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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
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(State or other jurisdiction of incorporation (I.R.S. Employer Identification No.)
or organization)
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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)
CYBERGUARD CORPORATION
EMPLOYEE STOCK OPTION PLAN
DATED SEPTEMBER 4, 1998
AS AMENDED BY AMENDMENT NO. 1 TO
EMPLOYEE STOCK OPTION PLAN
DATED AUGUST 10, 1999
(Full titles of the Plans)
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David R. Proctor Copy to:
Chairman of the Board of Directors, Chief Executive D. Ronald Surbey, Esq.
Officer and President Holland & Knight LLP
2000 West Commercial Boulevard, Suite 200 One East Broward Boulevard
Fort Lauderdale, Florida 33309 Fort Lauderdale, Florida 33301
(954) 958-3900 (954) 525-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO BE AMOUNT TO PROPOSED MAXIMUM PROPOSED AMOUNT OF
REGISTERED BE REGISTERED(1) OFFERING PRICE AGGREGATE REGISTRATION FEE
PER SHARE(2) OFFERING PRICE
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Common Stock, 2,500,000 1.125 $2,812,500 $ 781.88
$.01 par value
- ----------------------------- -------------------- ------------------- ---------------------------------------
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(1) The Common Stock being registered relates to stock option grants to be
undertaken in the future pursuant to the terms of the Employee Stock
Option Plan, as amended, with option exercise prices to be determined.
This Registration Statement also covers any additional shares that may
hereafter become purchasable as a result of the adjustment provisions in
the Plan or the agreement pursuant to which such shares are issued.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average of the bid and asked
price of the Common Stock of CyberGuard Corporation on September 16,
1999, as quoted in the "pink sheets."
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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, 1999, filed with the SEC on August 31, 1999.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, filed with the SEC on September 9, 1999.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1998, filed with the SEC on September 9, 1999.
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998, filed with the SEC on September 9, 1999.
(5) The Registrant's Current Report on Form 8-K, dated July 22,
1999, filed with the SEC on July 30, 1999.
(6) The Registrant's Description of Common Stock on Form 10,
effective September 1994 (File No. 0-24544)(including all amendments and
reports updating such description).
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
The class of securities to be offered under this Registration
Statement is registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
LIMITATION ON LIABILITY OF DIRECTORS
In accordance with Section 607.0831 of the Florida Business
Corporation Act ("Florida BCA"), which mandates the elimination of a director's
personal liability except under certain circumstances, Article XII of the
Company's Articles of Incorporation ("Article Twelfth") indemnifies its
directors by eliminating their personal liability to the Company or its
stockholders for monetary damages for breach of fiduciary duty as director,
except to the extent that such exemption from liability or limitation thereof
is not permitted under the Florida BCA as currently in effect or as it may
hereafter be amended. Under Section 607.0831 of the Florida BCA, as in effect
on the date hereof, a director remains personally liable for monetary damages
to the corporation or any other person for any statement, vote, decision, or
failure to act, regarding corporate management's policy, if the director
breached or failed to perform his duties as a
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director and the director breach of, or failure to perform, those duties
constitutes (i) a violation 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, (ii) a transaction from which the director
derived an improper personal benefit, either directly or indirectly, (iii) a
violation of Section 607.0834 of the Florida BCA, which proscribes directors
from voting for or assenting to the payment of dividends and stock repurchases
or redemptions under certain circumstances, (iv) willful misconduct or
conscious disregard for the best interests of the corporation in a proceeding
by or in the right of the corporation to procure a judgment in its favor or by
or in the right of a shareholder, or (v) recklessness or an act or omission
which was committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard of human rights, safety, or property in
a proceeding by or in the right of someone other than the corporation or a
shareholder.
Article Twelfth provides that any future repeal or amendment of its
terms (including any amendment or repeal of this Article Twelfth made by virtue
of any change in the Florida BCA) will not adversely affect any rights of
directors existing thereunder with respect to acts or omissions occurring prior
to such repeal or amendment.
INDEMNIFICATION AND INSURANCE
Pursuant to authority conferred by Section 607.0850 of the Florida
BCA, Section 6.4 of the Company's By-Laws mandates that the Company's
directors, officers, and employees be indemnified to the fullest extent
permitted by law for all expenses relating to any action, suit or proceeding,
whether civil, criminal, or administrative (i) by reason of the fact that such
person is or was a director, officer, or employee of the Company or (ii) by
reason of the fact that, while such person is or was a director, officer, or
employee of the Company, such person is or was serving at the request of the
Company as a director, officer, or employee of another enterprise.
