As filed with the Securities and Exchange Commission on March 28, 1997
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
AXENT TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
2400 Research Boulevard, Suite 200
Delaware Rockville, Maryland 20850 87-0393420
(301) 258-5043
(State or other (Address of principal executive offices) (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
AssureNet Pathways, Inc.
Restated 1982 Stock Option Plan Assumed by
AXENT Technologies, Inc.
(Full title of the plan)
Copy to:
JOHN C. BECKER EDWIN M. MARTIN, Jr., ESQ.
President and Chief Operating Officer NANCY A. SPANGLER, ESQ.
AXENT Technologies, Inc. Piper & Marbury L.L.P.
2400 Research Boulevard, Suite 200 1200 Nineteenth Street, N.W.
Rockville, Maryland 20850 Washington, D.C. 20036
(301) 258-5043 (202) 861-3900
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
TO BE REGISTERED REGISTERED(1) SHARE PRICE
---------------------- ------------ ------------------ ------------------ ----------------
Restated 1982 Stock Option 45,400 $8.00(2) $363,200(2) $110.06(2)
Plan
Common Stock (par value
$0.02 per share)
</TABLE>
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Restated 1982 Stock Option
Plan of AssureNet Pathways, Inc. by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(2) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee. The price of shares issued under outstanding options
granted by AssureNet Pathways, Inc. under the Restated 1982 Stock Option
Plan, and assumed by the Company, is computed on the basis of the weighted
average exercise price.
This Registration Statement shall hereafter become effective in accordance
with Rule 462 promulgated under the Securities Act of 1933, as amended.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission (the "Commission") by AXENT Technologies,
Inc. (the "Company") are hereby incorporated by reference in this Registration
Statement:
(1) The Company's prospectus filed on March 11, 1997, pursuant to Rule
424(b), under the Securities Act of 1933, as amended (the "Securities Act"),
containing audited financial statements for the Company's latest fiscal year
ended December 31, 1996, as filed with the Commission.
(2) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including any amendment or report
filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. The documents required to be so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES. The class of securities to be offered is
registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Counsel for the Company, Piper & Marbury L.L.P., Washington, D.C., has
rendered an opinion to the effect that the Common Stock offered hereby is duly
and validly issued, fully paid and nonassessable. Certain members of Piper &
Marbury L.L.P., or investment partnerships of which such persons are partners,
beneficially own approximately 500 shares of the Company's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("Section
145") permits indemnification of directors, officers, agents and employees of a
corporation under certain conditions and subject to certain limitations. The
Registrant's Bylaws include provisions to require the Registrant to indemnify
its directors and officers to the fullest extent permitted by Section 145,
including circumstances in which indemnification is otherwise discretionary, and
the Registrant has entered into indemnification agreements with its directors
and executive officers to that effect. Section 145 empowers the Registrant to
purchase and maintain insurance that protects its officers, directors, employees
and agents against any liabilities incurred in connection with their service in
such positions and the Registrant maintains such insurance providing coverage of
up to $7 million with respect to liabilities arising out of certain matters,
including matters arising under the Securities Act.
<PAGE>
At present, there is no pending litigation or proceeding
involving a director or officer of the Registrant as to which indemnification is
being sought nor is the Registrant aware of any threatened litigation that may
result in claims for indemnification by any officer or director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS. See Exhibit Index.
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 of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Rockville, and the State of Maryland on this 25th day
of March, 1997.
AXENT TECHNOLOGIES, INC.
By: /s/ John C. Becker
John C. Becker, President and Chief Operating
Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
Each person whose signature appears below in so signing also makes,
constitutes and appoints John C. Becker and Edwin M. Martin, Jr., and each of
them acting alone, his true and lawful attorney-in-fact, with full power of
substitution, for him in any and all capacities, to execute and cause to be
filed with the Securities and Exchange Commission any and all amendments and
post-effective amendments to this Registration Statement on Form S-8, with
exhibits thereto and other documents in connection therewith, and hereby
ratifies and confirms all that said attorney-in-fact or his substitute or
substitutes may do or cause to be done by virtue hereof.
