<PAGE>
As filed with the Securities and Exchange Commission on December 20, 1996
Registration No. 333-
- ------------------------------------------------------------------------------
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 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
DEREK P. WITTE, ESQ.
SYMANTEC CORPORATION
10201 TORRE AVENUE
CUPERTINO, CALIFORNIA 95014
(408) 253-9600
(Name, address and telephone number of agent for service)
COPIES TO:
Jeffery L. Donovan, Esq.
Fenwick & West LLP
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 (1) Price (1)
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 1,400,000 (2) $14.125 $19,775,000 $5,993
</TABLE>
(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933, as
amended (the "Securities Act"), based on the average of the high and low
prices of the Registrant's Common Stock as reported by the Nasdaq National
Market on December 17, 1996, solely for the purpose of calculating the
amount of the registration fee.
(2) Shares registered pursuant to this Registration Statement that are
available for issuance under the Symantec Corporation Employee Stock
Purchase Plan. Pursuant to Rule 429 promulgated under the Securities Act,
the prospectuses relating to this Registration Statement also relate to
Form S-8 Registration Nos. 33-88694, 33-70558, 33-64507, 33-54396, 33-
44203, 33-37066 and 33-32065. A total of 2,000,000 shares issuable under
the Symantec Corporation Employee Stock Purchase Plan have previously been
registered under the Securities Act.
<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.
As to named experts, Item 5 is inapplicable.
EXPERTS.
The consolidated financial statements of Symantec Corporation appearing
in Symantec Corporation's Annual Report on Form 10-K for the year ended March
31, 1996 have been audited by Ernst & Young LLP, Independent Auditors, to the
extent indicated in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The consolidated financial statements of Delrina Corporation ("Delrina")
included in the Joint Proxy Statement originally filed on August 18, 1995,
and incorporated by reference herein, have been audited by Price Waterhouse,
Independent Auditors, as set forth in their report incorporated by reference
herein. The financial statements of Delrina referred to above are
incorporated by reference herein in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
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<PAGE>
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 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 or 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 its directors and
officers, may be sufficiently broad to permit indemnification of the
Registrant's directors and officers for liabilities arising under the
Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE>
ITEM 8. EXHIBITS.
4.01 Symantec Corporation Employee Stock Purchase Plan.
4.02 The Registrant's Restated Certificate of Incorporation
(incorporated by reference to Annex G filed with the Registrant's
Joint Management Information Circular and Proxy Statement (No. 000-
17781) dated October 17, 1995).
4.03 The Registrant's Bylaws, as currently in effect
(incorporated by reference to Exhibit 3.02 of the Registrant's
Registration Statement on Form S-1 (File No. 33-28655) originally
filed on May 19, 1989, and Amendment No. 1 thereto, filed June 21,
1989, which Registration Statement became effective June 22, 1989).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent Auditors.
23.03 Consent of Price Waterhouse, 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;
(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.
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<PAGE>
(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.
[The remainder of this page has been
intentionally left blank]
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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 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 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 19th day of
December, 1996.
SYMANTEC CORPORATION
By: /s/ Robert R. B. DYKES
------------------------------------
Robert R. B. Dykes
Executive Vice President/World-Wide
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, Jr. President, Chief Executive December 19, 1996
- ---------------------------- 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/ December 19, 1996
- ---------------------------- World-Wide Operations and
Robert R. B. Dykes Chief Financial Officer
CHIEF ACCOUNTING
OFFICER:
/s/ Howard A. Bain III Vice President/Finance and December 19, 1996
- ---------------------------- Chief Accounting Officer
Howard A. Bain III
ADDITIONAL DIRECTORS:
/s/ Carl D. Carman Chairman of the Board December 19, 1996
- ----------------------------
Carl D. Carman
/s/ Charles M. Boesenberg Director December 19, 1996
- ----------------------------
Charles M. Boesenberg
/s/ Walter W. Bregman Director December 19, 1996
- ----------------------------
Walter W. Bregman
/s/ Robert S. Miller Director December 19, 1996
- ----------------------------
Robert S. Miller
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<PAGE>
EXHIBIT INDEX
Document
- --------
4.01 Symantec Corporation Employee Stock Purchase Plan.
4.02 The Registrant's Restated Certificate of Incorporation
(incorporated by reference to Annex G filed with the
Registrant's Joint Management Information Circular and Proxy
Statement (No. 000-17781) dated October 17, 1995).
