EXHIBIT 10.03
SYMANTEC CORPORATION
1996 EQUITY INCENTIVE PLAN
(LAST AMENDED AS OF AUGUST 21, 2003)
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 and Restricted Stock Awards.
Capitalized terms not defined in the text are defined in Section 23.
2. Shares Subject to the Plan.
2.1 Number of Shares Available. Subject to Sections 2.2 and 18, the total
number of Shares reserved and available for grant and issuance pursuant to this
Plan will be 48,872,204 Shares, of which no more than ten percent (10%) shall be
issued as Restricted Stock Awards. Subject to Sections 2.2 and 18, 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 Purchase Price and
number of Shares subject to other outstanding Awards, including Restricted Stock
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 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.
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;
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(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.
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 8 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
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representations and agreements regarding Participant's investment intent and
access to information and other matters, if any, as may be required or desirable
by the Company to comply with applicable securities laws, together with payment
in full of the Exercise Price for the number of Shares being purchased.
5.6 Termination. Notwithstanding the exercise periods set forth in the Stock
Option Agreement, exercise of an Option will always be subject to the following:
(a) If the Participant is Terminated for any reason except death or
Disability, then the Participant may exercise such Participant's Options
only to the extent that such Options would have been exercisable upon the
Termination Date no later than three (3) months after the Termination Date
(or such shorter or longer time period not exceeding five (5) years as may
be determined by the Committee, with any exercise beyond three (3) months
after the Termination Date deemed to be an NQSO), but in any event, no later
than the expiration date of the Options; 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.
(c) Notwithstanding anything to the contrary herein, if the Participant
is Terminated because of the Participant's actual or alleged commitment of a
criminal act or an intentional tort and the Company (or an employee of the
Company) is the victim or object of such criminal act or intentional tort or
such criminal act or intentional tort results, in the reasonable opinion of
the Company, in liability, loss, damage or injury to the Company, then, at
the Company's election, Participant's Options shall not be exercisable and
shall expire upon the Participant's Termination Date. Termination by the
Company based on a Participant's alleged commitment of a criminal act or an
intentional tort shall be based on a reasonable investigation of the facts
and a determination by the Company that a preponderance of the evidence
discovered in such investigation indicates that such Participant is guilty
of such criminal act or intentional tort.
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 (a) 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;
and (b) notwithstanding anything to the contrary elsewhere in the Plan, the
Company will not reprice Options issued under the Plan by lowering the Exercise
Price of a previously granted Award, by canceling outstanding Options and
issuing replacements, or by otherwise replacing existing Options with substitute
Options with a lower Exercise Price, without prior approval of the Company's
stockholders.
5.10 No Disqualification. Notwithstanding any other provision in this Plan,
no term of this Plan relating to ISOs will be
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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 or any Affiliate ("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 12,000 shares will be granted to each
non-employee director, other than a non-employee director acting as the Chairman
of the Board on the day after the Annual Meeting of Stockholders, provided that
no such grant shall be made to a director within six months of the initial grant
to such director and with the exception that the award grant to a continuing
director following the Annual Meeting of Stockholders in September 2002 shall be
6,000 shares, 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 on the day
after the Annual Meeting of Stockholders, 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. A non-employee director may
exercise a granted option in whole or in part for any Vested Shares, as
determined in accordance with Section 6.3 hereof; provided, however, that the
option shall expire and terminate on the tenth anniversary of the date of grant,
or earlier in accordance with the provisions of this Plan.
6.3 Vesting of Formula Options. Twenty-five percent (25%) of the Shares
shall vest on the First Vesting Date, as specified in the Stock Option Grant,
with the remaining Shares vesting at the rate of 2.0833% of the total Shares per
month over the subsequent three years (each a "Succeeding Vesting Date")
provided that the non-employee director provides services to the Company or a
Parent, Subsidiary or Affiliate of the Company on the First Vesting Date and on
each Succeeding Vesting Date thereafter. Shares that are vested pursuant to the
vesting schedule set forth in this Section 6.3 are "Vested Shares" and are
exercisable hereunder.
