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As filed with the Securities and Exchange Commission on March 1, 2000
Registration No. 333-
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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 (I.R.S. Employer
of Incorporation or Organization) Identification No.)
20330 STEVENS CREEK BOULEVARD
CUPERTINO, CALIFORNIA 95014
(Address of Principal Executive Offices, including Zip Code)
SYMANTEC CORPORATION RESTRICTED STOCK PURCHASE AGREEMENT (APRIL 14, 1999)
(Full Title of the Plans)
JOHN W. THOMPSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SYMANTEC CORPORATION
20330 STEVENS CREEK BOULEVARD
CUPERTINO, CALIFORNIA 95014
(408) 253-9600
(Name, Address and Telephone Number of Agent For Service)
COPIES TO:
Gordon K. Davidson, Esq.
David A. Bell, Esq.
Thomas T. Kim, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
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PROPOSED PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE (1) PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 100,000 $69.59375 $6,959,375.00 $1,838
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TOTAL 100,000 $6,959,375.00 $1,838
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(1) Estimated as of March 1, 2000 pursuant to Rule 457(c) solely for the purpose
of calculating the registration fee, based on the average of the high and low
prices of the Registrant's common stock as reported by the Nasdaq National
Market on February 25, 2000.
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PROSPECTUS
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100,000 SHARES
SYMANTEC CORPORATION
COMMON STOCK
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THESE SHARES MAY BE OFFERED AND SOLD OVER TIME BY THE STOCKHOLDERS NAMED IN THIS
PROSPECTUS UNDER THE HEADING "SELLING STOCKHOLDER," BY THEIR PLEDGEES OR DONEES,
OR BY OTHER TRANSFEREES THAT RECEIVE THE ORDINARY SHARES IN TRANSFERS OTHER THAN
PUBLIC SALES. THE 100,000 SHARES OF COMMON STOCK COVERED BY THIS PROSPECTUS WERE
PREVIOUSLY ISSUED BY SYMANTEC IN CONNECTION WITH A RESTRICTED STOCK PURCHASE
AGREEMENT ENTERED INTO IN CONNECTION WITH THE EMPLOYMENT OF THE SELLING
STOCKHOLDER.
THE SELLING STOCKHOLDER MAY SELL HIS SYMANTEC SHARES IN THE OPEN MARKET AT
PREVAILING MARKET PRICES, OR IN PRIVATE TRANSACTIONS AT NEGOTIATED PRICES. HE
MAY SELL THE SHARES DIRECTLY, OR MAY SELL THEM THROUGH UNDERWRITERS, BROKERS OR
DEALERS. UNDERWRITERS, BROKERS, OR DEALERS MAY RECEIVE DISCOUNTS, CONCESSIONS OR
COMMISSIONS FROM THE SELLING STOCKHOLDERS OR FROM THE PURCHASER, AND THIS
COMPENSATION MIGHT BE IN EXCESS OF THE COMPENSATION CUSTOMARY IN THE TYPE OF
TRANSACTION INVOLVED. SEE "PLAN OF DISTRIBUTION."
WE WILL NOT RECEIVE ANY OF THE PROCEEDS FROM THE SALE OF THESE SHARES.
OUR COMMON STOCK CURRENTLY TRADES ON THE NASDAQ NATIONAL MARKET UNDER THE SYMBOL
"SYMC." THE LAST REPORTED SALE PRICE ON FEBRUARY 25, 2000 WAS $71.75 PER SHARE.
-------------------------
INVESTING IN SYMANTEC COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING
ON PAGE 3.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
In connection with this offering, no dealer, salesperson or other person is
authorized to give any information or to make any representation not contained
in this prospectus. If information is given or representations are made, you may
not rely on that information or representations as having been authorized by us.
This prospectus is neither an offer to sell nor a solicitation of an offer to
buy any securities other than those registered by this prospectus, nor is it an
offer to sell or a solicitation of an offer to buy securities where an offer or
solicitation would be unlawful. You may not imply from the delivery of this
prospectus, nor from any sale made under this prospectus, that our affairs are
unchanged since the date of this prospectus or that the information contained in
this prospectus is correct as of any time after the date of this prospectus.
THE DATE OF THIS PROSPECTUS IS MARCH 1, 2000.
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TABLE OF CONTENTS
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Available Information .................. 3
The Company ............................ 3
Risk Factors ........................... 3
Use of Proceeds ........................ 9
Dilution ............................... 9
Selling Stockholders ................... 10
Plan of Distribution ................... 11
Legal Matters .......................... 13
Incorporation of Documents by
Reference ............................. 13
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This prospectus includes forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. When used in this prospectus, the words "anticipate,"
"believe," "estimate," "will," "should," "could," "may," "intend" "expect"
"plan," "anticipate," "believe," "estimate," "predict," "potential," or
"continue" or similar expressions identify certain of such forward-looking
statements. Although we believe that our plans, intentions and expectations
reflected in such forward-looking statements are reasonable, we can give no
assurance that such plans, intentions or expectations will be achieved. Actual
results, performance or achievements could differ materially from those
contemplated, expressed or implied by the forward-looking statements contained
in this prospectus. Important factors that could cause actual results to differ
materially from our forward-looking statements are set forth in this prospectus,
including under the heading "Risk Factors". These factors are not intended to
represent a complete list of the general or specific factors that may affect us.
It should be recognized that other factors, including general economic factors
and business strategies, may be significant, presently or in the future, and the
factors set forth herein may affect us to a greater extent than indicated. All
forward-looking statements attributable to us or persons acting on our behalf
are expressly qualified in their entirety by the cautionary statements set forth
herein. Except as required by law, we undertake no obligation to update any
forward-looking statement, whether as a result of new information, future events
or otherwise.
Unless the context otherwise requires, the terms "we," "our," "us," "the
company" and "Symantec" refer to Symantec Corporation., a Delaware corporation.
AVAILABLE INFORMATION
Because we are subject to the informational requirements of the
Securities Exchange Act of 1934, we file reports and other information with the
Securities and Exchange Commission. Reports, registration statements, proxy and
information statements and other information that we have filed can be inspected
and copied at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain copies
of this material from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 at rates prescribed by the
Commission. The public may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330. The Commission also
maintains a web site that contains reports, proxy and information statements and
other information that is filed electronically with the Commission. This web
site can be accessed at http://www.sec.gov.
We have filed with the Commission a Registration Statement on Form S-8
under the Securities Act of 1933 with respect to the shares of common stock
offered hereby. This Prospectus does not contain all of the information set
forth in the Registration Statement and the exhibits and schedules thereto. For
further information with respect to us and the common stock offered hereby,
reference is made to the Registration Statement and the exhibits and schedules
filed therewith. Statements contained in this Prospectus as to the contents of
any contract or any other document referred to are not necessarily complete, and
in each instance reference is made to the copy of such contract or other
document filed as an exhibit to the Registration Statement, each such statement
being qualified in all respects by such reference. A copy of the Registration
Statement may be inspected without charge at the Commission's principal office
in Washington, D.C., and copies of all or any part of it may be obtained from
that office after payment of fees prescribed by the Commission.
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THE COMPANY
Our principal executive offices are located at 20330 Stevens Creek
Blvd., Cupertino, California 95014 and our telephone number is (408) 253-9600.
RISK FACTORS
You should carefully consider the following risks before making an
investment decision. You should carefully consider these risk factors, together
with all of the other information contained or incorporated by reference in this
prospectus, before you decide to purchase shares of our common stock. These
factors could cause our future results to differ materially from those expressed
or implied in forward-looking statements made by us. The risks and uncertainties
described below are not the only ones we face. Additional risks and
uncertainties not presently known to us or that we currently deem immaterial may
also harm our business. The trading price of our common stock could decline due
to any of these risks, and you may lose all or part of your investment.
