Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


This
Employment Agreement (“Agreement”),
dated as of October 6, 2008 (“Effective Date”)
by and between GlobalSCAPE, Inc., a Delaware corporation (“Employer” or the “Company”), and
Craig Robinson (“Employee”).


 


R E C I T A L S:


 


WHEREAS,
Employer desires to employ Employee as its Chief Operating Officer;


 


WHEREAS,
the Employer considers the maintenance of a sound management team, including
Employee, essential to protecting and enhancing its best interests and those of
its stockholders.


 


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


 


Section 1.              Employment.  Employer hereby employs Employee, and
Employee hereby accepts employment, upon the terms and subject to the terms and
conditions of this Agreement.  Unless
otherwise consented to by Board of Directors, Employee’s principal place of
employment shall be at the Company’s headquarters in San Antonio, Texas.


 


Section 2.              Duties.  During the Term (as defined below), Employee
shall be employed as Chief Operating Officer of Employer.  Employee shall report to the Chief Executive
Officer of Employer.  Employee agrees to
diligently and honestly exercise his business judgment in the discharge of the
duties as are customary to this position as those duties are determined from
time to time by the Board of Directors of the Employer (the “Board”) and to fully comply with all laws
and regulations pertaining to the performance of this Agreement, all ethical rules,
Employer’s Code of Business Conduct & Ethics for Members of the Board
of Directors and Executive Officers as well as any and all of policies,
procedures and instructions of the Company including, but not limited to, the
provisions of Section 304 of the Sarbanes-Oxley Act of 2002.  Employee agrees to devote his full work time
and best efforts to the performance of the duties as an employee of Employer; provided, however, that Employee shall not be precluded from engaging in non-profit activities
(such as serving on the boards of trade and industry associations, or
religious, charitable or other community organizations), as long as such
activities do not unreasonably interfere with Employee’s duties and
responsibilities as Chief Operating Officer of
Employer.  Employee will not, during the
Term, directly or indirectly, engage in any other business, either as an
employee, employer, consultant, principal, officer, director, advisor, or in
any other capacity, either with or without compensation, without the prior
written consent of the Employer. 
Employee shall also comply with all reasonable rules and
regulations and policies now in effect or as subsequently modified, governing
the conduct of Employer’s employees, including policies relating to insider
trading and reporting obligations intended to comply with the Securities
Exchange Act of 1933.


 


Section 3.              Term.  The term of employment of Employee hereunder
shall be two (2) years from the date hereof (the “Term”). 
This Agreement may be terminated prior to the end of the Term pursuant
to Section 6 below.


 

















 


Section 4.              Compensation
and Benefits.  In
consideration for the services of Employee hereunder, Employer shall compensate
Employee as follows:


 


(a)           Base Salary.  Until the termination of Employee’s employment
hereunder (but subject to any severance or other payment to which Employee may
be entitled pursuant to this Agreement or otherwise following termination of
his employment), Employer shall pay Employee a base salary of $180,000 annually
(the “Base Salary”), payable in
accordance with the regular payroll practices of Employer for executives, less
such deductions or amounts as are required to be deducted or withheld by
applicable laws or regulations and less such other deductions or amounts, if
any, as are authorized in writing by Employee. 
Such Base Salary shall be reviewed at least annually by the Compensation
Committee of the Board (the “Committee”),
and may be increased in the sole discretion of the Committee, but not decreased
(any increased amount thereupon being the Base Salary hereunder).


 


(b)           Incentive Compensation.  For each fiscal year of the Company which
ends during the Term, beginning with the fiscal year ending December 31,
2009, Employee shall be eligible to receive an annual cash bonus of up to 50%
of the Base Salary (the “Annual Bonus”),
as recommended and approved by the Committee, if the Company and Employee, as
applicable, achieve the performance targets set by the Committee and
communicated to the Employee.  Incentive
Compensation shall be paid (i) in accordance with, and subject to those
terms and conditions of, the Company’s annual incentive compensation plan which
are administrative or which are required for compliance with Section 162(m) of
the Internal Revenue Code of 1986 (the “Code”);
provided that nothing in the Company’s plan shall apply adversely with respect
to Employee to the extent inconsistent with the express terms of this
Agreement; and (ii) in no event later than the 15th day of the third month
following the end of the taxable year (of the Company or Employee, whichever is
later) in which the performance targets have been achieved.   Employee shall be required to repay any
after-tax portion of Annual Bonus received in respect of any year in which
there is an accounting restatement due to the material noncompliance of the
Company with any financial reporting requirement under the securities laws as a
result of misconduct.


