trading in securities while in possession of material non-public information obtained from or on behalf of the issuer thereof and with respect to providing such information to other persons who purchase or sell securities of such issuer.
|
8.
|
Standstill.
|
(a)
|
For a period of six months following the date hereof, you will not, and you will cause each of your Affiliates and each of your or your Affiliates’ Representatives acting on your behalf or on behalf of other parties acting in concert with you who receive Confidential Information directly from you or at your direction not to, directly or indirectly:
|
(1)
|
acquire or agree, offer, seek, or propose to acquire (by merger, tender offer, purchase, or otherwise), ownership (including beneficial ownership as defined in Rule 13d-3 under the Exchange Act) of any of the Company’s assets, businesses, voting stock, or any rights or options to acquire such ownership (including from a third party), except pursuant to any proposal expressly solicited by the Interim Chief Executive Officer of the Company;
|
(2)
|
seek or propose to influence or control the management or policies of the Company or to obtain representation on the Company’s Board of Directors, or solicit proxies or consents with respect to any securities of the Company in connection with the election of directors;
|
(3)
|
make any other public announcement with respect to any of the foregoing or take any other intentional action that would reasonably be expected to require that the Company make a public announcement with respect to any of the foregoing; or
|
(4)
|
enter into any discussions, negotiations, arrangements, or understandings with any person (other than the Company or its Affiliates) with respect to any of the foregoing.
|
(b)
|
Notwithstanding anything to the contrary in Section 8(a), if after the date hereof the Company enters into an acquisition or business combination in which (1) the security holders of the Company would not own a majority of the surviving entity or (2) the Company is selling all or substantially all of the Company’s assets, then you shall be entitled to take any of the actions set forth in Section 8(a).
|
9.
|
Non-Solicitation. You will not, and you will cause each of your Affiliates and Representatives acting on your behalf or on behalf of other parties acting in concert with you who receive Confidential Information directly from you or at your direction not to, at any time during the period that begins on the date hereof and ends on the date that is one year after of the date hereof, directly or indirectly, (a) solicit to employ, or otherwise interfere with or disrupt any employment relationship (contractual or other) of, any individual who is now or later becomes an employee of the Company or any of its Affiliates, without the Company’s prior written consent; or (b) induce, influence or encourage any client, customer or other similar third party of the Company or any of its Affiliates (each, a “Customer”) to alter, terminate or breach its contractual or other business relationship with the Company or any of its Affiliates, or solicit business from any Customer.
|
10.
|
Process Determined by the Company. In its sole discretion and without prior notice, the Company may:
|
(a)
|
conduct any process for any transaction involving the Company and its Affiliates, including negotiating with any other persons and entering into a definitive agreement;
|
(b)
|
change or terminate such process; or
|
(c)
|
reject any and all proposals made by you or any of your Affiliates or Representatives regarding a Transaction.
|
11.
|
No Right to Receive Confidential Information or Negotiate. Nothing herein entitles you to receive any Confidential Information. The Company has the right not to make available any information, whether generally or in any instance. Nothing herein obligates either Party to enter into or continue any discussions or negotiations with, solicit or accept any proposal from, or enter into any definitive agreement with, the other Party.
|
12.
|
No Other Obligations or Claims. Except for the matters agreed to herein, unless and until a final definitive agreement between the Parties regarding a Transaction has been executed and delivered (or except as expressly provided in any binding written agreement that the Parties may enter into in the future), (a) neither Party will be under any legal obligation of any kind regarding a Transaction by virtue of this Agreement, and (b) no past or future act, omission, or course of conduct will give rise to, or serve as a basis for, any right, obligation or other liability of either Party regarding a Transaction.
|
13.
|
No Implied Waiver; Amendments. No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege hereunder. No provision in this Agreement can be waived or amended except in a writing signed by each Party.
|
14.
|
Severability.The provisions of this Agreement will, where possible, be interpreted and enforced so as to sustain their legality and enforceability and enforced to the fullest extent permissible under applicable law. If any provision hereof is adjudicated by a court of competent jurisdiction to be invalid or unenforceable, such provision will be deemed amended to the extent necessary to render such provision valid and enforceable and as close to the Parties’ intent as is permissible, such amendment to apply only regarding the operation of such provision in the jurisdiction in which such adjudication is made.
