<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 1996 EQUITY INCENTIVE PLAN
(Full title of the plan)
DEREK P. WITTE, ESQ.
SYMANTEC CORPORATION
10201 TORRE AVENUE
CUPERTINO, CALIFORNIA 95014
(408) 253-9600
(Name, address and telephone number of agent for service)
COPIES TO:
Jeffery L. Donovan, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Title of Securities to be Amount Proposed Maximum Proposed Maximum Amount of
Registered to be Offering Price Per Aggregate Offering Registration Fee
Registered Share Price
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 2,275,148(1) $20.65625(2) $46,996,025.88(2) $13,065
</TABLE>
(1) Represents additional shares available for issuance under the Symantec
Corporation 1996 Equity Incentive Plan. Pursuant to Rule 429 promulgated
under the Securities Act of 1933, as amended (the "Securities Act"), the
prospectuses relating to this Registration Statement also relate to the
shares registered under Form S-8 Registration Statement Nos. 333-07223,
333-18355 and 333-39175. A total of 6,726,654 shares issuable under the
Symantec Corporation 1996 Equity Incentive Plan have previously been
registered under the Securities Act.
(2) Estimated pursuant to Rule 457(c) of the Securities Act based on the
average of the high and low prices of the Registrant's Common Stock as
reported by the Nasdaq National Market on January 14, 1999, solely for the
purpose of calculating the amount of the registration fee.
<PAGE>
INCORPORATION OF PREVIOUS REGISTRATION STATEMENT.
Pursuant to General Instruction E of Form S-8, this Registration
Statement is filed solely to register an additional 2,275,148 shares under
the Symantec Corporation 1996 Equity Incentive Plan (the "PLAN"), which
increase in shares was approved by the stockholders at Symantec Corporation's
Annual Meeting of Stockholders on September 17, 1998. Pursuant to
Instruction E, the contents of the Registrant's Form S-8 Registration
Statement Nos. 333-07223, 333-18355 and 333-39175 are hereby incorporated by
reference.
2
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual and corporation
whose signature appears below constitutes and appoints 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>
3
<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>
4
<PAGE>
Exhibit Index
-------------
<TABLE>
<CAPTION>
DOCUMENT
- --------
<S> <C>
4.01 Symantec Corporation 1996 Equity Incentive Plan, as amended.
4.02 The Registrant's Restated Certificate of Incorporation (incorporated
by reference to Annex G filed with the Registrant's Joint Management
Information Circular and Proxy Statement (No. 000-17781) dated
October 17, 1995).
4.03 The Registrant's Bylaws, as currently in effect (incorporated by
reference to Exhibit 3.02 of the Registrant's Registration Statement
on Form S-1 (File No. 33-28655) originally filed on May 19, 1989,
and Amendment No. 1 thereto filed June 21, 1989, which Registration
Statement became effective June 22, 1989).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent Auditors.
24.01 Power of Attorney (see page 3).
</TABLE>
<PAGE>
EXHIBIT 4.01
SYMANTEC CORPORATION
1996 EQUITY INCENTIVE PLAN
1. PURPOSE. The purpose of this Plan is to provide incentives to attract,
retain and motivate eligible persons whose present and potential contributions
are important to the success of the Company, its Parent, Subsidiaries and
Affiliates, by offering them an opportunity to participate in the Company's
future performance through awards of Options. Capitalized terms not defined in
the text are defined in Section 22.
2. SHARES SUBJECT TO THE PLAN.
2.1 NUMBER OF SHARES AVAILABLE. Subject to Sections 2.2 and 17, the total
number of Shares reserved and available for grant and issuance pursuant to this
Plan will be [_________] Shares. Subject to Sections 2.2 and 17, Shares that:
(a) are subject to issuance upon exercise of an Option but cease to be subject
to such Option for any reason other than exercise of such Option; (b) are
subject to an Award granted hereunder but are forfeited or are repurchased by
the Company at the original issue price; or (c) are subject to an Award that
otherwise terminates without Shares being issued; will again be available for
grant and issuance in connection with future Awards under this Plan. At all
times the Company shall reserve and keep available a sufficient number of Shares
as shall be required to satisfy the requirements of all outstanding Options
granted under this Plan and all other outstanding but unvested Awards granted
under this Plan.
