SETTLEMENT AGREEMENT AND









Exhibit 10.1




 




SETTLEMENT AGREEMENT AND




FULL AND FINAL MUTUAL GENERAL RELEASE




 




 




Definitions




 




                                                For purposes of

this Settlement Agreement and Full and Final Mutual General Release:




 




                                                “Agreement”

refers to this Settlement Agreement and Full and Final Mutual General Release.




 




                                                “Affiliates”

refers to an entity’s past and present parents, subsidiaries and affiliates and

each of their respective past and present officers, directors, shareholders,

partners, agents, employees, attorneys and legal representatives, and each of

their respective permitted successors and assigns




 




                                                “ATSI

Delaware” refers to ATSI Communications, Inc., a Delaware

corporation.




 




                                                “ATSI

Entities” refers to ATSI Delaware and its Affiliates except for

GlobalSCAPE.




 




                                                “GlobalSCAPE”

refers to GlobalSCAPE, Inc.




 




                                                “Claims”

refers to and includes all claims, rights, obligations, demands, debts,

liabilities, controversies, and causes of action, of any and every character,

whether known or unknown, asserted or unasserted, liquidated or unliquidated,

accrued or unaccrued, mature or not yet mature, at law or in equity, whether in

contract, in tort, under state or federal statute or rule or otherwise, or

under any other theory, of any nature whatsoever, arising at any time from the

beginning of time through and including the Effective Date related to the

InterCompany Balance.




 




                                                “Effective

Date” shall mean June 11, 2002




 




                                                “InterCompany

Balance” means the balance of amounts and other obligations due

between the ATSI Entities and GlobalSCAPE as of the Effective Date in respect

of the Loans, GlobalSCAPE provided Services, ATSI Entity provided Services, and

any and all other matters.




 




                                                “Loans”

refers collectively to any and all amounts and obligations due under or in

respect of all of the following:




 




(i)                                     Note from ATSI

Delaware to GlobalSCAPE dated April 27, 2001 in the original principal amount

of $200,000:




 




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(ii)                                  Security

Agreement between TeleSpan, Inc. and GlobalSCAPE, Inc. dated April 27, 2001

securing April 27, 2001 Note from ATSI Delaware;




 




(iii)                               Note from ATSI

Delaware dated November 15, 2001 in the original principal amount of $100,000;




 




(iv)                              Security

Agreement between TeleSpan, Inc. and GlobalSCAPE, Inc. dated November 15, 2001

securing November 15, 2001 Note from ATSI Delaware;




 




(v)                                 Note from ATSI

Delaware dated December 12, 2001 in the original principal amount of $40,000;




 




(vi)                              Security

Agreement between TeleSpan, Inc. and GlobalSCAPE, Inc. dated December 12, 2001

securing December 12, 2001 Note from ATSI Delaware;




 




(vii)                           Note from ATSI

Delaware dated February 15, 2002 in the original principal amount of $50,000;




 




(viii)                        Security

Agreement between TeleSpan, Inc. and GlobalSCAPE, Inc. dated February 15, 2002

securing February 15, 2002 Note from ATSI Delaware; and




 




(ix)                                cash transfer

from GlobalSCAPE to ATSI Delaware in the amount of $150,000 on May 23, 2002.




 




                                                “NTFC Release”

NTFC  Capital

Corporation’s release of GlobalSCAPE from that Loan and Security Agreement

between NTFC Capital Corporation, certain ATSI Entities and GlobalSCAPE dated

July 31, 1999 and that Promissory Note in the original principal amount of

$2,000,000.00 between NTFC Capital Corporation, certain ATSI Entities and

GlobalSCAPE dated August 26, 1999  in the form attached as Exhibit A

to this Agreement.




 




                                                “Services”

refers to any and all services of any kind provided by the ATSI Entities to

GlobalSCAPE or from GlobalSCAPE to the ATSI Entities, including, but not

limited to (i) organizational services and capitalization, (ii) payroll and

personnel administration services, (iii) 

the inclusion of GlobalSCAPE on an ATSI Entity tax return, (iv) the

inclusion of GlobalSCAPE on ATSI Entity insurance policies and other

arrangements, (iv)  investor relations

services, (iv) web consulting, (v) network consulting, (v) legal, accounting,

and financial services, (vii) providing surety on financial obligations; and

(vi) liquidity services, such as short term cash transfers.




 




                                                “Services

Agreement” refers to the Services Agreement in the form attached to

this Agreement as Exhibit B to be executed by ATSI Delaware and

GlobalSCAPE 




 




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contemporaneously with the execution of this

Agreement, which provides, in part, for prepaid services from the ATSI Entities

to GlobalSCAPE in the amount of $50,000.00.




 




                                                “Stock

Purchase Agreement” refers to that Stock Purchase Agreement between

Brown and Mann—GlobalSCAPE Joint Venture and ATSI Communications, Inc. to be

executed contemporaneously with this Agreement.




 




                                                The foregoing

terms have the foregoing meanings in this Agreement, whether or not

capitalized, and whether used in the singular or plural tense.




