SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM 10-K/A-1
FOR ANNUAL AND TRANSITION REPORTS
PURSUANT TO SECTIONS 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended JUNE 30, 1995
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES ACT OF
1934
For the transition period from _______________ to ___________
Commission File Number 0-24544
CYBERGUARD CORPORATION
(Exact name of registrant as specified in its charter)
FLORIDA 65-510339
- - - ------- ---------
(State or jurisdiction (I.R.S. Employer
incorporation or organization) Identification No.)
2101 WEST CYPRESS CREEK ROAD, FORT LAUDERDALE, FLORIDA 33309
- - - ------------------------------------------------------ -----
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (305) 974-1700
Securities Registered Pursuant to Section 12(b) of the Act: None
Securities Registered Pursuant to Section 12(g) of the Act: Common Stock, par
value $.01 per share
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding twelve months (or such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. Yes [X] No [ ]
The aggregate market value of voting stock held by nonaffiliates as of
October 28, 1996 was approximately $61,268,409 (based upon the closing sale
price of $9.00 per share on the Nasdaq National Market System on October 25,
1996).
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS
EXECUTIVE OFFICERS AND DIRECTORS
Certain biographical information concerning the Company's executive officers
and directors is presented below.
NAME AGE POSITION
---- --- --------
Robert L. Carberry............ 53 President, Chief Executive Officer and
Chairman of the Board of Directors
Patrick O. Wheeler............ 37 Chief Financial Officer and Vice President
Finance
Frank Gelbart................. 34 Vice President Marketing and Sales, North
America
Katherine K. Hutchison........ 38 Vice President Corporate Development
Bradley C. Lesher............. 60 Vice President International Operations
Robert F. Perks............... 52 Vice President North American Operations
Rick A. Siebenaler............ 33 Vice President Software Development
Brian Foremny................. 47 General Counsel, Secretary and Director
C. Shelton James.............. 57 Director
Michael F. Maguire............ 70 Director
Leland R. Reiswig, Jr......... 50 Director
Richard P. Rifenburgh......... 64 Director
ROBERT L. CARBERRY. Mr. Carberry was appointed President of the Company's
Trusted Systems Division in April 1996 in anticipation of the sale of the
Company's real-time computer business. He was appointed President and Chief
Executive Officer of the Company upon the consummation of that sale. Before
joining the Company, Mr. Carberry was Vice President, New Technology at
Blockbuster/Viacom Group and Vice President, Managing Executive for Blockbuster
Technology Holding Corporation from 1994 and, before that, was President of
Multimedia Investment Organization, a division of IBM.
PATRICK O. WHEELER. Mr. Wheeler was appointed Chief Financial Officer and
Vice President Finance of the Company's Trusted Systems Division in April 1996
in anticipation of the sale of the Company's real-time computer business, and he
continues in such position for the Company. Prior thereto, Mr. Wheeler held
various positions with the Company including Director of Accounting, Senior
Account Manager and most recently, Midwest Regional Sales Manager. Mr. Wheeler
joined the Company following its spin-off from Harris Corporation, which Mr.
Wheeler joined in 1984 from Price Waterhouse LLP.
FRANK GELBART. Mr. Gelbart joined the Company in June 1996. Prior, from
November 1993, Mr. Gelbart was Director of Sales, Rest of World at Cheyenne
Software, Inc. From April 1992, Mr. Gelbart was Director of World-wide Sales and
Director of International Sales for Equinox Systems, Inc., a $21 million data
communications hardware manufacturer in Plantation, Florida, and from April 1989
to April 1992, was Vice President, Latin America and Vice President Commercial
Sales for Uniplex, Inc., a $30 million UNIX office automation software company
headquartered in Irving, Texas.
KATHERINE K. HUTCHISON. Ms. Hutchison was appointed Vice President Corporate
Development of the Company's Trusted Systems Division in April 1996 in
anticipation of the sale of the Company's real-time computer business, and she
continues in such position for the Company. Prior thereto, Ms. Hutchison served
in positions of increasing responsibility, most recently as Director of
Marketing for the Company's Trusted Systems Division. Ms. Hutchison joined
Harris Corporation in 1993 from a position as Program Manager and Technical
Marketing Manager in the Information Technology Group of Texas Instruments.
