<PAGE>
As filed with the Securities and Exchange Commission on June 9, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYMANTEC CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 77-0181864
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
10201 TORRE AVENUE
CUPERTINO, CALIFORNIA 95014
(Address of principal executive offices)
1994 PATENT INCENTIVE PLAN
(Full title of the plan)
DEREK WITTE, ESQ.
SYMANTEC CORPORATION
10201 TORRE AVENUE
CUPERTINO, CALIFORNIA 95014
(408) 253-9600
(Name, address and telephone number of agent for service)
COPIES TO:
Cheryl D. Davey, Esq.
Fenwick & West
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Securities to be Amount Proposed Maximum Proposed Maximum Amount of
Registered to be Offering Price Per Aggregate Offering Registration Fee
Registered Share Price
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 400,000 (1) $24.625 (2) $9,850,000 (2) $3,397
par value
<FN>
(1) Shares registered pursuant to this Registration Statement available for
issuance under the 1994 Patent Incentive Plan.
(2) Estimated pursuant to Rule 457(c) based on the closing sale price of the
issuer's Common Stock on the Nasdaq National Market on June 5, 1995, solely
for the purpose of calculating the amount of the registration fee.
</TABLE>
This Registration Statement, including exhibits, consists of ____
sequentially numbered pages. The Index to Exhibits appears on sequentially
numbered page ___.
<PAGE>
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or the latest prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Securities
Act"), that contains audited consolidated financial statements for the
Registrant's latest fiscal year for which such statements have been
filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual
report or the prospectus referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's registration statement filed with the Commission under
Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of 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
registered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed incorporated by reference herein and to
be a part hereof from the date of the filing of such documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Gordon K. Davidson, a partner in Fenwick & West, counsel to the registrant,
is Secretary of the Registrant.
As to named experts, Item 5 is inapplicable.
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EXPERTS.
The consolidated financial statements of Symantec Corporation ("Symantec" or
the "Company") included in the Company's Annual Report on Form 10-K as of
March 31, 1995 and 1994 and for each of the three years in the period ended
March 31, 1995, have been audited by Ernst & Young LLP, independent auditors, as
set forth in their report thereon included therein and incorporated herein by
reference which, as to fiscal 1993 is based in part on the report of KPMG Peat
Marwick LLP, independent accountants, as it relates to Fifth Generation Systems,
Inc.'s ("Fifth Generation") consolidated financial statements for the year ended
December 31, 1992, which report is included in the Company's Annual Report on
Form 10-K for the year ended March 31, 1995. Such consolidated financial
statements of Symantec referred to above are incorporated herein by reference in
reliance upon such reports given upon the authority of such firms as experts in
accounting and auditing. The report of Ernst & Young LLP insofar as it relates
to amounts included for Fifth Generation is based solely upon the report of KPMG
Peat Marwick LLP. The report of KPMG Peat Marwick LLP referred to above
contains an explanatory paragraph that states that Fifth Generation's recurring
losses and maturity of long term debt raise substantial doubt about Fifth
Generation's ability to continue as a going concern. The consolidated financial
statements do not include any adjustments that might result from the outcome of
that uncertainty.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation includes a provision that eliminates
the personal liability of its directors for monetary damages for breach or
alleged breach of their duty of care. The Registrant also maintains a limited
amount of director and officer insurance. In addition, as permitted by Section
145 of the Delaware General Corporation Law, the Bylaws of the Registrant
provide that: (i) the Registrant is required to indemnify its directors,
officers and employees, and persons serving in such capacities in other business
enterprises (including, for example, subsidiaries of the Registrant) at the
Registrant's request, to the fullest extent permitted by Delaware law, including
those circumstances in which indemnification would otherwise be discretionary;
(ii) the Registrant is required to advance expenses, as incurred, to such
directors, officers and employees in connection with defending a proceeding
(except that it is not required to advance expenses to a person against whom the
Registrant brings a claim for breach of the duty of loyalty, failure to act in
good faith, intentional misconduct, knowing violation of law or deriving an
improper personal benefit); (iii) the rights conferred in the Bylaws are not
exclusive and the Registrant is authorized to enter into indemnification
agreements with such directors, officers and employees; (iv) the Registrant is
required to maintain director and officer liability insurance to the extent
reasonably available; and (v) the Registrant may not retroactively amend the
Bylaw provisions in a way that is adverse to such directors, officers and
employees.
