<PAGE> 1
SECURITIES AND EXCHANGECOMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended SEPTEMBER 30, 2000
-------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________ to __________
Commission file number 0-24544
CYBERGUARD CORPORATION
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(Exact name of Registrant as Specified in Its Charter)
FLORIDA 65-0510339
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2000 WEST COMMERCIAL BLVD., SUITE 200, FORT LAUDERDALE, FLORIDA 33309
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(Address of Principle Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code 954-958-3900
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Former Name, Former Address and Former Fiscal Year, if Changed Since Last Report
Indicate by check |X| whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports),
Yes [X] No [ ]
and (2) has been subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
As of November 8, 2000, 9,888,534 shares of the Registrant's $0.01 par
value Common Stock were outstanding.
<PAGE> 2
PART I: FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CYBERGUARD CORPORATION
<PAGE> 3
CYBERGUARD CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEET
(Unaudited)
(Dollars in thousands)
<TABLE>
<CAPTION>
Sept. 30, June 30,
2000 2000
-------- --------
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 1,400 $ 2,497
Restricted cash 747 800
Accounts receivable, less allowance for uncollectible accounts
of $81 at Sept. 30, 2000 and $52 at June 30, 2000 2,556 3,614
Inventories, net 318 159
Other current assets 1,456 1,255
-------- --------
Total current assets 6,477 8,996
Property and equipment at cost, less accumulated
depreciation of $1,247 at Sept. 30, 2000 and
$1,181 at June 30, 2000 1,160 1,086
Capitalized software, net 963 1,142
Non-compete agreements, net 210 280
Other assets 22 163
-------- --------
Total assets $ 8,833 $ 10,996
======== ========
LIABILITIES AND SHAREHOLDERS' DEFICIT
Line of credit and note payable 753 1,575
Accounts payable 1,720 1,424
Deferred revenue 2,653 2,912
Accrued expenses and other liabilities 2,199 1,942
-------- --------
Total current liabilities 7,325 7,853
Note Payable 650 650
Convertible debenture, net 4,481 4,445
-------- --------
Total liabilities 12,456 12,948
-------- --------
Shareholders' deficit
Common stock par value $0.01 authorized 50,000,000 shares
issued and outstanding 9,880,690 at Sept. 30, 2000
and 9,799,321 at June 30, 2000 99 98
Additional paid-in capital 75,442 75,290
Accumulated deficit (79,309) (77,451)
Accumulated other comprehensive income 145 111
-------- --------
Total shareholders' deficit (3,623) (1,952)
-------- --------
Total liabilities and shareholders' deficit $ 8,833 $ 10,996
======== ========
</TABLE>
See accompanying notes to condensed consolidated financial statements
2
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CYBERGUARD CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(Dollars in thousands except share and per share data)
<TABLE>
<CAPTION>
Three Months Ended
-------------------------------
Sept. 30, Sept. 30,
2000 1999
----------- -----------
<S> <C> <C>
Revenues:
Products $ 2,941 $ 3,263
Services 1,107 1,068
----------- -----------
Total revenues 4,048 4,331
Cost of revenues:
Products 658 532
Services 522 695
----------- -----------
Total cost of revenues 1,180 1,227
----------- -----------
Gross profit 2,868 3,104
----------- -----------
Operating expenses:
Research and development 1,314 883
Selling, general and administrative 3,229 2,451
----------- -----------
Total operating expenses 4,543 3,334
----------- -----------
Operating loss (1,675) (230)
----------- -----------
Other income (expense)
Interest expense, net (199) (344)
Gain on sale of assets 13 14
Other income (expense) 2 (24)
----------- -----------
Total other income (expense) (184) (354)
Net loss $ (1,859) $ (584)
=========== ===========
Basic and fully-diluted loss per common share $ (0.19) $ (0.06)
=========== ===========
Weighted average number of common shares outstanding 9,849,396 9,088,680
=========== ===========
</TABLE>
See accompanying notes to condensed consolidated financial statements
3
<PAGE> 5
CYBERGUARD CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOW
(Unaudited)
(Dollars in thousands)
<TABLE>
<CAPTION>
Three Months Ended
-------------------------
Sept. 30, Sept. 30,
2000 1999
--------- ---------
<S> <C> <C>
Cash flows from operating activities
Net loss $(1,859) $ (584)
Adjustment to reconcile net loss to net cash
used in operating activities:
Depreciation 178 104
Amortization 248 102
Interest on retirement of convertible debt 240
Interest on new convertible debt 36 31
Provision for uncollectible accounts receivable 28 (122)
Provision for inventory reserve 1 --
Changes in assets and liabilities
Accounts receivable 1,029 (763)
Other current assets (201) (503)
Inventories (157) 52
Accounts payable 296 (1,527)
Accrued expenses and other liabilities 257 (802)