Indemnification is available only where the person seeking indemnification has
(i) acted in good faith and (ii) in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Company with respect to the claim
against him. With respect to a criminal action or proceeding, such person must
also have had no reasonable cause to believe his conduct was unlawful. Section
607.0850(3) of the Florida BCA requires that the Company indemnify its
officers, directors, employees, and agents to the extent such person has been
successful on the merits or otherwise in defense of such proceeding.
Section 607.0850(6) of the Florida BCA permits the Company to pay
those expenses incurred by an officer or director in defending a civil or
criminal proceeding in advance of the final disposition of such proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount if he is ultimately found not to be entitled to indemnification by
the corporation. Expenses incurred by other employees and agents may be paid in
advance upon such terms or conditions that the board of directors deems
appropriate. Section 6.4 of the By-Laws requires the Company to pay or
reimburse all expenses, including attorney's fees, incurred by any such person
in defending any such action, suit or proceeding upon receipt by the Company of
an undertaking of such person to repay such expenses if it shall ultimately be
determined that such person is not entitled to be indemnified by the Company.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted for directors and officers and controlling
persons pursuant to the foregoing provisions, the Company has been advised that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
Directors and officers of the Company (collectively, "Indemnitees")
are each parties to an indemnification agreement (collectively "Indemnification
Agreements"). The Indemnification Agreements obligate the Company to indemnify
and hold harmless each Indemnitee to the fullest extent permitted by the
Articles of Incorporation, the By-Laws of the Company and the Florida BCA for
all expenses, including attorney's fees and taxes, in connection with any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), to which an
Indemnitee was, is, or is threatened to be made a party by reason of facts
which include his being or
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having been a director, officer, employee or agent of the Company. The
Indemnification Agreements exclude indemnification where (i) indemnification
would be prohibited by applicable law, (ii) the Indemnitee derived an improper
personal benefit, (iii) the Indemnitee engaged in willful misconduct, (iv) it
is determined that the Indemnitee violated of a criminal law (subject to
certain exceptions), or (v) it is determined that the Indemnitee violated
certain federal securities laws. The Indemnification Agreements provide for the
advancement of expenses of a Proceeding, including advancement to pay for
reasonable attorney's fees, upon the receipt of an undertaking to repay such
advances if it is ultimately determined that indemnification is unavailable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
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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 Employee Stock Option Plan dated September 4, 1998 (incorporated
by reference to the Registrant's Annual Report on Form 10-K for
the fiscal year ended June 30, 1999 filed with the SEC on August
31, 1999).
4.4 Amendment No. 1 to Employee Stock Option Plan dated August 10,
1999 (incorporated by reference to the Registrant's Annual Report
on Form 10-K for the fiscal year ended June 30, 1999 filed with
the SEC on August 31, 1999).
4.5 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)).
4.6 Form of Common Stock Certificate (incorporated by reference to
the Registrant's Registration Statement on Form S-3 filed with
the SEC on July 30, 1996).
4.7 Form of Share Holding Agreement between Concurrent Computer
Corporation and the Registrant (incorporated by reference to the
Registrant's Registration Statement on Form S-3 filed with the
SEC on July 30, 1996).
4.8 Employee Stock Incentive Plan (incorporated by reference to the
Registrant's Registration Statement on Form S-8 filed with the
SEC on January 13, 1995).
4.9 Amendment to Employee Stock Incentive Plan (incorporated by
reference to the Registrant's definitive proxy statement filed
with the SEC on May 24, 1996).
4.10 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; and E. Courtney Siegel (incorporated
by reference to the exhibits to the Company's Registration
Statement on Form S-3 (registration number 333-28693) filed with
the SEC on June 6, 1997).
4.11 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;
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4
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Robert Perks; and Rick Siebenaler (incorporated by reference to
the exhibits to the Company's Registration Statement on Form S-3
(registration number 333-28693) filed with the SEC on June 6,
1997).
4.12 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 (incorporated by reference to the exhibits to the
Company's Registration Statement on Form S-3 (registration number
333-28693) filed with the SEC on June 6, 1997).
4.13 Non-Statutory Stock Option Agreement dated as of February 4, 1996
between the Company and Brian Foremny (incorporated by reference
to the exhibits to the Company's Registration Statement on Form
S-3 (registration number 333-28693) filed with the SEC on June 6,
1997).