2.2 ADJUSTMENT OF SHARES. In the event that the number of outstanding Shares
is changed by a stock dividend, recapitalization, stock split, reverse stock
split, subdivision, combination, reclassification or similar change in the
capital structure of the Company without consideration, then (a) the number of
Shares reserved for issuance under this Plan, (b) the Exercise Prices of and
number of Shares subject to outstanding Options, and (c) the number of Shares
subject to other outstanding Awards will be proportionately adjusted, subject to
any required action by the Board or the stockholders of the Company and
compliance with applicable securities laws; PROVIDED, HOWEVER, that fractions of
a Share will not be issued but will either be replaced by a cash payment equal
to the Fair Market Value of such fraction of a Share or will be rounded up to
the nearest whole Share, as determined by the Committee.
3. ELIGIBILITY. ISOs (as defined in Section 5 below) may be granted only to
employees (including officers and directors who are also employees) of the
Company or of a Parent or Subsidiary of the Company. All other Awards may be
granted to employees, officers, directors, consultants, independent contractors
and advisors of the Company or any Parent, Subsidiary or Affiliate of the
Company; PROVIDED such consultants, contractors and advisors render bona fide
services not in connection with the offer and sale of securities in a
capital-raising transaction; and PROVIDED, FURTHER, that unless otherwise
determined by the Board, non-employee directors shall receive options only
pursuant to the formula award provisions set forth in Section 6. No person will
be eligible to receive more than 500,000 Shares in any calendar year under this
Plan pursuant to the grant of Awards hereunder, other than new employees of the
Company or of a Parent, Subsidiary or
<PAGE>
Affiliate of the Company (including new employees who are also officers and
directors of the Company or any Parent, Subsidiary or Affiliate of the
Company) who are eligible to receive up to a maximum of 800,000 Shares in the
calendar year in which they commence their employment. A person may be
granted more than one Award under this Plan.
2
<PAGE>
4. ADMINISTRATION.
4.1 COMMITTEE AUTHORITY. This Plan will be administered by the Committee or
by the Board acting as the Committee. Subject to the general purposes, terms and
conditions of this Plan, and to the direction of the Board, except as provided
in Section 6, the Committee will have full power to implement and carry out this
Plan. Without limitation, the Committee will have the authority to:
(a) construe and interpret this Plan, any Award Agreement and any other
agreement or document executed pursuant to this Plan;
(b) prescribe, amend and rescind rules and regulations relating to this
Plan;
(c) select persons to receive Awards;
(d) determine the form and terms of Awards;
(e) determine the number of Shares or other consideration subject to
Awards;
(f) determine whether Awards will be granted singly, in combination with,
in tandem with, in replacement of, or as alternatives to, other Awards under
this Plan or any other incentive or compensation plan of the Company or any
Parent, Subsidiary or Affiliate of the Company;
(g) grant waivers of Plan or Award conditions;
(h) determine the vesting, exercisability and payment of Awards;
(i) correct any defect, supply any omission or reconcile any inconsistency
in this Plan, any Award or any Award Agreement;
(j) amend any option agreements executed in connection with this Plan;
(k) determine whether an Award has been earned; and
(l) make all other determinations necessary or advisable for the
administration of this Plan.
4.2 COMMITTEE DISCRETION. Any determination made by the Committee with
respect to any Award will be made in its sole discretion at the time of grant of
the Award or, unless in contravention of any express term of this Plan or Award,
at any later time, and such determination will be final and binding on the
Company and on all persons having an interest in any Award under this Plan. The
Committee may delegate to one or more officers of the Company the authority to
grant an Award under this Plan to Participants who are not Insiders of the
Company.
4.3 SECTION 162(m) REQUIREMENTS. If two or more members of the Board are
Outside Directors, the Committee will be comprised of at least two (2) members
of the Board, all of whom are Outside Directors.
3
<PAGE>
5. OPTIONS. The Committee may grant Options to eligible persons and will
determine whether such Options will be Incentive Stock Options within the
meaning of the Code ("ISOs") or Nonqualified Stock Options ("NQSOs"), the number
of Shares subject to the Option, the Exercise Price of the Option, the period
during which the Option may be exercised, and all other terms and conditions of
the Option, subject to the following:
5.1 FORM OF OPTION GRANT. Each Option granted under this Plan will be
evidenced by an Award Agreement which will expressly identify the Option as an
ISO or an NQSO ("Stock Option Agreement"), and will be in such form and contain
such provisions (which need not be the same for each Participant) as the
Committee may from time to time approve, and which will comply with and be
subject to the terms and conditions of this Plan.