2
<PAGE>
BRADLEY C. LESHER. Mr. Lesher joined Harris Corporation in July 1994 from
IBM where he had been General Manager of Latin American Caribbean operations
since November 1991. From 1988 to 1991 Mr. Lesher served as Director of General
Business systems in IBM's Latin American Headquarters Operation where he was
responsible for developing and supporting a distribution channel network of over
200 dealer and agent organizations selling IBM PC's and mid-range proprietary
and UNIX-based open systems. He joined IBM in 1957 and has over 30 years of
diverse international management experience including 19 years of living abroad.
ROBERT F. PERKS. Mr. Perks was appointed Vice President Sales of the
Company's Trusted Systems Division in April 1996 in anticipation of the sale of
the Company's real-time computer business, and he continues in such position for
the Company. Mr. Perks joined the Computer Systems Division of Harris
Corporation in 1977. He was employed by Real Time Products Corporation from 1992
to 1995 as Director, Customer Support and rejoined the Company in May 1995 as
Director of Trusted Sales for the Company.
RICK A. SIEBENALER. Mr. Siebenaler was appointed Vice President Software
Development of the Company's Trusted Systems Division in April 1996 in
anticipation of the Real-time Sale and continues in such position for the
Company. Prior thereto, Mr. Siebenaler served as Director of Software
Development of the Company's Trusted Systems Division from 1994 and, before
that, as Chief Engineer from 1991. Mr. Siebenaler joined Harris Corporation in
1991 from the NCSC where he was a Commercial Products Evaluator in the Trusted
Products Evaluation Division.
BRIAN FOREMNY. Mr. Foremny is an attorney and has served as the Company's
Secretary since October 1994 and as its General Counsel since March 1996. Prior
to joining the Company as General Counsel, Mr. Foremny was a partner with the
law firm of Holland & Knight (1995 to 1996) and a partner with the law firm of
Kirkpatrick & Lockhart, LLP (1983 to 1995).
C. SHELTON JAMES. Since May 1991, Mr. James has served as Chief Executive
Officer of Elcotel, Inc., a public company that manufactures telecommunications
equipment. Mr. James is President of Fundamental Management Corporation, an
investment management firm specializing in active investment in small
capitalization companies, where he was Executive Vice President from 1990 to
April 1993. Prior to 1990, Mr. James was Executive Vice President of Gould,
Inc., a diversified electronics company, and President of Gould's Computer
Systems Division. Mr. James is Chairman of the Board of Directors of Elcotel,
Inc. and serves on the boards of directors of CSPI, NAI Technologies, Inc.,
Fundamental Management Corporation and SK Technologies, Inc. Mr. James also
serves as a director of Concurrent as the Company's nominee pursuant to a share
holding agreement between the Company and Concurrent.
MICHAEL F. MAGUIRE. Since 1984, Mr. Maguire has served as President,
director and sole shareholder of Maguire Investment Management, Inc., a
management consulting company. For more than 13 years, Mr. Maguire served as an
executive at Harris Corporation, most recently as Senior Vice President from
1979 to 1986. Mr. Maguire serves on the board of directors of Autosight, Inc.,
as well as several non-profit corporations. Mr. Maguire also serves as a
director of Paravant Computer Systems, Inc. and as a director of Concurrent
Computer Corporation ("Concurrent") as the Company's nominee pursuant to a share
holding agreement between the Company and Concurrent
LELAND R. REISWIG, JR. Mr. Reiswig, who joined the Company's Board of
Directors in October 1996, held numerous positions during his 30-year career at
IBM. He was the General Manager, Technical Strategy for the IBM Software Group
before his retirement in July 1, 1996. While General Manager of IBM's Personal
Software Products Division from 1990 to 1995, he was responsible for worldwide
development, marketing, sales, and support for OS/2, PC-DOS, OS/2 LAN Server and
several other PC-based software offerings. His years at IBM also included
services as ESD Vice President of Programming; ESD Austin Lab Director; System
Manager, ESD Communications and Date Management Systems Software; and Product
Manager of Business and Personal Information Products.
