<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 9, 1997
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
CYBERGUARD CORPORATION
(Exact name of registrant as specified in its charter)
FLORIDA 65-0510339
(State or other jurisdiction of (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)
CYBERGUARD CORPORATION STOCK INCENTIVE PLAN
NONSTATUTORY STOCK OPTION AGREEMENT BETWEEN
ROBERT L. CARBERRY AND THE REGISTRANT
NONSTATUTORY STOCK OPTION AGREEMENTS BETWEEN TRADEWAVE
EMPLOYEES AND THE REGISTRANT NONSTATUTORY STOCK OPTION
AGREEMENT BETWEEN DAVID PROCTOR AND THE REGISTRANT
NONSTATUTORY STOCK OPTION AGREEMENT BETWEEN FRANK GELBART
AND THE REGISTRANT NONSTATUTORY STOCK OPTION AGREEMENT
BETWEEN BRIAN FOREMNY AND THE REGISTRANT
(Full titles of the plans)
ROBERT L. CARBERRY
CHAIRMAN, PRESIDENT,
AND CHIEF EXECUTIVE OFFICER
CYBERGUARD CORPORATION
2101 WEST CYPRESS CREEK ROAD
FORT LAUDERDALE, FLORIDA 33309
(Name and address of agent for service)
(954) 973-5124
(Telephone number, including area code, of agent for service)
COPY TO:
D. RONALD SURBEY, ESQ.
1 EAST BROWARD BOULEVARD
FORT LAUDERDALE, FLORIDA 33301
(954) 468-7953
FAX NO. (954) 463-2030
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROSPOSED
OFFERING MAXIMUM
AMOUNT TO PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED(1) BE REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
- --------------------------------------- ------------- --------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 1,050,000 $ 9.281 $9,745,050 $ 2,953
Common Stock, par value $.01 per share 311,000 $ 10.67 $3,318,370 $ 1,006
Common Stock, par value $.01 per share 262,750 $ 9.13 $2,398,908 $ 727
Common Stock, par value $.01 per share 15,000 $ 8.75 $ 131,250 $ 40
Common Stock, par value $.01 per share 72,100 $ 10.75 $ 775,075 $ 235
Common Stock, par value $.01 per share 17,460 $ 5.50 $ 96,030 $ 29
</TABLE>
(1) This Registration Statement also relates to the Rights to purchase
fractional shares of Preferred Stock of the Registrant which are attached
to all shares of common stock outstanding as of, and issued subsequent to,
September 29, 1994, pursuant to the terms of the Registrant's Rights
Agreement, dated as of September 29, 1994. Until the occurrence of certain
prescribed events, the Rights are not exercisable, are evidenced by the
certificates of common stock and will be transferred with and only with
such stock.
(2) Estimated solely for purposes of calculating the registration fee on the
basis of the average of the high and low sale prices for the Common Stock
of the Registrant on June 9, 1997, as reported by the National Association
of Securities Dealers Automated Quotation System.
<PAGE> 2
INCORPORATION BY REFERENCE
OF PREVIOUS REGISTRATION STATEMENT
This Registration Statement on Form S-8 is filed to register an additional
1,050,000 shares of Common Stock of the Registrant authorized pursuant to
Amendment No. 1 to the Registrant's Stock Incentive Plan (the "Plan"). This
Registration Statement also registers shares to be issued upon exercise of
options granted outside the Plan to certain employees pursuant to non-statutory
stock option agreements. The contents of the Registrant's Registration Statement
on Form S-8, Registration Number 33-88446, with respect to 975,000 shares of
common stock of the Registrant issuable pursuant to the Stock Incentive Plan
prior to amendment, are incorporated herein by reference.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Lauderdale, State of Florida, this 9th day of
June, 1997.
