As filed with the Securities and Exchange Commission on September 15, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
SECURE COMPUTING CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 52-1637226
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2675 LONG LAKE ROAD 55113
ROSEVILLE, MINNESOTA (Zip Code)
(Address of principal executive offices)
SECURE COMPUTING CORPORATION
1997 NON-OFFICER STOCK OPTION PLAN
(Full title of the plan)
Jeffrey H. Waxman
Chairman and Chief Executive Officer
Secure Computing Corporation
2675 Long Lake Road
Roseville, Minnesota 55113
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (612) 628-2700
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================
Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to to be offering price offering registration
be registered registered(1) per share(1)(2) price(1)(2) fee
======================================================================================================
<S> <C> <C> <C> <C>
Common Stock, 250,000
$.01 par value shares $6.125 $1,531,250 $464
======================================================================================================
</TABLE>
(1) The Registration Statement relates to 250,000 shares of Common Stock to
be offered pursuant to the registrant's 1997 Non-Officer Stock Option
Plan.
(2) Estimated solely for the purpose of the registration fee pursuant to
Rule 457(h)(1) based on the average of the high and low sales prices
per share of the Registrant's Common Stock on September 8, 1997, as
reported on the Nasdaq National Market.
================================================================================
<PAGE>
SECURE COMPUTING CORPORATION
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed (File No. 0-27074)
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are, as of
their respective dates, incorporated by reference and made a part hereof:
(1) The latest Annual Report on Form 10-K of Secure
Computing Corporation (the "Company") for the fiscal year
ended December 31, 1996 filed pursuant to Section 13 of the
Exchange Act.
(2) 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 Annual Report referred to in (1) above.
(3) The description of the Company's Common Stock
which is contained in the Registration Statement on Form 8-A
(Registration No. 0-27074) filed October 27, 1995, (and
declared effective on November 16, 1995) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and all
amendments and reports filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicate that all of the shares of Common Stock
offered have been sold or which deregister all shares of the Common Stock then
remaining unsold shall be deemed to be incorporated by reference in and a part
of this Registration Statement from the date of filing of such documents.
Any statement contained in a document incorporated, or deemed
to be incorporated, by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or incorporated herein by reference or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law and Article V of the
By-Laws of the Company provide for broad indemnification of directors and
officers of the Company.
<PAGE>
The Company also maintains a director and officer insurance
policy which insures the Company and its directors and officers against damages,
judgments, settlements and costs incurred by reason of certain acts of such
persons in their capacities as directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Description
------- -----------
4 Secure Computing Corporation 1997 Non-Officer Stock
Option Plan.
5 Opinion of Faegre & Benson LLP.
23.1 Consent of Faegre & Benson LLP (contained in Exhibit
5 to this Registration Statement).
23.2 Consent of Ernst & Young LLP
23.3 Consent of Price Waterhouse, Chartered Accountants,
Toronto, Canada
23.4 Consent of Price Waterhouse LLP, San Jose, California
23.5 Consent of McClurkin Ahier & Company, Chartered
Accountants
24 Powers of Attorney.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Roseville,
State of Minnesota, on September 12, 1997.
SECURE COMPUTING CORPORATION
By /s/ Jeffrey H. Waxman
----------------------------------------
Jeffrey H. Waxman
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 12, 1997.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Jeffrey H. Waxman President, Chief Executive Officer and Director
- ------------------------------- (Principal Executive Officer)
Jeffrey H. Waxman
/s/ Timothy P. McGurran Vice President of Operations and Chief Financial Officer
- ------------------------------- (Principal Financial and Accounting Officer)
Timothy P. McGurran
Betsy S. Atkins* Director
Eric P. Rundquist* Director
Robert J. Frankenberg* Director
Glenn G. Mackintosh* Director A majority of the
Board of Directors
Stephen M. Puricelli* Director
Dennis J. Shaughnessy* Director
</TABLE>
* Jeffrey H. Waxman, by signing his name hereto, does hereby sign this
document on behalf of each of the above named directors of the
Registrant pursuant to powers of attorney duly executed by each person.
