<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 4, 1996
REGISTRATION NO. 333-5419
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TRUSTED INFORMATION SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
7372
(PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER)
51-0375640
(I.R.S. EMPLOYER
IDENTIFICATION NO.)
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3060 WASHINGTON ROAD
GLENWOOD, MD 21738
(301) 854-6889
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
STEPHEN T. WALKER
TRUSTED INFORMATION SYSTEMS, INC.
3060 WASHINGTON ROAD
GLENWOOD, MD 21738
(301) 854-6889
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copies to:
<TABLE>
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EDWIN M. MARTIN, JR., ESQUIRE GERALD S. TANENBAUM, ESQUIRE
PIPER & MARBURY L.L.P. CAHILL GORDON & REINDEL
1200 NINETEENTH STREET, N.W. 80 PINE STREET
WASHINGTON, DC 20036 NEW YORK, NY 10005
(202) 861-3900 (212) 701-3000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
PROSPECTUS Subject to Completion
Dated October 4, 1996
2,900,000 Shares
tis LOGO
TRUSTED INFORMATION SYSTEMS, INC.
Common Stock
(par value $.01 per share)
All of the shares of Common Stock (the "Common Stock") offered hereby (the
"Offering") are being offered by Trusted Information Systems, Inc., a Delaware
corporation (the "Company"). See "Underwriting."
Prior to the Offering, there has been no public market for the Common Stock. It
is currently anticipated that the initial public offering price of the Common
Stock will be between $11.00 and $13.00 per share. See "Underwriting" for
information relating to the factors considered in determining the initial public
offering price. Upon completion of the Offering, the directors and executive
officers of the Company and trusts for the benefit of members of their families
will beneficially own approximately 43.0% of the Company's outstanding Common
Stock. See "Risk Factors -- Control by Directors and Officers" and "Principal
Stockholders."
The Common Stock has been approved for quotation on the Nasdaq National Market
under the symbol "TISX."
SEE "RISK FACTORS" BEGINNING ON PAGE 8 FOR CERTAIN INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT (1) COMPANY (2)
<S> <C> <C> <C>
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Per Share $ $ $
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Total (3) $ $ $
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</TABLE>
(1) The Company has agreed to indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
See "Underwriting."
(2) Before deducting expenses of the Offering payable by the Company estimated
at $925,000.
(3) The Company has granted the Underwriters an option to purchase up to an
additional 435,000 shares of Common Stock, on the same terms set forth above,
solely to cover over-allotments, if any. If such option is exercised in full,
the total Price to Public, Underwriting Discount and Proceeds to Company will be
$ , $ and $ respectively. See "Underwriting."
The shares of Common Stock offered by this Prospectus are being offered by the
Underwriters, subject to prior sale, when, as and if delivered to and accepted
by the Underwriters, and subject to approval of certain legal matters by Cahill
Gordon & Reindel, counsel for the Underwriters. It is expected that delivery of
the shares of Common Stock will be made against payment therefor on or about
, 1996 at the offices of J.P. Morgan Securities Inc., 60 Wall
Street, New York, New York.
J.P. MORGAN & CO.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
FURMAN SELZ
, 1996
<PAGE> 3
(GRAPHIC: DIAGRAM OF TODAY'S ELECTRONIC INFORMATION SECURITY CHALLENGES)
(GRAPHIC: DIAGRAM OF TIS'S ELECTRONIC INFORMATION SECURITY SOLUTIONS)
<PAGE> 4
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK AT
A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NASDAQ NATIONAL MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No person has been authorized to give any information or make any
representations not contained in this Prospectus and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or any Underwriter. This Prospectus does not constitute an offer
to sell, or a solicitation of an offer to buy, the Common Stock in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation.
No action has been or will be taken in any jurisdiction by the Company or any
Underwriter that would permit a public offering of the Common Stock or
possession or distribution of this Prospectus in any jurisdiction where action
for that purpose is required, other than in the United States. Persons into
whose possession this Prospectus comes are required by the Company and the
Underwriters to inform themselves about and to observe any restrictions as to
the offering of the Common Stock and the distribution of this Prospectus.
TABLE OF CONTENTS
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PAGE
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Prospectus Summary.................... 4
Risk Factors.......................... 8
Use of Proceeds....................... 16
Dividend Policy....................... 16
Capitalization........................ 17
Dilution.............................. 18
Selected Financial Data............... 19
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... 20
Business.............................. 27
Management............................ 44
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PAGE
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Certain Relationships and Related
Party Transactions.................. 50
Principal Stockholders................ 51
Description of Capital Stock.......... 52
Shares Eligible for Future Sale....... 54
Underwriting.......................... 55
Legal Matters......................... 56
Experts............................... 56
Additional Information................ 56
Glossary of Terms..................... 57
Index to Financial Statements......... F-1
</TABLE>
UNTIL , 1996 (25 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL DEALERS
EFFECTING TRANSACTIONS IN THE COMMON STOCK, WHETHER OR NOT PARTICIPATING IN THIS
DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO
THE OBLIGATIONS OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS
AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
The Company intends to furnish stockholders with annual reports containing
financial statements audited by its independent auditors and quarterly reports
containing unaudited financial statements for the first three quarters of each
fiscal year.
The Trusted Information Systems, Inc. logo and Trusted Mach are registered
trademarks or servicemarks of the Company. Trademark registrations are pending
for TIS, Gauntlet, RecoverKey, CKE, KRT, Key Recovery Technology and Building A
World of Trust. This Prospectus also includes trademarks, servicemarks and
tradenames of other companies.
3
<PAGE> 5
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by, and should be read in
conjunction with, the more detailed information and financial statements
included elsewhere in this Prospectus. As used herein, the terms "Company" and
"TIS," unless otherwise indicated, refer to Trusted Information Systems, Inc.
and its subsidiaries. Except as otherwise noted or the context otherwise
requires, all information in this Prospectus (i) assumes no exercise of the
Underwriters' over-allotment option and (ii) reflects an effective 24.538-for-1
stock split of the Common Stock.
THE COMPANY
Trusted Information Systems, Inc., founded in 1983, provides comprehensive
security solutions for protection of computer networks, including global
Internet-based systems, internal networks and individual workstations and
laptops and is a leading provider of firewall products. The Company develops,
markets, licenses and supports the Gauntlet family of firewall products. These
products allow customers to create "trusted" networks that are protected from
access, theft and damage by unauthorized users from "untrusted" networks such as
the Internet and also enable the creation of virtual private networks ("VPNs")
through the encrypted transmission of information across untrusted networks. The
Company emphasizes the robustness of its security solutions, its long experience
with computer security and cryptography issues and its ability to provide
comprehensive solutions to customers. The Company also emphasizes its strong
reputation with corporate and government computer security professionals in the
United States and abroad as a pioneer in the field of computer network security.
The Company's Gauntlet Internet Firewall, introduced in 1994, was derived from
the TIS Internet Firewall Toolkit which has been available on the Internet since
1993 and has been downloaded more than 34,000 times to more than 15,000 discrete
locations worldwide. To date, more than 1,700 Gauntlet Internet Firewalls have
been licensed to customers, including the following or subsidiaries thereof:
Chrysler Corporation, Microsoft Corporation, NationsBank Corporation, Royal
Dutch Petroleum Co. and Swiss Bank Corporation. In January 1996, the Company
initiated a telemarketing program to upgrade TIS Internet Firewall Toolkit users
to the Gauntlet family of firewall products. These products use a proxy-based
application gateway system rather than a filtering gateway system, thus assuring
a higher level of security by prohibiting direct connections between networks
and by permitting only specifically approved application data to flow into and
out of the trusted network. Additionally, the Gauntlet family of firewall
products is built on an operating system that has been modified or "hardened"
for greater system security. TIS employs a "Crystal Box" approach in which
source code is distributed to allow for assurance reviews by the Company's
customers, resellers and other experts. The Gauntlet Internet Firewall is
available on an Intel Pentium-based platform as well as other platforms such as
Hewlett-Packard, Silicon Graphics and Sun Microsystems workstations. The Company
expects that its Gauntlet Internet Firewall versions supporting Sun
Microsystems' Solaris and Microsoft's Windows NT Server will be commercially
available by the end of 1996. The Gauntlet family of firewall products also
includes the recently introduced Gauntlet Intranet Firewall for internal
networks, Gauntlet Net Extender for remote sites and Gauntlet PC Extender for
desktop or mobile computer users.
Initially, the Company focused on consulting to major corporations such as
Digital Equipment Corporation, International Business Machines Corporation and
MCI Communications Corporation, and it has continued to provide computer
security consulting to major corporations throughout its history. The Company's
commercial consulting practice offers expert technology research services,
consultation on security issues associated with products and services, corporate
information security policy development, architectural and diagnostic security
analysis, firewall configuration and maintenance support and training for
corporate network and security administration personnel. These services are
carried out by a staff of 12 persons who average more than 15 years of
information security experience in both commercial and government organizations.
The Company believes that full commercial utilization of the Internet has been
hampered by lack of security and the vulnerability of the Internet and private
networks connected to the Internet. The very openness of the Internet means that
transmitted information and data stored in connected hosts are exposed to other
users who are able, in the absence of effective security measures, to gain
access to, manipulate and divert the data. This fundamental weakness requires
that organizations and individuals weigh security concerns against the perceived
commercial opportunities presented by millions of Internet users.
4
<PAGE> 6
To satisfy an organization's desire both to conduct commerce on public networks
and to keep hackers and viruses outside of its trusted network, firewalls are
designed to monitor and regulate the traffic passing into and out of the trusted
network. Organizations are vulnerable not only to unauthorized access to
information resources by outsiders, but also to abuse by employees within their
own organizations. The Company believes that firewalls and encryption are key
elements in providing solutions to these security issues. International Data
Corporation has recently forecast that revenues from new licenses of firewall
software will grow from approximately $160 million in 1995 to approximately $980
million in 2000.
To capitalize on this opportunity, the Company is pursuing a focused marketing
strategy to achieve greater market penetration through complementary domestic
and international distribution channels, including direct sales, resellers and
telesales. The Company's direct sales force markets its products and services to
Fortune 500 corporations and organizations with complex information security
needs, such as telecommunications companies, finance and banking institutions,
petrochemical companies and pharmaceutical companies. The Company's more than 50
resellers include Internet service providers such as BBN Internet Service Corp.,
Demon Internet Limited, PSINet, Inc., Unipalm Limited and UUNet Technologies,
Inc.; value added resellers and hardware vendors such as Bull Enterprise
Systems, Data General Corporation, HITACHI Ltd., Silicon Graphics, Inc. and
Sumitomo Electric Systems Company, Ltd.; system integrators such as AvantComp
Oy, Conjungi Corporation, Fujitsu Systems Business of Canada, Inc. and Media
Communications STM AB; and security product vendors such as Hanil Telecom Co.,
Ltd., Mergent International, Inc. and Virtual Open Network Environment
Corporation ("V-One").
Prior to founding TIS in 1983, Stephen T. Walker spent 20 years working on
computer security issues at the National Security Agency ("NSA"), the Advanced
Research Projects Agency ("ARPA") and the Office of the Secretary of Defense.
While working for the U.S. Department of Defense, Mr. Walker was responsible for
the development of network security standards and policies, as well as for the
establishment of the Department of Defense Computer Security Initiative, the
first comprehensive attempt in the Department of Defense at managing computer
security systems solutions. Mr. Walker is widely recognized as a pioneer in the
field of computer network security. He has testified before Congress as an
expert witness on these issues on numerous occasions and has played an
instrumental role in assisting the U.S. government to formulate encryption
export policy. Mr. Walker's experience is complemented by other members of the
Company's senior management team who average over 20 years of experience working
on computer security and networking issues in industry and government.
In 1987, TIS began to perform consulting and research and development projects
for government agencies, including the NSA and ARPA. These activities have
contributed to the Company's in-depth understanding of the technologies, threats
and user requirements in computer security and have contributed to the
development of the TIS Internet Firewall Toolkit and the Gauntlet family of
firewall products. The Company continues to provide research and development and
consulting services to government agencies in areas such as next generation
firewalls, distributed trusted operating systems, Internet domain name services,
international cryptography and advanced cryptographic key handling and recovery
techniques.
The Company's position as an adviser and supplier to industry and the government
has enabled it to become a leader in developing a key recovery solution, based
on its proprietary technology generally known as RecoverKey or Key Recovery
Technology ("KRT") ("RecoverKey/KRT"), to permit the export of products with
strong cryptography while protecting the interests of security and law
enforcement agencies. The Clinton administration policy, as outlined by the Vice
President on July 12, 1996 and October 1, 1996, links the relaxation of export
controls to systems that include the use of key recovery. The Company has
incorporated its RecoverKey-International solution (formerly known as Commercial
Key Escrow ("CKE")) into its Gauntlet Internet Firewall. In January 1996, the
U.S. government granted the Company an export license for a particular
transaction involving the Gauntlet Internet Firewall using the DES algorithm (56
bits). This was the first export license granted because the encryption is
combined with a key recovery system. In June 1996, the U.S. government granted
the Company several export licenses to sell the Gauntlet Internet Firewall in
order to provide Global Virtual Private Network services.
The Company was incorporated in Maryland in 1983 and was reincorporated in
Delaware in 1996. The Company's principal executive offices are located at 3060
Washington Road, Glenwood, Maryland 21738. Its telephone number is (301)
854-6889. The Company's home page on the World Wide Web is www.tis.com.
5
<PAGE> 7
THE OFFERING
COMMON STOCK OFFERED................ 2,900,000 shares
COMMON STOCK OUTSTANDING AFTER THE
OFFERING............................ 10,442,447(1)
USE OF PROCEEDS..................... Working capital and other general
corporate purposes including expansion
of distribution capabilities, further
development of products and technology,
expansion of service and support
capabilities, repayment of short-term
borrowings and potential acquisitions.
DIVIDEND POLICY..................... The Company intends to retain its
earnings to fund development of its
business and does not anticipate paying
cash dividends in the foreseeable
future. See "Dividend Policy."
RISK FACTORS........................ For a discussion of certain
considerations relevant to an
investment in the Common Stock, see
"Risk Factors."
PROPOSED NASDAQ NATIONAL MARKET
SYMBOL.............................. "TISX"
- ---------------
(1) Excludes 1,314,355 shares of Common Stock reserved for issuance under
outstanding stock options as of September 15, 1996. See "Management -- Employee
Stock Options Plans" and "-- Directors' Stock Option Plan" and Note 5 of Notes
to Consolidated Financial Statements.
6
<PAGE> 8
SUMMARY FINANCIAL DATA
The following table sets forth summary financial data derived from the
consolidated financial statements of the Company. The data should be read in
conjunction with the consolidated financial statements and notes thereto and
other financial information included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
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FISCAL YEAR(1) FIRST HALF(1)
In thousands, except per share data 1991 1992 1993 1994 1995 1995 1996
------ ------ ------ ------- ------- ------ ------
(UNAUDITED) (UNAUDITED)
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STATEMENT OF OPERATIONS DATA
Revenues
Government contracts......................... $5,191 $6,262 $8,343 $11,258 $12,327 $6,042 $5,352
Commercial products.......................... -- -- -- 1,003 4,271 1,412 3,732
Commercial consulting services............... 834 568 448 856 1,492 835 534
------ ------ ------ ------- ------- ------ ------
Total revenues............................. 6,025 6,830 8,791 13,117 18,090 8,289 9,618
Gross profit................................... 2,343 2,454 2,972 4,914 7,225 2,931 4,226
Income (loss) from operations.................. 213 262 192 1,271 2,353 787 (1,459)
Net income (loss).............................. 38 74 35 675 1,344 471 (920)
Net income (loss) per share.................... $ -- $ .01 $ -- $ .08 $ .15 $ .05 $ (.11)
Weighted average shares outstanding............ 8,563 8,419 8,369 8,526 8,885 8,750 8,110
</TABLE>
<TABLE>
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JUNE 28, 1996
DECEMBER 29, AS
1995 ACTUAL ADJUSTED(2)
------------ ------- -------------
(UNAUDITED)
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BALANCE SHEET DATA
Cash, cash equivalents and marketable securities.................. $ 54 $ 5,653 $33,412
Working capital................................................... 210 1,278 32,717
Total assets...................................................... 10,222 19,424 47,184
Total debt........................................................ 3,264 6,799 3,119
Shareholders' equity.............................................. 2,407 5,089 36,528
</TABLE>
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(1) The ending dates of these fiscal years are December 27, 1991, December 25,
1992, December 31, 1993, December 30, 1994 and December 29, 1995. The ending
dates of these first halves are June 30, 1995 and June 28, 1996.
(2) Adjusted to reflect the sale of 2,900,000 shares of Common Stock offered
hereby (assuming an initial public offering price of $12.00 per share) and the
application of a portion of the estimated net proceeds therefrom to repay
short-term borrowings. See "Use of Proceeds" and "Capitalization."
7
<PAGE> 9
RISK FACTORS
In addition to the other information in this Prospectus, the following risk
factors should be considered in evaluating the Company and its business before
purchasing shares of the Common Stock offered hereby.
TRANSITION TO COMMERCIAL PRODUCT VENDOR
Historically, the Company's principal business had been contract research and
development, primarily for U.S. government agencies or companies engaged in work
for U.S. government agencies. In addition, the Company performed consulting for
major companies. The Company introduced its Firewall Toolkit on the Internet in
October 1993 and announced its first commercial firewall product, the Gauntlet
Internet Firewall, in April 1994. The transition to a commercial product vendor
requires the Company to significantly expand its self-funded research and
development, to continually introduce new products and add features to existing
products, to enhance its domestic and international sales force and establish
additional distribution channels and to further expand its management team. In
addition, the Company must adapt to the demands of an emerging and rapidly
changing commercial market, intense competition and changing technology and
industry standards. There can be no assurance that the Company can make this
transition successfully or that the Company will be able to penetrate the
commercial markets in a manner sufficient to assure its success in the future.
The Company believes it is likely that, as a result of its transition from
government contract research and development to a commercial product vendor, its
historical financial performance will not be indicative of future performance.
See "Management's Discussion and Analysis of Financial Condition and Results of
Operations" and "Business -- TIS Strategy."
MANAGEMENT OF GROWTH
The Company has experienced changes in its operations which have placed
significant demands on the Company's administrative, operational, technical and
financial resources. The General Manager of the Commercial Division, the Chief
Financial Officer and the Vice President, Sales of the Commercial Division have
been with the Company for less than one year. To compete effectively, both in
its domestic and international operations, and to manage future growth, if any,
the Company must continue to strengthen its operational, financial and
management information reporting systems, controls and procedures on a timely
basis and expand, train and manage its work force. There can be no assurance
that the Company will be able to take such actions successfully. The failure of
the Company's management team to effectively manage growth, should it occur,
could have a material adverse effect on the Company's financial condition or
results of operations.
POTENTIAL SIGNIFICANT FLUCTUATIONS IN QUARTERLY OPERATING RESULTS AND LENGTHY
SALES CYCLE
The Company anticipates significant quarterly fluctuations in its operating
results in the future. The Company generally ships orders for commercial
products as they are received and, as a result, has little backlog for
commercial products. Quarterly revenues and operating results therefore depend
on the volume and timing of orders received during the quarter, which are
difficult to forecast. The Company may, like many companies in businesses
similar to the Company, receive a disproportionate share of orders late in the
fiscal quarterly period, which makes forecasting quarterly results even more
difficult. In addition, government contracts revenues and consulting services
revenues tend to fluctuate as projects, which may continue over several
quarters, are undertaken or completed. Operating results may also fluctuate on a
quarterly basis due to factors such as the demand for the Company's products,
the introduction of new products and product enhancements by the Company or its
competitors, market acceptance of new products introduced by the Company or its
competitors and the size, timing, cancellation or delay of customer orders,
including cancellation or delay in anticipation of new product introduction or
enhancement. The Company's quarterly operating results are also affected by the
budgeting cycles of customers, changes in the proportion of revenues
attributable to licenses and consulting fees, changes in the mix of products
sold, changes in the percentage of products sold through the Company's direct
sales force, changes in product pricing, changes in the development of the
Company's direct and indirect distribution channels, competitive conditions in
the industry and changes in general economic conditions. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
8
<PAGE> 10
Due to the foregoing factors, it is likely that in some future quarters the
Company's operating results will be below the expectations of public market
analysts and investors. Regardless of the general outlook for the Company's
business, the announcement of quarterly operating results below analyst and
investor expectations could have a material and adverse effect on the price of
the Company's Common Stock.
SALES AND DISTRIBUTION RISKS
The Company currently has over 35 employees in direct commercial sales and
marketing, many of whom have been employed by the Company for less than a year.
In order to increase its direct sales effort, the Company will need to increase
the size of its internal sales and marketing staff and increase the staff's
productivity. There can be no assurance that such internal expansion will be
successfully completed, that the cost of such expansion will not exceed the
revenues generated or that the Company's sales and marketing operation will
successfully compete against the more extensive and well funded sales and
marketing operations of many of the Company's current and future competitors.
The Company has approximately 50 resellers worldwide. There can be no assurance
that the Company will be able to retain its resellers or attract additional
resellers or that its resellers will be able to market the Company's products
effectively and will be qualified to provide timely and cost-effective customer
support and service. The Company's resellers may carry competing product
offerings. There can be no assurance that any reseller will continue to
represent the Company's products. The inability to recruit, or the loss of,
important sales personnel or resellers could materially adversely affect the
Company's financial condition or results of operations. See
"Business -- Competition" and "-- Sales and Marketing."
RISKS ASSOCIATED WITH INFORMATION SECURITY MARKET
The market for the Company's software products is in an early stage of
development. Declines in demand for the Company's products, whether as a result
of competition, technological change, the public's perception of the need for
security products, developments in the hardware and software environments in
which these products operate, general economic conditions or other factors,
could have a material adverse effect on the Company's financial condition or
results of operations. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations."
A well-publicized actual or perceived breach of network or computer security
could trigger a heightened awareness of computer abuse, resulting in an
increased demand for security products such as those offered by the Company.
Similarly, an actual or perceived breach of network or computer security at one
of the Company's customers, regardless of whether such breach is attributable to
the Company's products, could adversely affect the market's perception of the
Company and the Company's financial condition or results of operations. In
addition, although the effectiveness of the Company's products is not dependent
upon the secrecy of its proprietary technology or licensed technology, the
public disclosure of its proprietary technology could result in a perception of
breached security and reduced effectiveness of the Company's products, which
could have an adverse effect on the Company's financial condition or results of
operations.
NEW PRODUCT INTRODUCTIONS
The Gauntlet Internet Firewall was released commercially in April 1994, and the
other firewall products in the Gauntlet family were introduced in April 1996.
Each of the Gauntlet Internet Firewall, the Gauntlet Intranet Firewall, the
Gauntlet Net Extender and the Gauntlet PC Extender supports SunOS,
Hewlett-Packard and Berkeley Software Design, Inc. operating systems. Although
the Company's Gauntlet firewall products do not currently support Sun
Microsystems Solaris, Windows NT Server or Microsoft Windows 95, the Company
expects that its firewall products supporting these operating systems will be
commercially available by the end of 1996. See "Business -- Commercial Products
and Services." The Company is currently devoting significant resources toward
the development of versions of Gauntlet Internet firewall products that operate
on additional hardware platforms and operating systems, the development of
RecoverKey/KRT products and the development of enhancements to these families of
products. There can be no assurance that the Company will successfully complete
the development of these products in a timely fashion, that the Company will be
able to develop versions of its products that operate on the range of hardware
platforms and operating systems currently anticipated or that the Company's
current or future products will satisfy the needs of the information security
market or achieve market acceptance or, if market
9
<PAGE> 11
acceptance is achieved, that the Company will be able to maintain such
acceptance for a significant period of time. Any inability of the Company to
develop products on a timely basis that address changing customer requirements
may require the Company to substantially increase development expenditures or
may result in a loss of market share to a competitor. There can also be no
assurance that security-related products or technologies developed by others
will not adversely affect the Company's competitive position or render its
products or technologies noncompetitive or obsolete. See "Business -- Commercial
Products and Services" and "-- Competition."
CHANGES IN TECHNOLOGY
The information security industry is characterized by rapid changes, including
frequent new product introductions, continuing advances in technology and
changes in customer requirements and preferences. The introduction of new
technologies or advances in techniques for gaining unauthorized network access
could render the Company's existing products obsolete or unmarketable. The
development cycle for the Company's new products may be significantly longer
than the Company's historical product development cycle, resulting in higher
development costs or a loss in market share. Advances in techniques by
individuals and entities seeking to gain unauthorized access to networks could
expose the Company's existing products to new and unexpected attacks and require
accelerated development of new products or require the Company to invest
resources in products that may not become profitable. There can be no assurance
that (i) the Company will be able to counter challenges to its current products;
(ii) the Company's future product offerings will keep pace with the
technological changes implemented by competitors or persons seeking to breach
information security; (iii) the Company's products will satisfy evolving
preferences of customers and prospects; or (iv) the Company will be successful
in developing and marketing products for any future technology. Failure to
develop and introduce new products and product enhancements in a timely fashion
could have a material adverse effect on the Company's financial condition or
results of operations. See "Business -- Commercial Products and Services."
DEPENDENCE ON THE INTERNET
The success of the Company's products and services will depend in large part
upon the development of an infrastructure for providing Internet access and
services. Because global commerce and online exchange of information on the
Internet and other similar open wide area networks are new and evolving, it is
difficult to predict with any assurance whether the Internet will prove to be a
viable commercial marketplace. The Internet has experienced, and is expected to
continue to experience, significant, geometric growth in the number of users and
amount of traffic. There can be no assurance that the Internet infrastructure
will continue to be able to support the demands placed on it by this continued
growth. In addition, the Internet could lose its viability due to delays in the
development or adoption of new standards and protocols (for example, the
next-generation Internet Protocol) to handle increased levels of Internet
activity, or due to increased governmental regulation. If the necessary
infrastructure or complementary services or facilities are not developed, or if
the Internet does not become a viable commercial marketplace, the Company's
results of operations or financial conditions could be materially adversely
affected. See "Business -- Industry Background."
RISKS OF DOING BUSINESS WITH THE U.S. GOVERNMENT
Historically, the Company has derived substantially all of its revenues from
contracts with departments and agencies of the U.S. government and government
contractors. The Company expects to continue to rely on existing and future
research and development contracts with agencies of the U.S. government for a
substantial part of the Company's revenues in the near future. The Company
believes that future government contracts will in part be dependent upon the
continued favorable reaction of government agencies to the research, development
and consulting capabilities of the Company. The Company's development contract
with the NSA, which accounted for approximately 36.8% and 41.9% of the Company's
government contracts revenues in 1995 and the first half of 1996, respectively,
is scheduled to expire in early 1997. There can be no assurance that the Company
will be able to procure an extension of this contract or additional contracts of
a similar magnitude. The NSA contract permits the NSA to award a fee as low as
1% of the Company's costs of development, and is subject to cancellation for the
convenience of the agency. Although the Company has been awarded more than 1%
and there have been no terminations of the Company's government contracts in the
past, there can be no assurance that minimum fee awards or cancellations
10
<PAGE> 12
will not occur in the future. Reductions or delays in federal funds available
for projects the Company is performing could also have an adverse impact on the
Company's government business. Contracts involving the U.S. government are also
subject to the risks of disallowance of costs upon audit, changes in government
procurement policies, the necessity to participate in competitive bidding and,
with respect to contracts involving prime contractors or government-designated
subcontractors, the inability of such parties to perform under their contracts.
Any of the foregoing events could have a material adverse effect on the
Company's financial condition or results of operations. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
"Business -- Advanced Research and Engineering."
COMPETITION
Competition in the information security market is intense and constantly
evolving, and the Company expects such competition to increase in the future.
The Company believes that significant competitive factors affecting this market
are depth of product functionality, product quality and performance, product
price, customer support, conformance to protocols and industry standards and
breadth of platform support. In addition, the ability to rapidly develop and
implement new products and features for the market is critical. The Company's
competitors include organizations that provide information security products
based upon approaches similar to and different from those employed by the
Company. There can be no assurance that the market for information security
products will not ultimately be dominated by approaches other than the
approaches marketed by the Company. See "Business -- Industry Background" and
"-- Competition."
Many of the Company's competitors and potential competitors have longer
operating histories, greater name recognition, a larger customer base and
significantly greater financial, marketing, technical and other competitive
resources than the Company. As a result, they may be able to adapt more quickly
to new or emerging technologies and changes in customer requirements, or to
devote greater resources to the promotion and sale of their products than can
the Company. There can be no assurance that the Company's current or potential
competitors will not develop products comparable or superior to those developed
by the Company or adapt more quickly than the Company to new technologies,
evolving industry trends or changing customer requirements. Competition could
increase if new companies enter the market or if existing competitors expand
their product lines, including the addition by operating system vendors such as
Microsoft Corporation of firewalls in their operating system software products.
An increase in competition could result in price reductions and loss of market
share. Any resulting reduction in gross margins could have a material adverse
effect on the Company's financial condition or results of operations. Although
the Company believes it has certain technological and other advantages over its
competitors, maintaining such advantages will require continued investment by
the Company in research and development and sales and marketing. There can be no
assurance that the Company will have sufficient resources to make such
investments or that the Company will be able to make the technological advances
necessary to maintain such competitive advantages. In addition, current and
potential competitors have established or may in the future establish
collaborative relationships among themselves or with third parties, including
third parties with whom the Company has strategic relationships, to increase the
ability of their products to address the security needs of the Company's
prospective customers. Accordingly, it is possible that new competitors or
alliances may emerge and rapidly acquire significant market share. If this were
to occur, the Company's financial condition or results of operations could be
materially adversely affected. See "Business -- Competition."
RISKS ASSOCIATED WITH POSSIBLE ACQUISITIONS
The Company intends from time to time to evaluate potential acquisitions of
businesses, products and technologies that could complement or expand the
Company's business. At the current time, the Company has no plans, agreements or
commitments for any such acquisitions and is not engaged in any negotiations
with respect thereto. In the event the Company identifies an appropriate
acquisition candidate, there is no assurance that the Company would be able to
successfully negotiate the terms of any such acquisition, finance such
acquisition and integrate such acquired business, products or technologies into
the Company's existing business and operations. Furthermore, the integration of
an acquired business could cause a diversion of management time and resources.
There can be no assurance that a given acquisition, when consummated, would not
materially adversely affect the Company's financial condition or results of
operations. See "Use of Proceeds." If the Company proceeds with one or more
11
<PAGE> 13
significant acquisitions in which the consideration consists of cash, a
substantial portion of the Company's available cash (including proceeds of the
Offering) could be used to consummate the acquisitions. If the Company
consummates one or more significant acquisitions in which the consideration
consists of stock, or is financed with the proceeds of the issuance of stock,
stockholders of the Company could suffer a significant dilution of their
interests in the Company.
RISKS OF ERROR OR FAILURES
Products as complex as those offered by the Company may contain undetected
errors, failures or bugs when first introduced or when new versions are
released. Many companies offering software products have in the past discovered
failures and bugs in certain of their product offerings and have experienced
delays or lost revenues during the period required to correct these errors. The
computer technology environment is characterized by a wide variety of standard
and non-standard configurations that make pre-release testing for programming or
compatibility errors very difficult and time-consuming, especially with the many
configurations and variations of equipment and operating systems in computer
networks. Furthermore, there can be no assurance that, despite testing by the
Company and by others, errors, failures or bugs will not be found in new
products or releases after commencement of commercial shipments by the Company.
Errors, failures or bugs in the Company's products could result in adverse
publicity, in product returns, in loss of or delay in market acceptance of the
Company's products or in claims by the customer or others against the Company.
Alleviating such problems could require significant expenditures of capital and
resources by the Company and could cause interruptions, delays or cessation of
service to the Company's customers. The Company attempts to limit its liability
to customers, including liability arising from a failure of the security
features contained in the Company's products, through contractual limitations of
warranties and remedies. However, some courts have held similar contractual
limitations of liability, or the "shrink-wrap licenses" in which they sometimes
are embodied, to be unenforceable. Accordingly, there can be no assurance that
such limitations will be enforced. The Company does not currently carry product
liability insurance. The consequences of errors, failures or bugs in the
Company's products could have a material adverse effect on the Company's
financial condition or results of operations. See "Business -- Commercial
Products and Services."
DEPENDENCE ON KEY PERSONNEL
The Company's success depends to a significant degree upon the continuing
contributions of its key management, sales, marketing and product development
personnel. These key personnel include Stephen T. Walker, Martha A. Branstad,
Ronald W. Kaiser, Steven B. Lipner, Homayoon Tajalli and Harvey L. Weiss. The
Company has no employment agreement with any of its employees. The loss of the
services of any key employee could adversely affect the Company's financial
condition or results of operations. The Company believes that its future success
will depend in large part upon its ability to attract and retain highly skilled
managerial, sales, marketing and product development personnel. The Company
requires consulting services and product development personnel who are highly
technically trained in the field of information security and the competition for
such individuals is intense. The Company has at times experienced, and continues
to experience, difficulty in recruiting qualified personnel. Competition for
qualified personnel in the software industry is intense, and there can be no
assurance that the Company will be successful in retaining its key employees or
that it can attract or retain additional skilled personnel as required. See
"Management."
RISKS ASSOCIATED WITH INTERNATIONAL SALES
Sales outside North America accounted for approximately 2.4%, 7.9% and 8.5% of
the Company's total revenues in 1994, 1995 and the first half of 1996,
respectively. Management expects that in the future sales outside North America
will generate a larger portion of the Company's total revenues. The Company's
international business may be subject to a variety of risks, including costs
relating to the start-up of direct operations in certain countries or regions,
delays in expanding its international distribution channels, difficulties in
collecting international accounts receivable from distributors or resellers and
increased costs associated with maintaining international marketing efforts.
Some of the Company's international sales are denominated in the local currency
of the country in which the sale was made, and in those cases the Company is
subject to the risks associated with fluctuations in currency exchange rates. A
decrease in the value of any of these foreign currencies relative to the U.S.
dollar could affect the
12
<PAGE> 14
profitability in U.S. dollars of the Company's products sold in these markets.
In addition, the Company is subject to the usual risks of doing business abroad,
including increases in duty rates, the introduction of non-tariff barriers and
difficulties in enforcement of intellectual property rights. There can be no
assurance that these factors will not have an adverse effect on the Company's
financial condition or results of operations. See "Business -- Sales and
Marketing."
EFFECT OF GOVERNMENT REGULATION OF TECHNOLOGY EXPORTS
The Company's international sales and operations may be subject to risks such as
the imposition of governmental controls, new or changed export license
requirements, restrictions on the export of critical technology, trade
restrictions and changes in tariffs. While the Company believes its products are
designed to meet the regulatory standards of foreign markets, any inability to
obtain foreign regulatory approvals on a timely basis could have a material
adverse effect on the Company's financial condition or results of operations.
Certain of the Company's products are subject to export controls under U.S. law,
and the Company believes it has obtained all necessary export approvals when
required. There can be no assurance, however, that the list of products and
countries for which export approval is required, and the regulatory policies
with respect thereto, will not be revised from time to time. The inability of
the Company to obtain required approvals under these regulations could
materially adversely affect the ability of the Company to make international
sales. For example, because of U.S. governmental controls on the exportation of
encryption technology, the Company is unable to export certain of its products
unless they include RecoverKey/KRT. As a result, foreign competitors facing less
stringent controls on their products may be able to compete more effectively
than the Company in the global information security market. There can be no
assurance that these factors will not have a material adverse effect on the
Company's financial condition or results of operation. See "Business -- Industry
Background," "-- Commercial Products and Services" and "-- Regulatory Matters."
The Company has been a leader in developing a key recovery solution to enable
the interests of security and law enforcement agencies to be protected while
permitting the export of products with strong cryptography. The U.S. government,
both in the context of executive branch decision-making and pending legislation
in the Congress, is actively considering a variety of decisions regarding
cryptography export policy. The Clinton administration policy, as outlined by
the Vice President on July 12, 1996 and October 1, 1996, links the relaxation of
export controls to systems that include the use of key recovery. However,
certain parties, including companies in the computer industry and members of the
U.S. Congress, and a recent report prepared for the National Research Council of
the National Academy of Sciences call for removing export controls on
cryptographic products that use the industry standard DES algorithm (56 bits).
To the extent that the government either decides to prohibit or otherwise
restrict the export of such products with key recovery or decides to permit the
export of such products without key recovery, those decisions could have an
adverse impact on the development of a market for the RecoverKey-International
(or CKE) products the Company plans to introduce in the future.
LIMITED PROTECTION OF INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
The Company's success is dependent in part on its proprietary technology. TIS
relies on a combination of patent, trade secret, copyright and trademark laws,
non-disclosure agreements and contractual provisions to establish and protect
its proprietary rights. The Company has received three patents and has one
pending domestic patent application and two pending international patent
applications pursuant to the Patent Cooperation Treaty (PCT) on its
RecoverKey/KRT and computer security technology. The Company has not selected
any particular foreign countries in which to file patent applications based upon
these PCT applications and intends to make such selections as appropriate in the
future. The Company uses a printed "shrink-wrap" license for users of its
products in order to protect certain of its copyrights and trade secrets. The
Company attempts to protect its trade secrets and other proprietary information
through agreements with suppliers, non-disclosure and non-competition agreements
with employees and consultants and other security measures.
There can be no assurance that the Company will seek patents on aspects of its
technology relating to its information security products, that any such patents
will issue or that any such additional patents will be sufficiently broad to
protect the Company's technology relating to its information security products.
The status of computer-related patents involves complex legal and factual
questions and the breadth of claims allowed is uncertain. Accordingly,
13
<PAGE> 15
there can be no assurance that patent applications filed by the Company will
result in patents being issued or that its existing patent, and any patents that
may be issued to it in the future, will afford protection against competitors
with similar technology; nor can there be any assurance that patents issued to
the Company will not be infringed upon or designed around by others or that
others will not obtain patents that the Company would need to license or design
around. If existing or future patents containing broad claims are upheld by the
courts, the holders of such patents might be in a position to require companies
to obtain licenses. There can be no assurance that licenses that might be
required for the Company's products would be available on reasonable terms, if
at all.
Despite the Company's efforts to protect its proprietary rights, unauthorized
parties may attempt to copy aspects of the Company's products or to obtain and
use information that the Company regards as proprietary. Policing unauthorized
use of the Company's products is difficult, and, while the Company is unable to
determine the extent to which piracy of its software products exists, such
piracy can be expected to be a persistent problem, particularly in international
markets and as a result of the growing use of the Internet. Some courts have
held that shrink-wrap licenses, because they are not signed by the licensee, are
not enforceable. The laws of Maryland, which the shrink-wrap licenses purport to
make the governing law, are unclear on this subject. There can also be no
assurance that the Company's trade secrets or confidentiality agreements will
provide meaningful protection of the Company's proprietary information.
Furthermore, there can be no assurance that others will not independently
develop similar technologies or duplicate any technology developed by the
Company or that the Company's technology will not infringe upon patents or other
rights owned by others. The Company's inability to protect its proprietary
rights could have a material adverse effect on the Company's financial condition
or results of operations.
As the number of information security products in the industry increases and the
functionality of these products further overlaps, software developers and
publishers may increasingly become subject to claims of infringement or
misappropriation of the intellectual property or proprietary rights of others.
There can be no assurance that third parties will not assert infringement or
misappropriation claims against the Company in the future with respect to
current or future products. Further, the Company may be subject to additional
risk as it enters into transactions in countries where intellectual property
laws are not well developed or are poorly enforced. Legal protections of the
Company's rights may be ineffective in such countries, and technology developed
in such countries may not be protectable in jurisdictions where protection is
ordinarily available.
Any claims or litigation, with or without merit, to defend or enforce the
Company's intellectual property could be costly and could result in a diversion
of management's attention, which could have a material adverse effect on the
Company's financial condition or results of operations. Adverse determinations
in such claims or litigation could also have a material adverse effect on the
Company's financial condition or results of operations. See "Business --
Proprietary Information and Intellectual Property."