CYBERGUARD CORPORATION
/s/ Robert L. Carberry
------------------------
By: Robert L. Carberry
Chairman, President, and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert L. Carberry and Pat Wheeler, and each of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and revocation, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to sign any Registration
Statement (and any and all amendments thereto) related to this Registration
Statement and filed pursuant to Rule 462(b) promulgated by the Securities and
Exchange Commission, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
President, Chairman and Chief Executive
/s/ Robert L. Carberry Officer (Principal Executive Officer)
- ----------------------------------------- and Director June 9, 1997
Robert L. Carberry
Vice President Finance and Chief
Financial Officer (Principal Financial
/s/ Patrick O. Wheeler and Principal Accounting Officer) June 9, 1997
- -----------------------------------------
Patrick O. Wheeler
/s/ C. Shelton James Director June 9, 1997
- -----------------------------------------
C. Shelton James
/s/ Richard P. Rifenburgh Director June 9, 1997
- -----------------------------------------
Richard P. Rifenburgh
/s/ Michael F. Maguire Director June 9, 1997
- -----------------------------------------
Michael F. Maguire
/s/ Leland R. Reiswig, Jr. Director June 9, 1997
- -----------------------------------------
Leland R. Reiswig, Jr.
/s/ David R. Proctor Director June 9, 1997
- -----------------------------------------
David R. Proctor
</TABLE>
<PAGE> 4
INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- -------- -------------------
2.01 Restated Purchase and Sale Agreement between Concurrent Computer
Corporation and the Company dated May 23, 1996.*
4.01 Form of Common Stock Certificate.**
4.02 Form of Stockholder Rights Plan.**
4.03 Form of Non-Statutory Stock Option Agreement dated as of October 8, 1994
between the Company and the following executive officers: Robert Chism,
Robert T. Menzel, Michael N. Smith, Bradley C. Lesher, Daniel S.
Dunleavy, E. Courtney Siegel. ******
4.04 Form of Non-Statutory Stock Option Agreement dated as of February 4,
1996 between the Company and the following executive officers: Patrick
O. Wheeler; Katherine K. Hutchison; Robert Perks; Rick
Siebenaler. ******
4.05 Form of Incentive Stock Option Agreement dated as of February 4, 1996
between the Company and the following executive officers: Patrick O.
Wheeler; Katherine K. Hutchison; Robert Perks; and Rick
Siebenaler. ******
4.06 Non-Statutory Stock Option Agreement dated as of February 4, 1996
between the Company and Brian. ******
4.07 Non-Statutory Stock Option Agreement dated as of March 5, 1996 between
the Company and Robert L. Carberry. ******
4.08 Non-Statutory Stock Option Agreement dated as of August 27, 1996 between
the Company and Frank Gelbart. ******
4.09 Incentive Stock Option Agreement dated as of February 4, 1996 between
the Company and Brian Foremny.
4.10 Incentive Stock Option Agreement dated as of July 23, 1996 between the
Company and Robert L. Carberry. ******
4.11 Incentive Stock Option Agreement dated as of August 27, 1996 between the
Company and Frank Gelbart. ******
4.12 Form of Non-Statutory Stock Option Agreement between the Company and non
executive officers. ******
4.13 Form of Incentive Stock Option Agreement between the Company and non
executive officers. ******
4.14 Form of Stock Option Agreement between the Company and non-employee
directors. ******
4.15 Form of Restricted Stock Agreement between the Company and certain
employees of the Company's subsidiary. ******
4.16 CyberGuard (f/k/a Harris Computer Systems) Corporation Stock Incentive
Plan****
4.17 Amendment No. 1 to Stock Incentive Plan*****
4.18 Form of Share Holding Agreement between Concurrent Computer Corporation
and the Company**
<PAGE> 5
4.19 Private Securities Subscription Agreement dated May 15, 1997 between the
Company and Capital Ventures International.******
4.20 Registration Rights Agreement dated May 15, 1997 between the Company and
Capital Ventures International.******
5.01 Opinion of Holland & Knight LLP.
23.01 Consent of KPMG Peat Marwick LLP, Independent Certified Public
Accountants.
