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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
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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 INCORPORATION (I.R.S. EMPLOYER
OR ORGANIZATION) IDENTIFICATION NO.)
2000 WEST COMMERCIAL BOULEVARD
SUITE 200
FORT LAUDERDALE, FLORIDA 33309
(954) 958-3900
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(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CYBERGUARD CORPORATION
2000 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
(FULL TITLES OF THE PLANS)
Terrence A. Zielinski
Chief Financial Officer and
Vice President of Finance
CyberGuard Corporation
2000 West Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33309
(954) 958-3900
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(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================= ==================== =================== =================== ===================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO OFFERING PRICE PER AGGREGATE AMOUNT OF
REGISTERED BE REGISTERED(1) SHARE(2) OFFERING PRICE REGISTRATION FEE
----------------------------- -------------------- ------------------- ------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 2,500,000 $1.99 $4,975,000 $1,313.40
============================= ==================== =================== =================== ===================
</TABLE>
(1) The Common Stock being registered relates to stock being issued pursuant
to the terms of the Cyberguard Corporation 2000 Employee Stock Purchase
Plan with purchase 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.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
price of the Common Stock of CyberGuard Corporation on November 14,
2000, as quoted on 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, 2000, filed with the SEC on September 28, 2000.
(2) The Registrant's Current Report on Form 8-K, dated September 27,
2000, filed with the SEC on September 29, 2000.
(3) The Registrant's Current Report on Form 8-K, dated October 13,
2000, filed with the SEC on November 2, 2000.
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2000, filed with the SEC on November 14, 2000.
(5) 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 Twelve") provides that directors of the
Company shall not be personally liable 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 director and the director's 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
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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 Twelve provides that any future repeal or amendment of its
terms (including any amendment or repeal of this Article Twelve 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.
Certain former 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 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
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derived an improper personal benefit, (iii) the Indemnitee engaged in willful
misconduct, (iv) it is determined that the Indemnitee violated 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
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 Articles of Amendment to the Articles of Incorporation
(incorporated by reference to the Registrant's Annual Report
on Form 10-K for the fiscal year ended June 30, 2000, filed on
September 28, 2000).
4.3 Restated By-laws of the Registrant (incorporated by reference
to the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 1999, filed on November 12,
1999).
4.4 Form of Common Stock Certificate (incorporated by reference to
the Company's Registration Statement on Form S-3 dated May 23,
1996 (File No. 333-04407).
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 Share Holding Agreement between Concurrent Computer
Corporation and the Registrant (incorporated by reference to
the Registrant's Registration Statement on Form S-3 dated May
23, 1996 (File No. 333-04407).
5 Opinion of Holland & Knight LLP.
23.1 Consent of Holland & Knight LLP (included as part of Exhibit 5
above).
23.2 Consent of Grant Thornton LLP
23.3 Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney (included as part of the Signature Page of
this Registration Statement).
99 Cyberguard Corporation 2000 Employee Stock Purchase Plan
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 of 1933;
(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
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low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(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;
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 with or furnished to
the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, of 1933 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 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 Securities and
Exchange Commission 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 of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Lauderdale, State of Florida, on the 16th day of
November, 2000.
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 of 1933, this
Registration Statement has been signed on November 16, 2000 by the following
persons in the capacities indicated below.
<TABLE>
<CAPTION>
SIGNATURE TITLE
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<S> <C>
/s/ DAVID R. PROCTOR Chief Executive Officer, President and Chairman of the
------------------------------------------------------- Board of Directors
David R. Proctor (Principal Executive Officer)
/s/ TERRENCE A. ZIELINSKI Chief Financial Officer and Vice President
------------------------------------------------------- of Finance
Terrence A. Zielinski (Principal Financial Officer and Chief Accounting
Officer)
/s/ JOHN V. TIBERI, JR.
------------------------------------------------------- Director
John V. Tiberi, Jr.
/s/ DAVID T. VANDEWATER
------------------------------------------------------- Director
David T. Vandewater
/s/ DAVID L. MANNING
------------------------------------------------------- Director
David L. Manning
/s/ WILLIAM G. SCOTT
------------------------------------------------------- Director
William G. Scott
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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5 Opinion of Holland & Knight LLP.
23.1 Consent of Holland & Knight LLP (included as part of Exhibit 5
above).
23.2 Consent of Grant Thornton LLP
23.3 Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney (included as part of the Signature Page of
this Registration Statement).
99 Cyberguard Corporation 2000 Employee Stock Purchase Plan