By /s/ Jeffrey H. Waxman
-------------------------------------
Jeffrey H. Waxman, Attorney in Fact
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Method
Exhibit Description of Filing
- ------- ----------- ---------
<S> <C>
4 Secure Computing Corporation 1997 Non-Officer Stock Option
Plan..............................................................................Filed Electronically
5 Opinion of Faegre & Benson LLP....................................................Filed Electronically
23.1 Consent of Faegre & Benson LLP
(contained in its opinion filed as Exhibit 5 to this Registration Statement)
23.2 Consent of Ernst & Young LLP......................................................Filed Electronically
23.3 Consent of Price Waterhouse, Chartered Accountants, Toronto, Canada...............Filed Electronically
23.4 Consent of Price Waterhouse LLP, San Jose, California.............................Filed Electronically
23.5 Consent of McClurkin Ahier & Company, Chartered Accountants.......................Filed Electronically
24 Powers of Attorney................................................................Filed Electronically
</TABLE>
EXHIBIT 4
SECURE COMPUTING CORPORATION
1997 NON-OFFICER STOCK OPTION PLAN
1. PURPOSE. The purpose of this Secure Computing Corporation 1997
Non-Officer Stock Option Plan (the "Plan") is to motivate personnel (other than
officers and directors) to produce a superior return to the stockholders of the
Company by offering such personnel an opportunity to realize Stock appreciation,
by facilitating Stock ownership and by rewarding them for achieving a high level
of corporate financial performance. The Plan is also intended to facilitate
recruiting and retaining personnel of outstanding ability by providing an
attractive capital accumulation opportunity.
2. DEFINITIONS AND RULES OF CONSTRUCTION. The capitalized terms used in
this Plan have the meanings, and certain rules of construction are, set forth in
the list of defined terms attached to this Plan as Exhibit A.
3. ADMINISTRATION.
3.1 AUTHORITY OF COMMITTEE. The Committee shall administer the
Plan. Solely for purposes of determining and administering Awards to
Employees who are not then subject to the reporting requirements of
Section 16 of the Exchange Act, the Committee may delegate all or any
portion of its authority under the Plan to persons who are not
Non-Employee Directors. The Committee shall have exclusive power to
make Awards, to determine when and to whom Awards will be granted, the
amount of each Award, and any other terms or conditions of each Award.
Each Award shall be subject to an Agreement authorized by the
Committee. The Committee's interpretation of the Plan and of any Awards
made under the Plan shall be final and binding on all persons with an
interest therein. The Committee shall have the power to establish
regulations to administer the Plan and to change such regulations.
3.2 INDEMNIFICATION. To the full extent permitted by law, (i)
no member of the Committee or any person to whom the Committee
delegates authority under the Plan shall be liable for any action or
determination taken or made in good faith with respect to the Plan or
any Award made under the Plan, and (ii) the members of the Committee
and each person to whom the Committee delegates authority under the
Plan shall be entitled to indemnification by the Company with regard to
such actions and determinations.
4. SHARES AVAILABLE UNDER THE PLAN. The number of Shares that may be
made subject to Awards granted under this Plan available for distribution shall
not exceed 250,000 (subject to adjustment pursuant to Section 11 hereof). Any
Shares subject to the terms and
<PAGE>
conditions of an Award under this Plan which are not issued because the Award is
not exercised may again be used for an Award under the Plan.
5. ELIGIBILITY. The granting of Awards to Employees is solely at the
discretion of the Committee.
6. TERMS OF AWARDS.
6.1 AGREEMENT; PURCHASE PRICE. An Option shall be granted
pursuant to an Agreement in such form as the Committee may approve. The
purchase price of each Share subject to an Option shall be determined
by the Committee and set forth in the Agreement, but shall not be less
than 50% of the Fair Market Value of a Share as of the date the Option
is granted. The purchase price of the Shares with respect to which an
Option is exercised shall be payable in full at the time of exercise,
provided that to the extent permitted by law, the Agreement may permit
some or all Participants to simultaneously exercise Options and sell
the Shares thereby acquired pursuant to a brokerage or similar
relationship and use the proceeds from such sale as payment of the
purchase price of such Shares. The purchase price may be payable in
cash, in Stock having a Fair Market Value as of the date the Option is
exercised equal to the purchase price of the Stock being purchased
pursuant to the Option, or a combination thereof, as determined by the
Committee and provided in the Agreement. Provided, however, that a
person exercising an Option shall not be permitted to pay any portion
of the purchase price with Stock if, in the opinion of the Committee,
payment in such manner could have adverse financial accounting
consequences for the Company. Each Option shall be exercisable in whole
or in part on the terms provided in the Agreement. In no event shall
any Option be exercisable at any time after its expiration date. When
an Option is no longer exercisable, it shall be deemed to have lapsed
or terminated.