Deferred revenue (259) 1,149
Other, net 175 21
--------- ---------
Net cash used in operating activities (228) (2,602)
--------- ---------
Cash flows provided by (used in) investing activities
Capitalized software costs -- (90)
Additions/deletions to PPE (252) (34)
--------- ---------
Net cash used in investing activities (252) (124)
--------- ---------
Cash flows provided by (used in) financing activities
Change in restricted cash 53 --
Issuance of new convertible debt 4,313
Retirement of existing convertible debt (1,125)
Notes Payable (169) (334)
Revolving line of credit (654) (597)
Proceeds from stock options exercised 102 --
Proceeds from sale of common stock 51 70
--------- ---------
Net cash provided by (used in) from financing activities (617) 2,327
--------- ---------
Net decrease in cash (1,097) (399)
Cash and cash equivalents at beginning of period 2,497 2,622
------- -------
Cash and cash equivalents at end of period $ 1,400 $ 2,223
======= =======
Supplemental disclosure of cash flow information
Cash paid for interest 93 400
======= =======
Cash paid for income taxes -- --
======= =======
</TABLE>
See accompanying notes to condensed consolidated financial statements
4
<PAGE> 6
CYBERGUARD CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 2000
(UNAUDITED)
1. BASIS OF PRESENTATION
The Company has prepared the consolidated financial statements included
herein, without audit, pursuant to the rules and regulations of the Securities
and Exchange Commission with respect to Form 10-Q. Certain information and
footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed or
omitted pursuant to such rules and regulations, although the Company believes
that the disclosures made are adequate so as to make the information contained
not misleading. These interim financial statements and the notes should be read
in conjunction with the financial statements and the notes included in the
Company's 10-K for the year ended June 30, 2000. In the Company's opinion, all
adjustments (consisting only of normal recurring adjustments) necessary for fair
presentation of the information shown have been included. Generally accepted
accounting standards also requires management to make estimates and assumptions
that affect the reported amounts of assets, liabilities, revenues and expenses,
and disclose contingent assets and liabilities at the date of the financial
statements. Significant estimates include those made for software development
costs, reserve for inventories, the allowance for uncollectible accounts, and
contingencies. Actual results could differ from those estimates.
The results of operations for the three months ended September 30, 2000
presented are not necessarily indicative of the results of operations that may
be expected for the year ending June 30, 2001.
Basic loss per share is calculated by dividing net loss by the weighted
average number of common shares outstanding during the year. Diluted per share
data includes the dilutive effect s of options, warrants and convertible
securities. Since the effects of the outstanding options, warrants and
convertible securities are anti-dilutive, they are not included in the
calculation of diluted loss per share.
The Company's operating results and financial condition may be impacted by
a number of factors including, but not limited to the following, any of which
could cause actual results to vary materially from current and historical
results or the Company's anticipated future results. A portion of the Company's
revenue is derived from its international operations and sources. As a result,
the Company's operations and financial results could be affected by
international factors such as changes in foreign currency exchange rates or weak
economic conditions in the international markets in which the Company
distributes its products. The network security industry is highly competitive
and competition is expected to intensify. There are numerous companies competing
in segments of the market in which the Company does business. Competitors
include organizations significantly larger and with more development, marketing
and financial resources than the Company. In addition, the Company is subject to
risks and uncertainties which include, but are not limited to, the timely
development of and acceptance of new products, impact of competitive products,
competition for and retention of key management and technology employees,
regulation, inventory obsolescence, the ultimate outcome of certain litigation
matters, and cash balances in excess of federally insured limits.
2. LITIGATION
On August 24, 1998, the Company announced, among other things, that due to
a review of its revenue recognition practices relating to distributors and
resellers, it would restate prior financial results. After the August 24, 1998
announcement, twenty-five purported class action lawsuits were filed by alleged
shareholders against the Company and certain former officers and directors.
