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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported) August 11, 1998
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SYMANTEC CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 0-17781 77-0181864
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
10201 Torre Avenue
Cupertino, California 95014
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (408) 253-9600
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Item 5: Other Events
Adoption of Stockholder Rights Plan.
On August 11, 1998, the Board of Directors of Symantec Corporation (the
"Company") declared a dividend of one preferred share purchase right (a "Right")
for each outstanding share of common stock, par value $0.01 per share (the
"Common Shares"), of the Company. The dividend is payable to stockholders of
record on August 21, 1998 (the "Record Date"). In addition, one Right shall be
issued with each Common Share that becomes outstanding (i) between the Record
Date and the earliest of the Distribution Date, the Redemption Date and the
Final Expiration Date (as such terms are defined in the Rights Agreement) or
(ii) following the Distribution Date and prior to the Redemption Date or Final
Expiration Date, pursuant to the exercise of stock options or under any employee
plan or arrangement or upon the exercise, conversion or exchange of other
securities of the Company (including, without limitation, the Delrina
exchangeable shares), which options or securities were outstanding prior to the
Distribution Date. Each Right entitles the registered holder to purchase from
the Company one one-thousandth of a share of Series A Junior Participating
Preferred Stock, par value $0.01 per share (the "Preferred Shares"), of the
Company, at a price of $150.00, subject to adjustment. The description and terms
of the Rights are set forth in a Rights Agreement (the "Rights Agreement")
between the Company and BankBoston, N.A., as Rights Agent. A summary of the
Rights and Rights Agreement is included as Exhibit C to the Rights Agreement,
which is included as Exhibit 4.1 hereto.
Amendment of Bylaws
On August 11, 1998, the Board of Directors of the Company amended the
Company's Bylaws to: permit only the Chairman, President or the Board to call a
special meeting of the stockholders; require that the Board be given prior
notice of a stockholder proposal to take action by written consent so that a
record date for such action can be established; require advance notice to the
Board of stockholder-sponsored proposals for consideration at annual meetings
and for stockholder nominations for the election of directors; permit the Board
to meet on one- rather than two-day advance notice; and conform the Bylaws to
applicable provisions of Delaware law regarding the inspection of elections at
stockholder meetings.
2
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Item 7: Financial Statements and Exhibits.
(c) Exhibits
<TABLE>
<S> <C>
3.1 Bylaws of the Company, as amended and restated effective
August 11, 1998.
4.1 Rights Agreement dated August 12, 1998, 1998, between the
Company and BankBoston, N.A., as Rights Agent, which includes
as Exhibit A the form of Certificate of Designations of Series
A Junior Participating Preferred Stock, as Exhibit B the Form
of Right Certificate and as Exhibit C the Summary of Rights to
Purchase Preferred Shares. (Incorporated by reference to the
Company's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on August 18, 1998.)
99.1 Press release of the Company dated August 13, 1998.
</TABLE>
3
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: August 18, 1998
SYMANTEC CORPORATION
By: /s/ Howard A. Bain, III
------------------------------------------
Howard A. Bain, III
Vice President and Chief Financial Officer
4
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
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<S> <C>
3.1 Bylaws of the Company, as amended and restated effective August
11, 1998.
4.1 Rights Agreement dated August 12, 1998, between the Company and
BankBoston, N.A., as Rights Agent, which includes as Exhibit A
the Form of Certificate of Designations of Series A Junior
Participating Preferred Stock, as Exhibit B the Form of Right
Certificate and as Exhibit C the Summary of Rights to Purchase
Preferred Shares. (Incorporated by reference to the Company's
Registration Statement on Form 8-A filed with the Securities and
Exchange Commission on August 18, 1998.)
99.1 Press release of the Company dated August 13, 1998.
</TABLE>
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Exhibit 3.1
BYLAWS OF
SYMANTEC CORPORATION
(A DELAWARE CORPORATION)
ARTICLE I
STOCKHOLDERS
Section 1.1. Annual Meetings. An annual meeting of stockholders shall be
held for the election of directors at such date, time and place, either within
or without the State of Delaware, as the Board of Directors shall each year fix.
Any other proper business may be transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Chairman of the Board, the
President or the Board of Directors. Special meetings may not be called by any
other person or persons.