6.2 AMOUNT. Each Agreement shall set forth the number of
Shares to which the Option subject to such Agreement applies.
6.3 TERM. Each Agreement shall set forth the Term of the
Option. An Agreement may permit acceleration of the commencement of the
applicable Term upon such terms and conditions as shall be set forth in
the Agreement, which may, but need not, include without limitation
acceleration resulting from the occurrence of an Event, Fundamental
Change, or in the event of the Participant's death or Retirement.
6.4 TRANSFERABILITY. During the lifetime of a Participant to
whom an Award is granted, only such Participant (or such Participant's
legal representative) may exercise the Option. No Award may be sold,
assigned, transferred, exchanged or otherwise encumbered other than
pursuant to a qualified domestic relations order as defined in the Code
or Title 1 of the Employee Retirement Income Security Act
<PAGE>
("ERISA") or the rules thereunder, and any attempt to do so shall be of
no effect; provided, however, that any Participant may transfer an
Option granted under this Plan to a member or members of his or her
immediate family (i.e., his or her children, grandchildren and spouse)
or to one or more trusts for the benefit of such family members or
partnerships in which such family members are the only partners, if (i)
the Agreement with respect to such Option expressly so provides either
at the time of initial grant or by amendment to an outstanding
Agreement and (ii) the Participant does not receive any consideration
for the transfer. Any Option held by any such transferee shall continue
to be subject to the same terms and conditions that were applicable to
such Option immediately prior to its transfer and may be exercised by
such transferee as and to the extent that such Option has become
exercisable and has not terminated in accordance with the provisions of
the Plan and the applicable Agreement. For purposes of any provision of
this Plan relating to notice to a Participant or to vesting or
termination of an Option upon the death, Total and Permanent Disability
or termination of employment of a Participant, the references to
"Participant" shall mean the original grantee of an Option and not any
transferee. Notwithstanding the immediately preceding sentence, an
Agreement may provide that the Award subject to the Agreement shall be
transferable to a Successor in the event of a Participant's death.
6.5 TERMINATION OF EMPLOYMENT. No Option may be exercised by
any Participant, after (i) the expiration of the three-month period (or
such other time period as the Committee may, in its sole discretion,
determine) following the date the Participant's employment by the
Company ceases, including cessation of employment because of death,
Retirement, or Total and Permanent Disability, or (ii) if applicable,
the date of breach by a Participant of any provision of any employment
agreement between the Company and Participant. An Award may be
exercised by, or paid to, the Successor of a Participant following the
death of such Participant to the extent, and during the period of time,
if any, provided in the applicable Agreement.
7. EFFECTIVE DATE OF THE PLAN.
7.1 EFFECTIVE DATE. The Plan shall become effective as of
August 5, 1997.
7.2 DURATION OF THE PLAN. The Plan shall remain in effect
until all Stock subject to it shall be distributed or until all Awards
have expired or lapsed, or the Plan is terminated pursuant to Section
10.
8. RIGHT TO TERMINATE EMPLOYMENT. Nothing in the Plan shall confer upon
any Participant the right to continue in the employment of the Company or any
Affiliate or affect any right which the Company or any Affiliate may have to
terminate the employment of the Participant with or without cause.
<PAGE>
9. TAX WITHHOLDING. The Company shall have the right to require a
Participant or other person receiving Stock under the Plan to pay the Company a
cash amount sufficient to cover any required withholding taxes. In lieu of all
or any part of such a cash payment from a person receiving Stock under the Plan,
the Committee may permit the individual to elect to cover all or any part of the
required withholdings, and to cover any additional withholdings up to the amount
needed to cover the individual's full FICA and Medicare, and federal, state and
local income tax with respect to income arising from payment of the Award,
through a reduction of the number of Shares delivered to him or a subsequent
return to the Company of Shares held by the Participant or other person, in each
case valued in the same manner as used in computing the withholding taxes under
the applicable laws.
10. AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN. The Board may
at any time terminate, suspend or modify the Plan. No termination, suspension,
or modification of the Plan will materially and adversely affect any right
acquired by any Participant (or his legal representative) or any Successor under
an Award granted before the date of termination, suspension, or modification,
unless otherwise agreed to by the Participant in the Agreement or otherwise or
required as a matter of law; but it will be conclusively presumed that any
adjustment for changes in capitalization provided for in Section 11 does not
adversely affect any right.
11. ADJUSTMENT FOR CHANGES IN CAPITALIZATION. Appropriate adjustments
in the aggregate number and type of Shares available for Awards under the Plan,
in the number and type of Shares subject to Awards then outstanding and in the
Option price as to any outstanding Options may be made by the Committee in its
sole discretion to give effect to adjustments made in the number or type of
Shares of the Company through a Fundamental Change (subject to Section 12),
recapitalization, reclassification, stock dividend, stock split, stock
combination or other relevant change, provided that fractional Shares shall be
rounded to the nearest whole share.
12. FUNDAMENTAL CHANGE. In the event of a proposed Fundamental Change,
the Committee may, but shall not be obligated to:
a. if the Fundamental Change is a merger or consolidation or
statutory share exchange, make appropriate provision for the protection
of the outstanding Options by the substitution of options and
appropriate voting common stock of the corporation surviving any merger
or consolidation or, if appropriate, the parent corporation of the
Company or such surviving corporation to be issuable upon the exercise
of Options, in lieu of options and capital stock of the Company; or
b. at least 30 days prior to the occurrence of the Fundamental
Change, declare, and provide written notice to each holder of an Option
of the declaration, that each outstanding Option, whether or not then
exercisable, shall be canceled at the time of, or immediately prior to
the occurrence of the Fundamental Change in exchange for
<PAGE>
payment to each holder of an Option, within ten days after the
Fundamental Change, of cash equal to, for each Share covered by the
canceled Option, the amount, if any, by which the Fair Market Value (as
hereinafter defined in this Section) per Share exceeds the exercise
price per Share covered by such Option. At the time of the declaration
provided for in the immediately preceding sentence, each Option shall
immediately become exercisable in full and each person holding an
Option shall have the right, during the period preceding the time of
cancellation of the Option, to exercise such Option as to all or any
part of the Shares covered thereby. In the event of a declaration
pursuant to this Section 12(b), each outstanding Option granted
pursuant to the Plan that shall not have been exercised prior to the
Fundamental Change shall be canceled at the time of, or immediately
prior to, the Fundamental Change, as provided in the declaration.
Notwithstanding the foregoing, no person holding an Option shall be
entitled to the payment provided for in this Section 12(b) if such
Option shall have expired pursuant to the Agreement. For purposes of
this Section only, "Fair Market Value" per Share shall mean the cash
plus the fair market value, as determined in good faith by the
Committee, of the non-cash consideration to be received per Share by
the stockholders of the Company upon the occurrence of the Fundamental
Change, notwithstanding anything to the contrary provided in the Plan.
13. UNFUNDED PLAN. The Plan shall be unfunded and the Company shall not
be required to segregate any assets that may at any time be represented by
Awards under the Plan.
14. OTHER BENEFIT AND COMPENSATION PROGRAMS. Payments and other
benefits received by a Participant under an Award made pursuant to the Plan
shall not be deemed a part of a Participant's regular, recurring compensation
for purposes of the termination, indemnity or severance pay law of any country
and shall not be included in, nor have any effect on, the determination of
benefits under any other employee benefit plan, contract or similar arrangement
provided by the Company or an Affiliate unless expressly so provided by such
other plan, contract or arrangement, or unless the Committee expressly
determines that an Award or portion of an Award should be included to accurately
reflect competitive compensation practices or to recognize that an Award has
been made in lieu of a portion of competitive cash compensation.