4.03 The Registrant's Bylaws, as currently in effect
(incorporated by reference to Exhibit 3.02 of the
Registrant's Registration Statement on Form S-1 (File No.
33-28655) originally filed on May 19, 1989, and Amendment
No. 1 thereto filed June 21, 1989, which Registration
Statement became effective June 22, 1989).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent Auditors.
23.03 Consent of Price Waterhouse, Independent Auditors.
24.01 Power of Attorney (see page 6).
<PAGE>
EXHIBIT 4.01
SYMANTEC CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(ADOPTED BY THE BOARD OF DIRECTORS ON OCTOBER 24, 1989)
1. ESTABLISHMENT OF PLAN
Symantec Corporation (the "Company") proposes to grant options for
purchase of the Company's Common Stock to eligible employees of the Company
and Subsidiaries (as hereinafter defined) pursuant to this Employee Stock
Purchase Plan (the "Plan"). For purposes of this Plan, "parent corporation"
and "Subsidiary" (collectively, "Subsidiaries") shall have the same meanings
as "parent corporation" and "subsidiary corporation" in Section 424, of the
Internal Revenue Code of 1986, as amended (the "Code"). The Company intends
that the Plan shall qualify as an "employee stock purchase plan" under
Section 423 of the Code (including any amendments or replacements of such
section), and the Plan shall be so construed. Any term not expressly defined
in the Plan but defined for purposes of Section 423 of the Code shall have
the same definition herein. A total of 3,400,000 shares of Common Stock are
reserved for issuance under the Plan. Such number shall be subject to
adjustments effected in accordance with Section 14 of the Plan.
2. PURPOSES
The purpose of the Plan is to provide employees of the Company and
Subsidiaries designated by the Board of Directors as eligible to participate
in the Plan with a convenient means to acquire an equity interest in the
Company through payroll deductions, to enhance such employees' sense of
participation in the affairs of the Company and Subsidiaries, and to provide
an incentive for continued employment.
3. ADMINISTRATION
The Plan is administered by the Board of Directors of the Company or by a
committee designated by the Board of Directors of the Company (in which event
all references herein to the Board of Directors shall be to the committee).
Subject to the provisions of the Plan and the limitations of Section 423 of
the Code or any successor provision in the Code, all questions of
interpretation or application of the Plan shall be determined by the Board
and its decisions shall be final and binding upon all participants. Members
of the Board shall receive no compensation for their services in connection
with the administration of the Plan, other than standard fees as established
from time to time by the Board of Directors of the Company for services
rendered by Board members serving on Board committees. All expenses incurred
in connection with the administration of the Plan shall be paid by the
Company.
4. ELIGIBILITY
Any employee of the Company or the Subsidiaries is eligible to
participate in an Offering Period (as hereinafter defined) under the Plan
except the following:
<PAGE>
(a) employees who are not employed by the Company or Subsidiaries on the
third business day before the beginning of such Offering Period;
(b) employees who are customarily employed for less than 20 hours per
week;
(c) employees who are customarily employed for less than 5 months in a
calendar year;
(d) employees who, together with any other person whose stock would be
attributed to such employee pursuant to Section 425(d) of the Code, own stock
or hold options to purchase stock or who, as a result of being granted an
option under the Plan with respect to such Offering Period, would own stock
or hold options to purchase stock possessing 5 percent or more of the total
combined voting power or value of all classes of stock of the Company or any
of its Subsidiaries; and
(e) employees who would, by virtue of their participation in such
Offering Period, be participating simultaneously in more than one Offering
Period under the Plan.
5. OFFERING DATES
The Offering Periods of the Plan (the "Offering Period") shall be of 24
months duration commencing January 1 and July 1 of each year and ending on
the second December 31 and June 30, respectively, thereafter. The first day
of each Offering Period is referred to as the "Offering Date." Except as
provided in the next succeeding sentence, each Offering Period shall consist
of four six-month purchase periods (individually, a "Purchase Period") during
which payroll deductions of the participant are accumulated under this Plan.
