As filed with the Securities and Exchange Commission on February 5, 1999
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 Number)
One Almaden Blvd., Suite 400
San Jose, California 95113
(408) 918-6100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-------------------------------
SECURE COMPUTING CORPORATION AMENDED AND RESTATED 1995 OMNIBUS STOCK PLAN
(Full title of the plan)
-------------------------------
Jeffrey H. Waxman
Chief Executive Officer
SECURE COMPUTING CORPORATION
One Almaden Blvd., Suite 400
San Jose, California 95113
(408) 918-6100
(Name, address, including zip code and telephone number, including area code,
of agent for service)
-------------------------------
Copy to:
Jeffrey D. Saper, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
================================================================================
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Offering Registration
to be Registered Registered(1) Per Share Price Fee
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (par value $0.01 per
share) to be issued upon exercise of
options granted under the registrant's
Amended and Restated 1995
Omnibus Stock Plan 1,510,363 $10.661 (2) $16,101,980 $4,477
- --------------------------------------------------------------------------------------------------------------
Common Stock (par value $0.01 per
share) reserved for issuance under the
registrant's Amended and Restated
1995 Omnibus Stock Plan 989,637 $21.063 (3) $20,844,725 $5,795
- --------------------------------------------------------------------------------------------------------------
Total 2,500,000 $36,946,705 $10,272
==============================================================================================================
</TABLE>
(1) The Registration Statement relates to an additional 2,500,000 shares of
Common Stock offered and to be offered pursuant to the Amended and
Restated 1995 Omnibus Stock Plan (the "PLAN") of Secure Computing
Corporation (the "REGISTRANT"), for which 5,244,131 shares of Common Stock
have previously been registered pursuant to the Registrant's Registration
Statement Nos. 33-80065, 333- 11451 and 333-28929.
(2) Under the Registrant's Plan, 1,510,363 shares are subject to outstanding
options to purchase the Company's Common Stock. The Proposed Maximum
Offering Price Per Share with respect to such 1,510,363 shares was
calculated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended (the "SECURITIES ACT") by reference to the exercise price of such
options. The weighted average exercise price of such 1,510,363 shares
subject to outstanding options under the Plan is $10.661.
(3) Estimated in accordance with Rule 457(h) of the Securities Act, solely for
the purpose of calculating the registration fee. The Proposed Maximum
Offering Price Per Share was determined by reference to the fair market
value of the Common Stock or the average of the high and low sale prices
reported on the Nasdaq National Market on February 3, 1999.
<PAGE>
SECURE COMPUTING CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the
Securities Exchange Commission (the "COMMISSION") are hereby incorporated by
reference into this Registration Statement:
a) The Registrant's Annual Report on Form 10-K filed pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), on 3/26/98.
b) 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.
c) All reports and other documents filed by Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date hereof, and prior to the
filing of a post-effective amendment which indicates that
all securities offered hereunder have been sold or which
de-registers all securities then remaining unsold under
this registration statement, shall be deemed to be
incorporated by reference herein and to be part hereof
from the date of filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Incorporated by reference to the contents of the Registrant's
Registration Statement No. 333-61585.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-1
<PAGE>
ITEM 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are
filed as part hereof, or incorporated by reference into, this Registration
Statement (see Exhibit Index below).
ITEM 9. UNDERTAKINGS.
(a) 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 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.
(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.
(b) 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.
(c) 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 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 Securities
Act and will be governed by the final adjudication of such issue.
II-2
<PAGE>
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 Jose, State of California, on January 28,
1999.