15. BENEFICIARY UPON PARTICIPANT'S DEATH. To the extent that the
transfer of a Participant's Award at his death is permitted under an Agreement,
(i) a Participant's Award shall be transferable at his death to the beneficiary,
if any, designated on forms prescribed by and filed with the Committee and (ii)
upon the death of the Participant, such beneficiary shall succeed to the rights
of the Participant to the extent permitted by law. If no such designation of a
beneficiary has been made, the Participant's legal representative shall succeed
to the Awards which shall be transferable by will or pursuant to laws of descent
and distribution to the extent permitted under an Agreement.
<PAGE>
16. GOVERNING LAW. To the extent that Federal laws do not otherwise
control, the Plan and all determinations made and actions taken pursuant to the
Plan shall be governed by the laws of Delaware and construed accordingly.
<PAGE>
EXHIBIT A
SECURE COMPUTING CORPORATION
1997 NON-OFFICER STOCK OPTION PLAN
DEFINED TERMS AND RULES OF CONSTRUCTION
1. DEFINITIONS.
Set forth below are the meanings of certain terms used in this Plan.
a. "Affiliate" means any corporation that is a "parent
corporation" or "subsidiary corporation" of the Company, as those terms
are defined in Section 424(e) and (f) of the Code, or any successor
provision.
b. "Agreement" means a written contract entered into between
the Company or an Affiliate and a Participant containing the terms and
conditions of an Award in such form and not inconsistent with this Plan
as the Committee shall approve from time to time, together with all
amendments thereto, which amendments may be unilaterally made by the
Company (with the approval of the Committee) unless such amendments are
deemed by the Committee to be materially adverse to the Participant and
are not required as a matter of law.
c. "Award" means a grant made under this Plan in the form of
Options.
d. "Board" means the Board of Directors of the Company.
e. "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
f. "Committee" means three or more Disinterested Persons
designated by the Board to administer the Plan under Section 3.
g. "Company" means Secure Computing Corporation, a Delaware
corporation, or any successor to substantially all of its businesses.
h. "Effective Date" means the date specified in Section 7.1
hereof.
i. "Employee" means (i) any full-time employee of the Company
who is not an officer or director of the Company or any parent
corporation of the Company and (ii) any contractor or advisor to or
representative of the Company or any Affiliate thereof, notwithstanding
that such person is an not an employee of the Company within the
meaning of the Code. References in this Plan to "employment" and
related
<PAGE>
terms shall include the providing of services in the capacity as
contractor or other advisor to or representative of the Company.
j. "Event" means any of the following; provided, however, that
no Event shall be deemed to have occurred unless and until a majority
of the directors constituting the Incumbent Board (as defined below)
shall have declared that an Event has occurred:
(1) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act) of beneficial ownership (within the meaning
of Exchange Act Rule 13d-3) of 20% (except for acquisitions by
any individual, entity or group that, prior to the
effectiveness of this Plan, owns 20 % or more of any class of
capital stock of the Company) or more of either (i) the then
outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined
voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of the
Board (the "Outstanding Company Voting Securities"); provided,
however, that the following acquisitions shall not constitute
an Event:
(A) any acquisition of voting securities of
the Company directly from the Company,
(B) any acquisition of voting securities of
the Company by the Company or any of its wholly owned
Subsidiaries,
(C) any acquisition of voting securities of
the Company by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
of its Subsidiaries, or
(D) any acquisition by any corporation with
respect to which, immediately following such
acquisition, more than 60% of respectively, the then
outstanding shares of common stock of such
corporation and the combined voting power of the then
outstanding voting securities of such corporation
entitled to vote generally in the election of
directors is then beneficially owned, directly or
indirectly, by all or substantially all of the
individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities immediately prior to such acquisition in
substantially the same proportions as was their
ownership, immediately prior to such acquisition, of
the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be;
<PAGE>
(2) Individuals who, as of the Effective Date,
constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director of
the Board subsequent to the Effective Date whose election, or
nomination for election by the Company's stockholders, was
approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered a
member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest which was (or, if threatened, would have been) subject
to Exchange Act Rule 14a-11;
(3) Approval by the stockholders of the Company of a
reorganization, merger, consolidation or statutory exchange of
Outstanding Company Voting Securities, unless immediately
following such reorganization, merger, consolidation or
exchange, all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such reorganization,
merger, consolidation or exchange beneficially own, directly
or indirectly, more than 60% of, respectively, the then
outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may
be, of the corporation resulting from such reorganization,
merger, consolidation or exchange in substantially the same
proportions as was their ownership, immediately prior to such
reorganization, merger, consolidation or exchange, of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be; or
(4) Approval by the stockholders of the Company of
(i) a complete liquidation or dissolution of the Company or
(ii) the sale or other disposition of all or substantially all
of the assets of the Company, other than to a corporation with
respect to which, immediately following such sale or other
disposition, more than 60% of, respectively, the then
outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such sale or other
disposition in substantially the same proportion as was their
ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be.