 


(c)           Sign-On Bonus.  Within one week of execution and delivery of
this Agreement in lieu of an Annual Bonus for the fiscal year ending December 31,
2008, the Company shall pay Employee a one-time bonus of $30,000, less such
deductions or amounts as are required to be deducted or withheld by applicable
laws or regulations.


 


(d)           Stock Option Plan.  Employee shall be granted options to purchase
300,000 shares of common stock, par value $0.001 per share, of Employer (“Stock Options”), under the GlobalSCAPE, Inc.
2000 Stock Option Plan (the “Plan”)
and pursuant to the terms of the Stock Option Agreement in substantially the
form used by Employer in connection with the grant of stock options to their
officers and executives, a copy of which is attached as Exhibit A
hereto.  The per share exercise price
under the Stock Option shall equal the price established pursuant to the Plan.


 


(e)           Paid Time Off.  Employee shall be entitled to vacation and
other paid time off in accordance with Employer’s policies for officers and
executives, as they may be modified from time to time during Employee’s
employment hereunder, provided that Employee will have no 


 


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less than fifteen (15) days of paid vacation
during each year of this Agreement, six (6) days of paid sick leave, and
three (3) days of personal leave during each one year term accruing
bi-weekly.  Additionally, Employer agrees
that 10 days of paid vacation shall be deemed accrued as of the Effective Date
of this Agreement.  Vacation and personal
days shall be scheduled in advance and must be taken at such time or times as
approved by the Board.


 


(f)            Group Insurance and
Other Benefits.  Employee
shall be entitled to receive the same benefits Employer makes generally
available to their officers and executives, including, without limitation,
participation in Employer’s group health, life and disability programs, and
Employee’s entitlement to and participation in such benefits programs shall be
at the same rates which are available to Employer’s other executives and
officers.


 


(g)           Savings Plans.  Employee shall be entitled to participate
in Employer’s 401(k) plan, or other retirement or savings plans as are
made available to Employer’s other executives and officers and on the same
terms which are available to Employer’s other executives and officers.


 


Section 5.              Expenses.  Employer will reimburse Employee for expenses
related to the performance of his duties in accordance with its reimbursement
policies for executives and officers in effect from time to time.


 


Section 6.              Defined
Terms Relating to Termination.  The following capitalized terms used in this
Agreement shall have the meanings set forth in this Section 6:


 


(a)           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 Employer’s then outstanding securities; provided,
however, that if Thomas W. Brown and/or David Mann acquire, directly or
indirectly, securities representing 50% or more of the combined voting power of
Employer’s then outstanding securities it shall not be deemed a Change in
Control, (b) any person or group (other than Thomas W. Brown or David Mann
or entities controlled by either) shall make a tender offer or an exchange
offer for 50% or more of the combined voting power of Employer’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 Employer and any new directors, whose election by the
board of directors of Employer or nomination for election by Employer’s
stockholders was approved by a vote of at least two-thirds (2/3) of Employer’s
directors then still in office who either were Employer’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) Employer shall
consolidate, merge or exchange securities with any other entity and the
stockholders of Employer immediately before the 


 


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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 all or substantially all of Employer’s assets.


 


Notwithstanding the foregoing, however, a Change in
Control shall not be deemed to occur merely by reason of (1) an
acquisition of Employer’s 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 Employer
and (ii) any unincorporated entity in respect of which Employer has,
directly or indirectly, an equivalent degree of ownership or (2) an
acquisition of Company securities by Thomas W. Brown or David Mann.