The Registrant's policy is to enter into indemnity agreements with each of
its directors that provide the maximum indemnity allowed to directors by Section
145 of the Delaware General Corporation Law and the Bylaws, as well as certain
additional procedural protections. In addition, the indemnity agreements
provide that directors will be indemnified to the fullest possible extent not
prohibited by law against all expenses (including attorney's fees) and
settlement amounts paid or incurred by them in any action or proceeding,
including any derivative action by
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<PAGE>
or in the right of the Registrant, on account of their services as directors of
the Registrant or as directors or officers of any other company or enterprise
when they are serving in such capacities at the request of the Registrant. No
indemnity will be provided, however, to any director on account of conduct that
is adjudicated to be knowingly fraudulent, deliberately dishonest or willful
misconduct. The indemnity agreements also provide that no indemnification will
be available if a final court adjudication determines that such indemnification
is not lawful, or in respect of any accounting of profits made from the purchase
or sale of securities of the Registrant in violation of Section 16(b) of the
Exchange Act.
The indemnification provision in the Bylaws, and the indemnity agreements
entered into between the Registrant and its directors, may be sufficiently broad
to permit indemnification of the Registrant's officers and directors for
liabilities arising under the Securities Act.
ITEM 8. EXHIBITS.
4.01 The Registrant's 1994 Patent Incentive Plan.
4.02 The Registrant's Restated Certificate of Incorporation
(incorporated by reference to Exhibit 4.02 of Amendment No. 2
to the Registrant's Form S-3 Registration Statement No. 33-
82012 filed on December 23, 1994).
4.03 The Registrant's Bylaws, as currently in effect (incorporated
by reference to Exhibit 3.02 of the Registrant's Form S-1
Registration Statement No. 33-28655 originally filed on May
19, 1989).
5.01 Opinion of Fenwick & West.
23.01 Consent of Fenwick & West (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, independent auditors.
23.03 Consent of KPMG Peat Marwick LLP, independent auditors.
24.01 Power of Attorney (see page 6).
ITEM 9. UNDERTAKINGS.
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;
(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;
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<PAGE>
(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 (1)(i) and (1)(ii) above do not apply if
the Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 that remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the 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 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 hereby,
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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<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual and corporation whose
signature appears below constitutes and appoints Gordon E. Eubanks, Jr. and
Robert R. B. Dykes, and each of them, his or its true and lawful attorneys-in-
fact and agents with full power of substitution, for him or it and in his or its
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement on
Form S-8, and to file the same with all exhibits thereto and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he or it
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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 Cupertino, State of California, on the 8th day of
June, 1995.
SYMANTEC CORPORATION
By: /s/ Robert R.B. Dykes
----------------------------------------
Robert R. B. Dykes
Executive Vice President World-Wide
Operations
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------ -------------------------- ------------
CHIEF EXECUTIVE OFFICER:
/s/ Gordon E. Eubanks, Jr. President, Chief Executive June 8, 1995
- ------------------------------ Officer and Director
Gordon E. Eubanks, Jr.
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<PAGE>
SIGNATURE TITLE DATE
- ------------------------ -------------------------- ------------
CHIEF FINANCIAL OFFICER:
/s/ Robert R.B. Dykes Executive Vice President June 8, 1995
- ------------------------------ World-Wide Operations and
Robert R. B. Dykes Chief Financial Officer
CHIEF ACCOUNTING
OFFICER:
/s/ Howard A. Bain III Vice President/Finance and June 8, 1995
- ------------------------------ Chief Accounting Officer
Howard A. Bain III
DIRECTORS:
/s/ Carl D. Carman Chairman of the Board June 8, 1995
- ------------------------------
Carl D. Carman
/s/ Charles M. Boesenberg Director June 8, 1995
- ------------------------------
Charles M. Boesenberg
/s/ Walter W. Bregman Director June 8, 1995
- ------------------------------
Walter W. Bregman
/s/ Robert S. Miller Director June 8, 1995
- ------------------------------
Robert S. Miller
/s/ Leslie L. Vadasz Director June 8, 1995
- ------------------------------
Leslie L. Vadasz
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<PAGE>
EXHIBIT INDEX
Document Page
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4.01 The Registrant's 1994 Patent Incentive Plan.