<PAGE>
Notwithstanding the above, an Event shall not be deemed to occur with
respect to a recipient of an Award if the acquisition of the 20% or
greater interest referred to in paragraph (1) is by a group, acting in
concert, that includes that recipient or if at least 40% of the then
outstanding common stock or combined voting power of the then
outstanding voting securities (or voting equity interests) of the
surviving corporation or of any corporation (or other entity) acquiring
all or substantially all of the assets of the Company shall be
beneficially owned, directly or indirectly, immediately after a
reorganization, merger, consolidation, statutory share exchange or sale
or other disposition of assets referred to in paragraphs (3) or (4) by
a group, acting in concert, that includes that recipient.
k. "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
l. "Fair Market Value" as of any date means, unless otherwise
expressly provided in the Plan:
(i) the closing price of a Share on the date
immediately preceding that date or, if no sale of Shares shall
have occurred on that date, on the next preceding day on which
a sale of Shares occurred,
(A) on the composite tape for New York Stock
Exchange listed shares, or
(B) if the Shares are not quoted on the
composite tape for New York Stock Exchange listed
shares, on the principal United States Securities
Exchange registered under the Exchange Act on which
the Shares are listed, or
(C) if the Shares are not listed on any such
exchange, on the Nasdaq National Market, or
(ii) if clause (i) is inapplicable, the mean between
the closing "bid" and the closing "asked" quotation of a Share
on the date immediately preceding that date, or, if no closing
bid or asked quotation is made on that date, on the next
preceding day on which a quotation is made, on the NASDAQ
System or any system then in use, or
(iii) if clauses (i) and (ii) are inapplicable, what
the Committee determines in good faith to be 100% of the fair
market value of a Share on that date.
However, if the applicable securities exchange or system has closed for
the day at the time the event occurs that triggers a determination of
Fair Market Value, whether the
<PAGE>
grant of an Award, the exercise of an Option or Stock Appreciation
Right or otherwise, all references in this paragraph to the "date
immediately preceding that date" shall be deemed to be references to
"that date". In the case of an Incentive Stock Option, if such
determination of Fair Market Value is not consistent with the then
current regulations of the Secretary of the Treasury, Fair Market Value
shall be determined in accordance with said regulations. The
determination of Fair Market Value shall be subject to adjustment as
provided in Section 16.
m. "Fundamental Change" shall mean a dissolution or
liquidation of the Company, a sale of substantially all of the assets
of the Company, a merger or consolidation of the Company with or into
any other corporation, regardless of whether the Company is the
surviving corporation, or a statutory share exchange involving capital
stock of the Company.
n. "Non-Employee Director" means a member of the Board who is
considered a non-employee director within the meaning of Exchange Act
Rule 16b-3(b)(3)(i) or any successor definition.
o. "Option" means a non-statutory right (which is not intended
to meet the requirements of Code Section 422 or any successor to said
section relating to "incentive stock options") to purchase Stock
pursuant to an Award under the Plan.
p. "Participant" means an Employee to whom an Award is made.
q. "Plan" means this Secure Computing Corporation 1997
Non-Officer Stock Option Plan, as amended from time to time.
r. "Retirement" as applied to a Participant, means (i) until
such time as the Company adopts an employee pension benefit plan (as
that term is defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974), termination of employment with the Company at
any time upon or after attaining age 65; (ii) after adoption by the
Company of an employee pension benefit plan, termination of employment
with the Company at a time when the Participant is eligible for normal
retirement under such a plan, as amended from time to time, or any
successor plan thereto.
s. "Share" means a share of Stock.
t. "Stock" means the common stock, $.01 par value per share
(as such par value may be adjusted from time to time), of the Company.
u. "Subsidiary" means a "subsidiary corporation", as that term
is defined in Code Section 424(f) or any successor provision.