7. Restricted Stock Awards. A Restricted Stock Award is an offer by the
Company to issue to an eligible person Shares that are subject to restrictions.
The Committee will determine to whom an offer will be made, the number of Shares
the person may purchase, the Purchase Price, the restrictions to which the
Shares will be subject, and all other terms and conditions of the Restricted
Stock Award, subject to the following:
7.1 Restricted Stock Purchase Agreement. All purchases under a Restricted
Stock Award will be evidenced by a written agreement (the "Restricted Stock
Purchase Agreement"), which will be in substantially a form (which need not be
the same for each Participant) that the Committee shall from time to time
approve, and will comply with and be subject to the terms and conditions of the
Plan. A Participant can accept a Restricted Stock Award only by signing and
delivering to the Company the Restricted Stock Purchase Agreement, and full
payment of the Purchase Price, within thirty (30) days from the date the
Restricted Stock Purchase Agreement was delivered to the Participant. If the
Participant does not accept the Restricted Stock Award in this manner within
thirty (30) days, then the offer of the Restricted Stock Award will terminate,
unless the Committee determines otherwise.
7.2 Purchase Price. The Purchase Price for a Restricted Stock Award will be
determined by the Committee, and may be less than Fair Market Value (but not
less than the par value of the Shares) on the date the Restricted Stock Award is
granted, provided that the Exercise Price of any Restricted Stock Award 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 of the Purchase Price must be made in
accordance with Section 8 of this Plan and as permitted in the Restricted Stock
Purchase Agreement, and in accordance with any procedures established by the
Company.
7.3 Terms of Restricted Stock Awards. Restricted Stock Awards will be
subject to all restrictions, if any, that the Committee may impose. These
restrictions may be based on completion of a specified number of years of
service with the Company and/or upon completion of the performance goals as set
out in advance in the Participant's Restricted Stock Purchase Agreement, which
shall be in such form and contain such provisions (which need not be the same
for each Participant) as the Committee shall from time to time approve, and
which will comply with and be subject to the terms and conditions of this Plan.
Prior to the grant of a Restricted Stock Award, the Committee shall: (a)
determine the nature, length and starting date of any Performance Period for the
Restricted Stock Award; (b) select from among the Performance Factors to be used
to measure performance goals, if any; and (c) determine the number of Shares
that may be awarded to the Participant. Performance Periods may overlap and a
Participant may participate simultaneously
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with respect to Restricted Stock Awards that are subject to different
Performance Periods and having different performance goals and other criteria.
7.4 Termination During Performance Period. Restricted Stock Awards shall
cease to vest immediately if a Participant is Terminated during a Performance
Period for any reason, unless the Committee determines otherwise, and any
unvested Shares subject to such Restricted Stock Awards shall be subject to the
Company's right to repurchase such Shares, as described in Section 12 of this
Plan, if and as set forth in the applicable Restricted Stock Purchase Agreement.
8. Payment for Share Purchases.
8.1 Payment. Payment for Shares purchased pursuant to this Plan may be made
in cash (by check) or, where expressly approved for the Participant by the
Committee and where permitted by law:
(a) by cancellation of indebtedness of the Company to the Participant;
(b) by surrender of shares that either: (1) have been owned by
Participant for more than six (6) months and have been paid for within the
meaning of SEC Rule 144 (and, if such shares were purchased from the Company
by use of a promissory note, such note has been fully paid with respect to
such shares); or (2) were obtained by Participant in the public market;
(c) by tender of a full recourse promissory note having such terms as
may be approved by the Committee and bearing interest at a rate sufficient
to avoid imputation of income under Sections 483 and 1274 of the Code;
provided, however, that Participants who are not employees or directors of
the Company will not be entitled to purchase Shares with a promissory note
unless the note is adequately secured by collateral other than the Shares;
provided, further, that the portion of the Purchase Price equal to the par
value of the Shares, if any, must be paid in cash;
(d) by waiver of compensation due or accrued to the Participant for
services rendered; provided, further, that the portion of the Purchase Price
equal to the par value of the Shares, if any, must be paid in cash;
(e) with respect only to purchases upon exercise of an Option, and
provided that a public market for the Company's stock exists:
(1) through a "same day sale" commitment from the Participant and a
broker-dealer that is a member of the National Association of Securities
Dealers (an "NASD Dealer") whereby the Participant irrevocably elects to
exercise the Option and to sell a portion of the Shares so purchased to pay
for the Exercise Price, and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the Exercise Price directly to the
Company; or
(2) through a "margin" commitment from the Participant and an NASD
Dealer whereby the Participant irrevocably elects to exercise the Option and
to pledge the Shares so 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.
