<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 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 Identification No.)
incorporation or organization)
2000 WEST COMMERCIAL BOULEVARD, SUITE 200
FORT LAUDERDALE, FLORIDA 33309
(Address of principal executive offices) (Zip Code)
<TABLE>
<S><C>
NONSTATUTORY STOCK OPTION AGREEMENT BETWEEN ROBERT LAWTEN AND THE REGISTRANT
NONSTATUTORY RESTRICTED STOCK AGREEMENTS BETWEEN ROBERT LAWTEN AND THE REGISTRANT
NONSTATUTORY STOCK OPTION AGREEMENT BETWEEN THOMAS PATTERSON AND THE REGISTRANT
NONSTATUTORY RESTRICTED STOCK AGREEMENTS BETWEEN THOMAS PATTERSON AND THE REGISTRANT
NONSTATUTORY RESTRICTED STOCK AGREEMENTS BETWEEN TRADEWAVE EMPLOYEES AND THE REGISTRANT
NONSTATUTORY STOCK OPTION AGREEMENT BETWEEN ARCA SYSTEMS, INC. AND THE REGISTRANT
(Full titles of the plans)
</TABLE>
Robert L. Carberry Copy to:
Chairman, President, and Chief Executive Officer D. Ronald Surbey, Esq.
CyberGuard Corporation Holland & Knight LLP
2000 West Commercial Boulevard, Suite 200 One East Broward Boulevard
Fort Lauderdale, Florida 33309 Fort Lauderdale, Florida 33301
(Name and address of agent for service)
(954) 958-3900
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED(1) BE REGISTERED PER SHARE PRICE REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 52,000 $9.00 $468,000 $242.93
- -------------------------------------------------------------------------------------------------------------------------
Common Stock 102,000 $9.25 $943,500 $285.91
- -------------------------------------------------------------------------------------------------------------------------
Common Stock 15,000 $8.75 $131,250 $39.77
- -------------------------------------------------------------------------------------------------------------------------
Common Stock(2) 30,000 $6.25 $270,000 $56.82
- -------------------------------------------------------------------------------------------------------------------------
$625.43
=========================================================================================================================
</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 October 31, 1997, as reported by the
National Association of Securities Dealers Automated Quotation System.
1
<PAGE> 2
INCORPORATION BY REFERENCE
OF PREVIOUS REGISTRATION STATEMENT
This Registration Statement on Form S-8 is filed to register an
additional 199,000 shares of Common Stock of the Registrant to be issued upon
exercise of options granted outside the Registrant's 1996 Stock Incentive Plan
to certain employees and consultants pursuant to non-statutory stock option
agreements and restricted stock 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.
2
<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 5th day of November 1997.
CYBERGUARD CORPORATION
By: /s/ Robert L. Carberry
--------------------------------
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 Patrick O.
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>
NAME TITLE DATE
<S> <C> <C>
President, Chairman and Chief Executive November 5, 1997
/s/ Robert L. Carberry Officer (Principal Executive Officer) and
- --------------------------------- Director
Robert L. Carberry
Vice-President North American Sales,
Acting Vice-President Finance and Chief
Financial Officer (Principal Financial and November 5, 1997
/s/ Patrick O. Wheeler Principal Accounting Officer)
- ---------------------------------
Patrick O. Wheeler
/s/ C. Shelton James Director November 5, 1997
- ---------------------------------
C. Shelton James
/s/ Richard P. Rifenburgh Director November 5, 1997
- ---------------------------------
Richard P. Rifenburgh
/s/ Michael F. Maguire Director November 5, 1997
- ---------------------------------
Michael F. Maguire
/s/ Leland R. Reiswig, Jr. Director November 5, 1997
- ---------------------------------
Leland R. Reiswig, Jr.
