<PAGE>
As filed with the Securities and Exchange Commission on November 21, 1995
Registration No. 33-
- -------------------------------------------------------------------------------
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)
SYMANTEC CORPORATION 1988 EMPLOYEES STOCK OPTION PLAN
SYMANTEC CORPORATION 1989 EMPLOYEE STOCK PURCHASE PLAN
OPTIONS GRANTED UNDER THE (i) DELRINA CORPORATION STOCK OPTION PLAN
AND (ii) THE DELRINA CORPORATION 1994 STOCK
OPTION PLAN AND ASSUMED BY SYMANTEC CORPORATION
(Full title of the plans)
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:
Elizabeth Lawrence, Esq.
Fenwick & West
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
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>
Common Stock, $0.01 1,000,000 (1) $21.5 $21,500,000 (2) $7,414 (3)
par value
Common Stock, $0.01 500,000 (4) $21.5 $10,750,000 (2) $3,707 (3)
par value
Common Stock, $0.01 1,290,390 (5) $21.5 $27,743,385 (2) $9,567 (3)
par value
- ---------------------------------------------------------------------------------------------------------
</TABLE>
(footnotes on next page)
<PAGE>
(1) Shares registered pursuant to this Registration Statement available
for issuance and not yet subject to outstanding options under the 1988
Employees Stock Option Plan.
(2) Calculated pursuant to Rule 457(c) based on the average of the high
and low prices of the issuer's Common Stock on the Nasdaq National
Market on November 20, 1995.
(3) Pursuant to General Instruction E, the registration fee paid in
connection herewith is based on the maximum aggregate price at which
securities covered by this registration statement are proposed to be
offered. No registration fee is paid for securities previously
registered.
(4) Shares registered pursuant to this Registration Statement available
for issuance and not yet subject to outstanding options under the 1989
Employee Stock Purchase Plan.
(5) Shares subject to options of Delrina Corporation assumed as of
November 22, 1995.
<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 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 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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.
The consolidated financial statements of Symantec incorporated by
reference herein 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 incorporated by
reference herein 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 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
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 Generations' recurring losses and
maturity of long term debt raise substantial
<PAGE>
doubt about Fifth Generations' 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 and officers 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 and officers 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 or in the right of
the Registrant, on account of their services as directors and officers 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 or officer 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 Registrant's directors and officers, may
be sufficiently broad to permit the indemnification of the officers and
directors for liabilities arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<PAGE>
ITEM 8. EXHIBITS.
4.01 Form of Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Annex G of the Joint Proxy Statement
originally filed on August 18, 1995).
4.02 Bylaws of the Registrant (incorporated by reference to Exhibit 3.02 of
the Registrant's Registration Statement on Form S-1, Registration No.
33-28655 originally filed on May 19, 1989).
4.03 Section 9 of the Note Purchase Agreement dated April 2, 1993, by and
among the Registrant and Morgan Guaranty Trust Company, as Trustee of
a Commingled Pension Trust Fund, J.P. Morgan Investment Management
Inc., as Investment Manager for an Institutional Investor, and The
Northwestern Mutual Life Insurance Company (incorporated herein by
reference to Exhibit 4.04 on Form 10-K for the fiscal year ended April
2, 1993).
4.04 Section 2 of the Registration Rights Agreement dated June 2, 1993, by
and among the Registrant, Edison Venture Fund II, L.P. and Edison
Venture Fund II-PA, L.P. (incorporated herein by reference to Exhibit
10.31 on Form 10-Q for the fiscal quarter ended July 2, 1993).
4.05 The Registrant's 1988 Employees Stock Option Plan, as amended
(incorporated by reference to Annex K of the Joint Proxy Statement
originally filed on August 18, 1995).
4.06 The Registrant's 1989 Employee Stock Purchase Plan, as amended
(incorporated by reference to Annex L of the Joint Proxy Statement
originally filed on August 18, 1995).
4.07 Delrina Corporation Stock Option Plan.
4.08 Delrina Corporation 1994 Stock Option Plan.
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 8).
<PAGE>
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; and
(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
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 of the Registrant
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
<PAGE>
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.
[The remainder of this page has been intentionally left blank.]
<PAGE>
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Robert R.B. Dykes his true and lawful attorney-
in-fact and agent with full power of substitution, for him and his 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
attorney-in-fact and agent, 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 might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done or by virtue
hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 21st day of
November, 1995.