5.2 DATE OF GRANT. The date of grant of an Option will be the date on which
the Committee makes the determination to grant such Option, unless otherwise
specified by the Committee. The Stock Option Agreement and a copy of this Plan
will be delivered to the Participant within a reasonable time after the granting
of the Option.
5.3 EXERCISE PERIOD. Options will be exercisable within the times or upon the
events determined by the Committee as set forth in the Stock Option Agreement
governing such Option; PROVIDED, HOWEVER, that no Option will be exercisable
after the expiration of ten (10) years from the date the Option is granted; and
provided further that no ISO granted to a person who directly or by attribution
owns more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or of any Parent or Subsidiary of the Company
("TEN PERCENT STOCKHOLDER") will be exercisable after the expiration of five (5)
years from the date the ISO is granted. The Committee also may provide for the
exercise of Options to become exercisable at one time or from time to time,
periodically or otherwise, in such number of Shares or percentage of Shares as
the Committee determines.
5.4 EXERCISE PRICE. The Exercise Price of an Option will be determined by the
Committee when the Option is granted and may be not less than 100% of the Fair
Market Value of the Shares on the date of grant; provided that the Exercise
Price of any ISO granted to a Ten Percent Stockholder will not be less than 110%
of the Fair Market Value of the Shares on the date of grant. Payment for the
Shares purchased may be made in accordance with Section 7 of this Plan.
5.5 METHOD OF EXERCISE. Options may be exercised only by delivery to the
Company of a written stock option exercise agreement (the "EXERCISE AGREEMENT")
in a form approved by the Committee (which need not be the same for each
Participant), stating the number of Shares being purchased, the restrictions
imposed on the Shares purchased under such Exercise Agreement, if any, and such
representations and agreements regarding Participant's investment intent and
access to information and other matters, if any, as may be required or desirable
by the Company to comply with applicable securities laws, together with payment
in full of the Exercise Price for the number of Shares being purchased.
5.6 TERMINATION. Notwithstanding the exercise periods set forth in the
Stock Option Agreement, exercise of an Option will always be subject to the
following:
4
<PAGE>
(a) If the Participant is Terminated for any reason except death or
Disability, then the Participant may exercise such Participant's Options only to
the extent that such Options would have been exercisable upon the Termination
Date no later than three (3) months after the Termination Date (or such shorter
or longer time period not exceeding five (5) years as may be determined by the
Committee, with any exercise beyond three (3) months after the Termination Date
deemed to be an NQSO), but in any event, no later than the expiration date of
the Options; PROVIDED HOWEVER, that options granted to non-employee directors
pursuant to Section 6 shall remain exercisable for a period of seven (7) months
following the non-employee director's termination as a director or consultant of
the Company or any Affiliate.
(b) If the Participant is Terminated because of Participant's death or
Disability (or the Participant dies within three (3) months after a Termination
other than because of Participant's death or disability), then Participant's
Options may be exercised only to the extent that such Options would have been
exercisable by Participant on the Termination Date and must be exercised by
Participant (or Participant's legal representative or authorized assignee) no
later than twelve (12) months after the Termination Date (or such shorter or
longer time period not exceeding five (5) years as may be determined by the
Committee, with any such exercise beyond (a) three (3) months after the
Termination Date when the Termination is for any reason other than the
Participant's death or Disability, or (b) twelve (12) months after the
Termination Date when the Termination is for Participant's death or Disability,
deemed to be an NQSO), but in any event no later than the expiration date of the
Options.
5.7 LIMITATIONS ON EXERCISE. The Committee may specify a reasonable minimum
number of Shares that may be purchased on any exercise of an Option, provided
that such minimum number will not prevent Participant from exercising the Option
for the full number of Shares for which it is then exercisable.
5.8 LIMITATIONS ON ISOS. The aggregate Fair Market Value (determined as of
the date of grant) of Shares with respect to which ISOs are exercisable for the
first time by a Participant during any calendar year (under this Plan or under
any other incentive stock option plan of the Company or any Affiliate, Parent or
Subsidiary of the Company) will not exceed $100,000. If the Fair Market Value of
Shares on the date of grant with respect to which ISOs are exercisable for the
first time by a Participant during any calendar year exceeds $100,000, then the
Options for the first $100,000 worth of Shares to become exercisable in such
calendar year will be ISOs and the Options for the amount in excess of $100,000
that become exercisable in that calendar year will be NQSOs. In the event that
the Code or the regulations promulgated thereunder are amended after the
Effective Date of this Plan to provide for a different limit on the Fair Market
Value of Shares permitted to be subject to ISOs, such different limit will be
automatically incorporated herein and will apply to any Options granted after
the effective date of such amendment.