/s/ David R. Proctor Director November 5, 1997
- ---------------------------------
David R. Proctor
</TABLE>
3
<PAGE> 4
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
<S> <C>
4.01 Form of Common Stock Certificate*
4.02 Form of Stockholder Rights Plan**
4.03 Form of Non-Statutory Stock Option Agreement between the
Company and the following persons in the following amounts:
Robert Lawten-50,000 shares; Thomas Patterson-100,000 shares
4.04 Non-Statutory Stock Option Agreement dated as of October 23,
1997 between the Company and Arca Systems, Inc.
4.05 Form of Restricted Stock Agreement for TradeWave Employees
4.06 Form of Restricted Stock Agreement Agreement between the
Company and the following persons in the following amounts
and restriction periods: Robert Lawten-2,000 shares, one
year; Thomas Patterson-2,000 shares, until Jan. 1, 1998
5.01 Opinion of Holland & Knight
23.01 Consent of KPMG Peat Marwick LLP, Independent Certified
Public Accountants
23.02 Consent of Holland & Knight (included in Exhibit 5)
24.01 Power of Attorney (included on signature page of this
Registration Statement)
</TABLE>
- ------------------------
* Incorporated by reference to Exhibit 4.01 to Amendment No. 1
to the Company's Registration Statement on Form S-3/A (Reg.
No. 333-04407) filed June 21, 1996.
** Incorporated by reference to Post-Effective Amendment No. 1
to the Company's Registration Statement on Form 10, dated
September 29, 1994, File No. 0-24544.
4
<PAGE> 1
Exhibit 4.03
NON-STATUTORY STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is entered into as of
_____________1997, between CyberGuard Corporation (the "Corporation"), a
Florida corporation having its principal office in Ft. Lauderdale, Florida, and
_________ (the "Employee") of the Corporation or one of its subsidiaries.
1) The Option. The Corporation hereby grants to
Employee a non-statutory option to purchase an aggregate of 50,000
shares of Common Stock of the Corporation at the price of $_____ per
share (the "Option"), subject to the following conditions:
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 hereof, 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
further limited to the following percentages of the aggregate
number of shares optioned hereby:
i) After the end of one year and prior to
the end of two years from the date hereof, not more
than thirty-three percent (33.333%); ii) After the
end of two years and prior to the end of three years
from the date hereof, not more than sixty-six
percent (66.666%);
ii) After the end of two years and prior
to the end of three years from the date hereof, not
more than sixty-six percent (66.666%);
iii) After the end of three years from the
date hereof, one-hundred percent (100%).
2) Termination of Employment
a) Death. In the event of the death of the Employee,
the Option shall be exercisable only within the twelve (12)
months next succeeding the date of death, and then only (i)
by the executor or administrator of the Employee's estate or
by the person or persons to whom the Employee's rights under
the Option shall pass by the Employee's will or the laws of
descent and distribution, and (ii) if and to the extent that
the Option was exercisable at the date of the Employee's
death.
b) Disability. In the event of termination of
Employee's employment due to disability of the Employee, the
Option shall be exercisable by the Employee only within the
twelve (12) months following such cessation of employment but
no later than the expiration date
1
<PAGE> 2
described in Section (B)) and to the extent that the Option
was exercisable at the date of such cessation of employment,
and no more.
c) Retirement. In the event of retirement of the
Employee, the Option shall be exercisable by the Employee
only within twelve (12) months following such cessation of
employment, but no later than the expiration date described
in Section (B)) and to the extent that the Option was
exercisable at the date of such cessation of employment, and
no more.
d) Termination of Employment. In the event of
termination of employment for reasons other than death,
disability or retirement, the Option shall be exercisable
only by the Employee within six (6) months following such
cessation of employment but no later than the expiration date
described in Section (B)) and to the extent that it was
exercisable at the date of such cessation of employment, and
no more.
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. If it is required (in the estimation of
the Corporation), the Corporation also may require the payment of any
withholding or other applicable taxes at the time of exercise of 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
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
2
<PAGE> 3
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 all terms and conditions of such adjustments
shall be determined by the Corporation's Board of Directors, in its
sole discretion.