Each such six-month Purchase Period shall commence on each January 1 and July
1 of an Offering Period and shall end on the next June 30 and December 31,
respectively; provided, however, that the first two Purchase Periods during
the initial Offering Period shall commence on January 1 and October 1,
respectively, and end on September 30 and December 31, respectively. The last
business day of each Purchase Period is hereinafter referred to as the
Purchase Date. The Board of Directors of the Company shall have the power to
change the duration of Offering Periods or Purchase Periods with respect to
future offerings without stockholder approval if such change is announced at
least fifteen (15) days prior to the scheduled beginning of the first
Offering Period or Purchase Period, as the case may be, to be affected.
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<PAGE>
6. PARTICIPATION IN THE PLAN
Eligible employees may become participants in an Offering Period under
the Plan on the first Offering Date after satisfying the eligibility
requirements by delivering to the Company's or Subsidiary's (whichever
employs such employee) treasury department (the "treasury department") not
later than the 3rd business day before such Offering Date (or not later than
the 22nd day of the month before the first Offering Date) unless a later time
for filing the subscription agreement is set by the Board for all eligible
Employees with respect to a given Offering Period a subscription agreement
authorizing payroll deductions. An eligible employee who does not deliver a
subscription agreement to the treasury department by such date after becoming
eligible to participate in such Offering Period under the Plan shall not
participate in that Offering Period or any subsequent Offering Period unless
such employee enrolls in the Plan by filing the subscription agreement with
the treasury department not later than the 3rd business day preceding a
subsequent Offering Date. Once an employee becomes a participant in an
Offering Period, such employee will automatically participate in the Offering
Period commencing immediately following the last day of the prior Offering
Period unless the employee withdraws from the Plan or terminates further
participation in the Offering Period as set forth in Section 11 below. Such
participant is not required to file any additional subscription agreements in
order to continue participation in the Plan. Any participant whose option
expires and who has not withdrawn from the Plan pursuant to Section 11 below
will automatically be re-enrolled in the Plan and granted a new option on the
Offering Date of the next Offering Period. A participant in the Plan may
participate in only one Offering Period at any time.
7. GRANT OF OPTION ON ENROLLMENT
Enrollment by an eligible employee in the Plan with respect to an
Offering Period will constitute the grant (as of the Offering Date) by the
Company to such employee of an option to purchase on each Purchase Date up to
that number of shares of Common Stock of the Company determined by dividing
the amount accumulated in such employee's payroll deduction account during
such Purchase Period by the lower of (i) eighty-five percent (85%) of the
fair market value of a share of the Company's Common Stock on the Offering
Date (the "Entry Price") or (ii) eighty-five percent (85%) of the fair market
value of a share of the Company's Common Stock on the Purchase Date,
provided, however, that the number of shares of the Company's Common Stock
subject to any option granted pursuant to this Plan shall not exceed the
lesser of (a) the maximum number of shares set by the Board pursuant to
Section 10(c) below with respect to all Purchase Periods within the
applicable Offering Period or Purchase Period, or (b) 200% of the number of
shares determined by using 85% of the fair market value of a share of the
Company's Common Stock on the Offering Date as the denominator. Fair market
value of a share of the Company's Common Stock shall be determined as
provided in Section 8 hereof.
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<PAGE>
8. PURCHASE PRICE
The purchase price per share at which a share of Common Stock will be
sold in any Offering Period shall be 85 percent of the lesser of:
(a) The fair market value on the Offering Date; or
(b) The fair market value on the Purchase Date.
For purposes of the Plan, the term "fair market value" on a given date
shall mean the closing price from the previous day's trading of a share of
the Company's Common Stock as reported on the NASDAQ National Market System.
9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS; ISSUANCE OF
SHARES
(a) The purchase price of the shares is accumulated by regular payroll
deductions made during each Purchase Period. The deductions are made as a
percentage of the employee's compensation in one percent increments not less
than 2 percent nor greater than 10 percent. Compensation shall mean all W-2
compensation, including, but not limited to base salary, wages, commissions,
overtime, shift premiums and bonuses, plus draws against commissions;
provided, however, that for purposes of determining a participant's
compensation, any election by such participant to reduce his or her regular
cash remuneration under Sections 125 or 401(k) of the Code shall be treated
as if the participant did not make such election. Payroll deductions shall
commence on the first payday following the Offering Date and shall continue
to the end of the Offering Period unless sooner altered or terminated as
provided in the Plan.