8.2 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.
9. Withholding Taxes.
9.1 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.
9.2 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
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Company withhold from the Shares to be issued that number of Shares having a
Fair Market Value equal to the minimum amount required to be withheld,
determined on the date that the amount of tax to be withheld is to be determined
(the "Tax Date"). All elections by a Participant to have Shares withheld for
this purpose will be made in writing in a form acceptable to the Committee.
10. Privileges of Stock Ownership.
10.1 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
12.
10.2 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.
11. 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.
12. 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 Exercise Price or Purchase Price, as
the case may be.
13. 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.
14. 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 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.
15. 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.
16. Securities Law and Other Regulatory Compliance. An Award will not be
effective unless such Award is in compliance with
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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.
17. 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.
18. Corporate Transactions.
18.1 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
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 18.1, all Options
will expire on such transaction at such time and on such conditions as the Board
shall determine.
18.2 Other Treatment of Awards. Subject to any greater rights granted to
Participants under the foregoing provisions of this Section 18, in the event of
the occurrence of any transaction described in Section 18.1, 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."
18.3 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.
19. 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
7
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.
20. 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.
21. Amendment or Termination of Plan. The Board may at any time terminate or
amend this Plan in any respect, including without limitation amendment of
Section 6 of this Plan; provided, however, that the Board will not, without the
approval of the stockholders of the Company, amend this Plan to increase the
number of shares that may be issued under this Plan, or change the designation
of employees or class of employees eligible for participation in this Plan.
22. 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.
23. 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 or
Restricted Stock Award.
"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.
"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
8
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.
"Performance Factors" means the factors selected by the Committee from
among the following measures to determine whether the performance goals
established by the Committee and applicable to Awards have been satisfied:
(1) Net revenue and/or net revenue growth;
(2) Earnings before income taxes and amortization and/or
earnings before income taxes and amortization growth;
(3) Operating income and/or operating income growth;
(4) Net income and/or net income growth;
(5) Earnings per share and/or earnings per share growth;
(6) Total stockholder return and/or total stockholder return
growth;
(7) Return on equity;
(8) Operating cash flow return on income;
(9) Adjusted operating cash flow return on income;
(10) Economic value added; and
(11) Individual business objectives.
"Performance Period" means the period of service determined by the
Committee, not to exceed five years, during which years of service or
performance is to be measured for Restricted Stock Awards.
"Plan" means this Symantec Corporation 1996 Equity Incentive Plan, as
amended from time to time.
"Purchase Price" means the price to be paid for Shares acquired under
this Plan pursuant to a Restricted Stock Award.
"Restricted Stock Award" means an award of Shares pursuant to Section 7
of this Plan.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means shares of the Company's Common Stock reserved for
issuance under this Plan, as adjusted pursuant to Sections 2 and 18, and any
successor security.
9
"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").
10
SYMANTEC CORPORATION
STOCK OPTION GRANT - TERMS AND CONDITIONS
1. Grant of Option. Symantec Corporation, a Delaware
corporation, (the "Company"), hereby grants to the optionee named in the Stock
Option Grant (the "Optionee") an option (this "Option") to purchase the Total
Number of Shares Subject to Option set forth in the Stock Option Grant (the
"Shares") at the Exercise Price Per Share set forth in the Stock Option Grant
(the "Exercise Price"), subject to all of the terms and conditions set forth in
this Terms and Conditions of Stock Option Grant and the Stock Option Grant
(collectively, the "Grant") and in the Company's 1996 Equity Incentive Plan (the
"Plan"). If designated as an incentive stock option in the Stock Option Grant,
this Option is intended to qualify as an "incentive stock option" ("ISO") within
the meaning of Section 422 of the Internal Revenue Code of 1986 (the "Code"). If
not so designated, this Option shall be a nonqualified stock option ("NQSO").
