<PAGE>
As filed with the Securities and Exchange Commission on October 31, 1997
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 1996 EQUITY INCENTIVE 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>
- ---------------------------------------------------------------------------------------------------------
Amount Proposed Maximum Proposed Maximum
Title of Securities to be to be Offering Price Aggregate Offering Amount of
Registered Registered Per Share Price Registration Fee
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 2,648,708(1) $18.9375(2) $50,159,907.75(2) $15,199.97
par value
</TABLE>
(1) Represents additional shares available for issuance under the Symantec
Corporation 1996 Equity Incentive Plan. Pursuant to Rule 429 promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), the
prospectuses relating to this Registration Statement also relate to the
shares registered under Form S-8 Registration Statement Nos. 333-07223 and
333-18355. A total of 4,077,946 shares issuable under the Symantec
Corporation 1996 Equity Incentive Plan have previously been registered under
the Securities Act.
(2) Estimated pursuant to Rule 457(c) of 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 October 28, 1997, solely for the purpose of
calculating the amount of the registration fee.
<PAGE>
INCORPORATION OF PREVIOUS REGISTRATION STATEMENT.
Pursuant to General Instruction E of Form S-8, this Registration
Statement is filed solely to register an additional 2,648,708 shares under
the Symantec Corporation 1996 Equity Incentive Plan (the "Plan"), which
increase in shares was approved by the stockholders at Symantec Corporation's
Annual Meeting of Stockholders on July 23, 1997. Pursuant to Instruction E,
the contents of the Registrant's Form S-8 Registration Statement Nos.
333-07223 and 333-18355 are hereby incorporated by reference.
2
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual and corporation
whose signature appears below constitutes and appoints Howard A. Bain III,
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 30th day of October, 1997.
SYMANTEC CORPORATION
By: /s/ Howard A. Bain III
-----------------------------------------
Howard A. Bain III
Vice President World-Wide Operations,
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 October 30, 1997
- -------------------------- Officer and Director
Gordon E. Eubanks, Jr.
3
<PAGE>
SIGNATURE TITLE DATE
- ----------------- ------------- ------------
CHIEF FINANCIAL OFFICER:
/s/ Howard A. Bain III Vice President of October 30, 1997
- -------------------------- World-Wide Operations and
Howard A. Bain III Chief Financial Officer
CHIEF ACCOUNTING
OFFICER:
/s/ Ron Kisling Vice President Controller and October 30, 1997
- -------------------------- Chief Accounting Officer
Ron Kisling
ADDITIONAL DIRECTORS:
/s/ Carl D. Carman Chairman of the Board October 30, 1997
- --------------------------
Carl D. Carman
/s/ Charles M. Boesenberg Director October 30, 1997
- --------------------------
Charles M. Boesenberg
/s/ Walter W. Bregman Director October 30, 1997
- --------------------------
Walter W. Bregman
/s/ Robert S. Miller Director October 30, 1997
- --------------------------
Robert S. Miller
/s/ Robert R.B. Dykes Director October 30, 1997
- --------------------------
Robert R.B. Dykes
Director October __, 1997
- --------------------------
Tania Amochaev
4
<PAGE>
EXHIBIT INDEX
DOCUMENT
4.01 Symantec Corporation 1996 Equity Incentive Plan, as amended.
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, Chartered Accountants.
24.01 Power of Attorney (see page 3).
<PAGE>
EXHIBIT 4.01
SYMANTEC CORPORATION
1996 EQUITY INCENTIVE PLAN
1. PURPOSE. The purpose of this Plan is to provide incentives to attract,
retain and motivate eligible persons whose present and potential contributions
are important to the success of the Company, its Parent, Subsidiaries and
Affiliates, by offering them an opportunity to participate in the Company's
future performance through awards of Options. Capitalized terms not defined in
the text are defined in Section 21.
2. SHARES SUBJECT TO THE PLAN.
2.1 NUMBER OF SHARES AVAILABLE. Subject to Sections 2.2 and 16, the total
number of Shares reserved and available for grant and issuance pursuant to this
Plan will be 6,726,654 shares. Subject to Sections 2.2 and 16, Shares that:
(a) are subject to issuance upon exercise of an Option but cease to be subject
to such Option for any reason other than exercise of such Option; (b) are
subject to an Award granted hereunder but are forfeited or are repurchased by
the Company at the original issue price; or (c) are subject to an Award that
otherwise terminates without Shares being issued; will again be available for
grant and issuance in connection with future Awards under this Plan. At all
times the Company shall reserve and keep available a sufficient number of
Shares as shall be required to satisfy the requirements of all outstanding
Options granted under this Plan and all other outstanding but unvested Awards
granted under this Plan.