(b) A participant may lower (but not increase) the rate of payroll
deductions during a Purchase Period by filing with the treasury department a
new authorization for payroll deductions, in which case the new rate shall
become effective for the next payroll period commencing more than 15 days
after the treasury department's receipt of the authorization and shall
continue for the remainder of the Offering Period unless changed as described
below. Such change in the rate of payroll deductions may be made at any time
during an Offering Period, but not more than one change may be made effective
during any Purchase Period. A participant may increase or lower the rate of
payroll deductions for any subsequent Purchase Period by filing with the
treasury department a new authorization for payroll deductions not later than
the 15th day of the month before the beginning of such Purchase Period.
(c) All payroll deductions made for a participant are credited to his or
her account under the Plan and are deposited with the general funds of the
Company; no interest accrues on the payroll deductions. All payroll
deductions received or held by the Company may be used by the Company for any
corporate purpose, and the Company shall not be obligated to segregate such
payroll deductions.
(d) On each Purchase Date, so long as the Plan remains in effect and
provided that the participant has not submitted a signed and completed
withdrawal form before that date which notifies the Company that the
participant wishes to withdraw from that Offering Period under the
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<PAGE>
Plan and have all payroll deductions accumulated in the account maintained on
behalf of the participant as of that date returned to the participant, the
Company shall apply the funds then in the participant's account to the
purchase of whole shares of Common Stock reserved under the option granted to
such participant with respect to the Offering Period to the extent that such
option is exercisable on the Purchase Date. The purchase price per share
shall be as specified in Section 8 of the Plan. Any cash remaining in a
participant's account after such purchase of shares shall be refunded to such
participant in cash; provided, however, that any amount remaining in such
participant's account on a Purchase Date which is less than the amount
necessary to purchase a full share of Common Stock of the Company shall be
carried forward, without interest, into the next Purchase Period or Offering
Period, as the case may be. In the event that the Plan has been
oversubscribed, all funds not used to purchase shares on the Purchase Date
shall be returned to the participant. No Common Stock shall be purchased on a
Purchase Date on behalf of any employee whose participation in the Plan has
terminated prior to such Purchase Date.
(e) As promptly as practicable after the Purchase Date, the Company
shall arrange the delivery to each participant, as appropriate, of a
certificate representing the shares purchased upon exercise of his option;
provided that the Board may deliver certificates to a broker or brokers that
hold such certificate in street name for the benefit of each such
participant.
(f) During a participant's lifetime, such participant's option to
purchase shares hereunder is exercisable only by him or her. The participant
will have no interest or voting right in shares covered by his or her option
until such option has been exercised. Shares to be delivered to a participant
under the Plan will be registered in the name of the participant or in the
name of the participant and his or her spouse.
10. LIMITATIONS ON SHARES TO BE PURCHASED
(a) No employee shall be entitled to purchase stock under the Plan at a
rate which, when aggregated with his or her rights to purchase stock under
all other employee stock purchase plans of the Company or any Subsidiary,
exceeds $25,000 in fair market value, determined as of the Offering Date (or
such other limit as may be imposed by the Code) for each calendar year in
which the employee participates in the Plan.
(b) No more than 200% of the number of shares determined by using 85% of
the fair market value of a share of the Company's Common Stock on the
Offering Date as the denominator may be purchased by a participant on any
single Purchase Date.
(c) No employee shall be entitled to purchase more than the Maximum
Share Amount (as defined below) on any single Purchase Date. Not less than
thirty days prior to the commencement of any Purchase Period, the Board may,
in its sole discretion, set a maximum number of shares which may be purchased
by any employee at any single Purchase Date (hereinafter the "Maximum Share
Amount"). In no event shall the Maximum Share Amount exceed the amounts
permitted under Section 10(b) above. If a new Maximum Share Amount is set,
then all participants must be notified of such Maximum Share Amount not less
than fifteen days prior to the commencement of the next Purchase Period. Once
the Maximum Share Amount
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<PAGE>
is set, it shall continue to apply in respect of all succeeding Purchase
Dates and Purchase Periods unless revised by the Board as set forth above.