4.02 The Registrant's Restated Certificate of Incorporation
(incorporated by reference to Exhibit 4.02 of Amendment
No. 2 to the Registrant's Form S-3 Registration Statement
No. 33-82012 filed on December 23, 1994).
4.03 The Registrant's Bylaws, as currently in effect (incorporated
by reference to Exhibit 3.02 of the Registrant's Form S-1
Registration Statement No. 33-28655 originally filed on
May 19, 1989).
5.01 Opinion of Fenwick & West.
23.01 Consent of Fenwick & West (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, independent auditors.
23.03 Consent of KPMG Peat Marwick LLP, independent auditors.
24.01 Power of Attorney (see page 6).
<PAGE>
EXHIBIT 4.01
The Registrant's 1994 Patent Incentive Plan
<PAGE>
SYMANTEC CORPORATION
1994 PATENT INCENTIVE PLAN
1. PURPOSE. The purposes of this 1994 Patent Incentive Plan (the "PLAN")
of Symantec Corporation (the "COMPANY") are to enable the Company to (1)
attract, retain and motivate employees, (2) to increase awareness of the
increasing importance of patents to the Company's business, (3) provide
employees with financial incentives to pursue patent protection for new
technologies that may be valuable to the Company.
2. DEFINITIONS. The following terms shall have the following meanings
for purposes of the Plan:
"AFFILIATE" means any corporation that directly, or indirectly through
one or more intermediaries, controls or is controlled by, or is under common
control with another corporation, where "control" (including the terms
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to cause the direction of the management and policies of
the corporation, whether through the ownership of voting securities, by contract
or otherwise.
"AWARD" means a Stock Bonus granted under the Plan.
"BOARD" means the Company's Board of Directors.
"COMMON STOCK" means the Company's Common Stock, par value $.01.
"COMMITTEE" shall mean a committee appointed by the Board for the
purpose of overseeing and administering the Plan.
"FAIR MARKET VALUE" means, as of any date, the value of a share of the
Company's Common Stock determined as follows:
(a) if such Common Stock is then quoted on the Nasdaq National
Market, its last reported sale price on the Nasdaq National Market or, if no
such reported sale takes place on such date, the average of the closing bid and
asked prices;
(b) if such Common Stock is publicly traded and is then listed
on a national securities exchange, the last reported sale price or, if no such
reported sale takes place on such date, the average of the closing bid and asked
prices on the principal national securities exchange on which the Common Stock
is listed or admitted to trading;
(c) if such Common Stock is publicly traded but is not quoted on
the Nasdaq National Market nor listed or admitted to trading on a national
securities exchange, the average of the closing bid and asked prices on such
date, as reported by The Wall Street Journal, for the over-the-counter market;
or
(d) if none of the foregoing is applicable, by the Board in good
faith.
<PAGE>
"PARTICIPANT" shall mean an employee of, or consultant or independent
contractor to, the Company or an employee of, or consultant or independent
contractor to, a Parent, Subsidiary or Affiliate of the Company that is chosen
to receive an Award under the Plan. Directors and executive officers of the
Company may not be Participants.
"PARENT" means any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company if, at the time of the Award, each
of such corporations other than the Company owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
"STOCK BONUS" means the issuance or delivery of unrestricted or
restricted shares of Common Stock under the Plan as a bonus for services
rendered in the employ of the Company or a Parent, Subsidiary or Affiliate of
the Company.
