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Exhibit 4.05
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT, dated as of ___________, 1997 ("Agreement"), between
CyberGuard Corporation, a Florida corporation (the "Company"), and __________
(the "Employee").
WITNESSETH:
WHEREAS, the Company has granted to the Employee pursuant to the
CyberGuard Corporation Stock Incentive Plan, as amended (the "Plan"), shares of
the common stock (par value $.01) of the Company ("Common Stock"), subject to
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and intending to be legally bound, the parties hereto agree as follows:
1. RESTRICTED SHARES
1.1 GRANT OF RESTRICTED SHARES AND CASH BONUS.
(a) The Company hereby grants to the Employee ______shares of
Common Stock (the "Restricted Shares"), subject to the restrictions set forth in
Paragraph 1.2 of this Agreement. As the restrictions set forth in Paragraph 1.2
hereof lapse in accordance with the terms of this Agreement as to all or a
portion of the Restricted Shares, such shares shall no longer be considered
Restricted Shares for purposes of this Agreement.
(b) The Company hereby directs that a stock certificate or
certificates representing the Restricted Shares shall be registered in the name
of and issued to the Employee. Such stock certificate or certificates shall be
subject to such stop-transfer orders and other restrictions as the
Compensation/Stock Option Committee of the Board of Directors of the Company
(the "Committee") may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission and any applicable
federal or state securities law, and the Committee may cause a legend or
legends to be placed on such certificate or certificates to make appropriate
reference to such restrictions. In addition, each such certificate shall bear
the following legend:
The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) of the CyberGuard
Corporation Stock Incentive Plan and an Agreement entered
into between the registered owner and CyberGuard Corporation.
Copies of such Plan and Agreement are on file in the offices
of CyberGuard Corporation, 0000 Xxxx Xxxxxxx Xxxxx Xxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000.
Upon expiration of the applicable Restricted Period (as hereinafter
defined), the Company shall deliver or cause to be delivered to the Employee a
certificate or certificates for the Restricted Shares which shall not bear the
foregoing legend.
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1.2 RESTRICTIONS.
(a) The Employee shall have all rights and privileges of a
stockholder as to the Restricted Shares, including the right to vote and
receive dividends or other distributions with respect to the Restricted Shares,
except that, subject to the provisions of Paragraph 1.3(b) hereof, the
following restrictions shall apply:
(i) none of the Restricted Shares may be sold, transferred,
assigned, pledged or otherwise encumbered or disposed of during the
Restricted Period (as hereinafter defined), except as otherwise
provided in Paragraph 1.3(c) hereof or pursuant to rules adopted by
the Committee in accordance with the Plan; and
(ii) all of the Restricted Shares may be forfeited in
accordance with Paragraph 1.4.
(b) Any attempt to dispose of Restricted Shares in a manner
contrary to the restrictions set forth in this Agreement shall be ineffective.
1.3 RESTRICTED PERIOD.
(a) The restrictions set forth in Paragraph 1.2 shall apply with
respect to one-third (1/3) of the Restricted Shares, until the _____ day after
the date of this Agreement, (B) with respect to an additional one-third (1/3)
of the Restricted Shares, for a cumulative total of two-thirds (2/3) of the
Restricted Shares, until the _______ day after the date of this Agreement, (C)
with respect to the balance of the Restricted Shares, until the ______ day
after the date of this Agreement.
(b) Notwithstanding Paragraph 1.2, in the event of the Employee's
retirement, permanent total disability or death, or in cases of special
circumstances, the Committee may, in its sole discretion, when it finds that a
waiver would be in the best interests of the Company, waive in whole or in part
any or all remaining restrictions with respect to the Restricted Shares.
(c) Nothing in this Agreement shall preclude the Employee from
exchanging any Restricted Shares for any other shares of Common Stock that are
similarly restricted.
1.4 FORFEITURE. If the Employee's employment with the Company
shall terminate for any reason during the Restricted Period, all rights of the
Employee to the then remaining Restricted Shares shall terminate and be
forfeited (except as otherwise determined by the Committee pursuant to
Paragraph 1.3(b)).
1.5 WITHHOLDING. The Company may withhold from any cash payments
due from the Company to the Employee all taxes, including social security
taxes, which the Company is required or otherwise authorized to withhold with
respect to the Restricted Shares granted hereunder.
1.6 INVESTMENT REPRESENTATION. The Employee hereby represents,
warrants and covenants that (i) the Employee is acquiring the Restricted Shares
for his own account and not with a view to the distribution thereof, and (ii)
the Restricted Shares acquired by the Employee under this
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Agreement will not be sold except pursuant to an effective registration
statement under the Securities Act of 1933, as amended, or pursuant to an
exemption from registration under said Act.
2. ADJUSTMENTS TO NUMBER OF SHARES
In the event there is any change in the Common Stock through the
declaration of stock dividends or rights dividends, or through recapitalization
resulting in stock split-ups, or combinations or exchanges of shares, or
otherwise (including any change which would result n a substantial dilution or
enlargement of the rights or economic benefit inuring to the Employee from the
Restricted Shares), the Restricted Shares then subject to the restrictions
imposed hereunder shall be appropriately adjusted as determined by the
Committee, in its sole discretion.
3. NOTICES
All notices or communications hereunder shall be in writing, addressed
as follows:
To the Company:
CyberGuard Corporation
0000 Xxxx Xxxxxxx Xxxxx Xxxx,
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Secretary
To the Employee:
to the last known address of the Employee as appearing in the
Employee's personnel records as maintained by the Company.
Any such notice or communication shall be sent certified or registered
mail, return receipt requested, postage prepaid, addressed as above (or to such
other address as such party may designate in writing from time to time), and
the actual date of receipt, as shown by the receipt therefor, shall determine
the time at which notice was given.
4. ASSIGNMENT; AGREEMENT
This Agreement shall be binding upon and inure to the benefit of the
heirs and representatives of the Employee and the assigns and successors of the
Company, but neither this Agreement nor any rights hereunder shall be
assignable or otherwise subject to hypothecation by the Employee.
5. ENTIRE AGREEMENT; AMENDMENT; TERMINATION
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This Agreement represents the entire agreement of the parties with
respect to the subject matter hereof. The Agreement may be amended at any time
by written agreement of the parties hereto. This Agreement may also be amended,
or may be terminated in its entirety, under the circumstances described in the
Plan.
6. GOVERNING LAW
This Agreement and its validity, interpretation, performance and
enforcement shall be governed by the laws of the State of Florida.
7. SEVERABILITY
If, for any reason, any provision of this Agreement is held invalid,
such invalidity shall not affect any other provision of this Agreement not held
so invalid, and each such other provision shall to the full extent consistent
with law continue in full force and effect. If any provision of this Agreement
shall be held invalid in part, such invalidity shall in no way affect the rest
of such provision not held so invalid, and the rest of such provision, together
with all other provisions of this Agreement, shall to the full extent
consistent with law continue in full force and effect.
8. NO RIGHT TO CONTINUED EMPLOYMENT; EFFECT ON OTHER PLANS
This Agreement shall not, of itself, confer upon the Employee any
right with respect to continuance of employment by the Company, nor shall it
interfere in any way with the right of the Company to terminate Employee's
employment at any time. Income realized by the Employee pursuant to this
Agreement shall not be included in the Employee's earnings for the purpose of
any benefit plan of the Company in which the Employee may be enrolled or for
which the Employee may become eligible unless otherwise specifically provided
for in such plan.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Employee has hereunto set his hand, as of the day and year
first above written.
CYBERGUARD CORPORATION
By:
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EMPLOYEE
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