(d) If the number of shares to be purchased on a Purchase Date by all
employees participating in the Plan exceeds the number of shares then
available for issuance under the Plan, the Company will make a pro rata
allocation of the remaining shares in as uniform a manner as shall be
practicable and as the Board shall determine to be equitable. In such event,
the Company shall give written notice of such reduction of the number of
shares to be purchased under a participant's option to each employee affected
thereby.
(e) Any payroll deductions accumulated in a participant's account which
are not used to purchase stock due to the limitations in this Section 10
shall be returned to the participant as soon as practicable after the end of
the Offering Period.
11. WITHDRAWAL
(a) Each participant may withdraw from an Offering Period under the Plan
by signing and delivering to the treasury department notice on a form
provided for such purpose. Such withdrawal may be elected at any time at
least 15 days prior to the end of an Offering Period.
(b) Upon withdrawal from the Plan, the accumulated payroll deductions
shall be returned to the withdrawn employee and his or her interest in the
Plan shall terminate. In the event an employee voluntarily elects to withdraw
from the Plan, he or she may not resume his or her participation in the Plan
during the same Offering Period, but he or she may participate in any
Offering Period under the Plan which commences on a date subsequent to such
withdrawal by filing a new authorization for payroll deductions in the same
manner as set forth above for initial participation in the Plan.
(c) If the purchase price on the first day of any current Offering
Period in which a participant is enrolled is higher than the purchase price
on the first day of any subsequent Offering Period, the Company will
automatically enroll such participant in the subsequent Offering Period . A
participant does not need to file any forms with the Company to automatically
be enrolled in the subsequent Offering Period.
12. TERMINATION OF EMPLOYMENT
Termination of a participant's employment for any reason, including
retirement or death or the failure of a participant to remain an eligible
employee, terminates his or her participation in the Plan immediately. In
such event, the payroll deductions credited to the participant's account will
be returned to him or her or, in the case of his or her death, to his or her
legal representative. For this purpose, an employee will not be deemed to
have terminated employment or failed to remain in the continuous employ of
the Company in the case of sick leave, military leave, or any other leave of
absence approved by the Board of Directors of the Company; provided that such
leave is for a period of not more than ninety (90) days or reemployment upon
the expiration of such leave is guaranteed by contract or statute.
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13. RETURN OF PAYROLL DEDUCTIONS
In the event an employee's interest in the Plan is terminated by
withdrawal, termination of employment or otherwise, or in the event the Plan
is terminated by the Board, the Company shall promptly deliver to the
employee all payroll deductions credited to his or her account. No interest
shall accrue on the payroll deductions of a participant in the Plan.
14. CAPITAL CHANGES
Subject to any required action by the stockholders of the Company, the
number of shares of Common Stock covered by each option under the Plan which
has not yet been exercised and the number of shares of Common Stock which
have been authorized for issuance under the Plan but have not yet been placed
under option (collectively, the "Reserves"), as well as the price per share
of Common Stock covered by each option under the Plan which has not yet been
exercised, shall be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock resulting from a stock split or
the payment of a stock dividend (but only on the Common Stock) or any other
increase or decrease in the number of shares of Common Stock effected without
receipt of consideration by the Company; provided, however, that conversion
of any convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made by
the Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issue by the Company of
shares of stock of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to an
option.
In the event of the proposed dissolution or liquidation of the Company,
the Offering Period will terminate immediately prior to the consummation of
such proposed action, unless otherwise provided by the Board. The Board may,
in the exercise of its sole discretion in such instances, declare that the
options under the Plan shall terminate as of a date fixed by the Board and
give each participant the right to exercise his or her option as to all of
the optioned stock, including shares which would not otherwise be
exercisable. In the event of a proposed sale of all or substantially all of
the assets of the Company, or the merger of the Company with or into another
corporation, each option under the Plan shall be assumed or an equivalent
option shall be substituted by such successor corporation or a parent or
subsidiary of such successor corporation, unless the Board determines, in the
exercise of its sole discretion and in lieu of such assumption or
substitution, that the participant shall have the right to exercise the
option as to all of the optioned stock. If the Board makes an option
exercisable in lieu of assumption or substitution in the event of a merger or
sale of assets, the Board shall notify the participant that the option shall
be fully exercisable for a period of twenty (20) days from the date of such
notice, and the option will terminate upon the expiration of such period.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the
price per share of Common Stock covered by each outstanding option, in the
event that the Company effects one or more reorganizations,
recapitalizations, rights offerings or other increases or reductions of
shares of its outstanding Common Stock, and in the event of the Company being
consolidated with or merged into any other corporation.