RICHARD P. RIFENBURGH. Mr. Rifenburgh joined the Company's Board of Directors
in June 1996 following the sale of the Company's real-time computer business to
Concurrent Computer Corporation ("Concurrent"). Mr. Rifenburgh serves as the
nominee of Concurrent pursuant to a Share Holding Agreement between Concurrent
and the Company. Mr. Rifenburgh is Chairman of the Board of Moval Management
Corporation, a privately held
3
<PAGE>
company specializing in restoring companies in financial distress. He is, or in
the past five years has been, a member of the Board of Directors of the
following public companies: Concurrent Computer Corporation since 1991; Tristar
Corporation (formerly known as Ross Cosmetics Distribution Centers, Inc.) since
June 1992 and Chairman since August 1992; Miniscribe Corporation (manufacturer
of disc drives for personal computers), Chairman and CEO from 1989 to 1991; and
Library Bureau (manufacturer of library furniture) from 1976 to 1995.
ITEM 11. EXECUTIVE COMPENSATION
The following table sets forth certain information with respect to the annual
and long-term compensation of the Company's Chief Executive Officer and the
Company's other executive officers for the nine-months ended June 30, 1996, and
the fiscal years ended September 30, 1995 and June 30, 1994. In July 1996, the
Company's Board of Directors voted to change the Company's fiscal year end from
September 30 to June 30. Accordingly, the table below sets forth with respect to
fiscal year 1996 only such compensation as was received by the executive
officers named during the nine months ended June 30, 1996.
On June 27, 1996, the Company sold the assets and liabilities related to its
real-time computer business to Concurrent Computer Corporation ("Concurrent").
As of such date, a number of the Company's executive officers, including its
then Chairman, President and Chief Executive Officer, resigned to assume similar
executive positions at Concurrent. Such officers are indicated below by
footnote.
Prior to October 7, 1994, the Company was a wholly-owned subsidiary of Harris
Corporation, at which time the Company's common stock was distributed on a
pro-rata basis to Harris Corporation's shareholders. During certain of the
periods presented, the individuals were compensated in accordance with Harris
Corporation's plans and policies. All references in the following tables to
stock and stock options relate to awards of stock and stock options of the
Company.
<TABLE>
<CAPTION>
LONG-TERM COMPENSATION
----------------------
ANNUAL COMPENSATION AWARDS PAYOUT
------------------- ------ ------
OTHER RESTRICTED ALL OTHER
NAME AND FISCAL ANNUAL STOCK LTIP COMPEN-
PRINCIPAL YEAR BONUS($) COMPEN- AWARD(S) OPTIONS PAYOUT SATION(5)
POSITION (2) SALARY($) (3) SATION($) ($)(4) (#) ($) ($)
-------- ------ --------- -------- --------- ---------- ------- ------ ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Robert L. Carberry 1996 39,229 -- -- -- 339,000 -- --
Chairman, President and
Chief Executive Officer
Patrick O. Wheeler 1996 94,128 -- -- -- 75,000 -- 5,676
Vice President Finance and
Chief Financial Officer
Bradley C. Lesher 1996 88,628 25,000 -- -- 39,000 -- 5,318
Vice President
International Operations 1995 110,001 12,500 -- -- 60,000 -- 1,015
Robert F. Perks 1996 81,499 -- -- -- 60,000 -- 4,890
E. Courtney Siegel(1) 1996 161,152 50,000 -- -- 57,000 -- 1,204,771
Former Chairman,
President and 1995 200,013 20,000 -- 100,750 120,000 -- 11,389
Chief Executive
Officer 1994 140,206 37,000 6,720 -- -- -- 9,104
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
LONG-TERM COMPENSATION
----------------------
ANNUAL COMPENSATION AWARDS PAYOUT
------------------- ------ ------
OTHER RESTRICTED ALL OTHER
NAME AND FISCAL ANNUAL STOCK LTIP COMPEN-
PRINCIPAL YEAR BONUS($) COMPEN- AWARD(S) OPTIONS PAYOUT SATION(5)
POSITION (2) SALARY($) (3) SATION($) ($)(4) (#) ($) ($)
-------- ------ --------- -------- --------- ---------- ------- ------ ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Daniel S. Dunleavy(1) 1996 96,697 20,000 -- -- 18,000 -- 209,738
Former Vice
President, Chief 1995 120,016 10,000 -- 35,650 75,000 -- 7,132
Financial Officer
and Chief Administrative 1994 93,463 34,275 1,344 -- -- -- 7,242
Officer
Robert T. Menzel(1) 1996 88,660 25,000 -- -- 30,000 -- 5,318
Former Vice President
and General Manager, 1995 110,001 6,520 -- -- 60,000 -- 6,542
Trusted Systems
Division 1994 87,511 16,791 448 -- -- -- 6,341
<FN>
- - - ---------------
(1) Resigned as of June 27, 1996.
