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EXHIBIT 4.06
AMENDED AND RESTATED NON-STATUTORY STOCK OPTION AGREEMENT
CYBERGUARD CORPORATION
This Stock Option Agreement ("Agreement") is entered into as of the 4th day of
February, 1996, between CyberGuard Corporation (the "Corporation"), a Florida
corporation having its principal office in Ft. Lauderdale, Florida, and Xxxxx
Xxxxxxx (the "Employee"), of the Corporation or one of its subsidiaries.
1. THE OPTION. On February 4, 1996 the Corporation granted to the
Employee a Non-Statutory Stock Option (the "Option"). On March 18, 1996, the
Corporation's three-for-one stock split became effective and this Amended and
Restated Non-Statutory Stock Option Agreement is being entered into to reflect
that the number of shares subject to the Option has, as a result of the stock
split, been multiplied by three and the per-share exercise price of the Option
has been divided by three. As a result of the stock split, the Option granted
February 4, 1996 is now an option to purchase an aggregate of 17,460 shares of
Common Stock of the Corporation at the price of $5.50 per share, subject to the
following terms and conditions:
(a) 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.
(b) Notwithstanding any other provision of this Agreement, the
Option shall expire no later than five years from the date of this
Agreement, and shall not be exercisable thereafter.
(c) 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:
(i) From the date hereof and prior to the end of
one year from the date hereof, not more than
thirty-three percent (33.333%);
(ii) After the end of one year and prior to the
end of two years from the date hereof, not more
than sixty-six percent (66.666%);
(iii) After the end of two years from the date
hereof, one-hundred percent (100%).
(e) Upon a Change in Control, any outstanding Option
shall immediately become exercisable. Notwithstanding the foregoing,
the sale of the Corporation's real-time division to Concurrent Computer
Corporation shall not constitute a Change of Control.
(f) In the event of a conflict between the provisions
of this Agreement and any provisions of the written Employment
Agreement between Employee and Corporation ("Employment Agreement"),
the rights and duties as set forth in the Employment Agreement shall
control.
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2. TERMINATION OF EMPLOYMENT
(a) Death, Disability and Termination of Employment. The
rights of Employee upon Termination of employment for disability, for
cause and without cause, and the rights of Employee's estate upon his
death with respect to the Option are set forth in the Employment
Agreement.
(b) Retirement. In the event of retirement of the Employee,
the Option shall be exercisable by the Employee only within thirty-six
(36) 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.
3. 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. 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.
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 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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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 Committee administering the Corporation's Stock
Incentive Plan shall have authority, subject to the express provisions of this
Option Agreement, to construe this Agreement and to correct any defect or supply
any omission or reconcile any inconsistency between this Agreement and the
Employment Agreement.
8. 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, together with any written Employment
Agreement between Employee and Corporation, constitute the entire agreement and
supersede 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 and therein, are 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
By:
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Xxxxxx X. Xxxxxxxx
President
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FOREMNY