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15. NONASSIGNABILITY
Neither payroll deductions credited to a participant's account nor any
rights with regard to the exercise of an option or to receive shares under
the Plan may be assigned, transferred, pledged or otherwise disposed of in
any way (other than by will, the laws of descent and distribution or as
provided in Section 22 hereof) by the participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be without effect.
16. REPORTS
Individual accounts will be maintained for each participant in the Plan.
Each participant shall receive promptly after the end of each Purchase Period
a report of his account setting forth the total payroll deductions
accumulated, the number of shares purchased, the per share price thereof and
the remaining cash balance, if any, carried forward to the next Purchase
Period or Offering Period, as the case may be.
17. NOTICE OF DISPOSITION
Each participant shall notify the Company if the participant disposes of
any of the shares purchased in any Offering Period pursuant to this Plan if
such disposition occurs within two years from the Offering Date or within six
months from the Purchase Date on which such shares were purchased (the
"Notice Period"). Unless such participant is disposing of any of such shares
during the Notice Period, such participant shall keep the certificates
representing such shares in his or her name (and not in the name of a
nominee) during the Notice Period. The Company may, at any time during the
Notice Period, place a legend or legends on any certificate representing
shares acquired pursuant to the Plan requesting the Company's transfer agent
to notify the Company of any transfer of the shares. The obligation of the
participant to provide such notice shall continue notwithstanding the
placement of any such legend on certificates.
18. NO RIGHTS TO CONTINUED EMPLOYMENT
Neither this Plan nor the grant of any option hereunder shall confer any
right on any employee to remain in the employ of the Company or any
Subsidiary or restrict the right of the Company or any Subsidiary to
terminate such employee's employment.
19. EQUAL RIGHTS AND PRIVILEGES
All eligible employees shall have equal rights and privileges with
respect to the Plan so that the Plan qualifies as an "employee stock purchase
plan" within the meaning of Section 423 or any successor provision of the
Code and the related regulations. Any provision of the Plan which is
inconsistent with Section 423 or any successor provision of the Code shall
without further act or amendment by the Company or the Board be reformed to
comply with the requirements of Section 423. This Section 19 shall take
precedence over all other provisions in the Plan.
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20. NOTICES
All notices or other communications by a participant to the Company under
or in connection with the Plan shall be deemed to have been duly given when
received in the form specified by the Company at the location, or by the
person, designated by the Company for the receipt thereof.
21. STOCKHOLDER APPROVAL OF AMENDMENTS
Any required approval of the stockholders of the Company shall be
solicited substantially in accordance with Section 14(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations promulgated thereunder. Such approval of an amendment shall be
solicited at or prior to the first annual meeting of stockholders held
subsequent to the grant of an option under the Plan as then amended to an
officer or director of the Company. If such stockholder approval is obtained
at a duly held stockholders' meeting, it must be obtained by the affirmative
vote of the holders of a majority of the outstanding shares of the Company,
or if such stockholder approval is obtained by written consent, it must be
obtained by the unanimous written consent of all stockholders of the Company;
provided, however, that approval at a meeting or by written consent may be
obtained by a lesser degree of stockholder approval if the Board determines,
in its discretion after consultation with the Company's legal counsel, that
such lesser degree of stockholder approval will comply with all applicable
laws and will not adversely affect the qualification of the Plan under
Section 423 of the Code or Rule 16b-3 promulgated under the Exchange Act
("Rule 16b-3").
22. DESIGNATION OF BENEFICIARY
(a) A participant may file a written designation of a beneficiary who is
to receive any shares and cash, if any, from the participant's account under
the Plan in the event of such participant's death subsequent to the end of a
Purchase Period but prior to delivery to him of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who
is to receive any cash from the participant's account under the Plan in the
event of such participant's death prior to a Purchase Date.