(2) For the nine months ended June 30, 1996, and the fiscal years ending
September 30, 1995, and June 30, 1994. Bonuses for the nine months ended
June 30, 1996 were accrued during such period but were paid in August
1996.
(3) Amounts for 1994 represent bonuses achieved and accrued under Harris
Corporation but paid after September 28, 1994. (4) Amounts reflect
restricted stock awards in the amount of 39,000 and 13,800 shares of
restricted respectively, by E. Courtney Siegel, the restrictions on which
have lapsed.
(5) Amounts reported for the nine months ended June 30, 1996 and for the year
ended September 30, 1995 represent contributions to the Company's
Retirement Plan. Amounts for Messrs. Siegel and Dunleavy for the period
ended June 30, 1996 also include consideration for their entering into
non-competition agreements with the Company. Based on a closing stock
price of $14.75 on June 27, 1996, the value of such shares was $1,150,500
and $203,550, respectively.
</FN>
</TABLE>
OPTION GRANTS IN THE NINE-MONTHS ENDED JUNE 30, 1996
The following table shows all grants during the nine months ended June 30,
1996 and thereafter of stock options to the executive officers named in the
Summary Compensation Table.
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS
POTENTIAL
REALIZABLE
PERCENT OF VALUE AT ASSUMED
TOTAL ANNUAL
NUMBER OF GRANTED RATES OF STOCK
SECURITIES TO EXERCISE APPRECIATION FOR
UNDERLYING EMPLOYEES OR BASE OPTION TERM(1)
OPTION IN FISCAL PRICE EXPIRATION --------------------
NAME GRANTED (#) YEAR (%) ($/SH) DATE 5%($) 10%($)
---- ----------- --------- -------- ---------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Robert L. Carberry 339,000 32.09 10.67 3/5/01 999,346 2,208,294
Patrick O. Wheeler 75,000 7.10 5.50 2/5/01 113,966 163,904
Bradley C. Lesher 9,000 0.85 4.71 2/5/01 11,712 25,880
</TABLE>
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<PAGE>
INDIVIDUAL
- - - -----------------------------------------
GRANTS
- - - -------------------------------
<TABLE>
<CAPTION>
POTENTIAL
REALIZABLE
VALUE AT ASSUMED
PERCENT OF ANNUAL
TOTAL RATES OF STOCK
OPTIONS PRICE
NUMBER OF GRANTED APPRECIATION FOR
SECURITIES TO EXERCISE OPTION TERM(1)
UNDERLYING EMPLOYEES OR BASE ------------------
OPTION IN FISCAL PRICE EXPIRATION
NAME GRANTED (#) YEAR (%) ($/SH) DATE 5%($) 10%($)
---- ------------ ---------- -------- ---------- ----- -------
<S> <C> <C> <C> <C> <C> <C>
30,000 2.84 5.50 2/5/01 45,586 100,734
Robert F. 60,000 5.40 5.50 2/5/01 91,173 201,468
Perks
E. Courtney 57,000 5.40 4.71 6/26/97 74,173 163,904
Siegel
Daniel S. 18,000 1.70 4.71 6/26/97 23,423 51,759
Dunleavy
Robert T. 15,000 1.42 4.71 6/26/97 19,519 43,133
Menzel
15,000 1.42 5.50 6/26/97 22,795 50,367
<FN>
- - - -------------------------------
(1) The potential realizable values set forth under these column result
from calculations assuming 5% and 10% annualized stock price growth
rates from grant dates to expiration dates as set by the Commission and
are not intended to forecast future price appreciation of the Company's
Common Stock based upon growth at these prescribed rates. The Company
is not aware of any formula which will determine with reasonable
accuracy a present value based on future unknown factors. Actual gains,
if any, on stock option exercises are dependent on the future
performance of the Company. There can be no assurance that the amounts
reflected in this table will be achieved.