THE MARKET FOR OUR PRODUCTS IS INTENSELY COMPETITIVE AND WE EXPECT THAT
COMPETITION WILL CONTINUE AND MAY INCREASE. Our intensely competitive market is
influenced by the strategic direction of major microcomputer hardware
manufacturers and operating system providers. Our competitiveness depends on our
ability to enhance existing products and to offer successful new products on a
timely basis. We have limited resources and must restrict product development
efforts to a relatively small number of projects.
WE FACE INTENSE PRICE-BASED COMPETITION FOR SALES OF OUR PRODUCTS. Price
competition is often intense in the microcomputer software market, especially
for utility and anti-virus products. Many of our competitors have significantly
reduced the price of utility and anti-virus products. Price competition may
continue to increase and become even more significant in the future, which could
result in reducing our profit margins.
INTRODUCTION OF NEW OPERATING SYSTEMS MAY CAUSE SIGNIFICANT FLUCTUATIONS IN OUR
FINANCIAL RESULTS AND STOCK PRICE. If we are unable to successfully and timely
develop products that operate under existing or new operating systems, or if
pending or actual releases of the new operating systems delay the purchase of
our products, our future net revenues and operating results could be materially
adversely affected.
Inclusions of features by Microsoft in new versions of Windows, such as Windows
2000 and Windows 98 Second Edition, which directly compete with our products,
may decrease or delay the demand for certain of our products, including those
currently under development and products specifically intended for Windows 2000.
Additionally, as hardware vendors incorporate additional server-based network
management and security tools into network operating systems, the demand may
decrease for some of our products, including those currently under development.
Our financial results and our stock price declined significantly within
approximately 6 months after the releases of Windows 3.1, Windows 95 and Windows
98, which in some cases also caused the additional requirement for hardware
upgrades, resulting in shifts in customer spending from software to hardware.
Windows 2000 is expected to be released beginning in February 2000 and as a
result, we could face adverse financial results and additional stock price
declines.
With the rise of Linux-based operating systems being introduced into the market,
we may lose market share if we are unable to capture the Linux-based market
timely and effectively.
OUR EARNINGS AND STOCK PRICE ARE SUBJECT TO SIGNIFICANT FLUCTUATIONS. Due to the
factors noted throughout this section, our earnings and stock price have been
and may continue to be subject to significant volatility. There have been
previous quarters in which we have experienced shortfalls in revenue and
earnings from levels expected by securities analysts and investors, which have
had an immediate and significant adverse effect on the trading price of our
common stock. This may occur again in the future.
WE MUST MANAGE AND RESTRUCTURE OUR EXPANDING OPERATIONS EFFECTIVELY. We
continually evaluate our product and corporate strategy. We have recently
undertaken organizational changes, particularly related to our focus on the
enterprise market. We also have divested the Visual Cafe product line and
substantially all of the ACT! product line in order to effectively direct our
focus and it is likely that we will in the future undertake additional
organizational changes and/or product and marketing strategy modifications. As a
result of these changes, we have experienced several changes in our management.
These organizational changes increase the risk that objectives will not be met
due to the allocation of valuable limited resources to implement changes.
Further, due to the uncertain nature of any of these undertakings, these efforts
may not be successful and we may not realize any benefit from these efforts.
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OUR SOFTWARE PRODUCTS AND WEB SITE MAY BE SUBJECT TO INTENTIONAL DISRUPTION.
Although we believe we have sufficient controls in place to prevent intentional
disruptions, we expect to be an ongoing target of such disruptions, such as
software viruses specifically designed to impede the performance of our
products. To date, we have not been significantly affected by any such attempts.
Such viruses could be created and deployed against our products in the future.
Similarly, experienced computer programmers, or hackers, may attempt to
penetrate our network security or the security of our web site. A hacker who
penetrates our network or web site could misappropriate proprietary information
or cause interruptions of our services. We might be required to expend
significant capital and other resources to protect against, or to alleviate,
problems caused by virus creators and hackers.
WE MAY EXPERIENCE REDUCED DEMAND FOR OUR PRODUCTS DUE TO CHANGES IN CUSTOMER
BEHAVIOR RESULTING FROM YEAR 2000 PREPARATION. With the significant requirements
on Year 2000 compliance and functionality, many enterprise customers used their
Information Technology budgets in 1999 to focus on Year 2000 issues. As a
result, budgets for calendar 2000 may be deployed in areas outside of our
customers' Informational Technology departments. As a result, we may experience
reduced sales of our products and services in the first half of calendar 2000.
Now that the Year 2000 rollover has occurred, the demand for our Norton 2000
product is likely to drastically reduce and may have an adverse affect our
future operating results.
WE MUST EFFECTIVELY ADAPT TO CHANGES IN THE DYNAMIC TECHNOLOGICAL ENVIRONMENT.
The following critical issues concerning the commercial use of the Internet
remain unresolved and may affect the use of the Internet as a medium to
distribute or support our software products and the functionality of some of our
products:
- security;
- reliability;
- cost;
- ease of use;
- accessibility;
- quality of service; or
- potential tax or other government regulations.
In addition, new technology in non PC-based environments, such as Palm and
wireless, is gaining acceptance. We must adapt to these changing technological
demands. If we are unsuccessful in timely assimilating changes in the Internet
and non PC-based environments, our future net revenues and operating results
could be adversely affected.
THE RESULTS OF OUR RESEARCH AND DEVELOPMENT EFFORTS ARE UNCERTAIN. We believe
that we will need to incur significant research and development expenditures to
remain competitive. While we perform extensive usability and beta testing of new
products, the products we are currently developing or may develop in the future
may not be technologically successful. In addition, the length of our product
development cycle has generally been greater than we originally expected. We are
likely to experience delays in future product development. If they are not
technologically successful, our resulting products may not achieve market
acceptance or compete effectively with products of our competitors.
WE ARE DEPENDENT UPON CERTAIN DISTRIBUTION CHANNELS. A large portion of our
sales are made through the retail distribution channel, which is subject to
events that create unpredictable fluctuations in consumer demand. Our retail
distribution customers also carry our competitors' products. These retail
distributors may have limited capital to invest in inventory. Their decisions to
purchase our products are partly a function of pricing, terms and special
promotions offered by us and our competitors, over which we have no control and
which we cannot predict. Our agreements with retail distributors are generally
nonexclusive and may be terminated by them or by us without cause.
Some distributors and resellers have experienced financial difficulties in the
past. Distributors that account for a significant portion of our sales may
experience financial difficulties in the future. If these distributors do
experience financial difficulties and we are unable to move their inventories to
other distributors, we may experience reduced sales or increased write-offs,
which would adversely affect our operating results.
WE MAY BE UNSUCCESSFUL IN UTILIZING NEW DISTRIBUTION CHANNELS. We currently
offer a broad range of products and services over the Internet, which is a
relatively new distribution channel for our business. We may not be able to
effectively adapt our existing, or adopt new, methods of distributing our
software products utilizing the rapidly evolving
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Internet and related technologies. The adoption of new channels may adversely
impact existing channels and/or product pricing, which may reduce our future
revenues and profitability.
WE DEPEND ON DISTRIBUTION BY VALUE-ADDED RESELLERS AND INDEPENDENT SOFTWARE
VENDORS FOR A SIGNIFICANT PORTION OF OUR REVENUES. We distribute some of our
products through value added resellers and independent software vendors under
arrangements through which our products are included with these resellers' and
vendors' hardware and software products and services prior to sale by them
through retail channels. If we are unsuccessful in maintaining our current
relationships and securing license agreements with additional value added
resellers and independent software vendors, or if these resellers and vendors
are unsuccessful in selling their products and services, our future net revenues
and operating results may be adversely affected.