Section 1.3. Notice of Meetings. Written notice of all meetings of
stockholders shall be given stating the place, date and time of the meeting and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. Unless otherwise required by applicable law or the Certificate of
Incorporation of the Corporation, such notice shall be given not less than ten
nor more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting.
Section 1.4. Adjournments. Any meeting of stockholders may adjourn from
time to time to reconvene at the same or another place, and notice need not be
given of any such adjourned meeting if the time, date and place thereof are
announced at the meeting at which the adjournment is taken; provided, however,
that if the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. At the adjourned meeting the Corporation may transact any
business that might have been transacted at the original meeting.
Section 1.5. Quorum. At each meeting of stockholders, the holders of a
majority of the shares of stock entitled to vote at the meeting, present in
person or by proxy, shall constitute a quorum for the transaction of business,
except if otherwise required by law. If a quorum shall fail to attend any
meeting, the chairman of the meeting or the holders of a majority of the shares
entitled to vote who are present, in person or by proxy, at the meeting may
adjourn the meeting. Shares of the Corporation's stock belonging to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation are held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes; provided, however, that the foregoing shall not
limit the
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right of the Corporation or any other corporation to vote any of the
Corporation's stock held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be presided over
by such person as the Board of Directors may designate, or, in the absence of
such a person, the Chairman of the Board, or, in the absence of such person, the
President of the Corporation, or, in the absence of such person, such person as
may be chosen by the holders of a majority of the shares entitled to vote who
are present, in person or by proxy, at the meeting. Such person shall be
chairman of the meeting and shall determine the order of business and the
procedure at the meeting, including such regulation of the manner of voting and
the conduct of discussion as seems to him or her to be in order. The Secretary
of the Corporation shall act as secretary of the meeting, but in his or her
absence the chairman of the meeting may appoint any person to act as secretary
of the meeting.
Section 1.7. Voting; Proxies. Unless otherwise provided by law or the
Certificate of Incorporation, and subject to the provisions of Section 1.8 of
these Bylaws, each stockholder shall be entitled to one vote for each share of
stock held by such stockholder. Each stockholder entitled to vote at a meeting
of stockholders, or to express consent or dissent to corporate action in writing
without a meeting, may authorize another person or persons to act for such
stockholder by proxy. If a vote is to be taken by written ballot, each such
ballot shall state the name of the stockholder or proxy voting and such other
information as the chairman of the meeting deems appropriate. At all meetings of
stockholders for the election of directors, a plurality of the votes cast shall
be sufficient to elect. All other elections or questions, unless otherwise
provided by applicable law, the Certificate of Incorporation or these Bylaws,
shall be decided by the affirmative vote of the holders of a majority of the
shares of stock entitled to vote thereon that are present in person or
represented by proxy at the meeting.
Section 1.8. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be more than sixty
nor less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. If no record date is fixed by the Board Of Directors,
then the record date shall be as provided by law. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 1.9. List of Stockholders Entitled to Vote. A complete list of
stockholders entitled to vote at any meeting of stockholders, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder, shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
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either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list also be produced and kept at the
time and place of the meeting during the whole time thereof and may be inspected
by and stockholder who is present.
Section 1.10. Action by Consent of Stockholders. Unless otherwise provided
in the Certificate of Incorporation, any action required to be taken at any
annual or special meeting of stockholders of the corporation, or any action
which may be taken at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
In order that the corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to the Secretary,
request the Board of Directors to fix a record date. The Board of Directors
shall promptly, but in all events within 10 days after the date on which such a
request is received, adopt a resolution fixing the record date. If no record
date has been fixed by the Board of Directors within 10 days of the date on
which such a request is received, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is required by applicable law, shall be
the first date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
any officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by applicable
law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business
on the date on which the Board of Directors adopts the resolution taking such
prior action.
Section 1.11. Inspectors of Elections.
(a) Applicability. Unless otherwise provided in the Corporation's
Certificate of Incorporation or required by the Delaware General Corporation
Law, the following provisions of this Section 1.11 shall apply only if and when
the Corporation has a class of voting stock that is: (i) listed on a national
securities exchange; (ii) authorized for quotation on an
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interdealer quotation system of a registered national securities association; or
(iii) held of record by more than 2,000 stockholders; in all other cases,
observance of the provisions of this Section 1.11 shall be optional and at the
discretion of the Corporation.
