AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 17, 2001
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GLOBALSCAPE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2785449
(State or other jurisdiction of (I.R.S. employer identification)
incorporation or organization)
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6000 NORTHWEST PARKWAY, SUITE 100
SAN ANTONIO, TEXAS 78249
(Address, including zip code, of principal executive offices)
GLOBALSCAPE, INC.
1998 STOCK OPTION PLAN
(Full title of the Plan)
TIM NICOLAOU, CHIEF EXECUTIVE OFFICER
6000 NORTHWEST PARKWAY, SUITE 100
SAN ANTONIO, TEXAS 78249
(210) 308-8267
(Name, address and telephone number, including area code, of agent for service)
(1) $.0132 for 1,101,171 shares; $0.10 for 323,809 shares
(2) Exercise price per share of common stock of $.0132 per share for 1,101,171 shares, plus exercise price per common share of $.10 per share for 323,809 shares. Estimated pursuant to Rule 457(h) solely for the purposes of calculating the registration fee.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the filing of a post-effective amendment to this Registration Statement on Form S-8 which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the registration statement and to be part thereof from the date of filing of such documents:
a) Our Registration Statement on Form 10 initially filed on May 12, 2000 and amended on July 28, 2000 and September 12, 2000;
b) Our Annual Report on Form 10-K for the year ended December 31, 2000;
c) Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2001; and
d) The description of our common stock included in our Registration Statement on Form 10 filed on September 12, 2000.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The opinion regarding legality was given by Alice King, an employee of GlobalSCAPE, Inc.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our certificate of incorporation provides that, except as set forth in our bylaws, we shall indemnify each of our directors and officers in each and every situation where we are obligated, permitted or empowered to provide indemnification by Section 145 of the Delaware General Corporation Law ("Section 145"), as it may be amended from time to time, and that, except as otherwise set forth in our bylaws, we may indemnify other persons who are permitted to be indemnified under Section 145. Section 145 currently permits indemnification of any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that such person is or was our director, officer, employee or agent or is or was serving at our request as a director, officer, employee or agent for any other corporation, partnership or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful.
With respect to an action by or in the right of the corporation,
Section 145 permits indemnification of these persons against expenses (including
attorney fees) actually and reasonably incurred by the person in connection with
the defense or settlement of such action or suit if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, except that in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the corporation, indemnification may be made only if and to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
determines that in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
Our certificate of incorporation and bylaws currently do not explicitly preclude us from indemnifying our officers and directors for liabilities arising under federal securities laws. However, our bylaws provide that we will submit the issue of indemnification with regard to liabilities arising under the Securities Act of 1933 to a court of appropriate jurisdiction to determine whether such indemnification by us is against public policy and that we will be governed by the final adjudication of such issue. Persons who have ceased being a director or officer may be similarly indemnified in respect of service to us to the extent our board of directors at any time specifies such persons are entitled to the benefits of the indemnification provisions contained in our certificate of incorporation or bylaws.
Our certificate of incorporation provides that a director shall not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except for:
o any breach of the director's duty of loyalty to us or our shareholders;
o acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
o certain unlawful dividends or redemptions as provided under
Section 174 of the DGCL; or
o any transaction from which the director derived an improper personal benefit.
Our certificate of incorporation also provides that the personal liability of directors will be limited or eliminated to the fullest extent permitted by the Delaware General Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No Description of Exhibit
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4.1 Form of Common Stock of Registrant (filed as Exhibit 4.1 to Annual
Report on Form 10-K filed April 2, 2001)
4.2 Amended and Restated Certificate of Incorporation of the Registrant
(Filed as Exhibit 3.5 to Amendment No. 2 to Registration Statement
on Form 10, filed September 12, 2000)
4.3 Amended and Restated Bylaws of the Registrant (filed with Current
Report on Form 8-K filed October 10, 2000)
4.4 GlobalSCAPE, Inc. Third Amended 1998 Stock Option Plan (filed herewith)
5.1 Opinion regarding legality (filed herewith)
23.1 Consent of Ernst & Young, LLP (filed herewith)
23.2 Consent of Alice King, Esq. (found in Exhibit 5.1 filed herewith)
24.1 Power of Attorney (included on signature page of this Registration
Statement).
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ITEM 9. UNDERTAKINGS.
A. UNDERTAKINGS REGARDING AMENDMENTS TO THIS PROSPECTUS AND THE
REGISTRATION STATEMENT
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement.
