<PAGE> 1
As filed with the Securities and Exchange Commission on July 2, 1998
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
CYBERGUARD CORPORATION
(Exact name of registrant as specified in its charter)
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FLORIDA 65-0510339
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2000 WEST COMMERCIAL BOULEVARD
SUITE 200
FORT LAUDERDALE, FLORIDA 33309
(954) 958-3900
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
--------------
1988 STOCK PLAN OF ARCA SYSTEMS, INC.
(Full titles of the Plans)
BRIAN FOREMNY, ESQUIRE
2000 WEST COMMERCIAL BOULEVARD
SUITE 200
FORT LAUDERDALE, FLORIDA 33309
(954) 958-3900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH A COPY TO:
TEDDY D. KLINGHOFFER, ESQUIRE
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
150 WEST FLAGLER STREET, SUITE 2200
MIAMI, FLORIDA 33130
(305) 789-3200
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================== ===================== =================== ===================== ==================
Proposed Proposed
TITLE OF EACH CLASS Amount maximum maximum Amount of
OF SECURITIES TO BE to be offering price aggregate registration
REGISTERED (1) registered per share (2) offering price(2) fee
- ----------------------------------- --------------------- ------------------- --------------------- ------------------
<S> <C>
Common Stock, $.01 par value 124,463 shares $9.28 $1,155,017 $340.73
=================================== ===================== =================== ===================== ==================
</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 purpose of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
prices of the Common Stock of CyberGuard Corporation on July 1, 1998,
as reported on the Nasdaq National Market.
================================================================================
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by CyberGuard Corporation, a
Florida corporation (the "Registrant"), with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") are incorporated by reference herein:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended June 30, 1997, filed with the SEC on September 29,
1997, as amended on Form 10-K/A for the fiscal year ended June
30, 1997, filed with the SEC on October 22, 1997, and as
amended on Form 10-K/A for the fiscal year ended June 30,
1997, filed with the SEC on October 28, 1997.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997, filed with the SEC on November 13,
1997.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1997, filed with the SEC on February 13,
1997.
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998, filed with the SEC on May 15, 1998.
(5) The Registrant's Current Report on Form 8-K, dated November
20, 1997, filed with the SEC on November 20, 1997.
(6) The Registrant's Current Report on Form 8-K, dated June 17,
1998, filed with the SEC on June 23, 1998.
(7) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 10, filed with
the SEC on July 20, 1994.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Registrant has authority under Section 607.0850 of the
Florida Business Corporation Act (the "FBCA") to indemnify its directors and
officers to the extent permitted in such statute. With respect to the
indemnification of the Registrant's directors and officers, the Registrant's
Restated Bylaws provide that the Registrant shall indemnify its directors and
officers to the fullest extent permitted by law. In addition, the Registrant
carries insurance permitted by
<PAGE> 3
the laws of the State of Florida on behalf of its directors and officers which
may cover liabilities under the Securities Act of 1933, as amended (the
"Securities Act").
The provisions of the FBCA that authorize indemnification do not
eliminate the duty of care of a director, and in appropriate circumstances
equitable remedies such as injunctive or other forms of nonmonetary relief will
remain available under Florida law. In addition, each director will continue to
be subject to liability for (a) violations of the criminal law, unless the
director had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful; (b) deriving an improper
personal benefit from a transaction, either directly or indirectly; (c) voting
for or assenting to an unlawful distribution; and (d) willful misconduct or a
conscious disregard for the best interests of the Registrant in a proceeding by
or in the right of the Registrant to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder. These provisions do not affect a
director's responsibilities under any other law, such as the federal securities
laws or state or federal environmental laws.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
<TABLE>
<CAPTION>
<S> <C>
4.1 Articles of Incorporation, as amended, of the Registrant (incorporated by reference
to the Registrant's Annual Report on Form 10-K for the fiscal year ended June 30,
1996).
4.2 Restated By-laws of the Registrant (incorporated by reference to the Post-Effective
Amendment No. 1 to the Registrant's Registration Statement on Form 10, filed
with the SEC on September 29, 1994 (File No. 0-24544)).
4.3 Form of Stockholder Rights Plan (incorporated by reference to Post-Effective
Amendment No. 1 to the Registrant's Registration Statement on Form 10, filed
with the SEC on September 29, 1994 (File No. 0-24544)).
5.1 Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
23.1 Consent of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. (included
as part of Exhibit 5 above).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Tobkin, Chiang & Hammon, certified public accountants.
24.1 Powers of Attorney (included as part of the Signature Page of this Registration
Statement).
