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As filed with the Securities and Exchange Commission on
October 4, 2005
Registration No. 333-127958
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Symantec Corporation
(Exact name of the Registrant as specified in its charter)
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Delaware |
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77-0181864 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
20330 Stevens Creek Blvd.
Cupertino, California 95014
(408) 517-8000
(Address, including zip code and telephone number,
including area code, of the Registrants principal
executive offices)
John W. Thompson
Chairman and Chief Executive Officer
Symantec Corporation
20330 Stevens Creek Blvd.
Cupertino, California 95014
(408) 517-8000
(Name, address, including zip code and telephone number,
including area code, of the Registrants agent for
service)
Copies to:
Daniel J. Winnike, Esq.
Andrew Y. Luh, Esq.
Fenwick & West LLP
801 California Street
Mountain View, California 94041
(650) 988-8500
Approximate date of commencement of proposed sale to the
public: From time to time after this Registration Statement
becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following
box. o
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant files a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to Section 8(a),
may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the U.S. Securities and Exchange
Commission is effective. This prospectus is not an offer to sell
these securities and is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
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SUBJECT TO COMPLETION. DATED
OCTOBER 4, 2005
PROSPECTUS
Symantec Corporation
Up to 250,000 Shares of Common Stock
THE OFFERING
The shares of our common stock offered under this Prospectus
will be issued to holders of exchangeable non-voting shares,
referred to in this Prospectus as Exchangeable
Shares, of TeleBackup Exchangeco Inc., an Alberta
corporation referred to in this Prospectus as
Exchangeco, to purchase the Exchangeable Shares held
by such holders. The Exchangeable Shares were originally issued
by Exchangeco in connection with the acquisition of TeleBackup
Systems Inc. by our wholly owned subsidiary VERITAS Software
Corporation. Following our acquisition of VERITAS on
July 2, 2005, the provisions governing the Exchangeable
Shares allow the holders of the Exchangeable Shares to submit
them to Exchangeco for purchase by us and also allow us to
effect a mandatory purchase of all the Exchangeable Shares, in
each case for a per share purchase price of 5.0589 shares
of our common stock. All declared and unpaid dividends and
distributions on the Exchangeable Shares and all dividends and
distributions declared on our common stock which have not been
declared on the Exchangeable Shares will be added to the
purchase price. We will effect a mandatory purchase of all the
Exchangeable Shares upon 120 days notice to the holders of
Exchangeable Shares and, prior to this mandatory purchase, we
will issue shares of our common stock as payment for
Exchangeable Shares submitted by holders, on the terms described
in this Prospectus.
We have also registered a total 3,725,186 shares of our common
stock for issuance upon the exercise of certain options that we
assumed as part of our acquisition of VERITAS Software
Corporation. For more information regarding this offering,
please refer to the final prospectus for the offering filed with
the Securities and Exchange Commission on
October , 2005.
Our common stock trades on the NASDAQ National Market under the
trading symbol SYMC. The last reported sale price on
September 30, 2005 was $22.66 per share.
Investing in our common stock involves a high degree of risk.
Please carefully consider the Risk Factors beginning
on page 2 of this Prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these
securities or passed upon the adequacy or accuracy of this
Prospectus. Any representation to the contrary is a criminal
offense.
You should rely only on the information contained in or
incorporated by reference into this Prospectus. We have not
authorized anyone to give any information or to make any
representation other than those contained in or incorporated by
reference in this Prospectus. If such information is given or
those representations are made, you may not rely on that
information or representations as having been authorized by us.
The information contained in this Prospectus is accurate only as
of the date of this Prospectus, regardless of the time of
delivery of this Prospectus or of any sale of common stock. You
may not imply from the delivery of this Prospectus, nor from a
sale made under this prospectus, that our affairs are unchanged
since the date of this Prospectus. We are offering and selling
shares of our common stock only in jurisdictions where offers
and sales are legally permitted, and this Prospectus may only be
used in these jurisdictions.
The date of this Prospectus
is ,
2005.
TABLE OF CONTENTS
FORWARD-LOOKING STATEMENTS
This Prospectus, including the documents incorporated by
reference in this Prospectus, contains forward-looking
statements within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act. These
statements relate to our future plans, objectives, expectations
and intentions. The words will, may,
designed to, outlook,
believes, should,
anticipates, plans, expects,
intends, estimates, could
and similar expressions identify these forward-looking
statements. Because these forward-looking statements are also
subject to risks and uncertainties, actual results may differ
materially from those expressed or anticipated in the
forward-looking statements. Important factors that could cause
actual results to differ materially from those expressed or
anticipated in the forward-looking statements are described
under the heading Risk Factors below and the heading
Managements Discussion and Analysis of Financial
Condition and Results of Operations Business Risk
Factors in our reports on Form 10-K and
Form 10-Q incorporated by reference in this Prospectus.
These forward-looking statements speak only as of the date of
this Prospectus, or the date of the documents we incorporate by
reference in this Prospectus, as applicable, and we caution you
not to rely on these statements without also considering the
risks and uncertainties associated with these statements and our
business. We undertake no obligation to update or revise these
forward-looking statements to reflect subsequent events or
circumstances.
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PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in
this Prospectus. This summary is not complete and does not
contain all the information you should consider before acquiring
shares in this offering. You should read the entire Prospectus
carefully, including the documents incorporated by reference.
Unless the context otherwise requires, the terms we, our, us and
Symantec refer to Symantec Corporation, a Delaware
corporation.
The Company
Symantec is the world leader in providing solutions to help
individuals and enterprises assure the security, availability,
and integrity of their information. With innovative technology
solutions and services, we help individuals and enterprises
protect and manage their digital assets. We provide a wide range
of solutions including enterprise and consumer security, data
management, application and infrastructure management, security
management, storage and service management, and response and
managed security services. Founded in 1982, we have operations
in more than 40 countries worldwide.
Our principal offices are located at 20330 Stevens Creek Blvd.,
Cupertino, California 95014 and our telephone number at that
location is (408) 517-8000. We maintain a website at
www.symantec.com. Investors can obtain copies of our
filings with the Securities and Exchange Commission from this
site free of charge, as well as from the Securities and Exchange
Commission website at www.sec.gov. The information on our
website is not a part of this Prospectus.
The Offering
The shares of our common stock offered under this Prospectus
will be issued to holders of exchangeable non-voting shares,
referred to in this Prospectus as Exchangeable
Shares, of TeleBackup Exchangeco Inc., an Alberta
corporation referred to in this Prospectus as
Exchangeco, to purchase the Exchangeable Shares held
by such holders. The Exchangeable Shares were originally issued
by Exchangeco in connection with the acquisition of TeleBackup
Systems Inc. by our wholly owned subsidiary VERITAS Software
Corporation. Following our acquisition of VERITAS on
July 2, 2005, the provisions governing the Exchangeable
Shares allow the holders of the Exchangeable Shares to submit
them to Exchangeco for purchase by us and also allow us to
effect a mandatory purchase of all the Exchangeable Shares, in
each case for a per share purchase price of 5.0589 shares
of our common stock. All declared and unpaid dividends and
distributions on the Exchangeable Shares and all dividends and
distributions declared on our common stock which have not been
declared on the Exchangeable Shares will be added to the
purchase price. We will effect a mandatory purchase of all the
Exchangeable Shares upon 120 days notice to the holders of
Exchangeable Shares, and prior to this mandatory purchase, we
will issue shares of our common stock as payment for
Exchangeable Shares submitted by holders, on the terms described
in this Prospectus. These shares of our common stock are being
offered on a continuous basis under Rule 415 of the
Securities Act.
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Common stock that will be offered by Symantec to holders of
Exchangeable Shares |
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250,000 shares |
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Common stock to be outstanding after this offering |
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1,138,858,605 shares* |
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Use of proceeds |
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The shares covered by this Prospectus will be issued to purchase
Exchangeable Shares. This Prospectus does not cover the resale
of these shares and we will not receive any proceeds from the
resale of these shares. |
* Based on the number of shares outstanding as of
September , 2005.
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RISK FACTORS
You should carefully consider the risks and uncertainties
described below and in the documents we incorporate by reference
in this Prospectus before making an investment decision. These
risks and uncertainties are not the only ones facing our
company. Additional risks or uncertainties not presently known
to us, or that we currently deem immaterial, may become
important factors that impair our business operations. Our
business, financial condition or results of operations could be
seriously harmed by any of these risks or uncertainties. The
trading price of our common stock could decline due to any of
these risks or uncertainties, and you may lose all or part of
your investment.
