Exhibit 1.3
CYBERGUARD CORPORATION
NON-STATUTORY STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is entered into as of the
22nd day of December, 2000, between CyberGuard Corporation ("Corporation"), a
Florida corporation having its principal office in Ft. Lauderdale, Florida, and
Xxxxx X. Xxxxxxx, ("Employee") of the Corporation or one of its subsidiaries.
1. THE OPTION. Under and subject to the provisions of the Corporation's
Stock Incentive Plan as in effect from time to time ("Plan"), the Corporation
hereby grants to Employee a non-statutory option to purchase an aggregate of
five hundred thousand (500,000) shares of Common Stock of the Corporation at the
price of U.S. $1.51 per share ("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 hereof, except as
specifically provided herein otherwise. 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 date hereof and
shall not be exercisable thereafter.
(d) The number of shares of Common Stock of the Corporation
with respect to which the Option may be exercised from time to time is
limited to the following number of the aggregate number of shares
optioned hereby:
(i) One hundred thousand (100,000) shares of the
Option shall become immediately exercisable on the date that
the Employee establishes his principal residence in the State
of Florida by purchasing a real property in the State of
Florida;
(ii) Four hundred thousand (400,000) shares of the
Option shall become exercisable as follows:
(1) After the end of one year and prior to
the end of two years from the date hereof, not more
than one-hundred thirty-three thousand three hundred
and thirty-three shares (133,333);
(2) After the end of two years and prior to
the end of three years from the date hereof, not more
than two hundred sixty-six thousand six hundred and
sixty-six shares (266,666);
(3) After the end of three years from the
date hereof, not more than four hundred thousand
shares (400,000);
(e) Upon a "Change of Control" (as the term is defined in the
Plan), the Option shall become 100% immediately exercisable in full (to
the extent that the Option otherwise has not expired).
2. TERMINATION OF EMPLOYMENT
(a) Death. In the event of the death of the Employee, the
Option shall be (i) exercisable only 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, (ii) exercisable if and to the
extent that the Option was exercisable at the date of the Employee's
death and (iii) shall remain exercisable for the shorter of (a) one
year following Employee's death or (b) the remainder of the period of
exercisability as stated in Section 1(c).
(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 to the extent that the Option was
exercisable at the date of such cessation of employment, and no more,
and shall remain exercisable for the shorter of (i) one year following
Employee's termination of employment or (ii) the remainder of the
period of exercisability as stated in Section 1(c).
(c) Retirement. In the event of Retirement of the Employee,
the Option shall be exercisable by the Employee only to the extent that
the Option was exercisable at the date of such cessation of employment,
and no more, and shall remain exercisable for the shorter of (i) one
year following Employee's termination of employment or (ii) the
remainder of the period of exercisability as stated in Section 1(c).
The term "Retirement" is specially defined in the Plan; generally, a
termination in service from the Company will be covered by provisions
regarding terminations for reasons other than death, disability, or
Retirement, and not this paragraph.
(d) Termination of Employment. In the event of termination of
Employee's employment for reasons other than death, disability or
Retirement, the Option shall be exercisable by the Employee only to the
extent that it was exercisable at the date of such cessation of
employment, and no more, and shall remain exercisable for the shorter
of (i) three (3) months following Employee's termination of employment
or (ii) the remainder of the period of exercisability as stated in
Section 1(c).
Notwithstanding the foregoing provisions of this section 2, in the event that:
(x) the Employee has entered into an Employment Agreement with the Corporation
("Employment Agreement"); and (y) if Employee's Employment Agreement is
terminated under circumstances that give Employee a longer period of exercise or
greater rights than those set forth in this Agreement, then the terms and
conditions governing exercisability and continuation of the Option after
termination of Employment contained in the Employment Agreement shall supersede
those set forth in this Agreement.
3. EXERCISE OF OPTION. The Option may be exercised by delivering to the
Corporation at the office of the Corporate Secretary (a) a written notice,
signed by the person entitled to exercise the Option, stating the number of
shares such person then elects to purchase hereunder, (b) payment in an amount
equal to the full purchase price of the shares then to be purchased, and (c) 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
(i) in cash, (ii) 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 (iii) 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.
4. 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.
5. ADJUSTMENTS. In case there shall be a merger, reorganization,
consolidation, recapitalization, stock dividend, a change in corporate structure
such that shares of Common Stock are changed into or become exchangeable for a
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larger or smaller number of shares, or an issuance of Common Stock by the
Corporation in exchange for which the Corporation (or its then current
shareholders, on a pro-rata basis) does not receive cash or other property, 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.
6. 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.
7. COMMITTEE. The Corporation's Board of Directors and the Committee
administering the Plan shall have authority, subject to the express provisions
of the Plan as in effect from time to time, to construe this Agreement and the
Plan, to establish, amend and rescind rules and regulations relating to the
Plan, and to make all other determinations in the judgment of the Committee
necessary or desirable for the administration of the Plan. The Committee may
correct any defect or supply any omission or reconcile any inconsistency in this
Agreement in the manner and to the extent it shall deem expedient to carry the
Plan into effect, and it shall be the sole and final judge of such expediency.
8. INCORPORATION OF PLAN PROVISIONS. This Agreement is made pursuant to
the Plan, the terms and conditions of which are hereby incorporated by
reference. Capitalized terms not otherwise defined herein have the meanings set
forth in the Plan. In the event of a conflict between the terms of this
Agreement and the Plan, the terms of the Plan shall govern.
9. MISCELLANEOUS.
(i) Words such as "herein", "hereof" and "hereunder" when used in this
Agreement shall refer to this Agreement as a whole unless the context requires
otherwise.
(ii) This Agreement embodies the entire agreement between the parties
hereto with respect to the Option.
(iii) This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
(iv) This Agreement may be amended or modified only in a written
document executed by both of the parties hereto.
(v) No waiver of any provision of this Agreement shall in any event be
effective unless the same shall be in writing and signed by the party granting
such waiver and then such waiver shall be effective only in the specific
instance and for the specific purpose for which given.
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:_________________________ _______________________________
Xxxxx X. Xxxxxxx
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