"SUBSIDIARY" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the time of the
Award, each of the corporations other than the last corporation in the unbroken
chain owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain.
"TERMINATION" or "TERMINATED" means, for purposes of the Plan with
respect to a Participant, that the Participant has ceased to provide services as
an employee, director, consultant, independent contractor or adviser, to the
Company or a Parent, Subsidiary or Affiliate of the Company, except in the case
of sick leave, military leave, or any other leave of absence approved by the
Committee; PROVIDED, that such leave is for a period of not more than ninety
(90) days, or reinstatement upon the expiration of such leave is guaranteed by
contract or statute. The Committee shall have sole discretion to determine
whether a Participant has ceased to provide services and the effective date on
which the Participant ceased to provide services (the "TERMINATION DATE").
3. ADOPTION. This Plan shall become effective on the date that it is
adopted by the Board of Directors (the "BOARD") of the Company
4. ELIGIBILITY. All employees of the Company or any Parent, Subsidiary
or Affiliate of the Company other than persons that are directors or executive
officers of the Company, may receive Awards under this Plan.
5. PLAN AWARDS.
(a) To carry out the purposes of the Plan, the Company and its
Subsidiaries will from time to time enter into various arrangements with
Participants and grant Awards under the Plan. Subject to the provisions of the
Plan, any Award granted pursuant to the Plan shall contain such additional terms
and provisions as the Board or the Committee may consider appropriate. The
Board shall from time to time set criteria for granting Awards under the Plan,
provided that any changes in the award criteria shall not operate to deprive
Participants of benefits under Awards existing at the time of a change in the
Award criteria. No individual shall be eligible to receive more than 50,000
shares of Common Stock at any time during the term of this Plan pursuant to the
grant of Stock Options or Stock Bonuses hereunder.
<PAGE>
(b) Stock Bonuses may vary from Participant to Participant and
between groups of Participants. Prior to the grant of a Stock Bonus, the
Committee shall (a) determine the nature, length and starting date of any
performance requirements for the Stock Bonus; (b) identify performance criteria
to be used to measure performance goals; and (c) determine the number of Shares
that may be awarded to the Participant. Prior to the payment of any Stock
Bonus, the Committee shall determine the extent to which such Stock Bonus has
been earned.
(c) Stock Bonus Awards shall be subject to such restrictions as the
Committee shall impose. These restrictions may be based upon completion of a
specified number of years of service with the Company or upon completion of the
performance goals as set out in advance in the Award agreement that shall be in
such form (which need not be the same for each Participant) as the Committee
shall from time to time approve, and shall comply with and be subject to the
terms and conditions of the Plan.
(d) Stock Bonuses may be awarded for past services already rendered
to the Company, or any Parent, Subsidiary or Affiliate of the Company pursuant
to an Award agreement that shall be in such form (which need not be the same for
each Participant) as the Committee shall from time to time approve, and shall
comply with and be subject to the terms and conditions of the Plan. No payment
for the Shares shall be required.
(e) Participants may participate simultaneously with respect to Stock
Bonuses that are subject to different performance criteria and having different
performance goals and other criteria. If a Participant is Terminated during a
performance period for any reason, then such Participant shall be entitled to
payment (whether in Shares, cash or otherwise) with respect to the Stock Bonuses
only to the extent earned as of the date of Termination in accordance with the
Award agreement, unless the Committee shall determine otherwise.
(f) A Stock Bonus may be paid in the form of cash, whole Shares, or a
combination thereof, based on the Fair Market Value on the date of payment,
either in a lump sum payment or in installments, all as the Committee shall
determine.