There are numerous risks associated with our recent
acquisition of VERITAS. On July 2, 2005, we completed
our acquisition of VERITAS in a transaction where VERITAS became
our wholly-owned subsidiary and the outstanding shares of
VERITAS common stock converted into the right to receive shares
of our common stock representing approximately 40% of our
outstanding shares following the merger. There are numerous
risks associated with the acquisition, including the following:
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The acquisition may result in dilution of net income per
share. We expect that the acquisition will result in a
decrease in our overall revenue growth rate and gross margin.
The acquisition could also fail to produce the benefits that we
anticipate, or could have other adverse effects that we
currently do not foresee. In addition, some of the assumptions
that we have relied upon, such as the achievement of operating
synergies, may not be realized. As a result of these or other
factors, the acquisition may not result in improved net income
per share of Symantec, or may otherwise not result in a
financial condition superior to that which we would have
achieved on a stand-alone basis. |
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If we and VERITAS fail to successfully integrate our
operations, the combined company may not realize the potential
benefits of the acquisition. The integration of Symantec and
VERITAS will be a time consuming and expensive process and may
disrupt our operations if it is not completed in a timely and
efficient manner. If this integration effort is not successful,
our results of operations could be harmed, employee morale could
decline, key employees could leave, and customers could cancel
existing orders or choose not to place new ones. With the
completion of the acquisition, Symantec and VERITAS must operate
as a combined organization utilizing common information and
communication systems, operating procedures, financial controls,
and human resources practices. We may encounter the following
difficulties, costs, and delays involved in integrating these
operations: |
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Failure to successfully manage relationships with customers and
other important relationships |
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Failure of customers to accept new services or to continue using
the products and services of the combined company |
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Difficulties in successfully integrating the management teams
and employees of Symantec and VERITAS |
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Challenges encountered in managing larger, more geographically
dispersed operations |
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Loss of key employees |
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Diversion of the attention of management from other ongoing
business concerns |
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Potential incompatibility of technologies and systems |
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Potential impairment charges incurred to write-down the carrying
amount of intangible assets generated as a result of the
acquisition |
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Potential incompatibility of business cultures |
If the combined companys operations after the acquisition
do not meet the expectations of existing customers of Symantec
or VERITAS, then these customers may cease doing business with
the combined company altogether, which would harm our results of
operations and financial condition.
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Fluctuations in our quarterly financial results have affected
the price of our common stock in the past and could affect our
stock price in the future. Our quarterly financial results
have fluctuated in the past and are likely to vary significantly
in the future. In addition, our acquisition of VERITAS makes it
more difficult for us to predict, and securities analysts to
develop expectations regarding, our future financial results due
to the risks associated with the complexity of our combined
business and the integration of our management teams and
operations. If our quarterly financial results or our
predictions of future financial results fail to meet the
expectations of securities analysts and investors, our stock
price could be negatively affected. Any volatility in our
quarterly financial results may make it more difficult for us to
raise capital in the future or pursue acquisitions that involve
issuances of our stock or securities convertible into, or
exercisable for, our stock. You should not rely on the results
of prior periods as predictors of our future performance.
Factors associated with the conduct of our business may cause
fluctuations in our quarterly financial results. A number of
factors associated with the operation of our business may cause
our quarterly financial results to fluctuate, including our
ability to:
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Effectively align sales resources to meet customer needs and
address market opportunities |
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Timely release of new or enhanced versions of our products |
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Effectively manage the integration of recent acquisitions,
including our acquisition of VERITAS |
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Effectively respond to competitive pressures |
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Effectively manage our operating expense levels |
Quarterly changes in our financial results could cause the
trading price of our common stock to fluctuate significantly.
Factors associated with our industry and the markets for our
products may cause fluctuations in our quarterly financial
results. A number of factors associated with our industry
and the markets for our products, many of which are outside our
control, may cause our quarterly financial results to fluctuate,
including:
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Reduced demand for any of our products |
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Entry of new competition into our markets |
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Timing and impact of threat outbreaks (e.g. worms and viruses) |
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Cancellation, deferral, or limitation of orders by customers |
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Fluctuations in foreign currency exchange rates |
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The rate of adoption of new product technologies and new
releases of operating systems |
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Weakness or uncertainty in general economic or industry
conditions |
Any of the foregoing factors could cause the trading price of
our common stock to fluctuate significantly.
The timing of orders by customers and channel partners may
cause fluctuations in our quarterly financial results. The
timing and amount of orders by customers and channel partners
and seasonality in their buying patterns may cause our quarterly
results to fluctuate. The risk of quarterly fluctuations is
increased by the fact that a significant portion of our
quarterly net revenues has historically been generated during
the last month of each fiscal quarter. Most resellers have
tended 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. Due to the
unpredictability of these end-of-period buying patterns,
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. If we do not achieve our forecasted
results for a particular quarterly period, our stock price could
decline significantly.
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Accounting charges may cause fluctuations in our quarterly
financial results. Our financial results have been in the
past, and may continue to be in the future, materially affected
by non-cash and other accounting charges, including:
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Amortization of intangible assets, including acquired product
rights |
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Impairment of goodwill |
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Stock-based compensation expense |
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Restructuring charges and reversals of those charges |
Our acquisition of VERITAS will result in increases in the
foregoing types of charges. In particular, we expect to record
approximately $3 billion of intangible assets, including
acquired product rights, in connection with the acquisition. We
will be required to record future amortization charges with
respect to a portion of these intangible assets. We also expect
to record stock-based compensation expense related to the stock
options to acquire VERITAS common stock that were assumed by us
in connection with the merger. The foregoing types of accounting
charges may also be incurred in connection with other business
acquisitions. The price of our common stock could decline to the
extent that our financial results are materially affected by the
foregoing accounting charges.
Our markets are competitive and our financial results and
financial condition could be adversely affected if we are unable
to anticipate or react to this competition. Our markets are
competitive. If we are unable to anticipate or react to
competition or if existing or new competitors gain market share,
our sales may decline or be impaired and we may experience a
decline in the prices we can charge for our products, which
could adversely affect our operating results. Our competitive
position depends on several factors, including:
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Our ability to respond to product price decreases implemented by
our competitors |
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Our ability to adapt effectively to the continued development,
acquisition, or licensing of technology or product rights by our
competitors |
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Our ability to enhance our products or develop new products that
are compatible with new hardware and operating systems |
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Our ability to adapt to changing technological demands |
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Our strategic decisions regarding the best allocation of our
limited resources |
Our competitors include or may include the following:
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Independent software vendors who may offer products that
directly compete with our products or bundle their software
products with software offered by another vendor either directly
or as part of a hardware appliance |
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Large operating system providers and network equipment and
computer hardware manufacturers who may include security, remote
access, or storage tools in their product offerings |
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The internal development groups of storage hardware providers,
many of whom are our strategic partners, who may develop their
own storage management software and utility computing
infrastructure for their own storage and server hardware products |
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Internet service providers, or ISPs, that provide security
functionality to their subscribers at no additional fee |
Microsoft has added security and remote access features to new
versions of its operating system products. In addition,
Microsoft has recently announced the acquisition of companies
that offer security products that compete more directly with our
security products and its intent to acquire an e-mail security
services company that competes with our services. In addition,
Microsoft has recently announced an online subscription service
that includes automated protection, maintenance, and performance
tuning, which is expected to be available to the general public
by the end of calendar 2005. Microsoft has also recently
introduced a free beta version of
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an antispyware product for the consumer market. In the future,
Microsoft may offer additional features or products that compete
with our products.
Many of our strategic partners and storage software vendors
offer software products, and customers may prefer to purchase
software and hardware that is produced by the same vendor. In
addition, these vendors may choose not to offer our products to
their customers or to limit our access to their hardware
platforms. Similarly, some software vendors may choose to bundle
their software with their own or other vendors software or
may limit our access to standard product interfaces and inhibit
our ability to develop products for their platform.
Several of our current and potential competitors have greater
financial, technical, sales, marketing, and other resources than
we do and consequently may have an ability to influence
customers to purchase their products instead of ours. Our future
and existing competitors could introduce products with superior
features, scalability, and functionality at lower prices than
our products, and could also bundle existing or new products
with other more established products in order to compete with
us. Our competitors could also gain market share by acquiring or
forming strategic alliances with our other competitors and ISPs
such as AOL and Comcast. In addition, because new distribution
methods offered by the Internet and electronic commerce have
removed many of the barriers to entry historically faced by
start-up companies in the software industry, we may face
additional sources of competition in the future. If we do not
adapt our business in the face of this competition, our business
and operating results may be harmed.