 




Recitals




 




Whereas, GlobalSCAPE

was formed as a wholly-owned subsidiary of an ATSI Entity in 1996; and




 




Whereas, the ATSI

Entities and GlobalSCAPE have performed various Services for each other since

GlobalSCAPE’s organization; and




 




Whereas, GlobalSCAPE

has made the Loans; and




 




Whereas, the ATSI

Entities and GlobalSCAPE have agreed on a definitive dollar balance for the

Intercompany Balance due from the ATSI Entities to GlobalSCAPE and wish to

settle that balance; and




 




Whereas, ATSI Delaware

and GlobalSCAPE wish to execute a written Services Agreement that will govern

the provision of Services between GlobalSCAPE and the ATSI Entities beginning

on the Effective Date and going forward; and




 




Whereas, the ATSI

Entities and GlobalSCAPE have agreed to cancel the InterCompany Balance in

consideration for ATSI Delaware obtaining the NTFC Release and each party’s

execution of this Agreement and the Services Agreement, and ATSI’s execution of

the Stock Purchase Agreement; and




 




Whereas, the parties

have agreed to fully and finally compromise and settle any and all Claims ever

existing between them;




 




                                                Therefore, as

material consideration and inducement to the execution of this Agreement, and

in consideration of the mutual promises set forth herein, the execution by each

party of the Services Agreement, the delivery of the NTFC Release, and ATSI’s

execution of the Stock Purchase Agreement, GlobalSCAPE and ATSI Delaware, on

its behalf and on behalf of each ATSI Entity, hereby contracts, covenant and

agree as follows:




 




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Agreements and Releases




 




1.  InterCompany

Balance.  GlobalSCAPE

and each ATSI Entity agree that the dollar value of the InterCompany Balance as

of the Effective Date is $612,303.51 on the books and records of GlobalSCAPE as

of the Effective Date.  Upon delivery of

the NTFC Release, the execution of this Agreement and the Services Agreement,

ATSI’s execution of the Stock Purchase Agreement, and ATSI’s delivery of cash

to GlobalSCAPE in the amount of $200,000.00, the Intercompany Balance will be

cancelled and amounts due between the parties going forward will be only those

amounts arising under the Services Agreement and any other written agreement

executed by the parties after the Effective Date.  ATSI covenants and agrees to promptly resolve any past benefit

payments due related to the parties’ joint employee benefit plans.




 




2.  Release of

GlobalSCAPE by ATSI.  Contingent

upon delivery of the NTFC Release, the execution of this Agreement and the

Services Agreement, ATSI’s execution of the Stock Purchase Agreement, and

ATSI’s delivery of cash to GlobalSCAPE in the amount of $200,000.00, each ATSI

Entity hereby unconditionally and irrevocably releases, remises, acquits,

forever discharges and covenants not to sue GlobalSCAPE or its Affiliates for

any and all Claims.




 




3.  Release of ATSI by

GlobalSCAPE.  Contingent

upon delivery of the NTFC Release, the execution of this Agreement and the

Services Agreement, ATSI’s execution of the Stock Purchase Agreement, and

ATSI’s delivery of cash to GlobalSCAPE in the amount of $200,000.00,

GlobalSCAPE hereby unconditionally and irrevocably releases, remises, acquits,

forever discharges and covenants not to sue any of the ATSI Entities for any

and all Claims.




 




4.  Authority and

Ownership of Claims.  Each party

represents, covenants and warrants that it has the full authority and capacity

to make this Agreement and to grant the releases set forth herein, that it is

the sole owner of any and all Claims ever possessed by it against any other

party or its Affiliates, and that no portion of any Claims that it ever may

have possessed against the other or its Affiliates has been sold, assigned,

transferred, pledged, or hypothecated to any third party.




 




5.  Full and Final

Settlement.  The

parties understand and agree that the performances specified in this Agreement

are in full settlement, satisfaction and compensation for all Claims that they

may have against each other or their Affiliates and that they will not receive

any further sums, money or consideration therefore.




 




6.  Successors and

Assigns.  This Agreement shall be

binding upon and inure to the benefit of each of the parties hereto and their

respective successors and assigns.




 




7.  Amendment.  This Agreement may not be amended or

otherwise changed except by an agreement in writing signed by each of the

parties hereto.




 




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8.  Severability.  If any provision of this Agreement is or may

be held by a court of competent jurisdiction to be invalid, void or

unenforceable, the remaining provisions shall nonetheless survive and continue

in full force and effect without being impaired or invalidated in any way.




 




9.  Counterparts.  This Agreement may be executed in several

counterparts, each of which shall be an original and each of which shall

constitute but one and the same instrument.




 




10.  Complete

Agreement.  The parties

each acknowledge that this Agreement constitutes the full, final and complete

settlement of the differences and supersedes all other written or oral

exchanges, arrangements, or negotiations between them concerning the subject

matter of this Agreement, and further acknowledge that there are no

representations, agreements, arrangements, or understandings, oral or written,

concerning the subject matter of this Agreement that are not fully expressed

herein.




 




11.  Performance.  This Agreement is entered into and

performable in Bexar County, Texas, U.S.A.




 




12.  Headings and

Construction.  Headings

in this Agreement are for the convenience of the parties and are not to be used

in construing the Agreement.  This

Agreement shall not be construed or interpreted against either party, either by

having drafted this Agreement or otherwise, but shall be construed and

interpreted as to give the fullest effect to the releases set forth herein.




 




13.  Each

party expressly represents and warrants to the other that he/it has carefully

read this Agreement, understand it contents, and signs this Agreement as

his/its own free act.




 




                In Witness

Whereof, the parties have caused this Agreement to be executed to be

effective on the later of the dates set forth below.




 




 




 




	

  GlobalSCAPE, Inc.


  
	

   


  
	

  By:


  	

  /s/ Tim Nicolaou


  
	

  Tim Nicolaou


  
	

  Chief Executive Officer


  
	

  Date:


  	

  6/11/02


  





 




 




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  ATSI Entities


  
	

   


  
	

  By:


  	

  ATSI Communications, Inc., a Delaware corporation,


  
	

   


  	

   


  
	

  By:


  	

  /s/ Stephen M. Wagner


  	 

	

   


  	

  Stephen M. Wagner


  	 

	

   


  	

  President and Chief

  Operating Officer


  	 

	

   


  	

  Date:


  	

  June 11, 2202


  	 

				





 




 




Exhibit A                NTFC

Release




Exhibit B                Services

Agreement




 




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