2. Exercise Period of Option. Subject to the terms and
conditions set forth in this Grant and in the Plan, Optionee may exercise this
Option in whole or in part for any Vested Shares, as determined in accordance
with Section 8 hereof; provided, however, that this Option shall expire and
terminate on the Expiration Date set forth in the Stock Option Grant (the
"Expiration Date"), or earlier, as provided in Section 4 hereof, and must be
exercised, if at all, on or before the Expiration Date.
3. Restrictions on Exercise. Exercise of this Option is
subject to the following limitations:
(a) This Option may not be exercised unless such
exercise is in compliance with the Securities Act of 1933, as amended, and all
applicable state securities laws, as they are in effect on the date of exercise.
(b) This Option may not be exercised until the Plan, or
any required increase in the number of shares authorized under the Plan, is
approved by the stockholders of the Company.
(c) If Optionee is determined by the Company to be an
officer subject to the reporting and other requirements set forth in Section 16
of the Securities Exchange Act of 1934 and associated regulations (a "Section 16
Officer"), Optionee shall be subject such additional restrictions upon exercise
of this Option and/or sale of shares issued pursuant to an exercise of this
Option as may be established from time to time by the Chairman/CEO of the
Company and/or the Compensation committee of the Company's Board of Directors.
4. Termination of Option. Except as provided below in this
Section, this Option shall terminate and may not be exercised if Optionee ceases
to provide services as an employee, director, consultant, independent contractor
or advisor to the Company or a Parent, Subsidiary or Affiliate of the Company
(each as defined in the Plan), except in the case of sick leave, military leave,
or any other leave of absence approved by the committee appointed by the
Company's Board of Directors to administer the Plan (the "Committee") or by any
person designated by the Committee, provided that such leave is for a period of
not more than ninety days, or reinstatement upon the expiration of such leave is
guaranteed by contract or statute. The Committee or its designee will have sole
discretion to determine whether an Optionee has ceased to provide services and
the effective date on which the Optionee ceased to provide services (the
"Termination Date").
(a) If Optionee ceases to provide services to the
Company or any Parent, Subsidiary or Affiliate of the Company for any reason
except death or disability, Optionee may exercise this Option to the extent (and
only to the extent) that it would have been exercisable upon the Termination
Date, within three months after the Termination Date, but in any event no later
than the Expiration Date.
1.
(b) If Optionee ceases to provide services to the
Company or any Parent, Subsidiary or Affiliate of the Company because of the
death or disability of Optionee, within the meaning of Section 22(e) (3) of the
Code, (or the Optionee dies within three months after the Optionee ceases to
provide services other than because of such Optionee's death or disability) the
Option may be exercised to the extent (and only to the extent) that it would
have been exercisable by Optionee on the Termination Date, by Optionee (or the
Optionee's legal representative) within twelve months after the Termination
Date, but in any event no later than the Expiration Date.
(c) Notwithstanding anything to the contrary herein, if
Optionee ceases to provide services to the Company or any Parent, Subsidary or
Affiliate of the Company because of the Optionee's actual or alleged commitment
of a criminal act or an intentional tort and the Company (or an employee of the
Company) is the victim or object of such criminal act or intentional tort or
such criminal act or intentional tort results, in the reasonable opinion of the
Company, in liability, loss, damage or injury to the Company, then, at the
Company's election, this Option shall not be exercisable and shall terminate
upon the Optionee's Termination Date. Termination by the Company based on
Optionee's alleged commitment of a criminal act or an intentional tort shall be
based on a reasonable investigation of the facts and a determination by the
Company that a preponderance of the evidence discovered in such investigation
indicates that Optionee is guilty of such criminal act or intentional tort.