 


(b)           Disability.  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.  Termination by the
Company or by Employee of his employment based on “Disability” shall be deemed
to have occurred if, 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.


 


(c)           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.


 


(d)           Cause.  Termination by the Company of Employee’s
employment for “Cause” shall mean
termination upon:


 


(i)            the 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 


 


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the Board, which demand specifically
identifies the manner in which the Board believes that Employee has not
substantially performed his duties;


 


(ii)           Employee engages 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 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


 


(vii)         Employee uses illegal drugs.


 


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


 


(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;


 


(ii)           Employer commits a material breach of any of the
covenants, representations, terms or provisions hereof, and such breach is not
cured within thirty (30) days after written notice thereof to the Company,
which notice shall identify in reasonable detail the nature of the breach and
gives Company an opportunity to respond, excluding, however, failure to pay
salary within ten (10) days as further provided in subsection (i) above;


 


(iii)          any material diminution of Employee’s title, function,
duties, authority or responsibilities (including reporting requirements);


 


(iv)          a reduction in Employee’s salary as in effect on the date
of this Agreement or as may be increased from time to time;


 


(v)           a material reduction in the benefits that are in effect
from time to time for Employee; or


 


(vi)          a relocation of the Employee’s principal place of
employment to a location which is beyond a 50 mile radius from San Antonio,
Texas.


 


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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”.


 


(f)            Notice of Termination.  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 15(a) 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.


 


(g)           Date of Termination,
Etc.  “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 for Cause or by Employee
for Good Reason 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 by Employee for Good Reason, shall not be less than two (2) weeks
nor more than two (2) months from the date such Notice of Termination is
given).


 


Section 7.              Compensation
Upon Termination or During Disability.


 


(a)           Upon termination of Employee’s employment or during a
period of Disability, Employee shall be entitled to the following benefits:


 


(i)            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 as a result of his Disability. Thereafter, Employee
shall be 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.


 


(ii)           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 unpaid and properly documented expense reimbursements incurred in
accordance with Employer’s policies prior to termination, and compensation for
accrued, and unused vacation as of the Date of Termination and any amounts to
be paid to him pursuant to the Company’s retirement and other benefits plans
then in effect (“Accrued Amounts”),
and the Company shall have no further obligations to Employee under this
Agreement.


 


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(iii)          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.


 


(iv)          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 (“Severance Benefits”)
provided below:


 


(A)          The
Company shall pay Employee Accrued Amounts through the Date of Termination at
the rate in effect at the time the Notice of Termination is given (excluding
any severance benefits under the Company’s severance plan or policy); and


 


(B)           The
Company shall pay Employee, in addition to all Accrued Amounts, (i) if
prior to a Change in Control, Employee’s then current Base Salary for the
period commencing on the Date of Termination and ending upon the earlier of (1) the
last date of the Term, and (2) six (6) months after the Date of
Termination; and (ii) if after a Change in Control, Employee’s then
current Base Salary for a period commencing on the Date of Termination and
ending one (1) year after the Date of Termination.


 


(b)           Notwithstanding any other provision of this Agreement, if
any amount payable hereunder 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 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.


 


(c)           Except as specifically provided in this Section 7,
Employee shall not be required to mitigate the amount of any payment provided
for in this Section 7 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this 


 


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Section 7 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.


 


(d)           In the event that any payments under this Section 7
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 (6) months following the Date of
Termination.


 


(e)           (i)            Employee
acknowledges and agrees that (A) 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, (B) 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 (C) 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.


 


(ii)           Employee
must execute a full release of all claims within 60 days following termination
of employment in order to be eligible for Severance Benefits.  Without limiting the remedies available to
the Company for breach by Employee of Section 8, Section 9,
Section 10, , Section 11, or Section 12, if
Employee violates the provisions of such Sections after the termination of
Employee’s employment with the Company in a manner reasonably determined by the
Board to be injurious to the Company or any of its affiliates, then Employee
will forfeit the right to any payments under this Section 7 which
are unpaid at the time such violation occurs.


 


Section 8.              Inventions;
Assignment.


