sv3asr
As filed with the Securities and Exchange Commission on
December 11, 2006
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Symantec Corporation
(Exact Name of Registrant as
Specified in Its Charter)
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Delaware
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77-0181864
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(I.R.S. Employer
Identification Number)
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20330 Stevens Creek Blvd.
Cupertino, California 95014-2132
(408) 517-8000
(Address, Including Zip Code,
and Telephone Number, Including Area Code, of Registrants
Principal Executive Offices)
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Arthur F. Courville
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Copy To:
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Executive Vice President,
General Counsel and
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Daniel J.
Winnike, Esq.
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Secretary
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Fenwick & West
LLP
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20330 Stevens Creek
Blvd.
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Silicon Valley Center
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Cupertino, California
95014-2132
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801 California Street
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(408) 517-8000
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Mountain View, California
94041
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(Name, Address, Including Zip
Code, and Telephone
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(650) 988-8500
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Number, Including Area Code, of
Agent for Service)
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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, other than
securities offered only in connection with dividend or interest
reinvestment plans, 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 this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box. þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following box. o
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount
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Offering
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Aggregate
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Registration
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Securities to be Registered
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to be Registered
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Price per Unit
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Offering Price
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Fee
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Common Stock, $0.01 par value
per share (including attached Preferred Share Purchase Rights),
Preferred Stock, $0.01 par value per share, Debt Securities
and Warrants
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(1),(2)
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(1),(2)
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(1),(2)
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(3)
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(1) |
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Omitted pursuant to
Form S-3
General Instruction II.E. |
(2) |
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Such indeterminate number or amount of common stock, preferred
stock, debt securities and warrants is being registered as may
from time to time be resold at indeterminate prices. This
Registration Statement also includes such indeterminate amount
of common stock, preferred stock and debt securities as may be
resold from time to time upon exercise of warrants or conversion
of convertible securities being registered hereunder. |
(3) |
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Deferred in reliance upon Rule 456(b) and Rule 457(r). |
PROSPECTUS
Common
Stock
Preferred Stock
Debt Securities
Warrants
This prospectus of Symantec Corporation relates to the potential
resale from time to time by the selling securityholders to be
named in any accompanying prospectus supplement of some or all
of the securities acquired from us or that will be acquired from
us by such selling securityholders from time to time in
unregistered private offerings. These securities may be offered
independently or together in any combination for sale directly
to purchasers or through underwriters, dealers or agents to be
designated at a future date.
When any selling securityholder intends to offer securities
under this prospectus, we will provide a supplement to this
prospectus describing the specific terms of the specific
securities. The supplement may add, update or change information
contained in this prospectus. You should carefully read this
prospectus and the accompanying prospectus supplement before you
decide to invest in any of these securities.
The selling securityholders may offer and sell the following
securities:
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common stock;
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preferred stock;
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debt securities; and/or
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warrants.
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We will receive no proceeds from any sale by the selling
securityholders of the securities covered by this prospectus and
any accompanying prospectus supplement, but in some cases we
have agreed to pay certain registration expenses.
THIS PROSPECTUS MAY NOT BE USED TO OFFER OR SELL ANY SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Our common stock is traded on the NASDAQ Global Select Market
under the symbol SYMC.
See Risk Factors beginning on page 3 in this
prospectus, as well as in supplements to this prospectus, for a
discussion of certain risks that you should consider before
buying any securities hereunder.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
If any agents or underwriters are involved in the sale of any of
these securities, the applicable prospectus supplement will
provide the names of the agents or underwriters and any
applicable fees, commissions or discounts.
The date of this prospectus is December 11, 2006.
TABLE OF
CONTENTS
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Page
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You should rely only on the information contained or
incorporated by reference in this prospectus and in any
supplement to this prospectus. We have not authorized any other
person to provide you with different information. If anyone
provides you with different or inconsistent information, you
should not rely on it. You should assume that the information
appearing in this prospectus and the accompanying prospectus
supplement is accurate as of the date on their respective
covers. Our business, financial condition, results of operations
and prospects may have changed since that date.
When used in this prospectus, the terms Symantec,
we, our and us refer to
Symantec Corporation and its consolidated subsidiaries, unless
otherwise specified.
ii
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or SEC, using
the shelf registration process. Under this shelf
registration process, selling securityholders may sell the
securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities selling securityholders may offer.
Each time selling securityholders sell securities, we will
provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus
supplement may also add to, update or change information
contained in this prospectus and, accordingly, to the extent
inconsistent, information in this prospectus will be superseded
by the information in the prospectus supplement. You should read
both this prospectus and such prospectus supplement together
with additional information described under the heading
Where You Can Find Additional Information.
