As filed with the Securities and Exchange Commission on August 16, 2010

Registration No. 333-             

 

 

 

UNITED STATES

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

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

4500 Lockhill Selma, Suite 150

San Antonio, Texas 78249

(Address of Principal Executive Offices)

 

 

GlobalSCAPE, Inc.

2010 Employee Long-Term Equity Incentive Plan

(Full Title of the Plans)

 

 

Mendy R. Marsh

Vice President and Chief Financial Officer

4500 Lockhill Selma, Suite 150

San Antonio, Texas 78249

(210) 308-8267

(Name, address and telephone number of agent for service)

 

 

Copies of all communications to:

Steven R. Jacobs, Esq.

Jackson Walker L.L.P.

112 East Pecan, Suite 2400

San Antonio, Texas 78205

(210) 978-7700

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities

to be Registered (1)

 

Amount

to be

Registered

 

Proposed

Maximum

Offering Price

Per Share

 

Proposed

Maximum

Aggregate

Offering Price

 

Amount of

Registration Fee

Common Stock, $0.001 par value per share

  3,000,000   $2.91(2)   $8,730,000(2)   $622.45
 
 
(1) Upon a future stock split, stock dividend or similar transaction involving the common stock of the Registrant and during the effectiveness of this Registration Statement, the number of securities registered shall be automatically increased to cover the additional securities in accordance with Rule 416(a) under the Securities Act of 1933.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) of the Securities Act of 1933 based upon the average of the high and low prices of shares of the registrant’s common stock as reported on the NYSE Amex, on August 12, 2010.

 

 

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

The following documents, which previously have been filed with the Commission, are incorporated herein by reference and made a part hereof:

 

  (a) The Registrant’s latest annual report filed pursuant to Sections 13(a) or 15(d) of the Exchange Act, that contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed:

 

  •  

Our Annual Report on Form 10-K for the year ended December 31, 2009, filed with the Commission on March 30, 2010.

 

  (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred in (a) above:

 

  •  

Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, filed with the Commission on May 13, 2010; our Quarterly Report on Form 10-Q for the quarter ended June 30, 2010, filed with the Commission on August 12, 2010 and

 

  •  

Our Current Reports on Form 8-K, filed with the Commission on March 19, 2010, June 7, 2010, and August 12, 2010.

 

  (c) See Description of the Common Stock contained in the Registration Statement on Form 8-A, filed on July 17, 2007.

Notwithstanding the foregoing, information that we elect to furnish, but not file, or have furnished, but not filed, with the Commission in accordance with Commission rules and regulations is not incorporated into this Registration Statement, shall not be deemed “filed” under the Securities Act of 1933, as amended, and does not constitute a part hereof.

All documents filed by us with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the date hereof and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall hereby be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document incorporated or deemed to be incorporated herein by reference modifies or supersedes such statement. Any statement contained herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document incorporated or deemed to be incorporated herein by reference modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

Not applicable.

 

2

Item 6. Indemnification of Directors and Officers.

The Company’s Amended and Restated Certificate of Incorporation provides that a director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, as the same may be amended, or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended to authorize the further elimination or limitation on personal liability of directors, then the liability of a director of the Company, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended Delaware General Corporation Law.

The Company’s Amended and Restated Certificate of Incorporation provides that each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer, of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent shall be indemnified and held harmless by the Company to the fullest extent authorized by the Delaware General Corporation Law, as amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that except for certain exceptions set forth in the Amended and Restated Certificate of Incorporation, the Company shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Company. The right to indemnification set forth in the Amended and Restated Certificate of Incorporation is a contract right and includes the right to be paid by the Company the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Company of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under the Amended and Restated Certificate of Incorporation. The Company may, by action of its Board of Directors, provide indemnification to employees and agents of the Company with the same scope and effect as the foregoing indemnification of directors or officers.

The Company’s Amended and Restated Certificate of Incorporation also provides that the Company may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Company or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing, the registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

Item 7. Exemption from Registration Claimed.

Not Applicable.

 

3

Item 8. Exhibits

 

No.

 

Description

  4.1

  Specimen of Stock Certificate (Filed as Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K filed April 2, 2001).

  4.2

  Amended and Restated Certificate of Incorporation (Filed as Exhibit 3.1 to Registrant’s Current Report on Form 8-K filed November 17, 2006).

  4.3

  Amended and Restated Bylaws of the Company effective as of October 30, 2008 (Filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed November 5, 2008).

  5.1*

  Opinion of Jackson Walker L.L.P.

10.1

  GlobalSCAPE, Inc. 2010 Employee Long-Term Equity Incentive Plan (Filed as Appendix A to the Registrant’s 2010 Proxy Statement filed on April 22, 2010.

23.1*

  Consent of PMB Helin Donovan, LLP.

23.2*

  Consent of Grant Thornton LLP.

23.3*

  Consent of Jackson Walker L.L.P. (included in the opinion filed as Exhibit 5.1 hereto).

24.1*

  Power of Attorney (included on the signature page of this Registration Statement).

 

* filed herewith

 

Item 9. Undertakings.

The Registrant undertakes the following:

 

  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, as amended (the “ Securities Act ”).

 

  (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 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

 

  (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.

 

4

Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8 and 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, as amended (the “Exchange Act”) that are incorporated by reference in the Registration Statement.

 

  2. That, for the purpose of determining any liability under the Securities Act, 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.

 

  4. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act that is incorporated by reference in the 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.

 

  5. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities 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 the 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 counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

5

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 August 12, 2010.