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) Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties with respect to the Option.
Without limiting the generality of the foregoing, this Option is not
issued pursuant to any stock option plan or other plan of the
Corporation.
8) 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
constitutes the entire agreement and supersedes 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, is 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. Employee shall not
have any of the rights of a shareholder with respect to any shares
subject to an Option until such shares have been issued upon the
proper exercise of such Option.
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
Chairman, President and
Chief Executive Officer
3
<PAGE> 1
EXHIBIT 4.04
NON-STATUTORY STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is entered into as of October
23, 1997, between CyberGuard Corporation (the "Corporation"), a Florida
corporation having its principal office in Ft. Lauderdale, Florida, and Arca
Development Corporation (the "Consultant").
1. THE OPTION. The Corporation hereby grants to Consultant a
non-statutory option to purchase an aggregate of 30,000 shares of Common Stock
of the Corporation (the "Option") at the price per share equal to two dollars
below the fair market value of a share at the time of exercise, subject to the
following conditions:
(a) The Option shall be exercisable as of the date hereof;
(b) Notwithstanding any other provision of this Agreement, the Option
shall expire no later than five years from the date hereof, and shall not be
exercisable thereafter.
2. 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, and (ii) payment in an
amount equal to the full purchase price of the shares then to be purchased. If
it is required (in the estimation of the Corporation), the Corporation also may
require the payment of any withholding or other applicable taxes at the time of
exercise of the Option. Payment shall be made in cash. Upon the due exercise of
the Option, the Corporation shall issue and deliver in the name of one or more
certificates for the shares in respect of which the Option shall have been so
exercised. The Consultant acknowledges that the Consultant 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.
3. PROHIBITION AGAINST TRANSFER. The Option and rights granted by the
Corporation under this Agreement are not transferable. Without limiting the
generality of the foregoing, the Option may not be 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.
4. 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 all
<PAGE> 2
terms and conditions of such adjustments shall be determined by the
Corporation's Board of Directors, in its sole discretion.
5. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties with respect to the Option. Without limiting the
generality of the foregoing, this Option is not issued pursuant to any stock
option plan or other plan of the Corporation.
6. 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 constitutes the entire agreement and
supersedes 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, is 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. Consultant shall not have any of the rights of a
shareholder with respect to any shares subject to an Option until such shares
have been issued upon the proper exercise of such Option.
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 ARCA DEVELOPMENT CORPORATION
By: By:
--------------------------- --------------------------
Robert L. Carberry Its:
Chairman, President and
Chief Executive Officer
2
<PAGE> 1
Exhibit 4.05
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT, dated as of ___________, 1997 ("Agreement"), between
CyberGuard Corporation, a Florida corporation (the "Company"), and __________
(the "Employee").
WITNESSETH:
WHEREAS, the Company has granted to the Employee pursuant to the
CyberGuard Corporation Stock Incentive Plan, as amended (the "Plan"), shares of
the common stock (par value $.01) of the Company ("Common Stock"), subject to
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and intending to be legally bound, the parties hereto agree as follows:
1. RESTRICTED SHARES
1.1 GRANT OF RESTRICTED SHARES AND CASH BONUS.
(a) The Company hereby grants to the Employee ______shares of
Common Stock (the "Restricted Shares"), subject to the restrictions set forth in
Paragraph 1.2 of this Agreement. As the restrictions set forth in Paragraph 1.2
hereof lapse in accordance with the terms of this Agreement as to all or a
portion of the Restricted Shares, such shares shall no longer be considered
Restricted Shares for purposes of this Agreement.
(b) The Company hereby directs that a stock certificate or
certificates representing the Restricted Shares shall be registered in the name
of and issued to the Employee. Such stock certificate or certificates shall be
subject to such stop-transfer orders and other restrictions as the
Compensation/Stock Option Committee of the Board of Directors of the Company
(the "Committee") may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission and any applicable
federal or state securities law, and the Committee may cause a legend or
legends to be placed on such certificate or certificates to make appropriate
reference to such restrictions. In addition, each such certificate shall bear
the following legend:
The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) of the CyberGuard
Corporation Stock Incentive Plan and an Agreement entered
into between the registered owner and CyberGuard Corporation.