Pursuant to an order issued by the Court, these actions have been consolidated
into one action, styled STEPHEN CHENEY, ET AL. V.
5
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CYBERGUARD CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 2000
(UNAUDITED)
CYBERGUARD CORPORATION, ET AL., Case No. 98-6879-CIV-Gold, in the United States
District Court, Southern District of Florida. On August 23, 1999, the plaintiffs
filed a Consolidated and Amended Class Action Complaint. This action seeks
damages purportedly on behalf of all persons who purchased or otherwise acquired
the Company's common stock during various periods from November 7, 1996 through
August 24, 1998. The complaint alleges, among other things, that as a result of
accounting irregularities relating to the Company's revenue recognition
policies, the Company's previously issued financial statements were materially
false and misleading and that the defendants knowingly or recklessly published
these financial statements which caused the Company's common stock prices to
rise artificially. The action alleges violations of Section 10(b) of the
Securities Exchange Act of 1934 ("Exchange Act") and SEC Rule 10b-5 promulgated
thereunder and Section 20(a) of the Exchange Act. Subsequently, the defendants,
including the Company, filed their respective motions to dismiss the amended
complaint. On July 31, 2000, the Court issued a ruling denying the Company's and
Robert L. Carberry's (the Company's CEO from June 1996 through August 1998)
motions to dismiss. The court granted the motions to dismiss with prejudice for
defendants William D. Murray (the Company's CFO from November 1997 through
August 1998), Patrick O. Wheeler (the Company's CFO from April 1996 through
October 1997), C. Shelton James (former Audit Committee Chairman), and KPMG Peat
Marwick LLP ("KPMG"). On August 14, 2000, the plaintiffs filed a motion for
reconsideration of that order. The Company filed an answer to the plaintiffs'
complaint on August 24, 2000.
The Company's obligation to indemnify its officers and directors under the
aforementioned lawsuit is insured to the extent of the limits of the applicable
insurance policies. The Company has notified its insurance carrier of the
existence of the lawsuit, and the carrier has sent the Company a reservation of
rights letter. The Company intends to vigorously defend this action, and
believes that in the event that it is unsuccessful, insurance coverage will be
available to defray a portion, or substantially all, of the expense of defending
and settling the lawsuit or paying a judgment. However, the Company is unable to
predict the ultimate outcome of the litigation. There can be no assurance that
the Company will be successful in defending the lawsuit or if unsuccessful,
insurance will be available to pay all or any portion of the expense of the
lawsuit. If the Company is unsuccessful in defending the lawsuit and the
insurance coverage is unavailable or insufficient, the resolution of the lawsuit
could have an effect on the Company's consolidated financial position, results
of operations, and cash flows. The Company's consolidated financial statements
do not include any adjustments related to these matters.
On September 16, 1999, the Company filed a lawsuit against KPMG and August
A. Smith, the KPMG engagement partner. The lawsuit is pending in the Circuit
Court of the 17th Judicial Circuit in and for Broward County, Case No.
00-004102-CACE-14. On May 1, 2000, the Company filed the First Amended
Complaint, alleging that KPMG failed to properly audit the Company's financial
statements and provided inaccurate advice on accounting matters for fiscal years
1996, 1997 and 1998. The action alleges professional malpractice, breach of
fiduciary duty, breach of contract and breach of implied duty of good faith, and
seeks damages in excess of $10 million. KPMG and Mr. Smith filed motions to
dismiss, which were denied. In August 2000, KPMG and Mr. Smith filed their
answers and KPMG filed counterclaims against the Company, alleging the Company's
breach of contract, negligent misrepresentation and abuse of process, and seeks
an unspecified amount of damages consisting of unpaid service fees and legal
fees and costs.
The Company is involved from time to time in other litigation on various
matters relating to the conduct of its business. The Company believes that these
other litigation matters, single or collective, will not have a material adverse
effect on its consolidated financial position, results of operations or cash
flows.
6
<PAGE> 8
CYBERGUARD CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 2000
(UNAUDITED)
3. RELATED PARTY TRANSACTIONS
On August 26, 1999, certain directors, officers and employees invested in
the Company's convertible debenture offering, contributing a total of $614,000.