5.9 MODIFICATION, EXTENSION OR RENEWAL. The Committee may modify, extend or
renew outstanding Options and authorize the grant of new Options in
substitution therefor, provided that any such action may not, without the
written consent of a Participant, impair any of such Participant's rights
under any Option previously granted. Any outstanding ISO that is modified,
extended, renewed or otherwise altered will be treated in accordance with
Section 424(h) of the Code.
5
<PAGE>
5.10 NO DISQUALIFICATION. Notwithstanding any other provision in this Plan,
no term of this Plan relating to ISOs will be interpreted, amended or altered,
nor will any discretion or authority granted under this Plan be exercised, so as
to disqualify this Plan under Section 422 of the Code or, without the consent of
the Participant affected, to disqualify any ISO under Section 422 of the Code.
6. FORMULA FOR NON-EMPLOYEE DIRECTOR OPTION GRANTS AND VESTING.
6.1 GRANT OF FORMULA OPTION. Options shall be granted to non-employee
directors of the Company ("NON-EMPLOYEE DIRECTORS") during the term of this Plan
as follows: (i) to the extent that a stock option has not already been granted
to a non-employee director during the fiscal year of the Company in which such
director becomes a director, a NQSO to purchase 20,000 shares will automatically
be granted to such director upon such director's joining the Board, (ii) a NQSO
to purchase 10,000 shares will be granted to each non-employee director, other
than a non-employee director acting as the Chairman of the Board, at the first
Board meeting following the first day of each fiscal year of the Company,
PROVIDED that no such grant shall be made to a director within six months of the
initial grant to such director, and (iii) a NQSO to purchase 20,000 shares will
be granted each year to the non-employee director acting as the Chairman of the
Board at the first Board meeting following the first day of each fiscal year of
the Company, PROVIDED, that no such grant shall be made to a director within six
months of the initial grant to such director. Only non-employee directors who
are neither an employee of the Company nor the holder of more than one percent
of the Shares or a representative of any such stockholder shall be eligible for
a formula option grant.
6.2 EXERCISE PERIOD FOR FORMULA OPTIONS. Options shall be immediately
exercisable. The Company shall reserve to itself or its assignees(s) a right to
repurchase any or all unvested Shares held by a non-employee director upon the
non-employee director's termination as a director or consultant of the Company
or an Affiliate at the director's original Purchase Price.
6.3 VESTING OF FORMULA OPTIONS. Options granted will have a four year vesting
schedule under which 25% of the Shares will vest on the first anniversary of the
date of the grant, with the remainder of the shares vesting at a rate of 2.0833%
of the Shares per month over the subsequent three years, PROVIDED that the
non-employee director remains a member of the Board or a consultant of the
Company or an Affiliate during such period.
7. PAYMENT FOR SHARE PURCHASES.
7.1 PAYMENT. Payment for Shares purchased pursuant to this Plan may be made
in cash (by check) or, where expressly approved for the Participant by the
Committee and where permitted by law:
(a) by cancellation of indebtedness of the Company to the Participant;
(b) by surrender of shares that either: (1) have been owned by Participant
for more than six (6) months and have been paid for within the meaning of SEC
Rule 144 (and, if such shares were purchased from the Company by use of a
promissory note, such note has been fully paid with respect to such shares); or
(2) were obtained by Participant in the public market;
6
<PAGE>
(c) by tender of a full recourse promissory note having such terms as may
be approved by the Committee and bearing interest at a rate sufficient to avoid
imputation of income under Sections 483 and 1274 of the Code; PROVIDED, HOWEVER,
that Participants who are not employees or directors of the Company will not be
entitled to purchase Shares with a promissory note unless the note is adequately
secured by collateral other than the Shares; PROVIDED, FURTHER, that the portion
of the Purchase Price equal to the par value of the Shares, if any, must be paid
in cash;
(d) by waiver of compensation due or accrued to the Participant for
services rendered; PROVIDED, FURTHER, that the portion of the Purchase Price
equal to the par value of the Shares, if any, must be paid in cash;
(e) with respect only to purchases upon exercise of an Option, and
provided that a public market for the Company's stock exists:
(1) through a "same day sale" commitment from the Participant and a
broker-dealer that is a member of the National Association of Securities Dealers
(an "NASD DEALER") whereby the Participant irrevocably elects to exercise the
Option and to sell a portion of the Shares so purchased to pay for the Exercise
Price, and whereby the NASD Dealer irrevocably commits upon receipt of such
Shares to forward the Exercise Price directly to the Company; or
(2) through a "margin" commitment from the Participant and an NASD Dealer
whereby the Participant irrevocably elects to exercise the Option and to pledge
the Shares so purchased to the NASD Dealer in a margin account as security for a
loan from the NASD Dealer in the amount of the Exercise Price, and whereby the
NASD Dealer irrevocably commits upon receipt of such Shares to forward the
Exercise Price directly to the Company; or
(f) by any combination of the foregoing.