Copies of such Plan and Agreement are on file in the offices
of CyberGuard Corporation, 2101 West Cypress Creek Road, Fort
Lauderdale, Florida 33309.
Upon expiration of the applicable Restricted Period (as hereinafter
defined), the Company shall deliver or cause to be delivered to the Employee a
certificate or certificates for the Restricted Shares which shall not bear the
foregoing legend.
<PAGE> 2
1.2 RESTRICTIONS.
(a) The Employee shall have all rights and privileges of a
stockholder as to the Restricted Shares, including the right to vote and
receive dividends or other distributions with respect to the Restricted Shares,
except that, subject to the provisions of Paragraph 1.3(b) hereof, the
following restrictions shall apply:
(i) none of the Restricted Shares may be sold, transferred,
assigned, pledged or otherwise encumbered or disposed of during the
Restricted Period (as hereinafter defined), except as otherwise
provided in Paragraph 1.3(c) hereof or pursuant to rules adopted by
the Committee in accordance with the Plan; and
(ii) all of the Restricted Shares may be forfeited in
accordance with Paragraph 1.4.
(b) Any attempt to dispose of Restricted Shares in a manner
contrary to the restrictions set forth in this Agreement shall be ineffective.
1.3 RESTRICTED PERIOD.
(a) The restrictions set forth in Paragraph 1.2 shall apply with
respect to one-third (1/3) of the Restricted Shares, until the _____ day after
the date of this Agreement, (B) with respect to an additional one-third (1/3)
of the Restricted Shares, for a cumulative total of two-thirds (2/3) of the
Restricted Shares, until the _______ day after the date of this Agreement, (C)
with respect to the balance of the Restricted Shares, until the ______ day
after the date of this Agreement.
(b) Notwithstanding Paragraph 1.2, in the event of the Employee's
retirement, permanent total disability or death, or in cases of special
circumstances, the Committee may, in its sole discretion, when it finds that a
waiver would be in the best interests of the Company, waive in whole or in part
any or all remaining restrictions with respect to the Restricted Shares.
(c) Nothing in this Agreement shall preclude the Employee from
exchanging any Restricted Shares for any other shares of Common Stock that are
similarly restricted.
1.4 FORFEITURE. If the Employee's employment with the Company
shall terminate for any reason during the Restricted Period, all rights of the
Employee to the then remaining Restricted Shares shall terminate and be
forfeited (except as otherwise determined by the Committee pursuant to
Paragraph 1.3(b)).
1.5 WITHHOLDING. The Company may withhold from any cash payments
due from the Company to the Employee all taxes, including social security
taxes, which the Company is required or otherwise authorized to withhold with
respect to the Restricted Shares granted hereunder.
1.6 INVESTMENT REPRESENTATION. The Employee hereby represents,
warrants and covenants that (i) the Employee is acquiring the Restricted Shares
for his own account and not with a view to the distribution thereof, and (ii)
the Restricted Shares acquired by the Employee under this
2
<PAGE> 3
Agreement will not be sold except pursuant to an effective registration
statement under the Securities Act of 1933, as amended, or pursuant to an
exemption from registration under said Act.
2. ADJUSTMENTS TO NUMBER OF SHARES
In the event there is any change in the Common Stock through the
declaration of stock dividends or rights dividends, or through recapitalization
resulting in stock split-ups, or combinations or exchanges of shares, or
otherwise (including any change which would result n a substantial dilution or
enlargement of the rights or economic benefit inuring to the Employee from the
Restricted Shares), the Restricted Shares then subject to the restrictions
imposed hereunder shall be appropriately adjusted as determined by the
Committee, in its sole discretion.
