Exhibit 10.2


 


 


AMENDED
AND RESTATED


SEVERANCE
AGREEMENT


 


THIS AMENDED AND
RESTATED SEVERANCE AGREEMENT (the “Agreement”), is made and entered into this 3rd
day of December, 2004 (the “Effective Date”) by and between Vastera, Inc., a
Delaware corporation with its principal place of business at 45025 Aviation
Drive, Dulles, VA  20166 (“Vastera” or the “Company”), and Maria
Henry (“Henry”
or the “Employee”).


RECITALS


WHEREAS, Employee
has been, and is currently, employed by the Company in a critical managerial
position with the Company;


WHEREAS, Employee
is currently employed by the Company on an at-will basis;


WHEREAS, Vastera
and Employee executed the initial Severance Agreement on February 13, 2004; and


WHEREAS, the
Company believes it to be in the best interest of the Company to modify and
increase the Severance Amount to be paid to the Employee to provide a greater
incentive to the Employee to remain employed by the Company for a period of
time sufficient to enable the Company to execute upon its long-range business
plans.


AGREEMENT


NOW, THEREFORE, in
consideration of the mutual covenants and promises contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:


1.             Employment.  The Company hereby agrees to continue
Employee’s current employment as its Chief Financial Officer unless terminated
earlier in accordance with provisions contained herein below.  The Employee shall be based at the Company’s
headquarters in Dulles, Virginia or such other place within a 40-mile radius
thereof, as may be reasonably requested by the Company.  The Employee shall be subject to the
supervision of, and shall have such authority as is delegated to her by, the
Chief Executive Officer or the Board of Directors (the “Board”), as the case
may be.


2.             Effect of Termination.


2.1                                 Termination at the Election of the
Company or the Employee for Good Reason.


If the Employee’s
employment is terminated:


 





















 


(i)                                 other than for cause (as defined hereinbelow) by the Company; or


(ii)                              by the Employee for good reason (as defined hereinbelow).


the Company shall
pay to Employee an aggregate severance amount of $750,000 (the “Severance Amount”).  The payment of the Severance Amount shall be
made in a single lump sum, and such payment shall be contingent upon the
Employee signing a Release and Waiver Agreement substantially in the form
attached hereto as Exhibit A.  In
addition to the Severance Amount, the Company shall provide Employee with full
medical, dental, and vision benefits through the sixth full month following the
date of Employee’s termination.


For the purposes
of this Section 2.1, termination “for cause” shall be deemed to exist upon:


(a)          the conviction of the Employee of, or the entry of a
pleading of guilty or nolo contendere by the Employee to, any crime involving
moral turpitude that may reasonably adversely reflect on the Company or any
felony;


(b)   willful misconduct in connection with the Employee’s
duties or willful failure to use reasonable effort to perform substantially her
responsibilities in the best interest of the Company (including, without
limitation, breach by the Employee of this Agreement), except in cases
involving the mental or physical incapacity or disability of the Employee; provided
however, that the Company may terminate the Employee’s employment
pursuant to this subsection (b) only after the failure by the Employee to
correct or cure, or to commence and continue to pursue the correction or curing
of, such refusals within 30 days after receipt by the Employee of written
notice by the Company of each specific claim of any such misconduct or
failure.  The Employee shall have the
opportunity to appear before the Board to discuss such written notice during
such 30-day period.  “Willful misconduct”
and “willful failure to
perform” shall not include actions or inactions on the part of
the Employee that were taken or not taken in good faith by the Employee; and


(c)          fraud, material dishonesty, or gross misconduct in
connection with the Company perpetuated by the Employee.


For the purposes
of this Section 2.1, “good
reason” shall be deemed to exist when there occurs: ( (A) any
reduction in the Employee’s level of compensation without the approval of the
Employee; (B) a difference in professional opinion between Employee and the
President and CEO regarding including or excluding disclosure in the Company’s
financial statements regarding some item or event such that the Employee
believes certifying the financial statements would be a violation of federal
securities laws; or (C) a transfer of the Employee’s work location for


 


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purposes of
performing her duties hereunder to a location that is beyond a 40-mile radius
from the Company’s current headquarters location in Dulles, Virginia.


2.2           Change of Control Event.


If


(i)                         a Change of Control Event
(as defined hereinbelow) occurs and


(ii)                      the Employee’s employment with the
Company following such Change of Control Event is maintained for a period of 3
months (such 3-month period of time being referred to as the “Initial Retention
Period”),


the Employee shall
have the option to terminate her employment without good reason
during the period that commences on the expiration of the Initial Retention Period
described in subcaluse (ii) above and expires 30 days thereafter (the “Window Period”); provided, however,
that the Employee must deliver to the Company no less than two weeks’ advance
written notice of her election to terminate her employment during the Window
Period under this Section 2.2.  Such
two-week’s advance notice may be delivered prior to the expiration of the
Initial Retention Period  If the Employee
terminates her employment without good reason
at anytime during the Window Period with the requisite two weeks’ advance
written notice, the Company shall be required to pay the Severance Amount and
honor all other terms and conditions of this Agreement.