CHANNEL FILL AND PRODUCT RETURNS MAY AFFECT OUR NET REVENUES. Our pattern of net
revenues and earnings may be affected by "channel fill." Distributors may fill
their distribution channels in anticipation of price increases, sales promotions
or incentives. Distributors, dealers and end users often delay purchases, cancel
orders or return products in anticipation of the availability of the new version
or new product. As a result, distributor inventories may decrease between the
date we announce a new version or new product and the date of release. Channels
may also become filled simply because the distributors do not sell their
inventories to retail distribution or retailers to end users as anticipated. If
sales to retailers or end-users do not occur at a sufficient rate, distributors
will delay purchases or cancel orders in later periods or return prior purchases
in order to reduce their inventories.
Product returns can occur when we introduce upgrades and new versions of
products or when distributors or retailers have excess inventories. Our return
policy allows distributors, subject to various limitations, to return purchased
products in exchange for new products or for credit towards future purchases.
End users may return our products through dealers and distributors within a
reasonable period from the date of purchase for a full refund. In addition,
retailers may return older versions of our products. We estimate and maintain
reserves for product returns. Future returns could, however, exceed the reserves
we have established, which could have a material adverse affect on our operating
results.
OUR INCREASED SALES OF ENTERPRISE-WIDE SITE LICENSES MAY INCREASE FLUCTUATIONS
IN OUR FINANCIAL RESULTS. We sell enterprise-wide site licenses through the
distribution channel and through corporate resellers. These licensing
arrangements tend to involve a longer sales cycle than sales through other
distribution channels, require greater investment of resources in establishing
the enterprise relationship and can sometimes result in lower operating margins.
The timing of the execution of volume licenses, or their nonrenewal or
renegotiation by large customers, could cause our results of operations to vary
significantly from quarter to quarter and could have a material adverse impact
on our results of operations.
This enterprise market has significantly different characteristics and will
require different skills and resources to penetrate than the retail desktop
application market on which we have concentrated in the past. As this area is
becoming a more significant part of our net revenues, we may experience material
adverse effect on our operating results if we are unsuccessful in capturing or
maintaining a certain level of the enterprise market.
THE TRANSITION TO INTEGRATED SUITES OF UTILITIES MAY RESULT IN REDUCED REVENUES.
Integrated suites of utility products are provided by us and our competitors.
The price of integrated utility suites is significantly less than the aggregate
price of stand-alone products that are included in these utility suites when
sold separately. As a result of the shift to integrated utility suites, price
competition is intense and we have experienced cannibalization of our
stand-alone products that are included within the suite. This may have had an
impact on our revenues and operating income from selling integrated utility
suites rather than individual products. Additionally, our products may not
compete effectively with competitors' products or integrated utility suites
introduced in the future.
WE DEPEND ON OUR INTERNAL COMMUNICATIONS SYSTEMS THAT MAY BE DISRUPTED. Our
order entry and product shipping centers are geographically dispersed. A
business disruption could occur as a result of natural disasters or the
interruption in service by communications carriers. If our communications
between these centers are disrupted, particularly at the end of a fiscal
quarter, we may suffer an unexpected shortfall in net revenues and a resulting
adverse impact on our operating results. Communications and Internet
connectivity disruptions may also cause delays in customer access to our
Internet-based services or product sales.
WE ARE INVOLVED IN LITIGATION WHICH COULD, AND ANY FUTURE LITIGATION MAY, AFFECT
OUR FINANCIAL RESULTS. From time to time, we may be subject to claims that we
have infringed the intellectual property rights of others, that our products are
not Year 2000 compliant or other product liability claims, or other claims
incidental to our business. We are currently involved in a number of judicial
and administrative proceedings. For a discussion of our current litigation, see
our most
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recent filing on Form 10-Q. We intend to defend and/or pursue all lawsuits
vigorously. We may suffer an unfavorable outcome in one or more of these cases.
We do not expect the final resolution of these lawsuits to have a material
adverse effect on our financial position, individually or in the aggregate.
However, depending on the amount and timing of unfavorable resolutions of these
lawsuits, our future results of operations or cash flows could be materially
adversely affected in a particular period.
INTELLECTUAL PROPERTY LITIGATION
We have been involved in disputes claiming patent infringement in the past and
are currently involved in a number of patent disputes and litigation. Although
infringement claims may ultimately prove to be without merit, they are expensive
to defend and may consume our resources or divert our attention from day-to-day
operations. If a third party alleges that we have infringed their intellectual
property rights, we may choose to litigate the claim and/or seek an appropriate
license from the third party. If we engage in litigation and the third party is
found to have a valid patent claim against us and a license is not available on
reasonable terms, our business, operating results and financial condition may be
materially adversely affected.
YEAR 2000 - PRODUCT LIABILITY LITIGATION
We believe the software products that we currently develop and actively market
are Year 2000 compliant for significantly all functionality. However, these
products could contain errors or defects related to the Year 2000. In addition,
earlier versions of our products, those that are not the most currently released
or are not currently being developed, may not be Year 2000 compliant. We have
sold some of our older products prior to June 1999, which are not being actively
developed and updated. These older products are also not necessarily Year 2000
compliant and are no longer sold by us.
SOFTWARE DEFECTS AND PRODUCT LIABILITY
Software products frequently contain errors or defects, especially when first
introduced or when new versions or enhancements are released. We have not
experienced any material adverse effects resulting from any of these defects or
errors to date and we test our products prior to release. Nonetheless, defects
and errors could be found in current versions of our products, future upgrades
to current products or newly developed and released products. Software defects
could result in delays in market acceptance or unexpected reprogramming costs,
which could materially adversely affect our operating results. Most of our
license agreements with customers contain provisions designed to limit our
exposure to potential product liability claims. It is possible, however, that
these provisions limiting our liability may not be valid as a result of federal,
state, local or foreign laws or ordinances or unfavorable judicial decisions. A
successful product liability claim could have a material adverse affect on our
business, operating results and financial condition.
OUR INDUSTRY IS CHARACTERIZED BY RAPID TECHNOLOGICAL CHANGE AND WE WILL NEED TO
ADAPT OUR DEVELOPMENT TO THESE CHANGES. We participate in a highly dynamic
industry characterized by rapid change and uncertainty relating to new and
emerging technologies and markets. Future technology or market changes may cause
certain of our products to become obsolete more quickly than expected.
THE TREND TOWARD CONSOLIDATION IN OUR INDUSTRY MAY IMPEDE OUR ABILITY TO COMPETE
EFFECTIVELY. As consolidation in the software industry continues, fewer
companies compete in certain markets, changing the nature of the market and
potentially providing consumers with fewer choices. Also, some of these
companies offer a broader range of products than we do, ranging from desktop to
enterprise solutions. We may not be able to compete effectively against these
competitors. The trend toward consolidation in our industry may result in
increased competition in acquiring these technologies, companies or products,
resulting in increased acquisition costs or the inability to acquire the desired
technologies, companies or products. Any of these changes may have a significant
adverse effect on our future revenues and operating results. Furthermore, we use
strategic acquisitions, as necessary, to acquire technology, people and products
for our overall product strategy. We completed a number of acquisitions and
dispositions of technologies, companies and products in the past 18 months. We
may acquire and dispose of other technologies, companies and products in the
future. We may encounter difficulties in integrating the operations and
employees of, and realizing certain economies of scale from, past and future
acquisitions. In addition, we may need to secure financing to pay for future
acquisitions. Acquisition financing may not be available on favorable terms or
at all. We typically incur significant expenses in connection with our
acquisitions. Future acquisitions may have a significant adverse impact on our
future profitability and financial resources.
WE MUST ATTRACT AND RETAIN PERSONNEL WHILE COMPETITION FOR PERSONNEL IN OUR
INDUSTRY IS INTENSE. We believe that our future success will depend in part on
our ability to recruit and retain highly skilled management, marketing and
technical personnel, particularly as we focus on enterprise-wide applications.