Because we derive a majority of our license revenues from
sales of a few product lines, any decline in demand for these
products could severely harm our ability to generate
revenues. We derive a majority of our revenues from a
limited number of software products, including our antivirus,
Internet security, data protection, and storage management
products. In addition, our software products are concentrated
within the markets for data security and data storage. As a
result, we are particularly vulnerable to fluctuations in demand
for these products, whether as a result of competition, product
obsolescence, technological change, budget constraints of our
potential customers, or other factors. If our revenues derived
from these software products were to decline significantly, our
business and operating results would be adversely affected.
There is uncertainty as to whether or not we will be able to
sustain the growth rates in sales of our products, particularly
our consumer security products. Over the last several
quarters, we have experienced a higher than expected rate of
growth in sales of our consumer security protection products,
and we expect that we will not be able to sustain this high
growth rate on a consistent basis. We believe that consumer
security protection sales have been spurred by a number of
factors, including increased broadband usage and increased
awareness of security threats to consumer systems, including
several well publicized viruses. The impact of these factors may
diminish over time with greater market penetration, and it is
possible that our growth rates in sales of consumer security
protection products may decline.
If we are unable to develop new and enhanced products that
achieve widespread market acceptance, we may be unable to
recover product development costs, and our earnings and revenues
may decline. Our future success depends on our ability to
address the rapidly changing needs of our customers by
developing and introducing new products, product upgrades, and
services on a timely basis. We have incurred, and we will need
to continue to incur, significant research and development
expenditures in future periods as we strive to remain
competitive. New product development and introduction involve a
significant commitment of time and resources and are subject to
a number of risks and challenges, including:
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Keeping pace with technological developments by competitors and
customers |
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Extending the operation of our products to new platforms and
operating systems |
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Entering into new and unproven markets with which we have
limited experience, including security appliances, utility
computing infrastructure, storage area networking, and storage
resource management |
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Managing new product and service strategies, including
integrating our various security and storage technologies,
management, customer service and support into a single
enterprise security and storage solution |
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Managing the length of the development cycle for new products
and product enhancements, which has frequently been longer than
we originally expected |
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Adapting to emerging and evolving industry standards |
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Incorporating acquired products and technologies |
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Developing new sales channels |
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Obtaining source code licenses from operating system owners on
reasonable terms |
If we are not successful in managing these risks and challenges,
or if our new product introductions are not technologically
competitive or do not achieve market acceptance, we will have
expended substantial resources and capital without realizing
sufficient revenues in return, and our business and operating
results could be adversely affected.
We have grown, and may continue to grow, through acquisitions
that give rise to risks and challenges that could adversely
affect our future financial results. We have in the past
acquired, and we expect in the future to acquire, other
businesses, business units, and technologies. Acquisitions
involve a number of special risks and challenges, including:
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Complexity, time, and costs associated with integration of
acquired business operations, employees, products, and
technologies into our existing business, workforce, and product
lines |
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Diversion of management time and attention from our existing
business and other business opportunities |
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Loss or termination of employees, including costs associated
with the termination of those employees |
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Assumption of debt or other liabilities of the acquired
business, including litigation related to alleged liabilities of
the acquired business |
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The incurrence of additional acquisition-related debt as well as
increased expenses and working capital requirements |
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Dilution of stock ownership of existing stockholders or earnings
per share |
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Increased costs and efforts in connection with compliance with
Section 404 of the Sarbanes-Oxley Act |
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Substantial accounting charges for amortization of intangible
assets, restructuring and related expenses, stock-based
compensation expense, write-offs of in-process research and
development, and impairment of goodwill |
Integrating acquired businesses has been and will continue to be
a complex, time consuming, and expensive process. To integrate
acquired businesses, we must implement our technology systems in
the acquired operations and integrate and manage the personnel
of the acquired operations. Our success in completing the
integration of acquired businesses may impact the market
acceptance of such acquisitions, and our willingness to acquire
additional businesses in the future. Other challenges of
integration include our ability to incorporate acquired products
and business technology into our existing product lines,
including consolidating technology with duplicative
functionality or designed on a different technological
architecture, and our ability to sell the acquired products
through our existing or acquired sales channels. We also must
effectively integrate the different cultures of acquired
business organizations into our own in a way that aligns common
interests. Further, the difficulties of integrating acquired
businesses could disrupt our ongoing business, distract our
management focus from other opportunities and challenges, and
increase our expenses and working capital requirements.
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Any of the foregoing and other factors could harm our ability to
achieve anticipated levels of profitability from acquired
businesses or to realize other anticipated benefits of
acquisitions. We may face difficulties in entering markets in
which we have no or limited direct prior experience and where
competitors in such markets have stronger market positions.
Mergers and acquisitions of high technology companies are
inherently risky, and no assurance can be given that our
previous or future acquisitions will be successful and will not
materially adversely affect our business, operating results, or
financial condition.
VERITAS has reported a material weakness in its internal
control over financial reporting, and we have not yet assessed
the impact of this situation on our internal controls. As
reported by VERITAS in its Form 10-Q for its fiscal quarter
ended March 31, 2005, VERITAS concluded that its disclosure
controls and procedures were not effective as of March 31,
2005 as a result of a material weakness in its internal control
over financial reporting. VERITAS ceased to be a public
reporting company prior to the filing of a quarterly report for
its quarter ended June 30, 2005 and, therefore, has not
expressed a conclusion as to the status of its disclosure
controls and procedures as of that date. The report contained in
Item 4 of our quarterly report on Form 10-Q for the
quarter ended June 30, 2005 expresses our managements
conclusion regarding our disclosure controls and procedures
prior to the date of our acquisition of VERITAS. As such, we
have not assessed the impact that the material weakness referred
to in the VERITAS quarterly report on Form 10-Q for
the quarter ended March 31, 2005 will have on our
disclosure controls and procedures. We cannot assure you that
the material weakness described by VERITAS in its quarterly
report on Form 10-Q for the quarter ended March 31,
2005 will not cause us to determine that our disclosure controls
and procedures or internal control over financial reporting are
not effective as of the end of future reporting periods.
We have authorized the use of a substantial amount of our
cash for the repurchase of our shares, and this use of funds may
limit our ability to complete other transactions or to pursue
other business initiatives. In March 2005, our Board of
Directors approved the expansion of our previously authorized
share repurchase program by authorizing an additional
$3 billion of cash to be used for this purpose following
completion of our acquisition of VERITAS. With this increase, we
have approximately $3.5 billion of funding authorized for
the repurchase of shares under this program. We expect to
complete the repurchases under the additional $3 billion
authorization by the end of December 2005. The full
implementation of this repurchase program will use a significant
portion of our cash reserves. This use of cash could limit our
future flexibility to complete acquisitions of businesses or
technology or other transactions or make investments in research
and development, new employee hiring, or other aspects of our
operations that might be in our best interests, or could require
that we borrow money or issue additional equity securities for
such purposes. Any incurrence of debt may not be on terms
favorable to us and could result in our being subject to
covenants or other contractual restrictions that limit our
ability to take advantage of other opportunities that may arise.
Any such incurrence of debt would likely increase our interest
expense, and any issuance of additional equity securities would
dilute the stock ownership of existing stockholders.
Our international operations involve special risks that could
increase our expenses, adversely affect our operating results,
and require increased time and attention of our management.
We derive a substantial portion of our revenues from customers
located outside of the U.S. and we have significant operations
outside of the U.S., including engineering, sales, customer
support, and production operations. We plan to expand our
international operations, but such expansion is contingent upon
the financial performance of our existing international
operations as well as our identification of growth
opportunities. Our international operations are subject to risks
in addition to those faced by our domestic operations, including:
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Potential loss of proprietary information due to piracy,
misappropriation, or laws that may be less protective of our
intellectual property rights |
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Imposition of foreign laws and other governmental controls,
including trade and labor restrictions and related laws that
reduce the flexibility of our business operations |
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Enactment of additional regulations or restrictions on the use,
import, or export of encryption technologies, which could delay
or prevent the acceptance and use of encryption products and
public networks for secure communications |
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Fluctuations in currency exchange rates and economic instability
such as higher interest rates and inflation, which could reduce
our customers ability to obtain financing for software
products or which could make our products more expensive in
those countries |
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Limitations on future growth or inability to maintain current
levels of revenues from international sales if we do not invest
sufficiently in our international operations |
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Longer payment cycles for sales in foreign countries and
difficulties in collecting accounts receivable |
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Difficulties in staffing, managing, and operating our
international operations, including difficulties related to
administering our stock plans in some foreign countries |
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Difficulties in coordinating the activities of our
geographically dispersed and culturally diverse operations |
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Seasonal reductions in business activity in the summer months in
Europe and in other periods in other countries |
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Reduced sales due to the failure to obtain any required export
approval of our technologies, particularly our encryption
technologies |
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Costs and delays associated with developing software in multiple
languages |
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Political unrest, war, or terrorism, particularly in areas in
which we have facilities |
A significant portion of our transactions outside of the
U.S. are denominated in foreign currencies. Accordingly,
our future operating results will continue to be subject to
fluctuations in foreign currency rates. Although we hedge
against certain foreign currency exposures, hedging foreign
currency transaction exposures is complex and subject to
uncertainty. We may be negatively affected by fluctuations in
foreign currency rates in the future, especially if
international sales continue to grow as a percentage of our
total sales.