|
15.
|
Liability for Actions of Affiliates and Representatives.
|
(a)
|
You will be liable for each breach of this Agreement by any of your respective Affiliates or Representatives. Any act or failure to act by such an Affiliate or Representative that would be a breach of this Agreement if such Affiliate or Representative were a party to this Agreement, will be deemed such a breach.
|
(b)
|
Notwithstanding anything to the contrary contained herein, this Agreement shall in no way bind your portfolio companies (collectively, “Affiliated Entities”), including the officers, directors, and employees of such Affiliated Entities, that: (1) are not provided with and do not receive any Confidential Information; (2) do not have knowledge of your interest in the Transaction; and (3) are not acting at the direction of you or your Representatives based on Confidential Information or with respect to a Transaction.
|
16.
|
Injunctive Relief. You agree that irreparable injury may result to the Company or any of its Affiliates if you (or any of your Affiliates or Representatives) breach any provision hereof and that money damages may not be a sufficient remedy therefor. You therefore agree that if you engage, or cause or permit any other person to engage, in any act in breach of any provision hereof, then the Company will be entitled to seek, in addition to all other remedies, damages and relief available under applicable law, an injunction prohibiting you (or such other person) from engaging in any such act or specifically enforcing this Agreement without proof of actual damages, and that you waive (and will use your best efforts to cause your Affiliates and Representatives to waive) any requirement for the securing or posting of any bond.
|
17.
|
Governing Law and Forum.
|
(a)
|
This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to principles of conflicts of law.
|
(b)
|
Each Party hereby irrevocably submits to the exclusive jurisdiction of any state or federal court sitting in the State of Texas in any action, suit, or proceeding arising out of or relating to this agreement. Each Party hereby irrevocably waives the defense of an inconvenient forum to the maintenance of such an action, suit, or proceeding.
|
18.
|
Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes all prior agreements or understandings between the Parties with respect thereto.
|
19.
|
Successors; Assignment. Neither this Agreement nor any of the rights, interests, or obligations hereunder may be assigned by either Party (whether by operation of law or otherwise) without the prior written consent of the other Party.
|
20.
|
Term. Except as otherwise provided herein, this Agreement shall terminate two years following the date hereof.
|
21.
|
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which will constitute the same agreement.
|
22.
|
Certain Other Terms. The headings herein are for convenience only and will not affect the meaning or construction of any provision hereof. Except as may be otherwise expressly provided herein, the following rules of interpretation apply hereto:
|
(a)
|
the singular includes the plural and vice versa;
|
(b)
|
“or” and “any” are not exclusive;
|
(c)
|
“includes,” “include,” “included,” and “including” are deemed to be followed by “without limitation”;
|
(d)
|
“person” includes any individual, trust, corporation, partnership, limited liability company, joint venture, other business association or entity, court or other tribunal, government or governmental body, division, agency or other governmental unit; and
|
(e)
|
the words “hereby,” “herein,” “hereunder,” “hereof,” and words of similar import refer to this Agreement as a whole and not merely to the specific section or clause in which any such word appears.
|
GLOBALSCAPE, INC.
|
| |
|
|||
|
| |
|
| |
|
By:
|
| |
/s/ Robert Alpert
|
| |
|
Its:
|
| |
Interim CEO
|
| |
|
May 2nd, 2019
|
| |
|
|||
|
| |
|
| |
|
By:
|
| |
/s/ Wes Fredenburg
|
| |
|
Its:
|
| |
General Counsel
|
| |
|
|
| |
GLOBALSCAPE, INC.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/s/ Robert Alpert
|
|
| |
|
| |
Name: Robert Alpert
|
|
| |
|
| |
Title: Chief Executive Officer
|
|
| |
HELPSYSTEMS, LLC
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/s/ Wes Fredenberg
|
|
| |
|
| |
Name: Wes Fredenburg
|
|
| |
|
| |
Title: General Counsel
|