</FN>
</TABLE>
OPTION EXERCISES AND PERIOD-END VALUES
The following table provides information as to the number and value of
unexercised options to purchase the Company's Common Stock held by the named
executive officers at June 30, 1996, based on a closing sale price of 17.25 on
June 28, 1996. None of the named executive officers exercised any options during
the nine months ended June 30, 1996.
NUMBER OF
SECURITIES VALUE OF
UNDERLYING UNEXERCISED
UNEXERCISED IN-THE-MONEY
SHARES VALUE OPTIONS OPTIONS
ACQUIRED REALIZ AT FISCAL AT FISCAL
ON ED YEAR-END (#) YEAR-END($)
EXERCISE ($) EXERCISABLE/ EXERCISABLE/
--------- ------ UNEXERCISABLE UNEXERCISABLE
NAME (#) -- ------------- ----------------
- - - -----
Robert L. Carberry -- -- --/339,000 --/2,230,620
Patrick O. Wheeler -- -- 3,000/75,000 44,010/881,250
Bradley C. Lesher -- -- 69,000/30,000 993,060/352,500
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Robert F. Perks -- -- 6,000/60,000 88,020/705,000
E. Courtney Siegel -- -- 177,000/-- 2,475,180/--
Daniel S. Dunleavy -- -- 93,000/-- 1,325,970/--
Robert T. Menzel -- -- 90,000/-- 1,244,550/--
COMPENSATION PLANS
The Company and Mr. Carberry entered into an agreement dated as of
March 5, 1996 (the "Carberry Employment Agreement"), effective as of April 12,
1996. The Carberry Employment Agreement provides for the employment of Mr.
Carberry as Chairman of the Board, President and Chief Executive Officer of the
Company at an annual base salary of $200,000, $225,000 and $250,000 for the
first, second and third twelve-month periods, respectively, of the Carberry
Employment Agreement. The Carberry Employment Agreement provides, as of March 5,
1996, for Mr. Carberry to be granted options to purchase 339,000 shares of the
Company's Common Stock at an exercise price of $10.67 per share and becoming
exercisable in three equal installments of 113,000 on each of March 5, 1997,
1998, and 1999. The Carberry Employment Agreement provides for Mr. Carberry to
have a target bonus for the achievement of certain performance objectives to be
established by the Company of 50% of his annual base salary.
The Company may terminate the Carberry Employment Agreement for
"cause." The Carberry Employment Agreement defines "cause" as willful acts
against the Company intended to enrich Mr. Carberry at the expense of the
Company, the conviction of Mr. Carberry for a felony involving moral turpitude,
willful and gross neglect by Mr. Carberry of his duties or the intentional
failure of Mr. Carberry to observe policies of the Company's Board of Directors
that have or will have a material adverse effect on the Company. If the Carberry
Employment Agreement is terminated by the Company other than for "cause" or the
death, disability or normal retirement of Mr. Carberry or by Mr. Carberry for
"good reason," Mr. Carberry will receive severance pay of two times his annual
base salary and two times his target bonus as in effect immediately prior to
termination, and all of Mr. Carberry's stock options and stock appreciation
rights will be exercisable at termination. If Mr. Carberry's employment with the
Company is terminated within one year following a "change in control" of the
Company other than for "cause" or the death, disability or normal retirement of
Mr. Carberry or by Mr. Carberry for "good reason," Mr. Carberry will receive
severance pay of three times his annual base salary and three times his target
bonus as in effect immediately prior to termination, and all of Mr. Carberry's
stock options and stock appreciation rights will become exercisable at
termination. If Mr. Carberry's employment is terminated at any time by the
Company for "cause" or by Mr. Carberry other than for "good reason," the
Carberry Employment Agreement prohibits Mr. Carberry from engaging in any
business competitive with the business of the Company for a one-year period
following the effective date of termination. If Mr. Carberry's employment is
terminated by the Company other than for "cause" or the death, disability or
normal retirement of Mr. Carberry or by Mr. Carberry for "good reason," other
than within one year of a "change in control," the Carberry Employment Agreement
prohibits Mr. Carberry from engaging in any business competitive with the
business of the Company for a two-year period following the effective date of
termination.
