<PAGE>
As filed with the Securities and Exchange Commission on January 22, 1999
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 1998 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
DEREK WITTE, ESQ.
SYMANTEC CORPORATION
10201 TORRE AVENUE
CUPERTINO, CALIFORNIA 95014
(408) 253-9600
(Name, address and telephone number of agent for service)
COPIES TO:
Jeffery L. Donovan, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Title of Securities to Amount Proposed Maximum Proposed Maximum Amount of
be Registered to be Offering Price Aggregate Registration Fee
Registered Per Share Offering Price
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par 500,000 (1) $20.65625 $10,328,125 (2) $2,872
value
</TABLE>
(1) Shares registered pursuant to this Registration Statement available for
issuance under the 1998 Employee Stock Purchase Plan.
(2) Calculated pursuant to Rule 457(c) based on the average of the high and
low prices of the issuer's Common Stock on the Nasdaq National Market
on January 14, 1999.
<PAGE>
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the "Securities Act"), that contains audited financial
statements for the Registrant's latest fiscal year for which
such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
the annual report or the prospectus referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in
the Registrant's registration statement filed with the
Commission under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The consolidated financial statements of Symantec Corporation
included in Symantec Corporation's Annual Report (Form 10-K) for the year
ended March 31, 1998 have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation
Law, the Registrant's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors for monetary damages for
breach or alleged breach of their duty of care. The Registrant also
maintains a limited amount of director and officer insurance. In addition,
as permitted by Section 145 of the Delaware General Corporation Law, the
Bylaws of the
2
<PAGE>
Registrant provide that: (i) the Registrant is required to indemnify its
directors, officers and employees, and persons serving in such capacities in
other business enterprises (including, for example, subsidiaries of the
Registrant) at the Registrant's request, to the fullest extent permitted by
Delaware law, including those circumstances in which indemnification would
otherwise be discretionary; (ii) the Registrant is required to advance
expenses, as incurred, to such directors, officers and employees in
connection with defending a proceeding (except that it is not required to
advance expenses to a person against whom the Registrant brings a claim for
breach of the duty of loyalty, failure to act in good faith, intentional
misconduct, knowing violation of law or deriving an improper personal
benefit); (iii) the rights conferred in the Bylaws are not exclusive and the
Registrant is authorized to enter into indemnification agreements with such
directors, officers and employees; (iv) the Registrant is required to
maintain director and officer liability insurance to the extent reasonably
available; and (v) the Registrant may not retroactively amend the Bylaw
provisions in a way that is adverse to such directors, officers and employees.
The Registrant's policy is to enter into indemnity agreements with
each of its directors and officers that provide the maximum indemnity allowed
to directors by Section 145 of the Delaware General Corporation Law and the
Bylaws, as well as certain additional procedural protections. In addition,
the indemnity agreements provide that directors and officers will be
indemnified to the fullest possible extent not prohibited by law against all
expenses (including attorney's fees) and settlement amounts paid or incurred
by them in any action or proceeding, including any derivative action by or in
the right of the Registrant, on account of their services as directors and
officers of the Registrant or as directors or officers of any other company
or enterprise when they are serving in such capacities at the request of the
Registrant. No indemnity will be provided, however, to any director or
officer on account of conduct that is adjudicated to be knowingly fraudulent,
deliberately dishonest or willful misconduct. The indemnity agreements also
provide that no indemnification will be available if a final court
adjudication determines that such indemnification is not lawful, or in
respect of any accounting of profits made from the purchase or sale of
securities of the Registrant in violation of Section 16(b) of the Exchange
Act.
The indemnification provision in the Bylaws and the indemnity
agreements entered into between the Registrant and Registrant's directors and
officers, may be sufficiently broad to permit the indemnification of the
officers and directors for liabilities arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<TABLE>
<CAPTION>
ITEM 8. EXHIBITS.
<S> <C>
4.01 Symantec Corporation 1998 Employee Stock Plan.
4.02 The Registrant's Restated Certificate of Incorporation
(incorporated by reference to Annex G filed with the
Registrant's Joint Management Information Circular and Proxy
Statement (No. 000-17781) dated October 17, 1995).
</TABLE>
3
<PAGE>
<TABLE>
<S> <C>
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.
24.01 Power of Attorney (see page 6).
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) above do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at the
termination of the offering.