SYMANTEC CORPORATION
By: /s/ Robert R.B. Dykes
------------------------------------------
Robert R.B. Dykes, Executive Vice President,
Worldwide Operations and Chief Financial
Officer
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 President, Chief Executive November 21 1995
- -------------------------- Officer and Director
Gordon E. Eubanks, Jr.
CHIEF FINANCIAL OFFICER:
/s/ Robert R.B. Dykes Executive Vice President/ November 21, 1995
- -------------------------- Worldwide Operations
Robert R. B. Dykes & Chief Financial Officer
<PAGE>
CHIEF ACCOUNTING
OFFICER:
/s/ Howard A. Bain III Vice President/Finance and November 21, 1995
- -------------------------- Chief Accounting Officer
Howard A. Bain III
ADDITIONAL DIRECTORS:
/s/ Carl D. Carman Chairman of the Board November 21, 1995
- --------------------------
Carl D. Carman
/s/ Charles M. Boesenberg Director November 21, 1995
- --------------------------
Charles M. Boesenberg
/s/ Walter W. Bregman Director November 21, 1995
- -------------------------
Walter W. Bregman
/s/ Robert S. Miller Director November 21, 1995
- --------------------------
Robert S. Miller
/s/ Leslie L. Vadasz Director November 21, 1995
- --------------------------
Leslie L. Vadasz
<PAGE>
EXHIBIT INDEX
4.01 Form of Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Annex G of the Joint Proxy Statement
originally filed on August 18, 1995).
4.02 Bylaws of the Registrant (incorporated by reference to Exhibit 3.02 of
the Registrant's Registration Statement on Form S-1, Registration No.
33-28655 originally filed on May 19, 1989).
4.03 Section 9 of the Note Purchase Agreement dated April 2, 1993, by and
among the Registrant and Morgan Guaranty Trust Company, as Trustee of
a Commingled Pension Trust Fund, J.P. Morgan Investment Management
Inc., as Investment Manager for an Institutional Investor, and The
Northwestern Mutual Life Insurance Company (incorporated herein by
reference to Exhibit 4.04 on Form 10-K for the fiscal year ended April
2, 1993).
4.04 Section 2 of the Registration Rights Agreement dated June 2, 1993, by
and among the Registrant, Edison Venture Fund II, L.P. and Edison
Venture Fund II-PA, L.P. (incorporated herein by reference to Exhibit
10.31 on Form 10-Q for the fiscal quarter ended July 2, 1993).
4.05 The Registrant's 1988 Employees Stock Option Plan, as amended
(incorporated by reference to Annex K of the Joint Proxy Statement
originally filed on August 18, 1995).
4.06 The Registrant's 1989 Employee Stock Purchase Plan, as amended
(incorporated by reference to Annex L of the Joint Proxy Statement
originally filed on August 18, 1995).
4.07 Delrina Corporation Stock Option Plan.
4.08 Delrina Corporation 1994 Stock Option Plan.
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 8).
<PAGE>
EXHIBIT 4.07
Delrina Corporation Stock Option Plan
<PAGE>
DELRINA CORPORATION
-------------------
STOCK OPTION PLAN
1. PURPOSE: The purpose of this Stock Option Plan (the "Plan") is to
encourage ownership of the common shares (the "Shares") of Delrina
Corporation (the "Company") by directors, officers, key employees and
long-term consultants of the Company or any present or future subsidiary
thereof who are primarily responsible for the management and profitable
growth of its business and to advance the interests of the Company by
providing additional incentive for superior performance by such persons and
to enable the Company to attract and retain valued directors, officers,
employees and long-term consultants.
2. ADMINISTRATION: The Plan shall be administered by the President from
time to time of the Company (the "Administrator"). The Administrator is
authorized to restrict the exercise of the options by specifying a date prior
to which options cannot be exercised. The Administrator shall not by virtue of
such appointment be disentitled or ineligible to receive options. Subject to
any express direction by resolution of the board of directors of the Company
from time to time, the Administrator shall have full authority to interpret
the Plan and to make such rules and regulations and establish such procedures
as he deems appropriate for the administration of the Plan, taking into
consideration the recommendations of management, and the decision of the
Administrator shall be binding and conclusive. Notwithstanding anything
herein contained, the Administrator may from time to time delegate the
authority vested in it under this clause to the full board, which shall
thereupon exercise all of the powers herein given to the Administrator, and a
decision of the majority of persons comprising the board in respect of any
matter hereunder shall be binding and conclusive for all purposes and upon
all persons.