7
<PAGE>
In addition to the Carberry Employment Agreement, the Company has
employment agreements with its other executive officers. Such employment
agreements, other than the Carberry Employment Agreement, are referred to herein
as the "Executive Employment Agreements." The initial base salaries under such
Employment Agreements are $120,000 for Mr. Wheeler, $115,500 for Mr. Gelbart,
$90,000 for Ms. Hutchison, $90,000 for Mr. Perks, $90,000 for Mr. Siebenaler,
$115,500 for Mr. Lesher, and $120,000 for Mr. Foremny (based on part-time
service). Certain of the Executive Employment Agreements also provide for
bonuses based on certain Company performance targets in initial amounts based
upon the following percentages of base salary: Mr. Wheeler -- 40%; Mr. Gelbart
- - - -- 50%; Ms. Hutchison -- 50%; Mr. Perks -- 50%; Mr. Siebenaler -- 40%; Mr.
Lesher -- 50% and Mr. Foremny -- 16.7%.
The Executive Employment Agreements contain severance provisions that
apply if the executive officer's employment is terminated within three years
after the occurrence of a change of control. In the event that any such employee
is terminated by the Company within three years following the occurrence of a
change in control or by such employee for "good reason", such employee will be
entitled to receive on the date of such termination an amount equal to, among
other things, a specific multiple of such employee's base salary, target bonus
under the Company's bonus program, and any performance award payable under the
Company's Stock Incentive Plan, as amended (the "Stock Incentive Plan") or
similar plan, as well as any other benefits which any such employee would be
entitled to where termination was without "cause" or with "good reason" by
employee.
The Executive Employment Agreements may be terminated by either the
Company or the respective executive officer at any time. In the event the
executive officer resigns without "good reason" or is terminated for "cause,"
compensation under the employment agreements will end. In the event any such
employment agreement is terminated by the Company without "cause" or the
executive officer resigns for "good reason," the terminated executive officer
will receive, among other things, severance compensation equal to a specified
multiple of such employee's annual base salary and target bonus under the
Company's bonus program. In addition, upon termination without "cause" or
resignation without "good reason," all non-statutory options and stock
appreciation rights of all such executive officers will be immediately
exercisable upon termination of employment and certain other awards previously
made under any of the Company's compensation plans or programs and
previously not paid will immediately vest on the date of such termination.
Termination by the Company or by the executive (except for such terminations
occurring within three years after a change of control) give rise to certain
noncompetition and nonsolicitation provisions (except in the case of Mr.
Foremny, who maintains a legal practice apart from the Company).
The Executive Employment Agreements contain severance provisions that
apply if the executive officer's employment is terminated within three years
after the occurrence of a change of control. In the event that any such employee
is terminated by the Company within three years following the occurrence of a
change in control or by such employee for "good reason", such employee will be
entitled to receive on the date of such termination an amount equal to, among
other things, a specific multiple of such employee's base salary, target bonus
under the Company's bonus program, and any performance award payable under the
Stock Incentive Plan or similar plan, as well as any other benefits which any
such employee would be entitled to where termination was without "cause" or with
"good reason" by employee.
STOCK INCENTIVE PLAN. The Company has adopted the Stock Incentive Stock
Plan pursuant to which 2,025,000 shares of Common Stock have been authorized for
issuance. The primary purpose of the Stock Incentive Plan is to attract and
retain capable executives and employees by offering them a greater personal
interest in the Company's business through stock ownership. The Stock Incentive
8
<PAGE>
Plan is administered by the Incentive and Stock Option Committee of the
Company's Board of Directors, which determines, among other things, the nature
and the terms of any award granted thereunder. The Stock Incentive Plan provides
for the granting of stock options (including incentive stock options meeting the
requirements of the Internal Revenue Code), restricted stock, stock appreciation
rights, performance awards, and other stock-based awards. In the case of stock
options, the Stock Incentive Plan provides that the exercise price of any stock
option granted under the Stock Incentive Plan must be equal to the fair market
value of the shares underlying the option on the date of grant. Any stock
options granted under the Stock Incentive Plan expire no later than ten years
from the date of their granting. No award under the Stock Incentive Plan is
transferable except upon the death of the optionee. The Compensation and Stock
Option Committee has the power to impose additional limitations, conditions and
restrictions in connection with the grant of any option. In the event of a
change of control of the Company, all outstanding awards become immediately
exercisable prior to the occurrence of the change in control, in the manner
determined by the Compensation and Stock Option Committee. A change in control
is deemed to occur if any person or entity acquires 20% or more of the
outstanding shares of the Company or if, as a result of any tender or exchange
offer, merger or other business combination, sale of assets or contested
election, there is a change of a majority of the directors.