The interest rate on the convertible debt is 11.5% per annum. The debt can be
converted into approximately 614,000 shares of common stock at a conversion
price equal to $1.00 per share. In addition, the Company issued approximately
614,000 warrants to purchase the Company's common stock at $2.00 per share. The
warrants are exercisable any time before August 2004.
4. SUBSEQUENT EVENTS
None
7
<PAGE> 9
CYBERGUARD CORPORATION
SEPTEMBER 30, 2000
(DOLLARS IN MILLIONS, EXCEPT SHARE AND PER SHARE DATA)
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The Company provides a full suite of products and services for the
network security industry. The products offered by the Company include the
CyberGuard(R) Firewall, proprietary and third-party technology (such as Virtual
Private Network, authentication, virus scanning, encryption, advanced reporting,
high availability and centralized management), and consulting, support, and
installation services.
RESULTS OF OPERATIONS
THE QUARTER ENDED SEPTEMBER 30, 2000 COMPARED TO THE QUARTER ENDED
SEPTEMBER 30, 1999
NET REVENUES
Net revenues consist primarily of network security products and
services including third party security products and service and support related
to security products. For the quarter ended September 30, 2000, net revenues
were $4.048 million compared to $4.331 million for the quarter ended September
30, 1999. The slight decline was comprised of a decrease of $.322 million in
network security product revenues and an increase of $0.039 million in service
revenues. The decrease in network security product revenues was primarily caused
by the transition in the Company's sales management team. Network security
products accounted for 72.7% for revenues during the quarter ended September 30,
2000 as compared to 75.3% for the quarter ended September 30, 1999. Support
services for network security products accounted for 27.3% of revenues during
the quarter ended September 30, 2000 as compared to 24.7% of revenues during the
quarter ended September 30, 1999.
GROSS PROFIT
Gross Profit as a percentage of revenues decreased to 70.8% from 71.7% for
the quarter ended September 30, 2000. The decrease is attributable to the
decreased level of revenues relative to the fixed cost components of cost of
revenues.
OPERATING EXPENSES, OTHER INCOME AND EXPENSE AND NET LOSS
Overall, operating expenses increased $1.209 million for the quarter ended
September 30, 2000 to $4.543 million. This is due to increased compensation and
related employee costs associated with R&D, the initial investment in a new
marketing and branding campaign and some foreign currency exchange losses in the
European subsidiary.
Other Income and Expense decreased $0.170 million for the quarter ended
September 30, 2000 to ($0.184) million. This is due to a decrease in interest
expense of $0.145 million primarily associated with the convertible debt and
warrants.
The net loss for the quarter ended September 30, 2000 was $1.859 million
compared to $.584 for the quarter ended September 30, 1999. The Company did not
provide for income taxes due to the significant net operating loss carryforwards
available.
8
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CYBERGUARD CORPORATION
SEPTEMBER 30, 2000
(DOLLARS IN MILLIONS, EXCEPT SHARE AND PER SHARE DATA)
LIQUIDITY AND CAPITAL RESOURCES
The Company has experienced losses since its inception as a network
security company. The Company's historical uses of cash have been to fund net
losses from operations, establish inventory stocking levels, and fund capital
expenditures for property, equipment and software. For the quarter ended
September 30, 2000, the Company incurred a net loss of approximately $1,859,000
on revenues of approximately $4.048 million. For the quarter ended September 30,
1999, the Company incurred a net loss of approximately $0.584 million on
revenues of approximately $4.331 million.
The Company and certain former officers and directors were named in
twenty-five shareholder lawsuits. The plaintiffs sued for unspecified
compensatory damages, legal fees, and litigation costs. The Company is unable to
predict the ultimate outcome or potential financial impact of this litigation.
The consolidated financial statements do not include any adjustments
relating to the realization of assets and the recognition and satisfaction of
liabilities that might be necessary as a result of the matters described in this
Item 2 or Part II, Item 1 of this report. At September 30, 2000, the Company had
cash and cash equivalents on hand of $1.4 million representing a decrease of
$1.097 million from $2.497 million as of June 30, 2000. Accounts payable and
accrued liabilities increased by $0.553 million, accounts receivable decreased
by $1.058 million, property and equipment increased $0.252 million, and
inventory levels increased by $0.157 million compared to June 30, 2000.
