As filed with the Securities and Exchange Commission on June 17, 1999
Registration No. 333-
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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 BOULEVARD, 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 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
---------------------------
JEFFREY H. WAXMAN
CHIEF EXECUTIVE OFFICER
SECURE COMPUTING CORPORATION
ONE ALMADEN BOULEVARD, 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
(650) 493-9300
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) SHARE(1)(2) PRICE FEE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par ................. 300,000 shares $ 3.453125 $1,035,937.50 $287.99
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(1) The Registration Statement relates to an additional 300,000 shares of
Common Stock to be offered pursuant to the registrant's Employee Stock
Purchase Plan, for which 400,000 shares of Common Stock have previously
been registered pursuant to the registrant's Registration Statement Nos.
333-06563 and 333-28927.
(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 June 16, 1999, as reported on the
Nasdaq National Market.
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<PAGE>
SECURE COMPUTING CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are incorporated in this Registration Statement by reference the
contents of the registrant's Registration Statement Nos. 333-06563 and
333-28927.
ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION
- --------------- -------------------------------------------------------------
4 Secure Computing Corporation Employee Stock Purchase Plan, as
amended.
5 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5 to this Registration
Statement).
23.2 Consent of Ernst & Young LLP, independent auditors.
24 Powers of Attorney (contained on page II-2).
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 June 17, 1999.
SECURE COMPUTING CORPORATION
By: /s/ Jeffrey H. Waxman
-------------------------------------
Jeffrey H. Waxman
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jeffrey H. Waxman his attorney-in-fact,
with the power of substitution, for him in any and all capacities, to sign any
amendment 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, granting to said attorney-in-fact full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant on June 17, 1999.
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SIGNATURE TITLE DATE
- --------------------------------- -------------------------------------- ------------
<S> <C> <C>
/s/ Timothy P. Mcgurran Senior Vice President of Operations June 17 1999
- --------------------------------- and Chief Financial Officer (Principal
Timothy P. McGurran Financial and Accounting Officer)
/s/ Betsy S. Atkins
- ---------------------------------
Betsy S. Atkins Director June 17 1999
/s/ Steven M. Puricelli
- ---------------------------------
Steven M. Puricelli Director June 17 1999
/s/ Eric P. Rundquist
- ---------------------------------
Eric P. Rundquist Director June 17 1999
/s/ Robert J. Frankenberg
- ---------------------------------
Robert J. Frankenberg Director June 17 1999
/s/ Alexander Zakupowsky, Jr.
- ---------------------------------
Alexander Zakupowsky, Jr. Director June 17 1999
/s/ John McNulty
- ---------------------------------
John McNulty Director June 17 1999
</TABLE>
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
- -------------- -------------------------------------------------------------
4 Secure Computing Corporation Employee Stock Purchase Plan, as
amended.
5 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5 to this Registration
Statement).
23.2 Consent of Ernst & Young LLP, independent auditors.
24 Powers of Attorney (contained on page II-2).
II-2
EXHIBIT 4
SECURE COMPUTING CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE AND SCOPE OF PLAN. The purpose of this Secure Computing
Corporation Employee Stock Purchase Plan (the "Plan") is to provide the
employees of Secure Computing Corporation (the "Company") with an opportunity to
acquire a proprietary interest in the Company through the purchase of its common
stock and, thus, to develop a stronger incentive to work for the continued
success of the Company. The Plan is intended to be an "employee stock purchase
plan" within the meaning of Section 423(b) of the Internal Revenue Code of 1986,
as amended, and shall be interpreted and administered in a manner consistent
with such intent.
2. DEFINITIONS.
2.1 The terms defined in this section are used (and capitalized)
elsewhere in this Plan:
(a) "AFFILIATE" means any corporation that is a "parent
corporation" or "subsidiary corporation" of the Company, as defined in Sections
424(e) and 424(f) of the Code or any successor provision, and whose
participation in the Plan has been approved by the Board of Directors.