CONTROL BY DIRECTORS AND OFFICERS
Upon completion of this Offering, the Company's officers and directors and
trusts for the benefit of members of their families will beneficially own
approximately 43.0% of the Company's outstanding Common Stock. As a practical
matter, these stockholders, if acting together, would have the ability to elect
the Company's directors and to determine the outcome of corporate actions
requiring stockholder approval. This concentration of ownership may have the
effect of delaying or preventing a change in control of the Company. See
"Management" and "Principal Stockholders."
NO PRIOR PUBLIC MARKET; POSSIBLE VOLATILITY OF STOCK PRICE
Prior to the Offering, there has been no public market for the Common Stock.
There can be no assurance that an active trading market will develop or be
sustained or that the purchasers of the Common Stock will be able to resell
their Common Stock at prices equal to or greater than the initial public
offering price. The initial public offering price of the Common Stock will be
determined through negotiations between the Company and the Representatives of
the Underwriters and may not reflect the market price of the Common Stock after
the Offering. See "Underwriting" for a discussion of factors considered in
determining the initial public offering price. The trading price of the Common
Stock could be subject to wide fluctuations in response to quarterly variations
in operating results, announcements of technological innovations or new products
by the Company or its competitors, changes in
14
<PAGE> 16
financial estimates by securities analysts, market conditions and general trends
in the technology industry and other events or factors. In addition, the stock
market has experienced volatility that has particularly affected the market
prices of equity securities of many high technology companies and that often has
been unrelated to the operating performance of such companies. These broad
market fluctuations may adversely affect the market price of the Common Stock.
See "Underwriting."
SUBSTANTIAL AND IMMEDIATE DILUTION
Investors participating in the Offering will incur immediate, substantial
dilution of $8.50 per share in the net tangible book value of their shares as
the Offering at an assumed offering price of $12.00 will increase the net
tangible book value per share from $0.68 to $3.50, as compared with the average
price paid by existing stockholders of $0.0497. To the extent outstanding
options to purchase the Common Stock are exercised, there will be further
dilution. See "Dilution."
EFFECT OF CERTAIN CHARTER PROVISIONS
The Company's Board of Directors has the authority to issue up to 5,000,000
shares of preferred stock (the "Preferred Stock") and to determine the price,
rights, preferences, privileges and restrictions, including voting rights, of
those shares without any further vote or action by the stockholders. The rights
of the holders of Common Stock will be subject to, and may be adversely affected
by, the rights of the holders of any Preferred Stock that may be issued in the
future. The issuance of Preferred Stock, while providing desirable flexibility
in connection with possible acquisitions and other corporate purposes, could
have the effect of making it more difficult for a third party to acquire a
majority of the outstanding voting stock of the Company. The Company has no
current plans to issue shares of Preferred Stock. Further, certain provisions of
the Company's Certificate of Incorporation and Bylaws and of Delaware law could
delay or make more difficult a merger, tender offer or proxy contest involving
the Company. The Company is subject to the anti-takeover provisions of Section
of 203 of the Delaware General Corporation Law. In general, the statute
prohibits a publicly held Delaware corporation from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
See "Description of Capital Stock -- Preferred Stock," "-- Certain Provisions of
the Company's Certificate of Incorporation and Bylaws" and "-- Section 203 of
Delaware General Corporation Law."
In addition, the Company's Certificate of Incorporation contains other
provisions that may have the effect of delaying or preventing a change in
control of the Company: (i) a classified Board of Directors and (ii) a
limitation on stockholder action by written consent. See "Description of Capital
Stock -- Certain Provisions of the Company's Certificate of Incorporation and
Bylaws." All of these factors may negatively affect the price of the Common
Stock.
SHARES ELIGIBLE FOR FUTURE SALE
Sales of a substantial number of shares of Common Stock in the public market
following the Offering could adversely affect the market price for the Common
Stock and the Company's ability to raise capital. Upon completion of the
Offering, the Company will have outstanding 10,442,447 shares of Common Stock,
assuming no exercise of outstanding options. In addition to the shares offered
hereby, approximately 1,004,226 shares will be available for immediate sale in
the public market as of or shortly following the date of this Prospectus.
Beginning 90 days after the date of this Prospectus, approximately 682,223
additional shares will become eligible for sale in the public market, subject to
the provisions of Rule 144 or Rule 701 under the Securities Act of 1933, as
amended (the "Securities Act"). Beginning approximately 75 days following the
date of this Prospectus, unless sooner released from contractual "lock-up"
agreements with the Underwriters, approximately 20,000 additional shares will
become available for sale in the public market pursuant to Rule 144 or Rule 701,
subject in certain cases to volume and other resale limitations under Rule 144.
Beginning 180 days following the date of this Prospectus, unless sooner released
from contractual lock-up agreements with the Underwriters, approximately
5,850,716 additional shares will become available for sale in the public market
pursuant to Rule 144 or Rule 701, subject in certain cases to volume and other
resale limitations under Rule 144. See "Shares Eligible for Future Sale." The
Company is unable to estimate the number of shares which may be sold under Rule
144 or Rule 701 since this will depend upon the market price of the Common
Stock, the individual circumstances of the sellers and other factors.
15
<PAGE> 17
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Common Stock being offered
hereby (after deducting the underwriting discounts and estimated offering
expenses) are estimated to be $31.4 million ($36.3 million if the Underwriters'
over-allotment option is exercised in full) (assuming an initial public offering
price of $12.00 per share).
Such net proceeds will be used for working capital and other general corporate
purposes including expansion of the Company's distribution capabilities, further
development of products and technology, expansion of the Company's service and
support capabilities, repayment of short-term borrowings (all of which are
guaranteed by Mr. Walker and of which $3.7 million was outstanding as of June
28, 1996 with an interest rate of 9.25%) and potential acquisitions. Short-term
borrowings would also include any borrowings under a $2.0 million credit
agreement (of which no amounts were outstanding as of September 27, 1996) which
will bear interest at the lender's prime rate plus 3%.
Pending such uses, the Company intends to invest the net proceeds in short-term,
investment-grade securities.
DIVIDEND POLICY
The Company has never declared or paid any cash dividends on its common stock.
In addition, the agreements relating to certain of the Company's borrowings from
Mercantile-Safe Deposit & Trust Company ("Mercantile Bank") restrict the
Company's ability to pay cash dividends without Mercantile Bank's consent. The
Company intends to retain its earnings to fund development of its business and
does not anticipate paying cash dividends in the foreseeable future.
16
<PAGE> 18
CAPITALIZATION
The following table sets forth the capitalization of the Company as of June 28,
1996, and as adjusted to give effect to the sale of 2,900,000 shares of Common
Stock offered hereby (assuming an initial public offering price of $12.00 per
share) and the application of a portion of the estimated net proceeds therefrom
to repay short-term borrowings. See "Use of Proceeds."
<TABLE>
<CAPTION>
----------------------
JUNE 28, 1996
Dollars in thousands, except per share ACTUAL AS ADJUSTED
------- -----------
<S> <C> <C>
Lines of credit and current portion of long-term debt(1)................ $ 3,973 $ 293
======= =========
Long-term debt, excluding current portion............................... $ 2,826 $ 2,826
------- ---------
Shareholders' equity:
Preferred stock, $.01 par value (5,000,000 shares authorized; no
shares outstanding)................................................ -- --
Common stock, $.01 par value (40,000,000 shares authorized; 7,535,170
shares issued and outstanding, actual; 10,435,170 shares issued and
outstanding, as adjusted)(2)....................................... 75 104
Additional paid-in capital............................................ 1,405 32,815
Unrealized gains, net of income taxes of $2,197....................... 3,278 3,278
Foreign currency translation adjustment............................... (10) (10)
Retained earnings..................................................... 1,423 1,423
Deferred stock compensation........................................... (1,082) (1,082)
------- ---------
Total shareholders' equity......................................... 5,089 36,528
------- ---------
Total capitalization............................................... $ 7,915 $39,354
======= =========
</TABLE>
- ---------------
(1) Does not reflect future borrowings or repayments pursuant to a new $2.0
million credit facility with Mercantile Bank as of August 27, 1996. Any
borrowings which may be made under this facility must be repaid upon the
consummation of the Offering.
(2) Does not include 1,314,355 shares reserved for issuance upon exercise of
stock options outstanding as of September 15, 1996 (of which options for
1,178,848 shares were outstanding as of June 28, 1996). Also does not include
654,640 additional shares available for future issuance under the Company's
Stock Option Plans. See "Management -- Employee Stock Option Plans" and
"-- Directors' Stock Option Plan."
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<PAGE> 19
DILUTION
The net tangible book value of the Company at June 28, 1996 was $5,089,498, or
$.68 per share of Common Stock. After giving effect to (i) the sale of the
2,900,000 shares of Common Stock of the Company offered hereby at an assumed
initial public offering price of $12.00 per share, and (ii) the deduction of
underwriting discounts and estimated expenses of the Offering, the net tangible
book value of the Company at June 28, 1996 would have been $36,528,498, or $3.50
per share of Common Stock. This represents an immediate increase in net tangible
book value of $2.82 per share to existing stockholders and an immediate dilution
of $8.50 per share to new investors. The following table illustrates this per
share dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share of Common Stock.............. $12.00
Net tangible book value per share at June 28, 1996........................... $ .68
Increase in net tangible book value per share of Common Stock attributable to
new investors.............................................................. 2.82
-----
Pro forma net tangible book value per share of Common Stock after the
Offering................................................................... 3.50
------
Dilution per share to new investors.......................................... $ 8.50
======
</TABLE>
The following table summarizes, as of June 28, 1996, the number of shares of
Common Stock purchased by existing stockholders from the Company, the total
consideration paid and the average price per share paid to the Company for such
shares and by new investors in the Offering (assuming an initial public offering
price of $12.00 per share):
<TABLE>
<CAPTION>
----------------------------------------------------------------
TOTAL CONSIDERATION
SHARES PURCHASED AVERAGE PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
---------- ------- ----------- ------- -------------
<S> <C> <C> <C> <C> <C>
Existing stockholders.................. 7,535,170 72.2% $ 374,654 1.1% $0.0497
New investors.......................... 2,900,000 27.8 34,800,000 98.9 12.00
---------- ------- ----------- ------
Total................................ 10,435,170 100.0% $35,174,654 100.0%
========== ======= =========== ======
</TABLE>
As of September 15, 1996, there were outstanding options to purchase 1,314,355
shares of Common Stock at a weighted average exercise price of $.91 per share
(of which options to purchase 1,178,848 shares were outstanding as of June 28,
1996 at a weighted average exercise price of $.67 per share). The foregoing
tables do not give effect to the exercise of stock options and, to the extent
they are exercised, there will be further dilution to new investors. See
"Management -- Employee Stock Option Plans" and "-- Directors' Stock Option
Plan."
18
<PAGE> 20
SELECTED FINANCIAL DATA
The consolidated statement of operations data set forth below for the fiscal
years ended December 31, 1993, December 30, 1994, and December 29, 1995 and the
consolidated balance sheet data at December 31, 1993, December 30, 1994 and
December 29, 1995 are derived from, and should be read in conjunction with, the
audited consolidated financial statements of the Company which are included
elsewhere in this Prospectus. The consolidated statements of operations data for
the fiscal years ended December 27, 1991 and December 25, 1992 and the
consolidated balance sheet data at December 27, 1991 and December 25, 1992 are
derived from unaudited consolidated financial statements of the Company not
included herein. The selected financial data at June 30, 1995 and June 28, 1996
and for the six months ended June 30, 1995 and June 28, 1996 are derived from
unaudited consolidated financial statements included elsewhere in this
Prospectus. The unaudited consolidated financial statements include all
adjustments (consisting only of normal recurring adjustments and accruals) that
in the opinion of management are necessary for a fair presentation of the
financial information set forth therein. Operating results for the six months
ended June 28, 1996 are not necessarily indicative of the results that may be
expected for the fiscal year ending December 27, 1996. The selected financial
data set forth below are qualified in their entirety by, and should be read in
conjunction with, the consolidated financial statements, the related notes
thereto and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
--------------------------------------------------------------
FISCAL YEAR FIRST HALF
In thousands, except per share data 1991 1992 1993 1994 1995 1995 1996
------ ------ ------ ------- ------- ------ ------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA
Revenues:
Government contracts......................... $5,191 $6,262 $8,343 $11,258 $12,327 $6,042 $5,352
Commercial products.......................... -- -- -- 1,003 4,271 1,412 3,732
Commercial consulting services............... 834 568 448 856 1,492 835 534
------ ------ ------ ------- ------- ------ ------
6,025 6,830 8,791 13,117 18,090 8,289 9,618
Cost of revenues:
Government contracts......................... 3,332 4,108 5,512 7,377 8,845 4,521 3,864
Commercial products.......................... -- -- -- 333 1,142 410 1,198
Commercial consulting services............... 350 268 307 493 878 427 330
------ ------ ------ ------- ------- ------ ------
3,682 4,376 5,819 8,203 10,865 5,358 5,392
------ ------ ------ ------- ------- ------ ------
Gross profit................................... 2,343 2,454 2,972 4,914 7,225 2,931 4,226
Operating expenses:
Selling, general and administrative.......... 1,578 1,612 2,198 2,997 3,727 1,568 4,678
Research and development..................... 552 580 582 646 1,145 576 1,007
------ ------ ------ ------- ------- ------ ------
2,130 2,192 2,780 3,643 4,872 2,144 5,685
------ ------ ------ ------- ------- ------ ------
Income (loss) from operations.................. 213 262 192 1,271 2,353 787 (1,459)
Other income (expense):
Interest income.............................. 23 7 8 44 50 12 14
Interest expense............................. (172) (145) (128) (134) (159) (66) (163)
------ ------ ------ ------- ------- ------ ------
(149) (138) (120) (90) (109) (54) (149)
------ ------ ------ ------- ------- ------ ------
Income (loss) before income taxes.............. 64 124 72 1,181 2,244 733 (1,608)
Income tax provision (benefit)................. 26 50 37 506 900 262 (688)
------ ------ ------ ------- ------- ------ ------
Net income (loss).............................. $ 38 $ 74 $ 35 $ 675 $ 1,344 $ 471 $ (920)
====== ====== ====== ======== ======== ====== ======
Net income (loss) per share.................... $ -- $ .01 $ -- $ .08 $ .15 $ .05 $ (.11)
====== ====== ====== ======== ======== ====== ======
Weighted average shares outstanding............ 8,563 8,419 8,369 8,526 8,885 8,750 8,110
</TABLE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------
FISCAL YEAR END FIRST HALF END
1991 1992 1993 1994 1995 1995 1996
------ ------ ------ ------ ------- ------ -------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA
Cash, cash equivalents and marketable securities...... $ 12 $ 29 $ 37 $ 262 $ 54 $ 348 $ 5,653
Working capital....................................... 150 100 (68) 400 210 742 1,278
Total assets.......................................... 3,330 3,852 4,412 5,229 10,222 6,638 19,424
Total debt............................................ 1,707 1,970 1,835 973 3,264 1,542 6,799
Shareholders' equity.................................. 738 755 793 1,467 2,407 1,935 5,089
</TABLE>
19
<PAGE> 21
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Management's Discussion and Analysis of Financial Condition and Results of
Operations and other parts of this Prospectus contain forward-looking statements
which involve risks and uncertainties. The Company's actual results could differ
materially from the results discussed in forward-looking statements. Factors
that could cause or contribute to such differences include, but are not limited
to, those discussed in "Risk Factors."
OVERVIEW
Trusted Information Systems, Inc., founded in 1983, provides comprehensive
security solutions for protection of computer networks, including global
Internet-based systems, internal networks and individual workstations and
laptops and is a leading provider of firewall products. The Company currently
has two operating divisions: the Commercial Division and the Advanced Research
and Engineering ("AR&E") Division.
The Commercial Division
The Commercial Division derives revenues from the Company's Gauntlet family of
firewall products and from its commercial consulting services. The Commercial
Division accounted for 5%, 14%, 32% and 44% of the Company's total revenues in
1993, 1994, 1995 and the first half of 1996, respectively. The Company expects
that the Commercial Division will account for an increased percentage of total
revenues over the remainder of the current year and in future years.
Prior to 1996, the Company distributed its only revenue producing product, the
Gauntlet Internet Firewall which was introduced in 1994, exclusively through
resellers and a sales administration staff. The Company presently has more than
80 persons to develop, promote, sell and deliver its network security products
and services, including the Gauntlet family of firewall products. Prior to 1996,
the Company's Gauntlet Internet Firewall was licensed as software or as software
and hardware on one platform, frequently combined (or "bundled") with
installation for pricing purposes. Since April 15, 1996, installation for the
Gauntlet family of firewall products has been offered as a separate (or
"unbundled") optional service provided to customers.
During 1996 the Company has begun to incur and expects to continue to incur
substantial increases in its selling, general and administrative expenses as it
builds its marketing and sales efforts to support sales of the Gauntlet Internet
Firewall product and of its three products introduced in 1996: the Gauntlet
Intranet Firewall, the Gauntlet Net Extender and the Gauntlet PC Extender. In
addition, the Company expects to further expand its research and development
organization and make additional investments in its general and administrative
infrastructure. As a result, the Company expects operating margins to decrease
from historical levels. The amount and timing of these additional expenditures
are likely to result in fluctuations in operating margins. Any material
reduction in gross or operating margins could materially adversely affect the
Company's operating results.
The Company offers a full range of consulting in information security planning
and product support. The Company's commercial consulting practice offers expert
technology research services, consultation on security issues associated with
products and services, corporate information security policy development,
architectural and diagnostic security analysis services, firewall configuration
and maintenance support, and training for corporate network and security
administration personnel. These services are carried out by a staff of 12
persons who average more than 15 years of information security experience in
both commercial and government organizations.
The Advanced Research and Engineering Division
The Advanced Research and Engineering Division consists primarily of research,
development and consulting in computer and related security systems, currently
including major contracts with three agencies of the U.S. government: the NSA,
Air Force Rome Laboratories ("RL") and Defense Advanced Research Projects Agency
("DARPA"), formerly ARPA. Revenues from the AR&E Division increased consistently
through 1995, but decreased in the first half of 1996. The aggregate award value
of the Company's nine major active government contracts is approximately
$36,135,000. In October 1993, the Company began providing services under the
largest
20
<PAGE> 22
of these current contracts, with the NSA, which is valued at $14,823,000 and is
expected to expire in early 1997. Of the five contracts with ARPA, which range
in value from $741,000 to $9,114,000 and have all commenced in the preceding
four years, one expires during 1997 and four expire during 1998. While the
Company expects to continue to obtain government contracts for its AR&E
Division, it does not anticipate that revenues from such contracts will attain
the levels realized in 1995.
Most of the Company's government contracts provide for compensation to the
Company in the form of reimbursement of costs plus a fee. Gross profit under
government contracts generally represents the fee plus recovered operating
expenses. Under these government contracts, the Company is entitled to recover
associated direct labor costs, overhead and selling, general and administrative
expenses, including allowable research and development expenses. Selling,
general and administrative expenses allowable under government contracts include
salaries and benefits, marketing, bid and proposal costs, management,
accounting, legal and contract administration and certain other administrative
expenses.
Under its government contracts, the Company bears the risk that recoverable
expenses billed by the Company are subject to review and audit by the Defense
Contract Audit Agency (the "DCAA"). The DCAA has audited the Company's cost
accounting system through 1990 without any significant disallowances and is
currently performing a similar audit of the Company's cost accounting system for
the years 1991 through 1994. Pursuant to their terms, these contracts are also
subject to termination at the convenience of the applicable governmental agency.
If the contract is terminated, the Company would typically be reimbursed for its
costs to the date of termination plus the cost of any orderly termination and
would be paid a portion of the fee.
RESULTS OF OPERATIONS
The following table presents for the periods indicated certain statement of
operations data as a percentage of the Company's revenues:
<TABLE>
<CAPTION>
FISCAL YEAR FIRST HALF
1993 1994 1995 1995 1996
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Revenues
Government contracts............................................. 94.9% 85.8% 68.1% 72.9% 55.6%
Commercial products.............................................. -- 7.7 23.6 17.0 38.8
Commercial consulting services................................... 5.1 6.5 8.3 10.1 5.6
----- ----- ----- ------ ------
Total revenues..................................................... 100.0 100.0 100.0 100.0 100.0
----- ----- ----- ------ ------
Cost of revenues................................................... 66.2 62.5 60.1 64.6 56.1
----- ----- ----- ------ ------
Gross profit....................................................... 33.8 37.5 39.9 35.4 43.9
----- ----- ----- ------ ------
Operating expenses
Selling, general and administrative.............................. 25.0 22.9 20.6 18.9 48.6
Research and development......................................... 6.6 4.9 6.3 7.0 10.5
----- ----- ----- ------ ------
Income (loss) from operations...................................... 2.2 9.7 13.0 9.5 (15.2)
Interest income (expense).......................................... (1.4) (0.7) (0.6) (0.6) (1.6)
Income (loss) before income taxes.................................. 0.8 9.0 12.4 8.9 (16.8)
Income tax provision (benefit)..................................... 0.4 3.9 5.0 3.2 (7.1)
----- ----- ----- ------ ------
Net income (loss).................................................. 0.4% 5.1% 7.4% 5.7% (9.7)%
===== ===== ===== ====== ======
</TABLE>
The following table presents for the periods indicated costs of revenues and
gross profits as a percentage of the related revenues:
<TABLE>
<CAPTION>
FISCAL YEAR FIRST HALF
1993 1994 1995 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Cost of Revenues
Government contracts............................................. 66.1% 65.5% 71.7% 74.8% 72.2%
Commercial products.............................................. -- 33.1 26.7 29.0 32.1
Commercial consulting services................................... 68.6 57.6 58.9 51.1 61.7
Gross profit
Government contracts............................................. 33.9 34.5 28.3 25.2 27.8
Commercial products.............................................. -- 66.9 73.3 71.0 67.9
Commercial consulting services................................... 31.4 42.4 41.1 48.9 38.3
</TABLE>
21
<PAGE> 23
First Half of Fiscal 1996 Compared to First Half of Fiscal 1995
Revenues. The Company's total revenues increased 16.0% to $9,617,695 in the
first half of 1996 from $8,288,512 in the first half of 1995. Commercial product
revenues increased 164.4% to $3,732,042 in the first half of 1996 from
$1,411,711 in the first half of 1995, because of an increase in shipments of the
Company's Gauntlet firewall products and sales of licenses of Gauntlet Internet
Firewalls directly to customers and through the Company's resellers. Commercial
consulting services revenues decreased 36.1% to $533,977 in the first half of
1996 from $835,004 in the first half of 1995, primarily because of the Company's
completion of a substantial number of commercial consulting contracts in the
first half of 1995. Government contract revenues decreased 11.4% to $5,351,676
in the first half of 1996 from $6,041,797 in the first half of 1995, primarily
because of the Company's reallocation of personnel to its commercial activities.
Gross Profit. Gross profit increased 44.2% to $4,225,785 in the first half of
1996 from $2,931,174 in the first half of 1995, due to the increase in the
Company's commercial product sales. The gross profit on commercial products
increased 152.9% to $2,534,165 in the first half of 1996 from $1,002,222 in the
first half of 1995 because of the increase in shipments of Gauntlet firewall
products. Gross profit from the Company's commercial consulting services
decreased 49.9% to $204,327 in the first half of 1996 from $407,905 in the first
half of 1995, and gross profit from the Company's government contracts decreased
2.2% to $1,487,293 in the first half of 1996 from $1,521,047 in the first half
of 1995, in each case primarily because of lower related revenues. As a
percentage of related revenues, gross profit on commercial products decreased to
67.9% in the first half of 1996 from 70.1% in the first half of 1995, because of
a higher percentage of revenues during the first half of 1996 which were from
sales of the Company's package systems, which sales are accompanied by lower
margins than software only firewall revenues. As a percentage of related
revenues, gross profit on commercial consulting services decreased to 38.3% in
the first half of 1996 from 48.9% in the first half of 1995, because of the
substantially higher margin on a number of contracts in the first half of 1995.
As a percentage of related revenues, gross profit on government contracts
increased to 27.8% in the first half of 1996 from 25.2% in the first half of
1995, because of greater revenues received in 1996 from contracts with
proportionately higher fees.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased 198.4% to $4,677,648 in the first half of 1996
from $1,567,578 in the first half of 1995, due primarily to the substantial
increase in personnel and related operating costs associated with the increase
in the Company's commercial products sales, as well as the Company's efforts
towards developing the infrastructure to support future commercial product
revenue growth.
Research and Development Expenses. The Company's research and development
expenses, which do not include such expenses directly reimbursed under
government contracts, increased 74.8% to $1,006,752 in the first half of 1996
from $576,078 in the first half of 1995. This increase primarily resulted from
the Company's efforts in developing the new members of the Gauntlet family of
firewall products announced in April 1996.
Interest Expense. Interest expense increased 147.3% to $162,910 in the first
half of 1996 from $65,873 in the first half of 1995, due primarily to the
increase in borrowings under the Company's revolving and other credit lines.
Fiscal 1995 Compared to Fiscal 1994
Revenues. The Company's total revenues increased 37.9% to $18,090,087 in 1995
from $13,117,152 in 1994. Commercial product revenues increased 325.6% to
$4,270,924 in 1995 from $1,003,498 in 1994, primarily because of increased sales
of licenses of Gauntlet Internet Firewalls directly to customers and through the
Company's resellers. Commercial consulting services revenues increased 74.3% to
$1,491,661 in 1995 from $855,638 in 1994 primarily because of the Company's
completion of a substantial number of commercial consulting contracts during
1995. Government contract revenues increased 9.5% to $12,327,502 in 1995 from
$11,258,016 in 1994.
Gross Profit. Gross profit increased 47.0% to $7,225,140 in 1995 from
$4,914,495 in 1994. This increase was primarily the result of higher gross
profit associated with the Gauntlet Internet Firewall, which increased 366.3% to
$3,128,642 in 1995 from $670,994 in 1994. The gross profit on commercial
products as a percentage of related revenues increased to 73.3% in 1995 from
66.9% in 1994 because of increased margins on the Gauntlet Internet
22
<PAGE> 24
Firewall overall and an increase in the percentage of sales through resellers at
higher margins than for direct sales. The gross profit on commercial consulting
services decreased slightly to 41.1% in fiscal 1995 from 42.4% in fiscal 1994.
Gross profit from the Company's government contracts decreased 10.3% to
$3,482,783 in 1995 from $3,881,084 in 1994, primarily because the Company
shifted resources to its commercial products. As a percentage of related
revenues, the gross profit for government contract revenues decreased to 28.3%
in 1995 to 34.5% in 1994 because certain of the Company's government contracts
provided for higher fees on the earlier installments under those contracts,
generating higher margins in 1994.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased 24.3% to $3,727,701 in 1995 from $2,997,806 in
1994, primarily due to the Company's overall increase in operations and to the
Company's efforts in late 1995 to initiate dedicated commercial marketing and
sales efforts.
Research and Development Expenses. Research and development expenses increased
77.2% to $1,144,737 in 1995 from $646,001 in 1994, primarily because the Company
increased its budget for funding research and development efforts and began to
commit substantial resources to developing its commercial products, including
activities in encryption and additional platform applications for the Gauntlet
Internet Firewall.
Interest Expense. Interest expense increased 18.3% to $158,778 in 1995 from
$134,236 in 1994, due primarily to an increase of approximately $2.2 million
during 1995 in the Company's borrowings under its revolving and construction
credit lines.
Fiscal 1994 Compared to Fiscal 1993
Revenues. The Company's total revenues increased 49.2% to $13,117,152 in 1994
from $8,791,478 in 1993. Commercial product revenues commenced with the
introduction of the Company's Gauntlet Internet Firewall in April 1994, and
totaled $1,003,498 in 1994. Commercial consulting services revenues increased
91.0% to $855,638 in 1994 from $448,054 in 1993, primarily because of the
Company's increased efforts in establishing commercial activities. Government
contract revenues increased 34.9% to $11,258,016 in 1994 from $8,343,424 in
1993, primarily as a result of a research and development contract with the NSA
which commenced during October 1993 and two contracts with ARPA, one of which
commenced in August 1993 and the other of which commenced in March 1994.
Gross Profit. Gross profit increased 65.4% to $4,914,495 in 1994 from
$2,971,742 in 1993. Gross profit from the Company's government contracts
increased 37.1% to $3,881,084 in 1994 from $2,830,926 in 1993, because of the
year-to-year increase in the revenues from government contracts. As a percentage
of related revenues, gross profit from government contracts was relatively
stable. The gross profit associated with the Gauntlet Internet Firewall product,
which was $670,994 in 1994, and the 157.4% increase in the gross profit on
commercial consulting services to $362,417 in 1994 from $140,816 in 1993, also
contributed to the increase in overall gross profit.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased 36.4% to $2,997,806 in 1994 from $2,198,011 in
1993, due primarily to the Company's overall growth in operations and revenues.
Research and Development Expenses. Research and development expenses increased
11.0% to $646,001 in 1994 from $582,075 in 1993, as a result of the Company's
increased funding of its research and development efforts.
Interest Expense. Interest expense increased 5.1% to $134,236 in 1994 from
$127,711 in 1993, due primarily to the Company's increased borrowings during
1994.
QUARTERLY RESULTS OF OPERATIONS
The following tables set forth certain unaudited consolidated statement of
operations data for each of the four quarters in 1995 and the first half of
1996, as well as the percentage of the Company's revenues represented by each
item. The unaudited consolidated financial statements have been prepared on the
same basis as the audited consolidated financial statements contained herein and
include all adjustments (consisting only of normal recurring adjustments) that
the Company considers necessary for a fair presentation of such information when
read in conjunction with the Company's Consolidated Financial Statements and
Notes thereto appearing elsewhere in this
23
<PAGE> 25
Prospectus. The Company believes that quarter-to-quarter comparisons of its
financial results are not necessarily meaningful and should not be relied upon
as an indication of future performance. See "Risk Factors -- Transition to
Commercial Product Vendor" and "-- Potential Significant Fluctuations in
Quarterly Operating Results and Lengthy Sales Cycle."
<TABLE>
<CAPTION>
QUARTER ENDED
--------------------------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 29, DECEMBER 29, MARCH 29, JUNE 28,
Dollars in thousands 1995 1995 1995 1995 1996 1996
--------- -------- ------------- ------------ --------- --------
<S> <C> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT
OF OPERATIONS DATA:
Revenues:
Government contracts............. $ 3,041 $3,001 $ 3,425 $2,860 $ 2,432 $2,920
Commercial products.............. 424 988 1,219 1,640 1,497 2,235
Commercial consulting services... 481 354 284 373 247 287
-------- ------- -------- ------- -------- -------
3,946 4,343 4,928 4,873 4,176 5,442
Cost of revenues:
Government contracts............. 2,119 2,402 2,506 1,818 1,774 2,090
Commercial products.............. 187 223 277 455 472 726
Commercial consulting services... 178 249 202 249 166 164
-------- ------- -------- ------- -------- -------
2,484 2,874 2,985 2,522 2,412 2,980
-------- ------- -------- ------- -------- -------
Gross profit....................... 1,462 1,469 1,943 2,351 1,764 2,462
Operating expenses:
Selling, general and
administrative................. 988 580 836 1,323 2,044 2,634
Research and development......... 295 281 244 325 375 632
-------- ------- -------- ------- -------- -------
-- -- --
1,283 861 1,080 1,648 2,419 3,266
-------- ------- -------- ------- -------- -------
Income (loss) from operations...... 179 608 863 703 (655) (804)
Other income (expense):
Interest income.................. 8 4 13 25 6 8
Interest expense................. (23) (43) (33) (60) (89) (74)
-------- ------- -------- ------- -------- -------
(15) (39) (20) (35) (83) (66)
-------- ------- -------- ------- -------- -------
Income (loss) before income
taxes............................ 164 569 843 668 (738) (870)
Income tax provision (benefit)..... 66 196 355 283 (315) (373)
-------- ------- -------- ------- -------- -------
Net income (loss).................. $ 98 $ 373 $ 488 $ 385 $ (423) $ (497)
======== ======= ======== ======= ======== =======
SELECTED PRODUCT LINE INFORMATION:
Gross profit by product line:
Government contracts............. $ 922 $ 599 $ 919 $1,043 $ 658 $ 830
Commercial products.............. 237 765 942 1,184 1,025 1,509
Commercial consulting services... 303 105 82 124 81 123
-------- ------- -------- ------- -------- -------
Total..................... $ 1,462 $1,469 $ 1,943 $2,351 $ 1,764 $2,462
======== ======= ======== ======= ======== =======
</TABLE>
24
<PAGE> 26
<TABLE>
<CAPTION>
QUARTER ENDED
--------------------------------------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 29, DECEMBER 29, MARCH 29, JUNE 28,
1995 1995 1995 1995 1996 1996
---------- ---------- ------------- ------------ ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF OPERATIONS
AS A PERCENTAGE OF REVENUES:
Revenues:
Government contracts..................... 77.1% 69.1% 69.5% 58.7% 58.2% 53.7%
Commercial products...................... 10.7 22.7 24.7 33.7 35.9 41.1
Commercial consulting services........... 12.2 8.2 5.8 7.6 5.9 5.2
---------- ---------- ---------- ----------- ---------- ----------
100.0 100.0 100.0 100.0 100.0 100.0
Cost of revenues:
Government contracts..................... 53.7 55.4 50.9 37.3 42.5 38.5
Commercial products...................... 4.7 5.1 5.6 9.4 11.3 13.3
Commercial consulting services........... 4.5 5.7 4.1 5.1 4.0 3.0
---------- ---------- ---------- ----------- ---------- ----------
62.9 66.2 60.6 51.8 57.8 54.8
---------- ---------- ---------- ----------- ---------- ----------
Gross profit............................... 37.1 33.8 39.4 48.2 42.2 45.2
---------- ---------- ---------- ----------- ---------- ----------
Operating expenses:
Selling, general and administrative...... 25.0 13.3 17.0 27.1 48.9 48.4
Research and development................. 7.6 6.5 4.9 6.7 9.0 11.6
---------- ---------- ---------- ----------- ---------- ----------
32.6 19.8 21.9 33.8 57.9 60.0
---------- ---------- ---------- ----------- ---------- ----------
Income (loss) from operations.............. 4.5 14.0 17.5 14.4 (15.7) (14.8)
Other income (expense):
Interest income.......................... .2 .1 .3 .5 .1 .1
Interest expense......................... (.6) (1.0) (.7) (1.2) (2.1) (1.3)
---------- ---------- ---------- ----------- ---------- ----------
(.4) (.9) (.4) (.7) (2.0) (1.2)
---------- ---------- ---------- ----------- ---------- ----------
Income (loss) before income taxes.......... 4.1 13.1 17.1 13.7 (17.7) (16.0)
Income tax provision (benefit)............. 1.6 4.5 7.2 5.8 (7.6) (6.9)
---------- ---------- ---------- ----------- ---------- ----------
Net income (loss).......................... 2.5% 8.6% 9.9% 7.9% (10.1)% (9.1)%
========== ========== ========== =========== ========== ==========
SELECTED INFORMATION AS A
PERCENTAGE OF RELATED REVENUES:
Gross profit by product line:
Government contracts..................... 30.3% 20.0% 26.8% 36.5% 27.1% 28.4%
Commercial products...................... 55.9 77.4 77.3 72.2 68.5 67.5
Commercial consulting services........... 63.0 29.7 28.9 33.3 32.8 42.9
---------- ---------- ---------- ----------- ---------- ----------
37.1% 33.8% 39.4% 48.2% 42.2% 45.2%
---------- ---------- ---------- ----------- ---------- ----------
</TABLE>
The Company's future revenues and operating results are uncertain and may
fluctuate from quarter to quarter and from year to year due to a combination of
factors, including the demand for the Company's products, the volume and timing
of orders and the ability to fulfill orders, changes in product pricing, changes
in the percentage of products sold through the Company's direct sales force, the
introduction of new products and product enhancements by the Company, market
acceptance of new products introduced by the Company, the Company's ability to
attract and retain key technical, sales and managerial employees, the mix of
distribution channels through which product is sold, the mix of products sold,
the budgeting cycles of customers, changes in the proportion of revenues
attributable to licenses and consulting fees, competitive conditions in the
industry, the growth in the acceptance of, and activity on, the Internet and
World Wide Web, the growth of Intranets and general economic factors.
The Company operates with little backlog for commercial products and therefore
the timing and volume of orders within a given period and the ability to fulfill
such orders determines the amount of revenues within a given period. Certain of
the Company's sales are derived through indirect channels, which makes revenues
from such sales difficult to predict. Furthermore, the Company's expense levels
are based, in part, on expectations as to future revenues. If revenue levels are
below expectations, operating results are likely to be adversely affected. Net
income may be disproportionately affected by a reduction in revenues because of
the relatively small amount of the Company's expenses which vary with its
revenues. As a result, the Company believes that period-to-period comparisons of
its results of operations are not necessarily meaningful and should not be
relied upon as indications of future performance. Due to all of the foregoing
factors, it is likely that in some future quarter the Company's operating
results may be below the expectations of public market analysts and investors.
In such event, the price of the Company's Common Stock would likely be
materially adversely affected.
25
<PAGE> 27
LIQUIDITY AND CAPITAL RESOURCES
Since its inception, the Company has financed its operations and the purchase of
property and equipment through the issuance of common stock, borrowings under
short-term lines of credit, secured notes payable and stockholder loans and the
generation of cash from operations. Cash and cash equivalents were $53,859 at
December 29, 1995 and $177,686 at June 28, 1996. The Company provided cash from
operations of $332,505, $1,279,505 and $1,237, respectively, for the fiscal
years 1993, 1994 and 1995, but used cash in operations of $146,183 and
$1,156,652, respectively, for the six months ended June 30, 1995 and June 28,
1996. Net cash provided by or used in operations for the fiscal years 1993, 1994
and 1995 and for the six months ended June 30, 1995 consisted primarily of net
income, plus growth in the Company's accounts payable, accrued expenses and
deferred revenues, offset by growth in the Company's accounts receivable. For
the six months ended June 28, 1996, the Company used cash to fund its net loss
of $920,217, which was the primary component of the net cash used in operating
activities for the period. The decline in cash provided by operations in 1995 as
compared to previous years and in the six months ended June 30, 1995 was
primarily the result of funds consumed as the Company began to expand its
commercial activities and introduce new products.
During 1994, the Company used cash in investing activities of $192,165 to
purchase property and equipment and used cash in financing activities of
$854,889 to repay borrowings, primarily through the generation of cash from
operations. During 1995 and the first half of 1996, the Company used cash in
investing activities of $2,095,829 and $2,555,335, respectively, as the Company
substantially completed construction of its facilities in Glenwood, Maryland,
primarily to purchase $4,640,284 of property and equipment. During 1995 and the
first half of 1996, the Company's financing activities provided $1,885,931 and
$3,840,199, respectively, primarily as a result of (i) net short-term borrowings
of $1,523,000 and $2,156,500, respectively, (ii) net issuance of notes payable
of $767,218 and $1,378,381, respectively, and (iii) a net cost of $404,287 in
1995 relating to the repurchase of common stock and the issuance of common stock
upon exercise of stock options and an increase in the first half of 1996 of
$305,318 for the issuance of common stock upon exercise of stock options. In
1989, the Company established a mortgage on its Glenwood facility, which at
December 29, 1995 and June 28, 1996, was outstanding in the amounts of $902,656
and $860,735, respectively.