Competition in recruiting personnel in the
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software industry is intense. To accomplish this, we believe that we must
provide personnel with a competitive compensation package, including stock
options, which requires ongoing stockholder approval.
WE RELY ON INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS. We regard our software
as proprietary and underlying technology as proprietary. We seek to protect our
proprietary rights through a combination of confidentiality agreements and
copyright, patent, trademark and trade secret laws. However, we do not employ
technology to prevent copying of our products. Third parties may copy aspects of
our products or otherwise obtain and use our proprietary information without
authorization or develop similar technology independently. All of our products
are protected by copyright and we have a number of patents and patent
applications pending. We may not achieve the desired protection from, and third
parties may design around, our patents. In addition, existing copyright laws
afford limited practical protection. Furthermore, the laws of some foreign
countries do not offer the same level of protection of our proprietary rights as
the laws of the United States. Any legal action that we may bring to protect
proprietary information could be expensive and may distract management from
day-to-day operations.
WE MAY EXPERIENCE DISRUPTION OF OUR INTERNAL SYSTEMS AS A RESULT OF THE YEAR
2000. In order to prepare for the Year 2000, we completed a major evaluation of
our internal applications, systems and databases. We modified or replaced
portions of our hardware and associated software to enable our operational
systems and networks to function properly with respect to dates January 1, 2000
and thereafter. We will continue to evaluate interfaces between our systems and
third-party systems, such as those of key suppliers, distributors and financial
institutions, for Year 2000 functionality. Although the Year 2000 rollover did
not cause any significant problems, as discussed below, we may still encounter
problems as operations uncover processes not yet utilized. In addition, the
systems of other companies with which we do business may not have completely
addressed Year 2000 problems. Based on this, we expect the process of evaluating
third-party Year 2000 compliance to be an ongoing process.
Each sub-project has been successfully completed. As a result of the rollover,
we did not experience any significant Year 2000 problems nor any destructive
viruses, either to our organization or to our products in place with customers.
The cost to complete the Year 2000 project was approximately $1.5 million and
has been expensed as incurred.
We believe that, following the rollover, we will not suffer significant
operational problems with our computer systems due to the Year 2000. However, we
will continue to monitor any Year 2000 problems, including the Leap Year
transition.
OUR QUARTERLY FINANCIAL RESULTS ARE SUBJECT TO SIGNIFICANT FLUCTUATIONS. While
our diverse product line has tended to lessen fluctuations in quarterly net
revenues, these fluctuations have occurred in the past, and may occur in the
future. Fluctuations may be caused by a number of factors, including:
- the timing of announcements and releases of new or enhanced
versions of our products and product upgrades;
- the introduction of competitive products by existing or new
competitors;
- reduced demand for any given product;
- seasonality in the end-of-period buying patterns of foreign and
domestic software markets; and
- the market's transition between operating systems.
A significant proportion of our revenues are generated during the last month of
a fiscal quarter. Most resellers tend to make a majority of their purchases at
the end of a fiscal quarter. In addition, many enterprise customers negotiate
site licenses near the end of each quarter. In part, this is because these two
groups are able, or believe that they are able, to negotiate lower prices and
more favorable terms. Our reliance on a large proportion of revenue occurring at
the end of the quarter and the increase in the dollar value of transactions that
occur at the end of a quarter can result in increased uncertainty relating to
quarterly revenues. Due to this end-of-period buying pattern, forecasts may not
be achieved, either because expected sales do not occur or because they occur at
lower prices or on terms that are less favorable to us. In addition, these
factors increase the chances that our results could diverge from the
expectations of investors and analysts.
WE FACE RISKS ASSOCIATED WITH OUR FOREIGN OPERATIONS. A significant portion of
our revenues, manufacturing costs and operating expenses result from
transactions outside of the United States, often in foreign currencies. As a
result, our operating results may be materially and adversely affected by
fluctuations in currency exchange rates and general uncertainty with each
country's political and economic structure.
INCREASED UTILIZATION AND COSTS OF OUR TECHNICAL SUPPORT SERVICES MAY ADVERSELY
AFFECT OUR FINANCIAL RESULTS. Like many companies in the software industry,
technical support costs comprise a significant portion of our operating costs
and expenses. Over the short term, we may be unable to respond to fluctuations
in customer demand for support services. We also may be unable to modify the
format of our support services to compete with changes in support services
provided by competitors.
7
<PAGE> 9
THE CONVERSION OF THE EUROPEAN CURRENCIES TO THE EURO MAY IMPACT OUR FOREIGN
EXCHANGE HEDGING PROGRAM. On January 1, 1999, the euro became the common
currency of 11 of the 15 member countries of the European Union. The national
currencies of these 11 countries will coexist with the euro at fixed exchange
rates through December 31, 2001. Euro denominated bills and coins will be
introduced on January 1, 2002 and, by July 1, 2002, the national currencies will
no longer be legal tender. We expect that the euro will dictate changes in our
foreign exchange hedging program. These changes may lead to increased
fluctuations in foreign currency hedging results. Based on current information,
we do not believe that the euro will have a material adverse impact on our
operations or financial condition.
8
<PAGE> 10
USE OF PROCEEDS
We will not receive any proceeds from the sales of our common stock by
the selling stockholder under this prospectus.
DILUTION
As of January 28, 2000, our net tangible book value was approximately
$474 million, or $7.98 per share of common stock. The net tangible book value
per share represents the amount of our total tangible assets less total
liabilities, divided by 59,393,072 shares of common stock outstanding at January
28, 2000. Dilution in net tangible book value per share represents the
difference between the amount per share paid by purchasers of shares of our
common stock in this offering and the net tangible book value per share of our
common stock immediately following this offering.
We will not receive any proceeds from the sale of the common stock by
the selling stockholders under this prospectus and the shares offered under this
prospectus are already outstanding. Accordingly, the amount of our total
tangible assets, total liabilities and shares of common stock outstanding will
not change as a result of the sale of any of the shares offered under this
prospectus. Therefore, our net tangible book value and net tangible book value
per share immediately following this offering will remain unchanged from the
numbers set forth above, assuming that no additional shares of common stock are
issued after the date of this prospectus.
Assuming that the shares offered under this prospectus are sold at a
price of $71.75, the closing price of our common stock on February 25, 2000, new
purchasers of the shares will experience an immediate dilution of $63.77 per
share. The following table illustrates the per share dilution:
<TABLE>
<S> <C>
Assumed offering price per share ......................... $71.75
Net tangible book value per share after this offering .... 7.98
------
Dilution per share to new purchasers ..................... $63.77
======
</TABLE>
Please note that the last sale price of our common stock on February 25,
2000 was $71.75. Accordingly, assuming that the shares offered under this
prospectus are sold at that price and that our net tangible book value per share
has not changed since January 28, 2000, new purchasers of the shares will
experience an immediate dilution of $63.77 per share.
The above discussion and table assume no exercise of any stock options
or warrants for common stock outstanding as of January 28, 2000. If any of these
options or warrants are exercised, there will be further dilution to new
purchasers.
9
<PAGE> 11
SELLING SECURITY HOLDERS
The following table sets forth certain information regarding the shares
beneficially owned by the selling stockholder named below as of February 25,
2000, the shares that may be offered and sold from time to time by the selling
stockholder pursuant to this prospectus, assuming such selling stockholder sells
all of the shares offered in this prospectus, and the nature of any position,
office or other material relationship which each selling stockholder has had
with Symantec or any of its predecessors or affiliates within the past three
years. The selling stockholder named below, together with any pledgee or donee
of such selling stockholders, and any person who may purchase shares offered
hereby from such selling stockholder in a private transaction in which they are
assigned the stockholders' rights to registration of their shares, are referred
to in this prospectus as the "selling stockholder." Because the selling
stockholder may offer from time to time all or some of their shares under this
prospectus, no assurances can be given as to the actual number of shares that
will be sold by any selling stockholder or that will be held by the selling
stockholder after completion of the sales. Information concerning the selling
stockholder may change from time to time and any changed information will be set
forth in supplements to this prospectus if and when necessary.
Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission that consider shares to be beneficially owned
by any person who has voting or investment power with respect to the shares.
Common stock subject to options that are currently exercisable or exercisable
within 60 days after February 25, 2000 are considered to be outstanding and to
be beneficially owned by the person holding the options. Based upon the
59,393,072 outstanding shares of common stock as of January 28, 2000, and
assuming that the selling stockholder sells all of the shares offered in this
prospectus, the selling stockholder will not own one percent or more of our
outstanding shares of common stock after the completion of this offering.
<TABLE>
<CAPTION>
SHARES OWNED SHARES OWNED
NAME BEFORE OFFERING(1) SHARES OFFERED AFTER OFFERING
---- ------------------ -------------- --------------
<S> <C> <C> <C>
John W. Thompson 303,000 100,000 203,000
------- ------- -------
TOTALS 303,000 100,000 203,000
</TABLE>
(1) Represents 103,000 shares held by Mr. Thompson and 200,000 shares
subject to options exercisable within 60 days of the date of this
prospectus. Included in the shares held by Mr. Thompson are 100,000
shares subject to a lapsing repurchase right in favor of the Company,
which lapses with respect to 50,000 shares on April 14, 2000 and 50,000
shares on April 14, 2001. Mr. Thompson has served as Chairman of the
Board, President and Chief Executive Officer of Symantec since April
1999. Prior to then, Mr. Thompson had no material relationship with
Symantec. The address for Mr. Thompson is c/o Symantec Corporation,
20330 Stevens Creek Blvd., Cupertino, CA 95014.
10
<PAGE> 12
PLAN OF DISTRIBUTION
The selling stockholder and their successors, including their
transferees, pledgees or donees or their successors, may sell the common stock
offered under this prospectus directly to purchasers or through underwriters,
broker-dealers or agents, who may receive compensation in the form of discounts,
concessions or commissions from the selling stockholder or the purchasers. These
discounts, concessions or commissions as to any particular underwriter,
broker-dealer or agent may be in excess of those customary in the types of
transactions involved. Neither Symantec nor the selling stockholder can
presently estimate the amount of this compensation.
The common stock offered under this prospectus may be sold in one or
more transactions at fixed prices, at prevailing market prices at the time of
sale, at prices related to the prevailing market prices, at varying prices
determined at the time of sale, or at negotiated prices. These sales may be
affected in transactions, which may involve crosses or block transactions:
- on any national securities exchange or U.S. inter-dealer system
of a registered national securities association on which the
common stock may be listed or quoted at the time of sale;
- in the over-the-counter market;
- in transactions otherwise than on these exchanges or systems or
in the over-the-counter market;
- through the writing of options, whether the options are listed
on an options exchange or otherwise; or
- through the settlement of short sales.
In connection with the sale of the common stock, the selling stockholder
may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the common stock in the
course of hedging the positions they assume. The selling stockholder may also
sell the common stock short and deliver these securities to close out their
short positions, or loan or pledge the common stock to broker-dealers that in
turn may sell these securities.
The aggregate proceeds to the selling stockholder from the sale of the
common stock offered by them will be the purchase price of the common stock less
discounts and commissions, if any. Each of the selling stockholder reserves the
right to accept and, together with their agents from time to time, to reject, in
whole or in part, any proposed purchase of common stock to be made directly or
through agents. Symantec will not receive any of the proceeds from this
offering.
Symantec's outstanding common stock is listed for trading on the Nasdaq
National Market.
The selling stockholder and any underwriters, broker-dealers or agents
that participate in the sale of the common stock may be "underwriters" within
the meaning of Section 2(11) of the Securities Act. Any discounts, commissions,
concessions or profit they earn on any resale of the shares may be underwriting
discounts and commissions under the Securities Act. If the selling stockholder
is an "underwriters" within the meaning of Section 2(11) of the Securities Act,
he will be subject to the prospectus delivery requirements of the Securities
Act.
In addition, any securities covered by this prospectus which qualify for
sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144
rather than pursuant to this prospectus. A selling stockholder may not sell any
common stock described in this prospectus and may not transfer, devise or gift
these securities by other means not described in this prospectus.
To the extent required, the specific common stock to be sold, the names
of the selling stockholder, the respective purchase prices and public offering
prices, the names of any agent, dealer or underwriter, and any applicable
commissions or discounts with respect to a particular offer will be set forth in
an accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement of which this prospectus is a part. This
prospectus also may be used, with Symantec's consent, by donees or pledgees of
the selling stockholder, or by other persons acquiring shares and who wish to
offer and sell shares under circumstances requiring or making desirable its use.
In order to comply with the securities laws of some states, if
applicable, the common stock may be sold in these jurisdictions only through
registered or licensed brokers or dealers.
11
<PAGE> 13
The common stock offered under this prospectus was originally issued by
Symantec in connection with a restricted stock purchase agreement entered into
in connection with the employment of the selling stockholder pursuant to
exemptions from the registration requirements of the Securities Act provided by
Section 4(2) thereof and/or Regulation D promulgated thereunder. In connection
with the employment of the selling stockholder, Symantec agreed to register the
shares of common stock offered under this prospectus under the Securities Act.
Symantec and the selling stockholder have agreed to indemnify each other, and
their respective controlling persons, against specific liabilities, including
liabilities arising under the Securities Act and Exchange Act, in connection
with the offer and sale of the shares. In addition, the selling stockholder may
indemnify brokers, dealers, agents or underwriters that participate in
transactions involving sales of the shares against specific liabilities,
including liabilities arising under the Securities Act and/or Exchange Act.
Symantec will pay substantially all of the expenses incident to this offering of
the shares by the selling stockholder to the public other than commissions and
discounts of underwriters, brokers, dealers or agents.
12
<PAGE> 14
LEGAL MATTERS
Fenwick & West LLP, Palo Alto, California, will provide Symantec with an
opinion as to legal matters in connection with the Registration Statement
covering the common stock.
INCORPORATION OF DOCUMENTS BY REFERENCE
Except to the extent modified or superseded by information contained
herein, the following documents we have filed with the Commission are
incorporated into this prospectus by reference:
- our Annual Report on Form 10-K for the year ended April 2, 1999;
- our Quarterly Reports on Form 10-Q for the quarters ended July
2, 1999, October 1, 1999 and December 31, 1999;
- our Current Reports on Form 8-K filed with the Commission on
January 14, 2000;
- the description of our common stock contained in our
registration statement on Forms 8-A filed with the Commission on
May 24, 1989 and August 19, 1998 under Section 12(g) of the
Exchange Act, including any amendment or report filed for the
purpose of updating such description; and
- all documents subsequently filed by us pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this prospectus and before the termination of this offering.
To the extent that any statement in this prospectus is inconsistent with
any statement that is incorporated by reference, the statement in this
prospectus shall control. The incorporated statement shall not be deemed, except
as modified or superseded, to constitute a part of this prospectus or the
registration statement.
Because we are subject to the informational requirements of the Exchange
Act, we file reports and other information with the Commission. Reports,
registration statements, proxy and information statements and other information
that we have filed can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain copies of this material from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at rates prescribed by the Commission. The public may obtain information
on the operation of the Public Reference Room by calling the Commission at
1-800-SEC-0330. The Commission also maintains a web site that contains reports,
proxy and information statements and other information that is filed
electronically with the Commission. This web site can be accessed at
http://www.sec.gov.
We have filed with the Commission a registration statement on Form S-8
under the Securities Act with respect to the common stock offered under this
prospectus. This prospectus does not contain all of the information in the
registration statement, parts of which we have omitted, as allowed under the
rules and regulations of the Commission. You should refer to the registration
statement for further information with respect to us and our common stock.
