Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


This
Employment Agreement (“Agreement”), executed as of January 1, 2008 (“Effective
Date”), is between GlobalSCAPE, Inc., a Delaware corporation (“GlobalSCAPE”
or the “Company”), and                                         
(“Employee”).


 


RECITALS


 


WHEREAS, the
Board of Directors (the “Board”) of the Company, has determined that appropriate
steps should be taken to reinforce and encourage the continued attention and
dedication of certain employees to their assigned duties; and


 


WHEREAS, in
order to induce Employee to remain in the employ of the Company, and in consideration
of Employee’s agreement to continue employment with the Company, the parties
desire to enter into this Agreement.


 


NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth, the parties hereto agree as follows:


 


1.             Terms of Agreement.  Except in the event of a Change in Control (as
defined in Section 4 hereof), at all times Employee’s employment shall
be and remain at will and may be terminated by the Company for any reason
without notice or Cause (as hereinafter defined).  From and after the occurrence of a Change in Control,
this Agreement shall continue in effect for a period beginning on the effective
date of the Change in Control (the “Change in Control Date”) and ending on the
first anniversary of the Change in Control Date (the “Initial Term”) and shall
automatically be extended for an additional one-year period following the
Initial Term (each, an “Extended Term” and collectively with the Initial Term,
the “Term”) unless, not later than 90 days prior to the end of the then current
Term, the Company shall have given notice to Employee that it does not wish to
extend the Term.


 


2.             Position.  Employee agrees to be a full-time employee of
the Company serving in the position of                                         ,
to devote substantially all of his working time and attention to the business
and affairs of the Company and, to the extent necessary to discharge the responsibilities
associated with his position, to use his best efforts to perform faithfully and
efficiently such responsibilities.  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 Board.


 


3.             Compensation.  As compensation for his services under this
Agreement, Employee shall be entitled to receive base salary and other compensation
to be determined from time to time by the Board in its sole discretion.  In addition, Employee shall be entitled to
participate in any additional bonus, incentive compensation or employee benefit
arrangement which may be established from time to time by the Company in its
sole discretion.  Notwithstanding
anything to the contrary provided in this Agreement, prior to a Change in Control
Employee shall not be entitled to receive any compensation from the Company upon
termination, voluntary or involuntary, of his employment with the Company, regardless
of the reason for such termination.


 


 


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4.             Change in Control.  For purposes of this Agreement, a Change in Control
shall be deemed to have occurred if (a) any “person” or “group” (as such terms
are used in Section 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended, (the “Exchange Act”)) is or becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act as in effect on the date
hereof, except that a person shall be deemed to be the “beneficial owner” of all
shares that any such person has the right to acquire pursuant to any agreement or
arrangement or upon exercise of conversion rights, warrants, options or
otherwise, without regard to the sixty day period referred to in such Rule),
directly or indirectly, of securities representing 50% or more of the combined voting
power of GlobalSCAPE’s then outstanding securities, (b) any person or
group shall make a tender offer or an exchange offer for 50% or more of the combined
voting power of GlobalSCAPE’s then outstanding securities, (c) at any time
during any period of two consecutive years (not including any period prior to
the execution of this Agreement), individuals who at the beginning of such period
constituted the board of directors of GlobalSCAPE and any new directors, whose
election by the board of directors of GlobalSCAPE or nomination for election by
GlobalSCAPE’s stockholders was approved by a vote of at least two-thirds (2/3)
of GlobalSCAPE’s directors then still in office who either were GlobalSCAPE’s directors
at the beginning of the period or whose election or nomination for election was
previously so approved (“Current Directors”), cease for any reason to
constitute a majority thereof, (d) GlobalSCAPE shall consolidate, merge or
exchange securities with any other entity and the stockholders of GlobalSCAPE immediately
before the effective time of such transaction do not beneficially own, immediately
after the effective time of such transaction, shares or other equity interests entitling
such stockholders to a majority of all votes (without consideration of the
rights of any class of stock or other equity interests entitled to elect
directors by a separate class vote) to which all stockholders of the
corporation or owners of the equity interests of any other entity issuing cash
or securities in the consolidation, merger or share exchange would be entitled
for the purpose of electing directors or where the Current Directors immediately
after the effective time of the consolidation, merger or share exchange would
not constitute a majority of the board of directors or similar governing body of
the corporation or other entity issuing cash or securities in the consolidation,
merger or share exchange, or (e) any person or group acquires 50% or more
of GlobalSCAPE’s assets.