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A MAJORITY OF THE BOARD OF DIRECTORS:
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Signature Title Date
/s/ Richard A. Lefebvre Chief Executive Officer, March 24, 1997
- -------------------------------------------- Chairman of the Board
Richard A. Lefebvre and Director (Principal
Executive Officer)
/s/ John C. Becker President, Chief Operating March 25, 1997
- ------------------------------------------- Officer and Director
John C. Becker
/s/ Robert B. Edwards, Jr. Vice President and Chief March 25, 1997
- -------------------------------------------- Financial Officer
Robert B. Edwards, Jr. (Principal Financial
and Accounting Officer)
/s/ Gabriel A. Battista Director March 24, 1997
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Gabriel A. Battista
/s/ John F. Burton Director March 24, 1997
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John F. Burton
/s/ Richard A. Hosley II Director March 24, 1997
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Richard A. Hosley II
/s/ Jacqueline C. Morby Director March 24, 1997
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Jacqueline C. Morby
Director March __, 1997
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Arthur C. Patterson
/s/ Richard W. Smith Director March 27, 1997
- --------------------------------------------
Richard W. Smith
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 Amended and Restated Certificate of Incorporation of the
Registrant is incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission (File No. 333-01368).
4.2 Amended and Restated Bylaws of the Registrant are incorporated by
reference to Exhibit 3.2 to the Registrant's Quarterly Report on
Form 10-Q for the Quarter Ended September 30, 1996.
4.3 Amended Agreement and Plan of Merger among the Registrant,
Axquisition, Inc. and AssureNet Pathways, Inc., dated as of
January 6, 1997, and amended as of February 26, 1997, is
incorporated by reference to the Registrant's Registration
Statement on Form S-4, filed with the Securities and Exchange
Commission (File No. 333-20207).
5.1 Opinion of Piper & Marbury L.L.P. (contains Consent of Counsel).
10.1 Restated 1982 Stock Option Plan of the AssureNet Pathways, Inc.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (included in signature pages).
<PAGE>
Exhibit 5.1
PIPER & MARBURY
L.L.P.
1200 NINETEENTH STREET, N.W.
WASHINGTON, D.C. 20036-2430
202-861-3900
FAX: 202-223-2085
BALTIMORE
NEW YORK
PHILADELPHIA
EASTON
March 28, 1997
AXENT Technologies, Inc.
2400 Research Boulevard, Suite 200
Rockville, Maryland 20850
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 March 25, 1997 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 45,400 shares of Common Stock
of AXENT Technologies, Inc. reserved
for issuance under the Restated 1982 Stock Option Plan of AssureNet Pathways,
Inc. (the "Plan"). As your legal counsel, we have examined the proceedings
proposed to be taken by you in connection with the sale and issuance of said
shares.
It is our opinion that, upon completion of the proceedings to be taken
prior to issuance of the shares pursuant to the Prospectus constituting part of
the Registration Statement on Form S-8 and upon completion of the proceedings
being taken in order to permit such transactions to be carried out in accordance
with the securities laws of the various states where required, the shares, when
issued and sold in the manner referred to in the Plan and the agreements which
accompany the Plan, and in accordance with the Company's Amended and Restated
Certificate of Incorporation, will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to said
Registration Statement and further consent to the use of our name wherever
appearing in said Registration Statement and amendments thereto.
Very truly yours,
/s/ Piper & Marbury L.L.P.
Exhibit 10.1
ASSURENET PATHWAYS, INC.
RESTATED 1982 STOCK OPTION PLAN
(Restated and amended through December 21, 1995)
I. PURPOSES OF THE PLAN
This Restated 1982 Stock Option Plan (the "Plan") is a
consolidation of two pre-existing stock option plans maintained by AssureNet
Pathways, Inc., a California corporation (the "Company"): (i) the 1982 Incentive
Stock Option Plan and (ii) the 1982 Supplemental Stock Option Plan, and this
restated Plan shall accordingly supersede those two plans and serve as their
successor. The Plan is intended to promote the interests of the Company by
providing a method whereby (i) key employees (including officers and directors)
of the Company (or its parent or subsidiary corporations) responsible for the
management, growth and financial success of the Company (or its parent or
subsidiary corporations), (ii) the non-employee members of the Company's Board
of Directors (or the board of directors of any parent or subsidiary
corporations) and (iii) consultants and independent contractors who provide
valuable services to the Company (or its parent or subsidiary corporations) may
be offered incentives and rewards which will encourage them to acquire a
proprietary interest, or otherwise increase their proprietary interest, in the
Company and continue to render services to the Company (or its parent or
subsidiary corporations).
For purposes of the Plan, the following provisions shall be
applicable in determining the parent and subsidiary corporations of the Company:
(i) Any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company shall be considered
to be a parent corporation of the Company, provided each such corporation
in the unbroken chain (other than the Company) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
(ii) Each corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company shall be
considered to be a subsidiary of the Company, provided each such
corporation (other than the last corporation) in the unbroken chain owns,
at the time of the determination, stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one of
the other corporations in such chain.
II. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Board of Directors (the
"Board") of the Company. The Board, however, may at any time appoint a committee
("Committee") of three (3) or more members of the Board and delegate to such
Committee one or more of the
<PAGE>
administrative powers allocated to the Board pursuant to the provisions of the
Plan. Members of the Committee shall serve for such period of time as the Board
may determine and shall be subject to removal by the Board at any time. The
Board may also at any time terminate the functions of the Committee and reassume
all powers and authority previously delegated to the Committee.
The Plan Administrator (either the Board or the Committee, to
the extent the Committee is at the time responsible for the administration of
the Plan) shall have full power and authority (subject to the provisions of the
Plan) to establish such rules and regulations as it may deem appropriate for the
proper administration of the Plan and to make such determinations under, and
issue such interpretations of, the Plan and any outstanding option as it may
deem necessary or advisable. Decisions of the Plan Administrator shall be final
and binding on all parties who have an interest in the Plan or any outstanding
option.
III. ELIGIBILITY FOR OPTION GRANTS
The persons eligible to receive option grants under the Plan
are as follows:
(i) key employees (including officers and directors) of
the Company (or its parent or subsidiary corporations) who render services
which contribute to the success and growth of the Company (or its parent
or subsidiary corporations) or which may reasonably be anticipated to
contribute to the future success and growth of the Company (or its parent
or subsidiary corporations);
(ii) the non-employee members of the Board or the
non-employee members of the board of directors of any parent or
subsidiary corporations: and
(iii) those consultants or independent contractors who
provide valuable services to the Company (or its parent or subsidiary
corporations).
The Plan Administrator shall have full authority to determine
which eligible individuals are to receive option grants under the Plan, the
number of shares to be covered by each such grant, whether the granted option is
to be an incentive stock option ("Incentive Option") which satisfies the
requirements of Section 422 of the Internal Revenue Code or a non-statutory
option not intended to meet such requirements, the time or times at which each
such option is to become exercisable, and the maximum term for which the option
is to be outstanding.
IV. STOCK SUBJECT TO THE PLAN
The stock issuable under the Plan shall be shares of the
Company's authorized but unissued or reacquired Common Stock. The aggregate
number of shares which may be issued collectively over the terms of this Plan
and the Company's 1986 Stock Purchase Plan (the "Purchase Plan") shall not
exceed 3,950,000 shares. Accordingly, the number of shares available for
issuance under the Plan shall be reduced on a one for one basis by (i) the
number of shares of
<PAGE>
Common Stock (whether vested or unvested) from time to time, issued or reissued
under this Plan or the Purchase Plan, and (ii) the number of shares for which
options are surrendered under this Plan. The total number of shares issuable
under this Plan and the Purchase Plan shall be subject to adjustment from time
to time in accordance with the provisions of this Section IV.
Should an option expire or terminate for any reason prior to
exercise or surrender in full (including options cancelled in accordance with
the cancellation-regrant provisions of Section VIII of the Plan), the shares
subject to the portion of the option not so exercised or surrendered shall be
available for subsequent option grants under the Plan or share issuances under
the Purchase Plan. Shares subject to any option or portion thereof surrendered
in accordance with Section IX of the Plan and shares repurchased by the Company
pursuant to its repurchase rights under either this Plan or the Purchase Plan
shall not be available for subsequent option grants under the Plan.
In the event any change is made to the Common Stock issuable
under this Plan and the Purchase Plan by reason of any stock split, stock
dividend, combination of shares, exchange of shares or other change affecting
the outstanding Common Stock as a class without receipt of consideration, then
appropriate adjustments shall be made to (i) the aggregate number of shares
issuable under both this Plan and the Purchase Plan and (ii) the number of
shares and price per share of the Common Stock subject to each outstanding
option in order to prevent the dilution or enlargement of benefits thereunder.
V. TERMS AND CONDITIONS OF OPTIONS
Options granted pursuant to the Plan shall be authorized by
action of the Plan Administrator and may, at the Plan Administrator's
discretion, be either Incentive Options or nonstatutory options. Individuals who
are not employees of the Company or its parent or subsidiary corporations may
only be granted non-statutory options. Each granted option shall be evidenced by
one or more instruments in the form approved by the Plan Administrator;
provided, however, that each such instrument shall comply with and incorporate
the terms and conditions specified below. Each instrument evidencing an
Incentive Option shall, in addition, be subject to the applicable provisions of
Section VI.
1. Option Price.
A. The option price per share shall be fixed by the Plan
Administrator; provided, however, that in no event shall the option price per
share be less than eighty-five percent (85%) of the fair market value of a share
of Common Stock on the date of the option grant.