The Company's principal sources of liquidity at September 30, 2000,
consisted of cash, accounts receivable, a revolving line of credit with Coast
Business Credit, and vendor trade credit. The revolving line of credit with
Coast Business Credit is based on available eligible account receivables and
inventory. The line of credit decreased $.654 million, from $1.316 million to
$0.662 million compared to June 30, 2000.
On August 26, 1999, the Company entered into a financing transaction
with Fernwood Partners II, LLC ("Fernwood") and certain officers, directors and
employees of the Company, through which the Company obtained a total amount of
$4,313,484 (the "Fernwood Financing"). In the Fernwood Financing, Fernwood
provided $3,699,484 and certain other directors, executive officers and
employees of the Company provided $614,000. All of the financing consisted of
promissory notes convertible into the Company's Common Stock at $1 per share and
warrants to purchase an equivalent number of shares of the Company's Common
Stock at $2.00 per share. The Fernwood Financing bears interest at a rate of
11.5% per annum and is secured by a lien on all of the Company's assets.
Interest is payable quarterly, except that interest accruing from the date of
issuance through July 1, 2000, which was added to the principal amount of the
note. Part of the proceeds from this financing was used to repay a $1,125,000
loan and accrued interest to Fernwood Partners, LLC, a limited liability company
that provided financing to the Company in December 1998.
The Company uses the U.S. Dollar as its reporting currency for
financial statement purposes. The Company conducts business in numerous
countries around the world through its international subsidiary that uses the
local currency to denominate its transactions. Therefore, the Company is subject
to certain risks associated with fluctuating foreign currencies. The resulting
changes in the financial statements do not indicate any underlying changes in
the financial position of the international subsidiary, but merely reflect the
adjustment in the carrying value of the net assets of this subsidiary at the
current U.S. dollar exchange rate.
Due to the long-term nature of the Company's investment in this
subsidiary, the translation adjustments resulting from these exchange rate
fluctuations are excluded from the results of operations and recorded in a
separate component of consolidated stockholders' equity. The Company monitors
its
9
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CYBERGUARD CORPORATION
SEPTEMBER 30, 2000
(DOLLARS IN MILLIONS, EXCEPT SHARE AND PER SHARE DATA)
currency exposure but does not hedge its translation exposure due to the
high economic costs of such a program and the long-term nature of its investment
in its European subsidiary.
Based upon information currently available to the Company, including
the Company's current level of sales, its margins on sales, its expected levels
of expense, opportunities for selling additional network security products and
the availability of additional equity and debt financing, the Company believes
that it has an opportunity to execute on its business plans and achieve
profitability in the long term. There can be no assurance, however, that the
Company will be able to execute on its business plans, or that it will not be
required to obtain additional financing or capital infusions. There can be no
assurance that the Company will be able to secure additional financing or that
such additional financing will be on terms and conditions acceptable to the
Company. Any additional financing may involve dilution of the interests of the
Company's then existing shareholders. The future liquidity of the Company will
be affected by numerous factors, including sales volumes, gross margins, the
levels of selling, general and administrative expenses, levels of required
capital expenditures and access to external sources of financing. Other recent
and possible future events that could also materially impact the Company's
ability to successfully execute on its business plans are described in
Information Relating to Forward Looking Statements of this Report on Form 10-Q.
RISK RELATED TO YEAR 2000 PROBLEM
The Year 2000 problem stems from the use of a two-digit date to
represent the year (e.g., 85 = 1985) in computer software and firmware. It was
thought that many currently installed computer systems were not capable of
distinguishing dates beginning with the year 2000 from dates prior to the year
2000. Computer systems or applications used by many companies in a wide variety
of industries could experience operating difficulties unless the systems or
applications were modified to adequately process information related to the date
change. A degree of uncertainty still exists in the software and other
industries concerning the scope and magnitude of problems associated with the
century change. Many industry experts believe that the extent of Year 2000
issues may not be realized until after March 31, 2001.
While the Company believes its Year 2000 risk management initiative's
scope covered both the Company's information technology (IT) systems and non-IT
systems and addressed all areas of the Year 2000 issues as defined by the
Information Technology Association of America (ITAA), and to date there have
been no Year 2000 issues detected, there can be no assurance that the Company
has identified and remedied all Year 2000 problems, and that such problems will
not have a material adverse affect on the Company's business.