 


Notwithstanding
the foregoing, however, a Change in Control shall not be deemed to occur merely
by reason of an acquisition of GlobalSCAPE securities by, or any consolidation,
merger or exchange of securities with, any entity that, immediately prior to
such acquisition, consolidation, merger or exchange of securities, was a “subsidiary,”
as such term is defined below.  For these
purposes, the term “subsidiary” means (i) any corporation, limited
liability company or other entity of which 80% of the capital stock or other
equity interests of such entity is owned, directly or indirectly, by GlobalSCAPE
and (ii) any unincorporated entity in respect of which GlobalSCAPE has, directly
or indirectly, an equivalent degree of ownership.


 


5.             Termination of Employment Following
Change in Control.  Prior to a Change
in Control, Employee’s employment shall remain at will and may be terminated by
the Company for any reason without notice or Cause.  From and after a Change in Control, Employee shall
be entitled to the benefits provided in Section 6 hereof upon the
subsequent termination of his employment during the Term unless such
termination is because of Employee’s death or Retirement, by the Company for
Cause or Disability, or by Employee other than for Good Reason.


 


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(a)           Disability.  Termination by the Company or by Employee of his
employment based on “Disability” shall be deemed to have occurred where within
thirty (30) days after written Notice of Termination (as hereinafter defined)
is given, Employee shall not have returned to the full-time performance of his duties.  For purposes hereof, “Disability” shall be
deemed to exist if Employee (A) meets the definition of either “totally
disabled” or “total disability” (or terms with like meaning) under the terms of
the Company’s long-term disability benefit program, and (B)  is suffering
from any medical or mental condition that in the Board’s reasonable opinion
would prevent him from carrying out his normal duties. Any refusal to submit to
a reasonable medical examination by an independent physician to determine
whether Employee is so totally disabled shall be deemed to constitute
conclusive evidence of his disability. The determination of such physician made
in writing to the Company and to Employee shall be final and conclusive for all
purposes of this Agreement.


 


(b)           Retirement.  Termination by the Company or Employee of his
employment based on “Retirement” shall mean termination in accordance with the
Company’s retirement policy, generally applicable to its salaried employees or in
accordance with any retirement arrangement established with Employee’s consent.


 


(c)           Cause.  Termination by the Company of Employee’s employment
for “Cause” shall mean termination upon (i) the willful and continued failure
by Employee to substantially perform his duties with the Company (other than
any such failure resulting from his incapacity due to Disability or any such actual
or anticipated failure resulting from termination by Employee for Good Reason)
after a written demand for substantial performance is delivered to Employee by
the Board, which demand specifically identifies the manner in which the Board
believes that Employee has not substantially performed his duties; (ii) the
willful engaging by Employee in conduct which is demonstrably and materially
injurious to the Company or any of its affiliates, monetarily or otherwise; (iii) Employee
commits fraud, bribery, embezzlement or other material dishonesty with respect
to the business of the Company or any of its affiliates, or the Company
discovers that Employee has committed any such act in the past with respect to
a previous employer; (iv)  Employee is indicted for any felony or any
criminal act involving moral turpitude, or the Company discovers that Employee
has been convicted of any such act in the past; (v) Employee commits a
material breach of any of the covenants, representations, terms or provisions of
this Agreement; (vi) Employee violates any instructions or policies of the
Company with respect to the operation of its business or affairs; or (viii) Employee
uses illegal drugs.  For purposes of this
Subsection, no act, or failure to act, on Employee’s part shall be deemed “willful”
unless done, or omitted to be done, by Employee not in good faith and without
reasonable belief that his action or omission was in the best interest of the
Company and its affiliates.  Notwithstanding
the foregoing, Employee shall not be deemed to have been terminated for Cause
unless and until 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 was guilty of conduct set forth above
in clauses (i) through (viii) of the first sentence of this Subsection
and specifying the particulars thereof in detail.


 


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(d)           Good Reason.  For purposes of this Agreement, “Good Reason”
shall mean, without Employee’s express written consent, either:


 


(i)            the material failure by the Company,
without Employee’s consent, to pay to Employee any portion of his current
compensation within ten (10) days of the date any such compensation
payment is due; or


 


(ii)           the Company commits a material breach
of any of the covenants, representations, terms or provisions of this Agreement.


 


Employee must provide notice to
the Company within 90 days of the initial existence of the condition giving
rise to “Good Reason”.  Upon the receipt
of such notice, the Company shall have 30 days to remedy the condition giving
rise to “Good Reason”.  After a Change in
Control, if Employee terminates employment with the Company after such
condition giving rise to “Good Reason” is remedied, Employee will not be
entitled to the benefits under Section 6(d).


 


(e)           Notice of Termination.  Prior to a Change in Control, Employee may be terminated
with or without notice, with or without Cause or for any other reason as Employee’s
employment is at will.  From and after a
Change in Control, any purported termination of Employee’s employment by the Company
or by Employee shall be communicated by written notice to the other party hereto
in accordance with Section 8 hereof (“Notice of Termination”).  Such Notice of Termination shall indicate the
specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Employee’s employment under the provisions so indicated.