SECURE COMPUTING CORPORATION
By: /s/ Jeffrey H. Waxman
-------------------------------------
Jeffrey H. Waxman
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose
signature appears below constitutes and appoints Jeffrey H. Waxman and Timothy
P. McGurran, and each of them acting individually, as his attorney-in-fact, each
with full power of substitution, for him in any and all capacities, to sign any
and all amendments to this Registration Statement on Form S-8, and to file the
same with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or any substitute, may do or cause to be done by
virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------------------------------------------------------------------
<S> <C> <C>
/s/ Jeffrey H. Waxman Chief Executive Officer (Principal January 28, 1999
- ------------------------------- Executive Officer) and Chairman
Jeffrey H. Waxman of the Board of Directors
/s/ Timothy P. McGurran Senior Vice President of Operations January 28, 1999
- ------------------------------- and Chief Financial Officer (Principal
Timothy P. McGurran Financial and Accounting Officer)
/s/ Betsy S. Atkins Director January 28, 1999
- -------------------------------
Betsy S. Atkins
/s/ Steven M. Puricelli Director January 28, 1999
- -------------------------------
Steven M. Puricelli
/s/ Eric P. Rundquist Director January 28, 1999
- -------------------------------
Eric P. Rundquist
/s/ Robert J. Frankenberg Director January 28, 1999
- -------------------------------
Robert J. Frankenberg
/s/ Alexander Zakupowsky, Jr. Director January 28, 1999
- -------------------------------
Alexander Zakupowsky, Jr.
</TABLE>
II-3
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
- ------- -----------
4.1 Restated Certificate of Incorporation of the Registrant (1)
4.2 Bylaws of the Registrant (2)
4.3 Securities Purchase Agreement dated June 30, 1998 (3)
4.4 Registration Rights Agreement dated June 30, 1998 (4)
4.5 Warrant to purchase shares of Common Stock dated June 30, 1998 (5)
4.6 Amended and Restated Rights Agreement dated October 22, 1998 (6)
4.7 Amended and Restated 1995 Omnibus Stock Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of PricewaterhouseCoopers LLP (Canada)
23.3 Consent of PricewaterhouseCoopers LLP (USA)
23.4 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).
24.1 Power of Attorney (see page II-3).
- -----------------------
(1) Incorporated herein by reference to (i) Exhibit 3.1 to the Company's Form
10-K filed on March 28, 1996 (File No. 0-27074), as amended pursuant to (i)
the Certificate of Designation of Series C Preferred Stock, incorporated
herein by reference to Exhibit 3.1 to the Company's Form 8-K filed on July
15, 1998, (ii) the Amended and Restated Certificate of Designation of Series
B Preferred Stock, incorporated herein by reference to Exhibit 1 to the
Company's Form 8-A filed on November 9, 1998, and (iii) the Certificate of
Amendment filed with the Delaware Secretary of State on December 11, 1998,
attached hereto as Exhibit 4.1.
(2) Incorporated herein by reference to Exhibit 3.3 to the Company's
Registration Statement on Form S-1 (Reg. No. 33-97838).
(3) Incorporated herein by reference to Exhibit 10.1 to the Company's Form 8-K
filed on July 15, 1998.
(4) Incorporated herein by reference to Exhibit 10.2 to the Company's Form 8-K
filed on July 15, 1998.
(5) Incorporated herein by reference to Exhibit 10.3 to the Company's Form 8-K
filed on July 15, 1998.
(6) Incorporated herein by reference to Exhibit 1 to the Company's Form 8-A
filed on November 9, 1998.
All other exhibits for which provision is made in Item 601 of the Registration
S-K of the Securities Act are either not required under the instructions related
thereto or are inapplicable, and therefore have been omitted.
EXHIBIT 4.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SECURE COMPUTING CORPORATION
Secure Computing Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "CORPORATION"), pursuant to the
provisions of the General Corporation Law of the State of Delaware (the "GCL"),
does hereby certify as follows:
FIRST: That the fourth paragraph of the Corporation's Restated
Certificate of Incorporation is hereby amended to read in its entirety as
follows:
"FOURTH: The total number of shares of all classes of capital
stock which the corporation shall have authority to issue is
52,000,000 shares, consisting of 2,000,000 shares of Preferred
Stock, par value $.01 per share, and 50,000,000 shares of
Common Stock, par value $0.01 per share."
SECOND: The amendment to the Restated Certificate of Incorporation of
the Corporation set forth in this Certificate of Amendment has been duly adopted
in accordance with the provisions of Section 242 of the GCL: (a) the Board of
Directors of the Corporation having duly adopted a resolution setting forth such
amendment and declaring its advisability and submitting it to the stockholders
of the Corporation for their approval, and (b) the stockholders of the
Corporation having duly adopted such amendment by vote of the holders of a
majority of the outstanding stock entitled to vote thereon.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by the Secretary of the Corporation this 11th day of
December, 1998.