(b) "BOARD OF DIRECTORS" means the Board of Directors of the
Company.
(c) "CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
(d) "COMMITTEE" means three or more Disinterested Persons
designated by the Board of Directors to administer the Plan under Section 13.
(e) "COMMON STOCK" means the common stock, par value $.01 per
share (as such par value may be adjusted from time to time), of the Company.
(f) "COMPANY" means Secure Computing Corporation.
(g) "COMPENSATION" means the gross cash compensation (including
wage, salary, commission, bonus, and overtime earnings) paid by the Company or
any Affiliate to a Participant in accordance with the terms of employment, but
excluding any payments under the Company's Group Incentive Plan (GIP).
(h) "DISINTERESTED PERSONS" means a member of the Board of
Directors who is considered a disinterested person within the meaning of
Exchange Act Rule 16b-3 or any successor definition.
(i) "ELIGIBLE EMPLOYEE" means any employee of the Company or an
Affiliate who has been employed for at least six consecutive months and whose
customary employment is at least 20 hours per week; provided, however, that
"Eligible Employee" shall not include any person who would be deemed, for
purposes of Section 423(b)(3) of the Code, to own stock possessing 5% or more of
the total combined voting power or value of all classes of stock of the Company.
(j) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time.
(k) "FAIR MARKET VALUE" of a share of Common Stock as of any
date means, if the Company's Common Stock is listed on a national securities
exchange or traded in the national market system, the mean
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between the high and low sale prices for such Common Stock on such exchange or
market on said date, or, if no sale has been made on such exchange or market on
said date, on the last preceding day on which any sale shall have been made. If
such determination of Fair Market Value is not consistent with the then current
regulations of the Secretary of the Treasury applicable to plans intended to
qualify as an "employee stock purchase plan" within the meaning of Section
423(b) of the Code, however, Fair Market Value shall be determined in accordance
with such regulations. The determination of Fair Market Value shall be subject
to adjustment as provided in Section 14.
(l) "PARTICIPANT" means an Eligible Employee who has elected to
participate in the Plan in the manner set forth in Section 4.
(m) "PLAN" means this Secure Computing Corporation Employee
Stock Purchase Plan, as amended from time to time.
(n) "PURCHASE PERIOD" means each quarter of the Company's fiscal
year. The first Purchase Period will be the quarter that starts July 1, 1996 and
ends September 30, 1996.
(o) "RECORDKEEPING ACCOUNT" means the account maintained in the
books and records of the Company recording the amount withheld from each
Participant through payroll deductions made under the Plan.
3. SCOPE OF THE PLAN. Shares of Common Stock may be sold by the Company
to Eligible Employees commencing July 1, 1996, as hereinafter provided, but not
more than 700,000 shares of Common Stock (subject to adjustment as provided in
Section 14) shall be sold to Eligible Employees pursuant to this Plan. All sales
of Common Stock pursuant to this Plan shall be subject to the same terms,
conditions, rights and privileges. The shares of Common Stock delivered by the
Company pursuant to this Plan may be acquired shares having the status of any
combination of authorized but unissued shares, newly issued shares, or treasury
shares.
4. ELIGIBILITY AND PARTICIPATION. To be eligible to participate in the
Plan for a given Purchase Period, an employee must be an Eligible Employee on
the first day of such Purchase Period. An Eligible Employee may elect to
participate in the Plan by filing an enrollment form with the Company before the
first day of such Purchase Period that authorizes regular payroll deductions
from Compensation beginning with the first payday in such Purchase Period and
continuing until the Eligible Employee withdraws from the Plan, modifies his or
her authorization, or ceases to be an Eligible Employee, as hereinafter
provided.