3. NUMBER OF SHARES: The total number of shares which are reserved and
set aside for issue to employees under this Plan shall not exceed 10% of the
issued and outstanding shares of the Company from time to time. All shares
issued pursuant to the exercise of options granted or deemed to be granted
under the Plan will be issued as fully paid shares.
4. PARTICIPATION: Options shall be granted under the Plan only to
directors, officers, other key employees and long-term consultants of the
Company or any present or future subsidiary thereof as shall be designated
from time to time by the Administrator and shall be subject to the approval
of such regulatory authorities as the Administrator shall designate, which
shall also determine the number of shares subject to such option.
5. TERMS AND CONDITIONS OF OPTIONS: The terms and conditions of each
option granted under the Plan shall be set forth in a written option
agreement between the Company and the Optionee. Such terms and conditions
shall include the following as well as such other provisions, not
inconsistent with the Plan, as may be deemed advisable by the Administrator.
(a) Number of Shares: The number of shares subject to the option.
Approved by the TSE November 22, 1993
<PAGE>
Stock Option Plan Page 2
October 28, 1993
(b) Option Price: The option price of any shares in respect of
which an option may be granted under the Plan shall be fixed by the
Administrator but shall be not less than the fair market value of the
shares at the time the option is granted. For the purpose of this
paragraph, "fair market value" shall be deemed to be the closing price
on the last trading day preceding the date of the grant, (less any
applicable discount) if the shares are listed on the Toronto Stock
Exchange (the "TSE"); and if the shares are not listed on the TSE such
other recognized Canadian stock exchange hereafter listing the shares
of the Company or the over the counter market on the day the option is
granted, or if not so traded, the average between the closing bid and
asked prices thereof as reported for the day prior to which the option
is granted less any discount allowed by regulatory authorities having
jurisdiction. The Administrator may also determine that the option price
per share may escalate at a specified rate dependent upon the year in
which any option to purchase common shares may be exercised by the
Optionee.
(c) Payment: The full purchase price of shares purchased under the
option shall be paid in cash or certified funds upon the exercise
thereof. A holder of an option shall have none of the rights of a
shareholder until the shares are issued to him/her.
(d) Term of Option: Options may be granted under this Plan
exercisable over a period not exceeding five (5) years. Each option
shall be subject to earlier termination as provided in subparagraph (f)
of this paragraph 5.
(e) Exercise of Option: Except as expressly otherwise provided
herein, no option may be exercised unless the recipient is then a
director, officer, key employee and/or a long-term consultant of the
Company or any direct or indirect subsidiary. This Plan shall not confer
upon the director/officer/employee/consultant any right with respect to
continuation of engagement as a director, consultant or employment by the
Company.
(f) Termination of Options: Any option granted pursuant hereto, to
the extent not validly exercised, will terminate on the earlier of the
following dates:
(i) the date of expiration specified in the option
agreement, being not more than five (5) years after
the date upon which the option was granted;
(ii) subject to (iii), (iv) and (v) below, thirty (30) days
after the date of termination of the Optionee's
employment, board membership, office and/or consultancy
with the Company or any subsidiary for any reason;
(iii) immediately upon the date of termination of the
Optionee's employment, board membership, office
and/or consultancy with the Company or any subsidiary,
if termination is for cause;
(iv) a date agreed upon by the Company and the Optionee if
termination of the Optionee's employment, board
membership, office and/or consultancy with the Company
or any subsidiary is due to retirement or permanent
disability;
(v) six (6) months after the date of the Optionee's death
during which period the option may be exercised by
only the option holder's legal representative or the
person or persons to whom
<PAGE>
Stock Option Plan Page 3
October 28, 1993
the deceased option holder's rights under the option
shall pass by will or the applicable laws.
(g) Non-transferability of Stock Option: No option shall be
transferable by the Optionee other than by will or the laws of descent
and distribution and such option shall be exercisable during his/her
lifetime only by him/her.
(h) Applicable Laws or Regulations: The Company's obligation to
sell and deliver shares under each option is subject to such compliance
by the Company and any grantee as the Company deems necessary or
advisable with all laws, rules and regulations of Canada and the United
States of America and any provinces and/or territories thereof applying
to the authorization, issuance, listing or sale of securities and is also
subject to the acceptance for listing of the shares which may be issued
upon the exercise thereof by each stock exchange upon which shares of the
Company are then listed for trading.