(b) Appointment. The Corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors of election to act at the meeting
and make a written report thereof. The Corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting.
(c) Inspector's Oath. Each inspector of election, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the best of
his ability.
(d) Duties of Inspectors. At a meeting of stockholders, the inspectors
of election shall (i) ascertain the number of shares outstanding and the voting
power of each share, (ii) determine the shares represented at a meeting and the
validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period of time a record of the disposition
of any challenges made to any determination by the inspectors and (v) certify
their determination of the number of shares represented at the meeting and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of
the inspectors.
(e) Opening and Closing of Polls. The date and time of the opening and
the closing of the polls for each matter upon which the stockholders will vote
at a meeting shall be announced by the inspectors at the meeting. No ballot,
proxies or votes, nor any revocations thereof or changes thereto, shall be
accepted by the inspectors after the closing of the polls unless the Court of
Chancery upon application by a stockholder shall determine otherwise.
(f) Determinations. In determining the validity and counting of
proxies and ballots, the inspectors shall be limited to an examination of the
proxies, any envelopes submitted with those proxies, any information provided in
connection with proxies in accordance with Section 212(c)(2) of the Delaware
General Corporation Law, the ballots and the regular books and records of the
Corporation, except that the inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons that represent more
votes than the holder of a proxy is authorized by the record owner to cast or
more votes than the stockholder holds of record. If the inspectors consider
other reliable information for the limited purpose permitted herein, the
inspectors at the time they make their certification of their determinations
pursuant to this Section 1.11 shall specify the precise information considered
by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
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Section 1.12. Notice of Stockholder Business; Nominations.
(a) Annual Meeting of Stockholders.
(i) Nominations of persons for election to the Board of Directors
and the proposal of business to be considered by the stockholders shall be made
at an annual meeting of stockholders (A) pursuant to the Corporation's notice of
such meeting, (B) by or at the direction of the Board of Directors or (C) by any
stockholder of the Corporation who was a stockholder of record at the time of
giving of the notice provided for in this Section 1.12, who is entitled to vote
at such meeting and who complies with the notice procedures set forth in this
Section 1.12.
(ii) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (C) of subparagraph
(a)(i) of this Section 1.12, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice must be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
sixtieth (60th) day nor earlier than the close of business on the ninetieth
(90th) day prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is more than thirty (30) days before or more than sixty (60) days after
such anniversary date, notice by the stockholder, to be timely, must be so
delivered not earlier than the close of business on the ninetieth (90th) day
prior to such annual meeting and not later than the close of business on the
later of the sixtieth (60th) day prior to such annual meeting or the close of
business on the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made by the Corporation. Such stockholder's
notice shall set forth: (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected; (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is
made, (1) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (2) the class and number
of shares of the Corporation that are owned beneficially and held of record by
such stockholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of
subparagraph (a)(ii) of this Section 1.12 to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the Corporation
is increased and there is no public announcement by the Corporation naming all
of the nominees for director or specifying the size
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of the increased board of directors at least seventy (70) days prior to the
first anniversary of the preceding year's annual meeting (or, if the annual
meeting is held more than thirty (30) days before or sixty (60) days after such
anniversary date, at least seventy (70) days prior to such annual meeting), a
stockholder's notice required by this Section 1.12 shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary of the Corporation at the
principal executive office of the Corporation not later than the close of
business on the tenth (10th) day following the day on which such public
announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of such meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation's notice of such meeting (i) by or at the direction of the Board of
Directors or (ii) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice of
the special meeting, who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 1.12. In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by subparagraph (a)(ii) of this Section 1.12 shall
be delivered to the Secretary of the Corporation at the principal executive
offices of the Corporation not earlier than the ninetieth (90th) day prior to
such special meeting and not later than the close of business on the later of
the sixtieth (60th) day prior to such special meeting or the tenth (10th) day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
(c) General.
(i) Only such persons who are nominated in accordance with the
procedures set forth in this Section 1.12 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 1.12. Except as otherwise provided by law or these
Bylaws, the chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting
was made or proposed, as the case may be, in accordance with the procedures set
forth in this Section 1.12 and, if any proposed nomination or business is not in
compliance herewith, to declare that such defective proposal or nomination shall
be disregarded.