23.02 Consent of Ernst & Young LLP, Independent Certified Public Accountants.
23.03 Consent of Holland & Knight LLP (included in Exhibit 5).
24.01 Power of Attorney (included on signature page of this Registration
Statement).
- ----------
* Incorporated by reference to Annex A of the Registrant's definitive
proxy statement as filed with the Commission on May 24, 1996.
** Incorporated by reference to Annex F of the Registrant's definitive
proxy statement as filed with the Commission on May 24, 1996.
*** Filed with Post-Effective Amendment No. 1 to the Company's Registration
Statement on Form 10, dated September 29, 1994, File No. 0-24544 and
incorporated herein by reference.
**** Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-8 (registration number 33-88446)
***** Incorporated by Reference to Annex G of the Registrant's definitive
proxy statement as filed with the Commission on May 24, 1996.
****** Incorporated by reference to the exhibits to the Company's Registration
Statement on Form S-3 (registration number 333-28693)
<PAGE> 1
EXHIBIT 4.09
AMENDED AND RESTATED INCENTIVE STOCK OPTION AGREEMENT
CYBERGUARD CORPORATION
STOCK INCENTIVE PLAN
This Stock Option Agreement ("Agreement") is entered into as of the 4th
day of February, 1996, between CYBERGUARD CORPORATION (the "Corporation"), a
Florida corporation having its principal office in Ft. Lauderdale, Florida, and
Brian Foremny (the "Employee"), of the Corporation or one of its subsidiaries.
1. THE OPTION. Under and subject to the provisions of the Corporation's
Stock Incentive Plan as in effect from time to time (the "Plan"), on February 4,
1996 the Corporation granted to the Employee an Incentive Stock Option (the
"Option"), which complies with Section 422 of the Internal Revenue Code
("Code"). On March 18, 1996, the Corporation's three-for-one stock split became
effective and this Amended and Restated Incentive Stock Option Agreement is
being entered into to reflect that the number of shares subject to the Option
has, as a result of the stock split, been multiplied by three and the per-share
exercise price of the Option has been divided by three. As a result of the stock
split, the Option granted February 4, 1996 is now an option to purchase an
aggregate of 54,540 shares of Common Stock of the Corporation at the price of
$5.50 per share. In all other respects, the Option shall remain the same, as
follows:
(a) The Option shall not be exercisable to any extent until
and unless the Employee shall have remained continuously in the employ
of the Corporation for one year from the date hereof. Nothing herein
shall limit or restrict the Corporation's rights to terminate the
Employee's employment.
(b) During the lifetime of the Employee, the Option shall be
exercisable only by the Employee, and (except when Section 2 is
applicable) only while the Employee continues as an employee of the
Corporation.
(c) Notwithstanding any other provision of this Agreement,
the Option shall expire no later than five years from the date of this
Agreement, and shall not be exercisable thereafter.
(d) The number of shares of Common Stock with respect to
which the Option may be exercised from time to time is limited to the
following percentages of the aggregate number of shares optioned
hereby:
(i) From the date hereof and prior to the end of one
year from the date hereof, not more than
thirty-three percent (33.333%);
(ii) After the end of one year and prior to the end
of two years from the date hereof, not more than
sixty-six percent (66.666%);
(iii) After the end of two years from the date hereof,
one-hundred percent (100%).
<PAGE> 2
e) Upon a Change in Control, any outstanding Option shall
immediately become exercisable. Notwithstanding the foregoing, the sale
of the Corporation's real-time division to Concurrent Computer
Corporation shall not constitute a Change in Control.
2. TERMINATION OF EMPLOYMENT
(a) DEATH, DISABILITY AND TERMINATION OF EMPLOYMENT. The
rights of Employee upon Termination of employment for disability, for
cause and without cause, and the rights of Employee's estate upon his
death with respect to the Option are set forth in the Employment
Agreement.