4
<PAGE>
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions discussed in Item 6
hereof, or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered hereby, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
[The remainder of this page has been intentionally left blank.]
5
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual and corporation
whose signature appears below constitutes and appoints Gregory E. Myers, his
or her true and lawful attorney-in-fact and agent with full power of
substitution, for him or her and his or her 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 or she 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 22nd day of January, 1999.
SYMANTEC CORPORATION
By: /s/ Gregory E. Myers
----------------------------------
Gregory E. Myers
Vice President Finance
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------ ------------ ---------
<S> <C> <C>
CHIEF EXECUTIVE OFFICER:
/s/ Gordon E. Eubanks, Jr.
- ------------------------------- President, Chief Executive January 22, 1999
Gordon E. Eubanks, Jr. Officer and Director
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------ ------------ ---------
<S> <C> <C>
CHIEF FINANCIAL AND ACCOUNTING
OFFICER:
/s/ Gregory E. Myers
- ------------------------------ Vice President, January 22, 1999
Gregory E. Myers Finance
ADDITIONAL DIRECTORS:
/s/ Carl D. Carman
- ------------------------------ Chairman of the Board January 22, 1999
Carl D. Carman
/s/ Charles M. Boesenberg
- ------------------------------ Director January 22, 1999
Charles M. Boesenberg
/s/ Walter W. Bregman
- ------------------------------ Director January 22, 1999
Walter W. Bregman
/s/ Robert S. Miller
- ------------------------------ Director January 22, 1999
Robert S. Miller
/s/ Robert R.B. Dykes
- ------------------------------ Director January 22, 1999
Robert R.B. Dykes
/s/ Tania Amochaev
- ------------------------------ Director January 22, 1999
Tania Amochaev
</TABLE>
7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
DOCUMENT
- --------
<S> <C>
4.01 Symantec Corporation 1998 Employee Stock Plan.
4.02 The Registrant's Restated Certificate of Incorporation
(incorporated by reference to Annex G filed with the Registrant's
Joint Management Information Circular and Proxy Statement (No.
000-17781) dated October 17, 1995).
4.03 The Registrant's Bylaws, as currently in effect (incorporated by
reference to Exhibit 3.02 of the Registrant's Registration
Statement on Form S-1 (File No. 33-28655) originally filed on May
19, 1989, and Amendment No. 1 thereto filed June 21, 1989, which
Registration Statement became effective June 22, 1989).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent Auditors.
24.01 Power of Attorney (see page 6).
</TABLE>
<PAGE>
EXHIBIT 4.01
SYMANTEC CORPORATION'S
1998 EMPLOYEE STOCK PURCHASE PLAN
1. ESTABLISHMENT OF PLAN
Symantec Corporation (the "Company") proposes to grant options for
purchase of the Company's Common Stock to eligible employees of the Company
and Subsidiaries (as hereinafter defined) pursuant to this Employee Stock
Purchase Plan (the "Plan"). For purposes of this Plan, "parent corporation"
and "Subsidiary" (collectively, "Subsidiaries") shall have the same meanings
as "parent corporation" and "subsidiary corporation" in Section 424, of the
Internal Revenue Code of 1986, as amended (the "Code"). The Company intends
that the Plan shall qualify as an "employee stock purchase plan" under
Section 423 of the Code (including any amendments or replacements of such
section), and the Plan shall be so construed. Any term not expressly defined
in the Plan but defined for purposes of Section 423 of the Code shall have
the same definition herein. A total of 500,000 shares of Common Stock are
reserved for issuance under the Plan. Such number shall be subject to
adjustments effected in accordance with Section 14 of the Plan.
2. PURPOSES
The purpose of the Plan is to provide employees of the Company and
Subsidiaries designated by the Board of Directors as eligible to participate
in the Plan with a convenient means to acquire an equity interest in the
Company through payroll deductions, to enhance such employees' sense of
participation in the affairs of the Company and Subsidiaries, and to provide
an incentive for continued employment.
3. ADMINISTRATION
The Plan is administered by the Board of Directors of the Company or by
a committee designated by the Board of Directors of the Company (in which
event all references herein to the Board of Directors shall be to the
committee). Subject to the provisions of the Plan and the limitations of
Section 423 of the Code or any successor provision in the Code, all questions
of interpretation or application of the Plan shall be determined by the Board
and its decisions shall be final and binding upon all participants. Members
of the Board shall receive no compensation for their services in connection
with the administration of the Plan, other than standard fees as established
from time to time by the Board of Directors of the Company for services
rendered by Board members serving on Board committees. All expenses incurred
in connection with the administration of the Plan shall be paid by the
Company.