B. If any individual to whom an option is to be granted
pursuant to the provisions of the Plan is on the date of grant the owner of
stock (as determined under Section 424(d) of the Internal Revenue Code)
possessing 10% or more of the total combined voting power of all classes of
stock of the Company or any one of its parent or subsidiary corporations (such
person to be herein referred to as a 10% Shareholder), then the option price per
share shall
<PAGE>
not be less than one hundred and ten percent (110%) of the fair market value of
one share of Common Stock on the date of grant.
C. The option price shall become immediately due upon exercise
of the option and shall, subject to the provisions of Section X and the
instrument evidencing the grant, be payable in one of the alternative forms
specified below:
(i) full payment in cash or cash equivalents: or
(ii) full payment in shares of Common Stock held by the
optionee for the requisite period necessary to avoid a charge to the
Company's earnings for financial reporting purposes and valued at fair
market value on the Exercise Date (as such term is defined below); or
(iii) payment through a combination of shares of Common
Stock held by the optionee for the requisite period necessary to avoid a
charge to the Company's earnings for financial reporting purposes and
valued at fair market value on the Exercise Date and cash or cash
equivalents, equal in the aggregate to the option price.
Should the Company's outstanding Common Stock be
registered under Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "1934 Act") at the time the option is exercised, then to the
extent the option is exercised for vested shares, the option price may
also be paid through a special sale and remittance procedure pursuant to
which the Optionee is to provide irrevocable written instructions to (I)
a Company-designated brokerage firm to effect the immediate sale of the
purchased shares and remit to the Company, out of the sale proceeds
available on the settlement date, an amount sufficient to cover the
aggregate option price payable for the purchased shares plus all
applicable Federal and State income and employment taxes required to be
withheld by the Company by reason of such purchase and (II) the Company
to deliver the certificates for the purchased shares directly to such
brokerage firm in order to effect the sale transaction.
Except to the extent such sale and remittance procedure is
utilized, payment of the option price must occur at the time the option is
exercised.
For purposes of this subparagraph C, the Exercise Date shall
be the first date on which the Company shall have received both written notice
of the exercise of the option and payment of the option price for the purchased
shares.
D. The fair market value of a share of Common Stock on any
relevant date under subparagraph A, B or C above (and for all other valuation
purposes under the Plan) shall be determined in accordance with the following
provisions:
<PAGE>
(i) If the Common Stock is not at the time listed or
admitted to trading on any stock exchange but is traded in the
over-the-counter market, the fair market value shall be the mean between
the highest bid and lowest asked prices (or, if such information is
available, the closing selling price) of one share of Common Stock on the
date in question in the over-the-counter market, as such prices are
reported by the National Association of Securities Dealers through its
Nasdaq system or any successor system. If there are no reported bid and
asked prices (or closing selling price) for the Common Stock on the date
in question, then the mean between the highest bid price and lowest asked
price (or the closing selling price) on the last preceding date for which
such quotations exist shall be determinative of fair market value.
(ii) If the Common Stock is at the time listed or
admitted to trading on any stock exchange, then the fair market value
shall be the closing selling price of one share of Common Stock on the
date in question on the stock exchange determined by the Plan
Administrator to be the primary market for the Common Stock, as such price
is officially quoted in the composite tape of transactions on such
exchange. If there is no reported sale of Common Stock on such exchange on
the date in question, then the fair market value shall be the closing
selling price on the exchange on the last preceding date for which such
quotation exists.
(iii) If the Common Stock at the time is neither listed
nor admitted to trading on any stock exchange nor traded in the
over-the-counter market, then the fair market value shall be determined by
the Plan Administrator after taking into account such factors as the Plan
Administrator shall deem appropriate, including one or more independent
professional appraisals.
2. Term and Exercise of Options.
Each option granted under the Plan shall be exercisable at
such time or times, during such period, and for such number of shares as shall
be determined by the Plan Administrator and set forth in the instrument
evidencing such option: provided, however, that no such option shall have a
maximum term in excess of ten (10) years from the grant date and provided,
further, that no such option granted to a 10% Shareholder shall have a maximum
term in excess of five (5) years from the grant date. During the lifetime of the
optionee, the option shall be exercisable only by the optionee and shall not be
assignable or transferable by the optionee otherwise than by will or by the laws
of descent and distribution.