 

GLOBALSCAPE, INC.
By:   / S /    M ENDY M ARSH        
 

Mendy Marsh,

Vice President and Chief Financial Officer

Dated:   August 12, 2010

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Each of such persons appoints Mendy R. Marsh, with full power to act, his true and lawful attorney-in-fact and agent of him and on his behalf and in his name, place and stead, and in any and all capacities, with full and several power of substitution, to sign and file with the proper authorities any and all documents in connection with this Registration Statement on Form S-8, including amendments thereto, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorney-in-fact and agent, may lawfully do or cause to be done by virtue hereof.

 

Name

  

Title

 

Date

/ S /    J AMES R. M ORRIS        

  

Director, President and

Chief Executive Officer

(Principal Executive Officer)

  August 12, 2010
James R. Morris     

/ S /    M ENDY M ARSH        

  

Vice President and Chief Financial

Officer (Principal Financial and

Accounting Officer)

  August 12, 2010
Mendy Marsh     

/ S /    T HOMAS W. B ROWN        

   Director   August 12, 2010
Thomas W. Brown     

/ S /    D AVID L. M ANN        

   Director   August 12, 2010
David L. Mann     

/ S /    P HILLIP M. R ENFRO        

   Director   August 12, 2010
Phillip M. Renfro     

/ S /    F RANK M. M ORGAN        

   Director   August 12, 2010
Frank M. Morgan     

 

6

INDEX TO EXHIBITS

 

No.

 

Description

  4.1   Specimen of Stock Certificate (Filed as Exhibit 4.1 to the Registrant’s Annual Report on Form 10-K filed April 2, 2001).
  4.2   Amended and Restated Certificate of Incorporation (Filed as Exhibit 3.1 to Registrant’s Current Report on Form 8-K filed November 17, 2006).
  4.3   Amended and Restated Bylaws of the Company effective as of October 30, 2008 (Filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed November 5, 2008).
  5.1*   Opinion of Jackson Walker L.L.P.
10.1   GlobalSCAPE, Inc. 2010 Employee Long-Term Equity Incentive Plan (Filed as Appendix A to the Registrant’s 2010 Proxy Statement filed on April 22, 2010.
23.1*   Consent of PMB Helin Donovan, LLP.
23.2*   Consent of Grant Thornton LLP.
23.3*   Consent of Jackson Walker L.L.P. (included in the opinion filed as Exhibit 5.1 hereto).
24.1*   Power of Attorney (included on the signature page of this Registration Statement).

 

7

Exhibit 5.1

LOGO

August 12, 2010

GlobalSCAPE, Inc.

6000 Northwest Parkway, Suite 100

San Antonio, Texas 78249

 

  Re: GlobalSCAPE, Inc. 2010 -Employee Long-Term Equity Incentive Plan

Dear Ladies and Gentlemen:

We have acted as counsel to GlobalSCAPE, Inc., a Delaware corporation (the “Company”), in connection with its Registration Statement on Form S-8 (the “Registration Statement”) filed under the Securities Act of 1933, as amended (the “Act”), relating to the registration of a total of 3,000,000 shares (the “Shares”) of its Common Stock, par value $0.001 per share (“Common Stock”), reserved for issuance under that certain 2010 Employee Long-Term Equity Incentive Plan (the “Plan”).

We have examined and relied upon the originals or certified copies of all documents, certificates and instruments as we have deemed necessary to the opinions expressed herein, including the Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company and copies of the Plan. In making the foregoing examinations, we have assumed the genuineness of all signatures on original documents, the authenticity of all documents submitted to us as originals and the conformity to original documents of all copies submitted to us, and the legal competence of all signatories to such documents.

We have assumed that (i) at the time of issuance of any Shares, there shall be a sufficient number of duly authorized and unissued shares of Common Stock to accommodate such issuance; (ii) appropriate action will be taken to register and qualify the Shares for sale under all applicable state securities laws; (iii) the Shares to be sold are issued in accordance with the terms of the Plan; (iv) the Company receives the full consideration for the Shares as stated in the Plan; and (v) the per share consideration for each Share includes payment of cash or other lawful consideration at least equal to the par value of the Company’s Common Stock. It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is still in effect.

Based solely upon the foregoing, and limited in all respects to the General Corporation Law of the State of Delaware and the federal laws of the United States of America, it is our opinion that the Shares have been duly authorized, and when issued and delivered in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.

We hereby consent to the use of this opinion as an Exhibit to the Registration Statement. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.

 

Very truly yours,
/s/ Jackson Walker, L.L.P.
JACKSON WALKER, L.L.P.

SRJ/             

112 East Pecan Street, Suite 2400   —   San Antonio, Texas 78205   —   (210) 978-7700   —   fax (210) 978-7790

 

 

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Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Board of Directors

GlobalSCAPE, Inc. and Subsidiaries:

We consent to the incorporation by reference in the Registration Statements pertaining to the 2010 Employee Long-Term Equity Incentive Plan of GlobalSCAPE, Inc. (Form S-8 No. 333-              ), of GlobalSCAPE, Inc. of our report dated March 21, 2008 (August 28, 2008 as to note 12 and the effects of the restatement) with respect to the consolidated financial statements of GlobalSCAPE, Inc. included in the Annual Report (Form 10-K) as of December 31, 2007 (restated) and for the year ended December 31, 2007 (restated).

 

/s/ PMB Helin Donovan, LLP

Austin, Texas
August 12, 2010

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTANT

We have issued our report dated March 30, 2010, with respect to the financial statements included in the Annual Report of GlobalSCAPE, Inc. on Form 10-K for the year ended December 31, 2009 which are incorporated by reference in this Registration Statement. We hereby consent to the incorporation by reference in the Registration Statement of the aforementioned report.

 

/s/ GRANT THORNTON LLP
Houston, Texas
August 12, 2010