4.14 Non-Statutory Stock Option Agreement dated as of March 5, 1996
between the Company and Robert L. Carberry. (incorporated by
reference to the exhibits to the Company's Registration Statement
on Form S-3 (registration number 333-28693) filed with the SEC on
June 6, 1997).
4.15 Non-Statutory Stock Option Agreement dated as of August 27, 1996
between the Company and Frank Gelbart (incorporated by reference
to the exhibits to the Company's Registration Statement on Form
S-3 (registration number 333-28693) filed with the SEC on June 6,
1997).
4.16 Incentive Stock Option Agreement dated as of February 4, 1996
between the Company and Brian Foremny (incorporated by reference
to the exhibits to the Company's Registration Statement on Form
S-3 (registration number 333-28693) filed with the SEC on June 6,
1997).
4.17 Incentive Stock Option Agreement dated as of July 23, 1996
between the Company and Robert. L. Carberry (incorporated by
reference to the exhibits to the Company's Registration Statement
on Form S-3 (registration number 333-28693) filed with the SEC on
June 6, 1997).
4.18 Incentive Stock Option Agreement dated as of August 27, 1996
between the Company and Frank Gelbart (incorporated by reference
to the exhibits to the Company's Registration Statement on Form
S-3 (registration number 333-28693) filed with the SEC on June 6,
1997).
4.19 Form of Non-Statutory Stock Option Agreement between the Company
and non executive officers (incorporated by reference to the
exhibits to the Company's Registration Statement on Form S-3
(registration number 333-28693) filed with the SEC on June 6,
1997).
4.20 Form of Incentive Stock Option Agreement between the Company and
non executive officers (incorporated by reference to the exhibits
to the Company's Registration Statement on Form S-3 (registration
number 333-28693) filed with the SEC on June 6, 1997).
4.21 Form of Stock Option Agreement between the Company and
non-employee directors (incorporated by reference to the exhibits
to the Company's Registration Statement on Form S-3 (registration
number 333-28693) filed with the SEC on June 6, 1997).
4.22 Form of Restricted Stock Agreement between the Company and
certain employees of the Company's subsidiary (incorporated by
reference to the exhibits to the Company's Registration Statement
on Form S-3 (registration number 333-28693) filed with the SEC on
June 6, 1997).
4.23 Private Securities Subscription Agreement dated May 15, 1997
between the Company and Capital Ventures International
(incorporated by reference to the exhibits to the Company's
Registration Statement on Form S-3 (registration number
333-28693) filed with the SEC on June 6, 1997).
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4.24 Registration Rights Agreement dated May 15, 1997 between the
Company and Capital Ventures International (incorporated by
reference to the exhibits to the Company's Registration Statement
on Form S-3 (registration number 333-28693) filed with the SEC on
June 6, 1997).
4.25 Form of Non-Statutory Stock Option Agreement between the Company
and the following persons in the following amounts: Robert
Lawten-50,000 shares and Thomas Patterson-100,000 shares
(incorporated by reference to the Company's Registration
Statement on Form S-8 filed with the SEC on November 5, 1997).
4.26 Non-Statutory Stock Option Agreement dated as of October 23, 1997
between the Company and Arca Systems, Inc. (incorporated by
reference to the Company's Registration Statement on Form S-8
filed with the SEC on November 5, 1997).
4.27 Form of Restricted Stock Agreement for TradeWave Employees
(incorporated by reference to the Company's Registration
Statement on Form S-8 filed with the SEC on November 5, 1997).
4.28 Form of Restricted Stock Agreement between the Company and the
following persons in the following amounts and restriction
periods: Robert Lawten-2,000 shares, one year and Thomas
Patterson-2,000 shares, until January 1, 1998 (incorporated by
reference to the Company's Registration Statement on Form S-8
filed with the SEC on November 5, 1997).
5 Opinion of Holland & Knight LLP.
23.1 Consent of Holland & Knight LLP (included as part of Exhibit 5
above).
23.2 Consent of PricewaterhouseCoopers, LLP.
24 Powers of Attorney (included as part of the Signature Page of
this Registration Statement).
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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. Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 425(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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;
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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 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.
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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 15th day of
September, 1999.
CYBERGUARD CORPORATION
/s/ David R. Proctor
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By: David R. Proctor
Chairman of the Board of Directors, Chief
Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David R. Proctor, and Terrence A.
Zielinski, 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 attorney-in-fact and agent, 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 agent or either 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 on September 15, 1999 by the following persons in the
capacities indicated below.