2.2 ADJUSTMENT OF SHARES. In the event that the number of outstanding Shares
is changed by a stock dividend, recapitalization, stock split, reverse stock
split, subdivision, combination, reclassification or similar change in the
capital structure of the Company without consideration, then (a) the number of
Shares reserved for issuance under this Plan, (b) the Exercise Prices of and
number of Shares subject to outstanding Options, and (c) the number of Shares
subject to other outstanding Awards will be proportionately adjusted, subject
to any required action by the Board or the stockholders of the Company and
compliance with applicable securities laws; PROVIDED, HOWEVER, that fractions
of a Share will not be issued but will either be replaced by a cash payment
equal to the Fair Market Value of such fraction of a Share or will be rounded
up to the nearest whole Share, as determined by the Committee.
3. ELIGIBILITY. ISOs (as defined in Section 5 below) may be granted only to
employees (including officers and directors who are also employees) of the
Company or of a Parent or Subsidiary of the Company. All other Awards may be
granted to employees, officers, directors, consultants, independent contractors
and advisors of the Company or any Parent, Subsidiary or Affiliate of the
Company; provided such consultants, contractors and advisors render bona fide
services not in connection with the offer and sale of securities in a
capital-raising transaction. No person will be eligible to receive more than
500,000 Shares in any calendar year under this Plan pursuant to the grant of
Awards hereunder, other than new employees of the Company or of a Parent,
Subsidiary or Affiliate of the Company (including new employees who are also
officers
<PAGE>
and directors of the Company or any Parent, Subsidiary or Affiliate of the
Company) who are eligible to receive up to a maximum of 800,000 Shares in the
calendar year in which they commence their employment. A person may be
granted more than one Award under this Plan.
4. ADMINISTRATION.
4.1 COMMITTEE AUTHORITY. This Plan will be administered by the Committee or
by the Board acting as the Committee. Subject to the general purposes, terms
and conditions of this Plan, and to the direction of the Board, the Committee
will have full power to implement and carry out this Plan. Without limitation,
the Committee will have the authority to:
(a) construe and interpret this Plan, any Award Agreement and any other
agreement or document executed pursuant to this Plan;
(b) prescribe, amend and rescind rules and regulations relating to this
Plan;
(c) select persons to receive Awards;
(d) determine the form and terms of Awards;
(e) determine the number of Shares or other consideration subject to
Awards;
(f) determine whether Awards will be granted singly, in combination with,
in tandem with, in replacement of, or as alternatives to, other Awards under
this Plan or any other incentive or compensation plan of the Company or any
Parent, Subsidiary or Affiliate of the Company;
(g) grant waivers of Plan or Award conditions;
(h) determine the vesting, exercisability and payment of Awards;
(i) correct any defect, supply any omission or reconcile any
inconsistency in this Plan, any Award or any Award Agreement;
(j) amend any option agreements executed in connection with this Plan;
(k) determine whether an Award has been earned; and
(l) make all other determinations necessary or advisable for the
administration of this Plan.
4.2 COMMITTEE DISCRETION. Any determination made by the Committee with
respect to any Award will be made in its sole discretion at the time of grant
of the Award or, unless in contravention of any express term of this Plan or
Award, at any later time, and such determination will be final and binding on
the Company and on all persons having an interest in any Award under this Plan.
The Committee may delegate to one or more officers of the Company the authority
to grant an Award under this Plan to Participants who are not Insiders of the
Company.
2
<PAGE>
4.3 EXCHANGE ACT REQUIREMENTS. If two or more members of the Board are
Outside Directors, the Committee will be comprised of at least two (2) members
of the Board, all of whom are Outside Directors and Disinterested Persons.
During all times that the Company is subject to Section 16 of the Exchange Act,
the Company will take appropriate steps to comply with the disinterested
administration requirements of Section 16(b) of the Exchange Act, which will
consist of the appointment by the Board of a Committee consisting of not less
than two (2) members of the Board, each of whom is a Disinterested Person.
5. OPTIONS. The Committee may grant Options to eligible persons and will
determine whether such Options will be Incentive Stock Options within the
meaning of the Code ("ISOS") or Nonqualified Stock Options ("NQSOS"), the
number of Shares subject to the Option, the Exercise Price of the Option, the
period during which the Option may be exercised, and all other terms and
conditions of the Option, subject to the following:
5.1 FORM OF OPTION GRANT. Each Option granted under this Plan will be
evidenced by an Award Agreement which will expressly identify the Option as an
ISO or an NQSO ("Stock Option Agreement"), and will be in such form and contain
such provisions (which need not be the same for each Participant) as the
Committee may from time to time approve, and which will comply with and be
subject to the terms and conditions of this Plan.