Statements contained in this prospectus as to the contents of any contract or
other document are not necessarily complete and, in each instance, we refer you
to the copy of each contract or document filed as an exhibit to the registration
statement. Copies of the registration statement, including exhibits, may be
inspected without charge at the Commission's principal office in Washington,
D.C., and you may obtain copies from this office upon payment of the fees
prescribed by the Commission.
We will furnish without charge to each person to whom this prospectus is
delivered, upon written or oral request of such person, a copy of any and all of
the information that has been incorporated by reference in this prospectus (not
including exhibits to the information that is incorporated by reference unless
such exhibits are specifically incorporated by reference into the information
that this Prospectus incorporates). You should direct any requests for copies to
Investor Relations, Symantec Corporation, 20330 Stevens Creek Blvd., Cupertino,
CA 95014.
13
<PAGE> 15
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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) Registrant's Form 10-K filed pursuant to 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which contains audited financial statements of Registrant
as of March 31, 1998 and 1999 and for each of the years in the
three-year period ended March 31, 1999.
(b) Registrants Current Reports on Form 8-K filed with the
Commission on January 14, 2000.
(c) Registrant's Form 10-Q filed pursuant to 13 or 15(d) of the
Exchange Act for the quarterly periods ended July 2, 1999,
October 1, 1999 and December 31, 1999.
(d) 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.
(e) The description of Registrant's preferred stock purchase rights
under the caption "Description of Registrant's Securities to be
Registered" on pages 2 through 5 of the Registrant's Form 8-A
filed on August 19, 1998, and any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act").
As permitted by Section 145 of the Delaware General Corporation Law,
Registrant's Certificate of Incorporation includes a provision that eliminates
the personal liability of its directors for monetary damages for breach of
fiduciary duty as a director, except for liability:
- for any breach of the director's duty of loyalty to Registrant
or its stockholders;
- for acts or omissions not in good faith or that involve
intentional misconduct or a knowing
2
<PAGE> 16
violation of law;
- under Section 174 of the Delaware General Corporation Law
regarding unlawful dividends and stock purchases; and
- for any transaction from which the director derived an improper
personal benefit.
As permitted by the Delaware General Corporation Law, Registrant's
Bylaws provide that:
- Registrant is required to indemnify its directors and officers
to the fullest extent permitted by the Delaware General
Corporation Law, subject to limited exceptions;
- Registrant may indemnify its other employees and agents to the
extent that it indemnifies its officers and directors, unless
otherwise required by law, its certificate of incorporation, its
bylaws or agreements to which it is a party;
- Registrant is required to advance expenses, as incurred, to its
directors and officers in connection with a legal proceeding to
the fullest extent permitted by the Delaware General Corporation
Law, subject to limited exceptions; and
- the rights conferred in the Bylaws are not exclusive.
Registrant has entered into Indemnity Agreements with each of its
current directors and officers to give such directors and officers additional
contractual assurances regarding the scope of the indemnification set forth in
Registrant's Certificate of Incorporation and to provide additional procedural
protections. At present, there is no pending litigation or proceeding involving
a director, officer or employee of Registrant regarding which indemnification is
sought, nor is Registrant aware of any threatened litigation that may result in
claims for indemnification.
Registrant maintains directors' and officers' liability insurance and
intends to extend that coverage for public securities matters.
See also the undertakings set out in response to Item 9.
Reference is also made to the following documents filed as exhibits to
this registration statement regarding relevant indemnification provisions
described above and elsewhere herein:
<TABLE>
<CAPTION>
EXHIBIT DOCUMENT NUMBER
- ---------------- ------
<S> <C>
Registrant's Restated Certificate of Incorporation. (Incorporated by 4.01
reference to Annex G filed with the Registrant's Joint Management Information
Circular and Proxy Statement (No. 000-17781) dated October 17, 1995.)
Registrant's Bylaws, as amended and restated effective August 11, 1998. 4.02
(Incorporated by reference to Exhibit 3.1 filed with the Registrant's Current
Report 8-K filed August 19, 1998.)
</TABLE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
3
<PAGE> 17
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER TITLE
- ------ -----
<S> <C>
4.01 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.)
4.02 Registrant's Bylaws, as amended and restated effective August 11, 1998.
(Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Current Report 8-K filed August 19, 1998.)
4.03 Symantec Corporation Restricted Stock Purchase Agreement (April 14,
1999).
5.01 Opinion of Fenwick & West LLP regarding legality of the securities being
registered.
23.01 Consent of Ernst & Young LLP, Independent Auditors.
24.01 Power of Attorney (see the signature page to this Registration
Statement).
</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:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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
(c) 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)(a) and (1)(b) 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 with or furnished to the
Commission by 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 which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of 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.
4
<PAGE> 18
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Registrant pursuant to the provisions discussed in Item 6 hereof, or
otherwise, 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 Registrant of expenses
incurred or paid by a director, officer or controlling person of 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, 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.
5
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 this 29th day of
February, 2000.
SYMANTEC CORPORATION
By: /s/ JOHN W. THOMPSON
---------------------------------------
John W. Thompson
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints John W. Thompson, Greg Myers and Derek
Witte, and each of them, his true and lawful attorney-in-fact and agent with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement on Form S-8, and to file the same
with all exhibits thereto and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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
--------- ----- ----
PRINCIPAL EXECUTIVE OFFICER:
<S> <C> <C>
/s/ JOHN W. THOMPSON Chairman of the Board, February 29, 2000
- --------------------------------- President and Chief Executive
John W. Thompson Officer
PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER
/s/ GREG MYERS Chief Financial Officer, Vice February 29, 2000
- --------------------------------- President of Finance
Greg Myers
ADDITIONAL DIRECTORS
/s/ CARL D. CARMAN Director February 29, 2000
- ---------------------------------
Carl D. Carman
/s/ WALTER W. BREGMAN Director February 29, 2000
- ---------------------------------
Walter W. Bregman
/s/ ROBERT S. MILLER Director February 29, 2000
- ---------------------------------
Robert S. Miller
/s/ CHARLES M. BOESENBERG Director February 29, 2000
- ---------------------------------
Charles M. Boesenberg
/s/ ROBERT R.B. DYKES Director February 29, 2000
- ---------------------------------
Robert R.B. Dykes
</TABLE>
6
<PAGE> 20
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER TITLE
- ------ -----
<S> <C>
4.01 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.)
4.02 Registrant's Bylaws, as amended and restated effective August 11, 1998.
(Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Current Report 8-K filed August 19, 1998.)
4.03 Symantec Corporation Restricted Stock Purchase Agreement (April 14,
1999).
5.01 Opinion of Fenwick & West LLP regarding legality of the securities being
registered.
23.01 Consent of Ernst & Young LLP, Independent Auditors.
24.01 Power of Attorney (see the signature page to this Registration
Statement).
</TABLE>
<PAGE> 1
EXHIBIT 4.03
SYMANTEC CORPORATION
RESTRICTED STOCK PURCHASE AGREEMENT
This Restricted Stock Purchase Agreement (the "AGREEMENT") is made and
entered into as of APRIL 14, 1999 (the "EFFECTIVE DATE") by and between Symantec
Corporation, a Delaware corporation (the "COMPANY"), and the purchaser named
below (the "PURCHASER").