We receive significant tax benefits from sales to our
non-U.S. customers. These benefits are contingent upon
existing tax regulations in both the U.S. and in the countries
in which our international operations are located. Future
changes in domestic or international tax regulations could
adversely affect our ability to continue to realize these tax
benefits.
If we lose key personnel or fail to integrate replacement
personnel successfully, our ability to manage our business could
be impaired. Our future success depends upon the continued
service of our key management, technical, sales, finance, and
other critical personnel. Our officers and other key personnel
are employees-at-will, and we cannot assure you that we will be
able to retain them. Key personnel have left our company in the
past and there likely will be additional departures of key
personnel from time to time in the future. The loss of any key
employee could result in significant disruptions to our
operations, including adversely affecting the timeliness of
product releases, the successful implementation and completion
of company initiatives, the effectiveness of our disclosure
controls and procedures and our internal control over financial
reporting, and the results of our operations. In addition, the
integration of replacement personnel could be time consuming,
may cause additional disruptions to our operations, and may be
unsuccessful.
If we are unable to attract and retain qualified employees
and manage our employee base effectively, we may be unable to
develop new and enhanced products, effectively manage or expand
our business, or increase our revenues. Our future success
depends upon our ability to recruit and retain highly skilled
management, sales, marketing, finance, and technical personnel.
However, competition for people with the specific skills that we
require is significant. In order to attract and retain personnel
in a competitive marketplace, we believe that we must provide a
competitive compensation package, including cash and
equity-based compensation. The volatility in our stock price may
from time to time adversely affect our ability to retain or
attract employees. In addition, we may be unable to obtain
required stockholder approvals of future increases in the number
of shares available for issuance under our equity compensation
plans and recent changes in accounting rules will require us to
treat the issuance of employee stock options and other forms of
equity-based compensation as compensation expense, beginning in
the first quarter of fiscal 2007. As a result, we may decide to
issue fewer stock options and may be impaired in our efforts to
attract and retain necessary
8
personnel. If we are unable to hire and retain qualified
employees, or conversely, if we fail to manage employee
performance or reduce staffing levels when required by market
conditions, our business and operating results could be
adversely affected.
If we fail to manage our distribution channels effectively,
or if our partners choose not to market and sell our products to
their customers, our operating results could be adversely
affected. We sell our consumer products to individuals and
small offices/home offices around the world through a
multi-tiered distribution network. Our consumer products are
available to customers through indirect channels that include
distributors, retailers, direct marketers, Internet-based
resellers, educational institutions, and ISPs, as well as
through OEMs. We separately sell annual content update
subscriptions directly to end users primarily via the Internet.
We also sell some of our products and product upgrades through
direct mail/email and over the Internet, in conjunction with
channel partners. We sell our enterprise products and related
services both directly to end-users and through a variety of
indirect sales channels, which include VARs, distributors,
system integrators and OEMs.
Direct Sales. A significant portion of our revenue from
enterprise products will be derived from sales by our direct
sales force to end-users. This sales channel involves special
risks, including:
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Longer sales cycles associated with direct sales efforts |
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Difficulty in managing and integrating the direct sales force
following our acquisition of VERITAS |
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Difficulty in hiring, training, retaining, and motivating our
direct sales forces |
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Substantial amounts of training for sales representatives to
become productive, including regular updates to cover new and
revised products |
Indirect Sales Channels. A significant portion of our
revenues are derived from sales through indirect channels,
including distributors that sell our products to end-users and
other resellers. This channel involves a number of special
risks, including:
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Our lack of control over the timing of delivery of our products
to end-users |
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Our resellers and distributors are not subject to minimum sales
requirements or any obligation to market our products to their
customers |
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Our reseller and distributor agreements are generally
nonexclusive and may be terminated at any time without cause |
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Our resellers and distributors may market and distribute
competing products, in part due to pricing, terms, and
promotions offered by our competitors and other factors that we
do not control and cannot predict |
OEM Sales Channels. A significant portion of our revenues
are derived from sales through our OEM partners that incorporate
our products into, or bundle our products with, their products.
Our reliance on this sales channel involves many risks,
including:
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Our lack of control over the shipping dates or volume of systems
shipped |
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Our OEM partners are not subject to minimum sales requirements
or any obligation to market our products to their customers |
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Our OEM partners may terminate or renegotiate their arrangements
with us and new terms may be less favorable in recognition of
our increasingly competitive relationship with certain partners |
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Our OEM arrangements subject us to factors affecting the
products of our OEM partners, which may result in changes in
strategic direction, competitive risks, and other issues that
could result in reduction of OEM sales |
9
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The development work that we must generally undertake under our
agreements with our OEM partners may require us to invest
significant resources and incur significant costs with little or
no associated revenues |
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The time and expense required for the sales and marketing
organizations of our OEM partners to become familiar with our
products may make it more difficult to introduce those products
to the market |
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Our OEM partners may develop, market, and distribute their own
products and market and distribute products of our competitors,
which could reduce our sales |
If we fail to manage our distribution channels successfully, our
distribution channels may conflict with one another or otherwise
fail to perform as we anticipate, which could reduce our sales
and increase our expenses, as well as weaken our competitive
position. Some distribution partners have experienced financial
difficulties in the past, and if our partners suffer financial
difficulties in the future, we may have reduced sales or
increased bad debt expense, which would adversely affect our
operating results. In addition, reliance on multiple channels
subjects us to events that cause unpredictability in demand.
This increases the risk that we may not plan effectively for the
future, which could result in adverse operating results in
future periods.
Increased reliance on sales of enterprise licenses may result
in greater fluctuations in, or otherwise adversely affect, our
financial results. Sales of enterprise licenses represent a
major portion of our business. Enterprise licensing arrangements
involve a longer sales cycle than sales through other
distribution channels, require greater investment of resources
in establishing the enterprise relationship, may involve greater
pricing pressure, and sometimes result in lower operating
margins. The timing of the execution of volume licenses, or
their non-renewal 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. In addition, longer license periods impede our
ability to increase prices due to increased costs and may
adversely impact our operating margins.
A significant portion of our revenues is derived from sales by
our direct sales force to enterprise customers. There is a
substantial amount of training required for sales
representatives to become productive and that training must be
updated to cover new and revised products. If we are unable to
maintain an adequate direct sales force, it could have a
material adverse impact on our sales and results of operations.
Third parties claiming that we infringe their proprietary
rights could cause us to incur significant legal expenses and
prevent us from selling our products. From time to time, we
have received claims that we have infringed the intellectual
property rights of others. As the number of products in the
software industry increases and the functionality of these
products further overlap, we believe that we may become
increasingly subject to infringement claims, including patent,
copyright, and trademark infringement claims. We have received
several trademark claims in the past and may receive more claims
in the future from third parties who may also be using our name
or another name that may be similar to one of our trademarks or
service marks. We have also received patent infringement claims
in the past and may receive more claims in the future based on
allegations that our products infringe upon patents held by
third parties. In addition, former employers of our former,
current, or future employees may assert claims that such
employees have improperly disclosed to us the confidential or
proprietary information of these former employers. Any such
claim, with or without merit, could:
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Be time consuming to defend |
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Result in costly litigation |
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Divert managements time and attention from our business |
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Require us to stop selling, to delay shipping, or to redesign
our products |
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Require us to pay monetary amounts as damages, to enter into
royalty or licensing arrangements, or to satisfy indemnification
obligations that we have with some of our customers |
10
In addition, we license and use software from third parties in
our business. These third party software licenses may not
continue to be available to us on acceptable terms. Also, these
third parties may from time to time receive claims that they
have infringed the intellectual property rights of others,
including patent and copyright infringement claims, which may
affect our ability to continue licensing their software. Our
inability to use any of this third party software could result
in shipment delays or other disruptions in our business, which
could materially and adversely affect our operating results.