5.2 DATE OF GRANT. The date of grant of an Option will be the date on which
the Committee makes the determination to grant such Option, unless otherwise
specified by the Committee. The Stock Option Agreement and a copy of this Plan
will be delivered to the Participant within a reasonable time after the
granting of the Option.
5.3 EXERCISE PERIOD. Options will be exercisable within the times or upon
the events determined by the Committee as set forth in the Stock Option
Agreement governing such Option; PROVIDED, HOWEVER, that no Option will be
exercisable after the expiration of ten (10) years from the date the Option is
granted; and provided further that no ISO granted to a person who directly or
by attribution owns more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company or of any Parent or Subsidiary of
the Company ("TEN PERCENT STOCKHOLDER") will be exercisable after the
expiration of five (5) years from the date the ISO is granted. The Committee
also may provide for the exercise of Options to become exercisable at one time
or from time to time, periodically or otherwise, in such number of Shares or
percentage of Shares as the Committee determines.
5.4 EXERCISE PRICE. The Exercise Price of an Option will be determined by
the Committee when the Option is granted and may be not less than 100% of the
Fair Market Value of the Shares on the date of grant; provided that the
Exercise Price of any ISO granted to a Ten Percent Stockholder will not be less
than 110% of the Fair Market Value of the Shares on the date of grant. Payment
for the Shares purchased may be made in accordance with Section 6 of this Plan.
5.5 METHOD OF EXERCISE. Options may be exercised only by delivery to the
Company of a written stock option exercise agreement (the "EXERCISE AGREEMENT")
in a form approved by the Committee (which need not be the same for each
Participant), stating the number of Shares being purchased, the restrictions
imposed on the Shares purchased under such Exercise Agreement, if
3
<PAGE>
any, and such representations and agreements regarding Participant's
investment intent and access to information and other matters, if any, as may
be required or desirable by the Company to comply with applicable securities
laws, together with payment in full of the Exercise Price for the number of
Shares being purchased.
5.6 TERMINATION. Notwithstanding the exercise periods set forth in the Stock
Option Agreement, exercise of an Option will always be subject to the
following:
(a) If the Participant is Terminated for any reason except death or
Disability, then the Participant may exercise such Participant's Options only
to the extent that such Options would have been exercisable upon the
Termination Date no later than three (3) months after the Termination Date (or
such shorter or longer time period not exceeding five (5) years as may be
determined by the Committee, with any exercise beyond three (3) months after
the Termination Date deemed to be an NQSO), but in any event, no later than the
expiration date of the Options.
(b) If the Participant is Terminated because of Participant's death or
Disability (or the Participant dies within three (3) months after a Termination
other than because of Participant's death or disability), then Participant's
Options may be exercised only to the extent that such Options would have been
exercisable by Participant on the Termination Date and must be exercised by
Participant (or Participant's legal representative or authorized assignee) no
later than twelve (12) months after the Termination Date (or such shorter or
longer time period not exceeding five (5) years as may be determined by the
Committee, with any such exercise beyond (a) three (3) months after the
Termination Date when the Termination is for any reason other than the
Participant's death or Disability, or (b) twelve (12) months after the
Termination Date when the Termination is for Participant's death or Disability,
deemed to be an NQSO), but in any event no later than the expiration date of
the Options.
5.7 LIMITATIONS ON EXERCISE. The Committee may specify a reasonable minimum
number of Shares that may be purchased on any exercise of an Option, provided
that such minimum number will not prevent Participant from exercising the
Option for the full number of Shares for which it is then exercisable.
5.8 LIMITATIONS ON ISOS. The aggregate Fair Market Value (determined as of
the date of grant) of Shares with respect to which ISOs are exercisable for the
first time by a Participant during any calendar year (under this Plan or under
any other incentive stock option plan of the Company or any Affiliate, Parent
or Subsidiary of the Company) will not exceed $100,000. If the Fair Market
Value of Shares on the date of grant with respect to which ISOs are exercisable
for the first time by a Participant during any calendar year exceeds $100,000,
then the Options for the first $100,000 worth of Shares to become exercisable
in such calendar year will be ISOs and the Options for the amount in excess of
$100,000 that become exercisable in that calendar year will be NQSOs. In the
event that the Code or the regulations promulgated thereunder are amended after
the Effective Date of this Plan to provide for a different limit on the Fair
Market Value of Shares permitted to be subject to ISOs, such different limit
will be automatically incorporated herein and will apply to any Options granted
after the effective date of such amendment.
5.9 MODIFICATION, EXTENSION OR RENEWAL. The Committee may modify, extend or
renew outstanding Options and authorize the grant of new Options in
substitution therefor, provided
4
<PAGE>
that any such action may not, without the written consent of a Participant,
impair any of such Participant's rights under any Option previously granted.