(b) RETIREMENT. In the event of retirement of the Employee,
the Option shall be exercisable by the Employee only within thirty-six
(36) months following such cessation of employment, but no later than
the expiration date described in Section 1(c) and to the extent that
the Option was exercisable at the date of such cessation of employment,
and no more.
(c) OTHER AGREEMENTS. In the event of a conflict between the
provisions of this Agreement and any provision of a written Employment
Agreement defining the rights and duties of Employee upon Employee's
termination in respect of the subject hereof ("Conflicting Provision"),
the rights and duties as set forth in any such Conflicting Provision
shall control; provided, however, that no Conflicting Provision shall
control this Agreement if the effect thereof would be to nullify the
compliance of the Option with Section 422 of the Code.
3. EXERCISE OF OPTION. The Option may be exercised by delivering to
the Corporation at the office of the Corporate Secretary (i) a written notice,
signed by the person entitled to exercise the Option, stating the number of
shares such person then elects to purchase hereunder, (ii) payment in an amount
equal to the full purchase price of the shares then to be purchased, and (iii)
in the event the Option is exercised by any person other than the Employee,
evidence satisfactory to the Corporation that such person has the right to
exercise the Option. Payment shall be made (a) in cash, (b) in previously
acquired shares of Common Stock of the Corporation, valued at their Fair Market
Value on the day preceding the exercise date of the Option, or (c) in any
combination of cash and such shares. Shares tendered in payment of the purchase
price which have been acquired through an exercise of a stock option shall have
been held at least six (6) months prior to exercise of the Option. Upon the due
exercise of the Option, the Corporation shall issue in the name of the person
exercising the Option, and deliver to the Employee, one or more certificates for
the shares in respect of which the Option shall have been so exercised. The
Employee acknowledges that the Employee does not have any rights as a
shareholder in respect of any shares as to which the Option shall not have been
duly exercised and that no rights as a shareholder shall arise in respect of any
such shares until and except to the extent that a certificate or certificates
for such shares shall have been issued.
4. PROHIBITION AGAINST TRANSFER. The Option and rights granted by the
Corporation under this Agreement are not transferable except by will or the laws
of descent and distribution. Without limiting the generality of the foregoing,
the Option may not be
<PAGE> 3
assigned, transferred except as aforesaid, pledged or hypothecated, shall not be
assignable by operation of law, and shall not be subject to execution,
attachment or similar process. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option contrary to the provisions
hereof, or the levy of any execution, attachment or similar process upon the
Option, shall be null and void and without effect.
5. ADJUSTMENTS. In case there shall be a merger, reorganization,
consolidation, recapitalization, stock dividend or other change in corporate
structure such that shares of Common Stock are changed into or become
exchangeable for a larger or smaller number of shares, the number of shares
subject to outstanding Options shall be increased or decreased in direct
proportion to the increase or decrease in the number of shares of Common Stock
by reason of such change in corporate structure. The number of shares shall
always be a whole number, and the purchase price per share of any outstanding
Options shall, in the case of an increase in the number of shares, be
proportionately reduced, and in the case of a decrease in the number of shares,
shall be proportionately increased.
6. EMPLOYMENT BY PARENT, SUBSIDIARY OR SUCCESSOR. For the purpose of
this Agreement, employment by a parent or subsidiary of or a successor to the
Corporation shall be considered employment by the Corporation. "Parent" and
"subsidiary" as used herein shall have the meaning of "parent" and "subsidiary
corporation," respectively, as defined in Section 424 of the Internal Revenue
Code of 1986, as amended, or subsequent comparable statute.
7. COMMITTEE. The Committee administering the Plan shall have
authority, subject to the express provisions of the Plan as in effect from time
to time, to construe this Agreement and the Plan, to establish, amend and
rescind rules and regulations relating to the Plan, and to make all other
determinations 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 this 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.