If we do not protect our proprietary information and prevent
third parties from making unauthorized use of our products and
technology, our financial results could be harmed. Our
software and underlying technology are proprietary. We seek to
protect our proprietary rights through a combination of
confidentiality agreements and procedures and copyright, patent,
trademark, and trade secret laws. However, all of these measures
afford only limited protection and may be challenged,
invalidated, or circumvented by third parties. Third parties may
copy aspects of our products or otherwise obtain and use our
proprietary information without authorization. Third parties may
also develop similar or superior technology independently,
including by designing around our patents. Our shrink-wrap
license agreements are not signed by licensees and therefore may
be unenforceable under the laws of some jurisdictions.
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, and we may be subject to unauthorized use
of our products in those countries. Any legal action that we may
bring to protect proprietary information could be expensive and
may distract management from day-to-day operations. Unauthorized
copying or use of our products or proprietary information could
result in reduced sales of our products.
Although we are unable to quantify the extent of piracy of our
software products, software piracy may depress our net revenues.
While this would adversely affect revenues domestically, lost
revenues are believed to be even more significant outside of the
United States, particularly in countries where laws are less
protective of intellectual property rights. We engage in efforts
to educate consumers on the benefits of licensing genuine
products and to educate lawmakers on the advantages of a
business climate where intellectual property rights are
protected, and we cooperate with the Business Software Alliance
and the Software & Information Industry Association in
their efforts to combat piracy. However, these efforts may not
affect the piracy of our products.
Our products are complex and operate in a wide variety of
computer configurations, which could result in errors or product
failures. Because we offer very complex products, undetected
errors, failures, or bugs may occur, especially when the
products are first introduced or when new versions are released.
Our products often are installed and used in large-scale
computing environments with different operating systems, system
management software, and equipment and networking
configurations, which may cause errors or failures in our
products or may expose undetected errors, failures, or bugs in
our products. Our customers computer environments are
often characterized by a wide variety of standard and
non-standard configurations that make pre-release testing for
programming or compatibility errors very difficult and
time-consuming. In addition, despite testing by us and by
others, errors, failures, or bugs may not be found in new
products or releases until after commencement of commercial
shipments. In the past, we have discovered software errors,
failures, and bugs in certain of our product offerings after
their introduction and have experienced delayed or lost revenues
during the period required to correct these errors.
Errors, failures, or bugs in products released by us could
result in negative publicity, product returns, loss of or delay
in market acceptance of our products, loss of competitive
position, or claims by customers or others. Many of our end-user
customers use our products in applications that are critical to
their businesses and may have a greater sensitivity to defects
in our products than to defects in other less critical software
products. In addition, if an actual or perceived breach of
information integrity or availability occurs in one of our
end-user customers systems, regardless of whether the
breach is attributable to our products, the market perception of
the effectiveness of our products could be harmed. Alleviating
any of these problems could require significant expenditures of
our capital and resources and could cause interruptions, delays,
or cessation of our product licensing, which could cause us to
lose existing or potential customers and would adversely affect
our operating results.
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Most of our license agreements with customers contain provisions
designed to limit our exposure to potential product liability
claims. It is possible, however, that a court could rule that
these provisions are unenforceable. If a customer is successful
in proving its damages and a court does not enforce our
protective provisions, it could prove expensive and
time-consuming to defend against these claims, and we could be
liable for the damages suffered by our customers and other
related expenses, which could adversely affect our operating
results.
Increased customer demands on our technical support services
may adversely affect our financial results. We offer
technical support services with many of our products. We may be
unable to respond quickly enough to short-term increases 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 or
successfully integrate support for our customers. Further
customer demand for these services, without corresponding
revenues, could increase costs and adversely affect our
operating results.
We have outsourced a substantial portion of our worldwide
consumer support functions. As such, we are highly dependent on
the on-going business success of the companies with whom we have
contracted to provide these services. If these companies
experience financial difficulties, do not maintain sufficiently
skilled workers and resources to satisfy our contracts or
otherwise fail to perform at a sufficient level under these
contracts, the level of support services to our customers may be
significantly disrupted, which could materially harm our
relationships with these customers.
Our inability to timely distribute our products and services
over the Internet, including security patches and content
updates, could adversely affect our business. Our ability to
maintain and increase the speed with which we provide services
to customers and to increase the scope of these services is
limited by and dependent upon the speed and reliability of the
Internet. We are increasingly reliant on the Internet as a means
to distribute our security patches and content updates to our
customers. Accordingly, if we, or our customers, are unable to
utilize the Internet due to a failure of technology or
infrastructure, terrorist activity, or other reasons, our
ability to provide services may suffer, which could lead to a
decrease in revenues.
Our software products and Web site may be subject to
intentional disruption, which could adversely impact our
reputation and future sales. Although we believe we have
sufficient controls in place to prevent intentional disruptions,
we expect to be an ongoing target of attacks specifically
designed to impede the performance of our products. Similarly,
experienced computer programmers may attempt to penetrate our
network security or the security of our Web site and
misappropriate proprietary information or cause interruptions of
our services. Because the techniques used by such computer
programmers to access or sabotage networks change frequently and
may not be recognized until launched against a target, we may be
unable to anticipate these techniques. Our activities could be
adversely affected, and our reputation and future sales harmed,
if these intentionally disruptive efforts are successful.
Our stock price may be volatile in the future, and you could
lose the value of your investment. The market price of our
common stock has experienced significant fluctuations in the
past and may continue to fluctuate in the future, and as a
result you could lose the value of your investment. The market
price of our common stock may be affected by a number of
factors, including:
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Announcements of quarterly operating results and revenue and
earnings forecasts by us, our competitors, or our customers |
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Failure to achieve financial forecasts, either because expected
sales do not occur or because they occur at lower prices or on
terms that are less favorable to us |
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Rumors, announcements, or press articles regarding changes in
our management, organization, operations, or prior financial
statements |
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Changes in revenue and earnings estimates by securities analysts |
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Announcements of planned acquisitions by us or by our competitors |
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Announcements of new or planned products by us, our competitors,
or our customers |
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Gain or loss of a significant customer |
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Inquiries by the SEC, Nasdaq, law enforcement, or other
regulatory bodies |
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Acts of terrorism, the threat of war, and economic slowdowns in
general |
The stock market in general, and the market prices of stocks of
technology companies in particular, have experienced extreme
price volatility, which has adversely affected and may continue
to adversely affect the market price of our common stock for
reasons unrelated to our business or operating results.
Factors outside of our control may adversely affect our
operations and operating results. Our operations and
operating results may be adversely affected by many different
factors which are outside of our control, including:
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Deterioration in economic conditions in any of the multiple
markets in which we operate, which could reduce customer demand
and ability to pay for our products and services |
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Political and military instability, which could slow spending
within our target markets, delay sales cycles, and otherwise
adversely affect our ability to generate revenues and operate
effectively |
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Budgetary constraints of customers, which are influenced by
corporate earnings and government budget cycles and spending
objectives |
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Disruptions in our highly automated business operations caused
by: |
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Earthquakes, floods, or other natural disasters affecting our
headquarters located in Silicon Valley, California, an area
known for seismic activity, or our other locations worldwide |
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Acts of war or terrorism |
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Malicious software programs, such as viruses and worms, or
security breaches |
Any of these factors could result in a loss of revenues and/or
higher expenses, which could adversely affect our financial
results.
If the carrying value of our long-lived assets is not
recoverable, an impairment loss must be recognized which would
adversely affect our financial results. We will evaluate our
long-lived assets, including property and equipment, goodwill,
acquired product rights, and other intangible assets, whenever
events or circumstances occur which indicate that these assets
might be impaired. For example, we estimate that we will record
approximately $8 billion of goodwill as a result of our
acquisition of VERITAS and may record additional goodwill in
connection with future acquisitions. Goodwill is evaluated
annually for impairment in the fourth quarter of each fiscal
year, regardless of events and circumstances. We will continue
to evaluate the recoverability of the carrying amount of our
long-lived assets, and we may incur substantial impairment
charges, which could adversely affect our financial results.
Our effective tax rate may increase or fluctuate, which could
increase our income tax expense and reduce our net income.