<TABLE>
<S> <C>
PURCHASER: JOHN W. THOMPSON
------------------------------
SOCIAL SECURITY NUMBER:
------------------------------
ADDRESS: 82 OLD HILL ROAD
------------------------------
WESTPORT, CONNECTICUT 06880
------------------------------
TOTAL NUMBER OF SHARES: 100,000
------------------------------
PURCHASE PRICE PER SHARE: $0.01
------------------------------
TOTAL PURCHASE PRICE: $1,000.00
------------------------------
</TABLE>
1. PURCHASE OF SHARES.
1.1 Purchase of Shares. On the Effective Date and subject to the
terms and conditions of this Agreement, Purchaser hereby purchases from the
Company, and the Company hereby sells to Purchaser, the Total Number of Shares
set forth above (the "SHARES") of the Company's Common Stock at the Purchase
Price Per Share as set forth above (the "PURCHASE PRICE PER SHARE") for a Total
Purchase Price as set forth above (the "PURCHASE PRICE"). As used in this
Agreement, the term "SHARES" includes the Shares purchased under this Agreement
and all securities received (i) in replacement of the Shares, (ii) as a result
of stock dividends or stock splits with respect to the Shares, and (iii) in
replacement of the Shares in a merger, recapitalization, reorganization or
similar corporate transaction.
1.2 Title to Shares. The exact spelling of the name(s) under
which Purchaser will take title to the Shares is:
JOHN W. THOMPSON
Purchaser desires to take title to the Shares as follows:
[X] Individual, as separate property
[ ] Husband and wife, as community property
[ ] Joint Tenants
<PAGE> 2
2. DELIVERY. Purchaser hereby delivers to the Company (i) a duly
executed copy of this Agreement and (ii) payment of the Purchase Price in cash
(by check) in the amount of $1,000.00, receipt of which is acknowledged by the
Company.
3. RESTRICTION ON TRANSFER. Purchaser shall not transfer, assign, grant
a lien or security interest in, pledge, hypothecate, encumber or otherwise
dispose of any of the Shares which are subject to the Company's Repurchase
Option (as defined below) without the Company's prior written consent.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to the Company that:
4.1 Purchase for Own Account for Investment. Purchaser is
purchasing the Shares for Purchaser's own account for investment purposes only
and not with a view to, or for sale in connection with, a distribution of the
Shares within the meaning of the Securities Act. Purchaser has no present
intention of selling or otherwise disposing of all or any portion of the Shares
and no one other than Purchaser has any beneficial ownership of any of the
Shares.
4.2 Access to Information. Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares, and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
4.3 Understanding of Risks. Purchaser is fully aware of: (i) the
highly speculative nature of the investment in the Shares; (ii) the financial
hazards involved; (iii) the lack of liquidity of the Shares and the restrictions
on transferability of the Shares (e.g., that Purchaser may not be able to sell
or dispose of the Shares or use them as collateral for loans); (iv) the
qualifications and backgrounds of the management of the Company; and (v) the tax
consequences of investment in the Shares. Purchaser is capable of evaluating the
merits and risks of this investment, has the ability to protect Purchaser's own
interests in this transaction and is financially capable of bearing a total loss
of this investment.
4.4 No General Solicitation. At no time was Purchaser presented
with or solicited by any publicly issued or circulated newspaper, mail, radio,
television or other form of general advertising or solicitation in connection
with the offer, sale and purchase of the Shares.
5. COMPANY'S REPURCHASE OPTION FOR UNVESTED SHARES. The Company, or its
assignee, shall have the option to repurchase all or a portion of the
Purchaser's Unvested Shares (as defined in Section 5.1 below) on the terms and
conditions set forth in this Section (the "REPURCHASE OPTION") if Purchaser is
terminated for any reason, or no reason, including without limitation
Purchaser's death, disability, voluntary resignation or termination by the
Company with or without cause.
5.1 Unvested and Vested Shares. Shares that are vested pursuant to the
schedule set forth in this Section 5.1 are "VESTED SHARES." Shares that are not
vested pursuant to the schedule set forth in this Section 5.1 are "UNVESTED
SHARES." Unvested Shares may not be sold or otherwise transferred by Purchaser
without the Company's prior written consent. On the Effective Date all of the
Shares will be Unvested Shares. Except as otherwise provided in the
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<PAGE> 3
employment agreement between Purchaser and the Company dated April 11, 1999 (the
"EMPLOYMENT AGREEMENT"), if Purchaser continuously provides services to the
Company or any subsidiary or parent of the Company, 50,000 Shares shall vest on
the first anniversary of Purchaser's employment and the remaining 50,000 Shares
shall vest on the second anniversary of Purchaser's employment. Except as
otherwise set forth in the Employment Agreement, no Shares will become Vested
Shares after the Termination Date. The number of Shares that are Vested Shares
or Unvested Shares will be proportionally adjusted for any stock split or
similar change in the capital structure of the Company.
5.2 Exercise of Repurchase Option. At any time after the
Termination Date, the Company, or its assignee(s), may elect to repurchase any
or all of the Purchaser's Unvested Shares by giving Purchaser written notice of
exercise of the Repurchase Option.
5.3 Calculation of Repurchase Price. The Company or its
assignee(s) shall have the option to repurchase from Purchaser (or from
Purchaser's personal representative as the case may be) the Purchaser's Unvested
Shares at the Purchaser's original Purchase Price Per Share (as adjusted to
reflect any stock split or similar change in the capital structure of the
Company) (the "REPURCHASE PRICE").
6. RIGHTS AS A SHAREHOLDER. Subject to the terms and conditions of this
Agreement, Purchaser will have all of the rights of a shareholder of the Company
with respect to the Shares from and after the date that Purchaser delivers
payment of the Purchase Price until such time as Purchaser disposes of the
Shares or the Company and/or its assignee(s) exercise(s) the Repurchase Option.
Upon an exercise of the Repurchase Option, Purchaser will have no further rights
as a holder of the Shares so purchased upon such exercise, other than the right
to receive payment for the Shares so purchased in accordance with the provisions
of this Agreement, and Purchaser will promptly surrender the stock
certificate(s) evidencing the Shares so purchased to the Company for transfer or
cancellation.
7. STOP-TRANSFER INSTRUCTIONS; REFUSAL TO TRANSFER. Purchaser agrees
that, to ensure compliance with the restrictions imposed by this Agreement, the
Company may issue appropriate "stop-transfer" instructions to its transfer
agent. The Company will not be required (i) to transfer on its books any Shares
that have been sold or otherwise transferred in violation of any of the
provisions of this Agreement or (ii) to treat as owner of such Shares, or to
accord the right to vote or pay dividends to any purchaser or other transferee
to whom such Shares have been so transferred.
8. TAX CONSEQUENCES. PURCHASER UNDERSTANDS THAT PURCHASER MAY SUFFER
ADVERSE TAX CONSEQUENCES AS A RESULT OF PURCHASER'S PURCHASE OR DISPOSITION OF
THE SHARES. PURCHASER REPRESENTS (i) THAT PURCHASER HAS CONSULTED WITH ANY TAX
ADVISER THAT PURCHASER DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR
DISPOSITION OF THE SHARES AND (ii) THAT PURCHASER IS NOT RELYING ON THE COMPANY
FOR ANY TAX ADVICE. Purchaser hereby acknowledges that Purchaser has been
informed that, unless an election is filed by the Purchaser with the Internal
Revenue Service (and, if necessary, the proper state taxing authorities) within
30 days of the purchase of the Shares to be effective, electing pursuant to
Section 83(b) of the Internal Revenue Code (and similar state tax provisions, if
applicable) to be taxed currently on any difference between the Purchase Price
of the Shares
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<PAGE> 4
and their Fair Market Value on the date of purchase, there will be a
recognition of taxable income to the Purchaser, measured by the excess, if any,
of the Fair Market Value of the Vested Shares, at the time they cease to be
Unvested Shares, over the Purchase Price for such Shares. Purchaser represents
that Purchaser has consulted any tax advisers Purchaser deems advisable in
connection with Purchaser's purchase of the Shares and the filing of the
election under Section 83(b) and similar tax provisions. A form of Election
under Section 83(b) is attached hereto as Exhibit 1 for reference. PURCHASER
HEREBY ASSUMES ALL RESPONSIBILITY FOR FILING SUCH ELECTION AND PAYING ANY TAXES
RESULTING FROM SUCH ELECTION OR FROM FAILURE TO FILE THE ELECTION AND PAYING
TAXES RESULTING FROM THE LAPSE OF THE REPURCHASE RESTRICTIONS ON THE UNVESTED
SHARES.