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SIGNATURE TITLE
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/s/ David R. Proctor Chief Executive Officer, President and Chairman of the
- -------------------------------------------- Board of Directors
David R. Proctor
/s/ Terrence A. Zielinski Chief Financial Officer and Vice President
- -------------------------------------------- of Finance
Terrence A. Zielinski
/s/ C. Shelton James Director
- --------------------------------------------
C. Shelton James
/s/ Leland R. Reiswig, Jr. Director
- --------------------------------------------
Leland R. Reiswig, Jr.
/s/ Richard P. Rifenburgh Director
- --------------------------------------------
Richard P. Rifenburgh
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EXHIBIT INDEX
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Exhibit
Number Exhibit Description
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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 Employee Stock Option Plan dated September 4, 1998 (incorporated
by reference to the Registrant's Annual Report on Form 10-K for
the fiscal year ended June 30, 1999 filed with the SEC on August
31, 1999).
4.4 Amendment No. 1 to Employee Stock Option Plan dated August 10,
1999 (incorporated by reference to the Registrant's Annual Report
on Form 10-K for the fiscal year ended June 30, 1999 filed with
the SEC on August 31, 1999).
4.5 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)).
4.6 Form of Common Stock Certificate (incorporated by reference to
the Registrant's Registration Statement on Form S-3 filed with
the SEC on July 30, 1996).
4.7 Form of Share Holding Agreement between Concurrent Computer
Corporation and the Registrant (incorporated by reference to the
Registrant's Registration Statement on Form S-3 filed with the
SEC on July 30, 1996).
4.8 Employee Stock Incentive Plan (incorporated by reference to the
Registrant's Registration Statement on Form S-8 filed with the
SEC on January 13, 1995).
4.9 Amendment to Employee Stock Incentive Plan (incorporated by
reference to the Registrant's definitive proxy statement filed
with the SEC on May 24, 1996).
4.10 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; and E. Courtney Siegel (incorporated
by reference to the exhibits to the Company's Registration
Statement on Form S-3 (registration number 333-28693) filed with
the SEC on June 6, 1997).
4.11 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; and
Rick Siebenaler (incorporated by reference to the exhibits to the
Company's Registration Statement on Form S-3 (registration number
333-28693) filed with the SEC on June 6, 1997).
4.12 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 (incorporated by reference to the exhibits to the
Company's Registration Statement on Form S-3 (registration number
333-28693) filed with the SEC on June 6, 1997).
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4.13 Non-Statutory Stock Option Agreement dated as of February 4, 1996
between the Company and Brian Foremny (incorporated by reference
to the exhibits to the Company's Registration Statement on Form
S-3 (registration number 333-28693) filed with the SEC on June 6,
1997).
4.14 Non-Statutory Stock Option Agreement dated as of March 5, 1996
between the Company and Robert L. Carberry. (incorporated by
reference to the exhibits to the Company's Registration Statement
on Form S-3 (registration number 333-28693) filed with the SEC on
June 6, 1997).
4.15 Non-Statutory Stock Option Agreement dated as of August 27, 1996
between the Company and Frank Gelbart (incorporated by reference
to the exhibits to the Company's Registration Statement on Form
S-3 (registration number 333-28693) filed with the SEC on June 6,
1997).
4.16 Incentive Stock Option Agreement dated as of February 4, 1996
between the Company and Brian Foremny (incorporated by reference
to the exhibits to the Company's Registration Statement on Form
S-3 (registration number 333-28693) filed with the SEC on June 6,
1997).
4.17 Incentive Stock Option Agreement dated as of July 23, 1996
between the Company and Robert. L. Carberry (incorporated by
reference to the exhibits to the Company's Registration Statement
on Form S-3 (registration number 333-28693) filed with the SEC on
June 6, 1997).
4.18 Incentive Stock Option Agreement dated as of August 27, 1996
between the Company and Frank Gelbart (incorporated by reference
to the exhibits to the Company's Registration Statement on Form
S-3 (registration number 333-28693) filed with the SEC on June 6,
1997).
4.19 Form of Non-Statutory Stock Option Agreement between the Company
and non executive officers (incorporated by reference to the
exhibits to the Company's Registration Statement on Form S-3
(registration number 333-28693) filed with the SEC on June 6,
1997).
4.20 Form of Incentive Stock Option Agreement between the Company and
non executive officers (incorporated by reference to the exhibits
to the Company's Registration Statement on Form S-3 (registration
number 333-28693) filed with the SEC on June 6, 1997).