PROVIDED, HOWEVER, that paragraphs (A)(1)(i) and (A)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
2. That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
B. UNDERTAKING REGARDING FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT
DOCUMENTS BY REFERENCE.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of any employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
C. UNDERTAKING IN RESPECT OF INDEMNIFICATION.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas on May 17, 2001.
GLOBALSCAPE, INC.
By: /s/ Tim Nicolaou
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Tim Nicolaou
Chief Executive Officer
By: /s/ Daniel Mcredmond
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Daniel McRedmond
Director of Finance and Accounting
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Tim Nicolaou with full power to act without the other, his true and lawful attorneys-in-fact and agent, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign any or all further amendments to this Registration Statement (including further post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each of said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person hereby ratifying and confirming that each of said attorneys-in-fact and agents or his substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated below.
NAME TITLE DATE ---- ----- ---- /s/ Tim Nicolaou Chief Executive Officer May 17, 2001 ------------------ Director Tim Nicolaou /s/ Arthur L. Smith Chairman of the Board of Directors May 17, 2001 -------------------- Director Arthur L. Smith /s/ H. Douglas Saathoff Treasurer May 17, 2001 ----------------------- Director H. Douglas Saathoff |
EXHIBITS
INDEX TO EXHIBITS
Exhibit No Description of Exhibit
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4.1 Form of Common Stock of Registrant (filed as Exhibit 4.1 to Annual
Report on Form 10-K filed April 2, 2001)
4.2 Amended and Restated Certificate of Incorporation of the Registrant
(Filed as Exhibit 3.5 to Amendment No. 2 to Registration Statement on
Form 10, filed September 12, 2000)
4.3 Amended and Restated Bylaws of the Registrant (filed with Current
Report on Form 8-K filed October 10, 2000)
4.4 GlobalSCAPE, Inc. Third Amended 1998 Stock Option Plan (filed herewith)
5.1 Opinion regarding legality (filed herewith)
23.1 Consent of Ernst & Young, LLP (filed herewith)
23.2 Consent of Alice King, Esq. (found in Exhibit 5.1 filed herewith)
24.1 Power of Attorney (included on signature page of this Registration
Statement).
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EXHIBIT 4.4
GLOBALSCAPE, INC.,
1998 STOCK OPTION PLAN
(AS AMENDED MARCH 22, 2001)
PURPOSE. The purpose of this Plan is to promote the interest of GLOBALSCAPE, INC., (the "Company") and its shareholders by providing an effective means to attract, retain and increase the commitment of certain individuals and to provide such individuals with additional incentive to contribute to the success of the Company.
1. ELIGIBILITY. Options may be granted under the Plan to directors and employees of, and advisors and consultants to, the Company, or of any parent or subsidiary of the Company (if any) provided, however, in the case of consultants or advisors, that such grant be in consideration of bona fide services rendered by such consultant or advisor and such services not be in connection with the offer or sale of securities in a capital-raising transaction. The Board of Directors or the Committee (defined below), as the case may be, shall select from such eligible class the individuals to whom Options shall be granted from time to time.
2. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the Board, or, if a committee (the "Committee") of Directors should unanimously agree, by a committee consisting of at least two "non-employee directors," as defined in Rule 16b-3 ("Rule 16b-3") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). In any event, at such time as the Company becomes a reporting company pursuant to registration of a class of its securities under Section 12 of the Exchange Act, the Plan shall be administered by such a Committee. A quorum of such Committee shall consist of a majority of the members of such Committee, or as may be otherwise provided in the Company's bylaws. The Committee shall hold meetings at such times and places and conduct its business at such meetings as it may determine, subject to any express provisions of the Company's bylaws. Acts of a majority of the Committee members attending at a meeting at which a quorum is present, or such acts as are reduced to or approved in writing by the majority of the members of the Committee, shall be the valid acts of the Committee. The Board of Directors or the Committee, as the case may be, shall from time to time in its discretion determine which individuals shall be granted Options, the amount of shares covered by such Options, and certain other specific terms and conditions of such Options subject to the terms and conditions contained herein. Notwithstanding anything in this Plan to the contrary, the full Board of Directors of the Company shall determine whether any member of the Committee shall be granted
Nonqualified Stock options (as defined below) under the Plan, the terms and provisions of the respective agreements evidencing such options, the times at which such options shall be granted, and the number of shares of Common Stock subject to each such option and shall make all determinations under the Plan with respect to such options (which determinations of the Board of Directors shall be conclusive).