At December 30, 1994 and December 29, 1995, the Company had various short-term
line of credit arrangements with Mercantile Bank aggregating $1,000,000 and
$2,000,000, respectively, of which $1,000,000 and $477,000, respectively, were
available for further borrowing. During the first five months of 1996, the
Company entered into an agreement with Mercantile Bank to increase certain of
its lines of credit to $3,250,000 and negotiated a separate $2,000,000 credit
line for its product development needs, including the development of the three
Gauntlet firewall products introduced in 1996. At June 28, 1996, approximately
$1,300,000 was available for borrowing under these facilities under the limits
imposed at that time. Subsequent to June 28, 1996, these lines of credit were
increased to $4,000,000 and $3,000,000, respectively. Additionally, on August
27, 1996, the Company entered into a $2,000,000 credit facility with Mercantile
Bank, of which no amounts are outstanding. The credit facility includes a
$100,000 commitment fee, and any borrowings thereunder become due upon
consummation of the Offering. As of June 28, 1996, the Company had no material
commitments for capital expenditures.
In 1995, the Company negotiated a construction loan in the amount of $1.8
million to provide for the expansion of its facilities at its Glenwood, Maryland
location. At the end of May 1996, the Company had completed its expansion and
substantially drawn down the total amount of its construction loan. The
Company's bank borrowings are secured by substantially all of the Company's
tangible assets.
The Company intends from time to time to evaluate potential acquisitions of
businesses, products and technologies that could complement or expand the
Company's business. At the current time, the Company has no plans, agreements or
commitments for any such acquisitions and is not engaged in any negotiations
with respect thereto.
The Company has not engaged in any hedging activities to date. See Notes to
Consolidated Financial Statements.
While the Company may require additional financing to fund development of new
products and expansion of its domestic and international operations, it believes
that the net proceeds from the Offering, together with existing cash and cash
equivalents, cash generated from operations and cash available through its
credit and note payable arrangements, will be sufficient to finance its product
development and operating needs through December 1997.
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BUSINESS
In addition to the historical information contained herein, this Prospectus
contains forward-looking statements which involve risks and uncertainties. The
Company's actual results could differ materially from those discussed herein.
Factors that could cause or contribute to such differences include, but are not
limited to, those discussed in the sections entitled "Risk Factors" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," as well as those discussed in this section and elsewhere in this
Prospectus.
GENERAL
Trusted Information Systems, Inc. provides comprehensive security solutions for
protection of computer networks, including global Internet-based systems,
internal networks and individual workstations and laptops and is a leading
provider of firewall products. TIS, which was founded in 1983 to engage in
computer security consulting, draws upon the expertise of a senior management
team with an average of more than 20 years of experience in computer security
and networking issues in industry and government. The Company emphasizes the
robustness of its security solutions, its long experience with computer security
and cryptography issues and its ability to provide comprehensive solutions to
customers. The Company also emphasizes its strong reputation with corporate and
government computer security professionals in the United States and abroad as a
pioneer in the field of computer network security. The Company's customers
include the following or subsidiaries thereof: Chrysler Corporation, Microsoft
Corporation, NationsBank Corporation, Royal Dutch Petroleum Co. and Swiss Bank
Corporation.
The Company develops, markets, licenses and supports the Gauntlet family of
firewall products. These products allow customers to create "trusted" networks
that are protected from access, theft and damage by unauthorized users from
"untrusted" networks such as the Internet and also enable the creation of
virtual private networks ("VPNs") through the encrypted transmission of
information across untrusted networks. The Company's Gauntlet Internet Firewall,
introduced in 1994, was derived from the TIS Internet Firewall Toolkit which has
been available on the Internet since 1993 and has been downloaded more than
34,000 times to more than 15,000 discrete locations worldwide. To date, more
than 1,700 Gauntlet Internet Firewalls have been licensed to customers. In
January 1996, the Company initiated a telemarketing program to upgrade TIS
Internet Firewall Toolkit users to the Gauntlet family of firewall products. To
build, maintain and enhance customer relationships, TIS also offers a full range
of consulting in information security policies and planning to its customers.
The Company further provides research and development and consulting to
government agencies, including the NSA and DARPA, in areas such as next
generation firewalls, distributed trusted operating systems, Internet domain
name services, international cryptography and advanced cryptographic key
handling and recovery techniques.
Prior to founding the Company in 1983, Stephen T. Walker, Chairman and Chief
Executive Officer, spent over 20 years working on computer security issues for
the U.S. government at the NSA and ARPA.
INDUSTRY BACKGROUND
The Internet
The Internet, derived from ARPA research in the 1970s, is a global web of
inter-connected computer networks which enables commercial organizations,
educational institutions, government agencies and individuals to freely
communicate, access and share information and conduct business remotely. The
networks that constitute the Internet are connected in a variety of ways,
including by the public switched telephone network and by high speed, dedicated
leased lines.
While there has been significant media interest in the consumer potential of the
Internet, business and professional organizations also account for a significant
percentage of Internet usage. The recent growth in the Internet has been driven
primarily by the increasing popularity of two applications: the World Wide Web
and e-mail. The emergence of the World Wide Web allows commercial organizations
a new medium in which to publish multi-media documents and other information for
public access and to advertise or provide products and services to users. Many
such commercial enterprises have established a "home page" to enhance these new
market opportunities. Customer service, electronic commerce, advertising and
market data generation are all being conducted across the World Wide Web. The
growth of e-mail usage on the Internet is being driven by ease-of-use and
standardization. Today,
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there are a number of commercially available e-mail programs that an
organization or individual may use to facilitate Internet communications.
The Company believes that full commercial utilization of the Internet has been
hampered by lack of security and the vulnerability of the Internet and private
networks directly connected to the Internet. The very openness of the Internet
means that transmitted information and data stored in connected hosts are
exposed to other users who are able, in the absence of effective security
measures, to gain access to, manipulate and divert the data. This fundamental
weakness mandates that organizations and individuals weigh security concerns
against the perceived commercial opportunities presented by millions of Internet
users.
Private Networks and Intranets
As network technology has advanced, enterprise computing has evolved from
mainframe computers supporting a number of terminals toward networks of
inter-connected personal computers. Organizations have developed local-area
networks ("LANs") to share data and applications within work groups.
Increasingly, businesses are using the Internet's non-proprietary TCP/IP
protocol for internal network communications which facilitates corporate
communications using Internet tools and applications. Internal networks that
employ TCP/IP as a network protocol are known as "Intranets."
Organizations are increasingly dependent on electronic communications among
geographically dispersed internal operations, customers, suppliers and other
partners. Many organizations have connected together LANs, including
geographically dispersed networks, into wide-area networks ("WANs"), and further
connect multiple LANs and WANs, including remote networks and mobile PCs, over
dedicated leased lines or other costly telecommunication links. Private networks
can support remote access from other private networks to provide customer
support bulletin board services, electronic data interchange ("EDI") and
database sharing. Organizations can use the Internet as a low-cost, if less
secure, communications "backbone" for a WAN, thereby extending internal
information systems and enterprise applications to geographically dispersed
facilities, remote offices and mobile employees.
The increasing number of authorized users having direct access to expanding
networks and the data contained on such networks has increased the need to
provide protection for sensitive data on such networks from unauthorized users
with general access to a system. Network administrators face the challenge of
creating accessible, shared LANs and Intranets while protecting the integrity
and confidentiality of the information being shared.
Network Security
As a result of the increased use of the Internet and Intranets, unauthorized
access to organization networks and corporate data is an increasingly costly
business problem. Sensitive data that require protection from unauthorized use
include financial results, medical records, personnel files, research and
development projects, marketing plans and other business information.
Unauthorized access to this information may go undetected by the computer user
or network administrator, especially if the information is read but not altered
by the unauthorized party. Organizations are vulnerable not only to unauthorized
access to information resources by outsiders, but also to abuse by employees
within their own organizations.
TIS believes the requirements for information security in these complex
communications systems can be described in terms of three major requirements:
Confidentiality: controlling who gets to read information
Integrity: assuring that information is changed only in a specified and
authorized manner, and
Availability: assuring that authorized users have continued access to
information and resources.
The relative importance of these requirements differs depending upon the
application. For example, funds transfer systems require strong integrity
controls, while automotive design or petroleum exploration systems may focus
chiefly on confidentiality.
These information security requirements typically are stated in a security
policy -- a concise statement of information sensitivities, protection
responsibilities and organizational commitment. The Company believes that a
strong
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security policy must state specific security needs in terms which balance the
system's risks and vulnerabilities with the need to operate. An organization
must consider the following in establishing a system security policy:
the value of the asset being protected;
the vulnerabilities of the system -- what damage can insiders/outsiders do
to the system;
the threats to the system -- can adversaries exploit these vulnerabilities;
and
the risks to the system -- what are the costs of recovery if an adversary
exploits a system's vulnerability.
These policies then need to be implemented by the organization at a number of
levels, for example, (a) between sections or particular groups within a site,
(b) for each site, (c) throughout the organization with its many sites and (d)
between the organization, its customers and suppliers. Each level of
communications requires the implementation of information security technology to
carry out these security policies.
Firewalls
Without any firewall protection, a computer on an untrusted network can easily
exploit any weaknesses in the software on a computer on a trusted network.
Figure 1 shows two computers on networks communicating over the Internet without
any firewall protection.
(Figure 1: Typical Host-to-Host Computer Communications)
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Firewalls have developed as key elements in implementing different security
policies at the different levels within networks. The growth in Internet users
and Intranets, as well as the growing concerns about network security, are
fueling increasing demand for firewalls. A report released in February 1996 by
International Data Corporation projects that firewall product licenses will grow
from 10,000 units in 1995 to 1,500,000 units in 2000, while revenue from such
licenses will grow from approximately $160 million to approximately $980 million
over the same period.
Firewalls provide strong points of defense and controlled, audited access to
services at all levels of communications -- both from within and without an
organization's private network. A firewall is a computer system that is
interposed between two networks, generally an organization's internal or private
computer network and a more public or untrusted network. The private, or
trusted, network can be as large as the internal network of a Fortune 500
company, or as small as a network serving a single department at a single site.
The public or untrusted network can be as specific as the enterprise's network
or as general and open as the Internet. One "firewalled" private network can
exist inside another. A firewall can restrict the access to a trusted network by
user, by application and by location. A firewall can also require users to
provide authentication based on cryptography that is much less vulnerable than
the simple passwords that have been historically used in computer systems. Thus,
any organization linking a trusted network to an untrusted network, either
internal or external, will generally and increasingly require a firewall to
enforce network security and protect the trusted network.
The two major types of firewalls are filtering gateways and application
gateways. Both gateway types work to enforce a network security policy without
adversely limiting flexibility or affecting performance. However, each design
strikes a different balance between these three goals: filtering gateways
sacrifice aspects of security in order to be more flexible and generally provide
for performance, and application gateways provide higher security at the expense
of some flexibility and performance.
Filtering Gateway Firewalls. Filtering gateway firewalls are either "static" or
"dynamic" packet filters. Dynamic filtering is sometimes referred to as
"Stateful Multi-Layer Inspection." All filtering gateways make routing decisions
based on information contained in each network "packet." If a packet's content
meets the security policy criteria, it is forwarded to the destination.
Otherwise, it is blocked at the gateway. Static filters, which are typically
implemented in routers, examine each packet as it arrives at the gateway and
make a routing decision based on the packet's header (information such as source
and destination address, protocols, and port numbers) and sometimes on portions
of the packet's contents. Dynamic filters can make forwarding decisions based on
the application protocols contained within the packets, by maintaining the state
of the application program. Filtering gateways are limited in the amount of
content filtering that may be done for a given session.
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Since filtering gateways operate by routing traffic, they provide direct
connectivity between untrusted and trusted networks. This direct connection
places a large burden for the network's security policy on internal systems
because they are directly exposed for all services the firewall lets through. A
typical example is electronic mail: if the filtering gateway is configured to
permit inbound e-mail, the security of the e-mail server becomes critical -- if
it is running an insecure mail server such as the UNIX "sendmail" program,
history has shown that the system will be vulnerable to penetration, and could
then be used as a starting place to attack the rest of the computers on the
network intended to be protected by the firewall.
Figure 2 shows a filtering gateway firewall imposed between an untrusted network
and a trusted network. The filtering gateway screens incoming and outgoing
traffic and decides whether to allow a communication. If the communication is
allowed, software on the trusted system must itself process all traffic
generated by the untrusted system, leading to a greater potential for
exploitation. As in Figure 1, the computer on the untrusted network can exploit
any weakness in the software on the computer on the trusted network. Even
dynamic filtering gateways that inspect the state of a connection allow direct
connections between computers on the untrusted and trusted networks and offer
limited application level filtering.
(Figure 2: Filtering Gateway Firewall)
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Application Gateway Firewalls. Application gateways, also known as proxy
gateways, control network connections rather than individual packets. At the
point where a connection is requested, the proxy for the given protocol will
check the firewall's security policy and decide whether the connection is
permitted. If it is, the proxy will then mediate all future traffic for that
connection and verify that it conforms to the given protocol and security
policy. Application gateways permit or deny connections and mediate traffic
based on security policy considerations such as user name, addresses, protocols,
and protocol-specific functions (e.g., download data but not upload, e-mail
scanning, Java filtering).
Figure 3 shows an application gateway firewall imposed between an untrusted
network and a trusted network. The application gateway interrupts the
communication between computers on the two networks. Depending upon the
particular application, various checks are made at the application proxy level.
If the connection is allowed, a second link between the firewall and the trusted
network is established and all data is passed through the application proxy.
This design prevents a direct connection between computers on the two networks,
thereby significantly reducing the ability to directly exploit a weakness in the
software on the computer on the trusted network and increasing the ability to
perform filtering specific to the application.
(Figure 3: Application Gateway Firewall)
TIS's Gauntlet firewall products are application gateway firewalls.
Virtual Private Networks (VPNs)
Once firewalls are in place at multiple sites on a WAN, the ability to establish
encrypted communications links over WANs becomes practical. These VPNs provide
complete protection among networks, whether among a corporation's internal
information systems at different locations or among those locations and widely
dispersed customers and suppliers. VPNs permit the safe commercial use of the
Internet, thereby providing significant cost savings by reducing reliance on
more costly dedicated telecommunications alternatives. A report prepared by an
industry consultant indicates that for the set of applications covered, such
cost savings could provide a full payback of the VPN investment within the first
year of its operation.
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Export controls imposed by most governments are a significant impediment to the
establishment of Global VPNs ("GVPNs"). Recent initiatives by the U.S. and other
governments to allow export of cryptography when combined with some form of key
recovery system offer an excellent opportunity to realize the full potential of
GVPNs on an international basis. The Company believes that once appropriate
government policies are in place, the combination of application gateway
firewalls and key recovery enabled encryption (such as the Company's
RecoverKey/KRT technology) will radically alter the landscape of today's private
networks, providing reliable, protected communications through public networks
such as the Internet. See "-- Commercial Products and Services -- Cryptographic
Products/RecoverKey/Key Recovery Technology (KRT) System."
TIS STRATEGY
The Company's objective is to be the leading provider of comprehensive security
products and services for corporate and government information systems.
Essential elements of the Company's strategy include:
Provide Comprehensive Security Solutions. The Company's approach is to
develop, market and support a broad range of network security software
products for the protection of computer networks, including global
Internet-based systems, internal networks and individual workstations and
laptops. The Company believes that its integrated approach to network
security products and services provides a more comprehensive security
solution than the single product offerings marketed by many of its
competitors. The Gauntlet family of firewall products currently includes
the Gauntlet Internet Firewall, the Gauntlet Intranet Firewall, the
Gauntlet Net Extender and the Gauntlet PC Extender. Additionally, the
Company offers a full range of expert consulting services in information
security policies and planning to commercial enterprises and governments.
With the support of government-funded and independent research and
development, the Company is developing extensions and enhancements to
current firewall technology and applications of cryptography to maintain
its position as a leader in providing comprehensive security solutions. The
Company is currently developing enhancements to the Gauntlet family of
firewall products, including an enhanced graphical user interface ("GUI"),
and expects that its Gauntlet versions supporting Sun Microsystems' Solaris
Version 2 and Microsoft's Windows NT Server Version 4.0 will be
commercially available by the end of 1996. The Company intends to extend
its leading positions in network firewalls and encryption technology,
including KRT, to enable companies to establish global virtual private
networks.
Increase Market Penetration Through Multiple Channels. The Company's
marketing strategy for TIS network security products and services focuses
on utilizing both a direct sales force and reseller channels to target
large corporations and organizations. The Company intends to expand its
current direct sales force to both increase initial market penetration and
to pursue follow-on sales for TIS network security products and services.
The Company intends to continue to focus its direct sales efforts on
Fortune 500 companies, particularly those which have a strong need for
secure communications within workgroups and among geographically dispersed
networks through the Internet. For example, the Company has targeted
companies in the telecommunications, finance and banking, petrochemicals
and pharmaceuticals industries as those most likely to require network
security solutions. The Company intends to emphasize the use by such
organizations of the Gauntlet family of firewall products and related
services together with cryptography, for enhanced security for sensitive
communications. The Company has established customer relationships with the
following or subsidiaries thereof: Chrysler Corporation, Microsoft
Corporation, NationsBank Corporation, Royal Dutch Petroleum Co. and Swiss
Bank Corporation.
The Company has established a significant global reseller channel
consisting of over 50 Internet service providers, value added resellers and
hardware vendors, system integrators and security product vendors. The
Company's resellers are primarily located in the United States, Europe and
the Pacific Rim. The Company intends to greatly expand these channels for
its network security products and for its cryptographic products,
particularly in Europe and the Pacific Rim.
A significant portion of the Company's Gauntlet firewall products customers
consist of organizations which have sought upgrades to and support for the
TIS Internet Firewall Toolkit available on the Internet. The Company has
established a program to identify and pursue entities which have installed
firewalls based on the TIS Internet Firewall Toolkit for follow-on sales of
Gauntlet firewall products and related services.
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Expand Consulting Services. The Company intends to focus on expanding its
provision of consulting services to large organizations with respect to the
establishment of information security policies and of trusted
communications systems, including GVPNs. The Company believes these
consulting services will assist companies in enhancing security while
reducing communication costs through the effective deployment of the
Company's products. In building its consulting services, the Company
intends to emphasize the reputation and experience of its senior management
and technical staff. The Company also intends to utilize the relationships
it establishes through its expanding consulting efforts to generate
additional customers for TIS network security products and services.
Leverage Government Research and Engineering. The Company believes its
extensive U.S. government-funded research activities can yield major short
and long-term product concepts as well as enhance current network security
product offerings. Government funding contributes to the Company's ability
to maintain a research and engineering staff of over 130 scientists and
engineers. With the Gauntlet family of firewall products, the Company has
demonstrated its ability to create and market commercial products based on
government-funded research results and believes that similar efforts will
enable it to implement new advanced products in the future.
TIS SOLUTION
TIS offers a comprehensive set of products and services for the protection of
computer networks, including global Internet-based systems, internal networks
and individual workstations and laptops. As part of this complete solution, TIS
provides consulting services to evaluate and design information security
policies and firewall and other network security products that address the major
requirements of confidentiality, integrity and availability.
The TIS Trusted System Design Principles, derived from decades of computer
security experience, include:
Simplicity in mechanisms and services provided.
Simplicity in software design, development and implementation.
A "Crystal Box" approach, in which source code is distributed to allow for
assurance reviews by the Company's customers, resellers and other experts.
Logging every event that can be logged; the customer can then customize a
complete and appropriate security audit trail.
Supporting all forms of user authentication methods and mechanisms.
Enforcing an organization's security policy, instead of imposing one of its
own.
Management believes that the integrity of the Company's security solutions, the
simplicity and brevity of its Gauntlet code, the transparency of its "Crystal
Box" approach and the experience and expertise of its management team and
consultants attract customers to purchase the Company's products and services.
In addition, the Company believes that the encryption technology of its firewall
products, which allows organizations to establish secure communication between
geographically dispersed sites through VPNs and GVPNs, further attracts
customers due to the potential cost savings which may be achieved by
communicating over the Internet rather than over more expensive, private lines.
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(Graphic: Example of the Gauntlet Internet and Intranet Firewall products
protecting a trusted network)
COMMERCIAL PRODUCTS AND SERVICES
Gauntlet Firewall Products
The following table sets forth certain information regarding certain of the
current TIS product offerings.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
DATE OF
ENVIRONMENT PRODUCT NAME DESCRIPTION INTRODUCTION
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Internet Internet Firewall A research-based collection of modules, available Q4 1993
Toolkit free on the Internet for use but not for resale,
from which one can build a firewall and serves as
the foundation for the Company's Gauntlet family
of firewall products.
Internet Gauntlet Internet Application gateway firewall that protects Q2 1994
Firewall internal networks from external intrusion.
Intranets Gauntlet Intranet Distributed firewall technology that protects Q2 1996
Firewall departmental Intranets from unauthorized access
by internal users.
Remote Sites Gauntlet Net Distributed firewall technology that provides Q2 1996
Extender secure communications over the Internet and WANs
to and from remote networks through the use of
encryption.
Mobile PC Users Gauntlet PC Provides secure communications over the Internet Q2 1996
Extender and other public networks to and from mobile PC
users.
</TABLE>
Internet Firewall Toolkit. The Company introduced its Internet Firewall Toolkit
on the Internet in 1993, free for use but not for resale. The TIS Internet
Firewall Toolkit, which has been downloaded more than 34,000 times to more than
15,000 discrete locations worldwide, is a collection of computer programs from
which a skilled programmer can build an application gateway firewall to secure
communications over public networks such as the Internet. To build a firewall
from the TIS Internet Firewall Toolkit, the toolkit programs must be compiled on
the programmer's hardware and operating systems and must configure the operating
system on which the firewall is housed to be a suitably secure base for the
firewall software. A firewall compiled from the TIS Internet Firewall Toolkit
provides basic protection for common Internet applications including e-mail and
the World Wide Web browsers and supports user authentication. Compared to the
Gauntlet family of firewall products, such a firewall will provide limited
management features and lacks firewall-to-firewall encryption that allows the
construction of a VPN. Additionally, a firewall built from the TIS Internet
Firewall Toolkit generally must be maintained and
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enhanced by the programmer who constructed it. The Company has initiated a
program to upgrade TIS Internet Firewall Toolkit users to the Gauntlet family of
firewall products.
Gauntlet Internet Firewall. The Gauntlet Internet Firewall is an application
gateway firewall which is the cornerstone of the Company's comprehensive
security solution. The Gauntlet Internet Firewall functions as a barrier between
the user's trusted network and untrusted networks such as the Internet and is
based on the TIS Internet Firewall Toolkit. The Gauntlet Internet Firewall
enables secure communications over public networks such as the Internet,
including firewall-to-firewall encryption that allows a firewall owner to
construct a VPN. In addition to standard encryption and VPN capabilities,
authentication and proxy services, the Gauntlet Internet Firewall includes a
secure GUI for management and includes audit and alert capabilities and tools.
The Company introduced a new GUI for the Gauntlet Internet Firewall in January
1996 and is currently developing additional enhancements for ease of use and
administration. The Gauntlet Internet Firewall software operates on a number of
popular versions of the UNIX operating system. The Company has developed and
packages as part of the Gauntlet Internet Firewall selective modifications to
the operating systems to increase the Gauntlet Internet Firewall's usability and
to harden the operating systems to make them more resistant to attack. Because
of these modifications, the Gauntlet Internet Firewall is "transparent" and
supports network services without requiring action by individual end users or
modifications to their client software. Also because of these modifications, the
Gauntlet Internet Firewall prevents "spoofing" attacks in which a computer on
the untrusted network pretends to be on the trusted network, and it detects
attempts from either network to probe for unprotected services or points of
access. To date, more than 1,700 Gauntlet Internet Firewall products have been
installed.
The Gauntlet Internet Firewall currently supports SunOS Versions 4.1.3 and
4.1.4, Hewlett-Packard's HP-UX Versions 10.0 and 10.01 and Berkeley Software
Design, Inc.'s BSD/OS Versions 1.1, 2.0 and 2.1. The Company expects that its
Gauntlet versions supporting Sun Microsystems' Solaris Version 2 and Microsoft's
Windows NT Server Version 4.0 will be commercially available by the end of 1996.
Gauntlet Intranet Firewall. The Gauntlet Intranet Firewall was designed for
improving the internal security of a LAN or Intranet. The Gauntlet Intranet
Firewall provides protection against unauthorized access to network resources by
internal users, and protects communications among individual PCs within and
across workgroups. The Gauntlet Intranet Firewall also currently supports Sun,
Hewlett-Packard and BSDI operating systems. The Company expects that its
Gauntlet Intranet Firewall product supporting Sun Microsystems' Solaris Version
2 and Windows NT Server Version 4.0 will be commercially available by the end of
1996.
Gauntlet Net Extender. Extending the capabilities of the Gauntlet firewall, the
Gauntlet Net Extender is a remote Gauntlet firewall that network administrators
can manage from another Gauntlet firewall. The Gauntlet Net Extender's target
customers are enterprises with multiple divisions and remote locations. Using
encryption, the Gauntlet Net Extender works in conjunction with a Gauntlet
Internet Firewall to provide remote site network security and remote management
and control from a centralized location. The Gauntlet Net Extender also
currently supports Sun, Hewlett-Packard and BSDI operating systems. The Company
expects that its Gauntlet Net Extender product supporting Sun Microsystems'
Solaris Version 2 and Windows NT Server Version 4.0 will be commercially
available by the end of 1996.
Gauntlet PC Extender. The Gauntlet PC Extender provides multiple levels of
security for remote users utilizing a PC running on Microsoft Windows 3.1 or
Microsoft Windows for Workgroups 3.11 to connect to an internal network or
communicate within an Intranet. The encryption provided by the Gauntlet PC
Extender protects passwords, provides user authentication to prevent
unauthorized access to internal network resources and provides data encryption
to protect the confidentiality and integrity of information transmitted over the
Internet or other public or private networks. The Company expects that its
Gauntlet PC Extender product for PCs supporting Microsoft Windows 95 will be
available by the end of 1996.
The specific uses and applications of the Company's network security products
vary significantly among market sectors and business organizations. Examples of
actual uses by customers of the Company's products include:
- A U.S. company that is a provider of software solutions for electronic
commerce has installed multiple Gauntlet Internet Firewalls at the
organization's sites in the United States and abroad to create a GVPN
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utilizing encryption. This enables personnel at the various domestic and
overseas sites to share proprietary software product development and business
information securely over the Internet.
- A multi-national banking institution has installed multiple Gauntlet
Internet Firewalls on corporate Intranets to enforce the bank's security
policies that require isolation of different organizations within the
bank located throughout the world. Each Gauntlet Internet Firewall is
configured to allow only selected applications to pass financial and
other important information onto the appropriate internal system. The
Company's "Crystal Box" approach and the ability to log all Internet
Firewall activities are essential to enforcement of bank security policy.
- A software industry leader uses a number of Gauntlet Internet Firewalls
in a parallel configuration which enables responsive Internet access for
internal and external users of its major World Wide Web site. The
Gauntlet Internet Firewalls enforce the company's security policies and
procedures and protect the company's internal systems and networks, which
process over 100,000 e-mail messages a day.
The Gauntlet Internet Firewall is offered by the Company at a U.S. list price of
approximately $11,500 for software only and approximately $15,000 for a
software/hardware bundle. The Company's U.S. list price for the Gauntlet Net
Extender is approximately $10,000, for the Gauntlet Intranet Firewall is
approximately $7,500 and for the Gauntlet PC Extender is approximately $100.
Volume discounts are generally available. The Company provides initial on-site
installation, testing and training and offers a variety of continuing
maintenance and support options to customers of the Gauntlet family of firewall
products.
The Company plans to extend its firewall products to include new proxies for new
services and to defend against new threats. Customer input will be an important
part of the Company's continued development of improvements in ease of use and
management functions. In addition, the Company is developing products which will
be compatible with Microsoft's Internet Security Framework. This framework
provides an open, interoperable and cross-platform set of technologies and
enables the effective interface of products developed and marketed by a variety
of software companies which will allow individuals to exchange information
securely, control access to their systems and conduct secure financial
transactions across public networks.
Cryptographic Products/RecoverKey/Key Recovery Technology (KRT) System
The Company's cryptographic products are currently under development and the
Company is in negotiations with a number of companies regarding licenses of the
RecoverKey/KRT toolkit and the Key Recovery Centers ("KRCs"). However, no
significant revenues from the sale of such products are anticipated prior to
1997.
RecoverKey/KRT Toolkit. The RecoverKey/KRT toolkit consists of software and a
license to the Company's RecoverKey/KRT technology to enable companies to
incorporate key recovery technology into their products either to enable their
cryptographic functions to satisfy U.S. (and possibly other) government
requirements for general export to foreign markets (RecoverKey-International,
formerly known as Commercial Key Escrow or CKE) or more generally to provide
emergency access to encrypted data in case an encryption key is lost or
unavailable for any reason (RecoverKey, formerly known as Commercial Key
Recovery or CKR). Using the RecoverKey/KRT toolkit, the vendor can encrypt any
user secret (e.g., a key used to encrypt a file) using the public key of a KRC
and storing it in a Key Recovery Field ("KRF"). This KRF permits future access
to that secret for any reason through the designated KRC.
Key Recovery Centers. KRCs are an essential part of the Company's
RecoverKey/KRT. A KRC is a system (hardware and software) with a set of public
and private keys for the recovery of encrypted data. A KRC receives and records
user registrations which include the access information required for future
recovery requests. Upon registration, the user's RecoverKey/KRT-enabled
application can create a Key Recovery Field which will be recognized by the KRC.
If a user needs to recover an encrypted file or message, the KRF is sent to the
KRC, the user's identity is authenticated and the KRC provides the key located
in the KRF required to decrypt the file or message.
Microsoft CAPI Compliant Cryptographic Service Provider (CSP). The Company is
developing a Microsoft Cryptographic Application Programming Interface (CAPI)
compliant CSP with a domestic and exportable version for which an application
for export has been filed with the U.S. government. Both versions will be based
on RSA's BSAFE version 3.0 toolkit technology. An exportable version will use
the Data Encryption Standard ("DES") algorithm (56 bits) at a 112 bit equivalent
key length (triple DES) in conjunction with RecoverKey-International (or
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CKE). The domestic version will use triple DES as its standard mode of
operation, but will also be able to interoperate with the exportable version.
Both versions will use the Company's RecoverKey/KRT technology and will have
optional, user selected, key recovery features.
The Company has been a leader in developing a key recovery solution to enable
the interests of security and law enforcement agencies to be protected while
permitting the export of products with strong cryptography. The U.S. government,
both in the context of executive branch decision-making and pending legislation
in the U.S. Congress, is actively considering a variety of decisions regarding
cryptography export policy. The Clinton administration policy, as outlined by
the Vice President on July 12, 1996 and October 1, 1996, links the relaxation of
export controls to systems that include the use of key recovery. However,
certain parties, including companies in the computer industry and members of the
U.S. Congress, and a recent report prepared for the National Research Council of
the National Academy of Sciences call for removing export controls on products
that use the industry standard DES algorithm. To the extent that the government
either decides to prohibit or otherwise restrict the export of such products
with key recovery or decides to permit the export of such products without key
recovery, those decisions could have an adverse impact on the development of a
market for the RecoverKey-International (or CKE) products the Company plans to
introduce in the future.
In January 1996, the U.S. government granted the Company an export license for a
particular transaction involving the Gauntlet Internet Firewall using the DES
algorithm. This is the first export license granted because the encryption is
combined with a key recovery system. In June 1996, the U.S. government granted
the Company several export licenses to sell the Gauntlet Internet Firewall in
order to provide Global Virtual Private Network services.
Commercial Consulting
TIS offers a full range of consulting in information security policies and
planning. TIS's Commercial Consulting Practice grew out of the Company's
original consulting practice founded by Stephen T. Walker. It is currently led
by members of senior management and carried out by TIS's staff of experts who
average more than 15 years of information security experience in both commercial
and government communities. TIS offers the following commercial consulting
services: technology research services; consultation on security issues
associated with products and services, corporate information security policy
development, architectural and diagnostic security analysis and firewall
configuration; and training for corporate network and security administration
personnel. TIS's consulting customer base includes a wide range of institutions
from financial, industrial, regulatory, entertainment, research, information
systems and telecommunications organizations.
Management believes that the Commercial Consulting Practice has and will
continue to play a key role in generating follow-on sales of the Company's
security products. Corporations with the most complete information security
needs, such as those in industries targeted by the Company, often look to
outside consultants to assist them in designing, maintaining and improving
network security systems and policies. The Company believes that its reputation
in the field of computer security along with its team of experienced consultants
attracts customers to engage TIS's services in solving their complex security
needs.
The Commercial Consulting Practice continuously evaluates emerging network
services and technologies, the security vulnerabilities inherent in new
offerings and evolving methods employed by hackers and professional system
penetrators to exploit system vulnerabilities. The findings from this effort not
only enable more effective consultation and the development of automated
analysis tools, but also feed into the ongoing network security product
development and enhancement activities of TIS.
ADVANCED RESEARCH AND ENGINEERING
The Company engages in research and development of computer and communications
security technology under contracts with departments and agencies of the U.S.
government. The Company provides security technology analysis and consulting
under contracts both directly and indirectly with the U.S. government and the
governments of other countries. Historically, the principal source of the
Company's revenues was from government contracts. In 1993, 1994 and 1995 and the
first half of 1996, approximately 95%, 86%, 68% and 56%, respectively, of the
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Company's total revenues were derived directly or indirectly from government
contracts. These revenues, along with the Company's reputation as a pioneer in
the field of computer and network security, have permitted the Company to
assemble a group of renowned scientists and engineers.
The government research and development efforts include Trusted Mach technology,
a high assurance operating system base that controls access to all system
resources and enforces security policies based upon labels associated with the
sensitivity of the resources and access privileges of the users. High-Assurance
Firewalls, World Wide Web servers and file servers built on the Trusted Mach
technology will provide strong protection for data that is to be shared, either
within an organization or externally, but which must also be protected from
unauthorized reading or writing. Another operating system security technology
derived from government-funded research enforces a broad spectrum of security
policies, including those tailored to the user's individual role in an
organization. This technology can greatly improve the security of existing
operating systems by partitioning their capabilities into various domains. The
Company has demonstrated significant improvements to UNIX systems security using
this technology.
Other government research and development efforts include the development of
prototype secure distributed systems, the incorporation of cryptographic
services into various applications and the enhancement and broader application
of access control techniques. Under government contracts, the Company has
incorporated cryptography into e-mail to provide the ability to digitally sign
e-mail in addition to protecting the contents from change or perusal. The
Company is developing techniques to improve the security of Internet
infrastructure, such as Domain Name Service and routing, by digitally signing
communications between cooperating elements. Security services are being
incorporated into distributed systems using access control techniques that work
with Common Object Request Broker Architecture (CORBA), an emerging
international standard.
Government-related consulting has focused primarily upon security assessment and
design assistance for security features and attributes of the systems and
applications of the U.S. Department of Defense. The Company's consulting has
helped to discover approaches that provide both the security and functionality
that is needed to support the defense mission. Many of the security issues and
architectures have commercial counterparts, and the Company has generally
reserved the rights to develop such related technologies for commercial uses.
The Company's backlog for direct and indirect U.S. government contracts as of
June 28, 1996 was approximately $14.4 million. The government-related backlog
represents firm orders or contracts for research, development and consulting
analysis with performance and delivery schedules that extend up to 30 months.
Funded backlog represents the portion of the backlog for which agencies,
departments or companies have actually obligated payment. As of June 28, 1996,
approximately $7.3 million of the government-related backlog is funded. The
Company's U.S. government contracts are subject to audit by the DCAA. The DCAA
has audited the Company's cost accounting system through 1990 without material
cost disallowances and is currently performing a similar audit of the Company's
cost accounting system for the years 1991 through 1994.
Most of the Company's government-related contracts require the Company to
perform specified services for which the Company is paid its costs incurred and
a negotiated fee. Two contracts for the development of the Trusted Mach
technology accounted for approximately 33% of the Company's total revenues
during 1995. The smaller contract ended in December 1995. The larger contract,
with the NSA, accounted for approximately 25% of the Company's total revenues
during 1995 and is currently scheduled to complete in early 1997. Security
technology research and development contracts with ARPA accounted for
approximately 17% of the Company's 1995 revenues. During 1995, 8% of the
Company's total revenues came from security technology research and development
contracts with the RL.
SALES AND MARKETING
The Company intends to pursue a focused marketing strategy to achieve greater
market penetration for TIS network security products and services by utilizing
complementary domestic and international distribution channels, including direct
sales, resellers and telesales. The Company believes these channels will provide
broad customer coverage while maintaining a highly cost-effective effort. The
Company has organized its direct sales, resellers and telesales teams, currently
consisting of over 30 employees, on a regional basis in order to approach the
market in a coordinated manner. The Company has initiated a strategy of directly
marketing to its current base of users who
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have downloaded the TIS Internet Firewall Toolkit and seeks to convert them into
users of Gauntlet products. In addition, the Company's Fortune 500 marketing
strategy with large organizations is to establish relationships through
consulting assistance in the architectural design, installation and operational
phases of their major security initiatives. The Company plans to attend the
popular Internet and network shows, advertise in trade journals and submit
articles that will deliver its message to decision makers and to the people who
make information security recommendations.
Direct Sales. The Company's direct sales force markets its products and
services to large corporations and organizations with complex information
security needs, such as telecommunications companies, finance and banking
institutions, petrochemical companies and pharmaceutical companies. The
Company's direct sales staff solicits these customers and provides strategy and
solutions as well as insights into security architecture alternatives while
gathering insight into customers' future requirements.
Resellers. The Company currently maintains a worldwide network of over 50
resellers which can be categorized into four areas based on business
segmentation and end user focus: Internet service providers, value added
resellers and hardware vendors, system integrators and security product vendors.
The Company views these reseller partners as an extension of its direct sales
force and supports these relationships with on-going training in security
planning, installation and maintenance as well as by providing such resellers
with updated information, software enhancements and advance notice of
announcements of future products through a TIS World Wide Web site designed
specifically for that purpose. The following are some of the Company's resellers
in each of the designated categories:
- Internet Service Providers: In the United States, these include BBN
Internet Service Corp., PSINet, Inc. and UUNet Technologies, Inc.
Unipalm Limited is the Company's Internet service provider in Europe.
Internet Initiative Japan is one of the Company's Internet service
provider resellers in the Pacific Rim.
- Value Added Resellers and Hardware Vendors: In the United States,
these include Data General Corporation and Silicon Graphics, Inc. In
Europe and the Pacific Rim, these include Bull Enterprise Systems,
HITACHI Ltd. and Sumitomo Electric Systems Company, Ltd.
- System Integrators: These include AvantComp Oy, Conjungi Corporation,
Fujitsu Systems Business of Canada, Inc. and Media Communications STM
AB.
- Security Product Vendors: These include Hanil Telecom Co., Ltd. in the
Pacific Rim and Mergent International, Inc. and V-One in the United
States.
The Company's agreements with its resellers generally provide the reseller with
a limited license to market, distribute and install the Company's Gauntlet
family of firewall products in a particular territory and to make such
modifications to the Company's Gauntlet family of firewall products as may be
required to serve the customer's needs. The agreements obligate the Company to
provide its resellers with updates to the licensed Gauntlet family of firewall
products and with ongoing maintenance and support. The reseller is required to
provide the Company with periodic reports regarding its activities in connection
with such products and to pay related license fees to the Company. The
agreements also contain confidentiality, indemnification and warranty disclaimer
provisions.
Telesales. The TIS Telesales Team maintains frequent and open communications
with customers. The TIS Telesales Team is geographically focused to develop,
service and transact business. The 1993 decision to make the Company's firewall
technology available via the Company's World Wide Web page proved very
successful and of strategic importance. It is currently estimated that there
have been more than 34,000 downloads of the TIS Internet Firewall Toolkit to
more than 15,000 discrete locations worldwide. The Telesales Team targets
members of this user community as potential customers for the Gauntlet family of
firewall products. TIS also provides these prospects with information through a
Firewall Toolkit user group and Birds of a Feather sessions at conferences.
Other leads for the Telesales Team are generated through trade shows, an 800
number, e-mail and direct mailings.
For information regarding the Company's revenues from outside North America, see
Note 1 of Notes to Consolidated Financial Statements.