4. ELIGIBILITY
Any employee of the Company or the Subsidiaries is eligible to
participate in an Offering Period (as hereinafter defined) under the Plan
except the following:
<PAGE>
(a) employees who are not employed by the Company or Subsidiaries on
the third business day before the beginning of such Offering Period;
(b) employees who are customarily employed for less than 20 hours per
week;
(c) employees who are customarily employed for less than 5 months in a
calendar year;
(d) employees who, together with any other person whose stock would be
attributed to such employee pursuant to Section 425(d) of the Code, own stock
or hold options to purchase stock or who, as a result of being granted an
option under the Plan with respect to such Offering Period, would own stock
or hold options to purchase stock possessing 5 percent or more of the total
combined voting power or value of all classes of stock of the Company or any
of its Subsidiaries; and
(e) employees who would, by virtue of their participation in such
Offering Period, be participating simultaneously in more than one Offering
Period under the Plan.
(f) individuals who provide services to the Company or any of its
Subsidiaries as independent contractors who are reclassified as common law
employees for any reason EXCEPT FOR federal income and employment tax
purposes.
5. OFFERING DATES
The Offering Periods of the Plan (the "Offering Period") shall be of 24
months duration commencing January 1 and July 1 of each year and ending on
the second December 31 and June 30, respectively, thereafter. The first day
of each Offering Period is referred to as the "Offering Date." Except as
provided in the next succeeding sentence, each Offering Period shall consist
of four six-month purchase periods (individually, a "Purchase Period") during
which payroll deductions of the participant are accumulated under this Plan.
Each such six-month Purchase Period shall commence on each January 1 and July
1 of an Offering Period and shall end on the next June 30 and December 31,
respectively. The last business day of each Purchase Period is hereinafter
referred to as the Purchase Date. The Board of Directors of the Company shall
have the power to change the duration of Offering Periods or Purchase Periods
without stockholder approval.
6. PARTICIPATION IN THE PLAN
Eligible employees may become participants in an Offering Period under
the Plan on the first Offering Date after satisfying the eligibility
requirements by delivering to the Company's or Subsidiary's (whichever
employs such employee) treasury department (the "treasury department") not
later than the 3rd business day before such Offering Date unless a later time
for filing the subscription agreement is set by the Board for all eligible
Employees with respect to a given Offering Period a subscription agreement
authorizing payroll deductions. An eligible employee who does not deliver a
subscription agreement to the treasury department by such date after becoming
eligible to participate in such Offering Period under the Plan shall not
participate
2
<PAGE>
in that Offering Period or any subsequent Offering Period unless such
employee enrolls in the Plan by filing the subscription agreement with the
treasury department not later than the 3rd business day preceding a
subsequent Offering Date. Once an employee becomes a participant in an
Offering Period, such employee will automatically participate in the Offering
Period commencing immediately following the last day of the prior Offering
Period unless the employee withdraws from the Plan or terminates further
participation in the Offering Period as set forth in Section 11 below. Such
participant is not required to file any additional subscription agreements in
order to continue participation in the Plan. Any participant whose option
expires and who has not withdrawn from the Plan pursuant to Section 11 below
will automatically be re-enrolled in the Plan and granted a new option on the
Offering Date of the next Offering Period. A participant in the Plan may
participate in only one Offering Period at any time.
7. GRANT OF OPTION ON ENROLLMENT
Enrollment by an eligible employee in the Plan with respect to an
Offering Period will constitute the grant (as of the Offering Date) by the
Company to such employee of an option to purchase on each Purchase Date up to
that number of shares of Common Stock of the Company determined by dividing
the amount accumulated in such employee's payroll deduction account during
such Purchase Period by the lower of (i) eighty-five percent (85%) of the
fair market value of a share of the Company's Common Stock on the Offering
Date (the "Entry Price") or (ii) eighty-five percent (85%) of the fair market
value of a share of the Company's Common Stock on the Purchase Date,
provided, however, that the number of shares of the Company's Common Stock
subject to any option granted pursuant to this Plan shall not exceed the
lesser of (a) the maximum number of shares set by the Board pursuant to
Section 10(c) below with respect to all Purchase Periods within the
applicable Offering Period or Purchase Period, or (b) 200% of the number of
shares determined by using 85% of the fair market value of a share of the
Company's Common Stock on the Offering Date as the denominator. Fair market
value of a share of the Company's Common Stock shall be determined as
provided in Section 8 hereof.