Any outstanding ISO that is modified, extended, renewed or otherwise altered
will be treated in accordance with Section 424(h) of the Code.
5.10 NO DISQUALIFICATION. Notwithstanding any other provision in this Plan,
no term of this Plan relating to ISOs will be interpreted, amended or altered,
nor will any discretion or authority granted under this Plan be exercised, so
as to disqualify this Plan under Section 422 of the Code or, without the
consent of the Participant affected, to disqualify any ISO under Section 422 of
the Code.
6. PAYMENT FOR SHARE PURCHASES.
6.1 PAYMENT. Payment for Shares purchased pursuant to this Plan may be made
in cash (by check) or, where expressly approved for the Participant by the
Committee and where permitted by law:
(a) by cancellation of indebtedness of the Company to the Participant;
(b) by surrender of shares that either: (1) have been owned by
Participant for more than six (6) months and have been paid for within the
meaning of SEC Rule 144 (and, if such shares were purchased from the Company by
use of a promissory note, such note has been fully paid with respect to such
shares); or (2) were obtained by Participant in the public market;
(c) by tender of a full recourse promissory note having such terms as may
be approved by the Committee and bearing interest at a rate sufficient to avoid
imputation of income under Sections 483 and 1274 of the Code; PROVIDED,
HOWEVER, that Participants who are not employees or directors of the Company
will not be entitled to purchase Shares with a promissory note unless the note
is adequately secured by collateral other than the Shares; PROVIDED, FURTHER,
that the portion of the Purchase Price equal to the par value of the Shares, if
any, must be paid in cash;
(d) by waiver of compensation due or accrued to the Participant for
services rendered; PROVIDED, FURTHER, that the portion of the Purchase Price
equal to the par value of the Shares, if any, must be paid in cash;
(e) with respect only to purchases upon exercise of an Option, and
provided that a public market for the Company's stock exists:
(1) through a "same day sale" commitment from the Participant and a
broker-dealer that is a member of the National Association of Securities
Dealers (an "NASD DEALER") whereby the Participant irrevocably elects to
exercise the Option and to sell a portion of the Shares so purchased to pay for
the Exercise Price, and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the Exercise Price directly to the Company;
or
(2) through a "margin" commitment from the Participant and an NASD Dealer
whereby the Participant irrevocably elects to exercise the Option and to pledge
the Shares so
5
<PAGE>
purchased to the NASD Dealer in a margin account as security for a loan from
the NASD Dealer in the amount of the Exercise Price, and whereby the NASD
Dealer irrevocably commits upon receipt of such Shares to forward the
Exercise Price directly to the Company; or
(f) by any combination of the foregoing.
6.2 LOAN GUARANTEES. The Committee may help the Participant pay for Shares
purchased under this Plan by authorizing a guarantee by the Company of a
third-party loan to the Participant, provided the Company has full recourse to
the Participant relative to the guarantee.
7. WITHHOLDING TAXES.
7.1 WITHHOLDING GENERALLY. Whenever Shares are to be issued in satisfaction
of Awards granted under this Plan, the Company may require the Participant to
remit to the Company an amount sufficient to satisfy federal, state and local
withholding tax requirements prior to the delivery of any certificate or
certificates for such Shares. Whenever, under this Plan, payments in
satisfaction of Awards are to be made in cash, such payment will be net of an
amount sufficient to satisfy federal, state, and local withholding tax
requirements.
7.2 STOCK WITHHOLDING. When, under applicable tax laws, a Participant incurs
tax liability in connection with the exercise or vesting of any Award that is
subject to tax withholding and the Participant is obligated to pay the Company
the amount required to be withheld, the Committee may allow the Participant to
satisfy the minimum withholding tax obligation by electing to have the Company
withhold from the Shares to be issued that number of Shares having a Fair
Market Value equal to the minimum amount required to be withheld, determined on
the date that the amount of tax to be withheld is to be determined (the "Tax
Date"). All elections by a Participant to have Shares withheld for this purpose
will be made in writing in a form acceptable to the Committee and will be
subject to the following restrictions:
(a) the election must be made on or prior to the applicable Tax Date;
(b) once made, then except as provided below, the election will be
irrevocable as to the particular Shares as to which the election is made;
(c) all elections will be subject to the consent or disapproval of the
Committee;
(d) if the Participant is an Insider and if the Company is subject to
Section 16(b) of the Exchange Act: (1) the election may not be made within six
(6) months of the date of grant of the Award, except as otherwise permitted by
SEC Rule 16b-3(e) under the Exchange Act, and (2) either (A) the election to
use stock withholding must be irrevocably made at least six (6) months prior to
the Tax Date (although such election may be revoked at any time at least six
(6) months prior to the Tax Date) or (B) the exercise of the Option or election
to use stock withholding must be made in the ten (10) day period beginning on
the third day following the release of the Company's quarterly or annual
summary statement of sales or earnings; and
(e) in the event that the Tax Date is deferred until six (6) months after
the delivery of Shares under Section 83(b) of the Code, the Participant will
receive the full number of Shares
6
<PAGE>
with respect to which the exercise occurs, but such Participant will be
unconditionally obligated to tender back to the Company the proper number of
Shares on the Tax Date.