6. ADJUSTMENT IN EVENT OF CHANGE IN STOCK: Each option shall contain
uniform provisions in such form as may be approved by the Administrator to
appropriately adjust the number and kind of shares covered by the option and
the exercise price of shares subject to the option in the event of a stock
split, stock dividend, combination of shares, merger, or other relevant
change in the Company's capitalization to prevent substantial dilution or
enlargement of the rights granted to the Optionee by such option. Such
adjustments shall be subject to any prevailing, applicable, regulatory
requirements.
In the event of any (i) capital reorganization, (ii) merger, (iii)
amalgamation, (iv) offer for shares of the Company which if successful would
entitle the offeror or a group of offerors to acquire fifty percent plus one
of the shares of the Company or all of one or more particular class(es) of
shares of the Company which the offer relates, or (v) arrangement or other
scheme of reorganization (any of the clauses (i) through (v) being referred to
individually or in combination as a "Reorganization") or proposed
Reorganization, the Company, at its option, may do either of the following:
(a) the Company may irrevocably commute any option that is still
capable of being exercised, upon giving to the Optionee to whom such
option has been granted at least five days written notice of its
intention to commute the option, and during such period of notice, the
option, to the extent that it has not already vested shall vest
immediately and may be exercised by the Optionee without regard to the
limitations otherwise contained in this plan or the option agreement,
and on the expiry of such period of notice, if such Option has not been
exercised, the unexercised portion of the option shall lapse and be
cancelled, or
(b) the Company or any corporation which is or would be the
successor to the Company or which may issue securities in exchange for
shares upon the Reorganization becoming effective may offer any
Optionee the opportunity to obtain a new or replacement option over any
securities into which the shares are changed or are convertible or
exchangeable, on a basis proportionate to the number of shares under
option; in such event, the grantee shall, if he/she accepts such offer,
be deemed to have released his/her option over shares of the Company
and such option shall be deemed to have lapsed.
<PAGE>
Stock Option Plan Page 4
October 28, 1993
Subsections (a) and (b) of this section 6 are intended to be permissive and
may be utilized independently or successively or in combination or otherwise,
and nothing therein contained shall be construed as limiting or affecting the
ability of the Company to deal with options in any other manner.
7. AMENDMENT AND DISCONTINUANCE OF PLAN: The Board may from time to time
amend or revise the terms of the Plan, subject to prior regulatory consent
(if required), or may discontinue the Plan at any time provided however that
no such right may, without the consent of the grantee of the option, in any
manner adversely affect his rights under the option theretofore granted under
the Plan.
8. EFFECTIVE DATE AND DURATION OF PLAN: The Plan shall remain in full
force and effect until such time as the Administrator shall have granted
options on all of the shares reserved and set aside under paragraph 3 hereof,
and for so long thereafter as options remain outstanding in favour of any
grantee of the option.
9. OPTIONEE means an employee, officer, director and/or consultant who is
an individual and is the grantee of options pursuant to this Plan as amended
from time to time.
THIS SHALL BENEFIT ALL EXISTING AND FUTURE OPTION AGREEMENTS ISSUED PURSUANT
TO THIS PLAN.
<PAGE>
EXHIBIT 4.08
Delrina Corporation 1994 Stock Option Plan
<PAGE>
DELRINA CORPORATION
-------------------
1994 STOCK OPTION PLAN
1. PURPOSE
1.1 This 1994 Stock Option Plan has been established by the Corporation to
provide incentives to certain of its key employees.