Our effective tax rate could be adversely affected by several
factors, many of which are outside of our control, including:
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Changes in the relative proportions of revenues and income
before taxes in the various jurisdictions in which we operate
that have differing statutory tax rates |
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Changing tax laws, regulations, and interpretations in multiple
jurisdictions in which we operate as well as the requirements of
certain tax rulings |
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Changes in accounting and tax treatment of stock-based
compensation |
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The tax effects of purchase accounting for acquisitions and
non-recurring charges, which may cause fluctuations between
reporting periods |
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Tax assessments, including those against acquired entities with
respect to tax periods prior to the acquisitions, that may
significantly affect our effective tax rate for the period in
which the settlements take place |
The Canadian and United States trading markets are different
and the market price for Exchangeable Shares may be higher than
the market price for our common stock. The purchase price
payable by us for the Exchangeable Shares will consist of shares
of our common stock. Because the Exchangeable Shares and our
common stock trade on different markets, there is a possibility
that the market prices may not be equivalent and the market
price for Exchangeable Shares may be higher than the market
price for our common stock. Accordingly, the market price for
Exchangeable Shares may be higher than the purchase price that
we will pay for those shares. The Exchangeable Shares are listed
on the TSX Venture Exchange while our common stock is listed on
the NASDAQ National Market. We do not plan to list the
Exchangeable Shares or our common stock on any other stock
market in Canada or the United States. As a result, the price at
which the Exchangeable Shares will trade will be based upon the
market for these shares on the TSX Venture Exchange and the
price at which our common stock will trade will be based upon
the market for these shares on the NASDAQ National Market.
USE OF PROCEEDS
The shares of Symantec common stock covered by this Prospectus
will be issued to purchase Exchangeable Shares. We will not
receive any proceeds from the purchase of Exchangeable Shares
using Symantec shares. This Prospectus does not cover the resale
of these Symantec shares and we will not receive any proceeds
from the resale of these shares.
PLAN OF DISTRIBUTION
The shares of Symantec common stock covered by this Prospectus
will be issued to purchase Exchangeable Shares. This Prospectus
does not cover the resale of shares of Symantec common stock
issued to holders of Exchangeable Shares. Symantec has not
engaged any broker, dealer or underwriter in connection with
this offering of its common stock.
In June 1999, VERITAS Software Corporation acquired TeleBackup
Services, Inc., an Alberta corporation. Pursuant to the terms of
a Plan of Arrangement under Section 186 of the Business
Corporations Act (Alberta), TeleBackup underwent a
reorganization of capital whereby, among other things, properly
electing holders of TeleBackup common stock received 0.026466
Exchangeable Shares for each share of TeleBackup common stock.
Under specified circumstances, the holders of Exchangeable
Shares could require that the Exchangeable Shares be purchased
using shares of VERITAS common stock or VERITAS could require
that the holders of Exchangeable Shares submit the Exchangeable
Shares for purchase using shares of VERITAS common stock. The
rights of holders of Exchangeable Shares are governed by a
Voting, Support and Exchange Trust Agreement among VERITAS,
a subsidiary of VERITAS, Exchangeco and Computershare Trust
Company of Canada (as amended from time to time, the
Support Agreement) and the articles of amendment of
Exchangeco which set forth the rights, privileges, restrictions
and conditions attaching to the Exchangeable Shares (the
Exchangeable Share Provisions). Computershare acts
as the transfer agent and trustee for the Exchangeable Shares.
In July 2005, Symantec acquired VERITAS. In connection with the
acquisition, Symantec, VERITAS, a subsidiary of VERITAS,
Exchangeco and Computershare entered into a Fourth Supplemental
Agreement to the Support Agreement, which provides that Symantec
shall succeed to the rights, powers, covenants and obligations
of VERITAS under the Support Agreement and Exchangeable Share
Provisions and that shares of Symantec common stock instead of
VERITAS common stock will be deliverable under those documents.
As a result of the acquisition of VERITAS by Symantec,
Exchangeco became an indirect wholly owned subsidiary of
Symantec.
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Shares of Symantec common stock will be issued to holders of
Exchangeable Shares under this Prospectus as follows:
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Holders of Exchangeable Shares may require at any time that
their Exchangeable Shares be exchanged for 5.0589 shares of
Symantec common stock per Exchangeable Share. See Optional
Exchange of Exchangeable Shares below. |
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Upon at least 120 days notice to the holders of
Exchangeable Shares, there will be a mandatory purchase of any
remaining Exchangeable Shares for 5.0589 shares of Symantec
common stock per Exchangeable Share. See Mandatory
Purchase of Exchangeable Shares below. |
Symantec will not issue any fractional shares of its common
stock upon purchase of Exchangeable Shares. Instead Symantec
will pay cash for any fractional portion based on the current
market price of shares of Symantec common stock. The number of
shares of Symantec common stock to be issued upon purchase of an
Exchangeable Share will be proportionally adjusted to reflect
any stock split, reverse stock split, stock dividend,
recapitalization, reclassification or similar capital change
affecting Symantec common stock or the Exchangeable Shares.
Optional Exchange of Exchangeable Shares.
Under the current terms of the Support Agreement and
Exchangeable Share Provisions, holders of Exchangeable Shares
are entitled at any time to exchange any or all of the
Exchangeable Shares owned by them for 5.0589 shares of
Symantec common stock. On exchange, holders will also be
entitled to receive all declared and unpaid dividends and
distributions on the Exchangeable Shares and all dividends and
distributions declared on Symantec common stock which have not
been declared on the Exchangeable Shares (there are currently no
such declared and unpaid dividends or distributions on
Exchangeable Shares or declared dividends or distributions on
Symantec common stock). Holders of Exchangeable Shares may
effect the exchange by presenting to Exchangeco or Computershare
(i) the certificate or certificates representing the
Exchangeable Shares that the holder desires to have exchanged,
(ii) a duly executed statement specifying the number of
Exchangeable Shares the holder wishes to have exchanged, and
(iii) such other documents or instruments as may be
required to effect a transfer of Exchangeable Shares under the
Business Corporations Act (Alberta). The exchange will
take place on the fifth business day following the receipt of
the exchange request by Exchangeco, unless the holder has
withdrawn the exchange request by written notice before the
close of business on the business day immediately preceding the
scheduled exchange date.
For purposes of completing an optional purchase, Symantec shall
deposit with Computershare, on or before the scheduled purchase
date, certificates representing the number of shares of Symantec
common stock to which the holder is entitled. Provided that the
certificates have been so deposited with Computershare, the
closing of the purchase and sale of the Exchangeable Shares
shall be deemed to have occurred as of the close of business on
the scheduled purchase date. Symantec shall deliver or cause
Computershare to deliver to the holder, or hold for pick up by
the holder, a certificate representing the number of shares of
Symantec common stock to which such holder is entitled (which
shares shall be duly issued as fully paid and non-assessable and
shall be free and clear of any lien, claim, encumbrance,
security interest or adverse claim). On and after the close of
business on the scheduled purchase date, the holder of the
purchased Exchangeable Shares shall not be entitled to exercise
any of the rights of a holder in respect thereof, other than the
right to receive payment of the purchase price. On and after the
close of business on the scheduled purchase date, provided that
presentation and surrender of certificates and payment of the
purchase price has been made, the holder of the purchased
Exchangeable Shares shall thereafter be considered and deemed
for all purposes to be a holder of the shares of Symantec common
stock delivered to such holder.
Mandatory Purchase of Exchangeable Shares.
Under the current terms of the Support Agreement and
Exchangeable Share Provisions, because there are less than
50,000 Exchangeable Shares outstanding, Symantec is entitled to
purchase all of the Exchangeable Shares for a per share price of
5.0589 shares of Symantec common stock plus all declared
and unpaid dividends and distributions on each Exchangeable
Share. All declared and unpaid dividends and
15
distributions on the Exchangeable Shares and all dividends and
distributions declared on Symantec common stock which have not
been declared on the Exchangeable Shares will be added to the
purchase price (there are currently no such declared and unpaid
dividends or distributions on Exchangeable Shares or declared
dividends or distributions on Symantec common stock). Symantec
has decided to exercise its purchase right and will cause
Exchangeco to send to each holder of Exchangeable Shares a
written notice shortly after the date of this Prospectus that
will specify a purchase date of at least 120 days following
notice and a purchase price equal to 5.0589 shares of
Symantec common stock per Exchangeable Share. Each holder of
Exchangeable Shares shall be obligated to sell all the
Exchangeable Shares held by such holder to Symantec on the
purchase date set by Symantec.
For the purposes of completing a purchase of the Exchangeable
Shares pursuant to the exercise of the purchase right, Symantec
shall deposit with Computershare, on or before the purchase
date, certificates representing the total number of shares of
Symantec common stock deliverable by Symantec (which shares
shall be duly issued as fully paid and nonassessable and shall
he free and clear of any lien, claim, encumbrance, security
interest or adverse claim) in payment of the total purchase
price. Provided that the total purchase price has been so
deposited with Computershare, on and after the purchase date the
rights of each holder of Exchangeable Shares will be limited to
receiving such holders proportionate part of the total
purchase price payable by Symantec upon presentation and
surrender by such holder of certificates representing the
Exchangeable Shares held by such holder and such holder shall on
and after the purchase date be considered and deemed for all
purposes to be the holder of the shares of Symantec common stock
delivered or deliverable to such holder. Upon surrender to
Computershare of a certificate representing Exchangeable Shares,
together with such other documents and instruments as may be
required to effect a transfer of Exchangeable Shares under the
Business Corporations Act (Alberta), the holder of such
surrendered certificate shall be entitled to receive in exchange
therefor, and Computershare on behalf of Symantec shall deliver
to such holder, a certificate representing the shares of
Symantec common stock to which such holder is entitled.