<PAGE>
v. "Successor" means the legal representative of the estate of
a deceased Participant or the person or persons who may, by bequest or
inheritance, or pursuant to the terms of an Award or of forms submitted
by the Participant to the Committee pursuant to Section 15, acquire the
right to exercise an Option in the event of a Participant's death.
w. "Term" means the period during which an Option may be
exercised.
x. "Total and Permanent Disability" as applied to a
Participant, means disability within the meaning of Section 22(e)(3) of
the code or any successor provision.
2. GENDER AND NUMBER.
Except when otherwise indicated by context, reference to the masculine
gender shall include, when used, the feminine gender and any term used in the
singular shall also include the plural.
EXHIBIT 5
September 15, 1997
Board of Directors
Secure Computing Corporation
2675 Long Lake Road
Roseville, Minnesota 55113
In connection with the proposed registration under the
Securities Act of 1933, as amended, of shares of Common Stock of Secure
Computing Corporation, a Delaware corporation (the "Company"), offered to be
offered pursuant to the Secure Computing Corporation 1997 Non-Officer Stock
Option Plan (the "Plan"), we have examined the Company's Restated Certificate of
Incorporation, its Amended and Restated By-Laws, and such other documents,
including the Registration Statement on Form S-8, dated the date hereof, to be
filed with the Securities and Exchange Commission relating to such shares (the
"Registration Statement"), and have reviewed such matters of law as we have
deemed necessary for this opinion. Accordingly, based upon the foregoing, we are
of the opinion that:
1. The Company is duly and validly organized and existing and
in good standing under the laws of the State of Delaware.
2. The Company has duly authorized the issuance of the shares
of Common Stock which may be issued pursuant to the Plan.
3. The shares which may be issued pursuant to the Plan will
be, upon issuance, validly issued and outstanding and fully paid and
nonassessable.
4. All necessary corporate action has been taken by the
Company to adopt the Plan, and the Plan is a validly existing plan of the
Company.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Faegre & Benson LLP
FAEGRE & BENSON LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Secure Computing Corporation 1997 Non-Officer Stock
Option Plan of our report dated January 30, 1997, with respect to the
consolidated financial statements and the related financial statement schedule
of Secure Computing Corporation included in its Annual Report (Form 10-K) for
the year ended December 31, 1996, filed with the Securities Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
September 9, 1997
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Secure Computing Corporation 1997
Non-Officer Stock Option Plan of our report dated March 29, 1996, relating to
the consolidated financial statements of Border Network Technologies Inc., for
the year ended December 31, 1995, incorporated by reference in the Annual Report
on Form 10-K for the year ended December 31, 1996 for Secure Computing
Corporation.
/s/ Price Waterhouse
Chartered Accountants
Toronto, Canada
September 11, 1997
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Secure Computing Corporation 1997
Non-Officer Stock Option Plan of our report dated March 1, 1996, relating to the
financial statements of Enigma Logic, Inc. for the year ended December 31, 1995,
included in the Annual Report of Form 10-K of Secure Computing Corporation for
the fiscal year ended December 31, 1996.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
San Jose, California
September 11, 1997
EXHIBIT 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Secure Computing Corporation pertaining to the Secure
Computing Corporation 1997 Non-Officer Stock Option Plan of our report dated
October 2, 1995, relating to the financial statements of Border Network
Technologies Inc. for the year ended December 31, 1994, included in the Annual
Report on Form 10-K of Secure Computing Corporation, for the fiscal year ended
December 31, 1996.
/s/ McClurkin Ahier & Company
Chatered Accountants
Mississauga, Ontario
September 11, 1997
EXHIBIT 24
SECURE COMPUTING CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Secure Computing
Corporation, a Delaware corporation, does hereby make, constitute and appoint
Jeffrey H. Waxman, Timothy P. McGurran, and Steven M. Maurer, and any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Corporation to a Registration Statement or Registration Statements, on
Form S-8 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Corporation with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, of shares of Common Stock of said Corporation
authorized for issuance under said Corporation's 1997 Non-Officer Stock Option
Plan, and to file the same, with all exhibits thereto and other supporting
documents, with said Commission, granting unto said attorneys-in-fact, and
either of them, full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the powers herein
expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 27 day of August, 1997.