2. DEFINITIONS
2.1 In this Plan, the following terms have the following meanings:
(a) "Associate" means "associate" as defined in the ONTARIO SECURITIES
ACT;
(b) "Corporation" means DELRINA CORPORATION, its successors and assigns,
and any reference in the Plan to action by the Corporation means
action by or under the authority of the Plan Administrator with the
ratification of the board of directors of the Corporation;
(c) "Date of Grant" of an Option means the date the Option is granted to
a Participant under the Plan;
(d) "Designated Amount" of a Participant's Option means the maximum
number of Shares which the Participant may purchase under the
Option, as designated by the Corporation at the time the Option is
granted;
(e) "Designated Percentage" in respect of an Option means the percentage
of the Designated Amount representing the maximum number of Shares
which a Participant may purchase under the Option during each Option
Period which shall be 20% for the period commencing 18 months after
the Date of Grant, 20% for the period commencing 30 months after the
Date of Grant, 20% for the period commencing 42 months after the
Date of Grant, 20% for the period commencing 54 months after the Date
of Grant and 20% for the period commencing 66 months after the Date of
Grant unless otherwise determined by the Corporation, which may be
evidenced by resolution of the board of directors for any particular
Participant or Participants;
(f) "Earliest Exercise Date" in respect of an Option means the earliest
date on which the Option may be exercised which shall be the date
which is 18 months (547 days) following the Date of Grant unless
otherwise determined by the Corporation which may be evidenced by
resolution of the board of directors for any particular Participant
or Participants;
<PAGE>
1994 Stock Option Plan Page 2
Established January 1, 1994
(g) "Eligible Person" means a director of the Corporation or any
employee of the Corporation or a direct or indirect subsidiary or
any other person or company engaged to provide on-going management
or consulting services for the Corporation or a direct or indirect
subsidiary;
(h) "Latest Exercise Date" means the latest date on which an Option may
be exercised, which shall be the seventh anniversary of the Date of
Grant unless otherwise determined by the Corporation, but in no
event later than the tenth anniversary of the Date of Grant;
(i) "Option" means a right granted under the Plan to a Participant to
purchase Shares in accordance with the Plan;
(j) "Option Price" in respect of an Option means the market price per
Share on the Toronto Stock Exchange (the "TSE") at the close of the
trading day prior to the Date of Grant, and is the price at which
the Participant may purchase Shares under the Option if or when
exercised;
(k) "Option Periods" in respect of an Option means the periods of time
set out in subsection 2.1(e).
(l) "Participant" means an Eligible Person who has agreed to
participate in the Plan on such terms as the Corporation may
specify at the time he is designated as an Eligible Person;
(m) "Plan" means this 1994 Canadian Stock Option Plan, as amended and
restated from time to time; and
(n) "Plan Administrator" means the Corporate Secretary of the
Corporation or any person or persons or committee that may be
designated for the purpose by the board of directors;
(o) "Shares" means the common shares in the capital of the Corporation,
and includes any shares of the Corporation into which such shares
may be converted, reclassified, redesignated, subdivided,
consolidated, exchanged or otherwise changed, whether pursuant to a
capital reorganization, amalgamation, merger, arrangement or other
form of reorganization.
2.2 In this Plan, unless the context requires otherwise, words importing
gender include the masculine and feminine and words importing the singular
number include the plural and vice versa.
<PAGE>
1994 Stock Option Plan PAGE 3
Established January 1, 1994
3. GRANTING OF OPTIONS AND DETERMINATION OF THE OPTION PRICE
3.1 From time to time, the Corporation may designate one or more Eligible
Persons for the purposes of the Plan. If an Eligible Person agrees to
participate in the Plan on such terms as the Corporation may specify at the
time he is designated as an Eligible Person, he shall become a Participant in
the Plan.
3.2 From time to time the Corporation may grant an Option to a Participant
to acquire Shares in accordance with the Plan. In granting such Option, the
Corporation shall designate:
(a) the Designated Amount;
(b) the Earliest Exercise Date;
(c) the Latest Exercise Date;
(d) the Designated Percentage; and
(e) the Option Price.
3.3 Subject to the terms of the Plan, the Corporation shall determine the
terms of all Options.
3.4 Participation in the Plan shall be entirely voluntary and any decision
not to participate shall not affect the employment of any Eligible Person who
is an employee of the Corporation or any of its affiliates, but failure to
participate shall not entitle any Eligible Person to any form of compensation
in lieu of Options.
4. EXERCISE OF PARTICIPANT'S OPTIONS
4.1 Subject to the terms of the Plan, an Option may be exercised by a
Participant only on or after the Earliest Exercise Date and thereafter from
time to time at such Participant's discretion, to purchase in the aggregate a
number of Shares equal to the aggregate of the previously unexercised portion
of the Designated Amount of Shares, provided that, unless the Corporation
otherwise agrees in writing,
(a) subject to (b), the maximum number of Shares which the Participant
may purchase under the Option during each of the Option Periods
commencing on the Earliest Exercise Date of the Option shall be
equal to the Designated Percentage of the Designated Amount of the
Option for such Option Period, and
(b) if the number of Shares purchased under the Option during any of
the Option Periods is less than the maximum number which could have
been purchased under the Option during that Option Period, the
difference shall be carried forward and
<PAGE>
1994 Stock Option Plan Page 4
Established January 1, 1994
added to the maximum number of Shares which may be purchased
under the Option in any following Option Period, and so on from
time to time, provided that the percentage of the Designated Amount
which the Participant may purchase under an Option shall not exceed
100%.