DIRECTOR COMPENSATION. Upon joining the Board of Directors, all
non-employee directors receive 6,000 options to purchase Common Stock of the
Company. In addition, on the date of each annual meeting of shareholders, each
director who is not an employee of the Company is automatically granted an
option to purchase 1,500 shares of common stock of the Company. All such options
are non-statutory stock options and priced at 100% of the fair market value on
the date of grant. In the event of a director's retirement, the options which
are exercisable at the date of retirement will be exercisable for three months
thereafter, and, in the event of a director's death, the options which are
exercisable at the date of death will be exercisable for the next succeeding
twelve months. Neither the Board of Directors nor any committee of the Board of
Directors has any discretion with respect to options granted to non-employee
directors pursuant to the Stock Incentive Plan.
In addition to grants pursuant to the Stock Incentive Plan,
non-employee directors of the Company receive a $15,000 annual retainer payable
upon election as a director of the Company at an annual meeting of shareholders
(and a pro rata amount to any non-employee who becomes a director of the Company
thereafter, payable at the time of becoming a director) and $1,000 per Board of
Directors meeting attended. In addition, directors receive $750 ($1,000 for the
Chairman) for attendance at any meeting of a committee of the Board of
Directors, payable at any such meeting, except for committee meetings held on
the same day as Board of Directors meetings, in which case no such fee will be
payable. Directors are also reimbursed for travel and lodging expenses in
connection with Board of Directors and committee meetings.
ITEM 12. SECURITY OWNERSHIP OF BENEFICIAL OWNERS AND MANAGEMENT
The following sets forth, as of October 28, 1996 information with respect to
the beneficial ownership of the Company's Common Stock by: (i) each person known
by the Company to beneficially own more than 5% of the outstanding shares of the
Company's Common Stock; (ii) each director of the Company; (iii) each of the
Company's named executive officers; and (iv) all directors and executive
officers as a group. Unless otherwise indicated, each of the shareholders named
in this table: (a) has sole voting and investment power with respect to all
shares of Common Stock beneficially owned and (b) has the same address as the
Company.
9
<PAGE>
<TABLE>
<CAPTION>
NUMBER OF PERCENT
NAME/ADDRESS SHARES OF CLASS
- - - ------------ --------- --------
<S> <C> <C>
Concurrent Computer Corporation ...............................591,678 8.45%
2 Crescent Place
Oceanport, New Jersey 07757
Okabena Partnership K .........................................522,300 7.46%
5140 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402
Paul Tudor Jones II ...........................................451,500 6.45
c/o Tudor Investment Corporation
One Liberty Plaza, 51st Floor
New York, New York 10006(1)
Robert L. Carberry (2)......................................... 2,500 *
Patrick O. Wheeler(3) ......................................... 3,000 *
Katherine K. Hutchinson(3) .................................... 12,900 *
Bradley C. Lesher(3) .......................................... 70,596 1.00%
Robert F. Perks(3) ............................................ 6,000 *
Rick A. Siebenaler(3) ......................................... 11,301 *
Brian Foremny(3) .............................................. 30,000 *
C. Shelton James(3)(4) ........................................ 21,000 *
Michael F. Maguire(3) ......................................... 21,000 *
Leland R. Reiswig, Jr.(3)...................................... 6,000 *
Richard P. Rifenburgh.......................................... 6,000 *
All directors and officers as a group
(9) persons ..............................................191,876 2.67%
<FN>
- - - ------------------
* Less than 1%
(1) Includes 146,600 shares of Common Stock owned by The Raptor Global Fund
Ltd. ("Raptor Ltd."); 77,400 shares of Common Stock owned by The Raptor
Global Fund L.P. ("Raptor L.P."); 30,100 shares of Common Stock owned by
Tudor Arbitrage Partners L.P. ("TAP"); 30,100 shares of Common Stock owned
by Tudor Global Trading LLC ("TGT") and 197,400 shares of Common Stock
owned by Tudor BVI Futures, Ltd. ("Tudor BVI"). Tudor Investment
Corporation ("TIC"), Raptor L.P.'s general partner, shares voting and
investment power with respect to shares owned by Raptor Ltd., Raptor L.P.,
TAP and Tudor BVI. In addition, Paul Tudor Jones II, the principal
shareholder and executive officer of TIC, shares voting and investment
power with respect to shares owned by TIC. TGT, sole general partner of
TAP, shares voting and investment power with respect to shares owned by
TAP.