 


(a)           Inventions Defined.  All rights to discoveries, inventions,
improvements, designs and innovations (including all data and records
pertaining thereto) that relate to the business of Employer, including its
Affiliates (as defined below), whether or not able to be patented, copyrighted
or reduced to writing, that Employee may discover, invent or originate during
the term of his employment hereunder, and for a period of six months
thereafter, either alone or with others and whether or not during working hours
or by the use of the facilities of Employer (“Inventions”),
shall be the exclusive property of Employer. 
Employee shall promptly disclose all Inventions to Employer, shall
execute at the request of Employer any assignments or other documents Employer
may reasonably deem necessary to protect or perfect its rights therein, and
shall assist Employer, at Employer’s expense, in obtaining, defending and
enforcing Employer’s rights therein. 
Employee hereby appoints Employer as his attorney in fact to execute on
his


 


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behalf any assignments or other documents deemed necessary by Employer
to protect or perfect its rights to any Inventions.


 


(b)           Covenant to Assign and Cooperate.  Without limiting the generality of the
foregoing, Employee shall assign and transfer to Employer the worldwide right,
title and interest of Employee in the Inventions.  Employee agrees that Employer may apply for
and receive patent rights (including Letters Patent in the United States) for
the Inventions in Employer’s name in such countries as may be determined solely
by Employer.  Employee shall provide to
Employer all facts known to Employee and reasonably requested by Employer
relating to the Inventions, and shall cooperate with Employer’s reasonable requests
in connection with vesting title to the Inventions and related patents
exclusively in Employer and in connection with obtaining, maintaining and
protecting Employer’s exclusive patent rights in the Inventions.


 


(c)           Successors and Assigns. 
Employee’s obligations under this Section 8 shall inure to
the benefit of Employer, its Affiliates (as defined below) and their respective
successors and assigns and shall survive the expiration of the term of this
Agreement for such time as may be necessary to protect the proprietary rights
of Employer and its affiliates in the Inventions.  When used herein, “Affiliate”
shall mean an entity which, directly or indirectly, alone or together with
others, controls, is controlled by or is under common control with, Employer.


 


Section 9.              Confidential Information.


 


(a)           Acknowledgment of Proprietary Interest.  Employee acknowledges the proprietary
interest of Employer and its Affiliates in all Confidential Information (as
defined below).  Employee agrees that all
Confidential Information learned by Employee during his employment with
Employer or otherwise, whether developed by Employee alone or in conjunction
with others or otherwise, is and shall remain the exclusive property of
Employer.  Employee further acknowledges
and agrees that his disclosure of any Confidential Information will result in
irreparable injury and damage to Employer.


 


(b)           Confidential Information Defined.  “Confidential Information”
means all trade secrets, copyrightable works, confidential or proprietary
information of Employer or its Affiliates, including without limitation,
(i) information derived from reports, investigations, experiments,
research and work in progress, (ii) methods of operation,
(iii) market data, (iv) proprietary computer programs and codes,
(v) drawings, designs, plans and proposals, (vi) marketing and sales
programs, (vii) the identities of clients or customers,
(viii) historical financial information and financial projections,
(ix) pricing formulae and policies, (x) all other concepts, ideas,
materials and information prepared or performed for or by Employer and (xi) all
information related to the business, services, products, purchases or sales of
Employer or any of its customers, other than (A) information that is
publicly available, and (B) information that becomes available to Employee
after the termination of his employment with Employer from a third party source
not bound by a confidentiality agreement with Employer with respect to such
information.


 


(c)           Covenant Not To Divulge Confidential Information.  Employer is entitled to prevent the
disclosure of Confidential Information. 
As a portion of the consideration for the employment of Employee and for
the compensation being paid to Employee by Employer,


 


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Employee agrees at all times during the term of his employment
hereunder and thereafter to hold in strict confidence and not to disclose to
any person, firm or corporation, other than to persons engaged by Employer to
further the business of Employer or as necessary to perform Employee’s duties
as an employee of Employer and for the sole benefit of Employer or its
Affiliates, and not to use except in the pursuit of the business of Employer,
the Confidential Information, without the prior written consent of Employer.