The foregoing
option shall lapse upon the expiration of such 30-day period, and the terms and
conditions of this Agreement shall cease to be operative and of no further
force and effect.


2.3           Extension of Option Exercise
Period; Acceleration of Option Vesting.


(a)  Notwithstanding anything to the contrary
contained in the exercise provisions of any of Employee’s existing agreements
governing the granting and exercising of options to purchase shares of the
Company’s Common Stock, irrespective of whether such options are incentive
stock options (“ISO”s)
or nonstatutory stock options (“Nonquals”) or any such agreements executed by the
Employee and the Company subsequent to the Effective Date, the Company agrees
that Employee shall have six months from the Employee’s termination date in
which to exercise all options that are vested as of the date upon which
Employee’s employment was terminated, subject to any trading window
requirements or other restrictions imposed under the Company’s insider trading
policy.  This subsection 2.3(a) hereby
(i) amends and shall be deemed an amendment to the exercise provisions of each and
every existing agreement of


 


3





















 


Employee’s
governing the granting and exercising of options (both ISO and Nonqual) and
(ii) unless this Agreement is amended to the contrary, is deemed incorporated
by reference into any agreement between the Employee and the Company governing
the granting and exercising of options (both ISO and Nonqual) executed
subsequent to the date hereof, as though such provision were restated therein
in their entirety.


(b)  Notwithstanding anything to the contrary
contained in the exercise provisions of any of Employee’s existing agreements
governing the granting and exercising of ISOs and Nonquals or any such
agreements executed by the Employee and the Company subsequent to the Effective
Date, if during the period of time during which Employee is employed by the
Company a Change of Control Event (as defined below) occurs, 100% of the
unvested portion of all options held by Employee as of the date of Change of
Control Event shall be deemed vested and Employee shall be entitled to exercise
such options during the time period described in subsection 2.3(a).  For purposes of this section 2.3(b) a “Change of Control Event”
shall be deemed to exist if there occurs either:


(i)                                     a merger or
consolidation in which securities possessing more than fifty percent (50%) of
the total combined voting power of the Company’s outstanding securities are
transferred to a person or persons different from the persons holding those
securities immediately prior to such transaction, or


(ii)                                  the sale,
transfer or other disposition of all or substantially all of the Company’s
assets in complete liquidation or dissolution of the Company.


3.                             Gross Up for Tax
Treatment.  The Company agrees that
if


(a)           because of the operation of any of
the provisions of this Agreement, the payments to be made to Employee and the
acceleration of option vesting hereunder are deemed “golden parachute payments”
under the Internal Revenue Code of 1984, as amended, and


(b)           Employee is obligated to pay an
excise tax associated with such golden
parachute payments,


the Company shall
reimburse the Employee in full for both (i) the amount of any such excise tax
owed upon such golden parachute payments and (ii) any excise or ordinary income
taxes owed in connection with the payment of the amount described in the
preceding clause (i) (such payments being referred to as the “gross up amounts”).


 


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4.             Entire Agreement.  This Agreement and the exhibits hereto
constitutes the entire agreement between the parties and supersedes all prior
agreements and understandings, whether written or oral, relating to the subject
matter of this Agreement.


5.             Amendment.  This Agreement may be amended or modified
only by a written instrument executed by both the Company and the Employee.


6.             Governing Law.  This Agreement shall be construed,
interpreted and enforced in accordance with the laws of the Commonwealth of
Virginia.


7.             Successors and Assigns.  This Agreement shall be binding upon and
inure to the benefit of both parties and their respective successors and
assigns, including any corporation with which or into which the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Employee are personal and shall not be assigned by him.


8.             Waiver of Jury  Trial.  The parties agree that they have waived their
right to a jury trial with respect to any controversy, claim, or dispute
arising out of or relating to this Agreement, or the breach thereof, or arising
out of or relating to the employment of the Employee, or the termination
thereof, including any claims under federal, state, or local law, and that any
such controversy, claim, or dispute shall be heard and adjudicated at a bench
trial in the state courts of the Commonwealth of Virginia, in Fairfax County.


{Signatures on following page.}


 


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IN WITNESS
WHEREOF, the parties hereto have executed this Severance Agreement as of the
day and year set forth above.


 


 


	
  VASTERA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
   

  
	
   

  	
  Timothy A. Davenport

  
	
   

  	
  President and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
   

  
	
   

  	
  Brian D. Henderson

  
	
   

  	
  Chief Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
  EMPLOYEE

  
	
   

  	
   

  
	
   

  
	
  Maria Henry

  
			



 


 


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