8. PURCHASE PRICE
The purchase price per share at which a share of Common Stock will be
sold in any Offering Period shall be 85 percent of the lesser of:
(a) The fair market value on the Offering Date; or
(b) The fair market value on the Purchase Date.
For purposes of the Plan, the term "fair market value" on a given date
shall mean the closing price from the previous day's trading of a share of
the Company's Common Stock as reported on the NASDAQ National Market System.
9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL DEDUCTIONS; ISSUANCE OF
SHARES
(a) The purchase price of the shares is accumulated by regular payroll
deductions made during each Purchase Period. The deductions are made as a
percentage of the employee's
3
<PAGE>
compensation in one percent increments not less than 2 percent nor greater
than 10 percent. Compensation shall mean all W-2 compensation, including, but
not limited to base salary, wages, commissions, overtime, shift premiums and
bonuses, plus draws against commissions; provided, however, that for purposes
of determining a participant's compensation, any election by such participant
to reduce his or her regular cash remuneration under Sections 125 or 401(k)
of the Code shall be treated as if the participant did not make such
election. Payroll deductions shall commence on the first payday following the
Offering Date and shall continue to the end of the Offering Period unless
sooner altered or terminated as provided in the Plan.
(b) A participant may lower (but not increase) the rate of payroll
deductions during a Purchase Period by filing with the treasury department a
new authorization for payroll deductions, in which case the new rate shall
become effective for the next payroll period commencing more than 15 days
after the treasury department's receipt of the authorization and shall
continue for the remainder of the Offering Period unless changed as described
below. Such change in the rate of payroll deductions may be made at any time
during an Offering Period, but not more than one change may be made effective
during any Purchase Period. A participant may increase or lower the rate of
payroll deductions for any subsequent Purchase Period by filing with the
treasury department a new authorization for payroll deductions not later than
the 15th day of the month before the beginning of such Purchase Period.
(c) All payroll deductions made for a participant are credited to his
or her account under the Plan and are deposited with the general funds of the
Company; no interest accrues on the payroll deductions. All payroll
deductions received or held by the Company may be used by the Company for any
corporate purpose, and the Company shall not be obligated to segregate such
payroll deductions.
(d) On each Purchase Date, so long as the Plan remains in effect and
provided that the participant has not submitted a signed and completed
withdrawal form before that date which notifies the Company that the
participant wishes to withdraw from that Offering Period under the Plan and
have all payroll deductions accumulated in the account maintained on behalf
of the participant as of that date returned to the participant, the Company
shall apply the funds then in the participant's account to the purchase of
whole shares of Common Stock reserved under the option granted to such
participant with respect to the Offering Period to the extent that such
option is exercisable on the Purchase Date. The purchase price per share
shall be as specified in Section 8 of the Plan. Any cash remaining in a
participant's account after such purchase of shares shall be refunded to such
participant in cash; provided, however, that any amount remaining in such
participant's account on a Purchase Date which is less than the amount
necessary to purchase a full share of Common Stock of the Company shall be
carried forward, without interest, into the next Purchase Period or Offering
Period, as the case may be. In the event that the Plan has been
oversubscribed, all funds not used to purchase shares on the Purchase Date
shall be returned to the participant. No Common Stock shall be purchased on a
Purchase Date on behalf of any employee whose participation in the Plan has
terminated prior to such Purchase Date.
(e) As promptly as practicable after the Purchase Date, the Company
shall arrange the delivery to each participant, as appropriate, of a
certificate representing the shares purchased
4
<PAGE>
upon exercise of his option; provided that the Board may deliver certificates
to a broker or brokers that hold such certificate in street name for the
benefit of each such participant.
(f) During a participant's lifetime, such participant's option to
purchase shares hereunder is exercisable only by him or her. The participant
will have no interest or voting right in shares covered by his or her option
until such option has been exercised. Shares to be delivered to a participant
under the Plan will be registered in the name of the participant or in the
name of the participant and his or her spouse.