7.2 LOAN GUARANTEES. The Committee may help the Participant pay for Shares
purchased under this Plan by authorizing a guarantee by the Company of a
third-party loan to the Participant, provided the Company has full recourse to
the Participant relative to the guarantee.
8. WITHHOLDING TAXES.
8.1 WITHHOLDING GENERALLY. Whenever Shares are to be issued in satisfaction
of Awards granted under this Plan, the Company may require the Participant to
remit to the Company an amount sufficient to satisfy federal, state and local
withholding tax requirements prior to the delivery of any certificate or
certificates for such Shares. Whenever, under this Plan, payments in
satisfaction of Awards are to be made in cash, such payment will be net of an
amount sufficient to satisfy federal, state, and local withholding tax
requirements.
8.2 STOCK WITHHOLDING. When, under applicable tax laws, a Participant incurs
tax liability in connection with the exercise or vesting of any Award that is
subject to tax withholding and the Participant is obligated to pay the Company
the amount required to be withheld, the Committee may allow the Participant to
satisfy the minimum withholding tax obligation by electing to have the Company
withhold from the Shares to be issued that number of Shares having a Fair Market
Value equal to the minimum amount required to be withheld, determined on the
date that the amount of
7
<PAGE>
tax to be withheld is to be determined (the "TAX DATE"). All elections by a
Participant to have Shares withheld for this purpose will be made in writing
in a form acceptable to the Committee.
9. PRIVILEGES OF STOCK OWNERSHIP.
9.1 VOTING AND DIVIDENDS. No Participant will have any of the rights of a
stockholder with respect to any Shares until the Shares are issued to the
Participant. After Shares are issued to the Participant, the Participant will be
a stockholder and have all the rights of a stockholder with respect to such
Shares, including the right to vote and receive all dividends or other
distributions made or paid with respect to such Shares; PROVIDED, that if such
Shares are restricted stock, then any new, additional or different securities
the Participant may become entitled to receive with respect to such Shares by
virtue of a stock dividend, stock split or any other change in the corporate or
capital structure of the Company will be subject to the same restrictions as the
restricted stock; PROVIDED, FURTHER, that the Participant will have no right to
retain such stock dividends or stock distributions with respect to Shares that
are repurchased at the Participant's original Purchase Price pursuant to Section
11.
9.2 FINANCIAL STATEMENTS. The Company will provide financial statements to
each Participant prior to such Participant's purchase of Shares under this Plan,
and to each Participant annually during the period such Participant has Awards
outstanding; provided, however, the Company will not be required to provide such
financial statements to Participants whose services in connection with the
Company assure them access to equivalent information.
10. TRANSFERABILITY. Awards granted under this Plan, and any interest
therein, will not be transferable or assignable by Participant, and may not be
made subject to execution, attachment or similar process, otherwise than by will
or by the laws of descent and distribution or as consistent with the specific
Plan and Award Agreement provisions relating thereto. During the lifetime of the
Participant an Award will be exercisable only by the Participant, and any
elections with respect to an Award, may be made only by the Participant.
11. RESTRICTIONS ON SHARES. At the discretion of the Committee, the Company
may reserve to itself and/or its assignee(s) in the Award Agreement a right to
repurchase a portion of or all Shares that are not vested held by a Participant
following such Participant's Termination at any time within ninety (90) days
after the later of Participant's Termination Date and the date Participant
purchases Shares under this Plan, for cash and/or cancellation of purchase money
indebtedness, at the Participant's original Purchase Price.