 


(f)            Date of Termination, Etc.  Prior to a Change in Control, “Date of Termination”
shall mean the date Employee’s employment is terminated.  From and after a Change in Control, “Date of Termination”
shall mean (i) if Employee’s employment is terminated for Disability, thirty
(30) days after Notice of Termination is given (provided that Employee shall
not have returned to the full-time performance of his duties during such thirty
(30) day period), or (ii) if Employee’s employment is terminated pursuant
to Subsections 5(c) or 5(d) above or for any other
reason (other than Disability), the date specified in the Notice of Termination
as the date on which it is reasonably anticipated that no further services
would be performed by Employee for the Company, as an employee or independent
contractor (which, in the case of a termination pursuant to Subsection 5(d) above,
shall not be less than two (2) weeks nor more than two (2) months from
the date such Notice of Termination is given).


 


6.             Compensation Upon Termination or
During Disability.  Prior to a Change
in Control, Employee shall not be entitled to any benefits upon termination of
Employee’s employment.  From and after a Change
in Control, upon termination of Employee’s employment or during a period of Disability,
Employee shall be entitled to the following benefits:


 


(a)           During any period that Employee fails
to perform his full-time duties with the Company as a result of his Disability,
Employee shall continue to receive his base salary at the rate in effect at the
commencement of any such period, together with all compensation payable to Employee
under the Company’s disability plan or other plan during such period, until
this Agreement is terminated pursuant to Subsection 5(a) hereof. Thereafter,
Employee shall be 


 


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provided with disability benefits
that shall be no less than the benefits that Employee would have been entitled
to pursuant to the Company’s long-term disability plan as in effect immediately
prior to a Change in Control.


 


(b)           If Employee’s employment shall be
terminated by the Company for Cause or by Employee other than for Good Reason,
Disability, death or Retirement, the Company shall pay Employee his full base
salary through the Date of Termination at the rate in effect at the time Notice
of Termination is given and any amounts to be paid to him pursuant to the Company’s
retirement and other benefits plans of the Company then in effect, and the
Company shall have no further obligations to Employee under this Agreement.


 


(c)           If Employee’s employment shall be
terminated by the Company or by Employee for Retirement, or by reason of Employee’s
death, Employee’s benefits shall be determined in accordance with the Company’s
retirement, benefit and insurance programs then in effect.


 


(d)           If Employee’s employment by the
Company shall be terminated by the Company other than for Cause and other than
because of Employee’s death, Disability or Retirement or by Employee for Good Reason
then, effective as of the Date of Termination, in lieu of any severance benefits
which he otherwise would be eligible to receive under the Company’s severance plan
or policy as in effect immediately prior to the Change in Control, Employee shall
be entitled to the benefits provided below:


 


(i)            The Company shall pay Employee his full
base salary through the Date of Termination at the rate in effect at the time
the Notice of Termination is given, plus all other amounts to which Employee is
entitled under any compensation or benefit plan of the Company (excluding any
severance benefits under the Company’s severance plan or policy) at the time
such payments are due under the terms of such plans.


 


(ii)           In lieu of any further salary payments
to Employee for periods subsequent to the Date of Termination, the Company
shall pay to Employee, not later than the fifth (5th) day following the Date of
Termination, a lump sum payment equal to the remainder of his annual base
salary for the then current Term.


 


(iii)          Notwithstanding any other provision of
this Agreement, if any amount payable hereunder (“Payments”) would, individually
or together with any other amounts paid or payable, constitute an “excess parachute
payment,” within the meaning of Section 280G of the Internal Revenue Code
of 1986 and any applicable regulations thereunder (the “Code”) which would
require the payment by Employee of the excise tax imposed by Section 4999
of the Code or any interest or penalty (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the “Excise
Tax”), then he shall be entitled to receive an additional Payment (the “Gross-Up
Payment”) in an amount such that after the payment by Employee of all taxes (including
any interest or penalties imposed with respect to such taxes) including,
without limitation, any income taxes (and any interest and penalties with respect
thereto) and the Excise Tax imposed upon the Gross-Up Payment, Employee shall
retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the total Payments to be received by Employee pursuant to this Agreement.  The determination of whether the Gross-Up 


 


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Payment shall be paid shall be
made by a nationally recognized accounting firm selected by Employee and such
determination shall be binding upon him and the Company for purposes of this Agreement.
 The costs and expenses of such accounting
firm shall be paid by the Company.