3. NOTICES
All notices or communications hereunder shall be in writing, addressed
as follows:
To the Company:
CyberGuard Corporation
2101 West Cypress Creek Road,
Fort Lauderdale, Florida 33309
Attention: Secretary
To the Employee:
to the last known address of the Employee as appearing in the
Employee's personnel records as maintained by the Company.
Any such notice or communication shall be sent certified or registered
mail, return receipt requested, postage prepaid, addressed as above (or to such
other address as such party may designate in writing from time to time), and
the actual date of receipt, as shown by the receipt therefor, shall determine
the time at which notice was given.
4. ASSIGNMENT; AGREEMENT
This Agreement shall be binding upon and inure to the benefit of the
heirs and representatives of the Employee and the assigns and successors of the
Company, but neither this Agreement nor any rights hereunder shall be
assignable or otherwise subject to hypothecation by the Employee.
5. ENTIRE AGREEMENT; AMENDMENT; TERMINATION
3
<PAGE> 4
This Agreement represents the entire agreement of the parties with
respect to the subject matter hereof. The Agreement may be amended at any time
by written agreement of the parties hereto. This Agreement may also be amended,
or may be terminated in its entirety, under the circumstances described in the
Plan.
6. GOVERNING LAW
This Agreement and its validity, interpretation, performance and
enforcement shall be governed by the laws of the State of Florida.
7. SEVERABILITY
If, for any reason, any provision of this Agreement is held invalid,
such invalidity shall not affect any other provision of this Agreement not held
so invalid, and each such other provision shall to the full extent consistent
with law continue in full force and effect. If any provision of this Agreement
shall be held invalid in part, such invalidity shall in no way affect the rest
of such provision not held so invalid, and the rest of such provision, together
with all other provisions of this Agreement, shall to the full extent
consistent with law continue in full force and effect.
8. NO RIGHT TO CONTINUED EMPLOYMENT; EFFECT ON OTHER PLANS
This Agreement shall not, of itself, confer upon the Employee any
right with respect to continuance of employment by the Company, nor shall it
interfere in any way with the right of the Company to terminate Employee's
employment at any time. Income realized by the Employee pursuant to this
Agreement shall not be included in the Employee's earnings for the purpose of
any benefit plan of the Company in which the Employee may be enrolled or for
which the Employee may become eligible unless otherwise specifically provided
for in such plan.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Employee has hereunto set his hand, as of the day and year
first above written.
CYBERGUARD CORPORATION
By:
-----------------------------------
EMPLOYEE
--------------------------------------
4
<PAGE> 1
Exhibit 4.06
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT, dated as of _____________ ("Agreement"), between
CyberGuard Corporation, a Florida corporation (the "Company"), and ___________
(the "Employee").
WITNESSETH:
WHEREAS, the Company has granted to the Employee pursuant to the
CyberGuard Corporation Stock Incentive Plan, as amended (the "Plan"), the
number of shares of the restricted common stock (par value $.01) of the Company
as described in section 1.1 hereof ("Common Stock"), subject to the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and intending to be legally bound, the parties hereto agree as follows:
1. RESTRICTED SHARES
1.1 GRANT OF RESTRICTED SHARES AND CASH BONUS.
(a) The Company hereby grants to the Employee _________ shares of
Common Stock (the "Restricted Shares"), subject to the restrictions set forth
in Paragraph 1.2 of this Agreement. As the restrictions set forth in Paragraph
1.2 hereof lapse in accordance with the terms of this Agreement as to all or a
portion of the Restricted Shares, such shares shall no longer be considered
Restricted Shares for purposes of this Agreement.
(b) The Company hereby directs that a stock certificate or
certificates representing the Restricted Shares shall be registered in the name
of and issued to the Employee. Such stock certificate or certificates shall be
subject to such stop-transfer orders and other restrictions as the
Compensation/Stock Option Committee of the Board of Directors of the Company
(the "Committee") may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission and any applicable
federal or state securities law, and the Committee may cause a legend or
legends to be placed on such certificate or certificates to make appropriate
reference to such restrictions. In addition, each such certificate shall bear
the following legend:
The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) of the CyberGuard
Corporation Stock Incentive Plan and an Agreement entered
into between the registered owner and CyberGuard Corporation.