The Board of Directors or the Committee, as the case may be, shall have the sole authority and power, subject to the express provisions and conditions hereof, to construe this Plan and the Options granted hereunder, and to adopt, prescribe, amend, and rescind rules and regulations relating to this Plan, and to make all determinations necessary or advisable for administering this Plan. The Board or Committee shall also have the authority and power to modify any provision of this Plan to render the Plan consistent with any amendments to Rule 16b-3 or Form S-8 of the Securities Act of 1933, as amended (the "Securities Act"), including amendments which permit the grant of Options on terms which are less restrictive than the terms set forth herein. The interpretation by the Board or Committee of any provision of the Plan with respect to any incentive stock option granted hereunder shall be in accordance with section 422 of the Internal Revenue Code of 1986 and the regulations issued thereunder, as amended from time to time (the "Internal Revenue Code"), in order that the incentive stock options granted hereunder ("Incentive Stock Options") shall constitute "incentive stock options" within the meaning of section 422 of the Internal Revenue Code. Options granted under the Plan which are not intended to be Incentive Stock Options are referred to herein as "Nonqualified Stock Options." The term "Options" as used herein shall refer to Incentive Stock Options and Nonqualified Stock Options, either collectively or without distinction. The interpretation and construction by the Board or Committee, if any, of any provisions of the Plan or of any Option granted hereunder shall be final and conclusive. No member of the Board or the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any Option granted hereunder.
3. SHARES SUBJECT TO THE PLAN. Subject to the provisions OF
SECTION 6, the number of shares subject to Options granted
hereunder shall not exceed 728,571 shares of the company's
authorized but unissued or reacquired Common Stock (the
"Common Stock"). Such number of shares shall be subject to
adjustment as provided in Section 5. Shares that by reason of
the expiration, termination, cancellation or surrender of an
Option are no longer subject to purchase pursuant to an Option
granted under the Plan (other than by reason of exercise of
such option) may be reoptioned hereunder.
4. TERMS AND CONDITIONS.
(A) OPTION PRICE. Each Option shall state the number of shares that may be purchased thereunder, shall expressly designate such Option as an Incentive Stock Option or a Nonqualified Stock Option, and shall state the option price per share
(the "Option Price") which shall be paid in the manner
specified in this Section 4(A) in order to exercise such
option. The Option Price shall not be less than the lesser
of (i) 100% of the fair market value of the shares on the
day the Option is granted or (ii) the 10 day moving average
of the fair market value of the shares ending on the day the
Option is granted with respect to any Nonqualified Stock
Option granted under Plan. The Option Price shall not be
less than 100% of the fair market value of the shares on the
day the Option is granted with respect to any Incentive
Stock Option granted under the Plan. For purposes of the
Plan, the fair market value per share of the Common Stock on
any date shall be deemed to be the closing price of the
Common Stock on the principal national securities exchange
on which the Common Stock is then listed or admitted to
trading, if the Common Stock is then listed or admitted to
trading on any national securities exchange. The closing
price shall be the last reported sale price regular way, or,
in case NO such sale takes place on such day, the average of
the closing bid and asked prices regular way, as reported by
said exchange. If the Common Stock is not then so listed on
a national securities exchange, the fair market value per
share of the Common Stock on any date shall be deemed to be
the closing price (the last reported sale price regular way)
in the over-the-counter market as reported by the NASDAQ
National Market System, if the Common Stock closing price is
then reported on the NASDAQ National Market System, or, if
the Common Stock closing price of the Common Stock is not
then reported by the NASDAQ National Market System, shall be
deemed to be the mean of the highest closing bid and lowest
closing asked price of the Common Stock in the
over-the-counter market as reported by the National
Association of Securities Dealers Automated Quotation System
("NASDAQ") or, if the Common Stock is not then quoted by
NASDAQ, as furnished by any member of the National
Association of Securities Dealers, Inc. selected from time
to time by the Company for that purpose. If no member of the
National Association of Securities Dealers, Inc. furnishes
quotes with respect to the Common Stock of the Company, such
fair market value shall be determined by resolution of the
Committee. Notwithstanding the foregoing provisions of this
SECTION 4(A), IF the Committee shall at any time determine
that it is impracticable to apply the foregoing methods of
determining fair market value, the Committee is empowered to
adopt other reasonable methods for such purpose. The
Committee may, if it deems it appropriate, engage the
services of an independent qualified expert or experts to
appraise the value of the Common Stock.
Options under the Plan may be exercised by payment of the Option Price in cash or, if the Common Stock is then registered under the Exchange Act and is then traded on NASDAQ or one or more securities exchanges, by delivery of the equivalent fair market value of Common Stock or by a "cashless exercise" procedure in which an Optionee is permitted to exercise an Option by arranging with the Company and his or her broker to deliver the appropriate Option Price from the concurrent market sale of the acquired shares, or a combination of the foregoing (subject to the discretion of the Committee or the Board). An employee's withholding tax due upon exercise of a Nonqualified Stock Option
may be satisfied either by a cash payment or the retention from the exercise of a number of shares of Common Stock with a fair market value equal to the required withholding tax, as the Committee or the Board may permit.