The prospectus supplement will describe the terms of the
securities offered, any initial public offering price, the
manner of distribution and any underwriting compensation and the
other specific material terms related to the offering of these
securities. For more detail on the terms of the securities, you
should read the exhibits filed with or incorporated by reference
in our registration statement of which this prospectus forms a
part.
References to securities include any security that
selling securityholders might sell under this prospectus or any
prospectus supplement.
This prospectus and any prospectus supplement contain summaries
of certain provisions contained in some of the documents
described herein, but reference is made to the actual documents
for complete information. All of the summaries are qualified in
their entirety by the actual documents. Copies of the documents
referred to in this prospectus and any prospectus supplement
have been filed, or will be filed or incorporated by reference
as exhibits to the registration statement of which this
prospectus and any prospectus supplement is a part (or an
amendment to the registration statement of which this prospectus
and any prospectus supplement forms a part), and you may obtain
copies of those documents as described below under Where
You Can Find Additional Information.
Because we are a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act of 1933, as amended, or the
Securities Act, we may add to this prospectus and offer
additional securities by filing a prospectus supplement with the
SEC at the time of the offer of those securities.
FORWARD-LOOKING
STATEMENTS
All statements included or incorporated by reference in this
prospectus and any accompanying prospectus supplement, other
than statements of historical facts, that address activities,
events or developments that we intend, expect, project, believe
or anticipate will or may occur in the future are
forward-looking statements. This prospectus and any accompanying
prospectus supplement contain forward-looking statements that
are based on current expectations, estimates, forecasts and
projections about us, our future performance, our business, our
beliefs and our managements assumptions. In addition, we,
or others on our behalf, may make forward-looking statements in
press releases or written statements, or in our communications
and discussions with investors and analysts in the normal course
of business through meetings, webcasts, phone calls and
conference calls. Words such as expect,
anticipate, outlook, could,
target, project, intend,
plan, believe, seek,
estimate, should, may,
assume, or continue, and variations of
such words and similar expressions are intended to identify such
forward-looking statements. These statements are not guarantees
of future performance and involve certain risks, uncertainties
and assumptions that are difficult to predict. We describe some
of the risks, uncertainties and assumptions that could affect
our business including our financial condition and results of
operations, in Part I, Item 1A. Risk
Factors in our annual reports on
Forms 10-K
and in Part II, Item 1A. Risk Factors in
our quarterly reports on
Forms 10-Q,
which you may obtain as described under Where You Can Find
Additional Information below. We may update our
descriptions of such risks, uncertainties and assumptions in any
prospectus supplement. We have based our forward-looking
statements on our managements beliefs and assumptions
based on information available to our management at the time the
statements are made. We caution you that actual outcomes and
results may differ materially from what is expressed, implied or
forecast by our forward-looking statements. Reference is made in
particular to forward-looking statements regarding projections
of our future financial performance, capital resources,
anticipated growth and trends in our businesses and in our
industries, the anticipated impact of our acquisitions, and
other characterizations of future events or circumstances.
Except as required under the federal securities laws and the
rules and regulations of the SEC, we do not have any intention
or obligation to update publicly any forward-looking statements
after the distribution of this prospectus and any accompanying
prospectus supplement, whether as a result of new information,
future events, changes in assumptions or otherwise.
WHERE YOU
CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SECs
website at www.sec.gov. You may also read and copy any
document we file with the SEC at the SECs Public Reference
Room at 100 F Street, N.E., Washington, D.C. 20549. Please
call the SEC at
1-800-SEC-0330
for further information on the public reference rooms.
We maintain a website at www.symantec.com. The
information contained on our website is not incorporated by
reference in this prospectus and any accompanying prospectus
supplement and you should not consider it a part of this
prospectus and any accompanying prospectus supplement.
This prospectus and any accompanying prospectus supplement
incorporates important business and financial information about
us that is not included in or delivered with this prospectus or
any accompanying prospectus supplement. The information
incorporated by reference is considered to be part of this
prospectus and any accompanying prospectus supplement, except
for any information superseded by information in this prospectus
or any accompanying prospectus supplement. This prospectus and
any accompanying prospectus supplement incorporates by reference
the documents set forth below that have previously been filed
with the SEC:
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our Annual Report on
Form 10-K
for the fiscal year ended March 31, 2006;
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our Quarterly Reports on
Form 10-Q
for the fiscal quarters ended June 30, 2006 and
September 29, 2006;
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our Current Reports on
Form 8-K
filed on April 17, 2006, April 27, 2006, May 15,
2006, June 12, 2006, June 13, 2006, June 15,
2006, June 16, 2006, July 18, 2006, September 13,
2006, October 24, 2006, and December 11, 2006;
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the description of our common stock contained in our
registration statement on
Form 8-A
filed May 24, 1989 (including any amendment or report filed
for the purpose of updating that description); and
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the description of our preferred stock purchase rights contained
in our registration statement on
Form 8-A
filed August 19, 1998 (including any amendment or report
filed for the purpose of updating that description).