8. PRIVILEGES OF STOCK OWNERSHIP.
8.1 VOTING AND DIVIDENDS. No Participant will have any of the rights of a
stockholder with respect to any Shares until the Shares are issued to the
Participant. After Shares are issued to the Participant, the Participant will
be a stockholder and have all the rights of a stockholder with respect to such
Shares, including the right to vote and receive all dividends or other
distributions made or paid with respect to such Shares; PROVIDED, that if such
Shares are Restricted Stock, then any new, additional or different securities
the Participant may become entitled to receive with respect to such Shares by
virtue of a stock dividend, stock split or any other change in the corporate or
capital structure of the Company will be subject to the same restrictions as
the Restricted Stock; PROVIDED, FURTHER, that the Participant will have no
right to retain such stock dividends or stock distributions with respect to
Shares that are repurchased at the Participant's original Purchase Price
pursuant to Section 10.
8.2 FINANCIAL STATEMENTS. The Company will provide financial statements to
each Participant prior to such Participant's purchase of Shares under this
Plan, and to each Participant annually during the period such Participant has
Awards outstanding; provided, however, the Company will not be required to
provide such financial statements to Participants whose services in connection
with the Company assure them access to equivalent information.
9. TRANSFERABILITY. Awards granted under this Plan, and any interest
therein, will not be transferable or assignable by Participant, and may not be
made subject to execution, attachment or similar process, otherwise than by
will or by the laws of descent and distribution or as consistent with the
specific Plan and Award Agreement provisions relating thereto. During the
lifetime of the Participant an Award will be exercisable only by the
Participant, and any elections with respect to an Award, may be made only by
the Participant.
10. RESTRICTIONS ON SHARES. At the discretion of the Committee, the Company
may reserve to itself and/or its assignee(s) in the Award Agreement a right to
repurchase a portion of or all Shares that are not "Vested" (as defined in the
Award Agreement) held by a Participant following such Participant's Termination
at any time within ninety (90) days after the later of Participant's
Termination Date and the date Participant purchases Shares under this Plan, for
cash and/or cancellation of purchase money indebtedness, at the Participant's
original Purchase Price.
11. CERTIFICATES. All certificates for Shares or other securities delivered
under this Plan will be subject to such stock transfer orders, legends and
other restrictions as the Committee may deem necessary or advisable, including
restrictions under any applicable federal, state or foreign securities law, or
any rules, regulations and other requirements of the SEC or any stock exchange
or automated quotation system upon which the Shares may be listed or quoted.
12. ESCROW; PLEDGE OF SHARES. To enforce any restrictions on a Participant's
Shares, the Committee may require the Participant to deposit all certificates
representing Shares, together with stock powers or other instruments of
transfer approved by the Committee, appropriately endorsed in blank, with the
Company or an agent designated by the Company to hold in escrow
7
<PAGE>
until such restrictions have lapsed or terminated, and the Committee may
cause a legend or legends referencing such restrictions to be placed on the
certificates. Any Participant who is permitted to execute a promissory note
as partial or full consideration for the purchase of Shares under this Plan
will be required to pledge and deposit with the Company all or part of the
Shares so purchased as collateral to secure the payment of Participant's
obligation to the Company under the promissory note; PROVIDED, HOWEVER, that
the Committee may require or accept other or additional forms of collateral
to secure the payment of such obligation and, in any event, the Company will
have full recourse against the Participant under the promissory note
notwithstanding any pledge of the Participant's Shares or other collateral.
In connection with any pledge of the Shares, Participant will be required to
execute and deliver a written pledge agreement in such form as the Committee
will from time to time approve. The Shares purchased with the promissory note
may be released from the pledge on a PRO RATA basis as the promissory note is
paid.
13. EXCHANGE AND BUYOUT OF AWARDS. The Committee may, at any time or from
time to time, authorize the Company, with the consent of the respective
Participants, to issue new Awards in exchange for the surrender and
cancellation of any or all outstanding Awards. The Committee may at any time
buy from a Participant an Award previously granted with payment in cash, Shares
(including Restricted Stock) or other consideration, based on such terms and
conditions as the Committee and the Participant may agree.
14. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. An Award will not be
effective unless such Award is in compliance with all applicable federal and
state securities laws, rules and regulations of any governmental body, and the
requirements of any stock exchange or automated quotation system upon which the
Shares may then be listed or quoted, as they are in effect on the date of grant
of the Award and also on the date of exercise or other issuance.