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CUSTOMER SERVICE AND SUPPORT
The Company offers extensive training to customers and resellers for firewall
installation and management. As part of the training program, the Company
provides onsite or offsite classroom instruction and related instructional
materials which enable customer and reseller personnel to deliver the first
level of support and to tailor a support scenario for a client's unique
requirements.
The Company offers support services by e-mail and telephone for its Gauntlet
family of firewall products. These services encompass diagnosing problems in the
network associated with the firewall and answering questions about configuration
and operation alternatives. Most customers purchase support services in the form
of a support contract covering a single firewall or in the form of a corporate
support agreement. The Company offers a variety of support contracts, including
one offering support seven days a week, 24 hours per day (7 X 24).
RESEARCH AND DEVELOPMENT
The Company's research and development efforts are focused on core information
security technologies, enhancements to existing technologies and products and
development of new products. The Company's information security products
research and development program has focused primarily on feature and
performance enhancements, expansion of the family of scaleable firewall and
cryptographic security products and development of applications of cryptography,
in particular those associated with cryptographic key recovery. The Company's
government research and development program focuses on extensions and
enhancements to current firewall technology, access control techniques for
operating systems and networks, the application of cryptography within operating
systems, network components and network infrastructure and security for
distributed systems. See "-- Advanced Research and Engineering." Through a
combination of independent and government-funded research and development
efforts, the Company is able to maintain a broad base of computer and network
security technology expertise and to remain a leader in information security
technology development.
As of August 28, 1996, the Company's research and development staff included
more than 130 scientists and engineers. Of these, nine have PhDs, 62 have
master's degrees and 61 have bachelor's degrees. The Company believes that its
ability to attract and retain a highly qualified technical staff will continue
to be essential to the success of its research and development programs. The
market for such personnel is highly competitive and the Company's research and
development activities could be adversely affected if the Company is unable to
attract and retain skilled technical personnel.
In addition to amounts directly funded by the U.S. government, the Company spent
approximately $582,000, $646,000 and $1.14 million on research and development
during the years ended 1993, 1994 and 1995, respectively, and approximately
$1.01 million during the first half of 1996. The Company expects to continue to
fund research and development efforts independently, through internally
generated funds and proceeds from the Offering. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Liquidity and
Capital Resources." The Company believes that the continued scope and
progressiveness of its security technology research and development are
essential in ensuring the Company's future success in the information security
field.
COMPETITION
Competition in the information security market is intense and constantly
evolving, and the Company expects such competition to increase in the future.
The Company believes that significant competitive factors affecting this market
are depth of product functionality, product quality and performance, product
price, customer support, conformance to protocols and industry standards and
breadth of platform support. In addition, the Company believes that the ability
to rapidly develop and implement new products and features for the market is
critical. There can be no assurance that the Company can maintain or enhance its
competitive position against current and future competitors. Significant factors
such as the emergence of new products, fundamental changes in computing
technology and aggressive pricing and marketing strategies may also affect the
Company's competitive position. Many of these factors are out of the Company's
control. See "Risk Factors -- Competition."
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The principal competitors for the Company's government-funded research and
development are BBN Corporation, Open Software Foundation Research Institute,
Secure Computing Corporation and SRI International.
The Company's principal current competitors for its network security products
include America Online, Inc.'s Advanced Network and Services subsidiary, Bay
Networks Inc., Border Network Technologies, Inc., Check Point Software
Technologies Ltd., Cisco Systems, Inc., Digital Equipment Corporation, Harris
Computer Systems Corporation, International Business Machines Corporation,
Microsoft Corporation, Milkyway Networks Corporation, Morningstar Technologies,
Inc., Network Systems Corporation, Raptor Systems, Inc., Secure Computing
Corporation, Sun Microsystems, Inc. and V-One. Secure Computing Corporation
recently announced the signing of a definitive agreement for the acquisition of
Border Network Technologies, Inc. Due to the rapid expansion of the network
security market, the Company may face competition from new entrants in the
network security industry, possibly including the Company's resellers.
PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY
The Company's success is dependent in part on its proprietary technology. TIS
relies on a combination of patent, trade secret, copyright and trademark laws,
non-disclosure agreements and contractual provisions to establish and protect
its proprietary rights. The Company has received three patents and has one
pending domestic patent application and two pending international patent
applications pursuant to the Patent Cooperation Treaty (PCT) on its KRT and
computer security technology. The Company has not selected any particular
foreign countries in which to file patent applications based upon these PCT
applications and intends to make such selections as appropriate in the future.
The Company uses a printed "shrink-wrap" license for users of its products in
order to protect certain of its copyrights and trade secrets. The Company
attempts to protect its trade secrets and other proprietary information through
agreements with suppliers and non-disclosure agreements with employees and
consultants and other security measures.
Despite the Company's efforts to protect its proprietary rights, unauthorized
parties may attempt to copy aspects of the Company's products or to obtain and
use information that the Company regards as proprietary. Policing unauthorized
use of the Company's products is difficult, and, while the Company is unable to
determine the extent to which piracy of its software products exists, such
piracy can be expected to be a persistent problem, particularly in international
markets and as a result of the growing use of the Internet. Some courts have
held that shrink-wrap licenses, because they are not signed by the licensee, are
not enforceable. The laws of Maryland, which the shrink-wrap licenses purport to
make the governing law, are unclear on this subject. In addition, there can be
no assurance that patent applications filed by the Company will result in
patents being issued or that its existing patent, and any patents that may be
issued to it in the future, will afford protection against competitors with
similar technology; nor can there be any assurance that patents issued to the
Company will not be infringed upon or designed around by others or that others
will not obtain patents that the Company would need to license or design around.
For additional information see "Risk Factors -- Limited Protection of
Intellectual Property and Proprietary Rights."
The Company licenses encryption and other portions of the software included in
its products from third parties and its success will depend in part on its
continued ability to use technology that is important to the functionality of
its products licensed from these or other parties. If its licenses were to be
terminated and the Company were unable to obtain licenses to similar software
from others there could be a material adverse effect on its financial condition
or results of operations.
FACILITIES
The Company's principal administrative, research, sales, marketing and
consulting facility is located in 44,681 square feet of office space in
Glenwood, Maryland which is owned by the Company. The Company leases other
domestic research, sales, marketing and consulting offices, including
approximately 27,000 square feet in Rockville, Maryland and 1,371 square feet in
Lisbon, Maryland. The Company has also entered into a lease for 6,271 square
feet in McLean, Virginia. Additional domestic offices are located in Mountain
View and Los Angeles, California, where the Company leases 4,472 and 3,874
square feet, respectively. The Company also maintains a sales, marketing and
consulting office located in 2,675 square feet of leased space in the United
Kingdom. The
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Company also owns a 1,700 square foot building adjacent to its main facility in
Glenwood, Maryland which is currently leased to a local small business. The
Company believes that its existing facilities are adequate for its needs and
that alternative or additional space will be available as needed.
EMPLOYEES
As of August 28, 1996, the Company employed 206 people on a full-time basis and
27 people on a temporary or part-time basis. Although the Company has no
employment agreement with any of its employees, all employees are required to
sign agreements containing confidentiality and non-disclosure provisions.
Additionally, the Company hires independent contractors and temporary employees
on an as-needed basis to assist with specialized assignments in certain areas,
including commercial product development, advanced research and engineering,
customer support and installations.
None of the Company's employees is represented by a labor union or is subject to
a collective bargaining agreement. The Company considers its relations with its
employees to be good.
REGULATORY MATTERS
Certain of the Company's information security products are subject to the export
restrictions administered by the U.S. Department of State and the U.S.
Department of Commerce, which permit the export of encryption products only with
the required level of export license. In addition, these U.S. export laws
prohibit the export of encryption products to a number of hostile countries.
U.S. export regulations regarding the export of encryption technology require
either a transactional export license or the granting of Department of Commerce
commodity jurisdiction. To date, the Company has been able to secure all
required U.S. export licenses, including the first two, and the Company believes
the only, export licenses for transactions involving a network security product
using the industry standard DES algorithm (56 bits), which were granted because
they included a key recovery system. Additionally, the Company currently has a
number of export license applications pending before the U.S. government,
including two commodity jurisdiction applications, with respect to the export of
products utilizing RecoverKey/KRT. There can be no assurance that the Company
will continue to be able to secure such licenses in a timely manner in the
future, or at all. The Company does not expect that such RecoverKey/KRT products
will generate significant revenues prior to 1997. See "-- Commercial Products
and Services -- Cryptographic Products/RecoverKey/Key Recovery Technology (KRT)
System." In certain foreign countries, the Company's distributors are required
to secure licenses or formal permission before encryption products can be
imported. To date, except for certain limited cases, the Company's distributors
have not been denied permission to import the Company's products.
LITIGATION
The Company is not currently engaged in any legal proceedings and is not aware
of any pending or threatened litigation that could have a material adverse
effect on the Company's business, financial condition or results of operations.
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MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth certain information regarding the directors and
executive officers of the Company as of August 30, 1996:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
NAME AGE POSITION WITH THE COMPANY
- -----------------------------------------------------------------------------------------------
<S> <C> <C>
Stephen T. Walker(1) 52 President, Chief Executive Officer, Chairman of the Board
and Director
Martha A. Branstad 55 Executive Vice President and Chief Operating Officer,
President of Advanced Research and Engineering Division and
Director
Harvey L. Weiss 53 Executive Vice President, President of the Commercial
Division, Secretary and Director
Steven B. Lipner 52 Executive Vice President and Network Security Product Line
Manager
Homayoon Tajalli 37 Executive Vice President and Cryptographic Product Line
Manager
Ronald W. Kaiser 42 Executive Vice President and Chief Financial Officer
Gerald J. Popek(1)(2) 49 Director
Charles W. Stein(1)(2) 56 Director
</TABLE>
(1) Member, Compensation Committee
(2) Member, Audit Committee
STEPHEN T. WALKER founded the Company in May 1983 and has continuously served as
President, Chief Executive Officer, Chairman of the Board and a Director. From
1980 to 1983, Mr. Walker was the Director of Information Systems for the Office
of the Assistant Secretary of Defense for Communications, Command, Control and
Intelligence (C3I), Pentagon. In recognition of Mr. Walker's contributions, he
was awarded the Secretary of Defense Meritorious Civilian Service Medal in 1984,
and the first National Computer System Security Award in 1988. Mr. Walker holds
a B.S. degree in electrical engineering from Northeastern University and an M.S.
degree in electrical engineering from the University of Maryland.
MARTHA A. BRANSTAD has been Executive Vice President and a Director of the
Company since 1986, Chief Operating Officer of the Company since 1993 and
President of the AR&E Division since January 1996. From August 1984 to August
1985, Dr. Branstad served as the Program Director, Software Engineering for the
National Science Foundation, and was responsible for directing academic research
grants in software engineering and computational mathematics. During the period
from September 1978 to September 1985, Dr. Branstad worked in various positions
within the National Bureau of Standards, including Manager, Software for
Parallel Processing and Manager, Software Engineering. Prior to that time, Dr.
Branstad managed a software research group for the NSA. Dr. Branstad holds a
B.S. in mathematics from Iowa State University, an M.S. degree in mathematics
from the University of Wisconsin and a Ph.D. in computer science from Iowa State
University.
HARVEY L. WEISS has been Executive Vice President of the Company, President of
the Commercial Division and a Director of the Company since March 1996, and has
been Secretary of the Company since May 1996. Prior to that time, from February
1994 to March 1996, Mr. Weiss served as President of Public Sector Worldwide
Division for Unisys Corporation. From July 1991 to December 1993, Mr. Weiss was
the Vice President of Sales and the President and Chief Operating Officer of
Thinking Machines Corporation. Prior to that time, Mr. Weiss served in various
senior capacities in Digital Equipment Corporation. Thinking Machines
Corporation sought bankruptcy protection under Chapter 11 of the Bankruptcy Code
in August 1994. Mr. Weiss holds a B.S. degree in mathematics from the University
of Pittsburgh.
STEVEN B. LIPNER has been Executive Vice President and Network Security Product
Line Manager of the Company since February 1994. From February 1992 to February
1994, Mr. Lipner served as the Director of Information Systems, Center for
Information Systems of The MITRE Corporation. Prior to that time, Mr. Lipner
held various engineering management positions with Digital Equipment Corporation
("DEC") from March 1981 to February 1992. From 1987 to 1992, Mr. Lipner was
Engineering Group Manager of DEC's Secure Systems Group
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with responsibility for secure systems product development and business
strategy. Mr. Lipner received S.B. and S.M. degrees in Civil Engineering from
the Massachusetts Institute of Technology.
HOMAYOON TAJALLI has been an Executive Vice President of the Company since
December 1993, and from October 1987 until December 1995 was responsible for all
aspects of the Company's Trusted Mach operating system development activities.
Since January 1996, Mr. Tajalli has served as the Cryptographic Product Line
Manager. From February 1983 to October 1987, Mr. Tajalli held various management
positions with Digital Equipment Corporation, including Senior Technical
Software Manager, Technical Software Manager/Software Consultant and Principal
Software Specialist. Mr. Tajalli holds B.S. and M.S. degrees in electrical
engineering from the University of Maryland.
RONALD W. KAISER joined the Company in May 1996 as Executive Vice President and
Chief Financial Officer. From November 1994 through January 1996, Mr. Kaiser
served as Chief Financial Officer of American Communications Services Inc.
("ACSI"), a regional competitive access provider of telecommunications services,
and from February 1996 through July 1996, Mr. Kaiser served as a consultant to
ACSI. Mr. Kaiser is a certified public accountant with over 15 years of
experience in accounting and financial management of both publicly held and
private companies. From April 1993 to November 1994, Mr. Kaiser served as Vice
President of Finance, Treasurer and Chief Financial Officer at ADAK
Communications Corporation, a manufacturer and distributor of telecommunications
digital access controllers. ADAK Communications Corporation sought bankruptcy
protection under Chapter 11 of the Bankruptcy Code in February 1996. From 1990
through 1993, Mr. Kaiser served as Vice President - Finance and Treasurer of a
subsidiary of George Fischer AG, a Swiss corporation. Mr. Kaiser received B.A.
degrees in accounting and pre-law from Michigan State University.
GERALD J. POPEK has been a Director of the Company since May 1996. He has served
as Chief Technology Officer of Platinum technology, inc. ("Platinum") since
August 1995 and is responsible for participating in the setting of overall
corporate technology and product strategy, enterprise security and open systems
issues. From January 1982 to August 1995, Dr. Popek was the founder and Chairman
of Locus Computing Corporation, an organization dedicated to open systems based
distributed computing which was recently acquired by Platinum. Additionally,
since 1987 Dr. Popek has been a senior faculty member in the Computer Science
Department at UCLA, conducting research on computer security, distributed UNIX
systems, replication and mobile computing. Dr. Popek holds a B.S. degree in
nuclear engineering from New York University and S.M. and Ph.D. degrees in
applied mathematics from Harvard University.
CHARLES W. STEIN has been a Director of the Company since May 1996. Mr. Stein
has over 35 years of experience in the computer and communications industry and
since February 1987 has served as the President, Chief Executive Officer and
Director of Netrix Corporation, an electronic components company. Prior to that
time, Mr. Stein was a Vice President with BBN Communications Corporation where
he was responsible for marketing and later the Professional Services Division.
Mr. Stein holds a B.S. degree in mathematics from Tufts University.
Officers of the Company are elected by the Board of Directors on an annual basis
and serve until their successors have been duly elected and qualified. The
Company's Certificate of Incorporation provides for a classified Board of
Directors consisting of three classes of directors with each class required to
be as nearly equal in number as possible. The number of directors is determined
from time to time by the Board of Directors and is currently fixed at 5 members.
A single class of directors is elected each year at the Company's annual meeting
of stockholders. Subject to transition provisions, each director elected at each
such meeting will serve for a term ending on the date of the third annual
meeting of stockholders after his or her election and until his or her successor
has been elected and duly qualified. Mr. Weiss is serving for a term expiring on
the date of the Company's 1997 Annual Meeting of Stockholders, Mr. Stein and Dr.
Branstad are serving for terms expiring on the date of the Company's 1998 Annual
Meeting of Stockholders and Mr. Walker and Dr. Popek are serving for terms
expiring on the date of the Company's 1999 Annual Meeting of Stockholders.
COMMITTEES OF THE BOARD OF DIRECTORS
The Company's Board of Directors currently has two committees, the Audit
Committee and the Compensation Committee. The Audit Committee, among other
things, recommends the firm to be appointed as independent accountants to audit
the Company's financial statements, discusses the scope and results of the audit
with the
45
<PAGE> 47
independent accountants, reviews with management and the independent accountants
the Company's interim and year-end operating results, considers the adequacy of
the internal accounting controls and audit procedures of the Company and reviews
the non-audit services to be performed by the independent accountants. The
current members of the Audit Committee are Dr. Popek and Mr. Stein. The
Compensation Committee reviews and recommends the compensation arrangements for
management of the Company and administers the Company's stock option plans. The
members of the Compensation Committee are Mr. Walker, Dr. Popek and Mr. Stein.
DIRECTOR COMPENSATION
Directors who are not currently employees of the Company are entitled to receive
a fee of $750 per meeting attended in person, are reimbursed for certain
reasonable expenses incurred in attending each meeting of the Board of Directors
and receive awards of stock options under the Amended and Restated 1996
Directors' Stock Option Plan. See "Management -- Directors' Stock Option Plan."
EXECUTIVE COMPENSATION
The following table shows information concerning compensation for the Chief
Executive Officer and each of the other most highly compensated executive
officers other than the Chief Executive Officer of the Company (the "Named
Officers") for 1995.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
----------------------------------------------------------------------
LONG TERM
COMPENSATION
ANNUAL COMPENSATION ------------
------------------------ SECURITIES OTHER ANNUAL
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($)(1) UNDERLYING OPTIONS COMPENSATION($)(2)
---- --------- ----------- ------------------ ------------------
<S> <C> <C> <C> <C> <C>
Stephen T. Walker 1995 195,952 146,026 -- 4,472
President and Chief Executive 1994 180,055 141,274 2,453 9,931
Officer 1993 163,262 49,923 12,269 4,831
Martha A. Branstad 1995 148,784 40,594 -- 11,170
Executive Vice President and 1994 137,187 38,497 2,453 11,392
Chief Operating Officer 1993 127,182 21,263 12,269 8,587
Steven B. Lipner 1995 138,445 29,191 -- 864
Executive Vice President 1994 109,430 21,397 49,076 720
1993 -- -- -- --
Homayoon Tajalli 1995 136,571 29,484 -- 198
Executive Vice President 1994 126,874 24,424 2,453 198
1993 112,653 13,306 12,269 198
</TABLE>
- ---------------
(1) The Company's executive officers are eligible for annual cash bonuses. Such
bonuses are based upon achievement of individual or corporate performance
objectives determined by the Board of Directors.
(2) Includes the payment by the Company of the annual premium for certain term
life coverage pursuant to a benefit program, and in the case of Mr. Walker and
Dr. Branstad includes payment by the Company of the premium for buy-sell life
insurance.
OPTION GRANTS IN LAST FISCAL YEAR
There were no options to purchase Common Stock granted in the year ended
December 29, 1995 to any of the Named Officers.
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<PAGE> 48
FISCAL YEAR-END OPTION VALUES
The following table sets forth the value of outstanding options held by the
Named Officers as of December 29, 1995.
<TABLE>
<CAPTION>
------------------------------------------------------
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
OPTIONS AT IN-THE-MONEY OPTIONS AT
FISCAL YEAR-END(#) FISCAL YEAR-END($)(1)
---------------------------- ----------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
----------- ------------- ----------- -------------
<S> <C> <C> <C> <C>
Stephen T. Walker............................ 14,722 -- $26,376 --
Martha A. Branstad........................... 14,722 -- 26,376 --
Steven Lipner................................ 49,076 -- 95,698 --
Homayoon Tajalli............................. 14,722 -- 26,376 --
</TABLE>
- ---------------
(1) Calculated on the basis of the fair market value of the Common Stock at
December 29, 1995, $2.45 per share (as determined by the Company's Board of
Directors), less the exercise price payable for such shares, multiplied by the
number of shares underlying the option.
EMPLOYEE STOCK OPTION PLANS
Under the Company's Amended and Restated Employee Stock Option Plan (the
"Employee Option Plan"), at September 15, 1996, options for 143,329 shares of
Common Stock were outstanding. No further options will be granted under the
Employee Stock Option Plan. The Company's Amended and Restated 1996 Stock Option
Plan (the "1996 Option Plan") authorizes the issuance of 1,625,667 shares of
Common Stock pursuant to the exercise of stock option grants. At September 15,
1996, no shares had been issued under the 1996 Option Plan, options for
1,152,623 shares were outstanding and 473,044 shares remained available for
future grant under the 1996 Option Plan. The Employee Option Plan and the 1996
Option Plan are collectively referred to as the "Option Plans."
The Employee Option Plan provides for grants of options to employees of the
Company, and the 1996 Option Plan provides for grants to employees, officers and
consultants of the Company. Each stock option granted under the Option Plans is
evidenced by a written stock option agreement between the Company and the
optionee. The Option Plans provide for the granting of "incentive stock options"
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended, and non-statutory stock options. The Option Plans are administered by
the Compensation Committee which has sole discretion and authority, consistent
with the provisions of the Option Plans, and has the right, among other things,
to determine which eligible participants will receive options, the time when
options will be granted, the terms, including the exercise price, of options
granted and the number of shares that will be subject to options granted under
the Option Plans.
For any option intended to qualify as an incentive stock option, the exercise
price must be not less than 100% of the fair market value of the Common Stock on
the date the option is granted (110% of the fair market value of such Common
Stock with respect to any optionee who immediately before any option is granted,
directly or indirectly, possesses more than 10% of the total combined voting
power of all classes of stock of the Company ("10% Owners")). The Compensation
Committee has the authority to determine the time or times at which options
granted under the Option Plans become exercisable; provided that, for any option
intended to qualify as an incentive stock option, such option must expire no
later than ten years from the date of grant (five years with respect to options
granted to 10% Owners). Options are non-assignable and non-transferable, unless
a stock option agreement provides that such option may be transferred by the
optionee upon death, by will or the laws of descent and distribution. Options
generally may be exercised only while the optionee is either employed by, or
rendering service to, the Company or within a specified period of time
thereafter. The Compensation Committee may accelerate the vesting of any option
or waive any condition or restriction pertaining to such option at any time.
Unless terminated sooner by the Board of Directors of the Company, the Employee
Option Plan will terminate in 2006, or the date on which all shares available
for issuance shall have been issued pursuant to the exercise of options granted
under the Employee Option Plan. Unless terminated sooner by the Board of
Directors of the Company, the 1996 Option Plan will terminate in 2006, or the
date on which all shares available for issuance shall have been issued pursuant
to the exercise of options granted under the 1996 Option Plan.
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<PAGE> 49
Unless otherwise provided in a particular stock option agreement, upon a "Change
in Control of the Company" as defined in the 1996 Option Plan, any outstanding
options issued pursuant to the 1996 Option Plan prior to the date of such Change
in Control of the Company shall vest and be exercisable as to 50% of the number
of shares of Common Stock that remain unvested on the date of such Change in
Control of the Company.
DIRECTORS' STOCK OPTION PLAN
The Amended and Restated 1996 Directors' Stock Option Plan (the "Director Plan")
was adopted in May 1996. Under the terms of the Director Plan, directors of the
Company who are not employees of the Company are eligible to receive
non-statutory options to purchase shares of Common Stock. A total of 200,000
shares of Common Stock may be issued upon exercise of options granted under the
Director Plan. On August 15, 1996, each of Dr. Popek & Mr. Stein were granted
options to purchase 9,202 shares of Common Stock at an exercise price of $7.04
per share. Unless terminated sooner by the Board of Directors, the Director Plan
will terminate in 2006, or the date on which all shares available for issuance
under the Director Plan shall have been issued pursuant to the exercise of
options granted under the Director Plan.
Upon a member's initial election or appointment to the Board of Directors after
the date of this Prospectus, such member will be granted options to purchase
6,000 shares of Common Stock. Annual options to purchase 1,250 shares of Common
Stock will be granted to each eligible director, including those eligible
directors currently on the Board, on the date of each annual meeting of
stockholders commencing in 1997. Such annual options will vest in full at the
earlier of (i) the first anniversary of the date of the grant or (ii) the date
of the next annual meeting of stockholders. The exercise price of options
granted under the Director Plan will equal the closing price per share of the
Common Stock on the date of grant (or in the case of grants on the Effective
Date the public offering price for the Offering).
Options granted under the Director Plan are not transferable by the optionee
except by will or by the laws of descent and distribution or pursuant to a
qualified domestic relations order. In the event an optionee ceases to serve as
a director, each option may be exercised by the optionee for the portion then
exercisable at any time within 60 days after the optionee ceases to serve as a
director; provided, however, that in the event that the optionee ceases to serve
as a director due to his death or disability, then the optionee, or his or her
administrator, executor or heirs, may exercise the exercisable portion of the
option for up to 180 days following the date the optionee ceases to serve as a
director. No option is exercisable after the expiration of five years from the
date of grant.
Upon a "Change in Control of the Company" as defined in the Director Plan, any
outstanding options issued pursuant to the Director Plan prior to the date of
such Change in Control of the Company shall vest and be exercisable as to 50% of
the number of shares of Common Stock that remain unvested on the date of such
Change in Control of the Company.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Prior to June 3, 1996, the Company did not have a Compensation Committee, and
all matters concerning executive officer compensation were addressed by the
entire Board of Directors. The Compensation Committee is currently comprised of
Mr. Walker, Dr. Popek and Mr. Stein. Neither Dr. Popek nor Mr. Stein was at any
time during the fiscal year ended December 29, 1995, or at any other time, an
officer or employee of the Company. Mr. Walker is the President and Chief
Executive Officer of the Company. No member of the Compensation Committee of the
Company serves as a member of the board of directors or compensation committee
of any entity that has one or more executive officers serving as a member of the
Company's Board of Directors or Compensation Committee.
LIMITATION ON LIABILITY AND INDEMNIFICATION MATTERS
The Company's Certificate of Incorporation provides that to the fullest extent
permitted by Delaware law a director of the Company shall not be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director. Under current Delaware Law, liability of a
director may not be limited (i) for any breach of the director's duty of loyalty
to the Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii) in
respect of certain unlawful dividend payments or stock redemptions or purchases
and (iv) for any transaction from which the director derives an
48
<PAGE> 50
improper personal benefit. The effect of this provision of the Company's
Certificate of Incorporation is to limit or eliminate the rights of the Company
and its stockholders (through stockholders' derivative suits on behalf of the
Company) to recover monetary damages against a director for breach of such
director's fiduciary duty of care as a director (including breaches resulting
from negligent or grossly negligent behavior) except in those circumstances
described in clauses (i) through (iv) above. This provision does not limit or
eliminate the rights of the Company or any stockholder to seek nonmonetary
relief such as an injunction or rescission in the event of a breach of a
director's duty of care. In addition, the Company's Certificate of Incorporation
and Amended and Restated Bylaws (the "Bylaws") provide that the Company shall
indemnify its directors, officers, employees and agents to the fullest extent
permitted by Delaware Law, including circumstances in which indemnification is
otherwise discretionary under Delaware law, and the Company has entered into
indemnification agreements with its directors and officers to that effect. The
Company maintains officer and director liability insurance providing coverage of
up to $10 million with respect to liabilities arising out of certain matters,
including matters arising under the Securities Act.
At present, there is no pending litigation or proceeding involving any officer
or director, employee or agent of the Company where indemnification will be
required or permitted. The Company is not aware of any threatened litigation or
proceeding which may result in a claim for such indemnification.
49
<PAGE> 51
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
In June 1996, the Company purchased the real property and improvements located
adjacent to the Company's Glenwood, Maryland headquarters (the "Adjacent
Property") from Glenwood Associates Limited Partnership ("Glenwood Associates")
for a purchase price of $360,000. Stephen T. Walker is the general partner of
Glenwood Associates. The limited partners of Glenwood Associates are Martha A.
Branstad and Stephen D. Crocker. The purchase price was determined based on a
valuation of the property prepared by the Company based primarily upon an
independent appraisal. Prior to such transaction, the Company leased the
Adjacent Property from Glenwood Associates pursuant to an oral lease agreement
which provided for monthly rent of $3,929 plus payment of operating expenses.
Annual rent expense under the Adjacent Property lease agreement for fiscal 1995
was $47,148.
In July 1995, in connection with a $1.8 million construction loan (the
"Construction Loan") from Mercantile Bank for improvements to the Company's
Glenwood, Maryland headquarters, Mr. Walker entered into a personal guaranty
agreement (the "Personal Guaranty Agreement") with Mercantile Bank. Under the
Personal Guaranty Agreement, Mr. Walker unconditionally and irrevocably
guaranteed the obligations of the Company under the Construction Loan agreements
and related documents. Mr. Walker has also entered into a Security Agreement
with the Company and Mercantile Bank in connection with the Construction Loan.
In July 1995, Mr. Walker and the Company executed a certain Deed and
Confirmatory Deed pursuant to which Mr. Walker and the Company confirmed the
boundaries of the adjacent parcels of land owned by Mr. Walker and the Company,
respectively.
In August 1995, the Company issued a Promissory Note (the "Promissory Note") for
the benefit of Mr. Crocker in the principal amount of $307,520, representing the
balance of monies due to Mr. Crocker in connection with the repurchase by the
Company of 588,921 shares of Common Stock from Mr. Crocker. This Promissory Note
was paid in full in September 1995.
In August 1996, in connection with a $2.0 million credit facility (the "Credit
Facility") with Mercantile Bank, Mr. Walker entered into a personal guaranty
agreement with Mercantile Bank. Under the Credit Facility, Mr. Walker
unconditionally and irrevocably guaranteed the obligations of the Company under
the Credit Facility.
The Company believes that all transactions set forth above were made on terms no
less favorable to the Company than would have been obtained from unaffiliated
third parties. The Company has adopted a policy whereby all future transactions
between the Company and its officers, directors and affiliates will be on terms
no less favorable to the Company than could be obtained from unaffiliated third
parties and will be approved by a majority of the disinterested members of the
Board of Directors.
50
<PAGE> 52
PRINCIPAL STOCKHOLDERS
The following table sets forth information regarding the beneficial ownership of
the Company's Common Stock as of September 15, 1996, and as adjusted to reflect
the sale of the Common Stock offered hereby, for (i) each person known by the
Company to own beneficially more than 5% of the outstanding shares of Common
Stock, (ii) each director of the Company, (iii) each of the Named Officers, and
(iv) all directors and executive officers of the Company as a group. Unless
otherwise indicated (i) the persons named in the table have sole voting and
investment power with respect to all shares of Common Stock shown as
beneficially owned by them, subject to community property laws where applicable,
and (ii) the address for the persons named in the table is 3060 Washington Road,
Glenwood, Maryland 21738.
<TABLE>
<CAPTION>
-------------------------------------------
SHARES BENEFICIALLY SHARES TO BE
OWNED PRIOR TO BENEFICIALLY OWNED
THE OFFERING(1) AFTER OFFERING(1)
-------------------- --------------------
NAME AND ADDRESS NUMBER PERCENT NUMBER PERCENT
--------- ------- --------- -------
<S> <C> <C> <C> <C>
Martha A. Branstad(2).................................. 1,434,016 19.0% 1,434,016 13.7%
Stephen D. Crocker(3).................................. 479,479 6.4 479,479 4.6
Ronald W. Kaiser(4).................................... -- * -- *
Steven B. Lipner(5).................................... 49,076 * 49,076 *
Gerald J. Popek(6)..................................... -- * -- *
Marvin Schaefer(7)..................................... 392,612 5.2 392,612 3.8
Charles W. Stein(8).................................... -- * -- *
Homayoon Tajalli(9).................................... 51,531 * 51,531 *
Stephen T. Walker(10).................................. 2,959,325 39.2 2,959,325 28.3
Harvey L. Weiss(11).................................... -- * -- *
All directors and executive officers as a group
(8 persons)(12)...................................... 4,493,948 59.6% 4,493,948 43.0%
</TABLE>
- ---------------
* Less than 1%.
(1) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission, and includes voting and investment power
with respect to shares. Shares of Common Stock subject to options currently
exercisable or exercisable within 60 days after September 15, 1996 are deemed
outstanding for computing the percentage ownership of the person holding such
options, but are not deemed outstanding for computing the percentage of any
other person.
(2) Includes 460,094 shares held in a trust over which Dr. Branstad is the
Trustee, and includes 460,094 shares held in a trust over which Dr. Branstad's
husband is the Trustee and over which Dr. Branstad exercises voting and
investment power. Also includes 20,241 shares held by members of Dr. Branstad's
family over which Dr. Branstad exercises voting and investment power.
(3) The address for Mr. Crocker is Reston Parkway, Suite 430, Reston, Virginia
22091.
(4) Excludes 92,018 shares issuable upon exercise of unvested stock options.
(5) Includes 24,538 shares held in a trust over which Mr. Lipner is the Trustee.
Excludes 129,194 shares issuable upon exercise of unvested stock options.
(6) Excludes 9,202 shares issuable upon exercise of unvested stock options.
(7) Includes 196,306 shares held by Mr. Schaefer's wife. The address for Mr.
Schaefer is Arca Systems, Inc., 10320 Little Patuxent Parkway, Suite 1005,
Columbia, Maryland 21044.
(8) Excludes 9,202 shares issuable upon exercise of unvested stock options.
(9) Includes 2,453 shares issuable upon the exercise of outstanding options.
Also includes 12,269 shares, and 2,453 shares issuable upon exercise of
outstanding options, held by Mr. Tajalli's wife. Excludes 214,563 shares
issuable upon exercise of unvested stock options. Also excludes 98 shares
issuable upon exercise of unvested stock options held by Mr. Tajalli's wife.
(10) Includes 147,230 shares held in a trust over which Mr. Walker is the
Trustee, and includes 147,230 shares held in a trust over which Mr. Walker's
wife is the Trustee and over which Mr. Walker does not exercise voting or
investment power. Mr. Walker disclaims beneficial ownership of the latter
147,230 shares. Also includes 1,521 shares held by Mr. Walker's wife of which
Mr. Walker disclaims beneficial ownership.
(11) Excludes 258,364 shares issuable upon exercise of unvested stock options.
(12) See footnotes (4), (5), (6), (8), (9) and (11) above. Includes 4,906 shares
issuable upon the exercise of outstanding options. Excludes 712,641 shares
issuable upon exercise of unvested stock options.
51
<PAGE> 53
DESCRIPTION OF CAPITAL STOCK
GENERAL
The authorized capital stock of the Company consists of 40,000,000 shares of
Common Stock, par value $.01 per share, and 5,000,000 shares of Preferred Stock,
$.01 par value (the "Preferred Stock"). There are no shares of Preferred Stock
outstanding. The following summary description of the capital stock of the
Company does not purport to be complete and is subject to the detailed
provisions of, and qualified in its entirety by reference to, the Company's
Certificate of Incorporation and Bylaws, copies of which have been filed as
exhibits to the Registration Statement of which this Prospectus is a part, and
to the applicable provisions of the General Corporation Law of the State of
Delaware. However, such description describes all material matters relating to
the Common Stock and the Preferred Stock.
COMMON STOCK
At September 15, 1996, there were 7,542,447 shares of Common Stock outstanding
and held of record by approximately 110 stockholders. Each holder of Common
Stock is entitled to one vote for each share held on all matters submitted to a
vote of stockholders. The holders of Common Stock, voting as a single class, are
entitled to elect all of the directors of the Company. The Common Stock does not
provide for cumulative voting. Matters submitted to stockholder approval
generally require a majority vote.
Holders of Common Stock are entitled to receive, subject to the preferential
rights of holders of outstanding stock having preferential rights as to
dividend, such dividends as may be declared by the Board of Directors out of
funds legally available therefor. See "Dividend Policy." In the event of a
liquidation, dissolution or winding up of the Company, holders of Common Stock
would be entitled to share in the Company's assets remaining after the payment
of liabilities and the satisfaction of any liquidation preference granted the
holders of any outstanding shares of Preferred Stock, if any. Holders of Common
Stock have no preemptive or other subscription rights. The shares of Common
Stock are not convertible into any other security and have no redemption rights.
The outstanding shares of Common Stock are, and the shares being offered hereby
will be, upon issuance and sale, fully paid and nonassessable. The rights,
preferences and privileges of holders of Common Stock are subject to, and may be
adversely affected by, the rights of the holders of shares of any series of
Preferred Stock which the Company may designate and issue in the future.
PREFERRED STOCK
The Company has the authority to issue up to 5,000,000 shares of Preferred
Stock. The Board of Directors has the authority to issue, without any further
action by the stockholders (except as may be required by applicable law or stock
exchange regulations), the Preferred Stock in one or more series, to establish
from time to time the number of shares to be included in each series, and to fix
the designations, powers, preferences and rights of the shares of each series
and the qualifications, limitations or restrictions thereof. Although the
ability of the Board of Directors to designate and issue Preferred Stock
provides desirable flexibility, issuance of Preferred Stock may have adverse
effects on the holders of Common Stock including restrictions on dividends on
the Common Stock if dividends on the Preferred Stock have not been paid;
dilution of voting power of the Common Stock to the extent the Preferred Stock
has voting rights; or deferral of participation in the Company's assets upon
liquidation until the satisfaction of any liquidation preference granted to
holders of the Preferred Stock. In addition, issuance of Preferred Stock could
make it more difficult for a third party to acquire a majority of the voting
power of the outstanding capital stock and accordingly may be used as an
"anti-takeover" device. The Board of Directors, however, currently does not
contemplate the issuance of any Preferred Stock and is not aware of any pending
transactions that would be effected by such issuance.
CERTAIN PROVISIONS OF THE COMPANY'S CERTIFICATE OF INCORPORATION AND BYLAWS
The Company's Certificate of Incorporation or Bylaws, as applicable, among other
things, (i) provide that the number of directors shall be determined from time
to time by resolution adopted by a majority of the Board of Directors; and
52
<PAGE> 54
(ii) provide for a classified Board of Directors consisting of three classes of
directors having staggered terms of three years each, with each of the classes
being as nearly equal in number as possible.
The Company's Certificate of Incorporation provides that, upon the closing of
the Offering, any action required or permitted to be taken by the stockholders
of the Company may be taken only at a duly called annual or special meeting of
the stockholders, and may not be effected by any consent in writing by such
stockholders, unless such consent is unanimous, and does not provide for
cumulative voting in the election of directors. The Certificate of Incorporation
and Bylaws restrict the right of stockholders to change the number of directors
or to fill vacancies on the Board of Directors. The amendment of any of these
provisions would require approval by 66 2/3% of the voting power of the
outstanding shares of the Company.
These and other provisions could have the effect of making it more difficult for
a third party to effect, or of discouraging a third party from trying to effect,
a change in the control of the Board of Directors. Such provisions may also
discourage another person or entity from making a tender offer for the Company's
Common Stock, including offers at a premium over the market price of the Common
Stock, and might result in a delay in changes in control of management. In
addition, these provisions could have the effect of making it more difficult for
proposals favored by the stockholders to be presented for stockholder
consideration.
SECTION 203 OF DELAWARE GENERAL CORPORATION LAW
Section 203 of the Delaware Law, as amended ("Section 203"), provides that,
subject to certain exceptions specified therein, a Delaware corporation shall
not engage in any business combination, including any merger or consolidation
with, or any transaction which results in the acquisition of additional shares
of the corporation by, an "interested stockholder" for a three-year period
following the time at which the stockholder became an "interested stockholder"
unless (i) prior to such time, the board of directors of the corporation
approved either the business combination or the transaction which resulted in
the stockholder becoming an "interested stockholder," (ii) upon consummation of
the transaction which resulted in the stockholder becoming an "interested
stockholder," the "interested stockholder" owned at least 85% of the voting
stock of the corporation outstanding at the time that the transaction commenced
(excluding certain shares), or (iii) at or subsequent to such time, the business
combination is approved by the board of directors of the corporation and
authorized at an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least 66 2/3% of the outstanding voting
stock which is not owned by the "interested stockholder." Except as otherwise
specified in Section 203, an "interested stockholder" is defined to include any
person that (i) is the owner of 15% or more of the outstanding voting stock of
the corporation, or (ii) is an affiliate or associate of the corporation and was
the owner of 15% or more of the outstanding voting stock of the corporation at
any time within three years immediately prior to the date on which it is sought
to be determined whether such person is an "interested stockholder" and the
affiliates and associates of any such person. The Company's stockholders, by
adopting an amendment to its Certificate of Incorporation or Bylaws, may elect
not to be governed by Section 203, effective twelve months after adoption.