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In addition to the items listed above, we are also incorporating
by reference additional documents that we file with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, or the Exchange
Act, after the date of this prospectus or any accompanying
prospectus supplement through the completion of the offering. We
are not, however, incorporating by reference any documents or
portions thereof, whether specifically listed above or filed in
the future, that are not deemed filed with the SEC,
including our compensation committee report and performance
graph or any information furnished pursuant to Items 2.02
or 7.01 of
Form 8-K
or certain exhibits furnished pursuant to Item 9.01 of
Form 8-K.
As previously reported, beginning in fiscal 2007, we
consolidated our Enterprise Security, Data Protection and
Storage and Server Management segments into two segments.
Pursuant to SEC guidance, we have recast in a Current Report on
Form 8-K,
filed on December 11, 2006, Managements Discussion
and Analysis of Financial Condition and Results of
Operations and the Audited Consolidated Financial
Statements that are contained in our Annual Report on
Form 10-K
for the fiscal year ended March 31, 2006, to reflect this
change in reportable segments. The revised
Managements Discussion and Analysis of Financial
Condition and Results of Operations and Audited
Consolidated Financial Statements so contained in the Current
Report on
Form 8-K,
which is incorporated by reference in this prospectus, supersede
the corresponding sections of our Annual Report on
Form 10-K
for the fiscal year ended March 31, 2006.
You may request a copy of any documents incorporated by
reference in this prospectus and any accompanying prospectus
supplement, at no cost, by writing or telephoning us at the
following address and telephone number:
Symantec Corporation
Attn: Investor Relations
20330 Stevens Creek Boulevard
Cupertino, California 95014
(408) 517-8000
Exhibits to the filings will not be sent, however, unless those
exhibits have specifically been incorporated by reference in
this prospectus and any accompanying prospectus supplement.
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SYMANTEC
CORPORATION
Symantec is the world leader in providing a wide range of
solutions to help individuals and enterprises assure the
security, availability, and integrity of their information
technology infrastructure as well as the information itself. We
primarily operate in two growing, diversified markets within the
software sector: the secure content management market and the
storage software market. The secure content management market
includes products that protect consumers and enterprises from
threats to personal computers, computer networks, and electronic
information. The storage software market includes products that
archive, protect, and recover business-critical data. We believe
that these markets are converging as customers increasingly
require both secure content management and storage solutions in
order to safeguard their information technology infrastructure,
information and interactions.
Founded in 1982, we are incorporated in Delaware. Our principal
executive offices are located at 20330 Stevens Creek
Boulevard, Cupertino, California 95014. Our telephone number at
that location is
(408) 517-8000.
Our home page on the Internet is www.symantec.com. Other
than the information expressly set forth in this prospectus, the
information contained, or referred to, on our website is not
part of this prospectus or any accompanying prospectus
supplement.
RISK
FACTORS
Before you invest in any of our securities, in addition to the
other information, documents or reports incorporated by
reference in this prospectus and in the applicable prospectus
supplement, you should carefully consider the risk factors set
forth in the section entitled Risk Factors in any
prospectus supplement as well as in Part I,
Item 1A. Risk Factors, in our most recent annual
report on
Form 10-K,
and in Part II, Item 1A. Risk Factors, in
our most recent quarterly report on
Form 10-Q
filed subsequent to such
Form 10-K,
which are incorporated by reference into this prospectus and the
applicable prospectus supplement in their entirety, as the same
may be updated from time to time by our future filings under the
Exchange Act. Each of the risks described in these sections and
documents could materially and adversely affect our business,
financial condition, results of operations and prospects, and
could result in a loss of your investment.
USE OF
PROCEEDS
We are filing the registration statement of which this
prospectus is a part to permit the holders of our securities
described in the section entitled Selling
Securityholders of the applicable accompanying prospectus
supplement to resell such securities. We will not receive any of
the proceeds from any resales of securities from time to time by
any selling securityholder.
DIVIDEND
POLICY
Symantec has never declared or paid any cash dividends on its
capital stock. We do not anticipate paying any cash dividends on
our capital stock in the foreseeable future.