12. CERTIFICATES. All certificates for Shares or other securities delivered
under this Plan will be subject to such stock transfer orders, legends and other
restrictions as the Committee may deem necessary or advisable, including
restrictions under any applicable federal, state or foreign securities law, or
any rules, regulations and other requirements of the SEC or any stock exchange
or automated quotation system upon which the Shares may be listed or quoted.
13. ESCROW; PLEDGE OF SHARES. To enforce any restrictions on a Participant's
Shares, the Committee may require the Participant to deposit all certificates
representing Shares, together with stock powers or other instruments of transfer
approved by the Committee, appropriately endorsed in blank, with the Company or
an agent designated by the Company to hold in escrow until such
8
<PAGE>
restrictions have lapsed or terminated, and the Committee may cause a legend
or legends referencing such restrictions to be placed on the certificates.
Any Participant who is permitted to execute a promissory note as partial or
full consideration for the purchase of Shares under this Plan will be
required to pledge and deposit with the Company all or part of the Shares so
purchased as collateral to secure the payment of Participant's obligation to
the Company under the promissory note; PROVIDED, HOWEVER, that the Committee
may require or accept other or additional forms of collateral to secure the
payment of such obligation and, in any event, the Company will have full
recourse against the Participant under the promissory note notwithstanding
any pledge of the Participant's Shares or other collateral. In connection
with any pledge of the Shares, Participant will be required to execute and
deliver a written pledge agreement in such form as the Committee will from
time to time approve. The Shares purchased with the promissory note may be
released from the pledge on a PRO RATA basis as the promissory note is paid.
14. EXCHANGE AND BUYOUT OF AWARDS. The Committee may, at any time or from
time to time, authorize the Company, with the consent of the respective
Participants, to issue new Awards in exchange for the surrender and cancellation
of any or all outstanding Awards. The Committee may at any time buy from a
Participant an Award previously granted with payment in cash, Shares (including
restricted stock) or other consideration, based on such terms and conditions as
the Committee and the Participant may agree.
15. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. An Award will not be
effective unless such Award is in compliance with all applicable federal and
state securities laws, rules and regulations of any governmental body, and the
requirements of any stock exchange or automated quotation system upon which the
Shares may then be listed or quoted, as they are in effect on the date of grant
of the Award and also on the date of exercise or other issuance. Notwithstanding
any other provision in this Plan, the Company will have no obligation to issue
or deliver certificates for Shares under this Plan prior to: (a) obtaining any
approvals from governmental agencies that the Company determines are necessary
or advisable; and/or (b) completion of any registration or other qualification
of such Shares under any state or federal law or ruling of any governmental body
that the Company determines to be necessary or advisable. The Company will be
under no obligation to register the Shares with the SEC or to effect compliance
with the registration, qualification or listing requirements of any state
securities laws, stock exchange or automated quotation system, and the Company
will have no liability for any inability or failure to do so.
16. NO OBLIGATION TO EMPLOY. Nothing in this Plan or any Award granted under
this Plan will confer or be deemed to confer on any Participant any right to
continue in the employ of, or to continue any other relationship with, the
Company or any Parent, Subsidiary or Affiliate of the Company or limit in any
way the right of the Company or any Parent, Subsidiary or Affiliate of the
Company to terminate Participant's employment or other relationship at any time,
with or without cause.
17. CORPORATE TRANSACTIONS.
17.1 ASSUMPTION OR REPLACEMENT OF AWARDS BY SUCCESSOR. In the event of (a) a
dissolution or liquidation of the Company, (b) a merger or consolidation in
which the Company is not the surviving corporation (OTHER THAN a merger or
consolidation with a wholly-owned subsidiary, a reincorporation of the Company
in a different jurisdiction, or other transaction in which there is no
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substantial change in the stockholders of the Company or their relative stock
holdings and the Awards granted under this Plan are assumed, converted or
replaced by the successor corporation, which assumption will be binding on all
Participants), (c) a merger in which the Company is the surviving corporation
but after which the stockholders of the Company (other than any stockholder
which merges (or which owns or controls another corporation which merges) with
the Company in such merger) cease to own their shares or other equity interests
in the Company, (d) the sale of substantially all of the assets of the Company,
or (e) any other transaction which qualifies as a "corporate transaction" under
Section 424(a) of the Code wherein the stockholders of the Company give up all
of their equity interest in the Company (EXCEPT for the acquisition, sale or
transfer of all or substantially all of the outstanding shares of the Company
from or by the stockholders of the Company), any or all outstanding Awards may
be assumed, converted or replaced by the successor corporation (if any), which
assumption, conversion or replacement will be binding on all Participants, or
the successor corporation may substitute equivalent Awards or provide
substantially similar consideration to Participants as was provided to
stockholders (after taking into account the existing provisions of the Awards);
PROVIDED that all formula option grants pursuant to Section 6, shall accelerate
and be fully vested upon such merger, consolidation or corporate transaction.
