Exhibit 10.1
EMPLOYMENT
AGREEMENT
This Employment Agreement
(“Agreement”), executed as of August 18, 2009
(“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; 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
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 all or
substantially all of GlobalSCAPE’s assets.
Notwithstanding the foregoing,
however, a Change in Control shall not be deemed to occur merely by
reason of (1) 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 or (2) an acquisition of Company
securities by Thomas W. Brown or David Mann. 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
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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.
(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 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) 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 (viii) Employee uses
illegal drugs.
(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;
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(ii) the Company commits a material
breach of any of the covenants, representations, terms or
provisions of this Agreement; or
(iii) if, following a Change of
Control, there is any material diminution of Employee’s
title, function, duties, authority or responsibilities (including
reporting requirements) if such diminution occurs during the
Initial Term; provided that Employee provides notice to the Company
upon the initial occurrence of such material diminution or within
one year thereafter.
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