Neither the Company's Certificate of Incorporation nor its Bylaws presently
exclude the Company from the restrictions imposed by Section 203.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Company's Common Stock is American
Stock Transfer and Trust Company.
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<PAGE> 55
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of the Offering, the Company will have 10,442,447 shares of
Common Stock outstanding (assuming no exercise of outstanding options). Of this
amount, 2,900,000 shares offered hereby will be available for immediate sale in
the public market as of the date of this Prospectus. Approximately 1,004,226
additional shares will be available for immediate sale in the public market
pursuant to Rule 144(k). Approximately 682,223 additional shares will be
available for sale in the public market beginning 90 days after the date of this
Prospectus, subject in some cases to compliance with the volume and other
limitations of Rule 144. Approximately 5,850,716 additional shares will be
available in the public market following the expiration of 180-day lockup
agreements with the Representatives of the Underwriters and approximately 20,000
additional shares will be available in the public market following the
expiration of approximately 75-day lockup agreements with the Representatives of
the Underwriters, subject in some cases to compliance with the volume and other
limitations of Rule 144.
In general, under Rule 144 as currently in effect, a person (or persons whose
shares are aggregated) who has beneficially owned shares for at least two years
is entitled to sell within any three-month period commencing 90 days after the
date of this Prospectus a number of shares that does not exceed the greater of
(i) 1% of the then outstanding shares of the Common Stock (approximately 104,442
shares immediately after the Offering) or (ii) the average weekly trading volume
during the four calendar weeks preceding such sale, subject to the filing of
Form 144 with respect to such sale and certain other requirements. A person (or
persons whose shares are aggregated) who is not deemed to have been an affiliate
of the Company at any time during the 90 days immediately preceding the sale who
has beneficially owned his or her shares for at least three years is entitled to
sell such shares pursuant to Rule 144(k) without regard to the limitations
described above. Persons deemed to be affiliates must comply with Rule 144, even
after the applicable holding periods have been satisfied.
The Company is unable to estimate the number of shares that will be sold under
Rule 144, since this will depend on the market price for the Common Stock of the
Company, the personal circumstances of the sellers and other factors. Prior to
the Offering, there has been no public market for the Common Stock, and there
can be no assurance that a significant public market for the Common Stock will
develop or be sustained after the Offering. Any future sale of substantial
amounts of Common Stock in the open market may adversely affect the market price
of the Common Stock offered hereby.
The Company, its directors, executive officers and certain other stockholders
have agreed pursuant to the Underwriting Agreement and other agreements that
they will not sell any Common Stock without the prior consent of J.P. Morgan
Securities Inc. for a period of 180 days from the date of this Prospectus (the
"180-day Lockup Period"), except that the Company may, without such consent,
grant certain options to purchase stock pursuant to the Option Plans and the
stockholders may, without such consent, transfer stock to immediate family
members or trusts for their benefit, to a guardian or conservator, by way of
bequest or inheritance upon death and for purposes of paying estate taxes.
Any employee or consultant to the Company who purchased his or her shares
pursuant to a written compensatory plan or contract is entitled to rely on the
resale provisions of Rule 701, which permits nonaffiliates to sell their Rule
701 shares without having to comply with the public information, holding period,
volume limitation or notice provisions of Rule 144 and permits affiliates to
sell their Rule 701 shares without having to comply with the Rule 144 holding
period restrictions, in each case commencing 90 days after the date of this
Prospectus. As of the date of this Prospectus, the holders of exercisable
options for 128,611 shares of Common Stock will be eligible to sell their Rule
701 shares commencing 90 days after the date of this Prospectus.
54
<PAGE> 56
UNDERWRITING
The Underwriters named below (the "Underwriters"), for whom J.P. Morgan
Securities Inc., Donaldson, Lufkin & Jenrette Securities Corporation and Furman
Selz LLC are acting as representatives (the "Representatives"), have severally
agreed, subject to the terms and conditions set forth in the underwriting
agreement among the Company and the Representatives (the "Underwriting
Agreement"), to purchase from the Company, and the Company has agreed to sell to
the Underwriters, the respective number of shares of Common Stock set forth
opposite their names below:
<TABLE>
<CAPTION>
----------------
UNDERWRITERS NUMBER OF SHARES
----------------
<S> <C>
J.P. Morgan Securities Inc..................................................
Donaldson, Lufkin & Jenrette Securities Corporation.........................
Furman Selz LLC.............................................................
----------------
Total..................................................................... 2,900,000
=============
</TABLE>
The nature of the Underwriters' obligations under the Underwriting Agreement is
such that all of the Common Stock being offered, excluding shares covered by the
over-allotment option granted to the Underwriters, must be purchased if any are
purchased.
The Representatives have advised the Company that the several Underwriters
propose to offer the Common Stock to the public initially at the public offering
price set forth on the cover page of this Prospectus and may offer the Common
Stock to selected dealers at such price less a concession not to exceed $
per share. The Underwriters may allow, and such dealers may reallow, a
concession to other dealers not to exceed of $ per share. After the public
offering of the Common stock, the public offering price and other selling terms
may be changed by the Representatives.
The Company has granted the Underwriters an option, exercisable within 30 days
after the date of this Prospectus, to purchase up to 435,000 additional shares
of Common Stock from the Company at the same price per share to be paid by the
Underwriters for the other shares offered hereby. If the Underwriters purchase
any such additional shares pursuant to the option, each of the Underwriters will
be committed to purchase such additional shares in approximately the same
proportion as set forth in the above table. The Underwriters may exercise the
option only to cover over-allotments, if any, made in connection with the
distribution of the Common Stock offered hereby.
Prior to the Offering, there has been no public market for the Common Stock. The
initial public offering price will be determined by negotiations between the
Company and the Representatives. Among the factors to be considered in
determining the initial offering price are the prevailing market conditions, the
market valuations of certain publicly traded companies, revenue and earnings of
the Company and comparable companies in recent periods, estimates of the
business potential and prospects of the Company, the experience of the Company's
management and the position of the Company in its industry.
The Representatives have informed the Company that the Underwriters will not
confirm, without customer authorization, sales to their customer accounts as to
which they have discretionary trading power.
The Company and its directors and executive officers and certain other
stockholders have agreed not to offer, sell or otherwise dispose of any Common
Stock or any securities convertible into Common Stock or register for sale under
the Securities Act any Common Stock for a period of 180 days after the date of
this Prospectus without the prior written consent of J.P. Morgan Securities
Inc., except that the Company may, without such consent, grant options pursuant
to the Option Plans and the stockholders may, without such consent, transfer
stock to immediate family members or trusts for their benefit, to a guardian or
conservator, by way of bequest or inheritance upon death and for purposes of
paying estate taxes. See "Shares Eligible for Future Sale."
55
<PAGE> 57
The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act, or to contribute to
payments the Underwriters may be required to make in respect thereof.
The Underwriters have represented and agreed that (i) they have not offered or
sold and, prior to the expiry of the period of six months from the closing of
the Offering, will not offer or sell, any shares of Common Stock to persons in
the United Kingdom, except persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public within the meaning of
the Public Offers of Securities Regulations 1995, (ii) they have complied and
will comply with all applicable provisions of the Financial Services Act 1986
with respect to anything done by them in relation to the Offering in, from or
otherwise involving the United Kingdom and (iii) they have only issued or passed
on, and will only issue and pass on, in the United Kingdom any document received
by them in connection with the Offering to a person who is of a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment Advertisement)
(Exemptions) Order 1995 or is a person to whom such document may otherwise
lawfully be issued or passed on.
The Company's Common Stock has been approved for quotation on the Nasdaq
National Market, under the trading symbol "TISX".
At the Company's request, the Underwriters have reserved up to 145,000 shares of
Common Stock for sale at the initial public offering price to the Company's
employees and other persons having business relationships with the Company. The
number of shares of Common Stock available for sale to other members of the
public will be reduced to the extent that these persons purchase such reserved
shares. Any reserved shares not purchased will be offered by the Underwriters on
the same basis as the other shares offered hereby.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for the
Company by Piper & Marbury L.L.P., Washington, D.C. Certain legal matters in
connection with the Common Stock offered hereby will be passed upon for the
Underwriters by Cahill Gordon & Reindel, a partnership including a professional
corporation, New York, New York.
EXPERTS
The consolidated financial statements of Trusted Information Systems, Inc. at
December 30, 1994 and December 29, 1995, and for each of the three years in the
period ended December 29, 1995, appearing in this Prospectus and Registration
Statement have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon appearing elsewhere herein and in the Registration
Statement, and have been included herein in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission, Washington,
D.C. 20549, a Registration Statement on Form S-1 (the "Registration Statement")
under the Securities Act with respect to the shares of the Common Stock offered
by this Prospectus. This Prospectus does not contain all of the information set
forth in the Registration Statement and the exhibits and schedules to the
Registration Statement. For further information with respect to the Company and
the Common Stock, reference is made to the Registration Statement and the
exhibits and schedules filed as a part thereof. Statements made in this
Prospectus concerning the contents of any contract, agreement or any other
document referred to herein are not necessarily complete; reference is made in
each instance to the copy of such contract, agreement or other document filed as
an exhibit to the Registration Statement. Each such statement is qualified in
all respects by such reference to such exhibits. The Registration Statement,
including exhibits and schedules thereto, may be inspected without charge at the
Securities and Exchange Commission's principal office in Washington, D.C., and
copies of all or any part thereof may be obtained from such office after payment
of fees prescribed by the Securities and Exchange Commission. The Registration
Statement is also publicly available through the Securities and Exchange
Commission's World Wide Web site located at http://www.sec.gov.
56
<PAGE> 58
GLOSSARY OF TERMS
APPLICATION GATEWAY
FIREWALL................... A system that screens communications at a network
gateway according to a security policy by running a
separate software program and acts as a proxy for
each application protocol allowed through the
gateway.
AUTHENTICATION............. The process of determining the identity of a user
that is attempting to access a system.
CRYSTAL BOX................ The opposite of "black box." With a crystal box,
the source code and algorithms that implement
security are examinable. Phrase coined by Trusted
Information Systems, Inc., originally describing
the TIS Internet Firewall Toolkit.
ELECTRONIC MAIL OR
E-MAIL..................... An application that allows a user to send or
receive messages to or from any other user with an
Internet address, commonly termed an e-mail
address.
FILTERING GATEWAY
FIREWALL................... A system that screens communications at a network
gateway according to a security policy based on the
information contained in each packet. Filtering
gateway firewalls are also known as a packet
filters.
FIREWALL................... A system or combination of systems that enforces a
boundary between two or more networks.
GUI........................ Graphical User Interface. A method of interfacing
with a computer by manipulating graphical icons and
windows (usually by pointing and clicking a mouse)
rather than using text commands.
GLOBAL VIRTUAL PRIVATE
NETWORK (GVPN)........... A VPN that operates on a global basis through the
use of exportable encryption.
INTERNET................... An open global network of interconnected
commercial, educational, governmental and other
computer networks.
INTRANET................... An organization's private network which utilizes
Internet data formats and communications protocols
and which may use the Internet's facilities as the
backbone for network communications.
LOCAL AREA NETWORK (LAN)... A group of one or more computers connected together
within a localized environment for the purpose of
sharing data and network resources such as
printers, modems or fax servers.
LOGGING.................... The process of storing information about events
that occurred on the firewall or network.
MICROSOFT WINDOWS;
MICROSOFT WINDOWS NT..... Computer operating systems providing graphical user
interfaces and, in the case of Windows NT, which is
optimized for use as a network server.
OPERATING SYSTEM........... A master control program for a computer that
manages the computer's internal functions and
provides a means for control of the computer's
operation. An operating system provides commonly
used functions and a uniform, consistent means for
all software applications to access the same
machine resources.
PROTOCOL................... A formal description of message formats and the
rules two or more machines must follow in order to
exchange such messages.
57
<PAGE> 59
PROXY...................... A software agent that acts on behalf of a user.
Typical proxies accept a connection from a user,
make a decision as to whether or not the user or
client IP address is permitted to use the proxy,
may perform additional authentication and then
establishes a connection on behalf of the user to a
remote destination.
ROUTER..................... A device that receives and transmits data packets
between segments in a network or different
networks.
SERVER..................... Software that allows a computer to offer a service
to another computer. Other computers contact the
server program by means of matching client
software. In addition, such term means the computer
on which server software runs.
SHRINK-WRAP LICENSE........ A printed agreement included in product packaging
which typically provides that opening the package
indicates the users' acceptance of its terms and
conditions.
SYSTEM INTEGRATOR.......... An organization that specializes in delivering
solutions to end-user organizations by combining a
variety of software components and integrating them
into a complete end-user solution.
TRANSMISSION CONTROL
PROTOCOL/INTERNET
PROTOCOL (TCP/IP)........ A compilation of network- and transport-level
protocols that allows computers with different
architectures and operating system software to
communicate with other computers on the Internet.
VIRTUAL PRIVATE
NETWORK (VPN)............ An encrypted connection allowing privacy for all
network traffic between two gateways.
WIDE AREA NETWORK (WAN).... A communications network which connects
geographically dispersed users.
WORLD WIDE WEB............. A network of computer servers that uses a special
communications protocol to link different servers
throughout the Internet and permits communication
of graphics, video and sound.
58
<PAGE> 60
TRUSTED INFORMATION SYSTEMS, INC.
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Report of Independent Auditors........................................................ F-2
Consolidated Balance Sheets........................................................... F-3
Consolidated Statements of Operations................................................. F-4
Consolidated Statements of Shareholders' Equity....................................... F-5
Consolidated Statements of Cash Flows................................................. F-6
Notes to Consolidated Financial Statements............................................ F-7
</TABLE>
F-1
<PAGE> 61
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Shareholders
Trusted Information Systems, Inc.
We have audited the accompanying consolidated balance sheets of Trusted
Information Systems, Inc. as of December 30, 1994 and December 29, 1995, and the
related consolidated statements of operations, shareholders' equity and cash
flows for each of the three years in the period ended December 29, 1995. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of Trusted
Information Systems, Inc. at December 30, 1994 and December 29, 1995 and the
consolidated results of its operations and its cash flows for each of the three
years in the period ended December 29, 1995, in conformity with generally
accepted accounting principles.
ERNST & YOUNG LLP
Vienna, Virginia
April 29, 1996, except Note 10
as to which the date is
September 28, 1996
F-2
<PAGE> 62
TRUSTED INFORMATION SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
-----------------------------------------
DECEMBER DECEMBER
30, 29, JUNE 28,
1994 1995 1996
----------- ----------- -----------
(UNAUDITED)
<S> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents......................... $ 261,538 $ 53,859 $ 177,686
Marketable securities............................. -- -- 5,475,000
Accounts receivable, net of allowance of $24,000,
$44,000 and $79,000 for 1994, 1995 and 1996,
respectively................................... 2,157,343 4,304,536 4,252,357
Unbilled receivables.............................. 417,554 1,401,418 1,079,887
Prepaid expenses and other current assets......... 138,609 258,438 429,472
Deferred financing costs.......................... -- -- 465,628
Refundable income taxes........................... -- -- 907,299
Deferred income taxes............................. 290,004 426,390 --
----------- ----------- -----------
Total current assets................................ 3,265,048 6,444,641 12,787,329
Property and equipment, net......................... 1,880,281 3,715,090 6,096,827
Other assets........................................ 84,137 62,072 540,328
----------- ----------- -----------
Total assets........................................ $ 5,229,466 $10,221,803 $19,424,484
========== =========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable.................................. $ 470,438 $ 689,537 $ 899,302
Accrued payroll and related expenses.............. 1,051,968 1,384,738 2,485,881
Other accrued expenses............................ 856,089 1,342,421 1,469,767
Income taxes payable.............................. 398,720 122,174 --
Deferred income taxes............................. -- -- 1,762,788
Deferred revenue.................................. 12,286 1,011,992 918,705
Short-term borrowings............................. -- 1,523,000 3,679,500
Notes payable, current portion.................... 75,916 160,662 293,458
----------- ----------- -----------
Total current liabilities........................... 2,865,417 6,234,524 11,509,401
Notes payable, net of current portion............... 897,528 1,580,000 2,825,585
----------- ----------- -----------
Total liabilities................................... 3,762,945 7,814,524 14,334,986
Commitments
Shareholders' equity:
Preferred stock, $.01 par value; 5,000,000 shares
authorized; no shares issued or outstanding.... -- -- --
Common stock, $.01 par value; 40,000,000 shares
authorized; 7,516,079, 6,933,611 and 7,535,170
shares issued and outstanding at December 30,
1994, December 29, 1995 and June 28, 1996,
respectively................................... 75,161 69,336 75,352
Additional paid-in capital........................ 359,200 -- 1,404,802
Unrealized gains, net of income taxes of
$2,196,528..................................... -- -- 3,278,472
Foreign currency translation adjustment........... (6,103) (5,121) (9,506)
Retained earnings................................. 1,038,263 2,343,064 1,422,847
Deferred stock compensation....................... -- -- (1,082,469)
----------- ----------- -----------
Total shareholders' equity.......................... 1,466,521 2,407,279 5,089,498
----------- ----------- -----------
Total liabilities and shareholders' equity.......... $ 5,229,466 $10,221,803 $19,424,484
========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-3
<PAGE> 63
TRUSTED INFORMATION SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
-------------------------------------------------------------------------
YEAR ENDED SIX MONTHS ENDED
DECEMBER 31, DECEMBER 30, DECEMBER 29, JUNE 30, JUNE 28,
1993 1994 1995 1995 1996
------------ ------------ ------------ ---------- -----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Revenues:
Government contracts........ $8,343,424 $ 11,258,016 $ 12,327,502 $6,041,797 $ 5,351,676
Commercial products......... -- 1,003,498 4,270,924 1,411,711 3,732,042
Commercial consulting
services.................. 448,054 855,638 1,491,661 835,004 533,977
---------- ----------- ----------- ---------- ----------
8,791,478 13,117,152 18,090,087 8,288,512 9,617,695
Cost of revenues:
Government contracts........ 5,512,498 7,376,932 8,844,719 4,520,750 3,864,383
Commercial products......... -- 332,504 1,142,282 409,489 1,197,877
Commercial consulting
services.................. 307,238 493,221 877,946 427,099 329,650
---------- ----------- ----------- ---------- ----------
5,819,736 8,202,657 10,864,947 5,357,338 5,391,910
---------- ----------- ----------- ---------- ----------
Gross profit.................. 2,971,742 4,914,495 7,225,140 2,931,174 4,225,785
Operating expenses:
Selling, general and
administrative............ 2,198,011 2,997,806 3,727,701 1,567,578 4,677,648
Research and development.... 582,075 646,001 1,144,737 576,078 1,006,752
---------- ----------- ----------- ---------- ----------
2,780,086 3,643,807 4,872,438 2,143,656 5,684,400
---------- ----------- ----------- ---------- ----------
Income (loss) from
operations.................. 191,656 1,270,688 2,352,702 787,518 (1,458,615)
Other income (expense):
Interest income............. 7,517 44,635 50,276 12,240 13,715
Interest expense............ (127,711) (134,236) (158,778) (65,873) (162,910)
---------- ----------- ----------- ---------- ----------
(120,194) (89,601) (108,502) (53,633) (149,195)
---------- ----------- ----------- ---------- ----------
Income (loss) before income
taxes....................... 71,462 1,181,087 2,244,200 733,885 (1,607,810)
Income tax provision
(benefit)................... 36,794 505,646 900,137 262,459 (687,593)
---------- ----------- ----------- ---------- ----------
Net income (loss)............. $ 34,668 $ 675,441 $ 1,344,063 $ 471,426 $ (920,217)
========== =========== =========== ========== ==========
Net income (loss) per share... $ -- $ .08 $ .15 $ .05 $ (.11)
========== =========== =========== ========== ==========
Weighted average shares
outstanding................. 8,368,765 8,525,910 8,884,755 8,750,096 8,110,496
========== =========== =========== ========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-4
<PAGE> 64
TRUSTED INFORMATION SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------
COMMON STOCK FOREIGN
------------------- ADDITIONAL CURRENCY DEFERRED
NUMBER PAID-IN UNREALIZED TRANSLATION RETAINED STOCK
OF SHARES AMOUNT CAPITAL GAINS ADJUSTMENT EARNINGS COMPENSATION TOTAL
---------- ------- ---------- ---------- ----------- ---------- ------------ ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at January 1,
1993...................... 7,501,871 $75,019 $ 351,822 $ -- $ -- $ 328,154 $ -- $ 754,995
Net income for 1993......... -- -- -- -- -- 34,668 -- 34,668
Exercise of stock options... 2,405 24 1,116 -- -- -- -- 1,140
Translation adjustment...... -- -- -- -- 1,702 -- -- 1,702
---------- ------- ---------- ---------- ----------- ---------- ------------ ----------
Balance at December 31,
1993...................... 7,504,276 75,043 352,938 -- 1,702 362,822 -- 792,505
Net income for 1994......... -- -- -- -- -- 675,441 -- 675,441
Exercise of stock options... 11,803 118 6,262 -- -- -- -- 6,380
Translation adjustment...... -- -- -- -- (7,805) -- -- (7,805)
---------- ------- ---------- ---------- ----------- ---------- ------------ ----------
Balance at December 30,
1994...................... 7,516,079 75,161 359,200 -- (6,103) 1,038,263 -- 1,466,521
Net income for 1995......... -- -- -- -- -- 1,344,063 -- 1,344,063
Exercise of stock options... 6,453 64 3,169 -- -- -- -- 3,233
Repurchase of common
stock..................... (588,921) (5,889) (362,369) -- -- (39,262) -- (407,520)
Translation adjustment...... -- -- -- -- 982 -- -- 982
---------- ------- ---------- ---------- ----------- ---------- ------------ ----------
Balance at December 29,
1995...................... 6,933,611 69,336 -- -- (5,121) 2,343,064 -- 2,407,279
Net loss for the six months
ended June 28, 1996....... -- -- -- -- -- (920,217) -- (920,217)
Exercise of stock options... 601,559 6,016 299,302 -- -- -- -- 305,318
Change in unrealized gain on
available-for-sale
securities, net of tax.... -- -- -- 3,278,472 -- -- -- 3,278,472
Deferred stock
compensation.............. -- -- 1,105,500 -- -- -- (1,105,500) --
Amortization of deferred
stock compensation........ -- -- -- -- -- -- 23,031 23,031
Translation adjustment...... -- -- -- -- (4,385) -- -- (4,385)
---------- ------- ---------- ---------- ----------- ---------- ------------ ----------
Balance at June 28, 1996
(unaudited)............... 7,535,170 $75,352 $1,404,802 $3,278,472 ($9,506) $1,422,847 ($1,082,469) $5,089,498
========= ======= ========== ========== ========== ========== ============ ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-5
<PAGE> 65
TRUSTED INFORMATION SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
---------------------------------------------------------------------------
YEAR ENDED SIX MONTHS ENDED
DECEMBER 31, DECEMBER 30, DECEMBER 29, JUNE 30, JUNE 28,
1993 1994 1995 1995 1996
------------ ------------ ------------ ----------- -----------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES
Net income (loss).................. $ 34,668 $ 675,441 $ 1,344,063 $ 471,426 $(920,217)
Adjustments:
Depreciation..................... 152,974 191,615 261,020 121,297 162,718
Deferred income taxes............ (63,287) (102,456) (136,386) (41,746) 3,530
Amortization of deferred stock
compensation................... -- -- -- -- 23,031
Changes in operating assets and
liabilities:
Accounts receivable and
unbilled receivables......... (431,462) (383,461) (3,131,057) (1,107,918) 373,710
Prepaid expenses and other
current assets............... (33,518) (53,857) (119,829) (12,287) (636,662)
Other assets................... 15,011 (52,218) 22,065 55,054 (478,256)
Accounts payable............... 145,489 172,593 219,099 23,640 209,765
Accrued payroll and related
expenses..................... 198,733 272,096 332,770 707,094 1,101,143
Other accrued expenses......... 332,664 185,500 486,332 (51,891) 127,346
Income taxes
payable/refundable........... (18,710) 378,835 (276,546) (401,831) (1,029,473)
Deferred revenue............... (57) (4,583) 999,706 90,979 (93,287)
------------ ------------ ------------ ----------- -----------
Net cash provided by (used in)
operating activities............. 332,505 1,279,505 1,237 (146,183) (1,156,652)
INVESTING ACTIVITIES
Purchases of property and
equipment........................ (191,881) (192,165) (2,095,829) (333,991) (2,544,455)
Purchase of marketable
securities....................... -- -- -- -- (10,880)
------------ ------------ ------------ ----------- -----------
Net cash used in investing
activities....................... (191,881) (192,165) (2,095,829) (333,991) (2,555,335)
FINANCING ACTIVITIES
Proceeds from exercise of stock
options.......................... 1,140 6,380 3,233 -- 305,318
Repurchase of common stock......... -- -- (407,520) -- --
Net borrowings (repayments) of
short-term borrowings............ 40,000 (390,000) 1,523,000 513,000 2,156,500
Proceeds from issuance of notes
payable.......................... 10,000 -- 1,036,299 100,000 1,447,467
Repayments of notes payable........ (185,664) (471,269) (269,081) (44,026) (69,086)
------------ ------------ ------------ ----------- -----------
Net cash (used in) provided by
financing activities............. (134,524) (854,889) 1,885,931 568,974 3,840,199
------------ ------------ ------------ ----------- -----------
Effect of exchange rate changes on
cash............................. 1,702 (7,805) 982 (2,735) (4,385)
------------ ------------ ------------ ----------- -----------
Net change in cash and cash
equivalents...................... 7,802 224,646 (207,679) 86,065 123,827
Cash and cash equivalents at
beginning
of period........................ 29,090 36,892 261,538 261,538 53,859
------------ ------------ ------------ ----------- -----------
Cash and cash equivalents at end of
period........................... $ 36,892 $ 261,538 $ 53,859 $ 347,603 $ 177,686
============= ============= ============= =========== ===========
SUPPLEMENTAL DISCLOSURES OF CASH
FLOW INFORMATION
Interest paid during the period.... $ 120,083 $ 129,119 $ 162,724 $ 63,912 $ 161,031
============= ============= ============= =========== ===========
Income taxes paid during the
period........................... $ 55,504 $ 126,811 $ 1,176,683 $ 673,886 $ 325,537
============= ============= ============= =========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-6
<PAGE> 66
TRUSTED INFORMATION SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
1. BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION OF FINANCIAL STATEMENTS
Description of Business
Trusted Information Systems, Inc. (the Company) provides comprehensive security
solutions for the protection of computer networks, including global
Internet-based systems, internal networks and individual workstations and
laptops and is a leading provider of firewall products. The Company sells to a
broad range of companies located throughout North America and Europe, as well as
various government agencies.
Fiscal Periods
The Company's fiscal year is based on a 52-53 week year ending on the last
Friday in December. The year ended December 31, 1993 was a 53 week year and the
years ended December 30, 1994 and December 29, 1995 were 52 week years. The
Company's fiscal quarter consists of a 13 week period.
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of the
Company and its wholly-owned subsidiary, Trusted Information Systems (U.K.)
Limited ("TIS UK"). The subsidiary was established in 1992 to conduct the
Company's activities in the United Kingdom. All material intercompany accounts
and transactions have been eliminated upon consolidation. Revenues from TIS UK
were insignificant prior to 1996. In the six months ended June 28, 1996,
revenues from TIS UK amounted to 4.6% of total revenues.
Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the amounts reported in the financial statements and accompanying notes.
Actual results could differ from those estimates.
Other Information Regarding Basis of Presentation
The Company performs periodic credit evaluations of the financial condition of
its customers and typically does not require collateral from its customers.
Amounts receivable, directly and indirectly, from government agencies
approximated 67%, 54% and 53% of total accounts receivable at December 30, 1994,
December 29, 1995 and June 28, 1996, respectively. Sales to these agencies
accounted for approximately 95%, 86%, 68%, 73% and 56% of total revenues for the
years ended December 31, 1993, December 30, 1994 and December 29, 1995 and for
the six months ended June 30, 1995 and June 28, 1996, respectively.
Export sales, primarily to Europe, were 4.8% of total revenues for the year
ended December 29, 1995 and 3.9% of total revenues for the six months ended June
28, 1996. Export sales were insignificant in all other periods.
SIGNIFICANT ACCOUNTING POLICIES
Cash and Cash Equivalents
The Company considers all highly liquid investments with a maturity of three
months or less when purchased to be cash equivalents.
F-7
<PAGE> 67
TRUSTED INFORMATION SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
1. BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Marketable Securities
Marketable securities are classified as available-for-sale and are carried at
fair market value with unrealized gains and losses, net of taxes, reported in a
separate component of shareholders' equity. Realized gains and losses and
declines in value judged to be other-than-temporary are included in investment
income. Interest and dividends are included in investment income. At June 28,
1996, marketable securities consisted of 100,000 shares of common stock of
Cybercash, Inc., which the Company purchased in connection with the formation of
such company, with a cost basis of approximately $10,000 and an unrealized gain
and estimated fair value of approximately $5.5 million. The Company may sell
such shares subject to the limitations of Rule 144 under the Securities Act of
1933.
Property and Equipment
Property and equipment is stated at cost and depreciated on accelerated methods
based on estimated useful lives of 31 years for buildings and improvements and
5-7 years for furniture and equipment. Leasehold improvements are amortized over
the lesser of the estimated useful life of the asset or the lease term.
In 1995, the Company adopted the provisions of Financial Accounting Standards
Board Statement No. 121, Accounting for the Impairment of Long-Lived Assets and
for Long-Lived Assets and for Long-Lived Assets to Be Disposed Of. The adoption
of this Statement did not have a material impact on the reported results of
operations of the Company.
Deferred Financing Costs
Deferred financing costs at June 28, 1996 consist of direct costs related to the
initial filing of a registration statement for the sale of common stock with the
Securities and Exchange Commission.
Stock Options Granted to Employees
The Company records compensation expense for all stock-based compensation plans
using the intrinsic value method prescribed by APB Opinion No. 25, Accounting
for Stock Issued to Employees. In October 1995, the Financial Accounting
Standards Board issued Statement No. 123, Accounting for Stock-Based
Compensation, which encourages companies to recognize expense for stock-based
awards based on their estimated fair value on the date of grant. Statement No.
123, effective for 1996, does not require companies to change their existing
accounting for stock-based awards, but if the new fair value method is not
adopted, pro forma income and earnings per share data should be provided in the
footnotes to the financial statements. The Company intends to continue to
account for stock-based compensation plans using the intrinsic value method, and
will supplementally disclose in its 1996 annual financial statements the
required pro forma information as if the fair value method had been adopted.
Revenue Recognition
Government Contracts -- The Company enters into research and development
contracts with government agencies under various pricing arrangements. Revenue
from "cost-plus-fixed-fee" contracts is recognized on the basis of reimbursable
contract costs incurred during the period, plus a percentage of the fixed fee.
Revenue from "time and material" contracts is recognized on the basis of hours
utilized, plus other reimbursable contract costs incurred during the period.
Revenue from "firm-fixed-price" contracts is recognized on the percentage of
completion method. Under this method, individual contract revenues are recorded
based on the percentage relationship that contract
F-8
<PAGE> 68
TRUSTED INFORMATION SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
1. BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
costs incurred bear to management's estimate of total contract costs. Losses, if
any, are accrued when their occurrence becomes known and the amount of the loss
is reasonably determined.
Under its government contracts, the Company is subject to audit by the Defense
Contract Audit Agency which could result in the renegotiation of amounts
previously billed. Management believes that the results of such audits will not
have a material adverse effect on the Company's financial position or results of
operations.
Revenues recognized in excess of amounts billed to government agencies and
retainage related to long-term contracts have been recorded as unbilled
receivables in the accompanying balance sheets.
Commercial Products and Services -- Revenues from the sale of goods, including
software products, are recognized upon shipment, when collection of the
receivable is probable and the Company has no significant remaining obligations.
In instances where the Company directly installs its products, revenues are
recognized upon completion of installation. Commercial consulting services are
provided on a time and materials basis. The Company accounts for obligations
under customer support and maintenance agreements by deferring a pro rata
portion of revenue and recognizing it either ratably as the obligations are
fulfilled or upon completion of performance.
Research and Development
Research and development expenditures are charged to operations as incurred.
Statement of Financial Accounting Standard No. 86, Accounting for the Costs of
Computer Software to be Sold, Leased or Otherwise Marketed, requires
capitalization of certain software development costs subsequent to the
establishment of technological feasibility. Based on the Company's product
development process, technological feasibility is established upon completion of
a working model. Costs incurred by the Company between completion of the working
model and the point at which the product is ready for general release have been
insignificant. The distribution of products incorporating encryption technology
may be subject to U.S. government export restrictions.
Advertising Costs
All advertising costs are expensed when incurred. Costs which are included in
expense for the years ended December 31, 1993, December 30, 1994 and December
29, 1995 and the six months ended June 30, 1995 and June 28, 1996 approximated
$14,700, $11,800, $28,700, $19,500 and $37,600, respectively.
Earnings Per Share
The Company's net income per share calculations are based upon the weighted
average number of shares of common stock outstanding during each period,
adjusted for the dilutive effect of common stock equivalents.
Pursuant to the requirements of the Securities and Exchange Commission, common
stock and options to purchase common stock issued at prices below the initial
public offering price during the twelve months immediately preceding the
contemplated initial filing of the registration statement relating to the
initial public offering (IPO), have been included in the computation of net
income per share as if they were outstanding for all periods presented (using
the treasury method and assuming repurchase of common stock at the estimated IPO
price with the proceeds of assumed exercise of the options), even if
antidilutive.
F-9
<PAGE> 69
TRUSTED INFORMATION SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
1. BASIS OF PRESENTATION AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Unaudited Interim Statements
The consolidated financial statements for the six months ended June 30, 1995 and
June 28, 1996 have been prepared by the Company pursuant to the rules and
regulations of the Securities and Exchange Commission. These statements are
unaudited but, in the opinion of management, include all adjustments (consisting
only of normal recurring adjustments and accruals) necessary for a fair
presentation of the financial information set forth herein. The operating
results for the six months ended June 28, 1996 are not necessarily indicative of
the results that may be expected for the year ending December 27, 1996.
2. PROPERTY AND EQUIPMENT
Property and equipment consists of:
<TABLE>
<CAPTION>
-------------------------------------------
DECEMBER 30, DECEMBER 29, JUNE 28,
1994 1995 1996
------------ ------------ -----------
<S> <C> <C> <C>
Land.................................................. $ 123,681 $ 232,926 $ 322,926
Buildings and building improvements................... 1,762,738 1,762,738 4,529,100
Furniture and equipment............................... 1,029,794 1,656,097 2,605,791
Leasehold improvements................................ 20,688 45,211 119,368
Construction-in-progress.............................. -- 1,335,758 --
------------ ------------ -----------
2,936,901 5,032,730 7,577,185
Less: accumulated depreciation and amortization....... (1,056,620) (1,317,640) (1,480,358)
------------ ------------ -----------
$ 1,880,281 $ 3,715,090 $ 6,096,827
=========== =========== ==========
</TABLE>
3. SHORT-TERM BORROWINGS
At December 30, 1994 and December 29, 1995, the Company had various short-term
line of credit arrangements with a bank which allowed for aggregate borrowings
of $1 million and $2 million, respectively. Borrowings under these arrangements
are due upon demand and bear interest at the bank's prime rate plus 1% per annum
(weighted average rate of 9.5% during 1994 and 1995). At June 28, 1996, these
short-term line of credit arrangements allowed aggregate borrowings of $5.0
million. The weighted average borrowing rate at June 28, 1996 was 9.25%.
F-10
<PAGE> 70
TRUSTED INFORMATION SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
4. NOTES PAYABLE
Notes payable to banks and others consist of the following:
<TABLE>
<CAPTION>
----------------------------------------
DECEMBER DECEMBER
30, 29, JUNE 28,
1994 1995 1996
----------- ----------- ----------
<S> <C> <C> <C>
Small Business Administration mortgage note due in
monthly principal and interest (10.1% per annum)
installments of approximately $5,000.................. $ 435,345 $ 420,962 $ 413,208
Notes payable to a bank:
Construction note; maximum aggregate borrowings of
$1.8 million; principal due in monthly installments
of $10,000 beginning September 1996; callable by
the bank in August 2001 or August 2006; balance due
September 2011; personally guaranteed by a
shareholder/officer................................ -- 684,170 1,746,358
Mortgage note; principal due in monthly installments
of $5,128; balance due September 2003.............. 538,099 481,694 447,527
Mortgage note; principal due in monthly installments
of $1,722; balance due December 2008............... -- -- 258,333
Furniture and equipment notes; principal due in
monthly installments of $3,583 in 1995 and $5,667
in 1996 and thereafter; maturing on various dates
through 2000....................................... -- 153,836 253,617
----------- ----------- ----------
973,444 1,740,662 3,119,043
Less current portion.................................... 75,916 160,662 293,458
----------- ----------- ----------
$ 897,528 $1,580,000 $2,825,585
========== ========== =========
</TABLE>
All of the notes payable to a bank described above and the short-term line of
credit arrangements discussed in Note 3 are payable to the same bank, bear
interest at the bank's prime rate plus 1% per annum (9.5% at December 30, 1994
and December 29, 1995 and 9.25% at June 28, 1996), are secured by essentially
all of the Company's assets and contain cross default provisions.
Under the terms of the agreements in connection with the Construction note, the
Company is subject to certain restrictions which include, among other things,
restrictions on: (i) incurrence of additional indebtedness, (ii) distributions
of dividends and capital and (iii) selling or encumbering property and
equipment.
Other than amounts due under the Small Business Administration note, the Company
believes that the carrying amount reported in the balance sheet of its other
financial assets and liabilities approximates their fair value. The fair value
of the Small Business Administration note at December 29, 1995 is estimated,
using discounted cash flow analyses, to be approximately $480,000.
F-11
<PAGE> 71
TRUSTED INFORMATION SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
4. NOTES PAYABLE (CONTINUED)
Aggregate maturities of all notes payable at December 29, 1995 are as follows:
<TABLE>
<S> <C>
1996.......................................... $ 160,662
1997.......................................... 242,128
1998.......................................... 243,996
1999.......................................... 227,916
2000.......................................... 205,353
Thereafter.................................... 660,607
----------
Total......................................... $1,740,662
=========
</TABLE>
5. STOCK OPTIONS
The Company has adopted the Amended and Restated Employee Stock Option Plan
(Employee Option Plan) and the 1996 Stock Option Plan (1996 Option Plan) which
provide for the grant of incentive stock options and non-statutory stock options
to executives, employees and consultants. The Employee Option Plan and 1996
Option Plan authorize the issuance of options to acquire 6,134,593 and
1,625,667, respectively, shares of common stock.
The vesting period and the exercise price of each option shall be determined by
the respective plan administration committee. However, for incentive stock
options, the exercise price shall not be less than the fair market value of the
common stock on the date of the grant. No future options will be issued under
the Employee Option Plan.