Copies of such Plan and Agreement are on file in the offices
of CyberGuard Corporation, 2101 West Cypress Creek Road, Fort
Lauderdale, Florida 33309.
Upon expiration of the applicable Restricted Period (as hereinafter
defined), the Company shall deliver or cause to be delivered to the Employee a
certificate or certificates for the Restricted Shares which shall not bear the
foregoing legend.
<PAGE> 2
1.2 RESTRICTIONS.
(a) The Employee shall have all rights and privileges of a
stockholder as to the Restricted Shares, including the right to vote and
receive dividends or other distributions with respect to the Restricted Shares,
except that, subject to the provisions of Paragraph 1.3(b) hereof, the
following restrictions shall apply:
(i) none of the Restricted Shares may be sold,
transferred, assigned, pledged or otherwise encumbered or disposed of
during the Restricted Period (as hereinafter defined), except as
otherwise provided in Paragraph 1.3(c) hereof or pursuant to rules
adopted by the Committee in accordance with the Plan; and
(ii) all of the Restricted Shares may be forfeited in
accordance with Paragraph 1.4.
(b) Any attempt to dispose of Restricted Shares in a manner
contrary to the restrictions set forth in this Agreement shall be ineffective.
1.3 RESTRICTED PERIOD.
(a) The restrictions set forth in Paragraph 1.2 shall apply for a
period (the "Restricted Period") of ________days from the date of this
agreement.
(b) Notwithstanding Paragraph 1.2, in the event of the Employee's
retirement, permanent total disability or death, or in cases of special
circumstances, the Committee may, in its sole discretion, when it finds that a
waiver would be in the best interests of the Company, waive in whole or in part
any or all remaining restrictions with respect to the Restricted Shares.
(c) Nothing in this Agreement shall preclude the Employee from
exchanging any Restricted Shares for any other shares of Common Stock that are
similarly restricted.
1.4 FORFEITURE. If the Employee's employment with the Company
shall terminate for any reason during the Restricted Period, all rights of the
Employee to the then remaining Restricted Shares shall terminate and be
forfeited (except as otherwise determined by the Committee pursuant to
Paragraph 1.3(b)).
1.5 WITHHOLDING. The Company may withhold from any cash payments
due from the Company to the Employee all taxes, including social security
taxes, which the Company is required or otherwise authorized to withhold with
respect to the Restricted Shares granted hereunder.
1.6 INVESTMENT REPRESENTATION. The Employee hereby represents,
warrants and covenants that (i) the Employee is acquiring the Restricted Shares
for his own account and not with a view to the distribution thereof, and (ii)
the Restricted Shares acquired by the Employee under this Agreement will not be
sold except pursuant to an effective registration statement under the
Securities Act of 1933, as amended, or pursuant to an exemption from
registration under said Act.
2. ADJUSTMENTS TO NUMBER OF SHARES
2
<PAGE> 3
In the event there is any change in the Common Stock through the
declaration of stock dividends or rights dividends, or through recapitalization
resulting in stock split-ups, or combinations or exchanges of shares, or
otherwise (including any change which would result n a substantial dilution or
enlargement of the rights or economic benefit inuring to the Employee from the
Restricted Shares), the Restricted Shares then subject to the restrictions
imposed hereunder shall be appropriately adjusted as determined by the
Committee, in its sole discretion.
3. NOTICES
All notices or communications hereunder shall be in writing, addressed
as follows:
To the Company:
CyberGuard Corporation
2101 West Cypress Creek Road,
Fort Lauderdale, Florida 33309
Attention: Secretary
To the Employee:
to the last known address of the Employee as appearing in the
Employee's personnel records as maintained by the Company.