In addition, with respect to the exercise of any Nonqualified Stock Option, the Board or the Committee (or an authorized representative) shall advise the optionee, upon receipt of notice of intent to exercise such Option, of the income tax withholding consequences to such Optionee of such exercise, the amount of the appropriate withholding tax and any other payments due by reason thereof. Such Optionee must satisfy all of the preceding payment requirements in order to receive stock upon exercise of such Option.
(B) OPTION PERIOD. Any Options granted pursuant to this Plan must be granted by July 31, 2001. Each Option shall state the date upon which it is granted. Each option shall be exercisable during such period as is provided under the terms of the Option, but in no event shall an Option be exercisable after the expiration of ten years from the date of grant. Except in the case of death or disability, Incentive Stock Options may be exercised within three months (or for such shorter period as may be specified in the particular Option) after termination of employment to the extent such Options were exercisable at the date of termination, and Nonqualified Stock Options may be exercised after termination of employment or other service to the Company for such period as may be specified in the particular Option. In the event of the disability of an Optionee, Incentive Stock Options may be exercised for up to one year after disability of the Optionee, to the extent exercisable prior to the date of disability. Nonqualified Stock Options may be exercised following the Optionee's death or disability and Incentive Stock Options may be exercised following the Optionee's death by such Optionee or by his or her estate, heirs, or devisees, as the case may be, for such period thereafter as may be specified in the particular Option.
(C) ASSIGNABILITY. An Option granted pursuant to this Plan shall be exercisable during the Optionee's lifetime only by the Optionee and shall not be assignable or transferable by the Optionee (except with the Committees prior written approval, and only in any such additional CIRCUMSTANCES as shall not affect the Plans qualification with the requirements of the incentive stock option provisions of the Internal Revenue Code, the requirements of Rule 16b-3 under the Exchange Act or the plan eligibility requirements for the use of Form S-8 of the Securities Act) , and shall not be subject to levy, attachment or similar process. Upon any other attempt to transfer, assign, pledge or otherwise dispose of Options granted under this Plan, such Options shall immediately terminate and become null and void.
(D) LIMIT ON 10% SHAREHOLDER. No Incentive Stock option may be
granted under this Plan to any individual who would,
immediately after the grant of such Incentive Stock Option
directly or indirectly own more than 10% of the total
combined voting power of all classes of stock of the
Company or of any parent or subsidiary corporation unless
(i) such Incentive Stock option is
granted at an Option Price not less than 110% of the fair market value of the shares on the date the Incentive Stock Option is granted, and (ii) such Incentive Stock Option expires, on a date not later than five years from the date the Incentive Stock Option is granted.
(E) LIMITS ON OPTIONS. An individual may be granted one or more Options, provided that the aggregate fair market value (determined as of the time the Option is granted) of Common Stock for which an individual may be granted Incentive Stock Options that are first exercisable in any calendar year (under all stock option plans of the Company and any parent or subsidiary corporations, if any) may not exceed $100,000.
(F) RIGHTS AS SHAREHOLDER. An Optionee, or a transferee by
will or inheritance of an Option has no rights with
respect to any shares covered by an Option until the date
of the issuance of a stock certificate for such shares and
the recording of such issuance upon the Company's stock
ledger by its duty appointed, regular transfer agent. No
adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the
record date is prior to such date, except as provided in
Section 5 hereof.
(G) ADDITIONAL PROVISIONS. The Options authorized under this Plan shall contain shall contain such other provisions as the Board or Committee shall deem advisable, including, without limitation, further restrictions upon the exercise of the Option. Any Incentive Stock Option shall contain such limitations and restrictions upon the exercise of the option as shall be necessary in order that the Option shall be an "incentive stock option" as defined in section 422 of the Internal Revenue Code.
(H) COMPLIANCE WITH SECURITIES LAWS. At the time, of exercise of any Option, the company may require the Optionee to execute any documents or take any action which may then be necessary to comply with the Securities Act and the rules and regulations adopted thereunder, or any other applicable federal or state laws regulating the sale and issuance of securities, and the Company may, if it deems necessary, include provisions in the Options to assure such compliance. The Company may from time to time change its requirements with respect to enforcing compliance with federal and state securities laws, including the request for, or insistence upon, letters of investment intent, such requirements to be determined by the Company in its judgment as necessary to assure compliance with said securities laws. Such changes may be made with respect to any particular Option or to any stock issued upon exercise thereof.