TAX MATTERS
The exchange of your Exchangeable Shares using shares of our
common stock may be a taxable event in Canada and/or the United
States. Canadian and United States tax considerations will vary
according to your particular circumstances. Your tax
consequences can vary depending on a number of factors,
including where you reside, the method of the purchase and the
length of time the Exchangeable Shares were held prior to the
purchase. You are strongly urged to consult with your own tax
advisor regarding the tax consequences.
LEGAL MATTERS
Fenwick & West LLP, Mountain View, California, will
provide us with a legal opinion as to the validity of the
issuance of the shares of common stock offered under this
Prospectus. Attorneys of Fenwick & West LLP own an
aggregate of approximately 11,247 shares of our common
stock as of September 27, 2005.
EXPERTS
The consolidated financial statements and financial statement
schedule of Symantec Corporation as of March 31, 2005 and
2004, and for each of the years in the three-year period ended
March 31, 2005, and managements assessment of the
effectiveness of internal control over financial reporting as of
March 31, 2005, have been incorporated by reference in this
registration statement in reliance upon the reports of
KPMG LLP, independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
The consolidated financial statements and financial statement
schedule of VERITAS Software Corporation as of December 31,
2004 and 2003, and for each of the years in the three-year
period ended December 31, 2004, and managements
assessment of the effectiveness of internal control over
financial reporting as of December 31, 2004, have been
incorporated by reference in this registration statement in
reliance upon the
16
reports of KPMG LLP, independent registered public accounting
firm, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
The audit report on VERITAS Software Corporation
managements assessment of the effectiveness of internal
control over financial reporting and the effectiveness of
internal control over financial reporting as of
December 31, 2004, expresses an opinion that VERITAS
Software Corporation did not maintain effective internal control
over financial reporting as of December 31, 2004 because of
the effect of a material weakness on the achievement of the
objectives of the control criteria and contains an explanatory
paragraph that states that the following deficiencies resulted
in errors in accounting for software revenue recognition and
have been identified and included in managements
assessment because, in the aggregate, they constitute a material
weakness in internal control over financial reporting as of
December 31, 2004:
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Manual Order Entry Processes |
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As of December 31, 2004, VERITAS Software Corporation did
not maintain adequate review procedures requiring validation by
qualified personnel of information included in manual customer
orders for software products and services to ensure that this
information was accurately entered into its order processing
system and to ensure revenue recognition in accordance with
generally accepted accounting principles. |
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Software Revenue Recognition Review |
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As of December 31, 2004, VERITAS Software Corporation did
not maintain adequate review procedures to ensure that
multiple-element software arrangements and other related
software revenue recognition requirements were accounted for in
accordance with generally accepted accounting principles. |
The audit report contains an explanatory paragraph that refers
to VERITAS Software Corporations adoption of Financial
Accounting Standards Board Interpretation No. (FIN) 46,
Consolidation of Variable Interest Entities an Interpretation
of ARB No. 51, effective July 1, 2003.
INCORPORATION OF DOCUMENTS BY REFERENCE
The Securities and Exchange Commission (Commission)
allows us to incorporate by reference into this Prospectus
information that we file with the Commission. This means that we
can disclose important information to you by referring to those
documents. The information that we incorporate by reference is
considered as part of this Prospectus, and later information we
file with the Commission will automatically update and supersede
this information.
The following documents that we have filed with the Commission
are incorporated by reference into this Prospectus:
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our annual report on Form 10-K for the fiscal year ended
April 1, 2005 filed on June 15, 2005 (as amended by a
Form 10-K/ A filed on June 16, 2005); |
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our quarterly report on Form 10-Q for the quarter ended
July 1, 2005 filed on August 10, 2005; |
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our current reports on Form 8-K filed on April 14,
2005, May 4, 2005, May 31, 2005 (as amended by a
Form 8-K/ A filed on June 1, 2005), June 13,
2005, June 21, 2005, June 24, 2005, July 8, 2005,
July 25, 2005, July 28, 2005, August 4, 2005,
August 18, 2005, September 7, 2005, September 12,
2005, September 16, 2005 and September 30, 2005 ; |
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the description of our common stock contained in our
registration statement on Form 8-A filed on May 24,
1989 (including any amendment or report filed for the purpose of
updating such description); and |
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the description of our preferred stock purchase rights contained
in our registration statement on Form 8-A filed on
August 19, 1998 (including any amendment or report filed
for the purpose of updating such description). |
17
All other documents that we file with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Prospectus and before the termination of
this offering shall be deemed to be incorporated by reference
into this Prospectus and to be a part hereof from the date of
filing of such documents.
You should rely only on the information contained or
specifically incorporated by reference in this Prospectus. We
have not authorized anyone to give you any information that is
different from what is contained or incorporated by reference in
this Prospectus. 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. Such inconsistent incorporated statement shall
not be deemed, except as modified or superseded, to constitute a
part of this Prospectus or the Registration Statement.
WHERE YOU CAN FIND MORE INFORMATION
Because we are subject to the informational requirements of the
Exchange Act, we file reports and other information with the
Commission. You may read and obtain copies of this material at
the Public Reference Room 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. Reports, proxy and information statements and
other information that we file electronically with the
Commission are available at the Commissions web site at
http://www.sec.gov.
We have filed with the Commission a registration statement on
Form S-3 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
Commissions Public Reference Room in
Washington, D.C., and you may obtain copies from this
office upon payment of the fees prescribed by the Commission.
Upon written or oral request, we will furnish without charge to
each person to whom a copy of this Prospectus is delivered, a
copy of the information that has been incorporated into this
Prospectus by reference (except exhibits, unless they are
specifically incorporated by reference into this Prospectus).
You should direct any requests for copies to Symantec by writing
or telephoning us at 20330 Stevens Creek Blvd., Cupertino,
California 95014, Attention: Investor Relations, telephone:
(408) 517-8324.
18
SYMANTEC CORPORATION
Up to 250,000 Shares of
Common Stock
PROSPECTUS
,
2005
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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ITEM 14. |
Other Expenses of Issuance and Distribution. |
The following table sets forth the various expenses payable by
the Registrant in connection with the sale and distribution of
the shares being registered hereby. Normal commission expenses
and brokerage fees are payable individually by the selling
stockholder. All amounts are estimated except the Securities and
Exchange Commission registration fee.
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Securities and Exchange Commission registration fee
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$ |
591 |
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Accounting fees and expenses
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10,000 |
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Legal fees and expenses
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10,000 |
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Printing and other miscellaneous fees
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5,000 |
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Total
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$ |
25,591 |
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ITEM 15. |
Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law
authorizes a court to award, or a corporations 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.
As permitted by Section 145 of the Delaware General
Corporation Law, the Registrants 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:
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for any breach of the directors duty of loyalty to the
Registrant or its stockholders; |
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for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of the law; |
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under Section 174 of the Delaware General Corporation Law
regarding unlawful dividends and stock purchases; and |
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for any transaction from which the director derived an improper
personal benefit. |
As permitted by the Delaware General Corporation Law, the
Registrants Bylaws provide that:
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the Registrant is required to indemnify its directors and
officers to the fullest extent permitted by the Delaware General
Corporation Law, subject to limited exceptions; |
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the 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; |
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the 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 |
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the rights conferred in the Bylaws are not exclusive. |
The 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 the Registrants
Certificate of Incorporation and Bylaws and to provide
additional procedural protections.
II-1
The Registrant maintains directors and officers
liability insurance and has extended that coverage for public
securities matters.
See also the undertakings set out in response to Item 17.
Reference is made to the following documents filed as exhibits
to this Registration Statement regarding relevant
indemnification provisions described above and elsewhere herein:
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Exhibit Document |
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Restated Certificate of Incorporation
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3.01 |
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Bylaws, as amended and restated effective August 11, 1998
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3.04 |
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In addition, the Registrant has entered into various merger
agreements and registration rights agreements in connection with
its acquisitions of and mergers with various companies and its
financing activities under which the parties to those agreements
have agreed to indemnify the Registrant and its directors,
officers, employees and controlling persons against specified
liabilities.