(ii) For purposes of this Section 1.12, the term "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to sections 13, 14 or 15(d) of the Exchange Act.
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(iii) Notwithstanding the foregoing provisions of this Section
1.12, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in this Section 1.12 shall be deemed to affect
any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. Number; Qualifications. The Board of Directors shall consist
of one or more members. The initial number of directors shall be one, and
thereafter shall be fixed from time to time by resolution of the Board of
Directors. Directors need not be stockholders.
Section 2.2. Election; Resignation; Removal; Vacancies. The Board of
Directors shall initially consist of the person or persons elected by the
incorporator. Each director shall hold office until the next annual meeting of
stockholders and until his or her successor is elected and qualified, or until
his or her earlier resignation or removal. Any director may resign at any time
upon written notice to the Corporation. Subject to the rights of any holders of
Preferred Stock then outstanding, (i) any director or the entire Board of
Directors may be removed, with or without cause, by the holders or a majority of
the shares then entitled to vote at an election of directors, and (ii) any
vacancy occurring in the Board of Directors for any cause, and any newly created
directorship resulting from any increase in the authorized number of directors
to be elected by all stockholders having the right to vote as a single class,
may be filled by the stockholders, by a majority of the directors then in
office, although less than a quorum, or by a sole remaining director. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
Section 2.3. Regular Meetings. Regular meetings of the Board of Directors
may be held at such places, within or without the State of Delaware, and at such
times as the Board of Directors may from time to time determine. Notice of
regular meetings need not be given if the date, times and places thereof are
fixed by resolution of the Board of Directors.
Section 2.4. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the President or a majority of the
members of the Board of Directors then in office and may be held at any time,
date or place, within or without the State of Delaware, as the person or persons
calling the meeting shall fix. Notice of the time, date and place of such
meeting shall be given, orally or in writing, by the person or persons calling
the meeting to all directors at least four days before the meeting if the notice
is mailed, or at least twenty-four hours before the meeting if such notice is
given by telephone, hand delivery, telegram, telex, mailgram, facsimile or
similar communication method. Unless otherwise indicated in the notice, any and
all business may be transacted at a special meeting.
Section 2.5. Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee of the Board, may participate in a meeting of the
Board or such committee by means of conference telephone or similar
communications equipment by means of which all
<PAGE> 8
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to conference telephone or similar communications equipment
shall constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board
of Directors a majority of the total number of authorized directors shall
constitute a quorum for the transaction of business. Except as otherwise
provided herein or in the Certificate of Incorporation, or required by law, the
vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 2.7. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, or in his or her absence by the
President, or in his or her absence by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his or her absence the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 2.8. Written Action by Directors. Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if all members of the Board or such
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Section 2.9. Powers. The Board of Directors may, except as otherwise
required by law or the Certificate of Incorporation, exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation.
Section 2.10. Compensation of Directors. Directors, as such, may receive,
pursuant to a resolution of the Board of Directors, fees and other compensation
for their services as directors, including, without limitation, their services
as members of committees of the Board of Directors.
ARTICLE III
COMMITTEES
Section 3.1. Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any Meeting of the
committee. In the absence or disqualification of a member of the committee, the
member or members thereof present at any meetings and not disqualified from
voting, whether or not he, she or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in place
of any such absent or disqualified member. Any such committee, to the extent
provided in a resolution of the Board of Directors, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation and may authorize the seal of the
Corporation to be
<PAGE> 9
affixed to all papers that may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation
(except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the Board
of Directors as provided in subsection (a) of Section 151 of the Delaware
General Corporation Law, fix the designations and any of the preferences or
rights of such shares relating to dividends, redemption, dissolution and
distribution of assets of the Corporation, or the conversion into, or the
exchange of such shares for, shares of any other class classes or any other
series of the same or any other class or classes of stock of the Corporation, or
fix the number of shares of any series of stock or authorize the increase or
decrease of the shares of any series), adopting an agreement of merger or
consolidation under Sections 251 or 252 of the Delaware General Corporation Law,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the Bylaws of the Corporation; and unless the resolution of the
Board of Directors expressly so provides, no such committee shall have the power
or authority to declare a dividend, authorize the issuance of stock or adopt a
certificate of ownership and merger pursuant to section 253 of the Delaware
General Corporation Law.