SECURE COMPUTING CORPORATION
By: /s/ Jeffrey D. Saper
------------------------------------
Jeffrey D. Saper, Secretary
EXHIBIT 4.7
SECURE COMPUTING CORPORATION
AMENDED AND RESTATED
1995 OMNIBUS STOCK PLAN
1. AMENDMENT OF EXISTING PLANS; PURPOSE. This Secure Computing
Corporation Amended and Restated 1995 Omnibus Stock Plan (the "Plan") amends and
restates in their entirety the Secure Computing Corporation 1989 Incentive Stock
Option Plan and the Secure Computing Corporation 1994 Nonqualified Stock Option
Plan (the "Prior Plans"). The purpose of the Plan is to motivate key personnel,
including non-employee directors, to produce a superior return to the
stockholders of Secure Computing Corporation 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 key 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
form of each Award, 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 AWARDS TO OUTSIDE DIRECTORS. Notwithstanding any contrary
provisions of the Plan, the granting, terms, conditions and eligibility
requirements of Awards granted to Outside Directors under Section 9.3
of the Plan are governed solely by the provisions of the Plan
pertaining thereto, and the Committee shall have no discretion with
respect to the granting of such Awards or to alter or amend any terms,
conditions or eligibility requirements of such Awards to Outside
Directors.
3.3 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.
4.1 SHARES AVAILABLE. The number of Shares available for
distribution under the Plan shall not exceed 7,744,131 (subject to
adjustment pursuant to Section 17 hereof). Any Shares subject to the
terms and conditions of an Award under this Plan which are not used
because the terms and conditions of the Award are not met may again be
used for an Award under the Plan. However, Shares with respect to which
a Stock Appreciation Right has been exercised (in cash or in Stock) may
<PAGE>
not again be awarded under this Plan.
4.2 CONDITIONAL ISSUANCES. If the Plan is amended at any time
subject to stockholder approval, then the Committee may, in accordance
with the terms and conditions of the Plan, grant Awards on a
conditional basis, subject to such approval by the stockholders of the
Company not later than the next annual meeting of the stockholders of
the Company following the date of such conditional grant. Any Award
granted on a conditional basis shall not be exercisable unless and
until the amendment to the Plan is approved by the stockholders of the
Company. If such an amendment is not approved by the stockholders at
the next annual meeting of stockholders of the Company following the
conditional grant, then the conditional grant shall be canceled.
5. ELIGIBILITY. Except as otherwise provided in Section 9.3 hereof, the
granting of Awards to Employees is solely at the discretion of the Committee.
6. GENERAL TERMS OF AWARDS.
6.1 AMOUNT OF AWARD. Each Agreement shall set forth the number
of Shares of Restricted Stock, other Stock or Performance Units subject
to such Agreement, or the number of Shares to which the Option subject
to such Agreement applies or with respect to which payment upon the
exercise of the Stock Appreciation Right subject to such Agreement is
to be determined, as the case may be. The Maximum Annual Employee Grant
shall not exceed 750,000 Shares (subject to adjustment pursuant to
Section 16 hereof).
6.2 TERM. Each Agreement, other than those relating solely to
Awards of Stock without restrictions, shall set forth the Term of the
Option, Stock Appreciation Right or Restricted Stock or the Performance
Cycle for the Performance Units, as the case may be. 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. Acceleration of the Performance
Cycle of Performance Units shall be subject to Section 12.2.
6.3 TRANSFERABILITY. During the lifetime of a Participant to
whom an Award is granted, only such Participant (or such Participant's
legal representative) may exercise an Option or Stock Appreciation
Right, or receive payment with respect to an Award of Performance
Units. No Award of Restricted Stock (prior to the expiration of the
restrictions), Options, Stock Appreciation Rights or Performance Units
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
("ERISA") or the rules thereunder, and any attempt to do so shall be of
no effect; provided, however, that any Participant may transfer a
Non-Statutory Stock 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 Options,
which must be approved by the Committee, 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 Options held by any such transferee shall
continue to be subject to the same terms and conditions that were
applicable to such Options immediately prior to their 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
<PAGE>
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.
