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.
2
(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