Notwithstanding any other provision in this Plan, the Company will have no
obligation to issue or deliver certificates for Shares under this Plan prior
to: (a) obtaining any approvals from governmental agencies that the Company
determines are necessary or advisable; and/or (b) completion of any
registration or other qualification of such Shares under any state or federal
law or ruling of any governmental body that the Company determines to be
necessary or advisable. The Company will be under no obligation to register the
Shares with the SEC or to effect compliance with the registration,
qualification or listing requirements of any state securities laws, stock
exchange or automated quotation system, and the Company will have no liability
for any inability or failure to do so.
15. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any Award granted under
this Plan will confer or be deemed to confer on any Participant any right to
continue in the employ of, or to continue any other relationship with, the
Company or any Parent, Subsidiary or Affiliate of the Company or limit in any
way the right of the Company or any Parent, Subsidiary or Affiliate of the
Company to terminate Participant's employment or other relationship at any
time, with or without cause.
16. CORPORATE TRANSACTIONS.
16.1 ASSUMPTION OR REPLACEMENT OF AWARDS BY SUCCESSOR. In the event of (a) a
dissolution or liquidation of the Company, (b) a merger or consolidation in
which the Company is not the
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surviving corporation (OTHER THAN a merger or consolidation with a
wholly-owned subsidiary, a reincorporation of the Company in a different
jurisdiction, or other transaction in which there is no substantial change in
the stockholders of the Company or their relative stock holdings and the
Awards granted under this Plan are assumed, converted or replaced by the
successor corporation, which assumption will be binding on all Participants),
(c) a merger in which the Company is the surviving corporation but after
which the stockholders of the Company (other than any stockholder which
merges (or which owns or controls another corporation which merges) with the
Company in such merger) cease to own their shares or other equity interests
in the Company, (d) the sale of substantially all of the assets of the
Company, or (e) any other transaction which qualifies as a "corporate
transaction" under Section 424(a) of the Code wherein the stockholders of the
Company give up all of their equity interest in the Company (EXCEPT for the
acquisition, sale or transfer of all or substantially all of the outstanding
shares of the Company from or by the stockholders of the Company), any or all
outstanding Awards may be assumed, converted or replaced by the successor
corporation (if any), which assumption, conversion or replacement will be
binding on all Participants. In the alternative, the successor corporation
may substitute equivalent Awards or provide substantially similar
consideration to Participants as was provided to stockholders (after taking
into account the existing provisions of the Awards). The successor
corporation may also issue, in place of outstanding Shares of the Company
held by the Participant, substantially similar shares or other property
subject to repurchase restrictions no less favorable to the Participant. In
the event such successor corporation (if any) refuses to assume or substitute
Options, as provided above, pursuant to a transaction described in this
Subsection 16.1, such Options will expire on such transaction at such time
and on such conditions as the Board will determine.
16.2 OTHER TREATMENT OF AWARDS. Subject to any greater rights granted to
Participants under the foregoing provisions of this Section 16, in the event of
the occurrence of any transaction described in Section 16.1, any outstanding
Awards will be treated as provided in the applicable agreement or plan of
merger, consolidation, dissolution, liquidation, sale of assets or other
"corporate transaction."
16.3 ASSUMPTION OF AWARDS BY THE COMPANY. The Company, from time to time,
also may substitute or assume outstanding awards granted by another company,
whether in connection with an acquisition of such other company or otherwise,
by either; (a) granting an Award under this Plan in substitution of such other
company's award; or (b) assuming such award as if it had been granted under
this Plan if the terms of such assumed award could be applied to an Award
granted under this Plan. Such substitution or assumption will be permissible if
the holder of the substituted or assumed award would have been eligible to be
granted an Award under this Plan if the other company had applied the rules of
this Plan to such grant. In the event the Company assumes an award granted by
another company, the terms and conditions of such award will remain unchanged
(EXCEPT that the exercise price and the number and nature of Shares issuable
upon exercise of any such option will be adjusted appropriately pursuant to
Section 424(a) of the Code). In the event the Company elects to grant a new
Option rather than assuming an existing option, such new Option may be granted
with a similarly adjusted Exercise Price.