6.4 TERMINATION OF EMPLOYMENT. For any Participant who is an
employee of the Company, no Option or Stock Appreciation Right may be
exercised by the Participant, all Restricted Stock held by the
Participant shall be forfeited and no payment with respect to
Performance Units for which the applicable Performance Cycle has not
been completed shall be made (i) upon 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 the
Key Employment Agreement or of the Secure Computing Corporation
Employment Agreement by and between the Company and Participant, except
as, and to the extent, provided in Section 9.3 or in the Agreement
applicable to that Award or, such other date as the Committee may, in
its sole discretion, determine. 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. RESTRICTED STOCK AWARDS. An Award of Restricted Stock under the Plan
shall consist of Shares subject to restrictions on transfer and conditions of
forfeiture, which restrictions and conditions shall be included in the
applicable Agreement. Except as otherwise provided in the applicable Agreement,
each Stock certificate issued in respect to an Award of Restricted Stock shall
either be deposited with the Company or its designee, together with an
assignment separate from such certificate, in blank, signed by the Participant,
or bear such legends with respect to the restricted nature of the Restricted
Stock evidenced thereby as shall be provided for in the applicable Agreement.
The Agreement shall describe the terms and conditions by which the restrictions
upon awarded Restricted Stock shall lapse. Upon the lapse of the restrictions,
stock certificates free of restrictive legends, if any, relating to such
restrictions shall be issued to the Participant or his Successor. A Participant
with a Restricted Stock Award shall have all the other rights of a stockholder
including, but not limited to, the right to receive dividends and the right to
vote the Shares of Restricted Stock.
8. STOCK AWARDS. Awards of Stock without restrictions may be made.
9. STOCK OPTIONS.
9.1 TERMS OF ALL OPTIONS. An Option shall be granted pursuant
to an Agreement as either an Incentive Stock Option or a Non-Statutory
Stock Option. Only Non-Statutory Stock Options may be granted to
Employees who are not employees of the Company or an Affiliate. 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
<PAGE>
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.
9.2 INCENTIVE STOCK OPTIONS. In addition to the other terms
and conditions applicable to all Options:
(i) the aggregate Fair Market Value (determined as of
the date the Option is granted) of the Shares with respect to
which Incentive Stock Options held by an individual first
become exercisable in any calendar year (under this Plan and
all other incentive stock option plans of the Company and its
Affiliates) shall not exceed $100,000 (or such other limit as
may be required by the Code) if such limitation is necessary
to qualify the Option as an Incentive Stock Option;
(ii) the purchase price of Shares covered by
Incentive Stock Options must not be less than 100% of the Fair
Market Value of the Shares on the date of grant;
(iii) an Incentive Stock Option shall not be
exercisable more than 10 years after the date of grant (or
such other limit as may be required by the Code) if such
limitation is necessary to qualify the Option as an Incentive
Stock Option; and
(iv) if the Participant owns, or is deemed under
Section 424(d) of the Code to own, stock of the Company or of
any Affiliate possessing more than ten percent (10%) of the
total combined voting power of all classes of stock therein at
the time the Incentive Stock Option is granted:
(a) the purchase price of the Shares covered
by the Incentive Stock Option must not be less than
110% of the Fair Market Value of Shares on the date
of grant; and
(b) the Term of the Incentive Stock Option
must not be greater than five years from the date of
grant.
(v) the Agreement covering an Incentive Stock Option
shall contain such other terms and provisions which the
Committee determines necessary to qualify such Option as an
Incentive Stock Option.