5. AMOUNT OF COMMON STOCK EACH ELIGIBLE EMPLOYEE MAY PURCHASE.
5.1 Subject to the provisions of this Plan, each Eligible Employee
shall be offered the right to purchase on the last day of the Purchase Period
the number of shares of Common Stock (including fractional shares) that can be
purchased at the price specified in Section 5.2 with the entire credit balance
in the Participant's Recordkeeping Account; provided, however, that the Fair
Market Value (determined on the first day of any Purchase Period) of shares of
Common Stock that may be purchased by a Participant during such Purchase Period
shall not exceed the excess, if any, of (i) $25,000 over (ii) the Fair Market
Value (determined on the first day of the relevant Purchase Period) of shares of
Common Stock previously acquired by the Participant in any prior Purchase Period
during such calendar year. Notwithstanding the foregoing, no Eligible Employee
shall be granted an option to acquire shares of Common Stock under this Plan
which permits the Eligible Employee's rights to purchase shares of Common Stock
under this Plan and all employee stock purchase plans of the Company and the
Affiliates to accrue at a rate which exceeds $25,000 of Fair Market Value
(determined at the time such option is granted) for each calendar year in which
such option is outstanding at any time. If the purchases by all Participants
would otherwise cause the aggregate number of shares of Common Stock to be sold
under the Plan to exceed the number specified in Section 3, however, each
Participant shall be allocated at a ratable portion of the maximum number of
shares of Common Stock which may be sold.
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5.2 The purchase price of each share of Common Stock sold pursuant
to this Plan will be the lesser of (a) or (b) below:
(a) 85% of the Fair Market Value of such share on the first day
of the Purchase Period.
(b) 85% of the Fair Market Value of such share on the last day
of the Purchase Period.
6. METHOD OF PARTICIPATION.
6.1 The Company shall give notice to each Eligible Employee of the
opportunity to purchase shares of Common Stock pursuant to this Plan and the
terms and conditions for such offering. Such notice is subject to revision by
the Company at any time prior to the date of purchase of such shares. The
Company contemplates that for tax purposes the first day of a Purchase Period
will be the date of the offering of such shares.
6.2 Each Eligible Employee who desires to participate in the Plan
for a Purchase Period shall signify his or her election to do so by signing an
election form developed by the Committee. An Eligible Employee may elect to have
any whole percent of Compensation withheld, but not exceeding ten percent (10%)
per pay period. An election to participate in the Plan and to authorize payroll
deductions as described herein must be made before the first day of the Purchase
Period to which it relates and shall remain in effect unless and until such
Participant withdraws from the Plan, modifies his or her authorization, or
ceases to be an Eligible Employee, as hereinafter provided.
6.3 Any Eligible Employee who does not make a timely election as
provided in Section 6.2, shall be deemed to have elected not to participate in
the Plan. Such election shall be irrevocable for such Purchase Period.
7. RECORDKEEPING ACCOUNT.
7.1 The Company shall maintain a Recordkeeping Account for each
Participant. Payroll deductions pursuant to Section 6 will be credited to such
Recordkeeping Accounts on each payday.
7.2 No interest will be credited to a Participant's Recordkeeping
Account.
7.3 The Recordkeeping Account is established solely for accounting
purposes, and all amounts credited to the Recordkeeping Account will remain part
of the general assets of the Company.
7.4 A Participant may not make any separate cash payment into the
Recordkeeping Account.
8. RIGHT TO ADJUST PARTICIPATION OR TO WITHDRAW.
8.1 A Participant may, at any time during a Purchase Period, direct
the Company to make no further deductions from his or her Compensation or to
increase or decrease the percentage amount of such deductions from future
Compensation, subject to the limitation in Section 6.2. Upon any such action,
future payroll deductions with respect to such Participant shall cease or shall
be increased or decreased in accordance with the Participant's direction.
8.2 Any Participant who stops payroll deductions may not thereafter
resume payroll deductions during such Purchase Period.
8.3 At any time before the end of a Purchase Period, any Participant
may withdraw from the Plan. In such event, all future payroll deductions shall
cease and the entire credit balance in the Participant's Recordkeeping Account
will be paid to the Participant, without interest, in cash within 15 days. A
Participant who withdraws from the Plan will not be eligible to reenter the Plan
until the next succeeding Purchase Period.