Any such notice or communication shall be sent certified or registered
mail, return receipt requested, postage prepaid, addressed as above (or to such
other address as such party may designate in writing from time to time), and
the actual date of receipt, as shown by the receipt therefor, shall determine
the time at which notice was given.
4. ASSIGNMENT; AGREEMENT
This Agreement shall be binding upon and inure to the benefit of the
heirs and representatives of the Employee and the assigns and successors of the
Company, but neither this Agreement nor any rights hereunder shall be
assignable or otherwise subject to hypothecation by the Employee.
5. ENTIRE AGREEMENT; AMENDMENT; TERMINATION
This Agreement represents the entire agreement of the parties with
respect to the subject matter hereof. The Agreement may be amended at any time
by written agreement of the parties hereto. This Agreement may also be amended,
or may be terminated in its entirety, under the circumstances described in the
Plan.
3
<PAGE> 4
6. GOVERNING LAW
This Agreement and its validity, interpretation, performance and
enforcement shall be governed by the laws of the State of Florida.
7. SEVERABILITY
If, for any reason, any provision of this Agreement is held invalid,
such invalidity shall not affect any other provision of this Agreement not held
so invalid, and each such other provision shall to the full extent consistent
with law continue in full force and effect. If any provision of this Agreement
shall be held invalid in part, such invalidity shall in no way affect the rest
of such provision not held so invalid, and the rest of such provision, together
with all other provisions of this Agreement, shall to the full extent
consistent with law continue in full force and effect.
8. NO RIGHT TO CONTINUED EMPLOYMENT; EFFECT ON OTHER PLANS
This Agreement shall not, of itself, confer upon the Employee any
right with respect to continuance of employment by the Company, nor shall it
interfere in any way with the right of the Company to terminate Employee's
employment at any time. Income realized by the Employee pursuant to this
Agreement shall not be included in the Employee's earnings for the purpose of
any benefit plan of the Company in which the Employee may be enrolled or for
which the Employee may become eligible unless otherwise specifically provided
for in such plan.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Employee has hereunto set his hand, as of the day and year
first above written.
CYBERGUARD CORPORATION
By:
--------------------------------------
Robert L. Carberry
Chairman, President and Chief Executive
Officer
EMPLOYEE
-----------------------------------------
4
<PAGE> 1
EXHIBIT 5.01
November 5, 1997
CyberGuard Corporation
2000 West Commercial Boulevard
Suite 200
Fort Lauderdale, Florida 33309
RE: CYBERGUARD CORPORATION -- REGISTRATION STATEMENT ON FORM
S-8 (THE "REGISTRATION STATEMENT") -- OPINION RE LEGALITY
Gentlemen:
We are acting as counsel to CyberGuard Corporation, a Florida corporation
(the "Company"), in connection with the Company's 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 199,000 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 stock options (the "Options") granted to certain
employees and consultants.
In this connection, we have reviewed copies of the Articles of
Incorporation and Bylaws of the Company and the form of the Options, and we have
examined such corporate documents and records and other certificates, and have
made such investigations of law, as we have deemed necessary in order to render
the opinion hereinafter set forth.
Based on and subject to the foregoing, we are of the opinion that the
Shares are duly authorized and, upon issuance upon exercise of the Options,
against payment of the exercise price therefor, will be, assuming no change in
the applicable law or pertinent facts, and assuming sufficient authorized
capital at the time of issuance, validly issued, fully paid and non-assessable.
We hereby consent to the reference to our firm under the caption "Legal
Matters" in the Registration Statement and to the use of this opinion as an
exhibit to the Registration Statement. In giving this consent, we do not hereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Steven Sonberg
Holland & Knight LLP
By: Steven Sonberg, Partner
<PAGE> 1
EXHIBIT 23.1
The Board of Directors
CyberGuard Corporation:
We consent to the use of our reports incorporated by reference in the
registration statement.
KPMG Peat Marwick LLP
Miami, Florida
November 5, 1997