9.3 OUTSIDE DIRECTOR OPTIONS.
(i) Beginning with the Annual Meeting of Stockholders
to be held during calendar year 1996 and for every Annual
Meeting of Stockholders thereafter during the term of this
Plan, each person serving as an Outside Director of the
Company immediately following such Annual Meeting shall be
granted, by virtue of serving as an Outside Director of the
Company, a Non-Statutory Stock Option. The date of such Annual
Meeting shall be the date of grant for options granted
pursuant to this Section 9.3(i). The number of Shares covered
by each such option shall be 4,375 (subject to adjustment
<PAGE>
pursuant to Section 17 hereof). Each person who is elected to
be an Outside Director between Annual Meetings of Stockholders
shall also be granted a Non-Statutory Stock Option. The date
such person is elected to be an Outside Director of the
Company (the "Date of Election") by the Board shall be the
date of grant for such option granted pursuant to this
subsection 9.3(i). The number of Shares covered by each such
option shall be 4,375 (subject to adjustment pursuant to
Section 17 hereof) multiplied by a fraction, the numerator of
which shall be 12 minus the number of whole 30-day months that
have elapsed from the date of the most recent Annual Meeting
of Stockholders to the Date of Election of such Outside
Director, and the denominator of which shall be 12.
(ii) Director Options shall vest and become
exercisable on the date of the Annual Meeting next following
the grant of Director Options. Notwithstanding the foregoing,
Director Options shall vest and become immediately exercisable
in full upon the occurrence of any Event or upon the death of
an Outside Director. Director Options shall expire at the
10-year anniversary of the date of grant.
(iii) The purchase price of each Share subject to a
Director Option pursuant to this Section 9.3 shall be 100% of
the Fair Market Value of a Share as of the date of grant.
Notwithstanding anything to the contrary stated in this Plan,
for purposes of this Section 9.3 and the definition of Fair
Market Value in Exhibit A attached hereto, each Director
Option shall be deemed conclusively to have been granted prior
to close of the applicable securities exchange or system on
the date of grant. An Outside Director may exercise a Director
Option using as payment any form of consideration provided for
in Section 9.1 hereof, which form of payment shall be within
the sole discretion of the Outside Director, notwithstanding
anything stated in Section 9.1 hereof.
(iv) Director Options shall be evidenced by an
agreement signed on behalf of the Company by an officer
thereof which only incorporates by reference the terms of this
Plan.
(v) Unless the Director Option shall have expired, in
the event of an Outside Director's death, the Director Option
granted to such Outside Director shall be transferable to the
beneficiary, if any, designated by the Outside Director in
writing to the Company prior to the Outside Director's death
and such beneficiary shall succeed to the rights of the
Outside Director to the extent permitted by law. If no such
designation of a beneficiary has been made, the Outside
Director's legal representative shall succeed to the Director
Option, which shall be transferable by will or pursuant to the
laws of descent and distribution.
10. SUBSTITUTION OPTIONS. Options may be granted under this Plan from
time to time in substitution for stock options held by employees of other
corporations who are about to become Employees of the Company or a subsidiary of
the Company, or whose employer is about to become a subsidiary of the Company,
as the result of a merger or consolidation of the Company or a subsidiary of the
Company with another corporation, the acquisition by the Company or a subsidiary
of the Company of all or substantially all the assets of another corporation or
the acquisition by the Company or a subsidiary of the Company of at least 50% of
the issued and outstanding stock of another corporation. The terms and
conditions of the substitute Options so granted may vary from the terms and
conditions set forth in this Plan to such extent as the Board (or the Committee)
at the time of the grant may deem appropriate to conform, in whole or in part,
<PAGE>
to the provisions of the stock options in substitution for which they are
granted, but with respect to stock options which are Incentive Stock Options, no
such variation shall be permitted which affects the status of any such
substitute Option as an "incentive stock option" under Section 422 of the Code.