The following exhibits are filed with this Registration
Statement or incorporated into this Registration Statement by
reference:
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Incorporated by Reference | |
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Exhibit | |
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Exhibit Description |
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Filing Date | |
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Herewith | |
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2 |
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Agreement and Plan of Merger, dated as of September 23,
2003, among Symantec Corporation, Quartz Acquisition Corp.,
PowerQuest, Inc., and John Fife, as representative* |
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10-Q |
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10.01 |
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02/13/04 |
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2 |
.02 |
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Agreement and Plan of Merger, dated as of October 27, 2003,
by and among Symantec Corporation, Outlaw Acquisition
Corporation, and OnTechnology Corporation* |
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10-Q |
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10.02 |
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02/13/04 |
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2 |
.03 |
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Agreement and Plan of Merger dated as of May 19, 2004,
among Symantec Corporation, Brazil Acquisition Corp., Brightmail
Incorporated, and John C. Colligan, as Representative* |
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10-K |
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2.03 |
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06/14/04 |
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2 |
.04 |
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Agreement and Plan of Reorganization dated as of
December 15, 2004 among Symantec Corporation, VERITAS
Software Corporation, and Carmel Acquisition Corp. |
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8-K |
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2.01 |
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12/20/04 |
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3 |
.01 |
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Symantec Corporation Restated Certificate of Incorporation |
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S-8 |
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333-119872 |
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4.01 |
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10/21/04 |
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3 |
.02 |
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Symantec Corporation Certificate of Designations of
Series A Junior Participating Preferred Stock |
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8-K |
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3.01 |
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12/21/04 |
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3 |
.03 |
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Symantec Corporation Certificate of Amendment of Restated
Certificate of Incorporation |
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S-8 |
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4.03 |
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07/06/05 |
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3 |
.04 |
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Symantec Corporation Bylaws, as amended
and restated effective August 11, 1998 |
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8-K |
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3.1 |
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08/19/98 |
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4 |
.01 |
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Registration Rights Agreement between Symantec Corporation and
Certain of its Stockholders. |
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S-4 |
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33-35385 |
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4.02 |
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06/13/90 |
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II-2
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Incorporated by Reference | |
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Exhibit | |
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Herewith | |
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.02 |
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Amendment No. One to Registration Rights Agreement. |
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10-K |
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4.02 |
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06/16/03 |
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4 |
.03 |
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Amendment No. Two to Registration Rights Agreement. |
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10-K |
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4.03 |
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06/16/03 |
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4 |
.04 |
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Rights Agreement, dated as of August 12, 1998, between
Symantec Corporation and BankBoston, N.A., as Rights Agent,
which includes as Exhibit A the Form of Certificate of
Designations of Series A Junior Participating Preferred
Stock, as Exhibit B the Form of Right Certificate and as
Exhibit C the Summary of Rights to Purchase Preferred
Shares. |
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8-A |
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4.1 |
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08/19/98 |
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5 |
.01 |
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Opinion of Fenwick & West LLP |
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23 |
.01 |
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Consent of Independent Registered Public Accounting Firm |
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23 |
.02 |
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Consent of Fenwick & West LLP (filed as part of
Exhibit 5.01) |
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24 |
.01 |
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Power of Attorney (See page II-5) |
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* |
The exhibits and schedules to this agreement have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. We will
furnish copies of any of the exhibits and schedules to the
Securities and Exchange Commission upon request. |
The Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement: |
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(a) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933; |
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(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.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low and high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and |
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(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 the information
in the Registration Statement; |
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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 the Registrant pursuant to Section 13 or |
II-3
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Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement. |
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(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each 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. |
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(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. |
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(4) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrants
annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Exchange Act
of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission this
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. If a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by the
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of this issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Amendment No. 1 to the
Registration Statement on Form S-3 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the
city of Cupertino, State of California, on October 3, 2005.
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John W. Thompson |
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Chairman and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement on
Form S-3 has been signed by the following persons in the
capacities and on the dates indicated.
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Signature |
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Date |
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/s/ John W. Thompson
John
W. Thompson |
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Chairman and Chief Executive Officer
(principal executive officer) |
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October 3, 2005 |
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/s/ Gregory E. Myers
Gregory
E. Myers |
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Chief Financial Officer and Senior Vice President of Finance
(principal financial officer) |
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October 3, 2005 |
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/s/ Stephen C. Markowski
Stephen
C. Markowski |
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Chief Accounting Officer
(principal accounting officer) |
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October 3, 2005 |
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Gary
L. Bloom |
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Director |
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October , 2005 |
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Michael
A. Brown |
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Director |
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October 3, 2005 |
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William
T. Coleman III |
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Director |
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October 3, 2005 |
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David
L. Mahoney |
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Director |
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October , 2005 |
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*
Robert
S. Miller |
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Director |
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October 3, 2005 |
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*
George
Reyes |
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Director |
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October 3, 2005 |
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*
David
J. Roux |
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Director |
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October 3, 2005 |
II-5
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Signature |
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Capacity |
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Date |
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*
Daniel
H. Schulman |
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Director |
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October 3, 2005 |
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*
Paul
Unruh |
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Director |
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October 3, 2005 |
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*By: |
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/s/ John W. Thompson
John
W. Thompson
Attorney-in-Fact |
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II-6
EXHIBIT INDEX
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Incorporated by Reference | |
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Exhibit | |
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Filed | |
Number | |
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Exhibit Description |
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Form | |
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File No. | |
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Exhibit | |
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Filing Date | |
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Herewith | |
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2 |
.01 |
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Agreement and Plan of Merger, dated as of September 23,
2003, among Symantec Corporation, Quartz Acquisition Corp.,
PowerQuest, Inc., and John Fife, as representative* |
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10-Q |
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10.01 |
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02/13/04 |
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2 |
.02 |
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Agreement and Plan of Merger, dated as of October 27, 2003,
by and among Symantec Corporation, Outlaw Acquisition
Corporation, and OnTechnology Corporation* |
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10-Q |
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10.02 |
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02/13/04 |
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2 |
.03 |
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Agreement and Plan of Merger dated as of May 19, 2004,
among Symantec Corporation, Brazil Acquisition Corp., Brightmail
Incorporated, and John C. Colligan, as Representative* |
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10-K |
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2.03 |
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06/14/04 |
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2 |
.04 |
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Agreement and Plan of Reorganization dated as of
December 15, 2004 among Symantec Corporation, VERITAS
Software Corporation, and Carmel Acquisition Corp. |
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8-K |
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2.01 |
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12/20/04 |
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3 |
.01 |
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Symantec Corporation Restated Certificate of Incorporation |
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S-8 |
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333-119872 |
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4.01 |
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10/21/04 |
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3 |
.02 |
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Symantec Corporation Certificate of Designations of
Series A Junior Participating Preferred Stock |
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8-K |
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3.01 |
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12/21/04 |
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3 |
.03 |
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Symantec Corporation Certificate of Amendment of Restated
Certificate of Incorporation |
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S-8 |
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4.03 |
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07/06/05 |
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3 |
.04 |
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Symantec Corporation Bylaws, as amended and restated effective
August 11, 1998 |
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8-K |
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3.1 |
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08/19/98 |
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4 |
.01 |
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Registration Rights Agreement between Symantec Corporation and
Certain of its Stockholders. |
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S-4 |
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33-35385 |
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4.02 |
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06/13/90 |
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4 |
.02 |
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Amendment No. One to Registration Rights Agreement. |
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10-K |
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4.02 |
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06/16/03 |
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4 |
.03 |
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Amendment No. Two to Registration Rights Agreement. |
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10-K |
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4.03 |
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06/16/03 |
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4 |
.04 |
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Rights Agreement, dated as of August 12, 1998, between
Symantec Corporation and BankBoston, N.A., as Rights Agent,
which includes as Exhibit A the Form of Certificate of
Designations of Series A Junior Participating Preferred
Stock, as Exhibit B the Form of Right Certificate and as
Exhibit C the Summary of Rights to Purchase Preferred
Shares. |
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8-A |
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4.1 |
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08/19/98 |
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5 |
.01 |
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Opinion of Fenwick & West LLP |
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23 |
.01 |
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Consent of Independent Registered Public Accounting Firm |
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X |
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23 |
.02 |
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Consent of Fenwick & West LLP (filed as part of
Exhibit 5.01) |
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24 |
.01 |
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Power of Attorney (See page II-5) |
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* |
The exhibits and schedules to this agreement have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. We will
furnish copies of any of the exhibits and schedules to the
Securities and Exchange Commission upon request. |