Section 3.2. Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board may make, alter and repeal
rules for the conduct of its business. In the absence of such rules each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these Bylaws.
ARTICLE IV
OFFICERS
Section 4.1 Generally. The officers of the Corporation shall consist of a
President, one or more Vice Presidents, a Secretary, a Treasurer and such other
officers, including a Chairman of the Board of Directors and/or Chief Financial
Officer, as may from time to time be appointed by the Board of Directors.
Officers shall be elected by the Board of Directors. Each officer shall hold
office until his or her successor is elected and qualified or until his or her
earlier resignation or removal. Any number of offices may be held by the same
person. Any officer may resign at any time upon written notice to the
Corporation. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise may be filled by the Board of Directors.
Section 4.2. Chairman of the Board. The Chairman of the Board shall have
the power to preside at all meetings of the Board of Directors and shall have
such other powers and duties as the Board of Directors may from time to time
prescribe.
Section 4.3. President. Unless otherwise designated by the Board of
Directors, the President shall be the chief executive officer of the
Corporation. Subject to the provisions of these Bylaws and to the direction of
the Board of Directors, he or she shall have the responsibility for the general
management and control of the business and affairs of the
<PAGE> 10
Corporation and shall perform all duties and have all powers that are commonly
incident to the office of chief executive or that are delegated to him or her by
the Board of Directors. He or she shall have general supervision and direction
of all of the officers, employees and agents of the Corporation.
Section 4.4. Vice President. Each Vice President shall have all such powers
and duties as are commonly incident to the office of Vice President, or that are
delegated to him or her by the Board of Directors or the President. A Vice
President may be designated by the Board to perform the duties and exercise the
powers of the President in the event of the President's absence or disability.
Section 4.5. Chief Financial Officer. Subject to the direction of the Board
of Directors and the President, the Chief Financial Officer shall perform all
duties and have all powers that are commonly incident to the office of chief
financial officer.
Section 4.6. Treasurer. The Treasurer shall have custody of all monies and
securities of the Corporation. He or she shall make such disbursements of the
funds of the Corporation as are authorized and shall render from time to time an
account of all such transactions. The Treasurer shall also perform such other
duties and have such other powers as are commonly incident to the office of
Treasurer, or as the Board of Directors or the President may from time to time
prescribe.
Section 4.7. Secretary. The Secretary shall issue or cause to be issued all
authorized notices for, and shall keep, or cause to be kept, minutes of all
meetings of the stockholders and the Board of Directors. He or she shall have
charge of the corporate books and records and shall perform such other duties
and have such other powers as are commonly incident to the office of Secretary,
or as the Board of Directors or the President may from time to time prescribe.
Section 4.8. Delegation of Authority. The Board of Directors may from time
to time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
Section 4.9. Removal. Any officer of the Corporation may be removed at any
time, with or without cause, by the Board of Directors. Such removal shall be
without prejudice to the contractual rights of such officer, if any, with the
Corporation.
ARTICLE V
STOCK
Section 5.1. Certificates. Every holder of stock shall be entitled to have
a certificate signed by or in the name of the Corporation by the Chairman of the
Board of Directors, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the
Corporation, certifying the number of shares
<PAGE> 11
owned by such stockholder in the Corporation. Any or all of the signatures on
the certificate may be a facsimile.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. The Corporation may issue a new certificate of stock in the place
of any certificate previously issued by it, alleged to have been lost, stolen or
destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such owner's legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 5.3. Other Regulations. The issue, transfer, conversion and
registration of stock certificates shall be governed by such other regulations
as the Board of Directors may establish.
ARTICLE VI
INDEMNIFICATION
Section 6.1. Indemnification of Officers, Directors and Employees. Each
person who was or is made a party to, or is threatened to be made a party to, or
is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding"), by reason of the fact that he
or she or a person of whom he or she is the legal representative, is or was a
director, officer or employee of the Corporation (including any constituent
corporation absorbed in a merger) or is or was serving at the request of the
Corporation (including any such constituent corporation) as a director, officer
or employee of another corporation, or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
shall be indemnified and held harmless by the Corporation to the fullest extent
permitted by the Delaware General Corporation Law, against all expenses,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes and penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director,
officer or employee and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that the Corporation shall
indemnify any such person seeking indemnity in connection with a proceeding (or
part thereof) initiated by such person only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation.