Nothing in this Grant or in the Plan shall confer on Optionee 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 Optionee's employment or other relationship at any time,
with or without cause.
5. Manner of Exercise.
(a) This Option shall be exercisable by delivery to the
Company of an executed written Notice of Intent to Exercise Stock Option in the
form attached hereto, or in such other form as may be approved by the Company
(the "Exercise Agreement"), which shall set forth Optionee's election to
exercise this Option, the number of Shares being purchased, any restrictions
imposed on the Shares and such other representations and agreements regarding
Optionee's investment intent and access to information as may be required by the
Company to comply with applicable securities laws.
(b) Such Exercise Agreement shall be accompanied by
full payment of the Exercise Price for the Shares being purchased (i) in cash
(by check); (ii) by surrender of shares of Common Stock of the Company that have
been owned by the Optionee for more than six months (and which 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 were obtained by the Optionee in the open public
market, having a Fair Market Value (as defined in the Plan) equal to the
Exercise Price of the Option; (iii) by waiver of compensation due or accrued to
Optionee for services rendered; (iv) provided that a public market for the
Company's stock exists, through a "same day sale" commitment from the Optionee
and a broker-dealer that is a member of the National Association of Securities
Dealers (an "NASD Dealer") whereby the Optionee 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; (v) provided
that a public market for the Company's stock exists, through a "margin"
commitment from the Optionee and an NASD Dealer whereby the Optionee 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 (vi) by any combination of the foregoing where approved by the
Committee, or its designee, in its sole discretion.
(c) Withholding Taxes. Prior to the issuance of the
Shares upon exercise of this Option, Optionee must pay or make adequate
provision for any applicable federal or state withholding obligations of the
Company.
2.
(d) Issuance of Shares. Provided that such notice and
payment are in form and substance satisfactory to counsel for the Company, the
Company shall cause the Shares to be issued in the name of Optionee or
Optionee's legal representative or assignee.
6. Notice of Disqualifying Disposition of ISO Shares. If the
Option granted to Optionee pursuant to this Grant is an ISO, and if Optionee
sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on
or before the later of (1) the date which is two years after the Grant Date, or
(2) the date one year after exercise of the ISO with respect to which the Shares
are to be sold or disposed, the Optionee shall immediately notify the Company in
writing of such disposition. Optionee acknowledges and agrees that Optionee may
be subject to income tax withholding by the Company on the compensation income
recognized by the Optionee from any such early disposition by payment in cash or
out of the current wages or other earnings payable to the Optionee.
7. Nontransferability of Option. This Option may not be
transferred in any manner other than by will or by the law of descent and
distribution and may be exercised during the lifetime of the Optionee only by
the Optionee. The terms of this Option shall be binding upon the executors,
administrators, successors and assigns of Optionee.
8. Vesting Schedule. Shares that are vested pursuant to the
vesting schedule set forth in the Stock Option Grant are "Vested Shares" and
exercisable hereunder, provided that the Optionee provides services to the
Company or a Parent, Subsidiary or Affiliate of the Company on the First Vesting
Date and on each Succeeding Vesting Date thereafter.
9. Compliance with Laws and Regulations. The exercise of this
Option and the issuance of Shares shall be subject to compliance by the Company
and the Optionee with all applicable requirements of federal and state
securities laws and with all applicable requirements of any stock exchange or
national market system on which the Company's Common Stock may be listed at the
time of such issuance. Optionee understands that the Company is under no
obligation to register or qualify the Shares with the Securities and Exchange
Commission, any state securities commission or any stock exchange or national
market system on which the Company's Common Stock may be listed at the time of
such issuance or transfer.
10. Tax Consequences. Set forth below is a brief summary as of
the date of this Option of some of the federal and California tax consequences
of exercise of this Option and disposition of the Shares. THIS SUMMARY IS
NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE.
OPTIONEE SHOULD CONSULT A TAX ADVISOR BEFORE EXERCISING THIS OPTION OR DISPOSING
OF THE SHARES.