(b) Such designation of beneficiary may be changed by the participant at
any time by written notice. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the Plan who is living
at the time of such participant's death, the Company shall deliver such
shares or cash to the executor or administrator of the estate of the
participant, or if no such executor or administrator has been appointed (to
the knowledge of the Company), the Company, in its discretion, may deliver
such shares or cash to the spouse or to any one or more dependents or
relatives of the participant, or if no spouse, dependent or relative is known
to the Company, then to such other person as the Company may designate.
23. CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF SHARES
Shares shall not be issued with respect to an option unless the exercise
of such option and the issuance and delivery of such shares pursuant thereto
shall comply with all applicable
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provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Exchange Act, the rules and
regulations promulgated thereunder, and the requirements of any stock
exchange upon which the shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
So long as the purchase of shares on a Purchase Date is exempt from the
operation of Section 16(b) of the Exchange Act by the operation of Rule 16b-6
promulgated under the Exchange Act, shares purchased by a person subject to
the requirements of Section 16(b) of the Exchange Act may not be sold prior
to the expiration of six (6) months from the Purchase Date on which such
shares were purchased or such other date as may be required by Rule 16b-3 (or
any successor rule).
24. APPLICABLE LAW
The Plan shall be governed by the substantive laws (excluding the
conflict of laws rules) of the State of Delaware.
25. AMENDMENT OR TERMINATION OF THE PLAN
This Plan shall be effective January 1, 1990, subject to approval by the
stockholders of the Company within twelve (12) months after the date the Plan
is adopted by the Board of Directors of the Company and the Plan shall
continue until the earlier to occur of termination by the Board, issuance of
all of the shares of Common Stock reserved for issuance under the Plan, or
ten (10) years from the adoption of the Plan by the Board. The Board of
Directors of the Company may at any time amend or terminate the Plan, except
that any such termination cannot affect options previously granted under the
Plan, nor may any amendment make any change in an option previously granted
which would adversely affect the right of any participant, nor may any
amendment be made without approval of the stockholders of the Company
obtained in accordance with Section 21 hereof within 12 months of the
adoption of such amendment (or earlier if required by Section 21) if such
amendment would:
(a) Increase the number of shares that may be issued under the Plan;
(b) Change the designation of the employees (or class of employees)
eligible for participation in the Plan; or
(c) Constitute an amendment for which stockholder approval is required
in order to comply with Rule 16b-3 (or any successor rule) of the Exchange
Act.
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EXHIBIT 5.01
Opinion of Fenwick & West LLP
<PAGE>
December 20, 1996
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 Symantec Corporation
("SYMANTEC") with the Securities and Exchange Commission on or about December
20, 1996 in connection with the registration under the Securities Act of
1933, as amended, of 1,400,000 shares of Symantec's Common Stock, $0.01 par
value (the "STOCK"), subject to issuance by Symantec upon the exercise of
Common Stock purchase rights granted or to be granted by Symantec under the
Symantec Corporation Employee Stock Purchase Plan (the "PURCHASE PLAN").
As Symantec's counsel, we have examined the proceedings taken by
Symantec in connection with the adoption and amendment to date of the
Purchase Plan.
It is our opinion that the 1,400,000 shares of the Stock that may be
issued and sold by Symantec upon exercise of purchase rights granted or to be
granted pursuant to the Purchase Plan, when issued and sold in the manner
referred to in the Prospectus associated with the Registration Statement,
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 LLP
FENWICK & WEST LLP
<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 Symantec Corporation
Employee Stock Purchase Plan and to the incorporation by reference therein of
our report dated April 24, 1996, 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, 1996, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
San Jose, California
December 17, 1996
<PAGE>
EXHIBIT 23.03
Consent of Price Waterhouse
<PAGE>
December 17, 1996
The Board of Directors
Symantec Corporation:
We consent to incorporation by reference, in the two registration
statements on Form S-8 filed on or about December 20, 1996 by Symantec
Corporation of our report dated August 8, 1995, relating to the balance sheet
of Delrina Corporation as of June 30, 1995, and the related consolidated
statements of operations, retained earnings (deficit) and changes in
financial position for the years ended June 30, 1995 and 1994 which appears
in the Fiscal 1996 Form 10-K of Symantec Corporation.
/s/ PRICE WATERHOUSE
Chartered Accountants