17. ADOPTION AND STOCKHOLDER APPROVAL. This Plan will become effective on
the date that it is adopted by the Board (the "EFFECTIVE DATE"). This Plan
shall be approved by the stockholders of the Company (excluding Shares issued
pursuant to this Plan), consistent with applicable laws,
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within twelve (12) months before or after the Effective Date. Upon the
Effective Date, the Board may grant Awards pursuant to this Plan; PROVIDED,
HOWEVER, that: (a) no Option may be exercised prior to initial stockholder
approval of this Plan; (b) no Option granted pursuant to an increase in the
number of Shares subject to this Plan approved by the Board will be exercised
prior to the time such increase has been approved by the stockholders of the
Company; and (c) in the event that stockholder approval of this Plan or any
amendment increasing the number of Shares subject to this Plan is not
obtained, all Awards granted hereunder will be canceled, any Shares issued
pursuant to any Award will be canceled, and any purchase of Shares hereunder
will be rescinded. So long as the Company is subject to Section 16(b) of the
Exchange Act, the Company will comply with the requirements of Rule 16b-3 (or
its successor), as amended, with respect to stockholder approval.
18. TERM OF PLAN. Unless earlier terminated as provided herein, this Plan
will terminate ten (10) years from the date this Plan is adopted by the Board
or, if earlier, the date of stockholder approval.
19. AMENDMENT OR TERMINATION OF PLAN. The Board may at any time terminate or
amend this Plan in any respect, including without limitation amendment of any
form of Award Agreement or instrument to be executed pursuant to this Plan;
PROVIDED, HOWEVER, that the Board will not, without the approval of the
stockholders of the Company, amend this Plan in any manner that requires such
stockholder approval pursuant to the Code or the regulations promulgated
thereunder as such provisions apply to ISO plans or (if the Company is subject
to the Exchange Act or Section 16(b) of the Exchange Act) pursuant to the
Exchange Act or Rule 16b-3 (or its successor), as amended, thereunder,
respectively.
20. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of this Plan by the
Board, the submission of this Plan to the stockholders of the Company for
approval, nor any provision of this Plan will be construed as creating any
limitations on the power of the Board to adopt such additional compensation
arrangements as it may deem desirable, including, without limitation, the
granting of stock options and bonuses otherwise than under this Plan, and such
arrangements may be either generally applicable or applicable only in specific
cases.
21. DEFINITIONS. As used in this Plan, the following terms will have the
following meanings:
"AFFILIATE" means any corporation that directly, or indirectly through one
or more intermediaries, controls or is controlled by, or is under common
control with, another corporation, where "control" (including the terms
"controlled by" and "under common control with") means the possession, direct
or indirect, of the power to cause the direction of the management and policies
of the corporation, whether through the ownership of voting securities, by
contract or otherwise.
"AWARD" means any award under this Plan, including any Option.
"AWARD AGREEMENT" means, with respect to each Award, the signed written
agreement between the Company and the Participant setting forth the terms and
conditions of the Award.
"BOARD" means the Board of Directors of the Company.
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"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the committee appointed by the Board to administer this
Plan, or if no such committee is appointed, the Board.
"COMPANY" means Symantec Corporation, a corporation organized under the
laws of the State of Delaware, or any successor corporation.
"DISABILITY" means a disability, whether temporary or permanent, partial
or total, within the meaning of Section 22(e)(3) of the Code, as determined by
the Committee.
"DISINTERESTED PERSON" means a director who has not, during the period
that person is a member of the Committee and for one year prior to commencing
service as a member of the Committee, been granted or awarded equity securities
pursuant to this Plan or any other plan of the Company or any Parent,
Subsidiary or Affiliate of the Company, except in accordance with the
requirements set forth in Rule 16b-3(c)(2)(i) (and any successor regulation
thereto) as promulgated by the SEC under Section 16(b) of the Exchange Act, as
such rule is amended from time to time and as interpreted by the SEC.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXERCISE PRICE" means the price at which a holder of an Option may
purchase the Shares issuable upon exercise of the Option.
"FAIR MARKET VALUE" means, as of any date, the value of a share of the
Company's Common Stock determined as follows:
(a) if such Common Stock is then quoted on the Nasdaq National Market,
its closing price on the Nasdaq National Market on the last trading day prior
to the date of determination as reported in THE WALL STREET JOURNAL;
(b) if such Common Stock is publicly traded and is then listed on a
national securities exchange, its closing price on the last trading day prior
to the date of determination on the principal national securities exchange on
which the Common Stock is listed or admitted to trading as reported in THE WALL
STREET JOURNAL;
(c) if such Common Stock is publicly traded but is not quoted on the
Nasdaq National Market nor listed or admitted to trading on a national
securities exchange, the average of the closing bid and asked prices on the
last trading day prior to the date of determination as reported in THE WALL
STREET JOURNAL; or
(d) if none of the foregoing is applicable, by the Committee in good
faith.
"INSIDER" means an officer or director of the Company or any other person
whose transactions in the Company's Common Stock are subject to Section 16 of
the Exchange Act.