7. STOCK SUBJECT TO PLAN.
(a) The kind and maximum number of shares of stock that may be issued
under the Plan shall be 400,000 shares of Common Stock (subject to the
adjustments set forth below). Common Stock shall again be available for grant
and issuance in connection with future Awards under the Plan that are subject to
an Award that otherwise terminates without Shares being issued and for which the
participant did not receive any benefits of ownership (other than voting
rights). If the outstanding shares of stock of the class then subject to the
Plan are increased or decreased, or are changed into or are exchanged for a
different number or kind of shares or securities or other forms of
consideration, as a result of one or more reorganizations (acquisitive or
divisive), recapitalizations, restructurings, reclassifications, stock splits,
reverse stock splits, stock dividends or the like, appropriate adjustments shall
be made in the number and/or kind of shares or securities or other forms of
consideration which may thereafter be issued under the Plan and for which Awards
may thereafter be granted and for which outstanding Awards previously granted
under the Plan may thereafter be settled.
<PAGE>
(b) The shares of stock sold or issued under the Plan may be obtained
from the Company's authorized but unissued shares, from reacquired or treasury
shares, or from outstanding shares to be acquired in the market or from private
sources.
(c) No Stock Bonus will be issuable, unless such issuance is in
compliance with the Securities Act of 1933, as amended, and all applicable state
securities laws, as they are in effect on the date of exercise.
8. ADMINISTRATION. The Plan shall be administered by the Committee.
Subject to the general purposes, terms and conditions of the Plan, the Committee
shall have full power to implement and carry out the Plan. The Committee shall
have the authority to:
(a) construe and interpret the Plan, any Award Agreement and any
other agreement or document executed pursuant to the Plan;
(b) prescribe, amend and rescind rules and regulations relating to
the Plan;
(c) select persons to receive Awards;
(d) determine the form and terms of Awards;
(e) determine the number of Shares or other consideration subject to
Awards;
(f) determine whether Awards will be granted singly, in combination,
or in tandem with, in replacement of, or as alternatives to, other Awards under
the Plan or any other incentive or compensation plan of the Company or any
Parent, Subsidiary or Affiliate of the Company;
(g) grant waivers of Plan or Award conditions;
(h) determine the vesting, exercisability and payment of Awards;
(i) correct any defect, supply any omission, or reconcile any
inconsistency in the Plan, any Award or any Award agreement;
(j) determine whether an Award has been earned; and
(k) make all other determinations necessary or advisable for the
administration of the Plan.
Any determination made by the Committee with respect to any Award
shall be made in its sole discretion at the time of grant of the Award or,
unless in contravention of any express term of the Plan or Award, at any later
time, and such determination shall be final and binding on the Company and all
persons having an interest in any Award under the Plan. The Committee may
delegate to one or more officers of the Company the authority to grant an Award
under the Plan to Participants.
<PAGE>
9. WITHHOLDING. Whenever Shares are to be issued in satisfaction of
Awards granted under the Plan, the Company may require the Participant to remit
to the Company an amount sufficient to satisfy federal, state and local
withholding tax requirements prior to the delivery of any certificate or
certificates for such Shares. Whenever, under the Plan, payments in
satisfaction of Awards are to be made in cash, such payment shall be net of an
amount sufficient to satisfy federal, state, and local withholding tax
requirements.
10. VOTING AND DIVIDENDS. No Participant shall have any of the rights of
a shareholder with respect to any Shares until the Shares are issued to the
Participant. After Shares are issued to the Participant, the Participant shall
be a shareholder and have all the rights of a shareholder with respect to such
Shares, including the right to vote and receive all dividends or other
distributions made or paid with respect to such Shares; PROVIDED, that any new,
additional or different securities the Participant may become entitled to
receive with respect to such Shares by virtue of a stock dividend, stock split
or any other change in the corporate or capital structure of the Company shall
be subject to the same restrictions as the Shares; PROVIDED, FURTHER, that the
Participant shall have no right to retain such dividends or distributions with
respect to Shares that are repurchased at the Participant's original Purchase
Price pursuant to Section 12.
11. TRANSFERABILITY. Awards granted under the Plan which are subject to
performance, vesting or other requirements, or which are otherwise subject to
restrictions, and any interest therein, shall not be transferable or assignable
by Participant, and may not be made subject to execution, attachment or similar
process, otherwise than by will or by the laws of descent and distribution or as
consistent with the specific Plan and Award agreement provisions relating
thereto. During the lifetime of the Participant, any elections with respect to
an Award may be made only by the Participant.