The option activity under the plans is as follows:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING PRICE PER
UNDER THE STOCK PLANS SHARE
--------------------- ---------
<S> <C> <C>
Balance at December 31, 1993................................... 907,920 $ .50
Options granted.............................................. 1,091,958 .50-.69
Options exercised............................................ (11,803) .50
Options canceled............................................. (870,033) .50-.69
---------------- ---------
Balance at December 30, 1994................................... 1,118,042 .50-.69
Options granted.............................................. -- --
Options exercised............................................ (6,453) .50-.69
Options canceled............................................. (122,693) .50-.69
---------------- ---------
Balance at December 29, 1995................................... 988,896 .50-.69
Options granted.............................................. 1,028,158 2.66
Options exercised............................................ (601,559) .50-.69
Options canceled............................................. (236,647) .50-.69
---------------- ---------
Balance at June 28, 1996....................................... 1,178,848 $.69-2.66
================ ========
</TABLE>
The Company recorded deferred compensation of $1,105,500 as a separate component
of shareholders' equity, related to the issuance in June 1996 of options for
92,019 shares of the Company's common stock. This deferred compensation will be
amortized evenly over the four-year vesting period of the options. At June 28,
1996, none of these options were exercisable.
F-12
<PAGE> 72
TRUSTED INFORMATION SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
5. STOCK OPTIONS (CONTINUED)
The Company has also adopted the 1996 Directors' Stock Option Plan (Director
Plan) which provides for the grant of non-statutory stock options to
non-employee directors of the Company. The Director Plan authorizes the issuance
of options to acquire 200,000 shares of common stock. Options to purchase 6,135
shares of common stock will be granted to each director upon initial election to
the board of directors after the date of the Company's initial public offering.
The options vest ratably over three years. Additionally, commencing in 1997,
each director will annually be granted options to purchase 1,227 shares of
common stock. Such annual options will vest in full at the earlier of (i) the
first anniversary of the date of the grant or (ii) the date of the next annual
meeting of stockholders. The exercise price of options granted under the
Director Plan will equal the closing price per share of the common stock on the
date of grant. As of June 28, 1996, no options were granted under the Director
Plan.
Upon a change in control of the Company, as defined by the plans, 50% of any
outstanding unvested options under the 1996 Option Plan or the Director Plan
prior to the date of such change in control shall vest and be immediately
exercisable.
6. INCOME TAXES
Significant components of the Company's deferred tax assets and liabilities are
as follows:
<TABLE>
<CAPTION>
-----------------------------------------
DECEMBER DECEMBER
30, 29, JUNE 28,
1994 1995 1996
----------- ----------- -----------
<S> <C> <C> <C>
Deferred tax assets:
Allowance for doubtful accounts........................ $ 9,624 $ 16,905 $ 28,512
Other accrued expenses................................. 280,181 343,877 345,798
Accrued vacation....................................... 131,907 172,231 165,215
Other.................................................. 7,757 -- --
----------- ----------- -----------
Total deferred tax assets.............................. 429,469 533,013 539,525
Deferred tax liabilities:
Unbilled receivables................................... 132,298 86,257 75,339
Property and equipment................................. 7,167 6,929 6,929
Unrealized gain on marketable securities............... -- -- 2,196,528
Other.................................................. -- 13,437 23,517
----------- ----------- -----------
Total deferred tax liabilities......................... 139,465 106,623 2,302,313
----------- ----------- -----------
Net deferred tax asset (liability)..................... $ 290,004 $ 426,390 ($1,762,788)
========== ========== ==========
</TABLE>
At December 30, 1994, December 29, 1995 and June 28, 1996 no valuation allowance
was required for the deferred tax assets.
F-13
<PAGE> 73
TRUSTED INFORMATION SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
6. INCOME TAXES (CONTINUED)
The provision (benefit) for income taxes consists of the following:
<TABLE>
<CAPTION>
---------------------------------------------------------------------
YEAR ENDED SIX MONTHS ENDED
DECEMBER 31, DECEMBER 30, DECEMBER 29, JUNE 30, JUNE 28,
1993 1994 1995 1995 1996
------------ ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C>
Current:
Federal........................ $ 81,924 $ 475,575 $ 855,775 $267,674 ($480,315)
State.......................... 18,158 132,526 180,748 56,535 (101,447)
------------ ------------ ------------ -------- ---------
100,082 608,101 1,036,523 324,209 (581,762)
Deferred:
Federal........................ (49,434) (80,026) (125,518) (48,900) (87,376)
State.......................... (13,854) (22,429) (10,868) (12,850) (18,455)
------------ ------------ ------------ -------- ---------
(63,288) (102,455) (136,386) (61,750) (105,831)
------------ ------------ ------------ -------- ---------
Total income tax provision
(benefit)...................... $ 36,794 $ 505,646 $ 900,137 $262,459 ($687,593)
=========== =========== =========== ======== ========
</TABLE>
The Company's provision for income taxes resulted in effective tax rates that
varied from the statutory federal income tax rate as follows:
<TABLE>
<CAPTION>
---------------------------------------------------------------------
YEAR ENDED SIX MONTHS ENDED
DECEMBER 31, DECEMBER 30, DECEMBER 29, JUNE 30, JUNE 29,
1993 1994 1995 1995 1996
------------ ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C>
Expected federal income tax
provision at 34%............... $ 24,297 $401,570 $763,028 $249,520 ($546,655)
Expenses not deductible for tax
purposes....................... 11,193 14,748 13,336 5,950 10,683
State income taxes, net of
federal benefit................ 2,840 72,664 112,121 28,832 (79,135)
Surtax exemption................. (4,100) -- -- -- --
Other............................ 2,564 16,664 11,652 (21,843) (72,486)
------------ ------------ ------------ -------- ---------
$ 36,794 $505,646 $900,137 $262,459 ($687,593)
=========== =========== =========== ======== ========
</TABLE>
7. PROFIT SHARING PLAN
The Company has a 401(k) profit sharing plan covering all permanent employees
who work at least 20 hours per week. Participants may make voluntary
contributions to the plan and the Company matches these contributions, up to 5%
of the employee's salary. In addition, the Company may make a discretionary
contribution based on each eligible participant's compensation. Participants
contributions vest immediately and Company contributions vest over a six-year
period. Contributions to the plan charged to operations for the years ended
December 31, 1993, December 30, 1994 and December 29, 1995 and the six months
ended June 30, 1995 and June 28, 1996 totaled $363,570, $410,629, $532,170,
$271,048 and $377,364, respectively.
F-14
<PAGE> 74
TRUSTED INFORMATION SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
8. COMMITMENTS
The Company has embarked upon a significant renovation and expansion program to
its corporate headquarters building. This program is expected to cost
approximately $2.2 million and will be financed primarily with the proceeds of
the construction note (see Note 4.) As of June 1996, all costs associated with
the renovation and expansion program had been incurred.
The Company leases certain office space in California, Maryland and Virginia
under non-cancelable operating lease agreements. Certain leases contain
escalation clauses and require the Company to pay its share of any increases in
operating expenses and real estate taxes. Rent expense was $175,491, $220,615,
$281,381, $128,373 and $237,437 for the years ended December 31, 1993, December
30, 1994 and December 29, 1995 and the six months ended June 30, 1995 and June
29, 1996, respectively. Future minimum lease payments under all non-cancelable
operating lease arrangements are as follows:
<TABLE>
<S> <C>
Six months ending December 27, 1996..................... $ 185,065
1997.................................................... 295,292
1998.................................................... 252,905
1999.................................................... 207,383
2000.................................................... 126,668
Thereafter.............................................. 64,704
----------
Total................................................... $1,132,017
=========
</TABLE>
The Company maintains a self-insurance program for health care and short-term
disability costs with stop-loss insurance. Expense incurred for group medical
claims, program premiums and stop-loss limit charged to operations for the years
ended December 31, 1993, December 30, 1994 and December 29, 1995 and the six
months ended June 30, 1995 and June 28, 1996 totaled $341,749, $497,090,
$621,378, $332,209 and $421,675, respectively.
9. RELATED PARTY TRANSACTIONS
In 1994, the Company entered into an oral agreement to lease real property
located adjacent to the Company's Glenwood, Maryland headquarters from Glenwood
Associates Limited Partnership (Glenwood Associates), a limited partnership
controlled by certain shareholders of the Company. The lease provides for
monthly rent of $3,929 plus payment of operating expenses. Rent expense under
the lease agreement for the years ended December 30, 1994 and December 29, 1995
and the six months ended June 30, 1995 and June 28, 1996 was approximately
$44,000, $47,000, $24,000 and $24,000, respectively. The Company purchased the
aforementioned property from Glenwood Associates on June 28, 1996 for $360,000.
The purchase of the property was financed primarily by the assumption of a
mortgage note payable (see Note 4) and the elimination of a receivable.
In August 1995, the Company issued a promissory note for the benefit of a
shareholder and former officer (Mr. Crocker) in the principal amount of $307,520
representing the balance of monies due to Mr. Crocker in connection with the
repurchase by the Company of 588,921 shares of common stock from Mr. Crocker.
This promissory note was paid in full in September 1995.
10. SUBSEQUENT EVENTS
Effective May 31, 1996, the Company consummated a tax-free reorganization for
the purposes of becoming a Delaware corporation by issuing 40 shares of a new
class of $.01 par value common stock in exchange for each share of the then
outstanding no par value Class A (voting) and Class B (non-voting) common stock.
The effect of this reorganization is reflected as if it had occurred at the
beginning of the earliest period presented.
F-15
<PAGE> 75
TRUSTED INFORMATION SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(INFORMATION AS OF JUNE 28, 1996 AND FOR THE SIX MONTHS ENDED
JUNE 30, 1995 AND JUNE 28, 1996 IS UNAUDITED)
10. SUBSEQUENT EVENTS (CONTINUED)
During July 1996, the Company entered into various agreements with the bank
which increased the aggregate available borrowings under its non-mortgage credit
arrangements to $7.0 million. Additionally, on August 27, 1996, the Company
entered into a new $2.0 million credit facility with the bank. Borrowings under
this new facility bear interest at the prime rate plus 3% and are due upon the
earlier of a successful initial public offering of the Company's common stock or
December 31, 1996.
In August 1996, the Company granted options for the purchase of 141,096 shares
of common stock to new employees pursuant to the 1996 Option Plan. Additionally,
in August 1996, the Company granted options pursuant to the Director Plan for
the purchase of 18,404 shares of common stock. These options have an exercise
price of $7.04 per share.
As of August 28, 1996, the fair value of the Company's shares of Cybercash, Inc.
common stock is estimated to be approximately $2.9 million.
On August 30, 1996, the Board of Directors approved a 1-for-1.6301 reverse stock
split of the Company's common stock, which with stockholder approval became
effective on September 28, 1996. All references in the accompanying financial
statements to the number of shares of common stock and per share amounts have
been restated to reflect the reverse stock split.
F-16
<PAGE> 76
TRUSTED INFORMATION SYSTEMS, INC.
"Building A World of Trust"
[tis LOGO]
<PAGE> 77
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
sale and distribution of the securities offered hereby, other than underwriting
discounts and commissions. All of the amounts shown are estimated except the
Securities and Exchange Commission registration fee, the NASD filing fee and the
NASDAQ listing fee.
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee..................... $ 15,863
National Association of Securities Dealers, Inc. filing fee....... 5,100
NASDAQ listing fee................................................ 43,606
Transfer agent's and registrar's fees............................. 3,500
Printing expenses................................................. 285,000
Legal fees and expenses........................................... 250,000
Accounting fees and expenses...................................... 250,000
Blue Sky filing fees and expenses................................. 35,000
Miscellaneous expenses............................................ 36,931
--------
Total........................................................ $925,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law ("Section 145") permits
indemnification of directors, officers, agents and controlling persons of a
corporation under certain conditions and subject to certain limitations. The
Company's Certificate of Incorporation and Bylaws include provisions to require
the Company to indemnify its directors and officers to the fullest extent
permitted by Section 145, including circumstances in which indemnification is
otherwise discretionary. Section 145 also empowers the Company 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.
At present, there is no pending litigation or proceeding involving a
director or officer of the Company as to which indemnification is being sought
nor is the Company aware of any threatened litigation that may result in claims
for indemnification by any officer or director.
The Underwriting Agreement filed as Exhibit 1 to this Registration
Statement provides for indemnification by the Underwriters of the Company and
its directors and certain officers, and by the Company of the Underwriters, for
certain liabilities arising under the Securities Act of 1933, as amended (the
"Act"), or otherwise.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the past three years, the Company has issued unregistered securities
in the transactions described below. Securities issued in such transactions were
offered and sold in reliance upon the exemption from registration under Section
4(2) of the Act, relating to sales by an issuer not involving any public
offering, or under Rule 701 under the Act. The sales of securities were made
without the use of an underwriter and the certificates evidencing the shares
bear a restrictive legend permitting the transfer thereof only upon registration
of the shares or an exemption under the Act.
(1) From January 1, 1993 through September 15, 1996, the Company issued an
aggregate of 629,582 shares of Common Stock to various employees for aggregate
consideration of $319,752 upon exercise of options granted pursuant to the
Company's Amended and Restated Employee Stock Option Plan.
(2) From January 1, 1993 through September 15, 1996, the Company granted to
various employees stock options under the Company's Amended and Restated
Employee Stock Option Plan, Amended and Restated 1996 Stock Option Plan and
Amended and Restated Directors' Stock Option Plan for an aggregate of 3,187,536
shares
II-1
<PAGE> 78
of Common Stock exercisable at prices ranging from $.50 to $7.04 per share, of
which options for 629,582 shares have been exercised and options for 1,314,355
shares are outstanding.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT NO.
- -----------
<C> <C> <S>
1.1* -- Form of Underwriting Agreement.
3.1* -- Certificate of Incorporation of the Company.
3.1.1+ -- Certificate of Amendment to Certificate of Incorporation, as filed with
the Delaware Secretary of State on October 2, 1996.
3.2+ -- Amended and Restated Bylaws of the Company.
4.1+ -- Specimen stock certificate for shares of Common Stock of the Company.
5.1** -- Opinion of Piper & Marbury L.L.P. regarding legality of securities
being registered.
10.1* -- Amended and Restated Employee Stock Option Plan.
10.2+ -- Amended and Restated 1996 Stock Option Plan.
10.2.1* -- Form of Incentive Stock Option Agreement pursuant to 1996 Stock Option
Plan.
10.2.2* -- Form of Non-Qualified Stock Option Agreement pursuant to 1996 Stock
Option Plan.
10.3+ -- Amended and Restated 1996 Directors' Stock Option Plan.
10.4* -- Form of Employee Agreement Regarding Confidentiality and Inventions.
10.5* -- Form of Software License and Reseller Agreement.
10.6* -- Form of Consulting Services Agreement.
10.7+ -- Form of Indemnification Agreement by and between the Company and its
directors and officers.
10.8* -- Construction Loan Agreement dated July 26, 1995, by and between the
Company and Mercantile-Safe Deposit and Trust Company.
10.9* -- Construction Loan Promissory Note dated July 26, 1995, by and between
the Company and Mercantile-Safe Deposit and Trust Company.
10.10* -- Deed of Trust and Security Agreement dated July 26, 1995, by and
between the Company and Mercantile-Safe Deposit and Trust Company.
10.11* -- Security Agreement, dated July 26, 1995, by and among the Company,
Mercantile-Safe Deposit and Trust Company and Stephen T. Walker.
10.12* -- Personal Guaranty Agreement dated July 26, 1995, by and between Stephen
T. Walker and Mercantile-Safe Deposit and Trust Company.
10.13* -- Revolving Note issued by the Company on April 4, 1996, to
Mercantile-Safe Deposit and Trust Company.
10.14* -- Security Agreement dated April 4, 1996, by and between the Company and
Mercantile-Safe Deposit and Trust Company.
10.15* -- Revolving Note issued by the Company on April 4, 1996, to
Mercantile-Safe Deposit and Trust Company.
10.16.1+ -- Security Agreement as of August 27, 1996, by and between the Company
and Mercantile-Safe Deposit and Trust Company.
10.16.2+ -- Revolving Note issued by the Company as of August 27, 1996, to
Mercantile-Safe Deposit and Trust Company.
10.17* -- Office Building Lease dated February 1, 1990, by and between the
Company and Perini Investment Properties, Inc.
10.18* -- Lease Amendment I dated May 26, 1994, by and between the Company and
Robert R. Walker, Jr., Receiver (relating to exhibit 10.17).
10.19* -- Standard Lease dated April 12, 1989, by and between the Company and R&B
Property Holding Company.
10.20* -- Amendment to Lease effective November 1, 1992, by and between the
Company and R&B Property Holding Company (relating to exhibit 10.19).
10.21* -- Lease Agreement dated as of October 3, 1995, by and between Trusted
Information Systems (UK) Limited and Theale Estates Limited.
10.22* -- Deed dated July 17, 1996, by and between the Company and Glenwood
Associates Limited Partnership.
</TABLE>
II-2
<PAGE> 79
<TABLE>
<CAPTION>
EXHIBIT NO.
- -----------
<C> <C> <S>
10.22.1* -- Promissory Note issued by the Company on July 17, 1996, to Glenwood
Associates Limited Partnership.
10.22.2* -- Deed of Trust and Security Agreement dated December 1, 1993, by and
between Glenwood Associates Limited Partnership and Mercantile-Safe
Deposit and Trust Company.
10.22.3* -- Promissory Note issued by Glenwood Associates Limited Partnership on
December 1, 1993 to Mercantile-Safe Deposit and Trust Company.
10.23* -- Deed and Confirmatory Deed dated July 26, 1995, by and between the
Company and Stephen T. Walker.
10.24* -- Agreement and Plan of Merger dated May 30, 1996.
11.1* -- Statement of computation of earnings per share.
21.1+ -- Subsidiaries of the Company.
23.1+ -- Consent of Ernst & Young LLP.
23.2** -- Consent of Piper & Marbury L.L.P. (to be included as part of Exhibit
5.1 hereto).
24.1* -- Power of Attorney (included in signature pages)
27* -- Financial Data Schedule
</TABLE>
(b) Financial Statement Schedules
None required.
- ---------------
+ Filed herewith.
* Previously filed pursuant to the Company's Registration Statement
(Registration No. 333-5419).
** To be filed by amendment.
ITEM 17. UNDERTAKINGS
A. The undersigned Company hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
B. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 of 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.
C. The Company hereby undertakes that: (1) For purposes of determining any
liability under the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of this Registration Statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the Company pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be a
part of this Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus 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.
II-3
<PAGE> 80
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company has duly caused this Amendment No. 3 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the Town
of Glenwood, County of Howard, State of Maryland, on the 4th day of October,
1996.
TRUSTED INFORMATION SYSTEMS, INC.
By: /s/ STEPHEN T. WALKER
------------------------------------
STEPHEN T. WALKER
PRESIDENT AND CHIEF EXECUTIVE
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- ----------------
<C> <S> <C>
/s/ STEPHEN T. WALKER President, Chief Executive October 4, 1996
- ------------------------------------------ Officer, Chairman of the Board
STEPHEN T. WALKER and Director
* Executive Vice President and October 4, 1996
- ------------------------------------------ Chief Operating Officer,
MARTHA A. BRANSTAD President of the Advanced
Research and Engineering Division
and Director
* Executive Vice President, October 4, 1996
- ------------------------------------------ President of the Commercial
HARVEY L. WEISS Division, Secretary and Director
/s/ RONALD W. KAISER Executive Vice President and October 4, 1996
- ------------------------------------------ Chief Financial Officer
RONALD W. KAISER (Principal Financial and
Accounting Officer)
* Director October 4, 1996
- ------------------------------------------
GERALD J. POPEK
* Director October 4, 1996
- ------------------------------------------
CHARLES W. STEIN
*By: /s/ STEPHEN T. WALKER
--------------------------------------
STEPHEN T. WALKER
ATTORNEY IN FACT
</TABLE>
II-4
<PAGE> 81
EXHIBIT INDEX
TRUSTED INFORMATION SYSTEMS, INC.
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ---------------------------------------------------------------------- -------------
<C> <S> <C>
</TABLE>
<TABLE>
<C> <S> <C>
1.1* Form of Underwriting Agreement. ......................................
3.1* Certificate of Incorporation of the Company. .........................
3.1.1+ Certificate of Amendment to Certificate of Incorporation, as filed
with the Delaware Secretary of State on October 2, 1996. .............
3.2+ Amended and Restated Bylaws of the Company. ..........................
4.1+ Specimen stock certificate for shares of Common Stock of the
Company. .............................................................
5.1** Opinion of Piper & Marbury L.L.P. regarding legality of securities
being registered. ....................................................
10.1* Amended and Restated Employee Stock Option Plan. .....................
10.2+ Amended and Restated 1996 Stock Option Plan. .........................
10.2.1* Form of Incentive Stock Option Agreement pursuant to 1996 Stock Option
Plan. ................................................................
10.2.2* Form of Non-Qualified Stock Option Agreement pursuant to 1996 Stock
Option Plan. .........................................................
10.3+ Amended and Restated 1996 Directors' Stock Option Plan. ..............
10.4* Form of Employee Agreement Regarding Confidentiality and
Inventions. ..........................................................
10.5* Form of Software License and Reseller Agreement. .....................
10.6* Form of Consulting Services Agreement. ...............................
10.7+ Form of Indemnification Agreement by and between the Company and its
directors and officers. ..............................................
10.8* Construction Loan Agreement dated July 26, 1995, by and between the
Company and Mercantile-Safe Deposit and Trust Company. ...............
10.9* Construction Loan Promissory Note dated July 26, 1995, by and between
the Company and Mercantile-Safe Deposit and Trust Company. ...........
10.10* Deed of Trust and Security Agreement dated July 26, 1995, by and
between the Company and Mercantile-Safe Deposit and Trust Company. ...
10.11* Security Agreement, dated July 26, 1995, by and among the Company,
Mercantile-Safe Deposit and Trust Company and Stephen T. Walker. .....
10.12* Personal Guaranty Agreement dated July 26, 1995, by and between
Stephen T. Walker and Mercantile-Safe Deposit and Trust Company. .....
10.13* Revolving Note issued by the Company on April 4, 1996, to
Mercantile-Safe Deposit and Trust Company. ...........................
10.14* Security Agreement dated April 4, 1996, by and between the Company and
Mercantile-Safe Deposit and Trust Company. ...........................
10.15* Revolving Note issued by the Company on April 4, 1996, to
Mercantile-Safe Deposit and Trust Company. ...........................
10.16.1+ Security Agreement as of August 27, 1996, by and between the Company
and Mercantile-Safe Deposit and Trust Company. .......................
10.16.2+ Revolving Note issued by the Company as of August 27, 1996, to
Mercantile-Safe Deposit and Trust Company. ...........................
10.17* Office Building Lease dated February 1, 1990, by and between the
Company and Perini Investment Properties, Inc. .......................
10.18* Lease Amendment I dated May 26, 1994, by and between the Company and
Robert R. Walker, Jr., Receiver (relating to exhibit 10.17). .........
10.19* Standard Lease dated April 12, 1989, by and between the Company and
R&B Property Holding Company. ........................................
10.20* Amendment to Lease effective November 1, 1992, by and between the
Company and R&B Property Holding Company (relating to exhibit
10.19). ..............................................................
10.21* Lease Agreement dated as of October 3, 1995, by and between Trusted
Information Systems (UK) Limited and Theale Estates Limited. .........
</TABLE>
II-5
<PAGE> 82
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ---------------------------------------------------------------------- -------------
<C> <S> <C>
10.22* Deed dated July 17, 1996, by and between the Company and Glenwood
Associates Limited Partnership. ......................................
10.22.1* Promissory Note issued by the Company on July 17, 1996, to Glenwood
Associates Limited Partnership. ......................................
10.22.2* Deed of Trust and Security Agreement dated December 1, 1993, by and
between Glenwood Associates Limited Partnership and Mercantile-Safe
Deposit and Trust Company. ...........................................
10.22.3* Promissory Note issued by Glenwood Associates Limited Partnership on
December 1, 1993 to Mercantile-Safe Deposit and Trust Company. .......
10.23* Deed and Confirmatory Deed dated July 26, 1995, by and between the
Company and Stephen T. Walker. .......................................
10.24* Agreement and Plan of Merger dated May 30, 1996. .....................
11.1* Statement of computation of earnings per share. ......................
21.1+ Subsidiaries of the Company. .........................................
23.1+ Consent of Ernst & Young LLP. ........................................
23.2** Consent of Piper & Marbury L.L.P. (to be included as part of Exhibit
5.1 hereto). .........................................................
24.1* Power of Attorney (included in signature pages).......................
27* Financial Data Schedule...............................................
</TABLE>
- ---------------
+ Filed herewith.
* Previously filed pursuant to the Company's Registration Statement
(Registration No. 333-5419).
** To be filed by amendment.
II-6
<PAGE> 1
EXHIBIT 3.1.1
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
TRUSTED INFORMATION SYSTEMS, INC.
Pursuant to Section 242
of the General Corporation Law
of the State of Delaware
------------------------------
Trusted Information Systems, Inc., (hereinafter called the
"Corporation"), organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify as follows:
FIRST: Transitional Provisions.
A. Pre-Split Shares - Common Stock. Upon the filing of this
Certificate of Amendment to Certificate of Incorporation (the
"Effective Time"), each share of the Corporation's Common Stock issued
and outstanding immediately prior thereto (the "Pre-Split Shares")
shall, ipso facto and without any action on the part of the holder of
the Pre-Split Shares, be changed, converted and reclassified into
0.6134592 shares of Common Stock (the "Reverse Split"), and the par
value of all shares of Common Stock shall continue to be, as of the
Effective Time and henceforth thereafter, $0.01 per share. The shares
of Common Stock into which the Pre-Split Shares will be converted upon
the Effective Time are referred to herein as the "Split Shares."
B. No Fractional Shares. No fractional Split Shares will be
issued as a result of the Reverse Stock Split; in lieu thereof each
Pre-Split Share otherwise entitled to a fractional Split Share will be
paid an amount in cash determined at the rate of $12.00 per Split
Share.
C. Delivery of New Certificates.
(1) Exchange of Certificates. Each holder of
certificates representing Pre-Split Shares shall deliver and surrender
all of such certificates to the Corporation for cancellation after the
Effective Time, and shall receive upon such delivery, surrender and
cancellation, or as soon thereafter as is practicable, in place
thereof a certificate or certificates for the number of Split Shares
of Common Stock into which such holder's Pre-Split Shares were
converted upon the Effective Time.
(2) Interim Rights. Until surrendered as provided
in paragraph (C)(1) above, as of the Effective Time, certificates
formerly representing Pre-Split Shares shall be deemed for all
corporate purposes to represent solely the right to receive the Split
Shares into which such Pre-Split Shares were converted at the
Effective Time and the
<PAGE> 2
right to be paid cash for fractional Split Shares, if any, all upon
surrender of such Pre-Split Share certificates.
SECOND: At a meeting held in accordance with the General Corporation
Law of the State of Delaware, the Board of Directors of the Corporation adopted
resolutions pursuant to Section 242 of the General Corporation Law of the State
of Delaware setting forth certain amendments to the Certificate of
Incorporation of the Corporation, including the Reverse Split, and declaring
said amendments to be advisable. The stockholders of the Corporation duly
approved said proposed amendments, including the Reverse Split, at a duly
called meeting in accordance with Section 242 of the General Corporation Law of
the State of Delaware. The resolutions setting forth the amendments are as
follows:
RESOLVED: That, immediately following the Reverse Split, the first
paragraph of Article FOURTH of the Certificate of Incorporation shall read as
follows:
"FOURTH: AUTHORIZED CAPITAL. The total number of shares of
capital stock which the Corporation shall have authority to issue is
(i) 40,000,000 shares of Common Stock, $0.01 par value per share, and
(ii) 5,000,000 shares of Preferred Stock, $0.01 par value per share."
RESOLVED: That Article EIGHTH of the Certificate of Incorporation be
and hereby is amended by deleting the existing Article EIGHTH and inserting the
following paragraph in lieu thereof:
"EIGHTH: ACTIONS BY STOCKHOLDERS. Upon completion of an
underwritten initial public offering of the Company's Common Stock
pursuant to an effective registration statement under the Securities
Act of 1933, as amended, any action required or permitted to be taken
by the stockholders of the Corporation must be effected at a duly
called annual or special meeting of stockholders, and may not be
effected by any consent in writing by such stockholders, unless such
consent is unanimous. Meetings of stockholders may be held within or
without the State of Delaware, as the By-laws may provide."
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to
be affixed hereto and this Certificate of Amendment to be signed by the
President and Chief Executive Officer this 28th day of September, 1996.
[Corporate Seal] TRUSTED INFORMATION SYSTEMS, INC.
By: /s/ Stephen T. Walker
------------------------------------
Stephen T. Walker
President and Chief Executive Officer
-2-
<PAGE> 1
EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
TRUSTED INFORMATION SYSTEMS, INC.
(A DELAWARE CORPORATION)
Dated as of September 28, 1996
<PAGE> 2
AMENDED AND RESTATED BY-LAWS
TABLE OF CONTENTS
ARTICLE 1 - STOCKHOLDERS
Section 1.1 Place of Meetings
Section 1.2 Annual Meeting
Section 1.3 Special Meetings
Section 1.4 Notice of Meetings
Section 1.5 Voting List
Section 1.6 Quorum
Section 1.7 Adjournments
Section 1.8 Voting and Proxies
Section 1.9 Action at Meeting
Section 1.10 Action without Meeting
ARTICLE 2 - DIRECTORS
Section 2.1 General Powers
Section 2.2 Number and Classes
Section 2.3 Term of Office, Election and Qualification
Section 2.4 Vacancies
Section 2.5 Resignation
Section 2.6 Regular Meetings
Section 2.7 Special Meetings
Section 2.8 Notice of Special Meetings
Section 2.9 Meetings by Telephone Conference Calls
Section 2.10 Quorum
Section 2.11 Action at Meeting
Section 2.12 Action by Consent
Section 2.13 Removal
Section 2.14 Committees
Section 2.15 Compensation of Directors
ARTICLE 3 - OFFICERS
Section 3.1 Enumeration
Section 3.2 Election
Section 3.3 Qualification
Section 3.4 Tenure
Section 3.5 Resignation and Removal
Section 3.6 Vacancies
Section 3.7 Chairman of the Board and Vice-Chairman of the Board
<PAGE> 3
Section 3.8 President
Section 3.9 Vice Presidents
Section 3.10 Secretary and Assistant Secretaries
Section 3.11 Treasurer and Assistant Treasurers
Section 3.12 Salaries
ARTICLE 4 - CAPITAL STOCK
Section 4.1 Issuance of Stock
Section 4.2 Certificates of Stock
Section 4.3 Transfers
Section 4.4 Lost, Stolen or Destroyed Certificates
Section 4.5 Record Date
ARTICLE 5 - INDEMNIFICATION
Section 5.1 Indemnification in Actions, Suits or Proceedings
Other Than Those by or in the Right of Corporation
Section 5.2 Indemnification in Actions, Suits or Proceedings by
or in the Right of the Corporation
Section 5.3 Authorization of Indemnification
Section 5.4 Advancement of Expenses
ARTICLE 6 - GENERAL PROVISIONS
Section 6.1 Fiscal Year
Section 6.2 Corporate Seal
Section 6.3 Waiver of Notice
Section 6.4 Voting of Securities
Section 6.5 Evidence of Authority
Section 6.6 Certificate of Incorporation
Section 6.7 Transactions with Interested Parties
Section 6.8 Severability
Section 6.9 Pronouns
ARTICLE 7 - AMENDMENTS
Section 7.1 By the Board of Directors
Section 7.2 By the Stockholders
ii
<PAGE> 4
AMENDED AND RESTATED BY-LAWS
OF
TRUSTED INFORMATION SYSTEMS, INC.
ARTICLE 1 - STOCKHOLDERS
1.1 Place of Meeting. All meetings of stockholders shall be held
at such place within or without the State of Delaware as may be designated from
time to time by the Board of Directors or the President or, if not so
designated, at the registered office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the
election of directors and for the transaction of such other business as may
properly be brought before the meeting shall be held at such date, time and
place as may be fixed by the Board of Directors or the President. If this date
shall fall upon a legal holiday at the place of the meeting, then such meeting
shall be held on the next succeeding business day at the same hour. If no
annual meeting is held in accordance with the foregoing provisions, the Board
of Directors shall cause the meeting to be held as soon thereafter as
convenient. If no annual meeting is held in accordance with the foregoing
provisions, a special meeting may be held in lieu of the annual meeting, and
any action taken at that special meeting shall have the same effect as if it
had been taken at the annual meeting, and in such case all references in these
By-Laws to the annual meeting of the stockholders shall be deemed to refer to
such special meeting.
1.3 Special Meetings. Special meetings of stockholders may be
called at any time by the President, the Board of Directors or the holders of a
majority of the outstanding shares of the Common Stock. Business transacted at
any special meeting of stockholders shall be limited to matters relating to the
purpose or purposes stated in the notice of meeting.
1.4 Notice of Meetings. Except as otherwise provided by law,
written notice of each meeting of stockholders, whether annual or special,
shall be given not less than ten nor more than 60 days before the date of the
meeting to each stockholder entitled to vote at such meeting. The notices of
all meetings shall state the place, date and hour of the meeting. The notice
of a special meeting shall state, in addition, the purpose or purposes for
which the meeting is called. If mailed, notice is given when deposited in the
United States mail, postage prepaid, directed to the stockholder at his address
as it appears on the records of the corporation.
1.5 Voting List. The officer who has charge of the stock ledger
of the corporation shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, at a place within the city
where the meeting is to be held. The list shall also be
<PAGE> 5
produced and kept at the time and place of the meeting during the whole time of
the meeting, and may be inspected by any stockholder who is present.
1.6 Quorum. Except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws, the holders of a majority of the shares of
the capital stock of the corporation issued and outstanding and entitled to
vote at the meeting, present in person or represented by proxy, shall
constitute a quorum for the transaction of business.
1.7 Adjournments. Any meeting of stockholders may be adjourned to
any other time and to any other place at which a meeting of stockholders may be
held under these By-Laws by the stockholders present or represented at the
meeting and entitled to vote, although less than a quorum, or, if no
stockholder is present, by any officer entitled to preside at or to act as
Secretary of such meeting. It shall not be necessary to notify any stockholder
of any adjournment of less than 30 days if the time and place of the adjourned
meeting are announced at the meeting at which adjournment is taken, unless
after the adjournment a new record date is fixed for the adjourned meeting. At
the adjourned meeting, the corporation may transact any business which might
have been transacted at the original meeting.
1.8 Voting and Proxies. Each stockholder shall have one vote for
each share of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise provided
in the Certificate of Incorporation. Each stockholder of record entitled to
vote at a meeting of stockholders, or to express consent or dissent to
corporate action in writing without a meeting, may vote or express such consent
or dissent in person or may authorize another person or persons to vote or act
for him by written proxy executed by the stockholder or his authorized agent
and delivered to the Secretary of the corporation. No such proxy shall be
voted or acted upon after three years from the date of its execution, unless
the proxy expressly provides for a longer period.
1.9 Action at Meeting. When a quorum is present at any meeting,
the holders of a majority of the stock present or represented and voting on a
matter (or if there are two or more classes of stock entitled to vote as
separate classes, then in the case of each such class, the holders of a
majority of the stock of that class present or represented and voting on a
matter) shall decide any matter to be voted upon by the stockholders at such
meeting, except when a different vote is required by express provision of law,
the Certificate of Incorporation or these By-Laws. Any election by
stockholders shall be determined by a plurality of the votes cast by the
stockholders entitled to vote at the election.
1.10 Action without Meeting. Upon completion of an underwritten
initial public offering of the Company's Common Stock pursuant to the effective
registration statement under the Securities Act of 1933, as amended, any action
required or permitted to be taken at any annual or special meeting of
stockholders of the corporation may be taken only upon the vote of stockholders
at an annual or special meeting duly noticed and called in accordance
-2-
<PAGE> 6
with the General Corporation Law of the State of Delaware and may not be taken
by written consent of stockholders without a meeting, unless such consent is
unanimous.
ARTICLE 2 - DIRECTORS
2.1 General Powers. The business and affairs of the corporation
shall be managed by or under the direction of a Board of Directors, who may
exercise all of the powers of the corporation except as otherwise provided by
law, the Certificate of Incorporation or these By-Laws. In the event of a
vacancy in the Board of Directors, the remaining directors, except as otherwise
provided by law, may exercise the powers of the full Board until the vacancy is
filled.
2.2 Number and Classes. The number of directors which shall
constitute the whole Board of Directors shall be determined solely by
resolution adopted by a majority of the Board of Directors, but in no event
shall be less than three. The number of directors may be decreased at any time
and from time to time by a majority of the directors then in office, but only
to eliminate vacancies existing by reason of the death, resignation, removal or
expiration of the term of one or more directors. The number of directors may
be increased at any time and from time to time by a majority of the directors
then in office. Unless otherwise provided in the Certificate of Incorporation,
the Board of Directors shall divide the directors into three classes, which
shall be as equal in number as possible; and, when the number of directors is
changed, shall determine the class or classes to which the increased or
decreased number of directors shall be apportioned, which shall be done so as
to maintain as equal a number of directors in each class as possible; provided,
however, that no decrease in the number of directors shall affect the term of
any director then in office.
2.3 Tenure, Election and Qualification. The directors shall be
elected at the annual meeting of stockholders by such stockholders as have the
right to vote on such election. At each annual meeting of stockholders,
directors elected to succeed those whose terms are expiring shall be elected
for a term of office expiring at the annual meeting of stockholders held in the
third year following their election and until their respective successors are
elected and qualified, or until such director's earlier death, resignation or
removal. Directors need not be stockholders of the corporation.
2.4 Vacancies. Unless otherwise provided in the Certificate of
Incorporation, any vacancy in the Board of Directors, however occurring,
including a vacancy resulting from an enlargement of the Board, may be filled
solely by vote of a majority of the directors then in office (although less
than a quorum) or by a sole remaining director. If there are no directors in
office, then an election of directors may be held in accordance with the
General Corporation Law of the State of Delaware. A director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office,
and a director chosen to fill a position resulting from an increase in the
number of directors shall hold office until the next annual
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<PAGE> 7
meeting of stockholders and until his successor is elected and qualified, or
until his earlier death, resignation or removal.
2.5 Resignation. Any director may resign by delivering his
written resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon the happening
of some other event.
2.6 Regular Meetings. Provided that meetings are held at least
once during each of the Company's fiscal quarters, regular meetings of the
Board of Directors may be held without notice at such time and place, either
within or without the State of Delaware, as shall be determined from time to
time by the Board of Directors; provided that any director who is absent when
such a determination is made shall be given notice of the determination. A
regular meeting of the Board of Directors may be held without notice
immediately after and at the same place as the annual meeting of stockholders.
2.7 Special Meetings. Special meetings of the Board of Directors
may be held at any time and place, within or without the State of Delaware,
designated in a call by any member of the Board of Directors or by the
President of the Company.
2.8 Notice of Special Meetings. Notice of any special meeting of
directors shall be given to each director by the Secretary or by the officer or
one of the directors calling the meeting. Notice shall be duly given to each
director (i) by giving notice to such director in person or by telephone at
least 24 hours in advance of the meeting, (ii) by sending a facsimile, telegram
or telex, or delivering written notice by hand, to his last known business or
home address at least 24 hours in advance of the meeting, or (iii) by
delivering written notice to his last known business or home address at least
72 hours in advance of the meeting by a nationally recognized overnight service
(receipt requested). A notice or waiver of notice of a meeting of the Board of
Directors need not specify the purposes of the meeting.
2.9 Meetings by Telephone Conference Calls. Directors or any
members of any committee designated by the directors may participate in a
meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation by such
means shall constitute presence in person at such meeting.
2.10 Quorum. A majority of the total number of the whole Board of
Directors shall constitute a quorum at all meetings of the Board of Directors.
In the event one or more of the directors shall be disqualified to vote at any
meeting, then the required quorum shall be reduced by one for each such
director so disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In the absence of
a quorum at any such meeting, a majority of the directors present may adjourn
the meeting from
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<PAGE> 8
time to time without further notice other than announcement at the meeting,
until a quorum shall be present.