3. Effect of Termination of Employment.
A. Should an optionee cease to be a Service Provider to the
Company for any reason (including death or permanent disability as defined in
Section 22(e)(3) of the Internal Revenue Code) while the holder of one or more
outstanding options under the Plan, then such option or options shall not
(except to the extent otherwise provided pursuant to Section XI below) remain
exercisable for more than a thirty-six (36) month period (or such shorter period
determined by the Plan Administrator and specified in the instrument evidencing
the grant)
<PAGE>
following the date of such cessation of Service Provider status; provided,
however, that under no circumstances shall such options be exercisable after the
specified expiration date of the option term. Each such option shall, during
such thirty-six (36) month or shorter period, be exercisable only to the extent
of the number of vested shares (if any) for which the option is exercisable on
the date of such cessation of Service Provider status. Upon the expiration of
such thirty-six (36) month or shorter period or (if earlier) upon the expiration
of the option term, the option shall terminate and cease to be exercisable.
B. Any option granted to an optionee under the Plan and
exercisable in whole or in part on the date of the optionee's death may be
subsequently exercised, but only to the extent of the number of vested shares
(if any) for which the option is exercisable on the date of the optionee's
death, by the personal representative of the optionee's estate or by the person
or persons to whom the option is transferred pursuant to the optionee's will or
in accordance with the laws of descent and distribution, provided and only if
such exercise occurs prior to the earlier of (i) the first anniversary of the
date of the optionee's death or (ii) the specified expiration date of the option
term. Upon the occurrence of the earlier event, the option shall terminate and
cease to be exercisable.
C. Notwithstanding subparagraphs A and B above, the Plan
Administrator shall have complete discretion, exercisable either at the time the
option is granted or at the time the optionee ceases Service Provider status, to
establish as a provision applicable to the exercise of one or more options
granted under the Plan that during the limited period of exercisability
following the cessation of Service Provider status as provided in Section V.3.A
above, the option may be exercised not only with respect to the number of shares
for which it is exercisable at the time of the optionee's cessation of Service
Provider status but also with respect to one or more subsequent installments of
purchasable shares for which the option would otherwise have become exercisable
had such cessation of Service Provider status not occurred.
D. For purposes of the foregoing provisions of this Section
V.3 (and all other provisions of the Plan), unless it is evidenced otherwise in
the specific option agreement evidencing the option grant and/or the purchase
agreement evidencing the purchased optioned shares, the optionee shall be deemed
to be a Service Provider to the Company for so long as such individual renders
services on a periodic basis to the Company or any parent or subsidiary
corporation in the capacity of an Employee, a nonemployee member of the board of
directors or an independent consultant or advisor. The optionee shall be
considered to be an Employee for so long as such individual remains in the
employ of the Company or one or more of its parent or subsidiary corporations.
4. Shareholder Rights.
An optionee shall have none of the rights of a shareholder
with respect to any shares covered by the option until such individual shall
have exercised the option and paid the option price.
<PAGE>
5. Repurchase Rights.
The shares of Common Stock acquired upon the exercise of
options granted under the Plan may be subject to one or more repurchase rights
of the Company in accordance with the following provisions:
A. The Plan Administrator may in its discretion determine that
it shall be a term and condition of one or more options exercised under the Plan
that the Company (or its assignees) shall have the right, exercisable upon the
optionee's cessation of Service Provider status, to repurchase at the option
price all or (at the discretion of the Company and with the consent of the
optionee) any portion of the shares of Common Stock previously acquired by the
optionee upon the exercise of such option. Any such repurchase right shall be
exercisable by the Company (or its assignees) upon such terms and conditions
(including the establishment of the appropriate vesting schedule and other
provision for the expiration of such right in one or more installments over the
optionee's period of Service Provider status) as the Plan Administrator may
specify in the instrument evidencing such right.
B. In no event may the Plan Administrator impose a vesting
schedule upon any option granted under the Plan or upon any shares of Common
Stock issued under the Plan which is more restrictive than 20% per year annual
vesting, beginning one year after the grant date of the option.
C. The Plan Administrator may assign the Company's repurchase
rights under subparagraph A. above to any person or entity selected by the Plan
Administrator, including one or more shareholders of the Company. If the
selected assignee is other than a parent or subsidiary corporation of the
Company, then the assignee must make a cash payment to the Company, upon the
assignment of the repurchase rights, in an amount equal to the excess (if any)
of the fair market value of the unvested shares at the time subject to the
repurchase rights and the aggregate repurchase price payable for such unvested
shares thereunder.
D. All of the Company's outstanding repurchase rights shall
automatically terminate, and all purchased shares under the Plan shall
immediately vest in full, upon the occurrence of any Corporate Transaction under
Section VII; provided, however, that no such termination of the repurchase
rights or immediate vesting of the purchased shares shall occur if (and to the
extent) (i) the Company's outstanding repurchase rights are to be assigned to
the successor corporation (or parent thereof) in connection with the Corporate
Transaction or (ii) such termination of repurchase rights and acceleration of
vesting are precluded by other limitations imposed by the Plan Administrator at
the time of the option grant.