10. LIMITATIONS ON SHARES TO BE PURCHASED
(a) No employee shall be entitled to purchase stock under the Plan at a
rate which, when aggregated with his or her rights to purchase stock under
all other employee stock purchase plans of the Company or any Subsidiary,
exceeds $25,000 in fair market value, determined as of the Offering Date (or
such other limit as may be imposed by the Code) for each calendar year in
which the employee participates in the Plan.
(b) No more than 200% of the number of shares determined by using 85%
of the fair market value of a share of the Company's Common Stock on the
Offering Date as the denominator may be purchased by a participant on any
single Purchase Date.
(c) No employee shall be entitled to purchase more than the Maximum
Share Amount (as defined below) on any single Purchase Date. Not less than
thirty days prior to the commencement of any Purchase Period, the Board may,
in its sole discretion, set a maximum number of shares which may be purchased
by any employee at any single Purchase Date (hereinafter the "Maximum Share
Amount"). In no event shall the Maximum Share Amount exceed the amounts
permitted under Section 10(b) above. If a new Maximum Share Amount is set,
then all participants must be notified of such Maximum Share Amount not less
than fifteen days prior to the commencement of the next Purchase Period. Once
the Maximum Share Amount is set, it shall continue to apply in respect of all
succeeding Purchase Dates and Purchase Periods unless revised by the Board as
set forth above.
(d) If the number of shares to be purchased on a Purchase Date by all
employees participating in the Plan exceeds the number of shares then
available for issuance under the Plan, the Company will make a pro rata
allocation of the remaining shares in as uniform a manner as shall be
practicable and as the Board shall determine to be equitable. In such event,
the Company shall give written notice of such reduction of the number of
shares to be purchased under a participant's option to each employee affected
thereby.
(e) Any payroll deductions accumulated in a participant's account which
are not used to purchase stock due to the limitations in this Section 10
shall be returned to the participant as soon as practicable after the end of
the Offering Period.
11. WITHDRAWAL
5
<PAGE>
(a) Each participant may withdraw from an Offering Period under the
Plan by signing and delivering to the treasury department notice on a form
provided for such purpose. Such withdrawal may be elected at any time at
least 15 days prior to the end of an Offering Period.
(b) Upon withdrawal from the Plan, the accumulated payroll deductions
shall be returned to the withdrawn employee and his or her interest in the
Plan shall terminate. In the event an employee voluntarily elects to withdraw
from the Plan, he or she may not resume his or her participation in the Plan
during the same Offering Period, but he or she may participate in any
Offering Period under the Plan which commences on a date subsequent to such
withdrawal by filing a new authorization for payroll deductions in the same
manner as set forth above for initial participation in the Plan.
(c) If the purchase price on the first day of any current Offering
Period in which a participant is enrolled is higher than the purchase price
on the first day of any subsequent Offering Period, the Company will
automatically enroll such participant in the subsequent Offering Period. A
participant does not need to file any forms with the Company to automatically
be enrolled in the subsequent Offering Period.
12. TERMINATION OF EMPLOYMENT
Termination of a participant's employment for any reason, including
retirement or death or the failure of a participant to remain an eligible
employee, terminates his or her participation in the Plan immediately. In
such event, the payroll deductions credited to the participant's account will
be returned to him or her or, in the case of his or her death, to his or her
legal representative. For this purpose, an employee will not be deemed to
have terminated employment or failed to remain in the continuous employ of
the Company in the case of sick leave, military leave, or any other leave of
absence approved by the Board of Directors of the Company; provided that such
leave is for a period of not more than ninety (90) days or reemployment upon
the expiration of such leave is guaranteed by contract or statute.
13. RETURN OF PAYROLL DEDUCTIONS
In the event an employee's interest in the Plan is terminated by
withdrawal, termination of employment or otherwise, or in the event the Plan
is terminated by the Board, the Company shall promptly deliver to the
employee all payroll deductions credited to his or her account. No interest
shall accrue on the payroll deductions of a participant in the Plan.
14. CAPITAL CHANGES
Subject to any required action by the stockholders of the Company, the
number of shares of Common Stock covered by each option under the Plan which
has not yet been exercised and the number of shares of Common Stock which
have been authorized for issuance under the Plan but have not yet been placed
under option (collectively, the "Reserves"), as well as the price per share
of Common Stock covered by each option under the Plan which has not yet been
exercised, shall be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock resulting from a stock split or
the payment of a stock dividend (but only on the Common Stock) or any other
increase or decrease in the number of shares of Common Stock
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effected without receipt of consideration by the Company; provided, however,
that conversion of any convertible securities of the Company shall not be
deemed to have been "effected without receipt of consideration." Such
adjustment shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. Except as expressly provided herein,
no issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
price of shares of Common Stock subject to an option.