 


(d)           Return of Materials at Termination.  In the event of any termination or cessation
of his employment with Employer for any reason, Employee shall promptly deliver
to Employer all documents, data and other information derived from or otherwise
pertaining to Confidential Information. 
Employee shall not take or retain any documents or other information, or
any reproduction or excerpt thereof, containing any Confidential Information.


 


Section 10.            Non-Solicitation.


 


(a)           Solicitation of Employees. 
During Employee’s employment with Employer and for a period of twelve
(12) months after termination of such employment at any time and for any reason
(the “Restriction Period”), and regardless of
whether any payments are made to Employee under this Agreement as a result of
such termination, Employee shall not solicit, participate in or promote the
solicitation of any person who was employed by Employer or any of its
Affiliates at the time of Employee’s termination of employment with Employer to
leave the employ of Employer or any of its affiliates, or, on behalf of himself
or any other person, hire, employ or engage any such person; provided, however,
that Employee or an entity for which Employee works shall not be precluded from
generally advertising for employees or from hiring any employees who have not
been solicited by Employee, directly or indirectly, in violation of this Section 10(b).


 


(b)           Solicitation of Clients, Customers, Etc.  During the Restriction Period, and regardless
of whether any payments are made to Employee under this Agreement as a result
of termination of his Employment, Employee shall not, directly or indirectly,
solicit any person who, at the time of termination of Employee’s employment
with Employer, was a client, customer, vendor, consultant or agent of Employer
or its Affiliates and with whom Employee had contact on behalf of Employer
during such period, to discontinue business, in whole or in part, with Employer
or its Affiliates; provided, however,
that the foregoing shall not prohibit Employee from soliciting such clients,
customers, vendors, consultants or agents to do business with any entity or
person as long as such solicitation does not include an express or implied
solicitation to discontinue business, in whole or in part, with Employer or its
Affiliates.


 


Section 11.            Non-Compete.


 


(a)           Competition During Employment.  Employee agrees that during the term of his
employment with Employer, he will not, directly or indirectly, compete with
Employer or its Affiliates in any way, and that he will not act as an officer,
director, employee, consultant, shareholder, partner, equity owner, lender,
guarantor or agent of any entity which is engaged in any business in
competition with, the businesses in which Employer and its Affiliates are
engaged as of the date hereof or in which Employer or its Affiliates become
engaged during the term of his employment; provided, however,
that this Section 11(a) shall not prohibit Employee


 


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or any of his Affiliates from: (i) purchasing or holding an
aggregate equity interest of up to 1%, so long as Employee and his Affiliates
combined do not purchase or hold an aggregate equity interest of more than 5%,
in any business in competition with Employer and its Affiliates.  Furthermore, Employee agrees that during the
term of his employment, he will undertake no planning for the organization of
any business activity competitive with the work he performs as an employee of
Employer and Employee will not combine or conspire with any other employees of
Employer and its Affiliates for the purpose of the organization of any such
competitive business activity.


 


(b)           Competition Following Employment.  In order to protect Employer against the
unauthorized use or the disclosure of any Confidential Information of Employer
and its Affiliates presently known or hereafter obtained by Employee during his
employment under this Agreement, Employee agrees that for a period of twelve
(12) months after the termination or cessation of his employment with Employer
at any time and for any reason, and regardless of whether any payments are made
to Employee under this Agreement as a result of such termination (but subject
to the provisions of Section 12 hereof), Employee shall not,
directly or indirectly, for himself or on behalf of any other corporation,
person, firm, partnership, association, or any other entity (whether as an
individual, agent, servant, employee, employer, officer, director, shareholder,
investor, principal, consultant or in any other capacity), engage or
participate in any business which engages in competition with the businesses
being conducted by Employer or any of its Affiliates during the Term anywhere
in any state in the United States or in any foreign country where Employer or
any of its Affiliates distributes software or performs services related to the
distribution of software, or any other business in which Employer or any of its
Affiliates was actively engaged at the time of termination of Employee’s
employment with Employer; provided, however, that this provision shall not
prohibit Employee or any of his Affiliates from (i) purchasing or holding
an aggregate equity interest of up to 1%, so long as Employee and his
Affiliates combined do not purchase or hold an aggregate equity interest of
more than 5%, in any business in competition with Employer, or
(ii) serving as an officer, employee or consultant to any entity or
business which operates through multiple Affiliates or business divisions, as
long as Employee is serving as an officer, employee or consultant to an
Affiliate or business division which is not engaged in competition with
Employer or any of its Affiliates.