In the event such successor corporation (if any) fails to assume or substitute
Options pursuant to a transaction described in this Subsection 17.1, all Options
will expire on such transaction at such time and on such conditions as the Board
shall determine.
17.2 OTHER TREATMENT OF AWARDS. Subject to any greater rights granted to
Participants under the foregoing provisions of this Section 17, in the event of
the occurrence of any transaction described in Section 17.1, any outstanding
Awards will be treated as provided in the applicable agreement or plan of
merger, consolidation, dissolution, liquidation, sale of assets or other
"corporate transaction."
17.3 ASSUMPTION OF AWARDS BY THE COMPANY. The Company, from time to time,
also may substitute or assume outstanding awards granted by another company,
whether in connection with an acquisition of such other company or otherwise, by
either; (a) granting an Award under this Plan in substitution of such other
company's award; or (b) assuming such award as if it had been granted under this
Plan if the terms of such assumed award could be applied to an Award granted
under this Plan. Such substitution or assumption will be permissible if the
holder of the substituted or assumed award would have been eligible to be
granted an Award under this Plan if the other company had applied the rules of
this Plan to such grant. In the event the Company assumes an award granted by
another company, the terms and conditions of such award will remain unchanged
(EXCEPT that the exercise price and the number and nature of Shares issuable
upon exercise of any such option will be adjusted appropriately pursuant to
Section 424(a) of the Code). In the event the Company elects to grant a new
Option rather than assuming an existing option, such new Option may be granted
with a similarly adjusted Exercise Price.
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18. ADOPTION AND STOCKHOLDER APPROVAL. This Plan will become effective on the
date that it is adopted by the Board (the "EFFECTIVE DATE"). This Plan shall be
approved by the stockholders of the Company (excluding Shares issued pursuant to
this Plan), consistent with applicable laws, within twelve (12) months before or
after the Effective Date. Upon the Effective Date, the Board may grant Awards
pursuant to this Plan; PROVIDED, HOWEVER, that: (a) no Option may be exercised
prior to initial stockholder approval of this Plan; (b) no Option granted
pursuant to an increase in the number of Shares subject to this Plan approved by
the Board will be exercised prior to the time such increase has been approved by
the stockholders of the Company; and (c) in the event that stockholder approval
of this Plan or any amendment increasing the number of Shares subject to this
Plan is not obtained, all Awards granted hereunder will be canceled, any Shares
issued pursuant to any Award will be canceled, and any purchase of Shares
hereunder will be rescinded.
19. TERM OF PLAN. Unless earlier terminated as provided herein, this Plan
will terminate ten (10) years from the date this Plan is adopted by the Board
or, if earlier, the date of stockholder approval.
20. AMENDMENT OR TERMINATION OF PLAN. The Board may at any time terminate or
amend this Plan in any respect, including without limitation amendment of any
form of Award Agreement or instrument to be executed pursuant to this Plan;
PROVIDED, HOWEVER, that the Board will not, without the approval of the
stockholders of the Company, amend this Plan in any manner that requires such
stockholder approval.
21. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of this Plan by the
Board, the submission of this Plan to the stockholders of the Company for
approval, nor any provision of this Plan will be construed as creating any
limitations on the power of the Board to adopt such additional compensation
arrangements as it may deem desirable, including, without limitation, the
granting of stock options and bonuses otherwise than under this Plan, and such
arrangements may be either generally applicable or applicable only in specific
cases.
22. DEFINITIONS. As used in this Plan, the following terms will have the
following meanings:
"AFFILIATE" means any corporation that directly, or indirectly through one
or more intermediaries, controls or is controlled by, or is under common control
with, another corporation, where "control" (including the terms "controlled by"
and "under common control with") means the possession, direct or indirect, of
the power to cause the direction of the management and policies of the
corporation, whether through the ownership of voting securities, by contract or
otherwise.
"AWARD" means any award under this Plan, including any Option.
