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EXHIBIT 4.12
NON-STATUTORY STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is entered into as of the ___
day of _______, 1997, between CyberGuard Corporation (the "Corporation"), a
Florida corporation having its principal office in Ft. Lauderdale, Florida, and
________________ (the "Employee") of the Corporation or one of its subsidiaries.
I. THE OPTION. The Corporation hereby grants to Employee a
non-statutory option to purchase an aggregate of ____________ shares of Common
Stock of the Corporation at the price of _____________________ per share (the
"Option"), subject to the following conditions:
A. The Option shall not be exercisable to any extent
until and unless the Employee shall have remained continuously in the
employ of the Corporation for one year from the date of hire. Nothing
herein shall limit or restrict the Corporation's rights to terminate
the Employee's employment.
B. During the lifetime of the Employee, the Option
shall be exercisable only by the Employee, and (except when Section 2
is applicable) only while the Employee continues as an employee of the
Corporation.
C. Notwithstanding any other provision of this
Agreement, the Option shall expire no later than five years from the
Employee's date of hire, and shall not be exercisable thereafter.
D. The number of shares of Common Stock with respect
to which the Option may be exercised from time to time is limited to
the following percentages of the aggregate number of shares optioned
hereby:
1. After the end of one year and prior to
the end of two years from the date of hire, not more than
thirty-three percent (33.333%);
2. After the end of two years and prior to
the end of three years from the date of hire, not more than
sixty-six percent (66.666%);
3. After the end of three years from the
date of hire, one-hundred percent (100%).
II. TERMINATION OF EMPLOYMENT
A. Death. In the event of the death of the Employee,
the Option shall be exercisable only within the twelve (12) months next
succeeding the date of death, and then only (i) by the executor or
administrator of the Employee's estate or by the person or persons to
whom the Employee's rights under the Option shall pass by the
Employee's will or the laws of descent and distribution, and (ii) if
and to the extent that the Option was exercisable at the date of the
Employee's death
B. Disability. In the event of termination of
Employee's employment due to disability of the Employee, the Option
shall be exercisable by the Employee only within the twelve (12) months
following such cessation of employment but no later than the expiration
date described in Section 1(c) and to the extent that the Option was
exercisable at the date of such cessation of employment, and no more.
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C. Retirement. In the event of retirement of the
Employee, the Option shall be exercisable by the Employee only within
twelve (12) months following such cessation of employment, but no later
than the expiration date described in Section 1(c) and to the extent
that the Option was exercisable at the date of such cessation of
employment, and no more.
D. Termination of Employment. In the event of
termination of employment for reasons other than death, disability or
retirement, the Option shall be exercisable only by the Employee within
three (3) months following such cessation of employment but no later
than the expiration date described in Section 1(c) and to the extent
that it was exercisable at the date of such cessation of employment,
and no more.
III. EXERCISE OF OPTION. The Option may be exercised by delivering
to the Corporation at the office of the Corporate Secretary (i) a written
notice, signed by the person entitled to exercise the Option, stating the number
of shares such person then elects to purchase hereunder, (ii) payment in an
amount equal to the full purchase price of the shares then to be purchased, and
(iii) in the event the Option is exercised by any person other than the
Employee, evidence satisfactory to the Corporation that such person has the
right to exercise the Option. If it is required (in the estimation of the
Corporation), the Corporation also may require the payment of any withholding or
other applicable taxes at the time of exercise of the Option. Payment shall be
made (a) in cash, (b) in previously acquired shares of Common Stock of the
Corporation, valued at their Fair Market Value on the day preceding the exercise
date of the Option, or (c) in any combination of cash and such shares. Shares
tendered in payment of the purchase price which have been acquired through an
exercise of a stock option shall have been held at least six (6) months prior to
exercise of the Option. Upon the due exercise of the Option, the Corporation
shall issue in the name of the person exercising the Option, and deliver to the
Employee, one or more certificates for the shares in respect of which the Option
shall have been so exercised. The Employee acknowledges that the Employee does
not have any rights as a shareholder in respect of any shares as to which the
Option shall not have been duly exercised and that no rights as a shareholder
shall arise in respect of any such shares until and except to the extent that a
certificate or certificates for such shares shall have been issued.
IV. PROHIBITION AGAINST TRANSFER. The Option and rights granted
by the Corporation under this Agreement are not transferable except by will or
the laws of descent and distribution. Without limiting the generality of the
foregoing, the Option may not be assigned, transferred except as aforesaid,
pledged or hypothecated, shall not be assignable by operation of law, and shall
not be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof, or the levy of any execution, attachment or
similar process upon the Option, shall be null and void and without effect
V. ADJUSTMENTS. In case there shall be a merger, reorganization,
consolidation, recapitalization, stock dividend or other change in corporate
structure such that shares of Common Stock are changed into or become
exchangeable for a larger or smaller number of shares, the number of shares
subject to outstanding Options shall be increased or decreased in direct
proportion to the increase or decrease in the number of shares of Common Stock
by reason of such change in corporate structure. The number of shares shall
always be a whole number, and the purchase price per share of any outstanding
Options shall, in the case of an increase in the number of shares, be
proportionately reduced, and in the case of a decrease in the number of shares,
shall be proportionately increased.
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VI. EMPLOYMENT BY PARENT, SUBSIDIARY OR SUCCESSOR. For the
purpose of this Agreement, employment by a parent or subsidiary of or a
successor to the Corporation shall be considered employment by the Corporation.
"Parent" and "subsidiary" as used herein shall have the meaning of "parent" and
"subsidiary corporation," respectively, as defined in Section 424 of the
Internal Revenue Code of 1986, as amended, or subsequent comparable statute.
VII. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding of the parties with respect to the Option. Without
limiting the generality of the foregoing, this Option is not issued pursuant to
any stock option plan or other plan of the Corporation.
VIII. MISCELLANEOUS. Words such as "herein", "hereof" and
"hereunder" when used in this Agreement shall refer to this Agreement as a whole
unless the context otherwise requires. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties hereto with respect to the subject matter hereof,
and, except as expressly provided herein, is not intended to confer upon any
person other than the parties hereto any rights or remedies. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Florida. This Agreement may be amended or modified only in a written document
executed by both of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Stock Option
Agreement in duplicate as of the day and year first above written.
CYBERGUARD CORPORATION EMPLOYEE
By:
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