INFORMATION RELATING TO FORWARD LOOKING STATEMENTS
Statements regarding future products, future prospects, future
profitability, business plans and strategies, future revenues and revenue
sources, future liquidity and capital resources, computer network security
market directions, future acceptance of the Company's products, possible growth
in markets, as well as all other statements contained in this Report on Form
10-Q that are not purely historical are forward-looking statements.
These statements are based upon assumptions and analyses made by the
Company in light of current conditions, future developments and other factors
the Company believes are appropriate in the circumstances, or information
obtained from third parties and are subject to a number of assumptions, risks
and uncertainties. Readers are cautioned that forward-looking statements are not
guarantees of
10
<PAGE> 12
CYBERGUARD CORPORATION
SEPTEMBER 30, 2000
(DOLLARS IN MILLIONS, EXCEPT SHARE AND PER SHARE DATA)
future performance and that the actual results might differ materially from
those suggested or projected in the forward-looking statements. Accordingly,
there can be no assurance that the forward-looking statements will occur, or
that results will not vary significantly from those described in the
forward-looking statements. Some of the factors that might cause future actual
events to differ from those predicted or assumed include: future advances in
technologies and computer security; the Company's history of annual net
operating losses and the financing of these losses through the sale of assets
and newly issued Company securities; risks related to the early stage of the
Company's existence and its products' development; the Company's ability to
execute on its business plans; the Company's dependence on outside parties such
as its key customers and alliance partners; competition from major computer
hardware, software, and networking companies; risk and expense of government
regulation and effects on changes in regulation; the limited experience of the
Company in marketing its products; uncertainties associated with product
performance liability; risks associated with growth and expansion; risks
associated with obtaining patent and intellectual property right protection;
uncertainties in availability of expansion capital in the future and other risks
associated with capital markets. In addition, certain events that have occurred
also are factors that might cause future actual events to differ from those
predicted or assumed, including: the impact of the restatement of financial
results for the Company's fiscal year ended June 30, 1997 and quarters ended
September 30, 1997, December 31, 1997 and March 31, 1998; the completion of the
numerous organizational changes and the assembly of a new management team for
CyberGuard; the outcome of a purported class action lawsuit against the Company
and former CEO, Mr. Robert L. Carberry, relating to the restatement of financial
results for the fiscal periods noted above and an SEC investigation regarding
these matters; and the de-listing of the Company from the NASDAQ National
Market. In addition, the forward-looking statements herein involve assumptions,
risks and uncertainties, including, but not limited to economic, competitive,
operational, management, governmental, regulatory, litigation and technological
factors affecting the Company's operations, liquidity, capital resources,
markets, strategies, products, prices and other factors discussed elsewhere
herein and in the other documents filed by the Company with the Securities and
Exchange Commission. Many of the foregoing factors are beyond the Company's
control.
The Company's future success is based largely on its ability to develop
and sell increasingly technologically advanced network security solutions in
sufficient volume and at sufficient prices to become profitable on a consistent
basis. In addition, the network security market is characterized by extremely
rapid technological change, requiring rapid product development. The velocity of
technological change has accelerated and the Company believes that it is
important to its future that it keeps pace with these changes. The Company
believes that competition will continue to intensify in the rapidly evolving
markets in which the Company is involved, and that the continued development of
technologically advanced products will be necessary to keep its products
current. In addition, the competition for and retention of key management and
technology employees is a critical challenge. The Company believes that its
ability to generate adequate cash flow from operations will also be critical to
its future.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES CONCERNING MARKET RISK
We have limited exposure to financial market risks, including changes
in interest rates. The fair value of our investment portfolio or related income
would not be significantly impacted by a 100 basis point increase or decrease in
interest rates due mainly to the short-term nature of the major portion of our
investment portfolio. A fluctuation in interest rates would not significantly
affect interest expense on debt obligations since a significant portion of the
debt obligation is at a fixed rate of interest.
11
<PAGE> 13
CYBERGUARD CORPORATION
SEPTEMBER 30, 2000
(DOLLARS IN MILLIONS, EXCEPT SHARE AND PER SHARE DATA)
PART II: OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
On August 24, 1998, the Company announced, among other things, that due
to a review of its revenue recognition practices relating to distributors and
resellers, it would restate prior financial results. After the August 24, 1998
announcement, twenty-five purported class action lawsuits were filed by alleged
shareholders against the Company and certain former officers and directors.