4.21 Form of Stock Option Agreement between the Company and
non-employee directors (incorporated by reference to the exhibits
to the Company's Registration Statement on Form S-3 (registration
number 333-28693) filed with the SEC on June 6, 1997).
4.22 Form of Restricted Stock Agreement between the Company and
certain employees of the Company's subsidiary (incorporated by
reference to the exhibits to the Company's Registration Statement
on Form S-3 (registration number 333-28693) filed with the SEC on
June 6, 1997).
4.23 Private Securities Subscription Agreement dated May 15, 1997
between the Company and Capital Ventures International
(incorporated by reference to the exhibits to the Company's
Registration Statement on Form S-3 (registration number
333-28693) filed with the SEC on June 6, 1997).
4.24 Registration Rights Agreement dated May 15, 1997 between the
Company and Capital Ventures International (incorporated by
reference to the exhibits to the Company's Registration Statement
on Form S-3 (registration number 333-28693) filed with the SEC on
June 6, 1997).
4.25 Form of Non-Statutory Stock Option Agreement between the Company
and the following persons in the following amounts: Robert
Lawten-50,000 shares and Thomas Patterson-100,000 shares
(incorporated by reference to the Company's Registration
Statement on Form S-8 filed with the SEC on November 5, 1997).
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4.26 Non-Statutory Stock Option Agreement dated as of October 23, 1997
between the Company and Arca Systems, Inc. (incorporated by
reference to the Company's Registration Statement on Form S-8
filed with the SEC on November 5, 1997).
4.27 Form of Restricted Stock Agreement for TradeWave Employees
(incorporated by reference to the Company's Registration
Statement on Form S-8 filed with the SEC on November 5, 1997).
4.28 Form of Restricted Stock Agreement between the Company and the
following persons in the following amounts and restriction
periods: Robert Lawten-2,000 shares, one year and Thomas
Patterson-2,000 shares, until January 1, 1998 (incorporated by
reference to the Company's Registration Statement on Form S-8
filed with the SEC on November 5, 1997).
5 Opinion of Holland & Knight LLP.
23.1 Consent of Holland & Knight LLP (included as part of Exhibit 5
above).
23.2 Consent of PricewaterhouseCoopers, LLP.
24 Powers of Attorney (included as part of the Signature Page of
this Registration Statement).
</TABLE>
<PAGE> 1
EXHIBIT 5
Cyberguard Corporation
2000 W. Commercial Boulevard, Suite 200
Fort Lauderdale, FL 33301
Re: Cyberguard Corporation - Registration Statement on Form S-8
Ladies & Gentlemen:
You have requested our opinion in connection with the above-referenced
Registration Statement (the "Registration Statement").
We have acted as counsel for CyberGuard Corporation, a Florida
corporation (the "Company"), with respect to the preparation and filing with
the Securities and Exchange Commission (the "SEC") of the Registration
Statement in connection with the registration for sale of up to 2,500,000
shares (the "Shares") of the common stock, $.01 par value per share, of the
Company (the "Common Stock"), which may be issued by the Company to certain of
its employees, consultants and affiliates under the Company's Employee Stock
Option Plan dated September 4, 1998, as amended by Amendment No. 1 to Employee
Stock Option Plan dated August 10, 1999 (the "Plan").
We have reviewed copies of the Articles of Incorporation and Bylaws of
the Company, as amended or restated, and 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.
In rendering this opinion, we have undertaken no independent review of
the operations of the Company. 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 photostat copies; (iii) the
authenticity of the originals of such latter documents; (iv) that all factual
information supplied to us is accurate, true and complete; (v) the genuineness
of all signatures; and (vi) the due authorization by the Board of Directors of
the Company for the issuance of 2,500,000 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 and subject to the foregoing and assuming no change in
relevant facts, we are of the opinion that the Shares are duly authorized, and
upon issuance of the Shares in accordance with the Plan and for the
consideration set forth in the Plan, will be validly issued, fully paid and
non-assessable.
We hereby consent 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 of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
HOLLAND & KNIGHT LLP
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
CyberGuard Corporation:
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated August 27, 1999 relating
to the financial statements of CyberGuard Corporation, which appears in
CyberGuard Corporation's Annual Report on Form 10-K for the year ended June 30,
1999.
(signed) PricewaterhouseCoopers, LLP
Atlanta, Georgia
September 15, 1999