4.2 (1) Unless and until the Corporation otherwise determines, a
Participant's Option shall not be exercisable by the Participant, whether or
not it is exercisable under section 4.1, without the specific written consent
of the Corporation, on or after any of the following dates:
(a) the date on which the Participant's employment, or management or
consulting agreement, with the Corporation or any of its
subsidiaries, direct or indirect, is terminated for cause or, in
the case of a Participant who is a director of the Corporation but
not an employee, the date on which such Participant ceases to be a
member of the board of directors for any reason other than death as
contemplated by (b) below;
(b) six months after the Participant's employment, or management or
consulting agreement, with the Corporation or any of its
subsidiaries, direct or indirect, is terminated by reason of death,
or, in the case of a Participant who is a director of the
Corporation but not an employee, six months after the date on which
such Participant ceases to be a member of the board of directors by
reason of death, or
(c) 30 days after the date on which the Participant's employment, or
management or consulting agreement, with the Corporation or any of
its subsidiaries, direct or indirect, is terminated in any manner
or for any reason, as may be determined by the Corporation in its
sole discretion, including without limitation, by reason of the
Participant's disability, pre-retirement, normal retirement or
early retirement or any other termination of employment, other than
as set forth in (a) or (b) above.
(2) Unless and until the Corporation otherwise determines, a Participant's
Option shall terminate and may not be exercised after the Latest
Exercise Date of the Participant's Option.
4.3 The exercise of an Option shall be made by notice to the Corporation in
writing specifying and subscribing for the number of Shares in respect of
which the Option is being exercised at that time and, except where payment is
made by another means satisfactory to the Corporation, accompanied by a
certified cheque or bank draft payable to the Corporation in the amount of
the aggregate Option Price for such number of Shares. As of the business day
the Corporation receives such notice and such payment, the Participant (or
the person claiming through him, as the case may be) shall be entitled to be
entered on the share register of the Corporation as the holder of the number
of Shares in respect of which the Option was exercised and as promptly as
possible thereafter shall be delivered a certificate representing the said
number of Shares.
<PAGE>
1994 Stock Option Plan Page 5
Established January 1, 1994
5. MAXIMUM NUMBER OF SHARES TO BE ISSUED UNDER THE PLAN
5.1 The number of Shares which may be issued under Options granted pursuant
to this Plan is limited to 1,900,000.
In each case, the Corporation may, with appropriate shareholder
approval, if necessary, from time to time designate such other maximum number
which will not in any event exceed the maximum number permitted from time to
time under any applicable law or under the applicable rules of any stock
exchange upon which the Shares are listed or the NASDAQ.
5.2 If any Option has terminated or expired without being fully exercised,
any unissued Shares which have been reserved to be issued upon the exercise
of such Option shall become available to be issued upon the exercise of
Options subsequently granted under the Plan.
5.3 Notwithstanding any other provision of this Plan, the number of Shares
reserved for issuance to any one person pursuant to options shall not exceed
5% of the issued and outstanding shares.
6. ANTI-DILUTION PROVISIONS
6.1 If the number of outstanding Shares shall be increased or decreased as
a result of a stock split, consolidation or recapitalization but not as a
result of the issuance of Shares for additional consideration or by way of
stock dividend, the Corporation may make appropriate adjustments to the
Designated Amount of any Option which has previously been granted under the
Plan, the maximum number of Shares which the Participant may thereafter
purchase under such Option, the Option Price in respect of such Option and
the maximum number of Shares which may be issued under the Plan in accordance
with section 5.1.
6.2 No fractional shares shall be issued upon the exercise of an Option nor
shall any script certificate in lieu therefor be issuable at any time.
Accordingly, if as a result of any adjustment under section 6.1 a Participant
would otherwise have become entitled to a fractional share upon the exercise
of an Option, he shall have the right to purchase only the next lower whole
number of shares and no payment or other adjustment will be made with respect
to the fractional interests so disregarded.
7. LOANS TO PARTICIPANTS
7.1 Subject to applicable law and applicable rules of any stock exchange in
Canada upon which the Shares are listed, the Corporation may in its sole
discretion arrange for the Corporation or any subsidiary to make loans or
provide guarantees or other support arrangements for loans by financial
institutions to assist Participants to purchase Shares upon the exercise of
the Options so granted or to assist the Participants to pay any income tax
eligible upon exercise of the Options.