 


(e)           Except as specifically provided in
this Section 6, Employee shall not be required to mitigate the
amount of any payment provided for in this Section 6 by seeking
other employment or otherwise, nor shall the amount of any payment or benefit
provided for in this Section 6 be reduced by any compensation earned
by him as the result of employment by another employer or by retirement benefits
after the Date of Termination, or otherwise.


 


(f)            In the event that any payments under
this Section 6 or elsewhere in this Agreement are determined to be subject
to Section 409A of the Code, and Employee is a “specified employee” as
defined in Section 409A(a)(2)(B)(i) of the Code and Treasury
Regulation §1.409A-1(i), no such payments shall be made prior to the date that
is six months following the Date of Termination.


 


(g)           Employee acknowledges and agrees that
(i) Employee is solely responsible for all obligations arising as a result
of the tax consequences associated with payments under this Agreement,
including without limitation, any taxes, interest or penalties associated with Section 409A
of the Code, (ii) Employee is not relying upon any written or oral
statement or representation the Company, any of its Affiliates, or any of their
respective employees, directors, officers, attorneys or agents (collectively,
the “Company Parties”) regarding the tax effects associated with the execution
of the this Agreement and the payment under this Agreement, and (iii) in
deciding to enter into this Agreement, Employee is relying on his or her own
judgment and the judgment of the professionals of his or her choice with whom
Employee has consulted.  Employee hereby
releases, acquits and forever discharges the Company Parties from all actions,
causes of actions, suits, debts, obligations, liabilities, claims, damages,
losses, costs and expenses of any nature whatsoever, known or unknown, on
account of, arising out of, or in any way related to the tax effects associated
with the execution of this Agreement and any payment under the Agreement.


 


7.             Successors; Binding Agreement.
 (a)  The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Such assumption and agreement shall be obtained prior to the effectiveness
of any such succession.  As used in this Agreement,
“Company” shall mean the Company as herein before defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.  Prior to a Change in Control, the term “Company”
shall also mean any affiliate of the Company to which Employee may be
transferred and Company shall cause such successor employer to be considered the
“Company” bound by the terms of this Agreement and this Agreement shall be
amended to so provide.  Following a
Change in Control the term “Company” shall not mean any affiliate of the Company
to which Employee may be transferred unless Employee shall have previously approved
of such transfer in writing, in which case the Company shall cause such successor
employer to be considered “Company” bound by the terms of this Agreement and
this Agreement shall be amended to so provide.


 


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(b)           This Agreement shall inure to the
benefit of and be enforceable by Employee’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.  If Employee should die while any amount would
still be payable to Employee hereunder if he had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to his devisee, legatee or other designee or, if there is no
such designee, to his estate.


 


8.             Notice.  For the purpose of this Agreement, notices and
all other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth below, or to such other address as either party may have
furnished to the other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt:


 


If to Employer or GlobalSCAPE,
to:


 


GlobalSCAPE, Inc.

Attn:  Board of Directors and President

6000 Northwest Parkway, Suite 100

San Antonio, Texas  78249

Facsimile: (210) 690-8824


 


If to Employee, to Employee’s
last known address appearing on Employer’s records


 


9.             Miscellaneous.  No provision of this Agreement shall be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by Employee and such officer as may be
specifically designated by the Board.  No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.  No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.  Whenever the context requires, the gender of
all words used in this Agreement shall include the masculine, feminine and
neuter and the number of all words shall include the singular and plural. THE VALIDITY,
INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF TEXAS.


 


10.           Validity.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.


 


11.           Counterparts.  This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.


 


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12.           Arbitration.  THIS AGREEMENT IS SUBJECT TO ARBITRATION UNDER
THE FEDERAL ARBITRATION ACT.  Employee, the
Company and GlobalSCAPE agree that the exclusive method of resolving any
dispute relating to this Agreement, the employment relationship between
Employee and the Company, the fulfillment of obligations under this Agreement,
the enforceability of this Agreement, or any other disputes between the
parties, shall be by binding arbitration under the Employment Arbitration rules of
the American Arbitration Association, or as may be agreed upon by Employee, the
Company and GlobalSCAPE in writing. 
Judgment may be entered on the arbitrator’s award in any court having
jurisdiction; provided, however, that Employee shall be entitled to seek
specific performance of his right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in
connection with this Agreement.


 


13.           Entire Agreement.  This Agreement contains the entire agreement
by the parties with respect to the matters covered herein and supersedes any
prior agreement (including, without limitation, any prior employment or
severance agreement), condition, practice, custom, usage and obligation with
respect to such matters insofar as any such prior agreement, condition, practice,
custom, usage or obligation might have given rise to any enforceable right.


 


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EXECUTED as of the date first above written.


 


	
   

  	
  GLOBALSCAPE,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Charles R. Poole

  
	
   

  	
  President & CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
    Printed Name:

  



 


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