11. STOCK APPRECIATION RIGHTS. An Award of a Stock Appreciation Right
shall entitle the Participant, subject to terms and conditions determined by the
Committee, to receive upon exercise of the Stock Appreciation Right all or a
portion of the excess of (i) the Fair Market Value of a specified number of
Shares as of the date of exercise of the Stock Appreciation Right over (ii) a
specified price which shall not be less than 100% of the Fair Market Value of
such Shares as of the date of grant of the Stock Appreciation Right. A Stock
Appreciation Right may be granted in connection with a previously or
contemporaneously granted Option, or independent of any Option. If issued in
connection with an Option, the Committee may impose a condition that exercise of
a Stock Appreciation Right cancels the Option with which it is connected and
exercise of the connected Option cancels the Stock Appreciation Right. Each
Stock Appreciation Right may be exercisable in whole or in part on the terms
provided in the Agreement. Notwithstanding anything to the contrary stated in
the Plan, no Stock Appreciation Right shall be exercisable prior to six months
from the date of grant except in the event of the death or Total and Permanent
Disability of the Participant. No Stock Appreciation Right shall be exercisable
at any time after its expiration date. When a Stock Appreciation Right is no
longer exercisable, it shall be deemed to have lapsed or terminated. Upon
exercise of a Stock Appreciation Right, payment to the Participant (or to his
Successor) shall be made at such time or times as shall be provided in the
Agreement in the form of cash, Stock or a combination of cash and Stock as
determined by the Committee and provided in the Agreement. The Agreement may
provide for a limitation upon the amount or percentage of the total appreciation
on which payment (whether in cash and/or Stock) may be made in the event of the
exercise of a Stock Appreciation Right.
12. PERFORMANCE UNITS.
12.1 INITIAL AWARD. An Award of Performance Units under the
Plan shall entitle the Participant (or a Successor) to future payments
of cash, Stock or a combination of cash and Stock, as determined by the
Committee and provided in the Agreement, based upon the achievement of
pre-established performance targets. Such performance targets may, but
need not, include without limitation targets relating to one or more of
corporate, group, unit, Affiliate or individual performance. With
respect to those Employees who are "covered employees" within the
meaning of Section 162(m) of the Code and the regulations thereunder,
such performance targets shall consist of one or any combination of two
or more of revenue, revenue per employee, earnings before income tax
(profit before taxes), earnings before interest and income tax, net
earnings (profits after tax), earnings per employee, tangible,
controllable or total asset turnover, earnings per share, operating
income, total shareholder return, market share, return on equity,
before- or after-tax return on net assets, distribution expense,
inventory turnover, or economic value added, and any such targets may
relate to one or any combination of two or more of corporate, group,
unit, division, Affiliate or individual performance. The Agreement may
establish that a portion of a full or maximum amount of a Participant's
Award will be paid for performance which exceeds the minimum target but
falls below the maximum target applicable to such Award. The Agreement
shall also provide for the timing of such payment. Following the
conclusion or acceleration of each Performance Cycle, the Committee
shall determine the extent to which (i) performance targets have been
attained, (ii) any other terms and conditions with respect to an Award
relating to such Performance Cycle have been satisfied and (iii)
payment is due with respect to an Award of Performance Units.
12.2 ACCELERATION AND ADJUSTMENT. The Agreement may permit an
acceleration of the Performance Cycle and an adjustment of performance
<PAGE>
targets and payments with respect to some or all of the Performance
Units awarded to a Participant, upon such terms and conditions as shall
be set forth in the Agreement, upon the occurrence of certain events,
which may but need not include without limitation an Event, a
Fundamental Change, a recapitalization, a change in the accounting
practices of the Company, a change in the Participant's title or
employment responsibilities, the Participant's death or Retirement or,
with respect to payments in Stock with respect to Performance Units, a
reclassification, stock dividend, stock split or stock combination as
provided in Section 16.
13. EFFECTIVE DATE OF THE PLAN.
13.1 EFFECTIVE DATE. The Plan shall become effective as of
September 15, 1995, provided that the Plan is approved and ratified by
the affirmative vote of the holders of a majority of the outstanding
Shares of Stock present or represented and entitled to vote in person
or by proxy at a meeting of the stockholders of the Company no later
than October 31, 1995. The Plan shall govern all options issued and
outstanding under each of the Prior Plans for all purposes and shall
govern all Agreements respecting options issued and outstanding under
each of the Prior Plans for all purposes.