2.11 Action at Meeting. At any meeting of the Board of Directors
at which a quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by law, the
Certificate of Incorporation or these By-Laws.
2.12 Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee of the Board
of Directors may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent to the action in writing, and the
written consents are filed with the minutes of proceedings of the Board or
committee.
2.13 Removal. Any one or more or all of the directors may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors, except that the directors elected
by the holders of a particular class or series of stock may be removed without
cause only by vote of the holders of a majority of the outstanding shares of
such class or series.
2.14 Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of a committee,
the member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
and subject to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the corporation
and may authorize the seal of the corporation to be affixed to all papers which
may require it. Each such committee shall keep minutes and make such reports
as the Board of Directors may from time to time request. Except as the Board
of Directors may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by the directors or in
such rules, its business shall be conducted as nearly as possible in the same
manner as is provided in these By-Laws for the Board of Directors.
2.15 Compensation of Directors. Directors may be paid such
compensation for their services and such reimbursement for expenses of
attendance at meetings as the Board of Directors may from time to time
determine. No such payment shall preclude any director from serving the
corporation or any of its parent or subsidiary corporations in any other
capacity and receiving compensation for such service.
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<PAGE> 9
ARTICLE 3 - OFFICERS
3.1 Enumeration. The officers of the corporation shall consist of
a President, a Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine, including a Chairman of the
Board, a Vice-Chairman of the Board, and one or more Vice Presidents, Assistant
Treasurers, and Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
3.2 Election. The President, Treasurer and Secretary shall be
elected annually by the Board of Directors at its first meeting following the
annual meeting of stockholders. Other officers may be appointed by the Board
of Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or
more offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the
Certificate of Incorporation or by these By-Laws, each officer shall hold
office until his successor is elected and qualified, unless a different term is
specified in the vote choosing or appointing him, or until his earlier death,
resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering
his written resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon the happening
of some other event.
Any officer appointed by Board of Directors may be removed at
any time, with or without cause, by vote of a majority of the entire number of
directors then in office.
Except as the Board of Directors may otherwise determine, no
officer who resigns or is removed shall have any right to any compensation as
an officer for any period following his resignation or removal, or any right to
damages on account of such removal, whether his compensation be by the month or
by the year or otherwise, unless such compensation is expressly provided in a
duly authorized written agreement with the corporation.
3.6 Vacancies. The Board of Directors may fill any vacancy
occurring in any office for any reason and may, in its discretion, leave
unfilled for such period as it may determine any offices other than those of
President, Treasurer and Secretary. Each such successor shall hold office for
the unexpired term of his predecessor and until his successor is elected and
qualified, or until his earlier death, resignation or removal.
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<PAGE> 10
3.7 Chairman of the Board and Vice-Chairman of the Board. The
Board of Directors may appoint a Chairman of the Board. If the Board of
Directors appoints a Chairman of the Board, he shall perform such duties and
possess such powers as are assigned to him by the Board of Directors. If the
Board of Directors appoints a Vice-Chairman of the Board, he shall, in the
absence or disability of the Chairman of the Board, perform the duties and
exercise the powers of the Chairman of the Board and shall perform such other
duties and possess such other powers as may from time to time be vested in him
by the Board of Directors.
3.8 President. Unless the Board of Directors otherwise
determines, the President shall be the Chief Executive Officer of the
corporation. The President shall, subject to the direction of the Board of
Directors, have general charge and supervision of the business of the
corporation. Unless otherwise provided by the Board of Directors, he shall
preside at all meetings of the stockholders, if he is a director, at all
meetings of the Board of Directors. The President shall perform such other
duties and shall have such other powers as the Board of Directors may from time
to time prescribe.
3.9 Vice Presidents. Any Vice President shall perform such duties
and possess such powers as the Board of Directors or the President may from
time to time prescribe. In the event of the absence, inability or refusal to
act of the President, the Vice President designated as the Chief Operating
Officer of the Corporation shall perform the duties of the President and when
so performing shall have all the powers of and be subject to all the
restrictions upon the President. The Board of Directors may assign to any Vice
President the title of Executive Vice President, Senior Vice President or any
other title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries. The Secretary shall
perform such duties and shall have such powers as the Board of Directors or the
President may from time to time prescribe. In addition, the Secretary shall
perform such duties and have such powers as are incident to the office of the
secretary, including without limitation the duty and power to give notices of
all meetings of stockholders and special meetings of the Board of Directors, to
attend all meetings of stockholders and the Board of Directors and keep a
record of the proceedings, to maintain a stock ledger and prepare lists of
stockholders and their addresses as required, to be custodian of corporate
records and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform such duties and possess
such powers as the Board of Directors, the President or the Secretary may from
time to time prescribe. In the event of the absence, inability or refusal to
act of the Secretary, the Assistant Secretary, (or if there shall be more than
one, the Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the Secretary.
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<PAGE> 11
In the absence of the Secretary or any Assistant Secretary at
any meeting of stockholders or directors, the person presiding at the meeting
shall designate a temporary secretary to keep a record of the meeting.
3.11 Treasurer and Assistant Treasurers. The Treasurer shall
perform such duties and shall have such powers as may from time to time be
assigned to him by the Board of Directors or the President. In addition, the
Treasurer shall perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and power to keep
and be responsible for all funds and securities of the corporation, to deposit
funds of the corporation in depositories selected in accordance with these
By-Laws, to disburse such funds as ordered by the Board of Directors, to make
proper accounts of such funds, and to render as required by the Board of
Directors statements of all such transactions and of the financial condition of
the corporation.
The Assistant Treasurers shall perform such duties and possess
such powers as the Board of Directors, the President or the Treasurer may from
time to time prescribe. In the event of the absence, inability, or refusal to
act of the Treasurer, the Assistant Treasurer, (or if there shall be more than
one, the Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the Treasurer.
3.12 Salaries. Officers of the corporation shall be entitled to
such salaries, compensation or reimbursement as shall be fixed or allowed from
time to time by the Board of Directors.
ARTICLE 4 - CAPITAL STOCK
4.1 Issuance of Stock. Unless otherwise voted by the stockholders
and subject to the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock of the
corporation or the whole or any part of any unissued balance of the authorized
capital stock of the corporation held in its treasury may be issued, sold,
transferred or otherwise disposed of by vote of the Board of Directors in such
manner, for such consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of Stock. Every holder of stock of the
corporation shall be entitled to have a certificate, in such form as may be
prescribed by law and by the Board of Directors, certifying the number and
class of shares owned by him in the corporation. Each such certificate shall
be signed by, or in the name of the corporation by, the Chairman or
Vice-Chairman, if any, of the Board of Directors, or the President or a Vice
President, and the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the corporation. Any or all of the signatures on the
certificate may be a facsimile.
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<PAGE> 12
Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, the
By-Laws, applicable securities laws or any agreement among any number of
shareholders or among such holders and the corporation shall have conspicuously
noted on the face or back of the certificate either the full text of the
restriction or a statement of the existence of such restriction.
4.3 Transfers. Except as otherwise established by rules and
regulations adopted by the Board of Directors, and subject to applicable law,
shares of stock may be transferred on the books of the corporation by the
surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment or power of attorney properly executed, and with such proof of
authority or the authenticity of signature as the corporation or its transfer
agent may reasonably require. Except as may be otherwise required by law, by
the Certificate of Incorporation or by these By-Laws, the corporation shall be
entitled to treat the record holder of stock as shown on its books as the owner
of such stock for all purposes, including the payment of dividends and the
right to vote with respect to such stock, regardless of any transfer, pledge or
other disposition of such stock until the shares have been transferred on the
books of the corporation in accordance with the requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates. The corporation may
issue a new certificate of stock in place of any previously issued certificate
alleged to have been lost, stolen, or destroyed, upon such terms and conditions
as the Board of Directors may prescribe, including the presentation of
reasonable evidence of such loss, theft or destruction and the giving of such
indemnity as the Board of Directors may require for the protection of the
corporation or any transfer agent or registrar.
4.5 Record Date. The Board of Directors may fix in advance a date
as a record date for the determination of the stockholders entitled to notice
of or to vote at any meeting of stockholders or to express consent (or dissent)
to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights in
respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action. Such record date shall not be more than 60 nor less
than ten days before the date of such meeting, nor more than 60 days prior to
any other action to which such record date relates.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day before the day on which notice is
given, or, if notice is waived, at the close of business on the day before the
day on which the meeting is held. The record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day
on which the first written consent is expressed. The record date for
determining stockholders for any other
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purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
ARTICLE 5 - INDEMNIFICATION
5.1 Indemnification in Actions, Suits or Proceedings Other Than
Those by or in the Right of the Corporation. (a) The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (whether
civil, criminal, administrative or investigative) by reason of the fact that
such person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, if such person acted in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that such
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which such person reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that such conduct was unlawful.
(b) The Corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (whether civil, criminal, administrative
or investigative) by reason of the fact that such person is or was an employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, if such person acted in good faith and in a manner which
such person reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe that such conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner
which such person reasonably believed to
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<PAGE> 14
be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that such conduct was unlawful.
5.2 Indemnification in Actions, Suits or Proceedings by or in the
Right of the Corporation. (a) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the Corporation, or is or was serving
at the request of the Corporation as a director of officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner which
such person reasonably believed to be in or not opposed to the best interest of
the Corporation. No such indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper.
(b) The Corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that such person is or
was an employee or agent of the Corporation, or is or was serving at the
request of the Corporation as an employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred
by such person in connection with the defense or settlement of such action or
suit if such person acted in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the
Corporation. No such indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
to the Corporation unless and only to the extent that the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper.
5.3 Authorization of Indemnification. Any indemnification under
this Article 5 shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because such person
or persons have met the applicable standard of conduct set forth in Sections
5.1 and 5.2 hereof. Such determination shall be made (i) by a majority vote of
the directors who are not parties to such action, suit or proceeding, even
though less than a
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<PAGE> 15
quorum, or (ii) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (iii) by the
stockholders.
5.4 Advancement of Expenses. The Corporation may advance expenses
(including attorneys' fees) incurred by a director or officer in advance of the
final disposition of such action, suit or proceeding upon the receipt of an
undertaking by or on behalf of the director of officer to repay such amount if
it shall ultimately be determined that such director or officer is not entitled
to indemnification.
The Corporation may advance expenses (including attorneys'
fees) incurred by an employee or agent in advance of the final disposition of
such action, suit or proceeding upon such terms and conditions, if any, as the
Board of Directors deems appropriate.
ARTICLE 6 - GENERAL PROVISIONS
6.1 Fiscal Year. The fiscal year of the Corporation shall be the
twelve months ending on the last Friday of December of each calendar year that
is a business day, a day on which banks (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) are open for business in the city of
Washington, D.C.
6.2 Corporate Seal. The corporate seal shall be in such form as
shall be approved by the Board of Directors.
6.3 Waiver of Notice. Whenever any notice whatsoever is required
to be given by law, by the Certificate of Incorporation or by these By-Laws, a
waiver of such notice either in writing signed by the person entitled to such
notice or such person's duly authorized attorney, or by telegraph, cable or any
other available method, whether before, at or after the time stated in such
waiver, or the appearance of such person or persons at such meeting in person
or by proxy, shall be deemed equivalent to such notice.
6.4 Voting of Securities. Except as the directors may otherwise
designate, the President or Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-fact for this
corporation (with or without power of substitution) at, any meeting of
stockholders or shareholders of any other corporation or organization, the
securities of which may be held by this corporation.
6.5 Evidence of Authority. A certificate by the Secretary, or an
Assistant Secretary, or a temporary Secretary as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith
be conclusive evidence of such action.
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6.6 Certificate of Incorporation. All references in these By-Laws
to the Certificate of Incorporation shall be deemed to refer to the Certificate
of Incorporation of the corporation, as amended and in effect from time to
time.
6.7 Transactions with Interested Parties. No contract or
transaction between the corporation and one or more of the directors or
officers, or between the corporation and any other corporation, partnership,
association, another organization in which one or more of the directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of Directors or a
committee of the Board of Directors which authorizes the contract or
transaction or solely because his or their votes are counted for such purpose,
if:
(a) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board or
committee in good faith authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less
than a quorum;
(b) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of
the stockholders; or
(c) The contract or transaction is fair as to the corporation as
of the time it is authorized, approved or, ratified, by the
Board of Directors, a committee of the Board of Directors, or
the stockholders.
Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
6.8 Severability. Any determination that any provision of these
By-Laws is for any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-Laws.
6.9 Pronouns. All pronouns used in these By-Laws shall be deemed
to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person or persons may require.
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ARTICLE 7 - AMENDMENTS
7.1 By the Board of Directors. These By-Laws may be altered,
amended or repealed or new by-laws may be adopted by the affirmative vote of a
majority of the directors present at any regular or special meeting of the
Board of Directors at which a quorum is present.
7.2 By the Stockholders. These By-Laws may be altered, amended or
repealed or new by-laws may be adopted by the affirmative vote of the holders
of a majority of the shares of the capital stock of the corporation issued and
outstanding and entitled to vote at any regular meeting of stockholders, or at
any special meeting of stockholders, provided notice of such alteration,
amendment, repeal or adoption of new by-laws shall have been stated in the
notice of such special meeting. Notwithstanding the foregoing, the affirmative
vote of the holders of at least 66 2/3% of the outstanding stock shall be
required to alter, amend or repeal Sections 2.2 and 2.4 of Article 2.
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<PAGE> 1
EXHIBIT 4.1
COMMON STOCK COMMON STOCK
NUMBER [TIS LOGO] SHARES
TISX
INCORPORATED UNDER THE LAWS SEE REVERSE FOR
OF THE STATE OF DELAWARE CERTAIN DEFINITIONS
TRUSTED INFORMATION SYSTEMS, INC.
CUSIP 897908 10 9
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, $.01 PAR VALUE, OF
TRUSTED INFORMATION SYSTEMS, INC.
(hereinafter called the Corporation), transferable on the books of the
Corporation by the holder hereof in person or by duly authorized attorney upon
surrender of this certificate properly endorsed.
This certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
[TRUSTED INFORMATION SYSTEMS INC.
DELAWARE
1996 SEAL]
/s/ STEPHEN T. WALKER /s/ HARVEY L. WEISS
PRESIDENT AND SECRETARY
CHIEF EXECUTIVE OFFICER
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
(NEW YORK, NEW YORK) TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE> 2
TRUSTED INFORMATION SYSTEMS, INC.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM- as tenants in common UNIF GIFT MIN ACT-_________________Custodian______________
TEN ENT- as tenants by the entireties (Cust) (Minor)
JT TEN- as joint tenants with
right of survivorship and under Uniform Gifts to Minors Act
not as tenants in common
----------------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For Value received, _________________________________hereby sell, assign
and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------------------
- --------------------------------------------------------------------------------
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
________________________________________________________________________________
__________________________________________________________________________Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint __________________________________Attorney to
transfer the said stock on the books of the within-named Corporation with full
power of substitution in the premises.
Dated,________________________ X________________________________________________
X________________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE
FACE OF THE CERTIFICATE, IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE
WHATSOEVER.
SIGNATURE GUARANTEED:___________________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND
LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
<PAGE> 1
EXHIBIT 10.2
TRUSTED INFORMATION SYSTEMS, INC.
AMENDED AND RESTATED 1996 STOCK OPTION PLAN
1. PURPOSE.
The purpose of this Stock Option Plan (the "Plan") is to secure
for Trusted Information Systems, Inc. (the "Company") and its stockholders the
benefits arising from capital stock ownership by key employees, officers and
consultants of the Company who are expected to contribute to the Company's
future growth and success. Notwithstanding anything to the contrary contained
herein, stock options may be granted only to employees (including officers and
directors who are employees) and consultants of the Company. Non-employee
members of the Company's Board of Directors are ineligible to receive an award
of options under the Plan. Except where the context otherwise requires, the
term "Company" shall include the parent and all subsidiaries of the Company as
defined in Section 424(e) and 424(f) of the Internal Revenue Code of 1986, as
amended (the "Code").
2. TYPE OF OPTIONS AND ADMINISTRATION.
(a) Types of Options. Options granted pursuant to the Plan
may be either incentive stock options ("Incentive Stock Options") meeting the
requirements of Section 422 of the Code or non-statutory options, which are not
intended to meet the requirements of Section 422 of the Code.
(b) Administration. The Plan shall be administered by a
committee (the "Committee") appointed by the Board of Directors. The Committee
shall consist of not less than two (2) members. The Committee or the Board of
Directors may grant options to purchase shares of the Company's common stock
(the "Common Stock") as provided in the Plan. The Board of Directors shall
have authority, subject to the express provisions of the Plan: (i) to amend the
Plan and (ii) to prescribe, amend and rescind rules and regulations relating to
the Plan. The Committee shall have authority, subject to the express
provisions of the Plan: (i) to amend and construe the respective option
agreements executed pursuant to the Plan, including the authority to amend any
such option agreement executed prior to the adoption of the Plan; (ii) to
establish and determine all of the terms and provisions of the respective
option agreements, which need not be identical; and (iii) to make any other
determination in the judgment of the Committee necessary or desirable for the
administration of the Plan. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in any option agreement
in the manner and to the extent it shall deem expedient to carry the Plan into
effect and it shall be the sole and final judge of such expediency. No member
of the Committee or Director of the Company shall be liable for any action or
determination made in good faith.
<PAGE> 2
3. ELIGIBILITY.
Options shall be granted only to persons who are, at the time of
grant, employees (including officers and directors who are employees) or
consultants of the Company. A person who has been granted an option may, if he
or she is otherwise eligible, be granted an additional option or options if the
Committee shall so determine.
4. STOCK SUBJECT TO PLAN.
Subject to adjustment as provided in Section 15 below, the
maximum number of shares of Common Stock of the Company which may be issued
under the Plan is 1,625,667 shares. Such shares may be authorized and unissued
shares or may be shares issued and thereafter acquired by the Company. If an
option granted under the Plan shall expire or terminate for any reason without
having been exercised in full, the unpurchased shares subject to such option
shall again be available for subsequent option grants under the Plan.
5. FORMS OF OPTION AGREEMENTS.
Each option granted under the Plan shall be evidenced by an
option agreement in such form not inconsistent with the Plan as shall be
specified by the Committee. Each option agreement shall state whether the
options granted thereby are intended to be Incentive Stock Options (to the
maximum extent possible) or non-statutory options.
6. PURCHASE PRICE.
(a) General. The purchase price per share of stock
deliverable upon the exercise of an option shall be determined by the
Committee, provided, however, that in the case of an Incentive Stock Option,
the purchase price shall not be less than 100% of the "fair market value" (as
defined herein) of such stock at the time of grant of such option, or less than
110% of such "fair market value" in the case of options described in paragraph
(b) of Section 11. For purposes of this Section 6 the "fair market value" of
the stock shall be either: (A) as determined by the Committee, or (B) in the
event the Company's Common Stock is publicly traded, the price of the Common
Stock on the date of grant of such option at the close of business of the
principal stock exchange or market upon which the Company's stock is listed.
(b) Payment of Purchase Price. Options granted under the
Plan may provide for the payment of the purchase price by any method that the
Committee may authorize.
7. OPTION PERIOD.
Each option and all rights thereunder shall expire on such date
as the Committee shall determine, but, in the case of Incentive Stock Options,
in no event after the expiration of ten (10) years from the day on which the
option is granted (or five (5) years in the case of options
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<PAGE> 3
described in paragraph (b) of Section 11) and, in the case of non-statutory
options, in no event after the expiration of ten (10) years and one day from
the day on which the option is granted, and in either case, shall be subject to
earlier termination as provided in the relevant option agreement.
8. EXERCISE OF OPTIONS.
Each option granted under the Plan shall be exercisable either
in full or in installments at such time or times, during such period and
subject to such conditions as shall be determined by the Committee and set
forth in the agreement evidencing such option, subject to the provisions of
Section 7 above.
9. NONTRANSFERABILITY OF STOCK OPTIONS.
No Incentive Stock Option granted under the Plan shall be
assignable or transferable by the person to whom it is granted, either
voluntarily or by operation of law, except by will or the laws of descent and
distribution. During the life of the optionee, an Incentive Stock Option shall
be exercisable only by such person. A non-statutory stock option may be
assigned or transferred in whole or in part only if so provided in the relevant
agreement or if permitted by the Committee.
10. EFFECT OF TERMINATION OF EMPLOYMENT OR CONSULTING SERVICES.
No option may be exercised unless, at the time of such exercise,
the optionee is, and has been continuously since the date of grant of his or
her option, in the case of an optionee who is an employee of the Company,
employed by the Company, or in the case of an optionee who is a consultant to
the Company, rendering services to the Company, except that if and to the
extent the option agreement so provides:
(a) an Incentive Stock Option may be exercised within the
period ending on the earlier of the tenth anniversary of the date of grant or
three (3) months after the optionee ceases to be employed by or in the service
of the Company (or within such lesser period as may be specified in the
applicable option agreement);
(b) if the optionee dies while employed by or in the
service of the Company, the option may be exercised by the person to whom it is
transferred by will or the laws of descent and distribution within the period
of one (1) year after the date of death (or within such lesser period as may be
specified in the applicable option agreement); and
(c) if the optionee becomes disabled (within the meaning of
Section 22(e)(3) of the Code or any successor provision thereto) while employed
by or in the service of the Company, the option may be exercised within the
period of one (1) year after the date the optionee ceases to be employed by or
in the service of the Company because of such disability
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<PAGE> 4
(or within such lesser period as may be specified in the applicable option
agreement); provided, however, that in no event may any option be exercised
after the expiration date of the option.
11. INCENTIVE STOCK OPTIONS.
Options granted under the Plan which are intended to be
Incentive Stock Options shall be specifically designated as Incentive Stock
Options and shall be subject to the following additional terms and conditions:
(a) Dollar Limitation. Incentive Stock Options granted to
any employee under the Plan (and any other incentive stock option plans of the
Company) shall not, in the aggregate, become exercisable for the first time in
any one (1) calendar year for shares of Common Stock with an aggregate fair
market value (determined as of the respective date or dates of grant) of more
than $100,000. In the event Section 422(d) of the Code is amended to alter the
limitation set forth therein so that following such amendment such limitation
shall differ from the limitation set forth in this paragraph (a), the
limitation of this paragraph (a) shall be automatically adjusted accordingly.
(b) 10% Shareholder. If any employee to whom an Incentive
Stock Option is to be granted under the Plan is, at the time of the grant of
such option, the owner of stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company (after taking into account
the attribution of stock ownership rules of Section 424(d) of the Code), then
the following special provisions shall be applicable to the Incentive Stock
Option granted to such individual:
(i) The purchase price per share of the Common
Stock subject to such Incentive Stock Option shall not be less
than 110% of the fair market value of one (1) share of Common
Stock at the time of grant; and
(ii) The option exercise period shall not exceed
five (5) years from the date of grant.
12. ADDITIONAL PROVISIONS.
(a) Additional Option Provisions. The Committee may, in
its sole discretion, include additional provisions in any option granted under
the Plan, including, without limitation, restrictions on transfer, repurchase
rights, reload options, commitments to pay cash bonuses, make or arrange for
loans or transfer other property to optionees upon exercise of options, or such
other provisions as shall be determined by the Committee; provided that such
additional provisions shall not be inconsistent with any other term or
condition of the Plan and such additional provisions shall not cause any
Incentive Stock Option granted under the Plan to fail to qualify as an
Incentive Stock Option within the meaning of Section 422 of the Code.
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<PAGE> 5
(b) Acceleration and Waiver. The Committee may, in its
sole discretion, accelerate the date or dates on which all or any particular
option or options granted under the Plan may be exercised or waive any
conditions with respect to any option.
13. GENERAL RESTRICTIONS.
(a) Investment Representations. The Company may require
any person to whom an option is granted, as a condition of exercising such
option, to give written assurances in substance and form satisfactory to the
Company to the effect that such person is acquiring the Common Stock subject to
the option for his or her own account for investment and not with any present
intention of selling or otherwise distributing the same, and to such other
effects as the Company deems necessary or appropriate in order to comply with
federal and applicable state securities laws.
(b) Compliance With Securities Laws. Each option shall be
subject to the requirement that if, at any time, counsel to the Company shall
determine that the listing, registration or qualification of the shares subject
to such option upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental or regulatory body, is necessary
as a condition of, or in connection with, the issuance or purchase of shares
thereunder, such option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval shall have been
effected or obtained on conditions acceptable to the Committee. Nothing herein
shall be deemed to require the Company to apply for or to obtain such listing,
registration or qualification.
14. RIGHTS AS A SHAREHOLDER.
The holder of an option shall have no rights as a stockholder
with respect to any shares covered by the option until the date of issue of a
stock certificate to him or her for such shares. No adjustment shall be made
for dividends or other rights for which the record date is prior to the date
such stock certificate is issued.
15. ADJUSTMENTS.
(a) General. If, as a result of a merger, consolidation,
sale of all or substantially all of the assets of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other distribution or adjustment with respect to the outstanding
shares of Common Stock or other securities, the outstanding shares of Common
Stock are increased or decreased, or are exchanged for a different number or
kind of shares or other securities, or additional shares or new or different
shares or other securities are distributed with respect to such shares of
Common Stock or other securities, an appropriate and proportionate adjustment
may be made in (i) the maximum number and kind of shares reserved for issuance
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<PAGE> 6
under the Plan, (ii) the number and kind of shares or other securities subject
to then outstanding options under the Plan, and (iii) the price for each share
subject to any then outstanding options under the Plan, without changing the
aggregate purchase price as to which such options remain exercisable.
(b) Committee Authority to Make Adjustments. Adjustments
under this Section 15 will be made by the Committee, whose determination as to
what adjustments, if any, will be made and the extent thereof will be final,
binding and conclusive. No fractional shares will be issued under the Plan on
account of any such adjustments.
16. REORGANIZATION.
(a) General. In the event of a consolidation or merger in
which the Company is not the surviving corporation, or which results in the
acquisition of substantially all of the Company's outstanding Common Stock by a
single person, entity or group of persons or entities acting in concert, or in
the event of the sale or transfer of all or substantially all of the assets of
the Company, or in the event of a reorganization or liquidation of the Company,
the Committee, or the Board of Directors of any corporation assuming the
obligations of the Company, shall, as to outstanding options, either (i)
provide that such options shall be assumed, or equivalent options shall be
substituted, by the acquiring or succeeding corporation (or an affiliate
thereof), provided that any such options substituted for Incentive Stock
Options shall meet the requirements of Section 424(a) of the Code, (ii) upon
written notice to the optionees, provide that all unexercised options will
terminate immediately prior to the consummation of such merger, consolidation,
acquisition, reorganization, liquidation, sale or transfer unless exercised by
the optionee within a specified number of days following the date of such
notice, or (iii) in the event of a merger under the terms of which holders of
the Common Stock of the Company will receive upon consummation thereof a cash
payment for each share surrendered in the merger (the "Merger Price"), make or
provide for a cash payment to the optionees equal to the difference between (A)
the Merger Price times the number of shares of Common Stock subject to such
outstanding options (to the extent exercisable) and (B) the aggregate purchase
price of all such outstanding options in exchange for the termination of such
options. In any such case, the Committee may, in its discretion, advance the
lapse of any waiting or installment periods and exercise dates.
(b) Substitute Options. The Committee may grant options
under the Plan in substitution for options held by employees of another
corporation who become employees of the Company, or a subsidiary of the
Company, as the result of a merger or consolidation of the employing
corporation with the Company or a subsidiary of the Company, or as a result of
the acquisition by the Company, or one of its subsidiaries, of property or
stock of the employing corporation. Substitute options may be granted on such
terms and conditions as the Committee considers appropriate in the
circumstances.
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<PAGE> 7
17. CHANGE IN CONTROL.
Notwithstanding any other provision of the Plan, in the event of
a "Change in Control of the Company" (as defined below), any restrictions on
exercising outstanding options issued pursuant to the Plan prior to any given
date shall terminate with respect to the number of whole shares constituting
50% of the shares subject to any such restriction, unless otherwise provided in
a particular stock option agreement. For purposes of the Plan, a "Change in
Control of the Company" shall occur or be deemed to have occurred only if :
(a) any "person", as such term is used in Sections 13(d)
and 14(d) of the Exchange Act (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, or
any corporation owned directly or indirectly by the stockholders of the Company
in substantially the same proportion as their ownership of stock of the
Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's then
outstanding securities;
(b) during any period of two consecutive years ending
during the term of the Plan (not including any period prior to the adoption of
the Plan), individuals who at the beginning of such period constitute the Board
of Directors of the Company, and any new Director (other than a Director
designated by a person who has entered into an agreement with the Company to
effect any transaction described in clause (a), (c) or (d) of this Section 17)
whose election by the Board of Directors or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds of the
Directors then still in office who were either Directors at the beginning of
the period or whose election or whose nomination for election was previously so
approved (collectively, the "Disinterested Directors"), cease for any reason to
constitute a majority of the Board of Directors;
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (A) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which
no "person" (as hereinabove defined) acquires more than 50% of the combined
voting power of the Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of
complete liquidation of the Company or the sale of all or substantially all of
the Company's assets which, in either case, has not previously been approved by
a majority of the Disinterested Directors.
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<PAGE> 8
18. NO SPECIAL EMPLOYMENT RIGHTS.
Nothing contained in the Plan or in any option shall confer upon
any optionee any right with respect to the continuation of his or her
employment by or service to the Company or interfere in any way with the right
of the Company at any time to terminate such employment or service or to
increase or decrease the compensation of the optionee.
19. AMENDMENT OF THE PLAN.
The Board of Directors may at any time, and from time to time,
modify or amend the Plan in any respect, except that the implementation of an
increase in the maximum number of shares that may be issued under the Plan
(except for adjustments specifically provided in the Plan) or an amendment that
would require stockholder approval under Section 422 of the Code as in effect
at the time of such amendment shall be limited as provided in Section 22. The
termination or any modification or amendment of the Plan shall not, without the
consent of an optionee, affect his or her rights under an option previously
granted to him or her. With the consent of the optionee affected, the
Committee may amend outstanding option agreements in a manner not inconsistent
with the Plan.
20. WITHHOLDING.
The Company shall have the right to deduct from payments of any
kind otherwise due to the optionee any federal, state or local taxes of any
kind required by law to be withheld with respect to any shares issued upon
exercise of options under the Plan. Subject to the prior approval of the
Company, which such approval may be withheld by the Company in its sole
discretion, such obligations may be satisfied, in whole or in part, (i) by
withholding shares of Common Stock otherwise issuable pursuant to the exercise
of an option, (ii) by delivering to the Company shares of Common Stock already
owned by the optionee or (iii) by such other means as the Company may require
or approve. The shares so delivered or withheld shall have a fair market value
equal to such withholding obligation. For purposes of this Section 20, the
"fair market value" of the stock issued upon the exercise of an option shall be
either: (A) as determined by the Committee, or (B) in the event the Company's
Common Stock is publicly traded, the price of the Common Stock on the date of
exercise of such option at the close of business of the principal stock
exchange or market upon which the Company's stock is listed.
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<PAGE> 9
21. CANCELLATION AND NEW GRANT OF OPTIONS.
The Committee shall have the authority to effect, at any time
and from time to time, with the consent of the affected optionees to the extent
required, the cancellation of any or all outstanding options under the Plan and
the grant in substitution therefor of new options under the Plan covering the
same or different numbers of shares of Common Stock, having an option purchase
price per share that may be lower or higher than the purchase price per share
of the canceled options and having such other terms as the Committee may
approve.
22. EFFECTIVE DATE AND DURATION OF THE PLAN.
(a) Effective Date. The Plan shall become effective when
adopted by the Board of Directors, but no Incentive Stock Option granted under
the Plan shall become exercisable unless and until the Plan shall have been
approved by the Company's stockholders. If such stockholder approval is not
obtained within twelve (12) months after the date of the Board's adoption of
the Plan, any Incentive Stock Options previously granted under the Plan shall
terminate and no further Incentive Stock Options shall be granted. Amendments
to the Plan shall become effective when adopted by the Board of Directors; but,
unless otherwise determined by the Board of Directors, no Incentive Stock
Option issued after the date of an amendment requiring stockholder approval
under Section 422 of the Code shall become exercisable (to the extent that such
amendment to the Plan was required to enable the Company to grant such
Incentive Stock Option to a particular optionee) unless and until such
amendment shall have been approved by the Company's stockholders. If such
stockholder approval is not obtained within twelve (12) months of the Board of
Directors' adoption of such amendment, any Incentive Stock Options granted on
or after the date of such amendment shall terminate to the extent that such
amendment to the Plan was required to enable the Company to grant such option
to a particular optionee. Subject to this limitation, options may be granted
under the Plan at any time after the effective date and before the date fixed
for termination of the Plan.
(b) Termination. The Plan shall terminate upon the earlier
of (i) the close of business on the day next preceding the tenth anniversary of
the date of its adoption by the Board of Directors, or (ii) the date on which
all shares available for issuance under the Plan shall have been issued
pursuant to the exercise or cancellation of options granted under the Plan. If
the date of termination is determined under (i) above, then options outstanding
on such date shall continue to have force and effect in accordance with the
provisions of the instruments evidencing such options.
Adopted by the Board of Directors and by the
Stockholders,
as amended by the Board of Directors,
as of September 28, 1996.
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<PAGE> 1
EXHIBIT 10.3
TRUSTED INFORMATION SYSTEMS, INC.
AMENDED AND RESTATED
1996 DIRECTORS' STOCK OPTION PLAN
1. PURPOSE.
The purpose of this 1996 Directors' Option Plan (the "Plan")
of Trusted Information Systems, Inc. (the "Company") is to promote the
recruiting and retention of highly qualified outside Directors and to
strengthen the commonality of interest between Directors and stockholders.
2. ADMINISTRATION.
The Plan will be administered by the Board of Directors of the
Company, whose construction and interpretation of the terms and provisions of
the Plan shall be final and conclusive. Grants of stock options under the Plan
and the amount and nature of the awards to be granted shall be automatic and
non-discretionary in accordance with Section 5. However, all questions of
interpretation of the Plan or of any options issued under it shall be
determined by the Board of Directors and such determination shall be final and
binding upon all persons having an interest in the Plan. No Director shall be
liable for any action or determination under the Plan made in good faith.
3. PARTICIPATION IN THE PLAN.
Directors of the Company who are not employees of the Company
or any subsidiary of the Company ("Eligible Directors") are eligible to receive
options under the Plan.
4. STOCK SUBJECT TO THE PLAN.
(a) The maximum number of shares which may be issued under
the Plan shall be 200,000 shares of the Company's Common Stock, $0.01 par value
per share ("Common Stock"), subject to adjustment as provided in Section 9.
(b) If any outstanding option under the Plan for any reason
expires or is terminated without having been exercised in full, the shares
allocable to the unexercised portion of such option shall again become
available for grant pursuant to the Plan.
(c) All options granted under the Plan shall be non-statutory
options which are not intended to meet the requirements of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
<PAGE> 2
5. TERMS, CONDITIONS AND FORM OF OPTIONS.
Each option granted under the Plan shall be evidenced by a
written agreement in such form as the Board of Directors shall from time to
time approve, which agreements shall comply with and be subject to the
following terms and conditions:
(a) Option Grant Dates. Following approval of the Plan by
the holders of a majority of the shares of Common Stock present or represented
at a meeting of the Company's stockholders duly called and held in accordance
with the Company's by-laws and applicable law, options shall be granted
automatically to all eligible Directors as follows: (i) each person who
becomes an Eligible Director before the date of the Company's initial public
offering of shares of its Common Stock (the "Initial Public Offering") shall be
granted an option to purchase 9,202 shares of Common Stock on the close of
business on the date of his or her initial election or appointment to the Board
of Directors or such later date as may be determined by the Board of Directors
prior to the Initial Public Offering; (ii) each person who becomes an Eligible
Director after the date of the Initial Public Offering shall be granted an
option to purchase 6,000 shares of Common Stock on the close of business on the
date of his or her initial election or appointment to the Board of Directors;
and (iii) commencing with the 1997 annual stockholders' meeting, each Eligible
Director shall be granted an additional option to purchase 1,250 shares of
Common Stock (an "Annual Grant") on the date of each annual stockholders'
meeting, including the meeting at which such Director is initially elected,
provided he or she is serving as a Director immediately after such meeting.
(b) Option Exercise Price. The option exercise price per
share for each option granted under the Plan shall equal the closing price per
share of the Company's Common Stock on NASDAQ, or the principal exchange on
which the Common Stock is then listed, on the date of grant, and if no such
price is reported on such date, such price as reported on the nearest preceding
date on which such price is reported; if any options are granted on or prior to
the date that the Company's Common Stock is listed on an exchange, the option
exercise price per share shall be the fair market value of the Common Stock
determined by the Board of Directors.
(c) Options Non-Transferable. Each option granted under the
Plan by its terms shall not be transferable by the optionee otherwise than by
will or by the laws of descent and distribution. Notwithstanding the
foregoing, options may be transferred by Directors to family members, to trusts
established for the benefit of family members or to partnerships or
corporations owned by family members.
(d) Exercise Period. Each option to purchase 9,202 or 6,000
shares (as applicable) of Common Stock on the date of the Director's election
to the Board of Directors shall become vested and exercisable with respect to
one-third of the shares upon each of the first, second, and third anniversaries
of his or her initial election or appointment to the Board of Directors (or the
date of the annual meeting of stockholders in such year, if earlier), and may
be exercised thereafter from time to time, in whole or in part, prior to the
earlier of (i) 60 days after an optionee ceases to serve as a Director (180
days if the optionee ceased to serve because of his or her death or permanent
disability) or (ii) the fifth anniversary of the date of grant. Each Annual
Grant shall become fully
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<PAGE> 3
vested upon the earlier of (a) the next annual stockholders' meeting or (b) the
first anniversary of the date of grant and may be exercised thereafter from
time to time, in whole or in part, prior to the earlier of (i) 60 days after an
optionee ceases to serve as a Director (180 days if the optionee ceased to
serve because of his or her death or permanent disability) or (ii) the fifth
anniversary of the date of grant.
(e) Exercise Procedure. Options may be exercised only by
written notice (in a form provided by or acceptable to the Company) to the
Company at its principal office accompanied by payment of the full
consideration for the shares as to which they are exercised.
(f) Payment of Purchase Price. Payment of the exercise price
may be made, at the election of the optionee, (i) by delivery of cash or check
to the order of the Company in an amount equal to the exercise price, (ii) by
delivery to the Company of shares of Common Stock of the Company already owned
and held by the optionee for at least twelve months and having a fair market
value equal in amount to the exercise price of the options being exercised, or
(iii) by any combination of such methods of payment. The fair market value of
any shares of Common Stock which may be delivered upon exercise of an option
shall be determined by the Company as of the date that such shares are
delivered.
6. ASSIGNMENTS.
The rights and benefits under the Plan may not be assigned
except as provided in Section 5.
7. TIME FOR GRANTING OPTIONS.
All options for shares subject to the Plan shall be granted,
if at all, not later than ten years after the date of the Board's adoption of
the Plan.
8. LIMITATION OF RIGHTS.
(a) No Right to Continue as a Director. Neither the Plan,
nor the granting of an option nor any other action taken pursuant to the Plan,
shall constitute or be evidence of any agreement or understanding, express or
implied, that the Company will retain a Director for any period of time.
(b) No Stockholder Rights for Options. The holder of an
option shall have no rights as a stockholder with respect to the shares covered
by the option until the date that the holder delivers all materials to exercise
such option to the Company in proper form with payment of the exercise price,
and no adjustment will be made for dividends or other rights for which the
record date is prior to the date on which such materials and payment are
delivered.
