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EXHIBIT 4.03
SYMANTEC CORPORATION
RESTRICTED STOCK PURCHASE AGREEMENT
This Restricted Stock Purchase Agreement (the "AGREEMENT") is made and
entered into as of APRIL 14, 1999 (the "EFFECTIVE DATE") by and between Symantec
Corporation, a Delaware corporation (the "COMPANY"), and the purchaser named
below (the "PURCHASER").
PURCHASER: XXXX X. XXXXXXXX
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SOCIAL SECURITY NUMBER:
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ADDRESS: 00 XXX XXXX XXXX
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XXXXXXXX, XXXXXXXXXXX 00000
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TOTAL NUMBER OF SHARES: 100,000
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PURCHASE PRICE PER SHARE: $0.01
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TOTAL PURCHASE PRICE: $1,000.00
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1. PURCHASE OF SHARES.
1.1 Purchase of Shares. On the Effective Date and subject to the
terms and conditions of this Agreement, Purchaser hereby purchases from the
Company, and the Company hereby sells to Purchaser, the Total Number of Shares
set forth above (the "SHARES") of the Company's Common Stock at the Purchase
Price Per Share as set forth above (the "PURCHASE PRICE PER SHARE") for a Total
Purchase Price as set forth above (the "PURCHASE PRICE"). As used in this
Agreement, the term "SHARES" includes the Shares purchased under this Agreement
and all securities received (i) in replacement of the Shares, (ii) as a result
of stock dividends or stock splits with respect to the Shares, and (iii) in
replacement of the Shares in a merger, recapitalization, reorganization or
similar corporate transaction.
1.2 Title to Shares. The exact spelling of the name(s) under
which Purchaser will take title to the Shares is:
XXXX X. XXXXXXXX
Purchaser desires to take title to the Shares as follows:
[X] Individual, as separate property
[ ] Husband and wife, as community property
[ ] Joint Tenants
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2. DELIVERY. Purchaser hereby delivers to the Company (i) a duly
executed copy of this Agreement and (ii) payment of the Purchase Price in cash
(by check) in the amount of $1,000.00, receipt of which is acknowledged by the
Company.
3. RESTRICTION ON TRANSFER. Purchaser shall not transfer, assign, xxxxx
x xxxx or security interest in, pledge, hypothecate, encumber or otherwise
dispose of any of the Shares which are subject to the Company's Repurchase
Option (as defined below) without the Company's prior written consent.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents and
warrants to the Company that:
4.1 Purchase for Own Account for Investment. Purchaser is
purchasing the Shares for Purchaser's own account for investment purposes only
and not with a view to, or for sale in connection with, a distribution of the
Shares within the meaning of the Securities Act. Purchaser has no present
intention of selling or otherwise disposing of all or any portion of the Shares
and no one other than Purchaser has any beneficial ownership of any of the
Shares.
4.2 Access to Information. Purchaser has had access to all
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares, and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
4.3 Understanding of Risks. Purchaser is fully aware of: (i) the
highly speculative nature of the investment in the Shares; (ii) the financial
hazards involved; (iii) the lack of liquidity of the Shares and the restrictions
on transferability of the Shares (e.g., that Purchaser may not be able to sell
or dispose of the Shares or use them as collateral for loans); (iv) the
qualifications and backgrounds of the management of the Company; and (v) the tax
consequences of investment in the Shares. Purchaser is capable of evaluating the
merits and risks of this investment, has the ability to protect Purchaser's own
interests in this transaction and is financially capable of bearing a total loss
of this investment.
4.4 No General Solicitation. At no time was Purchaser presented
with or solicited by any publicly issued or circulated newspaper, mail, radio,
television or other form of general advertising or solicitation in connection
with the offer, sale and purchase of the Shares.
5. COMPANY'S REPURCHASE OPTION FOR UNVESTED SHARES. The Company, or its
assignee, shall have the option to repurchase all or a portion of the
Purchaser's Unvested Shares (as defined in Section 5.1 below) on the terms and
conditions set forth in this Section (the "REPURCHASE OPTION") if Purchaser is
terminated for any reason, or no reason, including without limitation
Purchaser's death, disability, voluntary resignation or termination by the
Company with or without cause.