<PAGE>
1994 Stock Option Plan Page 6
Established January 1, 1994
Such loans may be secured or unsecured, and shall bear interest at such
rates, if any, and be on such other terms as may be determined by the
Corporation.
8. ACCOUNTS AND STATEMENTS
8.1 The Corporation shall maintain records of the details of each Option
granted to each Participant under the Plan, including the Date of Grant,
Designated Amount and the Option Price of each Option, the number of Shares
in respect of which the Option has been exercised and the maximum number of
Shares which the Participant may still purchase under the Option at any given
time. Upon request therefor from a Participant and at such other times as
the Corporation shall determine, the Corporation shall furnish the
Participant with a statement setting forth the details of his Options. Such
statement shall be deemed to have been accepted by the Participant as correct
unless written notice to the contrary is given to the Corporation within 30
days after such statement is given to the Participant.
9. REORGANIZATION
9.1 In this Article 9, "reorganization" means any (i) capital
reorganization, (ii) merger, (iii) amalgamation, (iv) offer for Shares which
if successful would entitle the offeror to acquire all of the Shares, or (v)
arrangement or other scheme of reorganization.
9.2 In the event of a reorganization or proposed reorganization, the
Corporation, at its option, may, but shall not be obligated to, do any one of
the following:
(a) the Corporation may cancel any Option, upon giving to the
Participant to whom an Option has been granted at least 30 days'
written notice of its intention to cancel such Option, and during
such period of notice, the Option, to the extent that it has not
been exercised, may be exercised by the Participant up to the
Designated Amount of Shares which may be purchased under the
Option, without regard to the limitations contained in subsection
4.1(a), and on the expiry of such period of notice, the
unexercised portion of the Option shall lapse and be cancelled;
(b) the Corporation or any corporation which is or would be the
successor to the Corporation or which may issue securities in
exchange for Shares upon the reorganization becoming effective
may offer any Participant the opportunity to obtain a new or
replacement option over any securities into which the Shares are
changed or are convertible or exchangeable, on a basis
proportionate to the number of Shares under option (and otherwise
substantially upon the terms of the Options being replaced, or
upon terms no less favourable to the Participant) including but
not limited to the periods during which the Options may be
exercised and expiry dates; in such event, the Participant shall,
if he accepts such offer, be deemed to have released his Option
over Shares and such Option shall be deemed to have lapsed and be
cancelled; or
<PAGE>
1994 Stock Option Plan Page 7
Established January 1, 1994
(c) the Corporation may commute any Option or portion
thereof that is not capable of being exercised, upon giving to the
Participant to whom the Option has been granted notice of its
intention to commute the Option, and after giving such notice, the
Corporation may commute the unexercised portion of any such Option
into cash, other securities or other property, the fair market
value of which is equal to the value of the unexercised portion of
the Option, as determined by the board of directors of the
Corporation, acting reasonably, and upon the commuting of any
Option as provided herein, the unexercised portion of the Option
shall lapse and be cancelled.
9.3 Subsections (a), (b) and (c) of section 9.2 are intended to be
permissive and may be utilized independently or successively in combination
or otherwise, and nothing therein contained shall be construed as limiting or
affecting the ability of the Corporation to deal with Options in any other
matter.
10. NOTICES
10.1 Any payment, notice, statement, certificate or other instrument
required or permitted to be given to a Participant or any person claiming or
deriving any rights through a Participant shall be given by:
(a) personal delivery to the Participant or to the person claiming or
deriving rights through the Participant, as the case may be; or
(b) prepaid mail or delivery to the most recent address which is
maintained for the Participant in the Corporation's personnel records.
10.2 Any payment, notice, statement, certificate or instrument required or
permitted to be given to the Corporation shall be given by mailing it
registered, postage prepaid, or delivering it to the Corporation at its
principal address to the attention of the Corporate Secretary.
10.3 Any payment, notice, statement, certificate or other instrument
referred to in Sections 10.1 and 10.2, if delivered, shall be deemed to have
been given or delivered on the date on which it was delivered or, if mailed,
shall be deemed to have been given or delivered on the date of receipt.
11. GENERAL
11.1 From time to time the Corporation may add to or amend any of the
provisions of the Plan or terminate the Plan; provided however that, subject
to the provisions of Articles 6 and 9, (i) any approvals required under any
applicable law or applicable rules of any stock exchange upon which the Shares
are listed or the NASDAQ are obtained, and (ii) unless a Participant
otherwise agrees, any such addition, amendment or termination shall apply
only in respect of Options granted on or after the date of such addition,
amendment or termination.