 


Section 12.            Non-Disparagement. 
During Employee’s employment with Employer and thereafter, Employee
agrees not to make any statement or take any action which disparages, defames,
or places in a negative light Employer, Affiliates, or its or their reputation,
goodwill, commercial interests or past and present officers, directors and
employees.


 


Section 13.            Effect of Termination; Actions Upon
Termination.  The Company shall pay Employee when due any
and all previously earned, but as yet unpaid, salary and reimbursement of
business expenses submitted in accordance with the Company’s policy as in
effect.  The provisions of Section 10
and Section 11 shall terminate and be of no further force and
effect in the event (i) Employee’s employment is terminated by Employer
without Cause or by Employee for Good Reason, and (ii) Employer fails to
timely pay Employee the Severance Benefits and/or any other amounts due
pursuant to Section 7.  Upon
termination of employment hereunder, Employee shall immediately resign as an
officer and/or director of Company and of any Affiliates, including any joint
ventures.


 


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Section 14.            Arbitration. 
Without limiting either party’s right to seek equitable remedies under Section 15(c) below
or otherwise, Employer and Employee agree that any dispute or controversy
arising under or in connection with this Agreement shall be settled by
arbitration.  Arbitration under this
Agreement shall be governed by the Federal Arbitration Act and proceed in San
Antonio, Texas, in accordance with the rules of the American Arbitration
Association (“AAA”).  Arbitration will be conducted before a panel
of three neutral arbitrators selected from an AAA list of proposed arbitrators
with business law experience.  Either
party may take any legal action needed to protect any right pending completion
of the arbitration.  The arbitrator will
determine whether an issue is arbitrable and will give effect to applicable
statutes of limitation.  The arbitrator
has the discretion to decide, upon documents only or with a hearing, any motion
to dismiss for failure to state a claim or any motion for summary
judgment.  Discovery shall be governed by
the Federal Rules of Civil Procedure and the Federal Rules of
Evidence.  All information developed by
the arbitration or litigation shall be held in confidence subject to such
protective orders, as the arbitrator deems useful to ensure complete
confidentiality. The decision of the arbitrator shall be final and binding on
all parties to this Agreement (and any third party beneficiaries of this
Agreement), and judgment thereon may be entered in any court having
jurisdiction over the parties.  All costs
of the arbitration proceeding or litigation to enforce the arbitration award
shall be paid by the party against whom the arbitrator decides.  The arbitrator shall have no right to award
punitive, consequential, exemplary or analogous damages.


 


Section 15.            General.


 


(a)           Notices.  All notices and other communications
hereunder shall be in writing or by written telecommunication, and shall be
deemed to have been duly given if delivered personally or if mailed by
certified mail, return receipt requested or by written telecommunication, to
the relevant address set forth below, or to such other address as the recipient
of such notice or communication shall have specified to the other party in
accordance with this Section 15(a):


 


If to Employer, to:


 


GlobalSCAPE, Inc.


4500 Lockhill Selma Road, Suite 150


San Antonio, Texas 78249


Attention: 
Chief Executive Officer


 


with copy to:


 


Jackson Walker L.L.P.


112 E. Pecan Street, Suite 2400


San Antonio, Texas 78205


Attention: 
Steven R. Jacobs


 


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


 


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(b)           Withholding.  All payments required to be made to
Employee by Employer under this Agreement shall be subject to the withholding
of such amounts, if any, relating to federal, state and local taxes as may be
required by law.