Pursuant to an order issued by the Court, these actions have been consolidated
into one action, styled STEPHEN CHENEY, ET AL. V. CYBERGUARD CORPORATION, ET
AL., Case No. 98-6879-CIV-Gold, in the United States District Court, Southern
District of Florida. On August 23, 1999, the plaintiffs filed a Consolidated and
Amended Class Action Complaint. This action seeks damages purportedly on behalf
of all persons who purchased or otherwise acquired the Company's common stock
during various periods from November 7, 1996 through August 24, 1998. The
complaint alleges, among other things, that as a result of accounting
irregularities relating to the Company's revenue recognition policies, the
Company's previously issued financial statements were materially false and
misleading and that the defendants knowingly or recklessly published these
financial statements which caused the Company's common stock prices to rise
artificially. The action alleges violations of Section 10(b) of the Securities
Exchange Act of 1934 ("Exchange Act") and SEC Rule 10b-5 promulgated thereunder
and Section 20(a) of the Exchange Act. Subsequently, the defendants, including
the Company, filed their respective motions to dismiss the amended complaint. On
July 31, 2000, the Court issued a ruling denying the Company's and Robert L.
Carberry's (the Company's CEO from June 1996 through August 1998) motions to
dismiss. The court granted the motions to dismiss with prejudice for defendants
William D. Murray (the Company's CFO from November 1997 through August 1998),
Patrick O. Wheeler (the Company's CFO from April 1996 through October 1997), C.
Shelton James (former Audit Committee Chairman), and KPMG Peat Marwick LLP
("KPMG"). On August 14, 2000, the plaintiffs filed a motion for reconsideration
of that order. The Company filed an answer to the plaintiffs' complaint on
August 24, 2000.
On September 16, 1999, the Company filed a lawsuit against KPMG and
August A. Smith, the KPMG engagement partner. The lawsuit is pending in the
Circuit Court of the 17th Judicial Circuit in and for Broward County, Case No.
00-004102-CACE-14. On May 1, 2000, the Company filed the First Amended
Complaint, alleging that KPMG failed to properly audit the Company's financial
statements and provided inaccurate advice on accounting matters for fiscal years
1996, 1997 and 1998. The action alleges professional malpractice, breach of
fiduciary duty, breach of contract and breach of implied duty of good faith, and
seeks damages in excess of $10 million. KPMG and Mr. Smith filed motions to
dismiss, which were denied. In August 2000, KPMG and Mr. Smith filed their
answers and KPMG filed counterclaims against the Company, alleging the Company's
breach of contract, negligent misrepresentation and abuse of process, and seeks
an unspecified amount of damages consisting of unpaid service fees and legal
fees and costs.
In August 1998, the Securities and Exchange Commission ("SEC")
commenced an informal inquiry into certain accounting and financial reporting
practices of the Company and its officers, directors and employees. On March 25,
1999, the SEC issued a formal order of investigation (which the Company learned
of on September 27, 1999) into certain accounting and financial reporting
practices of the Company and its officers, directors and employees. The SEC's
investigation is ongoing.
The Company is unable to predict the ultimate outcome of the litigation
and investigation described above in this Part II, Item 1. The resolution of
such matters could have a material adverse affect on the Company's results of
operations and financial position. The Company's financial statements do not
include any adjustments related to these matters.
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<PAGE> 14
CYBERGUARD CORPORATION
SEPTEMBER 30, 2000
(DOLLARS IN MILLIONS, EXCEPT SHARE AND PER SHARE DATA)
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 5. OTHER INFORMATION
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
Exhibit Nr. Exhibit Description
----------- -------------------
27.1 -- Financial Data Schedule
(b) Reports filed on Form 8-K during the quarter ended September 30, 2000:
During the quarter ended September 30, 2000, the Company filed two reports on
Form 8-K, one on July 30, 2000 and one on September 29, 2000. Both reports
furnished information relating to the denials of the Company's application and
appeal to list the Company's securities on the NASDAQ Small-Cap Market.
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<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: November 14, 2000 CYBERGUARD CORPORATION
By: /s/ David R. Proctor
--------------------------------------
Chairman and Chief Executive Officer
By: /s/ Terrence A. Zielinski
--------------------------------------
Vice President of Finance and Chief
Financial Officer
(Principal Financial and Accounting
Officer)
14