(a) Exercise of ISO. If this Option qualifies as an
ISO, there will be no regular federal income tax liability or California income
tax liability upon the exercise of the Option, although the excess, if any, of
the Fair Market Value of the Shares on the date of exercise over the Exercise
Price will be treated as a tax preference item for federal income tax purposes
and may subject the Optionee to alternative minimum tax in the year of exercise.
(b) Exercise of Nonqualified Stock Option. If this
Option does not qualify as an ISO, there may be a regular federal income tax
liability and a California income tax liability upon the exercise of the Option.
The Optionee will be treated as having received compensation income (taxable at
ordinary income tax rates) equal to the excess, if any, of the Fair Market Value
of the Shares on the date of exercise over the Exercise Price. The Company will
be required to withhold from Optionee's compensation or collect from Optionee
and pay to the applicable taxing authorities an amount equal to a percentage of
this compensation income at the time of exercise.
(c) Disposition of Shares. If the Shares are held for
at least twelve months after the date of the transfer of the Shares pursuant to
the exercise of this Option (and, if this Option qualifies as an ISO, are
disposed of at least two years after the Grant Date), any gain realized on
disposition of the Shares will be treated as
3.
long term capital gain for federal and California income tax purposes. If Shares
purchased under an ISO are disposed of within one year of exercise or within two
years after the Grant Date, any gain realized on such disposition will be
treated as compensation income (taxable at ordinary income rates) to the extent
of the excess, if any, of the Fair Market Value of the Shares on the date of
exercise over the Exercise Price.
11. Interpretation. Any dispute regarding the interpretation
hereof or of the Plan shall be submitted by Optionee or the Company forthwith to
the Committee, which shall review such dispute at its next regular meeting. The
resolution of such a dispute by the Committee shall be final and binding on the
Company and on Optionee.
12. Governing Law. This Grant shall be governed by and
construed in accordance with the 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. If any provision of this Grant 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.
13. Notices. Any notice required to be given or delivered to
the Company under the terms of this Grant 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 Optionee shall be in writing and
addressed to Optionee at the address indicated in the Stock Option Grant or to
such other address as such party may designate in writing from time to time to
the Company. All notices shall be deemed to have been given or delivered upon:
personal delivery; three days after deposit in the United States mail by
certified or registered mail (return receipt requested); one business day after
deposit with any return receipt express courier (prepaid); or one business day
after transmission by facsimile, rapifax or telecopier.
14. Entire Agreement. The Plan and the Exercise Agreement
are incorporated in this Grant by reference. This Grant constitutes the entire
agreement of the parties and supersede all prior undertakings and agreements
with respect to the subject matter hereof.
4.
EXHIBIT I
NOTICE OF INTENT TO EXERCISE STOCK OPTION
SYMANTEC CORPORATION
20330 Stevens Creek Blvd.
Cupertino, CA 95014
DATE: ____ \ ____ \ ____
PURSUANT to the Stock Option Grants (detailed below) granted to me by Symantec
Corporation (the "Company"), I hereby notify the company that I wish to exercise
my right to purchase shares of common stock as described in the table below. I
acknowledge that I have received, read and understood a copy of the Plan and the
Grant Agreement, and that such are incorporated herein by reference.
Taxes
Grant Grant Option Type Option Price Number Total Due TOTAL DUE TO
Number Date (NQ or ISO) Per Share of Shares Option Price (NQ Only) SYMANTEC
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
TOTALS
_____ I do not wish to sell the shares at this time. Payment for these shares
will be made in a manner as defined in and allowed by the Plan and the
Company. Please deliver the shares to the following address:
----------------------------------------------------------------
[ ] I am not a Company Insider.
[ ] I am a Company Insider and have received pre-clearance approval from the
Legal Department of the Company.
- ------------------------------------ ---------------------------
Name Signature
- --------------------------------------------------------------------------------
Address
Social Security Number: _ _ _ \ _ _ \ _ _ _ _ Office Location: ---------------
Daytime Telephone Number:---------------- Home Telephone Number: ---------
Fax this form to the attention of "Stock Administration" in the Cupertino
office, NOT to your broker.
Stock Administration Fax Number: (408) 517-8118.