In the event of the proposed dissolution or liquidation of the Company,
the Offering Period will terminate immediately prior to the consummation of
such proposed action, unless otherwise provided by the Board. The Board may,
in the exercise of its sole discretion in such instances, declare that the
options under the Plan shall terminate as of a date fixed by the Board and
give each participant the right to exercise his or her option as to all of
the optioned stock, including shares which would not otherwise be
exercisable. In the event of a proposed sale of all or substantially all of
the assets of the Company, or the merger of the Company with or into another
corporation, each option under the Plan shall be assumed or an equivalent
option shall be substituted by such successor corporation or a parent or
subsidiary of such successor corporation, unless the Board determines, in the
exercise of its sole discretion and in lieu of such assumption or
substitution, that the participant shall have the right to exercise the
option as to all of the optioned stock. If the Board makes an option
exercisable in lieu of assumption or substitution in the event of a merger or
sale of assets, the Board shall notify the participant that the option shall
be fully exercisable for a period of twenty (20) days from the date of such
notice, and the option will terminate upon the expiration of such period.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the
price per share of Common Stock covered by each outstanding option, in the
event that the Company effects one or more reorganizations,
recapitalizations, rights offerings or other increases or reductions of
shares of its outstanding Common Stock, and in the event of the Company being
consolidated with or merged into any other corporation.
15. NONASSIGNABILITY
Neither payroll deductions credited to a participant's account nor any
rights with regard to the exercise of an option or to receive shares under
the Plan may be assigned, transferred, pledged or otherwise disposed of in
any way (other than by will, the laws of descent and distribution or as
provided in Section 22 hereof) by the participant. Any such attempt at
assignment, transfer, pledge or other disposition shall be without effect.
16. REPORTS
Individual accounts will be maintained for each participant in the Plan.
Each participant shall receive promptly after the end of each Purchase Period
a report of his account setting forth the total payroll deductions
accumulated, the number of shares purchased, the per share price thereof and
the remaining cash balance, if any, carried forward to the next Purchase
Period or Offering Period, as the case may be.
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17. NOTICE OF DISPOSITION
Each participant shall notify the Company if the participant disposes of
any of the shares purchased in any Offering Period pursuant to this Plan if
such disposition occurs within two years from the Offering Date or within six
months from the Purchase Date on which such shares were purchased (the
"Notice Period"). Unless such participant is disposing of any of such shares
during the Notice Period, such participant shall keep the certificates
representing such shares in his or her name (and not in the name of a
nominee) during the Notice Period. The Company may, at any time during the
Notice Period, place a legend or legends on any certificate representing
shares acquired pursuant to the Plan requesting the Company's transfer agent
to notify the Company of any transfer of the shares. The obligation of the
participant to provide such notice shall continue notwithstanding the
placement of any such legend on certificates.
18. NO RIGHTS TO CONTINUED EMPLOYMENT
Neither this Plan nor the grant of any option hereunder shall confer any
right on any employee to remain in the employ of the Company or any
Subsidiary or restrict the right of the Company or any Subsidiary to
terminate such employee's employment.
19. EQUAL RIGHTS AND PRIVILEGES
All eligible employees shall have equal rights and privileges with
respect to the Plan so that the Plan qualifies as an "employee stock purchase
plan" within the meaning of Section 423 or any successor provision of the
Code and the related regulations. Any provision of the Plan which is
inconsistent with Section 423 or any successor provision of the Code shall
without further act or amendment by the Company or the Board be reformed to
comply with the requirements of Section 423. This Section 19 shall take
precedence over all other provisions in the Plan.
20. NOTICES
All notices or other communications by a participant to the Company
under or in connection with the Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, or by the
person, designated by the Company for the receipt thereof.
21. STOCKHOLDER APPROVAL
Any required approval of the stockholders of the Company shall be
solicited substantially in accordance with Section 14(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations promulgated thereunder. Such approval of an amendment shall be
solicited at or prior to the first annual meeting of stockholders held
subsequent to the grant of an option under the Plan as then amended to an
officer or director of the Company.