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"OUTSIDE DIRECTOR" means any director who is not; (a) a current employee
of the Company or any Parent, Subsidiary or Affiliate of the Company; (b) a
former employee of the Company or any Parent, Subsidiary or Affiliate of the
Company who is receiving compensation for prior services (other than benefits
under a tax-qualified pension plan); (c) a current or former officer of the
Company or any Parent, Subsidiary or Affiliate of the Company; or (d) currently
receiving compensation for personal services in any capacity, other than as a
director, from the Company or any Parent, Subsidiary or Affiliate of the
Company; PROVIDED, HOWEVER, that at such time as the term "Outside Director",
as used in Section 162(m) of the Code is defined in regulations promulgated
under Section 162(m) of the Code, "Outside Director" will have the meaning set
forth in such regulations, as amended from time to time and as interpreted by
the Internal Revenue Service.
"OPTION" means an award of an option to purchase Shares pursuant to
Section 5.
"PARENT" means any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company, if at the time of the granting
of an Award under this Plan, each of such corporations other than the Company
owns stock possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
"PARTICIPANT" means a person who receives an Award under this Plan.
"PLAN" means this Symantec Corporation 1996 Equity Incentive Plan, as
amended from time to time.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means shares of the Company's Common Stock reserved for issuance
under this Plan, as adjusted pursuant to Sections 2 and 16, and any successor
security.
"SUBSIDIARY" means any corporation (other than the Company) in an unbroken
chain of corporations beginning with the Company if, at the time of granting of
the Award, each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
"TERMINATION" or "TERMINATED" means, for purposes of this Plan with
respect to a Participant, that the Participant has for any reason ceased to
provide services as an employee, director, consultant, independent contractor
or advisor to the Company or a Parent, Subsidiary or Affiliate of the Company,
except in the case of sick leave, military leave, or any other leave of absence
approved by the Committee, provided that such leave is for a period of not more
than ninety (90) days, or reinstatement upon the expiration of such leave is
guaranteed by contract or statute. The Committee will have sole discretion to
determine whether a Participant has ceased to provide services and the
effective date on which the Participant ceased to provide services (the
"TERMINATION DATE").
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EXHIBIT 5.01
October 30, 1997
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 (the "SEC") on or about October 31, 1997 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 2,648,708 shares of your Common Stock (the "STOCK") subject to
issuance by you upon the exercise of stock options granted or to be granted
by you under your 1996 Equity Incentive Plan (the "PLAN").
In rendering this opinion, we have examined the following:
(1) the Registration Statement, together with the Exhibits filed as a
part thereof;
(2) your Registration Statement on Form S-8 (Registration Number
333-07223), which became effective on June 28, 1996, and
your Registration Statement on Form S-8 (Registration Number
333-18355), which became effective on December 20, 1996;
(3) the Prospectus prepared in connection with the Registration
Statement;
(4) the minutes of meetings and actions by written consent of your
stockholders and your Board of Directors that are contained in your
minute books that are in our possession;
(5) your stock records in our possession that you have provided to us
(consisting of a summary list of stockholders and option and warrant
holders respecting your capital stock that was prepared by you and
dated October 28, 1997);
(6) your Registration Statement on Form 8-A (Commission File Number
0-17781), as declared effective by the SEC on June 22, 1989; and
(7) a Management Certificate of even date herewith, duly executed and
delivered by you.
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In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the lack of any undisclosed terminations, modifications, waivers or
amendments to any documents reviewed by us and the due execution and delivery
of all documents where due execution and delivery are prerequisites to the
effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from public
officials and records included in the documents referred to above. We have
made no independent investigations or other attempts to verify the accuracy
of any of such information or to determine the existence or non-existence of
any other factual matters; HOWEVER, we are not aware of any facts that would
lead us to believe that the opinion expressed herein is not accurate.
Based on the foregoing, it is our opinion that the 2,648,708 shares of
Stock that may be issued and sold by you upon the exercise of stock options
granted or to be granted under the Plan, when issued and sold in the manner
referred to in the Plan, and the prospectus associated with the Plan, will be
validly 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, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for the
your use as an exhibit to the Registration Statement for the purpose of the
above sale of the Stock and is not to be relied upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ Jacqueline A. Daunt
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EXHIBIT 23.02
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Symantec Corporation 1996 Equity Incentive Plan
of our report dated April 25, 1997 (except for paragraph 6 of Note 11, as to
which the date is May 13, 1997), 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, 1997, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
October 28, 1997
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EXHIBIT 23.03
CONSENT OF PRICE WATERHOUSE, CHARTERED ACCOUNTANTS
October 28, 1997
We consent to incorporation by reference, in the Registration Statement on
Form S-8 filed on or about October 29, 1997 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 year ended June 30, 1995 which appears in the Fiscal 1997 Form 10-K of
Symantec Corporation.
/s/ Price Waterhouse
Chartered Accountants