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8.4 Notification of a Participant's election to increase, decrease,
or terminate deductions, or to withdraw from the Plan, shall be made by filing
an appropriate form with the Company.
9. TERMINATION OF EMPLOYMENT. If the employment of a Participant is
terminated for any reason, including death, disability, or retirement, the
entire balance in the Participant's Recordkeeping Account will be applied to the
purchase of shares as provided in Section 10.1 as of the last day of the
Purchase Period in which the Participant's employment terminated; except that if
such Participant so requests prior to the last day of such Purchase Period, the
Company shall refund in cash within 15 days all amounts credited to his or her
Recordkeeping Account.
10. PURCHASE OF SHARES.
10.1 As of the last day of the Purchase Period, the entire credit
balance in each Participant's Recordkeeping Account will be used to purchase
shares (including fractional shares) of Common Stock (subject to the limitations
of Section 5) unless the Participant has filed an appropriate form with the
Company in advance of that date (which either elects to purchase a specified
number of shares which is less than the number described above or elects to
receive the entire credit balance in cash). Any amount in a Participant's
Recordkeeping Account that is not used to purchase shares pursuant to this
Section 10.1 will be refunded to the Participant.
10.2 Shares of Common Stock acquired by each Participant shall be
held in a general account maintained for the benefit of all Participants.
10.3 Certificates for the number of whole shares of Common Stock,
determined as aforesaid, purchased by each Participant shall be issued and
delivered to him or her only upon the request of the Participant or his or her
representative. Any such request shall be made by filing an appropriate form
with the Company. No Certificates for fractional shares will be issued. Instead,
Participants will receive a cash distribution representing any fractional
shares.
10.4 Dividends with respect to a Participant's shares held in the
general account will, at the election of the Participant, either be paid to the
Participant in cash or reinvested in additional shares of Common Stock. Any such
election shall be made or changed by filing an appropriate form with the
Company. If a Participant fails to make such an election, all dividends with
respect to the Participant's shares held in the general account will
automatically be reinvested to purchase additional shares of Common Stock.
10.5 Each Participant will be entitled to vote all shares held for
the benefit of such Participant in the general account.
11. RIGHTS AS A STOCKHOLDER. A Participant shall not be entitled to any
of the rights or privileges of a stockholder of the Company with respect to such
shares, including the right to receive any dividends which may be declared by
the Company, until (i) he or she actually has paid the purchase price for such
shares and (ii) either the shares have been credited to his or her account or
certificates have been issued to him or her, both as provided in Section 10.
12. RIGHTS NOT TRANSFERABLE. A Participant's rights under this Plan are
exercisable only by the Participant during his or her lifetime, and may not be
sold, pledged, assigned or transferred in any manner other than by will or the
laws of descent and distribution. Any attempt to sell, pledge, assign or
transfer the same shall be null and void and without effect. The amounts
credited to a Recordkeeping Account may not be assigned, transferred, pledged or
hypothecated in any way, and any attempted assignment, transfer, pledge,
hypothecation or other disposition of such amounts will be null and void and
without effect.
13. ADMINISTRATION OF THE PLAN. This Plan shall be administered by the
Committee, which is authorized to make such uniform rules as may be necessary to
carry out its provisions. The Committee shall determine
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any questions arising in the administration, interpretation and application of
this Plan, and all such determinations shall be conclusive and binding on all
parties.
14. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. In the event of any
change in the Common Stock of the Company by reason of stock dividends,
split-ups, corporate separations, recapitalizations, mergers, consolidations,
combinations, exchanges of shares and the like, the aggregate number and class
of shares available under this Plan and the number, class and purchase price of
shares available but not yet purchased under this Plan, shall be adjusted
appropriately by the Committee.
15. REGISTRATION OF CERTIFICATES. Stock certificates will be registered
in the name of the Participant, or jointly in the name of the Participant and
another person, as the Participant may direct on an appropriate form filed with
the Company.