 


(c)           Equitable Remedies. 
Each of the parties hereto acknowledges and agrees that upon any breach
by Employee of his obligations under any of Section 8, Section 9,
Section 10, Section 11, or Section 12
Employer shall suffer immediate, substantial and irreparable injury and shall
have no adequate remedy at law. 
Accordingly, in event of such breach, Employer shall be entitled, in
addition other remedies and without showing actual damages, to specific
performance and other appropriate injunctive and equitable relief.


 


(d)           Severability.  If any provision of this Agreement
is held to be illegal, invalid or unenforceable, such provision shall be fully
severable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision never comprised a part hereof, and
the remaining provisions hereof shall remain in full force and effect and shall
not be affected by the illegal, invalid or unenforceable provision or by its
severance.  Furthermore, in lieu of such
illegal, invalid or unenforceable provision, there shall be added automatically
as part of this Agreement a provision as similar in its terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and
enforceable.


 


(e)           Waivers.  No delay or omission by either party in
exercising any right, power or privilege hereunder shall impair such right,
power or privilege, nor shall any single or partial exercise of any such right,
power or privilege preclude any further exercise thereof or the exercise of any
other right, power or privilege.


 


(f)            Counterparts.  This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.


 


(g)           Captions.  The captions in this Agreement are for
convenience of reference only and shall not limit or otherwise affect any of
the terms or provisions hereof.


 


(h)           Interpretation of Agreement.  This Agreement shall
be construed according to its fair meaning and not for or against either
party.  Use of the words “herein,”
“hereof,” “hereto,” “hereunder” and the like in this Agreement refer to this
Agreement only as a whole and not to any particular section or subsection of
this Agreement, unless otherwise noted. 
The masculine gender shall be deemed to denote the feminine or neuter
genders, the singular to denote the plural, and the plural to denote the
singular, where the context so permits.


 


(i)            Binding
Agreement; Assignment.  This Agreement shall be binding
upon and inure to the benefit of the parties and shall be enforceable by the
heirs, legal representatives, personal representatives and permitted assigns of
Employee and the successors and assigns of Employer.  The Affiliates of Employer shall be
considered third party beneficiaries of this Agreement with respect to any
services provided by Employee to them and in connection with Employee’s
covenants in Section 8, Section 9, Section 10,
Section 11, and Section 12 hereof to the extent such
covenants apply with respect to such Affiliates.  Employer may assign this Agreement to a
successor entity through a merger, consolidation or sale of all or
substantially all 


 


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of the assets; provided that in the event of any such
assignment, Employer shall remain liable for all of its obligations hereunder
and shall be liable for all obligations of all such assignees hereunder.  If Employee dies while any amounts would
still be payable to him hereunder, such amounts shall be paid to Employee’s
estate.  This Agreement is not otherwise
assignable by Employee.


 


(j)            Entire Agreement.  This
Agreement contains the entire understanding of the parties relating to the
subject matter hereof, and supersedes all prior agreements and understandings
relating to such subject matter, and may not be amended except by a written
instrument hereafter signed by each of the parties hereto.


 


(k)           Governing Law.  This Agreement
and the performance hereof shall be construed and governed in accordance with
the laws of the State of Texas, without regard to its choice of law principles.


 


(l)            Employee Representations.  Employee represents and certifies to Employer
that he: (i) has received a copy of this Agreement for review and study
and has had ample time to review it before signing; (ii) has read this
Agreement carefully; (iii) has been given a fair opportunity to discuss
and negotiate the terms of this Agreement; (iv) understands its
provisions; (v) has had the opportunity to consult his attorney; and
(vi) enters into this Agreement knowingly and voluntarily.  Employee also represents that he will not
make any unauthorized use of any Confidential Information or intellectual
property of any third party in the performance of his duties under this
Agreement and that Employee is under no obligation to any prior employer or
other entity that would preclude or interfere with the full and good faith
performance of Employee’s obligations hereunder.


 


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EXECUTED as of the date first above written.


 


 


	
   

  	
  GLOBALSCAPE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Craig Robinson

  
					



 


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