13.2 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
15. No Award of an Incentive Stock Option shall be made more than 10
years after the Effective Date (or such other limit as may be required
by the Code) if such limitation is necessary to qualify the Option as
an Incentive Stock Option. The date and time of approval by the
Committee of the granting of an Award shall be considered the date and
time at which such Award is made or granted.
14. 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.
15. TAX WITHHOLDING. The Company shall have the right to withhold from
any cash payment under the Plan to a Participant or other person an amount
sufficient to cover any required withholding taxes. 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.
16. AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN. The Board may
at any time terminate, suspend or modify the Plan; provided, however, that
amendments are subject to approval of the stockholders of the Company if such
approval is necessary to maintain the Plan in compliance with the requirements
of Exchange Act Rule 16b-3, Code Section 422, their successor provisions or any
other applicable law or regulation. 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 11.2 or Section 16 does not
<PAGE>
adversely affect any right.
17. ADJUSTMENT FOR CHANGES IN CAPITALIZATION. Appropriate adjustments
in the aggregate number and type of Shares available for Awards under the Plan,
in the Maximum Annual Employee Grant, in the number and type of Shares subject
to Director Options thereafter issued and in the number and type of Shares and
amount of cash subject to Awards then outstanding, in the Option price as to any
outstanding Options and, subject to Section 12.2, in outstanding Performance
Units and payments with respect to outstanding Performance Units 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 18), recapitalization, reclassification, stock dividend, stock split,
stock combination or other relevant change, provided that fractional Shares
shall be rounded to the nearest whole share.
18. 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 and Stock Appreciation Rights by the
substitution of options, stock appreciation rights 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 or used to calculate payments upon the exercise of Stock
Appreciation Rights, in lieu of options, stock appreciation rights 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
or Stock Appreciation Right of the declaration, that each outstanding
Option and Stock Appreciation Right, 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 payment to each
holder of an Option or Stock Appreciation Right, within ten days after
the Fundamental Change, of cash equal to (i) 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 or (ii) for each Stock
Appreciation Right, the price determined pursuant to Section 10, except
that Fair Market Value of the Shares as of the date of exercise of the
Stock Appreciation Right, as used in clause (i) of Section 10, shall be
deemed to mean Fair Market Value for each Share with respect to which
the Stock Appreciation Right is calculated determined in the manner
hereinafter referred to in this Section. At the time of the declaration
provided for in the immediately preceding sentence, each Stock
Appreciation Right that has been outstanding for at least six months
and each Option shall immediately become exercisable in full and each
person holding an Option or a Stock Appreciation Right shall have the
right, during the period preceding the time of cancellation of the
Option or Stock Appreciation Right, to exercise his Option as to all or
any part of the Shares covered thereby or his Stock Appreciation Right
in whole or in part, as the case may be. In the event of a declaration
pursuant to this Section 18(b), each outstanding Option and Stock
Appreciation Right 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 or a Stock Appreciation Right shall be entitled to the payment
provided for in this Section 18(b) if such Option or Stock Appreciation
Right 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
<PAGE>
the stockholders of the Company upon the occurrence of the Fundamental
Change, notwithstanding anything to the contrary provided in the Plan.
19. 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.
20. 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.
21. 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.
22. 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.
EXHIBIT A
SECURE COMPUTING CORPORATION
AMENDED AND RESTATED
1995 OMNIBUS STOCK 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 (including
Awards made under the Prior Plans) in the form of Restricted Stock,
Options, Stock Appreciation Rights, Performance Units or Stock.
<PAGE>
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 Non-Employee Directors
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. "Director" means a director of the Company.
i. "Director Fees" means the annual retainer fees paid to a
Director.
j. "Director Option" means a Non-Statutory Stock Option
granted to an Outside Director under Section 9.3 hereof.
k. "Effective Date" means the date specified in Section 13.1
hereof.
l. "Employee" means any salaried employee, officer, director,
contractor or advisor to or representative of the Company or any
Affiliate thereof, whether or not such person is an employee of the
Company within the meaning of the Code; provided, however, that
salaried employees of the Company or its Affiliates within the meaning
of the Code (including any such employee who is also an officer or
director of the Company or any Affiliate thereof) shall be the only
persons eligible to receive Options intended to constitute Incentive
Stock Options. References in this Plan to "employment" and related
terms shall mean the providing of services in the capacity as director,
contractor or other advisor to or representative of the Company.
m. "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
<PAGE>
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;
(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
<PAGE>
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.