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<PAGE> 4
9. ADJUSTMENT PROVISIONS.
(a) Recapitalizations. If, through or as a result of any
merger, consolidation, sale of all or substantially all of the assets of the
Company, reorganization, recapitalization, reclassification, stock dividend,
stock split, reverse stock split or other similar transaction, (i) the
outstanding shares of Common Stock are increased or decreased or are exchanged
for a different number or kind of shares or other securities of the Company, or
(ii) additional shares or new or different shares or other securities of the
Company or other non-cash assets are distributed with respect to such shares of
Common Stock or other securities, an appropriate and proportionate adjustment
may be made in (x) the maximum number and kind of shares reserved for issuance
under the Plan, (y) the number and kind of shares or other securities subject
to then outstanding options under the Plan, and (z) the price for each share
subject to any then outstanding options under the Plan, without changing the
aggregate purchase price as to which such options remain exercisable.
(b) Mergers. In the event of a consolidation or merger or
sale of all or substantially all of the assets of the Company in which
outstanding shares of Common Stock are exchanged for securities, cash or other
property of any other corporation or business entity or in the event of a
liquidation of the Company, the Board of Directors of the Company, or the board
of Directors of any corporation assuming the obligations of the Company, may,
in its discretion, take any one or more of the following actions, as to
outstanding options: (i) provide that such options shall be assumed, or
equivalent options shall be substituted, by the acquiring or succeeding
corporation (or an affiliate thereof), (ii) upon written notice to the
optionees, provide that all unexercised options will terminate immediately
prior to the consummation of such transaction unless exercised by the optionee
within a specified period following the date of such notice, and (iii) in the
event of a merger under the terms of which holders of the Common Stock of the
Company will receive upon consummation thereof a cash payment for each share
surrendered in the merger (the "Merger Price"), make or provide for a cash
payment to the optionees equal to the difference between (a) the Merger Price
times the number of shares of Common Stock subject to such outstanding options
(to the extent then exercisable at prices not in excess of the Merger Price)
and (b) the aggregate exercise price of all such outstanding options in
exchange for the termination of such options.
10. CHANGE IN CONTROL.
Notwithstanding any other provision of the Plan, in the event
of a "Change in Control of the Company" (as defined below), any outstanding
options issued pursuant to the Plan prior to the date of such Change in Control
of the Company shall vest and be exercisable as to 50% of the number of shares
that remain unvested on the date of such Change in Control of the Company. For
purposes of the Plan, a "Change in Control of the Company" shall occur or be
deemed to have occurred only if :
(a) any "person", as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, or
any corporation owned directly or indirectly by the stockholders of the Company
in substantially the same proportion as their ownership of stock of the
Company), is
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<PAGE> 5
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 50% or
more of the combined voting power of the Company's then outstanding securities;
(b) during any period of two consecutive years ending during
the term of the Plan (not including any period prior to the adoption of the
Plan), individuals who at the beginning of such period constitute the Board of
Directors of the Company, and any new director (other than a director
designated by a person who has entered into an agreement with the Company to
effect any transaction described in clause (a), (c) or (d) of this Section 10)
whose election by the Board of Directors or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were either directors at the beginning of
the period or whose election or whose nomination for election was previously so
approved (collectively, the "Disinterested Directors"), cease for any reason to
constitute a majority of the Board of Directors;
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (i) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation or (ii) a merger or consolidation effected
to implement a recapitalization of the Company (or similar transaction) in
which no "person" (as hereinabove defined) acquires more than 50% of the
combined voting power of the Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of
complete liquidation of the Company or the sale of all or substantially all of
the Company's assets which, in either case, has not previously been approved by
a majority of the Disinterested Directors.
11. AMENDMENT OF THE PLAN.
(a) The Board of Directors may at any time, and from time to
time, modify or amend the Plan in any respect.
(b) The termination or any modification or amendment of the
Plan shall not, without the consent of an optionee, affect his or her rights
under an option previously granted to him or her. With the consent of the
optionees affected (if so required hereby), the Board of Directors may amend
outstanding option agreements in a manner not inconsistent with the Plan.
12. NOTICE.
Any written notice to the Company required by any of the
provisions of the Plan shall be addressed to the Chief Financial Officer of the
Company and shall become effective when it is received.
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<PAGE> 6
13. EFFECTIVE DATE AND DURATION OF THE PLAN.
(a) Effective Date. The Plan shall become effective when
adopted by the Board of Directors, but no option granted under the Plan shall
become exercisable unless and until the Plan shall have been approved by the
Company's stockholders.
(b) Termination. Unless earlier terminated pursuant to
Section 9, the Plan shall terminate upon the earlier of (i) April 19, 2006, or
(ii) the date on which all shares available for issuance under the Plan shall
have been issued pursuant to the exercise of options granted under the Plan.
If the date of termination is determined under (i) above, then options
outstanding on such date shall continue to have force and effect in accordance
with the provisions of the instruments evidencing such options.
14. GENERAL RESTRICTIONS.
(a) Investment Representations. The Company may require any
person to whom an option is granted, as a condition of exercising such option,
to give written assurances in substance and form satisfactory to the Company to
the effect that such person is acquiring the Common Stock subject to the option
for his or her own account for investment and not with any present intention of
selling or otherwise distributing the same, and to such other effects as the
Company deems necessary or appropriate in order to comply with federal and
applicable state securities laws.
(b) Compliance With Securities Laws. Each option shall be
subject to the requirement that if, at any time, counsel to the Company shall
determine that the listing, registration or qualification of the shares subject
to such option upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any other condition
is necessary as a condition of, or in connection with, the issuance or purchase
of shares thereunder, such option may not be exercised, in whole or in part,
unless such listing, registration, qualification, consent or approval, or
satisfaction of such conditions is effected in a manner acceptable to the Board
of Directors. Nothing herein shall be deemed to require the Company to apply
for or to obtain such listing, registration or qualification, or to satisfy
such condition.
15. GOVERNING LAW.
The Plan and all determinations made and actions taken
pursuant hereto shall be governed by the laws of the State of Delaware.
Adopted by the Board of Directors and
by the Stockholders,
as amended by the Board of Directors,
as of September 28, 1996.
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<PAGE> 1
EXHIBIT 10.7
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made as of the
____ day of ___________, 1996, by and between TRUSTED INFORMATION SYSTEMS,
INC., a Delaware corporation (the "Corporation"), and ______________________
("Indemnitee"), a director and/or executive officer of the Corporation.
RECITALS
A. WHEREAS, it is essential to the Corporation to retain and
attract as directors and executive officers of the Corporation the most
capable persons available; and
B. WHEREAS, the substantial increase in corporate litigation
subjects directors and executive officers to expensive litigation risks at the
same time that the availability of directors' and officers' liability
insurance has been severely limited; and
C. WHEREAS, it is the express policy of the Corporation to
indemnify directors and executive officers of the Corporation so as to provide
them with the maximum possible protection permitted by law; and
D. Indemnitee does not regard the protection available under the
Delaware General Corporation Law or the Corporation's Bylaws as adequate in
the present circumstances, and may not be willing to serve as a director or
executive officer without adequate protection, and the Corporation desires
Indemnitee to serve in such capacity.
AGREEMENTS
NOW THEREFORE, the Corporation and Indemnitee do hereby agree as
follows:
1. Agreement to Serve. Indemnitee agrees to serve or continue to
serve as a director and/or an executive officer of the Corporation for so long
as he is duly elected or appointed or until such time as he tenders his
resignation in writing.
2. Definitions. As used in this Agreement:
(a) The term "Proceeding" shall include any threatened,
pending or completed action, suit, investigation or proceeding, and any appeal
thereof, whether brought by or in the right of the Corporation or otherwise
and whether civil, criminal, administrative or investigative, and/or any
inquiry or investigation, in which Indemnitee may be or may have been involved
as a party or otherwise, or that Indemnitee in good faith believes might lead
to the institution of any such proceeding, by reason of the fact that
Indemnitee is or was a director or executive officer of the Corporation, by
reason of any action taken by him or of any inaction on his part while acting
<PAGE> 2
as such a director or executive officer, or by reason of the fact that he is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise; in each case whether or not he is acting or serving in any
such capacity at the time any liability or expense is incurred for which
indemnification or reimbursement can be provided under this Agreement.
(b) The term "Expenses" shall include, without limitation,
expenses, costs and obligations, paid or incurred, of investigations, judicial
or administrative proceedings or appeals, amounts paid in settlement by or on
behalf of Indemnitee, attorneys' fees and disbursements and any expenses
reasonably and actually incurred in establishing a right to indemnification
under Section 8 of this Agreement including, without limitation, those
incurred in investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend with respect to any claim, issue
or matter relating thereto or in connection therewith, but shall not include
the amount of judgments, fines or penalties against Indemnitee.
(c) A "Change in Control" shall be deemed to have occurred if,
after the date hereof, there is any transaction or series of transactions
within any twelve (12)-month period, including, without limitation, a merger,
consolidation or exchange of securities, in which the holders of all of the
Corporation's outstanding voting securities immediately prior to the
consummation of such transaction or the first transaction of such series of
transactions do not own, directly or indirectly, a majority of the combined
voting power of the Corporation's outstanding securities upon consummation of
such transaction or series of such transactions.
(d) The term "Independent Legal Counsel" shall include any
attorney or firm of attorneys, selected in accordance with Section 5 hereof,
who shall not have otherwise performed services for the Corporation or the
Indemnitee within the five years prior to the date of selection (other than
with respect to matters concerning the rights of Indemnitee under this
Agreement, or of other Indemnitees under similar indemnity agreements).
(e) References to "other enterprise" shall include employee
benefit plans; references to "fines" shall include any excise tax assessed
with respect to any employee benefit plan; references to "serving at the
request of the Corporation" shall include any service as a director, executive
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, executive officer, employee, or agent
with respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner he reasonably believed to
be in the interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the
best interests of the Corporation" as referred to in this Agreement.
3. Indemnity in Third-Party Proceedings. The Corporation shall
indemnify Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee is a party to or threatened to be made a party to any Proceeding
(other than a Proceeding by or in the right of the Corporation to procure a
judgment in its favor) by reason of the fact that Indemnitee is or was a
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<PAGE> 3
director or executive officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against all Expenses, judgments, fines and penalties actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of such
Proceeding, but only if he acted in good faith and in a manner which he
reasonably believed to be (in the case of conduct in his official capacity) in
the best interests of the Corporation or (in all other cases) not opposed to
the best interests of the Corporation, and, in the case of a criminal action
or proceeding, in addition, had no reasonable cause to believe that his
conduct was unlawful. The termination of any such Proceeding by judgment,
order of court, settlement, conviction, or upon a plea of nolo contendere, or
its equivalent, shall not, of itself, create a presumption that Indemnitee did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation (or that Indemnitee did
not meet any other particular standard of conduct or have any other particular
belief or that a court has determined that indemnification is not permitted by
applicable law), and with respect to any criminal proceeding, that such person
had reasonable cause to believe that his conduct was unlawful.
4. Indemnitee in Proceedings by or in the Right of the
Corporation. The Corporation shall indemnify Indemnitee in accordance with
the provisions of this Section 4 if Indemnitee is a party to or threatened to
be made a party to any Proceeding by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that Indemnitee is or
was a director or executive officer of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust or other enterprise,
against all Expenses actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of such Proceeding, but only if he
acted in good faith and in a manner which he reasonably believed to be (in the
case of conduct in his official capacity) in the best interests of the
Corporation or (in all other cases) not opposed to the best interests of the
Corporation, except that no indemnification for Expenses shall be made under
this Section 4, in respect of any Proceeding as to which Indemnitee shall have
been adjudged to be liable to the Corporation, unless and only to the extent
that any court in which such Proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnity for such expenses as such court shall deem proper. Notwithstanding
the foregoing, Indemnitee shall have no right to indemnification for Expenses
and the payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act of
1934, as amended.
5. Change in Control. The Corporation agrees that in the event of
a Change in Control, and with respect to all matters thereafter arising
concerning the rights of Indemnitee to indemnification and payment of Expenses
under this Agreement or any other agreement to which the Corporation and
Indemnitee are parties or the Corporation's Bylaws now or hereafter in effect
relating to indemnification of Directors and/or Officers of the Corporation,
the Corporation shall seek legal advice only from the Independent Legal
Counsel selected by Indemnitee and approved
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<PAGE> 4
by the Corporation (which approval shall not be unreasonably withheld). Such
counsel, among other things, shall render its written opinion to the
Corporation and Indemnitee as to whether and to what extent the Indemnitee
would be permitted to be indemnified under applicable law. The Corporation
agrees to pay the reasonable fees of the Independent Legal Counsel referred to
above and to indemnify fully such counsel against any and all expenses
(including attorney's fees), claims, liabilities and damages arising out of or
relating to this Agreement or its engagement pursuant hereto.
6. Indemnification Prohibited. Notwithstanding the provisions of
Sections 3 and 4, no indemnification shall be made in connection with any
Proceeding charging improper personal benefit to the Indemnitee, whether or
not involving action in his official capacity, in which he was adjudged liable
on the basis that personal benefit was improperly received by him.
7. Indemnification of Expenses of Successful Party.
Notwithstanding any other provision of this Agreement whatsoever, to the
extent that Indemnitee has been successful on the merits or otherwise
(including a settlement) in defense of any Proceeding or in defense of any
claim, issue or matter therein, including dismissal without prejudice,
Indemnitee shall be indemnified against all Expenses reasonably and actually
incurred in connection therewith.
8. Advance of Expenses. Expenses incurred by the Indemnitee
pursuant to Sections 3 and 4 in any Proceeding shall be paid by the
Corporation in advance as soon as practicable but not later than three
business days after receipt of the written request of the Indemnitee provided
that Indemnitee shall (i) affirm in such written request that he acted in good
faith and in a manner which he reasonably believed to be (in the case of
conduct in his official capacity) in the best interests of the Corporation or
(in all other cases) not opposed to the best interests of the Corporation and
(ii) undertake to repay such amount to the extent that it is ultimately
determined that Indemnitee is not entitled to indemnification, and further
provided that a determination has been made that the facts then known would
not preclude indemnification pursuant to the terms of this Agreement.
9. Right of Indemnitee to Indemnification Upon Application;
Procedure Upon Application.
(a) Any indemnification under Sections 3 and 4 shall be made
as soon as practicable but in any event no later than 30 days after receipt by
the Corporation of the written request of Indemnitee.
(b) The right of indemnification or advances as provided by
this Agreement shall be enforceable by Indemnitee in any court of competent
jurisdiction. The burden of proving that indemnification or advances are not
appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, Independent Legal Counsel, or
stockholders) to have made a determination prior to the commencement of such
action that indemnification or advances are proper in the circumstances
because Indemnitee has
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<PAGE> 5
met the applicable standard of conduct, nor an actual determination by the
Corporation (including its Board of Directors, Independent Legal Counsel, or
stockholders) that Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has
not met the applicable standard of conduct. Indemnitee's expenses reasonably
incurred in connection with successfully establishing Indemnitee's right to
indemnification or advances, in whole or in part, in any such Proceeding shall
also be indemnified by the Corporation.
(c) The Corporation shall not be liable under this Agreement
to make any payment in connection with any claim made against Indemnitee to
the extent Indemnitee has otherwise actually received payment or is entitled
to receive payment (under any insurance policy, Bylaw or otherwise) of the
amounts otherwise indemnifiable hereunder.
10. Indemnification Hereunder Not Exclusive.
(a) Notwithstanding any other provision of this Agreement, the
Corporation hereby agrees to indemnify the Indemnitee to the full extent
permitted by law, whether or not such indemnification is specifically
authorized by the other provisions of this Agreement, the Corporation's
Certificate of Incorporation, Bylaws, or by statute. In the event of any
changes, after the date of this Agreement, in any applicable law, statute, or
rule which expand the right of a Delaware corporation to indemnify its
directors or executive officers, such changes shall be deemed within the
purview of the Indemnitee's rights, and Corporation's obligations, under this
Agreement. In the event of any changes in any applicable law, statute, or
rule which narrow the right of a Delaware corporation to indemnify a member of
its board of directors, such changes, to the extent not otherwise required by
such law, statute or rule to be applied to this Agreement, shall have no
effect on this Agreement or the parties' rights and obligations hereunder.
(b) The indemnification provided by this Agreement shall not
be deemed exclusive of any other rights to which Indemnitee may be entitled
under the Certificate of Incorporation, the Bylaws, any agreement, any vote of
shareholders or disinterested directors, the laws of the State of Delaware, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
11. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Corporation for some or
a portion of the Expenses, judgments, fines or penalties actually and
reasonably incurred by him in the investigation, defense, appeal or settlement
of any Proceeding but not, however, for the total amount thereof, the
Corporation shall nevertheless indemnify Indemnitee for the portion of such
Expenses, judgments, fines or penalties to which Indemnitee is entitled.
Moreover, notwithstanding any other provision of this Agreement, to the extent
that Indemnitee has been successful on the merits or otherwise in defense of
any or all claims, issues or matters relating in whole or in part to an
indemnifiable event, occurrence or matter hereunder, including dismissal
without prejudice, Indemnitee shall be indemnified against all Expenses
incurred in connection with such defenses.
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<PAGE> 6
12. Effect of Federal Law. Both the Company and the Indemnitee
acknowledge that in certain instances, federal law will override Delaware law
and prohibit the Corporation from indemnifying its officers and directors.
For example, the Corporation and Indemnitee acknowledge that the Securities
and Exchange Commission has taken the position that indemnification is not
permissible for liabilities arising under certain federal securities laws, and
federal law prohibits indemnification for certain violations of the Employee
Retirement Income Security Act.
13. Liability Insurance.
(a) The Corporation shall from time to time make the good
faith determination whether or not it is practicable for the Corporation to
obtain and maintain a policy or policies of insurance with reputable insurance
companies providing the officers and directors with coverage for losses from
wrongful acts, or to ensure the Corporation's performance of its
indemnification obligations under this Agreement. Among other considerations,
the Corporation will weigh the costs of obtaining such insurance against the
protection afforded by such coverage.
(b) Indemnitee hereby releases the Corporation and its
respective authorized representatives from any claims for indemnification
hereunder if and to the extent that Indemnitee receives proceeds from any
liability insurance policy or other third-party source in payment or
reimbursement for such claims. Indemnitee hereby agrees to assign to the
Corporation all proceeds Indemnitee receives under any such insurance policy
or third-party agreement to the extent of the amount of indemnification made
to Indemnitee under the terms of this Agreement. Finally, Indemnitee shall
cause each insurance policy or other third-party agreement by which the
Indemnitee may be entitled to payment or reimbursement to provide that the
insurance company or the third-party agreement by which the Indemnitee may be
entitled to payment or reimbursement to provide that the insurance company or
the third party waives all right of recovery by way of subrogation against the
Corporation in connection with any claim for indemnification under this
Agreement. If such waiver of subrogation cannot be obtained except with the
payment of additional sums in premiums or otherwise, the Indemnitee shall
notify the Corporation of this fact. The Corporation shall then have ten (10)
days after receiving such notice to agree to pay such additional sums. If a
waiver of subrogation rights is not obtainable at any price of if the
Corporation shall fail to agree to pay such additional sums, Indemnitee shall
be relieved of the obligation to obtain the waiver of subrogation rights with
respect to any particular insurance policy or third-party agreement.
14. Saving Clause. Nothing in this Agreement is intended to
require or shall be construed as requiring the Corporation to do or fail to do
any act in violation of applicable law. The provisions of this Agreement
(including any provision within a single section, paragraph or sentence) shall
be severable in accordance with this Section 14. If this Agreement or any
portion thereof shall be invalidated on any ground by any court of competent
jurisdiction, the
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<PAGE> 7
Corporation shall nevertheless indemnify Indemnitee as to Expenses, judgments,
fines and penalties with respect to any Proceeding to the full extent
permitted by any applicable portion of this Agreement that shall not have been
invalidated or by any other applicable law, and this Agreement shall remain
enforceable to the fullest extent permitted by law.
15. Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if delivered personally or
sent by telex, federal express, registered or certified mail, postage prepaid,
addressed as follows or to such other address of which the parties may have
given notice pursuant to this Section 15:
To the Corporation:
------------------
Trusted Information Systems, Inc.
3060 Washington Road (Rt. 97)
Glenwood, MD 21738
Attention: Mr. Stephen T. Walker, President
With a copy to:
--------------
Piper & Marbury L.L.P.
1200 Nineteenth Street, N.W.
Washington, D.C. 20036
Attention: Edwin M. Martin, Jr., Esq.
Unless otherwise specified herein, such notices or other communications shall
be deemed received (a) on the date delivered, if delivered personally; or (b)
three (3) business days after being sent, if sent by telex, federal express,
or registered or certified mail.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
17. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to its rules of conflicts of laws.
18. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties and their
respective successors and assigns (including any direct or indirect successors
by purchase, merger, consolidation or otherwise to all or substantially all of
the business and/or assets of the Corporation), spouses, heirs, and personal
and legal representatives. The Corporation shall require and cause any
successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all, substantially all or a substantial part, of the business
and/or assets of the Corporation, by written agreement in form and substance
satisfactory to the Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Corporation would
be required to
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<PAGE> 8
perform if no such succession had taken place. This Agreement shall continue
in effect regardless of whether Indemnitee continues to serve as a director
and/or executive officer of the Corporation or of any other enterprise.
19. Attorneys' Fees. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms
hereof, Indemnitee shall be entitled to be paid all court costs and expenses,
including reasonable attorneys' fees and disbursements, incurred by Indemnitee
with respect to such action, unless as a part of such action, a court of
competent jurisdiction determines that each of the material assertions made by
Indemnitee as a basis for such action were not made in good faith or were
frivolous. In the event of an action instituted by or in the name of the
Corporation under this Agreement or to enforce or interpret any of the terms
of this Agreement, Indemnitee shall be entitled to be paid all court costs and
expenses, including attorneys' fees and disbursements, incurred by Indemnitee
in defense of such action (including with respect to Indemnitee's
counterclaims and crossclaims made in such action), unless as a part of such
action the court determines that each of Indemnitee's material defenses to
such action were made in bad faith or were frivolous.
20. Subsequent Instruments and Acts. The parties hereto agree that
they will execute any further instruments and perform any acts that may become
necessary from time to time to carry out the terms of this Agreement.
21. Limitations Period. No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Corporation or any
affiliate of the Corporation against Indemnitee, Indemnitee's spouse, heirs,
executors or personal or legal representatives after the expiration of two
years from the date of accrual of such cause of action, and any claim or cause
of action of the Corporation or its affiliates shall be extinguished and
demand released unless asserted by the timely filing of a legal action within
such two-year period; provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of action such shorter
period shall govern.
22. Pronouns. Whenever the context may require, any pronouns used
in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural, and vice versa.
23. Entire Agreement; Amendments. This Agreement, and all
agreements and instruments to be delivered by the parties pursuant hereto
represent the entire understanding and agreement between the parties hereto
with respect to the subject matter hereof and supersede all prior oral and
written and all contemporaneous oral negotiations, commitments and
understandings by and between such parties. The parties, upon mutual consent,
may amend or modify this Agreement, in such manner as may be agreed upon, by a
written instrument executed by the parties hereto.
- 8 -
<PAGE> 9
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to
be duly executed and signed as of the day and year first above written.
TRUSTED INFORMATION SYSTEMS, INC.
By:
-----------------------------------
Stephen T. Walker
President
INDEMNITEE:
------------------------------------------
Name:
------------------------------------
- 9 -
<PAGE> 1
EXHIBIT 10.16.1
[MERCANTILE LOGO] MERCANTILE-SAFE DEPOSIT & TRUST COMPANY
SECURITY AGREEMENT
Name and Address of Borrower: Trusted Information Systems, Inc. 3060 Washington
Road, Glenwood, Md. 21738, (hereinafter called "Obligor") does hereby grant to
the above named bank (hereinafter called "Bank"), its successors and assigns,
a security interest in the following collateral (all hereinafter called
"Collateral"), All business assets to secure all liabilities of Obligor to
Bank, now existing and hereafter arising, of any kind and nature, primary,
secondary, direct, contingent, joint and several (hereinafter called the
"Liability" or the "Liabilities").
(1) OBLIGOR'S WARRANTIES:
Obligor warrants;
(a) That it owns the Collateral free and clear of all liens and
encumbrances, defaults and adverse claims and conditions except as has been
disclosed to Bank by Obligor in writing.
(b) That it has the right to make this agreement and has duly
authorized its execution,
(c) That the collateral is used or bought for use primarily for
business purposes and is located at Obligor's primary place of business, unless
Obligor has otherwise notified Bank in writing.
(d) That Obligor's principal place of business is the address
specified above and all other places of business are specified below.
(e) That all financial information given to Bank about Obligor,
the Collateral and all other parties to and collateral for the Liabilities is
complete, accurate and not misleading.
(2) OBLIGOR'S AGREEMENTS:
Obligor agrees:
(a) To perform all obligations under each of the Liabilities when
due.
(b) To maintain accurate and complete books and records (complying
with generally accepted accounting principles) relating to the Collateral.
(c) To provide Bank such financial information as Bank may request
from time to time and it authorizes Bank to make all inquiries Bank deems
necessary to verify the accuracy of the information provided.
(d) To protect and maintain the Collateral in good condition and
repair, free of all liens and encumbrances.
(e) To defend the Collateral against the claims and demands of all
persons and to pay all taxes and fees levied thereon or in connection with the
use thereof.
(f) To keep the Collateral insured against loss by fire, theft,
and other hazards for the benefit of, and as required by Bank (naming Bank
either as loss payee or as an additional insured at Bank's option) in such
amounts and by carriers satisfactory to Bank. All policies or certificates of
insurance shall be delivered to the Bank. Obligor assigns to Bank all right to
receive proceeds of insurance and returned premiums, directs any insurer to pay
all proceeds and returned premiums directly to Bank, and authorizes Bank to
endorse any draft for the proceeds or premiums, which shall be additional
Collateral.
(g) Not to dispose of any Collateral except in the ordinary course
of business.
(h) To pay all taxes and assessments when due and to permit
nothing to be done which would impair the continued perfection and value of the
security interest granted herein.
(i) To pay on demand as part of the debt hereby secured all
expenses (with interest thereon until repaid in full at the highest rate
charged against principal in any Liability) incurred by Bank, including legal
fees, to cure any default herein, to determine the status of Bank's security
interest in the Collateral, to preserve and maintain the Collateral, to enforce
any provision herein and to exercise any right or remedy.
(j) To execute and deliver all documents tendered by Bank to
perfect, continue and confirm Bank's security interest in the Collateral. Bank
is authorized to file any documents it deems appropriate to perfect or maintain
the perfection of the security interest hereby or hereafter granted with
respect to Collateral without the signature of Obligor and to execute and file
any such document on behalf of Obligor.
(k) To pay all costs of any such filings, including recording
taxes and filing fees and to sign, upon request, any instruments, documents, or
other papers which Bank may request to confirm, perfect or maintain perfection
of its security interest in the Collateral.
(l) To promptly provide to Bank at its request, whether before or
after default, access to the Collateral and all books and records relevant to
Obligor's business, and after default, at Bank's request, to assemble the
Collateral and make it available to Bank at a place reasonably convenient to
both parties.
(m) To immediately advise Bank in writing of any change of
Obligor's places of business, or the opening of any new place of business.
(n) Bank is hereby appointed Obligor's attorney-in-fact to do all
acts and things which Bank may deem necessary to perfect and continue perfected
the security interest created by this security agreement and to protect the
Collateral.
(3) DEFAULT BY OBLIGOR:
Until default Obligor may retain possession of the Collateral and use
it in any lawful manner not inconsistent with the agreements herein, or with
the terms and conditions of any policy of insurance thereon.
Upon default by Obligor in the performance of any covenant or
agreement in any Liability, or if any warranty should prove untrue, or if
Obligor should become insolvent, seek protection from creditors under state or
federal law, suspend transaction of its usual business, dissolve, merge,
consolidate or reorganize, Bank shall have all of the rights and remedies of a
secured party under the Maryland Uniform Commercial Code or other applicable
law and all rights provided herein, in the Liabilities, or in any other
applicable security or loan agreement, all of which rights and remedies shall,
to the full extent permitted by law, be cumulative. In addition, Bank may cure
the default at Obligor's expense or take possession of Collateral and all
records recording thereto and for that purpose may enter Obligor's premises
without legal process. Obligor authorizes Bank to sell Collateral and consents
to a decree for sale of Collateral. Any notice of sale or other action by Bank
shall be reasonable if sent by regular mail to Obligor's principal place of
business as disclosed in Bank's records at least five days before the proposed
action. Obligor will repay on demand all expenses (including legal fees)
incurred by Bank in enforcing its rights with interest thereon until repaid in
full at the highest rate charged against principal in any Liability. The
waiver of any default hereunder shall not be a waiver of any subsequent
default. No provisions hereof may be modified except in writing signed by the
party to be charged. This agreement shall be governed by the laws of the State
of Maryland.
All rights of Bank hereunder shall inure to the benefit of its
successors and assigns; and all obligations of Obligor shall bind its heirs,
executors, administrators, successors and assigns.
IN WITNESS WHEREOF, Obligor has caused this Agreement under seal to be
executed as a specialty this ___________________________________________ day of
___________________________________________, 19_____.
Places of Business:
Trusted Information Systems, Inc.
- ------------------------------- ----------------------------------------
Name of Corporation or Partnership
By: /s/ Stephen T. Walker (SEAL)
- ------------------------------- --------------------------------
Stephen T. Walker, President
By: (SEAL)
--------------------------------
INDIVIDUALS SIGN BELOW
SEAL
-----------------------------------
(SEAL)
----------------------------------
(SEAL)
----------------------------------
436337-001 REV. 3/90
<PAGE> 1
EXHIBIT 10.16.2
[MERCANTILE LOGO] MERCANTILE-SAFE DEPOSIT & TRUST COMPANY
REVOLVING NOTE
(Commercial)
$2,000,000.00 , 19
------------------- ------------------- -----
In this Note, the Bank named above is hereinafter referred to as
"Bank." The Undersigned means each and all parties who sign below, whether one
or more than one, and their obligations hereunder are joint and several.
On or before December 31, 1996, the Undersigned promises to pay to the
order of Bank $2,000,000.00 (Two million and no/100 U.S. Dollars), or so
much thereof as Bank in its discretion has advanced or readvanced and is
outstanding hereunder (being herein called "Principal Sum"), with interest as
stated below on the Principal Sum. Bank has established a revolving line of
credit for Undersigned from which Undersigned, subject to Bank's consent, may
obtain one or more loans from time to time, with the aggregate unpaid Principal
Sum of such loans actually advanced and remaining unpaid not to exceed the face
amount of this Note. Advances and readvances hereunder remaining unpaid from
time to time shall bear interest each day until paid at a daily periodic rate
corresponding to an annual percentage rate equal to 3 percent above Mercantile
Prime Rate (being herein called the "Index"). The daily periodic interest rate
will increase or decrease as the Index increases or decreases. Where Bank's
Prime Rate is used as the Index, the "Prime Rate" is one of several rates set
by Bank from time to time as an interest rate base for borrowings. Bank may
lend at rates above and below the Prime Rate. Interest shall be due and
payable Monthly on the first.
If Maker fails to pay any amount within 15 days after the date on
which it is due, Maker agrees to pay a late charge of the greater of $2 or 5%
of the delinquent amount. All payments will be applied in any manner we chose
except as otherwise required by applicable law. Generally, payments are
applied first to interest due; second to principal due; third to late charges;
fourth to any remaining interest and finally to the remaining principal.
Maker covenants to provide Bank such financial information as Bank may
request from time to time and authorizes Bank to make all inquiries it deems
necessary to verify the accuracy of the information provided, to protect and
maintain its assets in good condition and repair, free of all liens and
encumbrances, to keep its assets insured against loss by fire, theft and other
casualties as required by Bank in such amounts and by carriers satisfactory to
Bank, not to dispose of any assets except in the ordinary course of business,
and to pay all taxes and assessments when due.
Advances and readvances hereunder may be prepaid in whole or in part.
The fact that the balance hereunder may be reduced to zero from time to time
will not affect the continuing validity of this Note, and the balance may be
increased to the face amount of the Note after such reductions to zero. Bank
in its discretion may make an advance which causes the principal balance to
exceed the face amount of the Note and such excess shall be paid by the
Undersigned upon demand with interest as provided above.
Each of the following events shall constitute a default hereunder; (a)
the breach of any representation in or the failure of any Obligor (which term
shall include each Maker, endorser, surety and guarantor of any of the
Liabilities) to perform any covenant or agreement under any of the Liabilities
(which term shall include all obligations under this Note, and any renewals,
extensions or modifications thereof, and all other obligations of any kind of
Maker to Bank and to any other party to the extent of Bank's interest therein,
now or hereafter existing, including liabilities to Bank of Maker as a member
of any partnership or other group and whether incurred by Maker as principal or
otherwise); (b) the death of any Obligor; (c) the filing of any petition under
the Federal Bankruptcy Code or any similar Federal or state statute, by or
against any Obligor; (d) an application or the appointment of a receiver for,
the making of a general assignment for the benefit of creditors by, or the
insolvency of any Obligor; (e) commencement of any proceeding under any Federal
or state statute or rule providing for the relief of debtors, composition of
creditors, arrangement, reorganization, receivership liquidation or any similar
event by or against any Obligor; (f) the entry of a judgment against any
Obligor; (g) the issuing of any attachment or garnishment, or the filing of any
lien, against any property of any Obligor; (h) the suspension by any Obligor of
the transaction of such Obligor's usual business; (i) the merger or
consolidation of any corporate Obligor with any other corporation or the
transfer, disposition or encumbrance of all or a substantial part of the assets
of any Obligor; (j) if any Obligor misinformed or failed to inform Bank as to
any matter which the Bank deems material to a Liability; (k) the determination
by an officer of Bank that an adverse change has occurred in the financial
condition of any Obligor from the condition of such Obligor as heretofore most
recently disclosed to Bank by a financial statement or in any other manner. If
this Note is payable upon demand, demand may be made whether or not an event
has occurred.
To secure payment of the Liabilities, Bank is hereby granted a lien
and security interest in all property of any Obligor held now or hereafter by
Bank in any capacity and upon the occurrence of any default hereunder Bank
shall have the right, immediately and without further action by it, to set-off
against any of the Liabilities, all such property, and Bank shall be deemed to
have exercised such right of set-off and to have made a charge against such
property immediately upon the occurrence of such default even though such
charge is made or entered subsequently on the books of Bank.
A delay by Bank in exercising any right or remedy shall not constitute
a waiver. A waiver of a default, right or remedy shall not constitute a waiver
of a subsequent default, right or remedy. A single or partial exercise of a
right or remedy shall not preclude or constitute a waiver of any unexercised
right or remedy. Bank will not waive a default by accepting partial payment of
any amount due. All rights and remedies hereunder and under applicable laws
shall be cumulative. Every obligation of each Obligor is joint and several.
Bank may exercise its rights against Collateral or an Obligor without first
having recourse against any other collateral or Obligor.
Whenever any Obligor shall be in default hereunder, Bank at its option
(1) may cure the default at Maker's expense; (2) may refuse to make further
advances; (3) may declare any of the Liabilities immediately due and payable;
and (4) may exercise any or all rights and remedies available to it under the
Liabilities and applicable law.
Maker convenants to pay on demand, with interest until paid in full at
the rate imposed upon principal herein, all expenses incurred by Bank,
including legal fees, to cure any default herein, to enforce any provision of
the Liabilities or to exercise any right or remedy.
Each Obligor waives presentment, notice of dishonor, protest and all
other demands and notices in connection with any of the Liabilities and with
respect to any collateral and waives any right to trial by jury and further
agrees that the courts of the State of Maryland shall have personal
jurisdiction over it in any legal proceedings with respect to any of the
Liabilities. Each Obligor without further notice assents to all extensions of
the time of payment of any Liability or any other indulgence or modification of
a Liability, to any substitution, exchange or release of collateral and to the
addition or release of any Obligor, whether or not done for consideration, all
without in any way affecting its obligation. Bank may unjustifiably and
without reservation of rights impair any Obligor's recourse against another
obligor or collateral. Except when invalid or unenforceable by statute or
otherwise, each and every Obligor authorizes any attorney designated by Bank to
confess judgment in any Court of Record and authorizes Bank to instruct the
clerk of any Court of Record to confess judgment against such Obligor at any
time after this Note is due by its terms or upon default, for the unpaid
balance of this Note and interest payable thereon, together with court costs
and all other amounts payable to Bank pursuant hereto, including an attorney's
fees of 15% of the total sum due, provided, however, that any lien arising from
such confession of judgment shall not without further proceedings, apply or
attach to any real property as described in section 12-401(i) of the Maryland
Secondary Mortgage Loan Law as the same may be amended from time to time unless
this is a loan to a corporation or a commercial loan in excess of $75,000.00.
The Undersigned hereby authorizes the Bank to accept instructions by
telephone from any of the Undersigned or a duly authorized representative of
the Undersigned to make advances or receive a repayment hereunder. All
advances made hereunder shall be credited to the Undersigned's deposit account
with the Bank. The Undersigned agrees that the actual crediting of the sum of
money so borrowed to the Undersigned's deposit account shall constitute
conclusive evidence that the advance was made, and the failure of the Bank to
forward to the Undersigned an advice of credit shall not affect the obligation
of the Borrower to repay such advance.
436356-001 3/91
<PAGE> 2
This Note contains the full agreement of the parties and may be
modified only by a writing executed by the party to be charged.
This Note is executed and delivered the date above written as an
instrument under Seal, specifically intending it to be a specialty and shall be
governed by the Laws of the State of Maryland.
CORPORATIONS OR PARTNERSHIPS SIGN BELOW INDIVIDUALS SIGN BELOW
Trusted Information Systems, Inc. (SEAL) (SEAL)
--------------------------------------- --------------------------------
By /s/ STEPHEN T. WALKER (SEAL) (SEAL)
------------------------------------- --------------------------------
Stephen T. Walker, President
By (SEAL) (SEAL)
------------------------------------- --------------------------------
GUARANTY
In consideration of the loan or forbearance evidenced by the foregoing
Note, the undersigned (jointly and severally) absolutely and unconditionally
guarantees to Bank and every subsequent holder of the Note (irrespective of its
genuineness, validity, regularity or enforceability or any other circumstance)
the prompt payment of the Note when due, according to its terms, which are
incorporated herein, and as they may be modified subsequently by any extension
or renewal, in whole or in part, any change in the interest rate or other term,
or the exchange, assignment, extension, waiver, modification or surrender of any
related right or security; and Bank and every subsequent holder of the Note at
its option may proceed in the first instance against the undersigned to collect
any obligation covered by this Guaranty, without first proceeding against any
Collateral or other Obligor.
Any debt of Borrower to the Undersigned, now or hereafter existing, is
and shall be subordinated to the indebtedness and liability herein guaranteed.
The Undersigned agrees not to assert any right, directly or by subrogation,
against the Borrower or any assets securing payment of the indebtedness or
liability herein guaranteed, so long as this Guaranty is outstanding.
Executed and delivered on the date of the foregoing Note under Seal
and specifically intending this to be a specialty, governed by the laws of the
State of Maryland.
CORPORATIONS OR PARTNERSHIPS SIGN BELOW INDIVIDUALS SIGN BELOW
/s/ STEPHEN T. WALKER (SEAL)
- ---------------------------------------- -------------------------------
Name of Corporation or Partnership Stephen T. Walker
By (SEAL) (SEAL)
------------------------------------- -------------------------------
By (SEAL) (SEAL)
------------------------------------- -------------------------------
<PAGE> 1
EXHIBIT 21.1
SUBSIDIARIES OF THE COMPANY
(1) Trusted Operating Systems, Inc., formed under the laws of Maryland.
(2) Trusted Information Systems (UK) Limited, formed under the laws of the
United Kingdom.
(3) Trusted Information Systems GmbH, formed under the laws of Germany.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions "Experts" and to the
use of our report dated April 29, 1996 (except Note 10, as to which the date is
September 28, 1996), in Amendment No. 3 to the Registration Statement (Form S-1
No. 333-5419) and related Prospectus of Trusted Information Systems, Inc. for
the registration of 2,900,000 shares of its common stock.
ERNST & YOUNG LLP
Vienna, Virginia
October 4, 1996