(2) Does not include 339,000 options to purchase common stock of the Company
granted in connection with the Carberry Employment Agreement.
(3) Includes options that are currently exercisable to purchase Common Stock in
the following amounts: Mr. Wheeler -- 3,000 shares; Ms. Hutchison -- 12,600
shares; Mr. Lesher -- 69,000 shares; Mr. Perks -- 6,000 shares; Mr.
Siebenaler -- 11,301 shares; Mr. Foremny -- 30,000 shares; Mr. James --
21,000 shares; and Mr. Maguire -- 21,000 shares; Mr. Reiswig -- 15,000
shares; and Mr. Rifenburgh -- 15,000 shares.
(4) Does not include 255,000 shares that are deemed beneficially owned by
Mr. James as a result of his serving as an executive officer and director
of various investment limited partnerships.
</FN>
</TABLE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
10
<PAGE>
Brian Foremny, who is a director and who serves as the Company's
General Counsel, was a partner at the law firm of Holland & Knight, which serves
as the Company's counsel.
On June 27, 1996 the Company consummated the sale to Concurrent (the
"Real-time Sale") of certain of the assets and liabilities that comprised the
Company's real-time computer division. In connection with the Real-time Sale,
the Company entered into numerous agreements with Concurrent, several of which
govern certain matters between the Company and Concurrent after the Real-time
Sale. The principal agreements that continue in effect are reciprocal reseller
agreements by which each of Concurrent and the Company sell the other computer
products at prices that are more favorable than those that would be available
from affialiated third parties; a shared services agreement under which
Concurrent provides certain plant and facilities maintenance, bookeeping, and
other similar services; a "Share Holding Agreement" that is described below; and
a lease agreement under which the Company leases to Concurrent its Fort
Lauderdale headquarters and plant facilities.
In connection with the Real-time Sale, the Company and Concurrent
entered into the Share Holding Agreement, which relates to the shares of stock
of each company received by the other in the transaction. The Share Holding
Agreement permits each company to nominate one or more members of the board of
directors of the other depending on number of shares held by the nominating
company. So long as the Share Holding Agreement is in effect, the Company has
agreed to limit the number of its directors to seven. The Share Holding
Agreement also requires the Company to maintain in effect for three years a
registration statement relating to the shares of the Company's common stock held
by Concurrent following the Real-time Sale. Concurrent common stock held by the
Company is subject to a similar registration statement maintained by Concurrent.
The sale of common stock of either company by the other is subject to certain
restrictions on transfer contained in the Share Holding Agreement.
11
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
behalf of the undersigned, thereunto duly authorized.
CYBERGUARD CORPORATION
OCTOBER 28, 1996 By: /s/ ROBERT L. CARBERRY
----------------------
Robert L. Carberry
Chairman, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- - - --------- ----- ----
<S> <C> <C>
Chairman, President and
Chief Executive Officer and
/s/ ROBERT L. CARBERRY Director (Principal Executive
- - - ----------------------------- Officer) OCTOBER 28, 1996
Robert L. Carberry
Vice-President Finance and Chief
Finance Officer (Principal Financial
/s/ PARTICK O. WHEELER and Principal Accounting Officer)
- - - -----------------------------
Patrick O. Wheeler OCTOBER 28, 1996
Secretary, General Counsel and
/s/ BRIAN FOREMNY Director
- - - -----------------------------
Brian Foremny OCTOBER 28, 1996
/s/ C. SHELTON JAMES Director
- - - -----------------------------
C. Shelton James OCTOBER 28, 1996
/s/ MICHAEL F. MAGUIRE Director
- - - -----------------------------
Michael F. Maguire OCTOBER 28, 1996
/s/ RICHARD P. RIFENBURGH Director
- - - -----------------------------
Richard P. Rifenburgh OCTOBER 28, 1996
</TABLE>