</TABLE>
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Item 9. Undertakings
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the
effective date of the Registration
Statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in the Registration Statement;
(iii) To include any material information
with respect to the plan of
distribution not previously
disclosed in the Registration
Statement or any material change to
such information in the Registration
Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each
such post-effective amendment shall be
deemed to be a new Registration Statement
relating to the securities offered therein,
and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the
securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the
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Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
-4-
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Ft. Lauderdale, State of Florida, on the 2nd day of
July, 1998.
CYBERGUARD CORPORATION
By: /s/ Robert L. Carberry
--------------------------------------
Robert L. Carberry
Chairman and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert L. Carberry and William Murray,
and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, 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 file the same,
with all exhibits thereto, and other documents in connection therewith, with the
SEC, granting unto said attorneys-in-fact and agents, and each of them, 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 each said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Robert L. Carberry Chief Executive Officer and June 26, 1998
- ---------------------------------- Chairman of the Board of Directors
Robert L. Carberry
/s/ William D. Murray Vice President of Finance and Chief June 26, 1998
- ---------------------------------- Financial Officer
William D. Murray
/s/ Tommy D. Steele President, Chief Operating Officer June 26, 1998
- ---------------------------------- and Director
Tommy D. Steele
/s/ C. Shelton James Director July 1, 1998
- ----------------------------------
C. Shelton James
</TABLE>
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Director
- ------------------------------------
David R. Proctor
/s/ Richard P. Rifenburgh Director June 29, 1998
- ------------------------------------
Richard P. Rifenburgh
Director
- ------------------------------------
Leland R. Reiswig, Jr.
</TABLE>
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ----- -----------
<S> <C>
5.1 Opinion of Stearns Weaver Miller Weissler Alhadeff
& Sitterson, P.A.
23.1 Consent of Stearns Weaver Miller Weissler Alhadeff
& Sitterson, P.A. (included as part of Exhibit 5.1 above)
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Tobkin, Chiang & Hammon, certified
public accountants
</TABLE>
<PAGE> 1
EXHIBIT 5.1
LAW OFFICES
STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A.
MUSEUM TOWER
150 WEST FLAGLER STREET
MIAMI, FLORIDA 33130
---------
MIAMI (305) 789-3200 * BROWARD (954) 463-5440
FAX (305) 789-3395
<TABLE>
<CAPTION>
<S> <C> <C> <C>
E. RICHARD ALHADEFF RICHARD B. JACKSON CARL D. ROSTON OWEN S. FREED
LOUISE JACOWITZ ALLEN THEODORE A. JEWELL DAVID A. ROTHSTEIN SENIOR COUNSEL
STUART D. AMES MICHAEL I. KEYES BETTY CHANG ROWE
LAWRENCE J. BAILIN TEDDY D. KLINGHOFFER STEVEN D. RUBIN DAVID M. SMITH
PATRICK A. BARRY ROBERT T. KOFMAN MIMI L. SALL LAND USE CONSULTANT
AMANDA C. BARRY PAUL TAGER LEHR NICOLE S. SAYFIE
SHAWN BAYNE VERNON L. LEWIS RICHARD E. SCHATZ
LISA K. BENNETT WENDELL T. LOCKE LESTER E. SEGAL TAMPA OFFICE
SUSAN FLEMING BENNETT KEVIN B. LOVE JAY B. SHAPIRO SUITE 2200
LISA K. BERG JOY SPILLIS LUNDEEN MARTIN S. SIMKOVIC SUNTRUST FINANCIAL CENTRE
MARK J. BERNET GEOFFREY MacDONALD CURTIS H. SITTERSON 401 EAST JACKSON STREET
HANS C. BEYER MICHAEL C. MARSH RONNI D. SOLOMON TAMPA, FLORIDA 33602
MARTIN G. BURKETT BRIAN J. McDONOUGH MARK D. SOLOV ---------
CLAIRE BAILEY CARRAWAY ANTONIO R. MENENDEZ EUGENE E. STEARNS (813) 223-4800
ELLEN I. CHO FRANCISCO J. MENENDEZ JENNIFER D. STEARNS
SETH THOMAS CRAINE ALISON W. MILLER BRADFORD SWING
PETER L. DESIDERIO VICKI LYNN MONROE SUSAN J. TOEPFER FORT LAUDERDALE OFFICE
MARK P. DIKEMAN HAROLD D. MOOREFIELD, JR. ANNETTE TORRES SUITE 1900
SHARON QUINN DIXON JOHN N. MURATIDES DENNIS R. TURNER 200 EAST BROWARD BOULEVARD
ALAN H. FEIN JOHN K. OLSON RONALD L. WEAVER FORT LAUDERDALE, FLORIDA 33301
ANGELO M. FILIPPI ROBERT C. OWENS ROBERT I. WEISSLER ----------
ANDREA F. FISHER JAY P. W. PHILP PATRICIA G. WELLES (954) 462-9500
ROBERT E. GALLAGHER, JR. DARRIN J. QUAM THOMAS H. WILLIAMS, JR.