Section 6.2. Advance of Expenses. The Corporation shall pay all expenses
incurred by such a director, officer or employee in defending any such
proceeding as they are incurred in advance of its final disposition; provided,
however, that if the Delaware General Corporation Law then so requires, the
payment of such expenses incurred by a director, officer or employee in advance
of the final disposition of such proceeding shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director, officer or
employee to repay all amounts so advanced if it should be determined ultimately
that such director, officer or employee is not entitled to be indemnified under
this Article VI or otherwise;
<PAGE> 12
and provided further that the Corporation shall not be required to advance any
expenses to a person against whom the Corporation brings a claim, in a
proceeding, alleging that such person has breached his or her duty of loyalty to
the Corporation, committed an act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law, or derived an improper
personal benefit from a transaction.
Section 6.3. Non-Exclusivity of Rights. The rights conferred on any person
in this Article VI shall not be exclusive of any other right that such person
may have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaw, agreement, vote or consent of stockholders or
disinterested directors or otherwise.
Section 6.4. Indemnification Contracts. The Board of Directors is
authorized to cause the Corporation to enter into a contract with any director,
officer or employee of the Corporation, or any person serving at the request of
the Corporation as a director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if the
Board of Directors so determines, greater than, those provided for in this
Article VI.
Section 6.5. Insurance. The Corporation shall maintain insurance, at its
expense, to the extent it determines such to be reasonably available, to protect
itself, its directors and officers, and any other persons the Board of Directors
may select, against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
Section 6.6. Effect of Amendment. Any amendment, repeal or modification of
any provision of this Article VI shall be prospective only, and shall not
adversely affect any right or protection conferred on a person pursuant to this
Article VI and existing at the time of such amendment, repeal or modification.
ARTICLE VII
NOTICES
Section 7.1. Notice. Except as otherwise specifically provided herein or
required by law, all notices required to be given pursuant to these Bylaws shall
be in writing and may in every instance be effectively given by hand delivery
(including use of a delivery service), by depositing such notice in the mail,
postage prepaid, or by sending such notice by prepaid telegram, telex, mailgram
or facsimile. Any such notice shall be addressed to the person to whom notice is
to be given at such person's address as it appears on the records of the
Corporation. The notice shall be deemed given (i) in the case of hand delivery,
when received by the person to whom notice is to be given or by any person
accepting such notice on behalf of such person, (ii) in the case of delivery by
mail, when deposited in the mail, and (iii) in the case of delivery via
telegram, mailgram, telex, or facsimile, when dispatched.
Section 7.2. Waiver of Notice. Any written waiver of notice, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deemed
<PAGE> 13
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors or members of a
committee of directors need be specified in any written waiver of notice.
ARTICLE VIII
INTERESTED DIRECTORS
Section 8.1. Interested Directors; Quorum. No contract or transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board or committee thereof that authorizes
the contract or transaction, or solely because his, her or their votes are
counted for such purpose if: (i) the material facts as to his, her or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board or committee
in good faith authorizes the contract or transaction by the affirmative votes of
a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; (ii) the material facts as to his, her or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
Section 9.2. Seal. The Board of Directors may provide for a corporate seal,
which shall have the name of the Corporation inscribed thereon and shall
otherwise be in such form as may be approved from time to time by the Board of
Directors.
Section 9.3. Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of account
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs or any other information storage device,
provided that the records so kept can be converted into
<PAGE> 14
clearly legible form within a reasonable time. The Corporation shall so convert
any records so kept upon the request of any person entitled to inspect the same.
Section 9.4. Reliance Upon Books and Records. A member the Board of
Directors, shall, in the performance of his or her duties, be fully protected in
relying in good faith upon the books of account or reports made to the
Corporation by any of its officers, or by an independent certified public
accountant, or by an appraiser selected with reasonable care by the Board of
Directors or by any such committee, or in relying in good faith upon other
records of the Corporation.
Section 9.5. Certificate of Incorporation Governs. In the event of any
conflict between the provisions of the Corporation's Certificate of
Incorporation and Bylaws, the provisions of the Certificate of Incorporation
shall govern.