"AWARD AGREEMENT" means, with respect to each Award, the signed written
agreement between the Company and the Participant setting forth the terms and
conditions of the Award.
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITTEE" means the committee appointed by the Board to administer this
Plan, or if no such committee is appointed, the Board.
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"COMPANY" means Symantec Corporation, a corporation organized under the
laws of the State of Delaware, or any successor corporation.
"DISABILITY" means a disability, whether temporary or permanent, partial or
total, within the meaning of Section 22(e)(3) of the Code, as determined by the
Committee.
"EXERCISE PRICE" means the price at which a holder of an Option may
purchase the Shares issuable upon exercise of the Option.
"FAIR MARKET VALUE" means, as of any date, the value of a share of the
Company's Common Stock determined as follows:
(a) if such Common Stock is then quoted on the Nasdaq National Market, its
closing price on the Nasdaq National Market on the last trading day prior to the
date of determination as reported in THE WALL STREET JOURNAL;
(b) if such Common Stock is publicly traded and is then listed on a
national securities exchange, its closing price on the last trading day prior to
the date of determination on the principal national securities exchange on which
the Common Stock is listed or admitted to trading as reported in THE WALL STREET
JOURNAL;
(c) if such Common Stock is publicly traded but is not quoted on the
Nasdaq National Market nor listed or admitted to trading on a national
securities exchange, the average of the closing bid and asked prices on the last
trading day prior to the date of determination as reported in THE WALL STREET
JOURNAL; or
(d) if none of the foregoing is applicable, by the Committee in good
faith.
"OUTSIDE DIRECTOR" shall mean a person who satisfies the requirements of an
"outside director" as set forth in regulations promulgated under Section 162(m)
of the Code.
"OPTION" means an award of an option to purchase Shares pursuant to Section
5.
"PARENT" means any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company, if at the time of the granting of
an Award under this Plan, each of such corporations other than the Company owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
"PARTICIPANT" means a person who receives an Award under this Plan.
"PLAN" means this Symantec Corporation 1996 Equity Incentive Plan, as
amended from time to time.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"SHARES" means shares of the Company's Common Stock reserved for issuance
under this Plan, as adjusted pursuant to Sections 2 and 17, and any successor
security.
"SUBSIDIARY" means any corporation (other than the Company) in an unbroken
chain of corporations beginning with the Company if, at the time of granting of
the Award, each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
"TERMINATION" or "TERMINATED" means, for purposes of this Plan with respect
to a Participant, that the Participant has for any reason ceased to provide
services as an employee, director, consultant, independent contractor or advisor
to the Company or a Parent, Subsidiary or Affiliate of the Company, except in
the case of sick leave, military leave, or any other leave of absence approved
by the Committee, provided that such leave is for a period of not more than
ninety (90) days, or reinstatement upon the expiration of such leave is
guaranteed by contract or statute. The Committee will have sole discretion to
determine whether a Participant has ceased to provide services and the effective
date on which the Participant ceased to provide services (the "TERMINATION
DATE").
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EXHIBIT 5.01
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 2,275,148 shares of your Common Stock (the "STOCK") subject to
issuance by you upon the exercise of stock options granted or to be granted
by you under your 1996 Equity Incentive Plan (the "PLAN").
In rendering this opinion, we have examined the following:
(1) the Registration Statement, together with the Exhibits filed as a part
thereof;
(2) your Registration Statement on Form S-8 (Registration Number
333-07223), which became effective on June 28, 1996, your Registration
Statement on Form S-8 (Registration Number 333-18355), which became
effective on December 20, 1996, and your Registration Statement on
Form S-8 (Registration Number 333-39175), which became effective on
October 31, 1997;
(3) the Prospectus prepared in connection with the Registration Statement;
(4) the minutes of meetings and actions by written consent of your
stockholders and your Board of Directors that are contained in your
minute books that are in our possession;
(5) your stock records in our possession that you have provided to us
(consisting of a summary list of stockholders and option and warrant
holders respecting your capital stock that was prepared by you and
dated January 18, 1999);
(6) your Registration Statement on Form 8-A (Commission File Number
0-17781), as declared effective by the SEC on June 22, 1989; and
(7) a Management Certificate of even date herewith, duly executed and
delivered to us.
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.
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In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the lack of any undisclosed termination, modification, 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 2,275,148 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 incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Symantec Corporation 1996 Equity Incentive Plan 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