/s/ Betsy S. Atkins
----------------------------------------
Betsy S. Atkins
<PAGE>
SECURE COMPUTING CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Secure Computing
Corporation, a Delaware corporation, does hereby make, constitute and appoint
Jeffrey H. Waxman, Timothy P. McGurran, and Steven M. Maurer, and any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Corporation to a Registration Statement or Registration Statements, on
Form S-8 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Corporation with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, of shares of Common Stock of said Corporation
authorized for issuance under said Corporation's 1997 Non-Officer Stock Option
Plan, and to file the same, with all exhibits thereto and other supporting
documents, with said Commission, granting unto said attorneys-in-fact, and
either of them, full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the powers herein
expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 26th day of August, 1997.
/s/ Eric P. Rundquist
----------------------------------------
Eric P. Rundquist
<PAGE>
SECURE COMPUTING CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Secure Computing
Corporation, a Delaware corporation, does hereby make, constitute and appoint
Jeffrey H. Waxman, Timothy P. McGurran, and Steven M. Maurer, and any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Corporation to a Registration Statement or Registration Statements, on
Form S-8 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Corporation with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, of shares of Common Stock of said Corporation
authorized for issuance under said Corporation's 1997 Non-Officer Stock Option
Plan, and to file the same, with all exhibits thereto and other supporting
documents, with said Commission, granting unto said attorneys-in-fact, and
either of them, full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the powers herein
expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 29th day of August, 1997.
/s/ Robert Frankenberg
----------------------------------------
Robert Frankenberg
<PAGE>
SECURE COMPUTING CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Secure Computing
Corporation, a Delaware corporation, does hereby make, constitute and appoint
Jeffrey H. Waxman, Timothy P. McGurran, and Steven M. Maurer, and any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Corporation to a Registration Statement or Registration Statements, on
Form S-8 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Corporation with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, of shares of Common Stock of said Corporation
authorized for issuance under said Corporation's 1997 Non-Officer Stock Option
Plan, and to file the same, with all exhibits thereto and other supporting
documents, with said Commission, granting unto said attorneys-in-fact, and
either of them, full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the powers herein
expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 2 day of Sept, 1997.
/s/ Dennis Shaughnessy
----------------------------------------
Dennis Shaughnessy
<PAGE>
SECURE COMPUTING CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Secure Computing
Corporation, a Delaware corporation, does hereby make, constitute and appoint
Jeffrey H. Waxman, Timothy P. McGurran, and Steven M. Maurer, and any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Corporation to a Registration Statement or Registration Statements, on
Form S-8 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Corporation with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, of shares of Common Stock of said Corporation
authorized for issuance under said Corporation's 1997 Non-Officer Stock Option
Plan, and to file the same, with all exhibits thereto and other supporting
documents, with said Commission, granting unto said attorneys-in-fact, and
either of them, full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the powers herein
expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 27 day of Aug, 1997.
/s/ Glenn G. Mackintosh
----------------------------------------
Glenn G. Mackintosh
<PAGE>
SECURE COMPUTING CORPORATION
Power of Attorney
of Director and/or Officer
The undersigned director and/or officer of Secure Computing
Corporation, a Delaware corporation, does hereby make, constitute and appoint
Jeffrey H. Waxman, Timothy P. McGurran, and Steven M. Maurer, and any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Corporation to a Registration Statement or Registration Statements, on
Form S-8 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Corporation with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, of shares of Common Stock of said Corporation
authorized for issuance under said Corporation's 1997 Non-Officer Stock Option
Plan, and to file the same, with all exhibits thereto and other supporting
documents, with said Commission, granting unto said attorneys-in-fact, and
either of them, full power and authority to do and perform any and all acts
necessary or incidental to the performance and execution of the powers herein
expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the
undersigned's hand this 26 day of August, 1997.
/s/ Stephen M. Puricelli
----------------------------------------
Stephen M. Puricelli