12. RESTRICTIONS ON SHARES. At the discretion of the Committee, the
Company may reserve to itself and/or its assignee(s) in the Award agreement a
right to repurchase a portion of or all Shares received by a Participant under
the Plan which are subject to performance, vesting or other requirements, or
which are otherwise subject to restrictions, held by a Participant, following
such Participant's Termination at any time within 90 days after the later of
Participant's Termination Date and the date Participant receives Shares under
the Plan which are subject to performance, vesting or other requirements, or
which are otherwise subject to restrictions, for cash or cancellation of
purchase money indebtedness with respect to Shares that are not "Vested" (as
defined in the Award agreement), at the Participant's original Purchase Price.
13. CERTIFICATES. All certificates for Shares or other securities
delivered under the Plan shall be subject to such stock transfer orders, legends
and other restrictions as the Committee may deem necessary or advisable,
including restrictions under any applicable federal, state or foreign securities
law, or any rules, regulations and other requirements of the Securities and
Exchange Commission (the "SEC") or any stock exchange or automated quotation
system upon which the Shares may be listed.
14. ESCROW; PLEDGE OF SHARES. To enforce any restrictions on a
Participant's Shares, the Committee may require the Participant to deposit all
certificates representing Shares, together with stock powers or other
instruments of transfer approved by the Committee, appropriately endorsed in
blank, with the Company or an agent designated by the Company to hold in escrow
<PAGE>
until such restrictions have lapsed or terminated, and the Committee may cause a
legend or legends referencing such restrictions to be placed on the
certificates. Any Participant who is permitted to execute a promissory note as
partial or full consideration for the purchase of Shares under the Plan shall be
required to pledge and deposit with the Company all or part of the Shares so
purchased as collateral to secure the payment of Participant's obligation to the
Company under the promissory note; PROVIDED, HOWEVER, that the Committee may
require or accept other or additional forms of collateral to secure the payment
of such obligation and, in any event, the Company shall have full recourse
against the Participant under the promissory note notwithstanding any pledge of
the Participant's Shares or other collateral. In connection with any pledge of
the Shares, Participant shall be required to execute and deliver a written
pledge agreement in such form as the Committee shall from time to time approve.
The Shares purchased with the promissory note may be released from the pledge on
a pro rata basis as the promissory note is paid.
15. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. An Award shall not be
effective unless such Award is in compliance with all applicable federal and
state securities laws, rules and regulations of any governmental body, and the
requirements of any stock exchange or automated quotation system upon which the
Shares may then be listed, as they are in effect on the date of grant of the
Award and also on the date of exercise or other issuance. Notwithstanding any
other provision in the Plan, the Company shall have no obligation to issue or
deliver certificates for Shares under the Plan prior to (a) obtaining any
approvals from governmental agencies that the Company determines are necessary
or advisable, and/or (b) completion of any registration or other qualification
of such shares under any state or federal law or ruling of any governmental body
that the Company determines to be necessary or advisable. The Company shall be
under no obligation to register the Shares with the SEC or to effect compliance
with the registration, qualification or listing requirements of any state
securities laws, stock exchange or automated quotation system, and the Company
shall have no liability for any inability or failure to do so.
16. ASSUMPTION OR REPLACEMENT OF AWARDS BY SUCCESSOR. In the event of (a)
a merger or consolidation in which the Company is not the surviving corporation
(other than a merger or consolidation with a wholly-owned subsidiary, a
reincorporation of the Company in a different jurisdiction, or other transaction
in which there is no substantial change in the shareholders of the Company and
the Awards granted under the Plan are assumed or replaced by the successor
corporation, which assumption shall be binding on all Participants), (b) a
dissolution or liquidation of the Company, (c) the sale of substantially all of
the assets of the Company, or (d) any other transaction which qualifies as a
"corporate transaction" under Section 424(a) of the Code wherein the
shareholders of the Company give up all of their equity interest in the Company
(EXCEPT for the acquisition, sale or transfer of all or substantially all of the
outstanding shares of the Company), any or all outstanding Awards may be assumed
or replaced by the successor corporation, which assumption or replacement shall
be binding on all Participants. In the alternative, the successor corporation
may substitute equivalent Awards or provide substantially similar consideration
to Participants as was provided to shareholders (after taking into account the
existing provisions of the Awards). The successor corporation may also issue,
in place of outstanding Shares of the Company held by the Participant,
substantially similar shares or other property subject to repurchase
restrictions no less favorable to the Participant.