E. The Plan Administrator may also in its discretion establish
as a term and condition of one or more options granted under the Plan that the
Company shall have a right of first refusal with respect to any proposed sale or
other disposition by the optionee (or any successor in interest by reason of
purchase, gift or other mode of transfer) of any shares of Common Stock issued
upon the exercise of such options. Any such right of first refusal shall be
<PAGE>
exercisable by the Company (or its assignees) in accordance with the terms and
conditions set forth in the instrument evidencing such right.
VI. INCENTIVE OPTIONS
The terms and conditions specified below shall be applicable
to all Incentive Options granted under the Plan. Incentive Options may only be
granted to individuals who are Employees of the Company. Options which are
specifically designated as "non-statutory" options when issued under the Plan
shall not be subject to such terms and conditions.
A. Option Price. The option price per share of the Common
Stock subject to an Incentive Option shall in no event be less than one hundred
percent (100%) of the fair market value of a share of Common Stock on the date
of grant.
B. Sequential Exercise Rule. Except to the extent now or
hereafter permitted by Section 422A of the Internal Revenue Code, no Incentive
Option granted prior to January 1, 1987 may be exercised while there remains
outstanding (within the meaning of subsection (c)(7) of such Section 422A) any
other pre-1987 Incentive Option which was granted at an earlier date to the
optionee to purchase stock in the Company or in any other corporation which is
on the date of grant of the later option either a parent or subsidiary
corporation of the Company or a predecessor corporation of any such
corporations.
C. Dollar Limitation. The aggregate fair market value of the
shares of Common Stock (determined as of the respective date or dates of grant)
for which one or more options granted to any Employee under the Plan (or any
other option plan of the Company or any parent or subsidiary) may for the first
time become exercisable as Incentive Options during any one (1) calendar year
shall not exceed the sum of One Hundred Thousand Dollars ($100,000). To the
extent the Employee holds two (2) or more such options which become exercisable
for the first time in the same calendar year, the foregoing limitation on the
exercisability of such options as Incentive Options shall be applied on the
basis of the order in which such options are granted.
Except as modified by the preceding provisions of this Section
VI, all the provisions of the Plan shall be applicable to the Incentive Options
granted hereunder.
VII. CORPORATE TRANSACTIONS
A. In the event of any of the following transactions (a
"Corporate Transaction"):
(i) a merger or acquisition in which the Company is not
the surviving entity, except for a transaction the principal purpose of
which is to change the State of the Company's incorporation,
(ii) the sale, transfer or other disposition of all or
substantially all of
the assets of the Company, or
<PAGE>
(iii) any reverse merger in which the Company is the
surviving entity but in which fifty percent (50%) or more of the
Company's outstanding voting stock is transferred to holders different
from those who held the stock immediately prior to such merger,
then each option outstanding under the Plan shall terminate upon the
consummation of such Corporate Transaction and cease to be exercisable, unless
assumed by the successor corporation or parent thereof.
B. If the Company is the surviving entity in any merger or
other business combination, then each option which remains outstanding under the
Plan immediately after such merger or other business combination shall be
appropriately adjusted to apply and pertain to the number and class of
securities which would be issuable, in consummation of such merger or business
combination, to an actual holder of the same number of shares of Common Stock as
are subject to such option immediately prior to such merger or business
combination. Appropriate adjustments shall also be made to the option price
payable per share, provided the aggregate option price payable for such
securities shall remain the same. In addition, the class and number of
securities available for issuance in the aggregate under this Plan and the
Purchase Plan following the consummation of such merger or business combination
shall be appropriately adjusted.
C. The grant of options under this Plan shall in no way affect
the right of the Company to adjust, reclassify, reorganize or otherwise change
its capital or business structure or to merge, consolidate, dissolve, liquidate
or sell or transfer all or any part of its business or assets.
VIII. CANCELLATION AND REGRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at
any time and from time to time, with the consent of the affected optionees, the
cancellation of any or all outstanding options under the Plan and to grant in
substitution therefor new options under the Plan covering the same or different
numbers of shares of Common Stock but having an option price per share not less
than eighty-five percent (85%) of fair market value (one hundred percent (100%)
of fair market value in the case of an Incentive Option or, in the case of a 10%
Shareholder, not less than one hundred and ten percent (110%) of fair market
value) on the new grant date. If one or more of the cancelled options are
pre-1987 Incentive Options, then such options shall (solely for purposes of the
"sequential exercise" rule of Section VI.B. as applied to other outstanding
pre-1987 Incentive Options) be considered to be outstanding options until the
expiration date initially specified for the option term.