5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of any change in the number of issued and outstanding shares of Common Stock which results from a stock split, reverse stock split, the payment of a stock
dividend or any other change in the capital structure of the
Company, such as a merger, consolidation, reorganization or
recapitalization, the Board or Committee shall appropriately
adjust (a) the maximum number of shares which may be issued
under this Plan (b) the number of shares subject to each
outstanding Option, and (c) the Option Price per share
thereof, so that upon exercise of the Option the Optionee
shall receive the same number of shares the Optionee would
have received had the Optionee been the holder of all shares
subject to such outstanding Options immediately before the
effective date of such change in the number of issued shares
of the Common Stock of the Company. Any such adjustment
shall not result in or entitle the Optionee to the issuance
of fractional shares. Instead, appropriate adjustments to
any such Option and, in the aggregate, all other options of
the Company of the same class (that is, Incentive Stock
Options or Nonqualified Stock Options) held by each Optionee
shall be made so that such Option and other options of the
same class, if any, held by any such Optionee cover the
greatest whole number of shares of the Common Stock which
does not exceed the number of shares which would be covered
applying such adjustments in the absence of any restriction
on the issuance of fractional shares. Any excess fractional
share shall be redeemed in cash at the then-current fair
market value of the Common Stock (determined as provided in
Section 4(A) hereof) multiplied by the appropriate fraction
of a share.
6. TERMINATION OR AMENDMENT OF THE PLAN. The Board of Directors may at any time suspend, amend, or terminate this Plan, provided that, except as set forth in Section 5 hereof, no amendment may be adopted that will change the requirement that the Option Price be at least a specified percentage of the fair market value of the Common Stock or change the provisions required for compliance with section 422 of the Internal Revenue Code, except to conform to a change in the requirements of such law or regulations thereof. Except as otherwise specifically provided herein, the Board shall not, without the approval of the shareholders of the Company, amend this Plan so as to materially increase the benefits accruing to Optionees under the Plan, increase the aggregate number of shares that may be issued under this Plan or materially modify the requirements for eligibility for participation in the Plan. No amendment or termination of the Plan shall, without the consent of the Optionee, alter or impair any rights or obligations under any option previously granted under the Plan.
EXHIBIT 5.1
May 16, 2001
GlobalSCAPE, Inc.
6000 Northwest Boulevard, Suite 101
San Antonio, Texas 78249
Re: GlobalSCAPE, Inc. Registration Statement on Form S-8 (the "Registration Statement")
Ladies and Gentlemen:
I have acted as counsel to GlobalSCAPE, Inc., a Delaware corporation, ("GlobalSCAPE") in connection with the registration of 1,424,980 shares of common stock of GlobalSCAPE (the "Shares") on Form S-8. The Shares are issuable upon exercise of options ("Options") granted under the GlobalSCAPE, Inc. 1998 Stock Option Plan (the "Plan"). I am furnishing this opinion in accordance with the requirements of Item 8(a) of Form S-8.
I have reviewed those questions of law and that portion of GlobalSCAPE's records as I deemed necessary to provide this opinion. Based on the assumptions listed below, I am of the opinion that the Shares, when issued in accordance with the terms of the Plan and the terms of the grants of the Options, will be duly authorized, validly issued, fully paid and nonassessable:
1. The Options will be exercised in accordance with applicable law;
2. At the time of the exercise of the Options, GlobalSCAPE will have sufficient authorized and unissued shares of common stock available for issuance;
3. The Shares will be evidenced by appropriate certificates properly executed and delivered;
4. The Options have been or will be granted in accordance with the terms of the Plan;
I consent to the filing of this opinion as an Exhibit to the Registration Statement. In giving this consent, I do not admit that I come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, the rules or regulations of the Securities and Exchange Commission promulgated thereunder or any similar provision of any state securities laws or regulations.
Very truly yours,
/s/ Alice L. King Alice L. King General Counsel GlobalSCAPE, Inc. |
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the GlobalSCAPE, Inc. 1998 Stock Option Plan of our report dated March 2, 2001, with respect to the financial statements of GlobalSCAPE, Inc. included in its Annual Report (Form 10-K) for year ended December 31, 2000 and our report dated May 9, 2000, except for Note 1, as to which the date is July 25, 2000, with respect to the financial statements of GlobalSCAPE, Inc. included in the Registration Statement on Form 10 ( as amended).
/s/ Ernst & Young LLP
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San Antonio, Texas
May 14, 2001
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