CHAVA E. GENET NICOLE R. RAMIREZ MARTIN B. WOODS
LATASHA A. GETHERS JOHN M. RAWICZ
PATRICIA K. GREEN PATRICIA A. REDMOND
JOSEPH K. HALL ELIZABETH G. RICE
ALICE R. HUNEYCUTT GLENN M. RISSMAN
</TABLE>
July 2, 1998
Mr. Robert L. Carberry
Chief Executive Officer
CyberGuard Corporation
2000 W. Commercial Boulevard, Suite 200
Fort Lauderdale, FL 33309
Re: Cyberguard Corporation - Form S-8
---------------------------------
Dear Mr. Carberry:
We have acted as counsel for CyberGuard Corporation, a Florida
corporation (the "Corporation"), with respect to the preparation and filing with
the Securities and Exchange Commission (the "SEC") of a Form S-8 Registration
Statement (the "Registration Statement") in connection with the registration of
124,463 shares of the Corporation's common stock, par value $.01 per share (the
"Common Stock"), issuable upon the exercise of options granted pursuant to the
1988 Stock Plan of ARCA Systems, Inc. (the "Plan").
In connection with our opinion, we have examined the Registration
Statement, including all exhibits thereto, as filed with the SEC, and the
Articles of Incorporation and By-laws of the Corporation, as amended or
restated, as well as such other documents and proceedings as we have considered
necessary for the purposes of this opinion. We have also examined and are
familiar with the proceedings taken by the Corporation to authorize the issuance
of the shares of Common Stock pursuant to the Plan.
In rendering this opinion, we have undertaken no independent review of
the operations of the Corporation. Instead, we have relied solely upon the
documents described above. In examining such documents, we have assumed, without
independent investigation: (i) the authenticity of all documents submitted to us
as originals; (ii) the conformity to original documents of all documents
submitted to us as certified or photostatic copies; (iii) the authenticity of
the originals of such latter documents; (iv) that all factual information
supplied to us is accurate, true and complete;
<PAGE> 2
(v) the genuineness of all signatures; and (vi) the due authorization by the
Board of Directors of the Corporation for the issuance of 124,463 shares of
Common Stock issuable upon the exercise of options granted pursuant to the Plan.
In addition, as to questions of fact material to the opinions expressed herein,
we have relied upon the accuracy of all representations and warranties as to
factual matters contained in any of the documents submitted to us for purposes
of rendering the opinion. We express no opinion as to federal securities laws or
the "blue sky" laws of any state or jurisdiction.
Based upon the foregoing, and having regard to legal considerations
which we deem relevant, we are of the opinion that the 124,463 shares of Common
Stock registered under the Registration Statement and issuable in accordance
with the Plan will, if and when issued and delivered by the Corporation against
payment of adequate consideration therefor in accordance with the Plan, be
validly issued, fully paid and non-assessable.
This opinion is intended solely for the Corporation's use in connection
with the registration of the Common Stock and may not be relied upon for any
other purpose or by any other person. This opinion may not be quoted in whole or
in part or otherwise referred to or furnished to any other person except in
response to a valid subpoena. This opinion is limited to the matters expressly
stated herein, and no opinion is implied or may be inferred beyond the matters
expressly stated herein. This opinion is rendered as of the date hereof, and we
assume no obligation to update or supplement such opinion to reflect any facts
or circumstances that may hereafter come to our attention or any changes in
facts or law that may hereafter occur. We hereby consent to the inclusion of
this opinion letter as an exhibit to the Registration Statement.
Very truly yours,
/s/ Stearns Weaver Miller Weissler Alhadeff &
Sitterson, P.A.
STEARNS WEAVER MILLER WEISSLER ALHADEFF &
SITTERSON, P.A.
STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A.
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
CyberGuard Corporation:
We consent to incorporation by reference in the registration statement
on Form S-8 of CyberGuard Corporation of our report dated September 23, 1997,
relating to the consolidated balance sheets of CyberGuard Corporation and its
subsidiaries as of June 30, 1997, and 1996, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the three-year period ended June 30, 1997, which report appears in the
June 30, 1998 annual report on Form 10-K of CyberGuard Corporation.
(signed) KPMG Peat Marwick, LLP
Miami, Florida
July 2, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of CyberGuard Corporation on Form S-8 of our report dated February 13,
1998 for the Audited Financial Statements of ARCA Systems, Inc. for the year
ended December 31, 1997, appearing in the Current Report on Form 8-K of
CyberGuard Corporation, dated June 17, 1998.
/s/ Tobkin, Chiang & Hammon
TOBKIN, CHIANG & HAMMON, certified public accountants
San Jose, California
July 2, 1998