16. AMENDMENT OF PLAN. The Board of Directors may at any time amend
this Plan in any respect which shall not adversely affect the rights of
Participants pursuant to shares previously acquired under the Plan, except that,
without stockholder approval on the same basis as required by Section 19.1, no
amendment shall be made (i) to increase the number of shares to be reserved
under this Plan, (ii) to decrease the minimum purchase price, (iii) to withdraw
the administration of this Plan from the Committee, or (iv) to change the
definition of employees eligible to participate in the Plan.
17. EFFECTIVE DATE OF PLAN. This Plan shall consist of an offering
commencing July 1, 1996, and ending September 30, 1996, and continuing on a
quarterly basis thereafter. All rights of Participants in any offering hereunder
shall terminate at the earlier of (i) the day that Participants become entitled
to purchase a number of shares of Common Stock equal to or greater than the
number of shares remaining available for purchase or (ii) at any time, at the
discretion of the Board of Directors, after 30 days' notice has been given to
all Participants. Upon termination of this Plan, shares of Common Stock shall be
issued to Participants in accordance with Section 10, and cash, if any,
remaining in the Participants' Recordkeeping Accounts shall be refunded to them,
as if the Plan were terminated at the end of a Purchase Period.
18. GOVERNMENTAL REGULATIONS AND LISTING. All rights granted or to be
granted to Eligible Employees under this Plan are expressly subject to all
applicable laws and regulations and to the approval of all governmental
authorities required in connection with the authorization, issuance, sale or
transfer of the shares of Common Stock reserved for this Plan, including,
without limitation, there being a current registration statement of the Company
under the Securities Act of 1933, as amended, covering the shares of Common
Stock purchasable on the last day of the Purchase Period applicable to such
shares, and if such a registration statement shall not then be effective, the
term of such Purchase Period shall be extended until the first business day
after the effective date of such a registration statement, or post-effective
amendment thereto. If applicable, all such rights hereunder are also similarly
subject to effectiveness of an appropriate listing application to a national
securities exchange or a national market system, covering the shares of Common
Stock under the Plan upon official notice of issuance.
19. MISCELLANEOUS.
19.1 This Plan shall be submitted for approval by the stockholders
of the Company prior to July 1, 1996. If not so approved prior to such date,
this Plan shall terminate on July 1, 1996.
19.2 This Plan shall not be deemed to constitute a contract of
employment between the Company and any Participant, nor shall it interfere with
the right of the Company to terminate any Participant and treat him or her
without regard to the effect which such treatment might have upon him or her
under this Plan.
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19.3 Wherever appropriate as used herein, the masculine gender may
be read as the feminine gender, the feminine gender may be read as the masculine
gender, the singular may be read as the plural and the plural may be read as the
singular.
19.4 The Plan, and all agreements hereunder, shall be construed in
accordance with and governed by the laws of the State of Minnesota.
19.5 Delivery of shares of Common Stock or of cash pursuant to the
Plan shall be subject to any required withholding taxes. A person entitled to
receive shares of Common Stock may, as a condition precedent to receiving such
shares, be required to pay the Company a cash amount equal to the amount of any
required withholdings.
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EXHIBITS 5 AND 23.1
June 17, 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 June 15, 1999 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 300,000 shares of your Common Stock to be
issued under the Secure Computing Corporation Employee Stock Purchase Plan (the
"Plan") (collectively, the "Shares"). As legal counsel for Secure Computing
Corporation, 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 under the Plan.
It is our opinion that, when issued and sold in the manner referred to
in the Plan, the Shares will be legally and validly issued, fully paid and
nonassessable.
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 to it.
Very truly yours,
/S/ Wilson Sonsini Goodrich & Rosati
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Secure Computing Corporation Employee Stock Purchase Plan
of our report dated January 30, 1999 with respect to the financial statements
and schedule of Secure Computing Corporation incorporated by reference in its
Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
June 17, 1999