Section 9.6. Severability. If any provision of these Bylaws shall be held
to be invalid, illegal, unenforceable or in conflict with the provisions of the
Corporation's Certificate of Incorporation, then such provision shall
nonetheless be enforced to the maximum extent possible consistent with such
holding and the remaining provisions of these Bylaws (including without
limitation, all portions of any section of these Bylaws containing any such
provision held to be invalid, illegal, unenforceable or in conflict with the
Certificate of Incorporation, that are not themselves invalid, illegal,
unenforceable or in conflict with the Certificate of Incorporation) shall remain
in full force and effect.
ARTICLE X
AMENDMENT
Section 10.1. Amendments. Shareholders of the Corporation holding a
majority of the Corporation's outstanding voting stock shall have the power to
adopt, amend or repeal Bylaws. The Board of Directors of the Corporation shall
also have the power to adopt, amend or repeal Bylaws of the Corporation, except
as such power may be expressly limited by Bylaws adopted by the shareholders.
<PAGE> 1
Exhibit 99.1
FOR IMMEDIATE RELEASE
MEDIA CONTACT:
Amy Savage
(408) 725-2702
[email protected]
INVESTOR RELATIONS CONTACT:
Shelley Wilson
(408) 446-8891
[email protected]
SYMANTEC ADOPTS STOCKHOLDER RIGHTS PLAN
CUPERTINO, California, August 13, 1998 - Symantec Corporation (NASDAQ: SYMC)
announced that its Board of Directors has adopted a stockholder rights plan
designed to protect the long-term value of the company for its stockholders
during any future unsolicited acquisition attempt.
The plan is designed to give Symantec's Board of Directors sufficient time to
study and respond to an unsolicited tender offer or other attempted acquisition.
Adoption of the plan was not made in response to any specific attempt to acquire
Symantec or its shares, and Symantec is not aware of any current efforts to do
so.
In connection with the plan, the Board declared a dividend of one preferred
share purchase right for each share of the company's common stock outstanding on
August 21, 1998 (the "Record Date"). The Board further directed the issuance of
one such right with respect to each share of the company's common stock that is
issued after the Record Date, except in certain circumstances. The rights will
expire on August 12, 2008.
The rights are initially attached to the company's common stock and will not
trade separately. If a person or a group (an "Acquiring Person") acquires 20% or
more of the company's common stock, or announces an intention to make a tender
offer for 20% or more of the company's common stock, then, the rights will be
distributed and will thereafter trade separately from the common stock.
Each right will be exercisable for 1/1000th of a share of a newly designated
Series A Junior Participating Preferred Stock at an exercise price of $150.00.
The preferred stock has been structured so that the value of 1/1000th of a share
of such preferred stock will approximate the value of one share of common stock.
<PAGE> 2
Upon a person becoming an Acquiring Person, holders of the rights (other than
the Acquiring Person) will have the right to acquire shares of the company's
common stock at a substantially discounted price.
If a person becomes an Acquiring Person and the company is acquired in a merger
or other business combination, or 50% or more of its assets are sold to an
Acquiring Person, the holders of rights (other than the Acquiring Person) will
have the right to receive shares of common stock of the acquiring corporation at
a substantially discounted price.
After a person has become an Acquiring Person, the company's board of directors
may, at its option, require the exchange of outstanding rights (other than those
held by the Acquiring Person) for common stock at an exchange ratio of one share
of the company's common stock per right.
The Board may redeem outstanding rights at any time prior to a person becoming
an Acquiring Person at a price of $0.001 per right. Prior to such time, the
terms of the rights may be amended by the Board.
In addition, the Board also amended the company's bylaws to: permit only the
Chairman, President or the Board to call a special meeting of the stockholders;
require that the Board be given prior notice of a stockholder proposal to take
action by written consent so that a record date for such action can be
established; require advance notice to the Board of stockholder-sponsored
proposals for consideration at annual meetings and for stockholder nominations
for the election of directors; permit the Board to meet on one- rather than
two-day advance notice; and conform the bylaws to applicable provisions of
Delaware law regarding the inspection of elections at stockholder meetings.
About Symantec
Symantec is the world leader in utility software for business and personal
computing. Symantec products and solutions help make users productive and keep
their computers safe and reliable anywhere and anytime. Symantec offers a broad
range of solutions and is acclaimed as a leader in both customer satisfaction
and product brand recognition. Symantec is traded in Nasdaq under the symbol
SYMC. More information on the company and its products can be obtained at
www.symantec.com.