9. COMPLIANCE WITH LAWS AND REGULATIONS. The issuance and transfer of
the Shares will be subject to and conditioned upon compliance by the Company and
Purchaser with all applicable state and federal laws and regulations and with
all applicable requirements of any stock exchange or automated quotation system
on which the Company's Common Stock may be listed or quoted at the time of such
issuance or transfer.
10. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Agreement, including its rights to repurchase Shares under the
Repurchase Option. This Agreement shall be binding upon and inure to the benefit
of the successors and assigns of the Company. Subject to the restrictions on
transfer herein set forth, this Agreement will be binding upon Purchaser and
Purchaser's heirs, executors, administrators, legal representatives, successors
and assigns.
11. GOVERNING LAW; SEVERABILITY. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California as
such laws are applied to agreements between California residents entered into
and to be performed entirely within California, excluding that body of laws
pertaining to conflict of laws. If any provision of this Agreement is determined
by a court of law to be illegal or unenforceable, then such provision will be
enforced to the maximum extent possible and the other provisions will remain
fully effective and enforceable.
12. NOTICES. Any notice required to be given or delivered to the Company
shall be in writing and addressed to the Corporate Secretary of the Company at
its principal corporate offices. Any notice required to be given or delivered to
Purchaser shall be in writing and addressed to Purchaser at the address
indicated above or to such other address as Purchaser may designate in writing
from time to time to the Company. All notices shall be deemed effectively given
upon personal delivery, (i) three (3) days after deposit in the United States
mail by certified or registered mail (return receipt requested), (ii) one (1)
business day after its deposit with any return receipt express courier
(prepaid), or (iii) one (1) business day after transmission by facsimile.
13. FURTHER INSTRUMENTS. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
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<PAGE> 5
14. HEADINGS. The captions and headings of this Agreement are included
for ease of reference only and will be disregarded in interpreting or construing
this Agreement. All references herein to Sections will refer to Sections of this
Agreement.
15. ENTIRE AGREEMENT. The Employment Agreement and this Agreement
constitute the entire agreement and understanding of the parties with respect to
the subject matter of this Agreement, and supersede all prior understandings and
agreements, whether oral or written, between the parties hereto with respect to
the specific subject matter hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
in triplicate by its duly authorized representative and Purchaser has executed
this Agreement in triplicate as of the Effective Date.
SYMANTEC CORPORATION PURCHASER
By: /s/ Derek Witte /s/ John W. Thompson
------------------------ -----------------------------------
(Signature)
Derek Witte John W. Thompson
- --------------------------- -----------------------------------
(Please print name) (Please print name)
VP, Worldwide Operations
- ---------------------------
(Please print title)
[SIGNATURE PAGE TO SYMANTEC CORPORATION RESTRICTED STOCK PURCHASE AGREEMENT]
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LIST OF EXHIBITS
Exhibit 1: Election Under Section 83(b) of the Internal Revenue Code
<PAGE> 8
EXHIBIT 1
ELECTION UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE
<PAGE> 9
ELECTION UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE
The undersigned Taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code, as amended, to include in gross income for the Taxpayer's
current taxable year the excess, if any, of the fair market value of the
property described below at the time of transfer over the amount paid for such
property, as compensation for services.
1. TAXPAYER'S NAME: JOHN W. THOMPSON
----------------------------------------
TAXPAYER'S ADDRESS: C/O SYMANTEC CORPORATION
----------------------------------------
10301 TORRE AVENUE, CUPERTINO, CA 95014
----------------------------------------
SOCIAL SECURITY NUMBER:
----------------------------------------
2. The property with respect to which the election is made is described as
follows: 100,000 SHARES OF COMMON STOCK OF SYMANTEC CORPORATION, A
DELAWARE CORPORATION (the "COMPANY"), which is Taxpayer's employer or
the corporation for whom the Taxpayer performs services.
3. The date on which the shares were transferred pursuant to the exercise
of the option was APRIL 14, 1999 and this election is made for calendar
year 1999.
4. The shares are subject to the following restrictions: THE COMPANY MAY
REPURCHASE ALL OR A PORTION OF THE SHARES AT THE TAXPAYER'S ORIGINAL
PURCHASE PRICE UNDER CERTAIN CONDITIONS AT THE TIME OF TAXPAYER'S
TERMINATION OF EMPLOYMENT OR SERVICES.
5. The fair market value of the shares (without regard to restrictions
other than restrictions which by their terms will never lapse) was
$13.00 per share at the time of transfer.
6. The amount paid for such shares was $0.01 per share.
7. The Taxpayer has submitted a copy of this statement to the Company.
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE ("IRS"), AT THE
OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS, WITHIN 30 DAYS AFTER
THE DATE OF TRANSFER OF THE PROPERTY, AND MUST ALSO BE FILED WITH THE TAXPAYER'S
INCOME TAX RETURNS FOR THE CALENDAR YEAR. THE ELECTION CANNOT BE REVOKED WITHOUT
THE CONSENT OF THE IRS.
Dated: 5-5-99 /s/ John W. Thompson
----------------- ------------------------------
Taxpayer's Signature
<PAGE> 1
EXHIBIT 5.01
March 1, 2000
SYMANTEC CORPORATION
20330 Stevens Creek Boulevard
Cupertino, California 95014-2132
(408) 253-9600
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 "COMMISSION") on or about March 1, 2000 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 100,000 shares of your Common Stock (the "STOCK"), acquired by John
W. Thompson under your Symantec Corporation Restricted Stock Purchase Agreement
(April 14, 1999) (the "PLAN") and offered for resale by him. In rendering this
opinion, we have examined the following:
(1) the Registration Statement, together with the Exhibits filed, or
incorporated therein by reference as a part thereof;
(2) your Form 10-K filed pursuant to 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), which contains your audited financial statements as of
March 31, 1998 and 1999 and for each of the years in the
three-year period ended March 31, 1999;
(3) your Forms 10-Q filed pursuant to 13 or 15(d) of the Exchange
Act for the quarterly periods ended July 2, 1999, October 1,
1999 and December 31, 1999;
(4) the description of your preferred stock purchase rights under
the caption "Description of Registrant's Securities to be
Registered" on pages 2 through 5 of the your registration
statement on Form 8-A filed on August 19, 1998;
(5) the Prospectuses prepared in connection with the Registration
Statement;
(6) your Registration Statement on Form 8-A (Commission File Number
0-17781), as declared effective by the SEC on June 22, 1989;
(7) 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; and
(8) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and
other representations.
<PAGE> 2
Symantec Corporation
Page 2
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 Commission 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 and completeness of all documents submitted
to us as originals, the conformity to originals of all documents submitted to us
as copies, the legal capacity of all natural persons executing the same, the
lack of any undisclosed termination, modification, waiver or amendment to any
documents 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 records
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
facts 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
and the State of California and (without reference to case law or secondary
sources) the existing Delaware General Corporation Law.
Based upon the foregoing, it is our opinion that the 100,000 shares of
Stock, when sold in the manner referred to in the Prospectus associated with the
Registration Statement, 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 we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended for 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
/s/ Fenwick & West LLP
<PAGE> 1
EXHIBIT 23.01
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 Restricted Stock Purchase Agreement
(April 14, 1999) of our report dated April 30, 1999 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, 1999, filed with
the Securities and Exchange Commission.
/S/ Ernst & Young LLP
San Jose, California
February 28, 2000