IX. SURRENDER OF OPTIONS FOR CASH OR STOCK
A. Provided and only if the Plan Administrator determines in
its discretion to implement the stock appreciation right provisions of this
Section IX, one or more optionees may
<PAGE>
be granted the right, exercisable upon such terms and conditions as the Plan
Administrator may establish, to surrender all or part of an unexercised option
under the Plan in exchange for a distribution from the Company equal in amount
to the excess of (i) the fair market value (at date of surrender) of the number
of shares in which the optionee is at the time vested under the surrendered
option (or surrendered portion thereof) over (ii) the aggregate option price
payable for such vested shares.
B. No surrender of an option shall be effective hereunder
unless it is approved by the Plan Administrator. If the surrender is so
approved, then the distribution to which the optionee shall accordingly become
entitled under this Section IX may be made in shares of Common Stock valued at
fair market value at date of surrender, in cash, or partly in shares and partly
in cash, as the Plan Administrator shall in its sole discretion deem
appropriate.
C. If the surrender of an option is rejected by the Plan
Administrator, then the optionee shall retain whatever rights the optionee had
under the surrendered option (or surrendered portion thereof) on the date of
surrender and may exercise such rights at any time prior to the later of (i)
five (5) business days after the receipt of the rejection notice or (ii) the
last day on which the option is otherwise exercisable in accordance with the
terms of the instrument evidencing such option, but in no event may such rights
be exercised at any time after ten (10) years (or five (5) years in the case of
a 10% Shareholder) after the date of the option grant.
D. Notwithstanding the foregoing provisions of this Section
IX, should twenty-five percent (25%) or more of the Company's outstanding voting
stock be acquired, at a time when one or more classes of the Company's equity
securities are registered under Section 12(g) of the 1934 Act, pursuant to a
tender or exchange offer (I) which is made by a person or group of related
persons other than the Company or a person that directly or indirectly controls,
is controlled by or is under common control with the Company and (II) which the
Board does not recommend the Company's shareholders to accept, then each officer
or director who is at the time subject to the short-swing profit restrictions of
the Federal securities laws shall have the right (exercisable for a period not
to exceed thirty (30) days) to surrender any or all options held by such
individual under this Plan, to the extent such options are at the time
exercisable for vested shares, and receive in exchange therefor an appreciation
distribution from the Company equal in amount to the excess of (i) the fair
market value (on the date of surrender) of the number of shares in which the
optionee is at the time vested under the surrendered option or portion thereof
over (ii) the aggregate option price payable for such vested shares. The
approval of the Plan Administrator shall not be required for such surrender, and
the distribution to which such individual shall become entitled upon such
surrender shall be made entirely in cash.
E. For purposes of subparagraph D. above, the fair market
value per share of the vested Common Stock subject to the surrendered option
shall be deemed to be equal to the greater of (a) the value per share on the
date of surrender, as determined in accordance with the valuation provisions of
Section V.1.D or (b) the highest reported price per share paid in effecting the
tender or exchange offer. However, if the surrendered option is an Incentive
Option, then the fair market value of the vested shares subject to the
surrendered option shall not exceed the value per share determined under clause
(a) above.
<PAGE>
X. LOANS OR GUARANTEE OF LOANS
The Plan Administrator may assist any optionee (including any
officer or director) in the exercise of one or more options under the Plan by
(a) authorizing the extension of a loan to such optionee from the Company, (b)
permitting the optionee to pay the option price for the purchased Common Stock
in installments over a period of years or (c) authorizing a guarantee by the
Company of a third-party loan to the optionee. The terms of any loan,
installment method of payment or guarantee (including the interest rate and
terms of repayment) will be established by the Plan Administrator in its sole
discretion. Loans, installment payments and guarantees may be granted without
security or collateral (other than to optionees who are consultants or
independent contractors, in which event the loan must be adequately secured by
collateral other than the purchased shares), but the maximum credit available to
the optionee shall not exceed the sum of (i) the aggregate option price payable
for the purchased shares plus (ii) any federal and state income and employment
tax liability incurred by the optionee in connection with the exercise of the
option.
XI. EXTENSION OF EXERCISE PERIOD
The Plan Administrator shall have full power and authority to
extend the period of time for which the option is to remain exercisable
following the optionee's termination of Service Provider status from the twelve
(12) month or shorter period set forth in the option agreement to such greater
period of time as the Plan Administrator shall deem appropriate; provided,
however, that in no event shall such option be exercisable after the specified
expiration date of the option term.