22. DESIGNATION OF BENEFICIARY
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(a) A participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the participant's account
under the Plan in the event of such participant's death subsequent to the end
of a Purchase Period but prior to delivery to him of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who
is to receive any cash from the participant's account under the Plan in the
event of such participant's death prior to a Purchase Date.
(b) Such designation of beneficiary may be changed by the participant
at any time by written notice. In the event of the death of a participant and
in the absence of a beneficiary validly designated under the Plan who is
living at the time of such participant's death, the Company shall deliver
such shares or cash to the executor or administrator of the estate of the
participant, or if no such executor or administrator has been appointed (to
the knowledge of the Company), the Company, in its discretion, may deliver
such shares or cash to the spouse or to any one or more dependents or
relatives of the participant, or if no spouse, dependent or relative is known
to the Company, then to such other person as the Company may designate.
23. CONDITIONS UPON ISSUANCE OF SHARES
Shares shall not be issued with respect to an option unless the exercise
of such option and the issuance and delivery of such shares pursuant thereto
shall comply with all applicable provisions of law, domestic or foreign,
including, without limitation, the Securities Act of 1933, as amended, the
Exchange Act, the rules and regulations promulgated thereunder, and the
requirements of any stock exchange upon which the shares may then be listed,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
24. APPLICABLE LAW
The Plan shall be governed by the substantive laws (excluding the
conflict of laws rules) of the State of Delaware.
25. AMENDMENT OR TERMINATION OF THE PLAN
This Plan shall be effective January 1, 1999, subject to approval by the
stockholders of the Company within twelve (12) months after the date the Plan
is adopted by the Board of Directors of the Company and the Plan shall
continue until the earlier to occur of termination by the Board, issuance of
all of the shares of Common Stock reserved for issuance under the Plan, or
ten (10) years from the effective date. The Board of Directors of the Company
may at any time amend or terminate the Plan, except that any such termination
cannot affect options previously granted under the Plan, nor may any
amendment make any change in an option previously granted which would
adversely affect the right of any participant; provided that if the Board
determines that a change in applicable accounting rules or a change in
applicable laws, renders an amendment or termination desirable, then the
Board may approve such an amendment or termination. The Board may not amend
the Plan without approval of the stockholders of the Company obtained in
accordance with Section 21 hereof within 12 months of the adoption of such
amendment (or earlier if required by Section 21) if such amendment would:
(a) Increase the number of shares that may be issued under the Plan; or
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(b) Change the designation of the employees (or class of employees)
eligible for participation in the Plan.
Notwithstanding the foregoing, the Board may make such amendments to the
Plan as the Board determines to be advisable, if the continuation of the Plan
or any Offering Period would result in financial accounting treatment for the
Plan that is different from the financial accounting treatment in effect on
the date this Plan is adopted by the Board.
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EXHIBIT 5.01
January 22, 1999
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 January 22, 1999 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 500,000 shares of your Common Stock (the "STOCK") subject to
issuance by you upon the exercise of purchase rights granted or to be granted
by you under your 1998 Employee Stock Purchase 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) the Prospectus prepared in connection with the Registration Statement;
(3) 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;
(4) 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 January 18, 1999);
(5) your Registration Statement on Form 8-A (Commission File Number
0-17781), as declared effective by the SEC on June 22, 1989; and
(6) a Management Certificate of even date herewith, duly executed and
delivered by you.
We have also confirmed the continued effectiveness of your registration
under the Securities Exchange Act of 1934, as amended, by telephone call to
the offices of the SEC and have confirmed your eligibility to use Form S-8.
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 termination, modification,
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waiver or amendment to any document reviewed by us and the due authorization,
execution and delivery of all documents where due authorization, 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 investigation or other attempt 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 fact that would cause
us to believe that the opinion expressed herein is not accurate.
We are admitted to practice law in the State of California, and we
express no opinion herein with respect to the application or effect of the
laws of any jurisdiction other than the existing laws of the United States of
America, the existing laws of the State of California and the existing
Delaware General Corporation Law without reference to case law or secondary
sources.
Based on the foregoing, it is our opinion that the 500,000 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/ Gordon K. Davidson
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EXHIBIT 23.02
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Symantec Corporation 1998
Employee Stock Purchase Plan and to the incorporation by reference therein of
our report dated April 30, 1998 (except for Note 17, as to which the date is May
19, 1998), 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, 1998, filed with the Securities and Exchange Commission.
Ernst & Young LLP
San Jose, California
January 21, 1999