8. INCORPORATION OF PLAN PROVISIONS. This Agreement is made pursuant to
the Plan, the terms and conditions of which are hereby incorporated by
reference. Capitalized terms not otherwise defined herein have the meanings set
forth in the Plan. In the event of a conflict between the terms of this
Agreement and the Plan, the terms of the Plan shall govern, except that to the
extent that Section 1(e) of this Agreement conflicts with the Plan, such Section
1(e) shall govern.
9. MISCELLANEOUS. Words such as "herein", "hereof" and "hereunder" when
used in this Agreement shall refer to this Agreement as a whole unless the
context otherwise requires. This Agreement, together with any written Employment
Agreement between Employee and Corporation, constitute the entire agreement and
supersede all prior agreements and understandings, both oral and written,
between the parties hereto with respect to the subject matter hereof, and,
except as expressly provided herein and therein, are not intended to confer upon
any person other than the parties hereto any rights or remedies. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Florida. This Agreement may be amended or modified only in a written document
executed by both of the parties hereto.
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have executed this Stock Option
Agreement in duplicate as of the day and year first above written.
CYBERGUARD CORPORATION EMPLOYEE
By:
----------------------------- ----------------------------
Robert L. Carberry Brian Foremny
Chairman, President and Chief
Executive Officer
<PAGE> 1
EXHIBIT 5.01
June 6, 1997
CyberGuard Corporation
2101 West Cypress Creek Road
Fort Lauderdale, Florida 33309
Gentlemen:
We are acting as counsel to CyberGuard Corporation, a Florida corporation (the
"Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement"), filed by the Company under the Securities Act of
1933, as amended (the "Act"), and the rules and regulations thereunder, relating
to the registration of 1,728,310 shares (the "Shares") of Common Stock, par
value $.01 per share, of the Company. The Shares are to be issued by the Company
upon the exercise of certain options to purchase Common Stock (the "Options"),
including 1,050,000 such options granted and to be granted to certain employees
or directors of the Company pursuant to the Company's Stock Incentive Plan (the
"Plan") and 628,310 options to purchase Common Stock ("Non-plan Options")
granted outside the Plan.
As such counsel, we have participated in the preparation of the Registration
Statement, and have reviewed the corporate proceedings in connection with the
adoption of the Plan and the granting of the Non-plan Options and have also
examined and relied upon originals or copies, certified or otherwise
authenticated to our satisfaction, of all such corporate records, documents,
agreements and instruments relating to the Company, and certificates of public
officials and of representatives of the Company, and have made such
investigations of law, and have discussed with representatives of the Company
and such other persons such questions of fact, as we have deemed proper and
necessary as a basis for rendering this opinion.
Based on and subject to the foregoing, we are of the opinion that the Shares are
duly authorized and, upon issuance in connection with the exercise of the
Options in accordance with the terms of the Plan against payment of the exercise
price therefor (as applicable), or the issuance of Non-plan Options pursuant to
the terms of the Non-plan Options, will be, assuming no change in the applicable
law or pertinent facts, and assuming sufficient authorized capital at the time
of exercise, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Registration Statement.
In giving the foregoing consent, we do not admit that we are in the category of
persons whose consent is required under Section 7 of the Act, or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/S/ HOLLAND & KNIGHT LLP
<PAGE> 1
EXHIBIT 23.1
The Board of Directors
CyberGuard Corporation:
We consent to the use of our report incorporated by reference in the
registration statement.
KPMG Peat Marwick LLP
Miami, Florida
June 9, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Item 3. Incorporation
of Documents by Reference" in the Registration Statement (Form S-8 No. 33-88446)
pertaining to the Harris Computer Systems Corporation Stock Incentive Plan and
to the incorporation by reference therein of our report dated July 13, 1994,
with respect to the consolidated financial statements of Harris Computer Systems
Corporation included in its Form 10, effective September 19, 1994, which is
incorporated by reference in this Registration Statement (Form S-8) pertaining
to the CyberGuard Corporation Stock Incentive Plan filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Orlando, Florida
June 4, 1997