XII. AMENDMENT OF THE PLAN
The Board shall have complete and exclusive power and
authority to amend or modify the Plan in any or all respects whatsoever;
provided, however, that no such amendment or modification shall, without the
consent of the holders, adversely affect rights and obligations with respect to
options at the time outstanding under the Plan; and provided, further that the
Board shall not, without the approval of the Company's shareholders, (i)
increase the maximum number of shares issuable in the aggregate under this Plan
and the Purchase Plan, except for permissible adjustments under Section IV, (ii)
materially modify the eligibility requirements for the grant of options under
the Plan or (iii) otherwise materially increase the benefits accruing to
participants under the Plan.
XIII. EFFECTIVE DATE AND TERM OF PLAN
A. This restated Plan is a consolidation of the Company's 1982
Incentive Stock Option Plan and 1982 Supplemental Stock Option Plan. This
restated Plan shall accordingly supersede those two prior stock option plans and
shall serve as their successor. The provisions of this restatement shall apply
only to options granted under the Plan from and after the date this restatement
is adopted by the Board. Each option issued and outstanding under
<PAGE>
either the 1982 Incentive Stock Option Plan or the 1982 Supplemental Stock
Option Plan immediately prior to such adoption of this restatement shall
continue to be governed by the terms and conditions of the particular plan under
which such option was granted (and the instrument evidencing such grant) as in
effect on the grant date, and nothing in this restatement shall be deemed to
affect or otherwise modify the rights or obligations of the holders of such
prior options with respect to the acquisition of shares of Common Stock
thereunder.
B. On January 23, 1991, the Board increased the number of
shares available for issuance under the Plan by 1,000,000 shares and extended
the term of the Plan by five years. On February 22, 1991, the Board further
increased the number of shares issuable hereunder by 400,000 shares and on
August 17, 1992, the Board further increased the number of shares issuable
hereunder by an additional 400,000 shares. The shareholders approved the January
1991 and February 1991 amendments on March 11, 1991 and the August 1992
amendment on October 4, 1992. On December 21, 1995, the Board increased the
number of shares available for issuance under the Plan by 950,000 shares. The
Company's shareholders approved the increase on February 20, 1996.
C. The sale and remittance procedure authorized for the
exercise of outstanding options under this Plan shall be available for all
options granted under this Plan on or after December 5, 1995 and for all
non-statutory options outstanding under the Plan. The Plan Administrator may
also allow such procedure to be utilized in connection with one or more
disqualifying dispositions of Incentive Option shares effected after December 5,
1995.
D. Unless sooner terminated in accordance with Section VII,
the Plan shall terminate upon the earlier of (i) August 30, 1997, or (ii) the
date on which all shares available for issuance in the aggregate under this Plan
and the Purchase Plan shall have been issued either (a) pursuant to the exercise
or surrender of options granted hereunder or (b) pursuant to the issuance of
shares under the Purchase Plan. If the date of termination is determined under
clause (i) above, then options outstanding on such date shall thereafter
continue to have force and effect in accordance with the provisions of the
instruments evidencing such options.
E. Options may be granted under this Plan to purchase shares
of Common Stock in excess of the number of shares then available for issuance in
the aggregate under this Plan and the Purchase Plan, provided (i) an amendment
to increase the maximum number of shares issuable in the aggregate under this
Plan and the Purchase Plan is adopted by the Board prior to the initial grant of
any such option and within one year thereafter such amendment is approved by the
Company's shareholders and (ii) each option granted is not to become
exercisable, in whole or in part, at any time prior to the obtaining of such
shareholder approval.
XIV. USE OF PROCEEDS
Any cash proceeds received by the Company from the sale of
shares pursuant to options granted under the Plan shall be used for general
corporate purposes.
<PAGE>
XV. REGULATORY APPROVALS
The implementation of the Plan, the granting of any option
hereunder, and the issuance of stock upon the exercise or surrender of any such
option shall be subject to the procurement by the Company of all approvals and
permits required by regulatory authorities having jurisdiction over the Plan,
the options granted under it and the stock issued pursuant to it.
XVI. FINANCIAL REPORTS
The Company shall deliver financial and other information
regarding the Company, on an annual or other periodic basis, to each individual
holding an outstanding option under the Plan, to the extent the Company is
required to provide such information pursuant to Section 260.140.41.2 of the
Rules of the California Corporations Commissioner.
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of AXENT Technologies, Inc. of our report dated January
28, 1997, on our audits of the financial statements and financial statement
schedule of AXENT Technologies, Inc. as of December 31, 1995 and 1996 and for
each of
the three years in the period ended December 31, 1996, included in its
Registration Statement on Form S-4, File No. 333-20207, as filed with the
Securities and Exchange Commission which report is incorporated by reference in
this Form S-8.
COOPERS & LYBRAND L.L.P.
Washington, D.C.
March 27, 1997