5.1 Unvested and Vested Shares. Shares that are vested pursuant to the
schedule set forth in this Section 5.1 are "VESTED SHARES." Shares that are not
vested pursuant to the schedule set forth in this Section 5.1 are "UNVESTED
SHARES." Unvested Shares may not be sold or otherwise transferred by Purchaser
without the Company's prior written consent. On the Effective Date all of the
Shares will be Unvested Shares. Except as otherwise provided in the
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employment agreement between Purchaser and the Company dated April 11, 1999 (the
"EMPLOYMENT AGREEMENT"), if Purchaser continuously provides services to the
Company or any subsidiary or parent of the Company, 50,000 Shares shall vest on
the first anniversary of Purchaser's employment and the remaining 50,000 Shares
shall vest on the second anniversary of Purchaser's employment. Except as
otherwise set forth in the Employment Agreement, no Shares will become Vested
Shares after the Termination Date. The number of Shares that are Vested Shares
or Unvested Shares will be proportionally adjusted for any stock split or
similar change in the capital structure of the Company.
5.2 Exercise of Repurchase Option. At any time after the
Termination Date, the Company, or its assignee(s), may elect to repurchase any
or all of the Purchaser's Unvested Shares by giving Purchaser written notice of
exercise of the Repurchase Option.
5.3 Calculation of Repurchase Price. The Company or its
assignee(s) shall have the option to repurchase from Purchaser (or from
Purchaser's personal representative as the case may be) the Purchaser's Unvested
Shares at the Purchaser's original Purchase Price Per Share (as adjusted to
reflect any stock split or similar change in the capital structure of the
Company) (the "REPURCHASE PRICE").
6. RIGHTS AS A SHAREHOLDER. Subject to the terms and conditions of this
Agreement, Purchaser will have all of the rights of a shareholder of the Company
with respect to the Shares from and after the date that Purchaser delivers
payment of the Purchase Price until such time as Purchaser disposes of the
Shares or the Company and/or its assignee(s) exercise(s) the Repurchase Option.
Upon an exercise of the Repurchase Option, Purchaser will have no further rights
as a holder of the Shares so purchased upon such exercise, other than the right
to receive payment for the Shares so purchased in accordance with the provisions
of this Agreement, and Purchaser will promptly surrender the stock
certificate(s) evidencing the Shares so purchased to the Company for transfer or
cancellation.
7. STOP-TRANSFER INSTRUCTIONS; REFUSAL TO TRANSFER. Purchaser agrees
that, to ensure compliance with the restrictions imposed by this Agreement, the
Company may issue appropriate "stop-transfer" instructions to its transfer
agent. The Company will not be required (i) to transfer on its books any Shares
that have been sold or otherwise transferred in violation of any of the
provisions of this Agreement or (ii) to treat as owner of such Shares, or to
accord the right to vote or pay dividends to any purchaser or other transferee
to whom such Shares have been so transferred.
8. TAX CONSEQUENCES. PURCHASER UNDERSTANDS THAT PURCHASER MAY SUFFER
ADVERSE TAX CONSEQUENCES AS A RESULT OF PURCHASER'S PURCHASE OR DISPOSITION OF
THE SHARES. PURCHASER REPRESENTS (i) THAT PURCHASER HAS CONSULTED WITH ANY TAX
ADVISER THAT PURCHASER DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR
DISPOSITION OF THE SHARES AND (ii) THAT PURCHASER IS NOT RELYING ON THE COMPANY
FOR ANY TAX ADVICE. Purchaser hereby acknowledges that Purchaser has been
informed that, unless an election is filed by the Purchaser with the Internal
Revenue Service (and, if necessary, the proper state taxing authorities) within
30 days of the purchase of the Shares to be effective, electing pursuant to
Section 83(b) of the Internal Revenue Code (and similar state tax provisions, if
applicable) to be taxed currently on any difference between the Purchase Price
of the Shares
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and their Fair Market Value on the date of purchase, there will be a
recognition of taxable income to the Purchaser, measured by the excess, if any,
of the Fair Market Value of the Vested Shares, at the time they cease to be
Unvested Shares, over the Purchase Price for such Shares. Purchaser represents
that Purchaser has consulted any tax advisers Purchaser deems advisable in
connection with Purchaser's purchase of the Shares and the filing of the
election under Section 83(b) and similar tax provisions. A form of Election
under Section 83(b) is attached hereto as Exhibit 1 for reference. PURCHASER
HEREBY ASSUMES ALL RESPONSIBILITY FOR FILING SUCH ELECTION AND PAYING ANY TAXES
RESULTING FROM SUCH ELECTION OR FROM FAILURE TO FILE THE ELECTION AND PAYING
TAXES RESULTING FROM THE LAPSE OF THE REPURCHASE RESTRICTIONS ON THE UNVESTED
SHARES.
9. COMPLIANCE WITH LAWS AND REGULATIONS. The issuance and transfer of
the Shares will be subject to and conditioned upon compliance by the Company and
Purchaser with all applicable state and federal laws and regulations and with
all applicable requirements of any stock exchange or automated quotation system
on which the Company's Common Stock may be listed or quoted at the time of such
issuance or transfer.
10. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Agreement, including its rights to repurchase Shares under the
Repurchase Option. This Agreement shall be binding upon and inure to the benefit
of the successors and assigns of the Company. Subject to the restrictions on
transfer herein set forth, this Agreement will be binding upon Purchaser and
Purchaser's heirs, executors, administrators, legal representatives, successors
and assigns.
11. GOVERNING LAW; SEVERABILITY. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California as
such laws are applied to agreements between California residents entered into
and to be performed entirely within California, excluding that body of laws
pertaining to conflict of laws. If any provision of this Agreement is determined
by a court of law to be illegal or unenforceable, then such provision will be
enforced to the maximum extent possible and the other provisions will remain
fully effective and enforceable.
12. NOTICES. Any notice required to be given or delivered to the Company
shall be in writing and addressed to the Corporate Secretary of the Company at
its principal corporate offices. Any notice required to be given or delivered to
Purchaser shall be in writing and addressed to Purchaser at the address
indicated above or to such other address as Purchaser may designate in writing
from time to time to the Company. All notices shall be deemed effectively given
upon personal delivery, (i) three (3) days after deposit in the United States
mail by certified or registered mail (return receipt requested), (ii) one (1)
business day after its deposit with any return receipt express courier
(prepaid), or (iii) one (1) business day after transmission by facsimile.
13. FURTHER INSTRUMENTS. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
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14. HEADINGS. The captions and headings of this Agreement are included
for ease of reference only and will be disregarded in interpreting or construing
this Agreement. All references herein to Sections will refer to Sections of this
Agreement.
15. ENTIRE AGREEMENT. The Employment Agreement and this Agreement
constitute the entire agreement and understanding of the parties with respect to
the subject matter of this Agreement, and supersede all prior understandings and
agreements, whether oral or written, between the parties hereto with respect to
the specific subject matter hereof.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
in triplicate by its duly authorized representative and Purchaser has executed
this Agreement in triplicate as of the Effective Date.
SYMANTEC CORPORATION PURCHASER
By: /s/ Xxxxx Xxxxx /s/ Xxxx X. Xxxxxxxx
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(Signature)
Xxxxx Xxxxx Xxxx X. Xxxxxxxx
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(Please print name) (Please print name)
VP, Worldwide Operations
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(Please print title)
[SIGNATURE PAGE TO SYMANTEC CORPORATION RESTRICTED STOCK PURCHASE AGREEMENT]
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LIST OF EXHIBITS
Exhibit 1: Election Under Section 83(b) of the Internal Revenue Code
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EXHIBIT 1
ELECTION UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE
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ELECTION UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE
The undersigned Taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code, as amended, to include in gross income for the Taxpayer's
current taxable year the excess, if any, of the fair market value of the
property described below at the time of transfer over the amount paid for such
property, as compensation for services.
1. TAXPAYER'S NAME: XXXX X. XXXXXXXX
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TAXPAYER'S ADDRESS: C/O SYMANTEC CORPORATION
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00000 XXXXX XXXXXX, XXXXXXXXX, XX 00000
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SOCIAL SECURITY NUMBER:
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2. The property with respect to which the election is made is described as
follows: 100,000 SHARES OF COMMON STOCK OF SYMANTEC CORPORATION, A
DELAWARE CORPORATION (the "COMPANY"), which is Taxpayer's employer or
the corporation for whom the Taxpayer performs services.
3. The date on which the shares were transferred pursuant to the exercise
of the option was APRIL 14, 1999 and this election is made for calendar
year 1999.
4. The shares are subject to the following restrictions: THE COMPANY MAY
REPURCHASE ALL OR A PORTION OF THE SHARES AT THE TAXPAYER'S ORIGINAL
PURCHASE PRICE UNDER CERTAIN CONDITIONS AT THE TIME OF TAXPAYER'S
TERMINATION OF EMPLOYMENT OR SERVICES.
5. The fair market value of the shares (without regard to restrictions
other than restrictions which by their terms will never lapse) was
$13.00 per share at the time of transfer.
6. The amount paid for such shares was $0.01 per share.
7. The Taxpayer has submitted a copy of this statement to the Company.
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE ("IRS"), AT THE
OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS, WITHIN 30 DAYS AFTER
THE DATE OF TRANSFER OF THE PROPERTY, AND MUST ALSO BE FILED WITH THE TAXPAYER'S
INCOME TAX RETURNS FOR THE CALENDAR YEAR. THE ELECTION CANNOT BE REVOKED WITHOUT
THE CONSENT OF THE IRS.
Dated: 5-5-99 /s/ Xxxx X. Xxxxxxxx
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Taxpayer's Signature