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. Furthermore,
the merger of the Company with and into its wholly owned subsidiary,
SCC of Delaware, Inc., a Delaware corporation (to be renamed Secure
Computing Corporation) shall not be deemed to be an Event.
n. "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
o. "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 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
<PAGE>
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 17.
p. "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.
q. "Incentive Stock Option" means any Option designated as
such and granted in accordance with the requirements of Code Section
422 or any successor to said section.
r. "Maximum Annual Employee Grant" means the maximum number of
Shares subject to Options that may be awarded to any one Employee in
any fiscal year of the Company.
s. "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(i) or any successor definition.
t. "Non-Statutory Stock Option" means an Option other than an
Incentive Stock Option.
u. "Option" means a right to purchase Stock, including both
Non-Statutory Stock Options and Incentive Stock Options.
v. "Outside Director" means a Director who is not an employee
of the Company or any Affiliate.
w. "Participant" means an Employee or an Outside Director to
whom an Award is made.
x. "Performance Cycle" means the period of time as specified
in an Agreement over which Performance Units are to be earned.
y. "Performance Units" means an Award made pursuant to Section
12.
z. "Plan" means this Secure Computing Corporation Amended and
Restated 1995 Omnibus Stock Plan, as amended from time to time.
aa. "Prior Plans" means the Secure Computing Corporation 1994
Nonqualified Stock Option Plan and the Secure Computing Corporation
1989 Incentive Stock Option Plan.
bb. "Restricted Stock" means Stock granted under Section 7
(but not including Stock granted under the Prior Plans) so long as such
Stock remains subject to such restrictions.
cc. "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.
dd. "Share" means a share of Stock.
<PAGE>
ee. "Stock" means the common stock, $.01 par value per share
(as such par value may be adjusted from time to time), of the Company.
ff. "Stock Appreciation Right" means an Award granted under
Section 10.
gg. "Subsidiary" means a "subsidiary corporation", as that
term is defined in Code Section 424(f) or any successor provision.
hh. "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 21,
acquire the right to exercise an Option or Stock Appreciation Right or
to receive cash or Shares issuable in satisfaction of an Award in the
event of a Participant's death.
ii. "Term" means the period during which an Option or Stock
Appreciation Right may be exercised or the period during which the
restrictions placed on Restricted Stock are in effect.
jj. "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 5.1
February 5, 1999
Secure Computing Corporation
One Almaden Boulevard, Suite 400
San Jose, CA 95113
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about February 5, 1999
(the "Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 2,500,000 shares of your Common Stock,
$0.001 par value per share (the "Shares"). As your legal counsel, we have
examined the proceedings taken, and are familiar with the proceedings proposed
to be taken by you in connection with the sale and issuance of the Shares.
It is our opinion that, upon completion of the proceedings being taken
or contemplated by us, as your legal counsel, to be taken regarding the issuance
of the Shares, the Shares, when issued and sold in the manner described in the
Registration Statement and in accordance with the resolutions adopted by your
Board of Directors, will be legally and validly issued, fully-paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ Wilson Sonsini Goodrich & Rosati
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (Form S-8) pertaining to the Secure Computing Corporation Amended and
Restated 1995 Omnibus Stock Plan of our report dated January 26, 1998, 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, 1997, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
Minneapolis, Minnesota
February 2, 1999
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of the report dated March 29, 1996 issued by Price Waterhouse with
respect to the consolidated financial statements of Border Network Technologies
Inc., included in the Annual Report (Form 10-K) of Secure Computing Corporation
for the year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
Chartered Accountants
Toronto, Canada
February 3, 1999
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of the report dated March 1, 1996 issued by Price
Waterhouse, relating to the financial statements of Enigma Logic, Inc. for the
year ended December 31, 1995, included in the Annual Report on Form 10-K of
Secure Computing Corporation for the fiscal year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
San Jose, California
February 2, 1999