<PAGE>
1994 Stock Option Plan Page 8
Established January 1, 1994
11.2 The determination by the Corporation of any question which may arise as
to the interpretation or implementation of the Plan or any of the Options
granted hereunder shall be final and binding on all Eligible Persons,
Participants and other persons claiming or deriving rights through any of
them.
11.3 The Plan shall enure to the benefit of and be binding upon the
Corporation, its successors and assigns. The interest of any Eligible Person
or Participant under the Plan or in any Option shall be not transferable or
alienable by him either by pledge, assignment or in any other manner
whatsoever and, during his lifetime, shall be vested only in him, but shall
thereafter enure to the benefit of and be binding upon the legal personal
representatives of the Eligible Person or the Participant, as the case may be.
11.4 The Corporation's obligation to issue Shares in accordance with the
terms of this Plan and any Options granted hereunder is subject to compliance
with the laws, rules and regulations of all public agencies and authorities
applicable to the issuance and distribution of such Shares and to the rules
of any stock exchange on which any of the Shares may be listed. As a
condition of participating in the Plan, each Eligible Person shall agree to
comply with all such laws, rules and regulations and to furnish to the
Corporation all information and undertakings as may be required to permit
compliance with such laws, rules and regulations.
11.5 Neither an Eligible Person nor a Participant shall not have any rights
as a shareholder in respect of Shares subject to an Option until such Shares
have been paid for in full and issued.
11.6 No Eligible Person, Participant or other person shall have any claim or
right to be granted Options under the Plan, notwithstanding any previous
grant of Options under the Plan. Neither the Plan nor any action taken
thereunder shall interfere with the right of the employer of a Participant to
terminate an Eligible Person's or Participant's employment at any time.
Neither any period of notice nor any payment in lieu thereof, nor combination
thereof, upon termination of employment shall be considered as extending the
period of employment for the purposes of the Plan.
11.7 This Plan and any Options granted hereunder shall be governed by and
construed in accordance with the laws of the Province of Ontario and the laws
of Canada applicable therein.
11.8 This Plan is hereby instituted as of the 1st day of January, 1994.
<PAGE>
EXHIBIT 5.01
Opinion of Fenwick & West
November 21, 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 November 21, 1995 in connection with the registration
under the Securities Act of 1933, as amended, of an aggregate of _______________
shares of your Common Stock, $0.01 par value (the "STOCK"), 1,000,000 shares of
which may be sold by you pursuant to options granted or to be granted by you to
your (or your parents', affiliates' or subsidiaries') employees, officers,
consultants and independent contractors pursuant to your 1988 Employees Stock
Option Plan, as amended (the "OPTION PLAN"), 500,000 shares of which may be sold
by you to your (or your parents' or subsidiaries') employees pursuant to your
1989 Employee Stock Purchase Plan, as amended (the "PURCHASE PLAN") and
__________ shares of which may be sold by you to your (or your parents' or
subsidiaries') employees pursuant to the Delrina Corporation Stock Option Plan
and the Delrina 1994 Stock Option Plan (collectively the "DELRINA PLANS")
assumed by Symantec Corporation in connection with the Combination Agreement
dated July 5, 1995 between you and Delrina Corporation. The Option Plan, the
Purchase Plan and the Delrina Plans are collectively referred to as the "PLANS."
As your counsel, we have examined the proceedings taken by you in
connection with the amendment of the Plans to add the shares being registered
hereby and the assumption of the Delrina Plans to add the shares being
registered hereby.
It is our opinion that the __________ shares of the Stock that may be
issued and sold by you pursuant to the Plans, when issued and sold in the manner
referred to in the Prospectuses contained in the Registration Statement and
associated with the respective Plans, will be legally issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration 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
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Symantec Corporation pertaining to the Symantec Corporation 1988
Employees Stock Option Plan, Symantec Corporation 1989 Employee Stock
Purchase Plan, and Options granted under the (i) Delrina Corporation Stock
Option Plan and (ii) the Delrina Corporation 1994 Stock Option Plan and assumed
by Symantec Corporation 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.
ERNST & YOUNG LLP
San Jose, California
November 21, 1995
<PAGE>
EXHIBIT 23.03
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 dated November 21, 1995, 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 schedule 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 "Interests of
Named Experts and Counsel" in the Form S-8 filing of Symantec Corporation dated
November 21, 1995.
KPMG Peat Marwick LLP
November 21, 1995
Baton Rouge, Louisiana