<PAGE>
17. AMENDMENT AND TERMINATION. The Plan shall become effective on the
date that it is adopted by the Board (the "EFFECTIVE DATE"). The Board or the
Committee may alter, amend, suspend or terminate the Plan.
18. NO OBLIGATION TO EMPLOY. This Plan shall not be deemed to be an
employment contract or confer upon any employee any right to continue as an
employee of the Company, or in any way affect the ability of the Company or any
employee of the Company to terminate their employment relationship at will.
19. TERM OF PLAN. This Plan shall be in effect for a period of ten years
from the date of its adoption by the Board of Directors.
<PAGE>
EXHIBIT 5.01
Opinion of Fenwick & West
<PAGE>
June 8, 1995
Symantec Corporation
10201 Torre Avenue
Cupertino, California 95014
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") to be filed by you with the Securities and
Exchange Commission on or about June 9, 1995 in connection with the registration
under the Securities Act of 1993, as amended, of 400,000 shares of your Common
Stock, $0.01 par value (the "STOCK"), which shares may be given by you pursuant
to awards made by you to your (or your parents', affiliates' or subsidiaries')
employees (other than your directors or executive officers) pursuant to your
1994 Patent Incentive Plan (the "PLAN").
As your counsel, we have examined the proceedings taken by you in
connection with the adoption of the Plan.
It is our opinion that the 400,000 shares of the Stock that may be issued
and sold by you pursuant to the Plan, when issued and sold in the manner
referred to in the Prospectus associated with the Registration Statement and the
Plan, will be legally issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us in the Registration
Statement and any amendments thereto.
Very truly yours,
/s/ Fenwick & West
FENWICK & WEST
<PAGE>
EXHIBIT 23.02
Consent of Ernst & Young LLP
<PAGE>
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the 1994 Patent Incentive Plan
of Symantec Corporation and to the incorporation by reference therein of our
report dated April 21, 1995, with respect to the consolidated financial
statements and schedule of Symantec Corporation included in its Annual Report
(Form 10-K) for the year ended March 31, 1995, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
June 7, 1995
<PAGE>
EXHIBIT 23.03
Consent of KPMG Peat Marwick LLP
<PAGE>
Consent of KPMG Peat Marwick LLP, Independent Auditors
The Board of Directors
Symantec Corporation:
We consent to incorporation by reference in the registration statement on Form
S-8 of Symantec Corporation 1994 Patent Incentive Plan dated June 6, of our
report dated August 6, 1993, relating to the consolidated balance sheet of Fifth
Generation Systems, Inc. and subsidiaries as of December 31, 1992, and the
related consolidated statements of operations, stockholders' equity, and cash
flows for the year then ended and the financial statement schedules No. II which
report appears in the March 31, 1995 annual report on Form 10-K of Symantec
Corporation.
Our report dated August 6, 1993, contains an explanatory paragraph that states
that substantially all of the Company's debt matured May 15, 1993 and one half
of the redeemable preferred stock is redeemable June 30, 1993. In addition, the
Company suffered substantial losses from operations for the year ended December
31, 1992. These situations raise substantial doubt about the entity's ability
to continue as a going concern. The consolidated financial statements and the
financial statement schedule No. II do not include any adjustments relating to
the recoverability and classification of reported asset amounts or the amounts
and classification of liabilities that might result from the outcome of that
uncertainty.
We also consent to the reference to our firm under the heading "Experts" in the
Form S-8 filing of Symantec Corporation dated June 6, 1995.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
June 6, 1995
Baton Rouge, Louisiana