RATIO OF
EARNINGS TO FIXED CHARGES
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Six Months
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Ended
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Year Ended March 31,
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September 30,
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2002
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2003
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2004
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2005
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2006
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2006
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Ratio of earnings to fixed charges
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4.52x
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15.59x
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22.50x
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49.83x
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11.86x
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14.02x
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For these ratios, earnings is computed by adding
income before income taxes and fixed charges. Fixed charges
consist of interest expense, amortized discounts, capitalized
expenses related to indebtedness, and estimated interest
included in rental expense.
In June 2006, we raised $2.1 billion of cash proceeds by
issuing convertible notes in a private placement. Of the
$2.1 billion convertible notes, $1.1 billion pay
interest at 0.75% per annum and are due in 2011 and
$1.0 billion pay interest at 1.00% per annum and are
due in 2013. The notes are convertible into cash, and, under
certain terms and conditions, shares of our common stock, based
on a conversion rate of 52.2951 shares of common stock per
$1,000 principal amount of notes (which conversion rate is
subject to adjustment in certain circumstances).
SELLING
SECURITYHOLDERS
Selling securityholders are persons or entities that, directly
or indirectly, have acquired or will acquire from us from time
to time our common stock or preferred stock, our debt securities
or our warrants, or a combination of the foregoing, in one or
more unregistered private offerings. Such selling
securityholders are or will be parties to registration rights
agreements with us, or we otherwise have agreed or will agree to
register their securities for resale. The initial purchasers of
our securities, as well as their transferees, pledgees, donees
or successors, all of whom we refer to as selling
securityholders, may from time to time offer and sell the
securities pursuant to this prospectus or any applicable
prospectus supplement.
The selling securityholders may offer all or some portion of the
securities they hold. To the extent that any of the selling
securityholders are broker-dealers, they are deemed to be, under
interpretations of the SEC, underwriters within the
meaning of the Securities Act of 1933, as amended.
The applicable prospectus supplement will set forth the name of
each selling securityholder and the number and type of our
securities beneficially owned by such selling securityholder
that are covered by such prospectus supplement. The applicable
prospectus supplement will also disclose whether any selling
securityholder has held any position or office with, has been
employed by or otherwise has had a material relationship with us
during the three years prior to the date of the prospectus
supplement.
3
PLAN OF
DISTRIBUTION
We are registering the securities to provide the selling
securityholders with freely tradable securities, but the
registration of these securities does not necessarily mean that
any of these securities will be offered or sold by the holders.
We will not receive any proceeds from the sale of the securities
by the selling securityholders, but we have agreed, in certain
cases, to pay the following expenses of the registration of such
securities:
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all registration and filing fees;
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fees and expenses for complying with federal and state
securities laws and NASD rules and regulations, including
reasonable fees and disbursements of counsel in connection with
blue sky qualifications; and
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all fees and expenses incurred in connection with the listing,
if any, of any of the securities on any securities exchange or
exchanges.
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We have no obligation to pay any underwriting fees, discounts or
commissions attributable to the resale of the securities by the
selling securityholders. We also have no obligation to pay any
out-of-pocket
expenses of the selling securityholders, or the agents who
manage their accounts, or any transfer taxes relating to the
registration or sale of the securities contemplated hereby.
The selling securityholders may from time to time sell the
securities covered by this prospectus and any accompanying
prospectus supplement directly to purchasers. Alternatively, the
selling securityholders may from time to time offer such
securities through dealers or agents, who may receive
compensation in the form of commissions from the selling
securityholders and for the purchasers of such securities for
whom they may act as agent. The securities may be sold in one or
more transactions at fixed prices, at prevailing market prices,
at prices related to the prevailing market prices, at varying
prices determined at the time of sale, or at negotiated prices.
These sales may be effected in cross, block or other types of
transactions:
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on any national securities exchange or U.S. inter-dealer
system of a registered national securities association on which
the securities may be listed or quoted at the time of sale;
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in the
over-the-counter
market;
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in transactions otherwise than on these exchanges or systems or
in the
over-the-counter
market;
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through the writing of options, whether the options are listed
on an options exchange or otherwise;
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through the settlement of short sales; or
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through any other legally available means.
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In addition, any securities covered by this prospectus that
qualify for sale pursuant to Rule 144 or Rule 144A
promulgated under the Securities Act may be sold under
Rule 144 or Rule 144A rather than pursuant to this
prospectus.
The selling securityholders and any dealers or agents that
participate in the distribution of such securities may be deemed
to be underwriters within the meaning of the
Securities Act and any profit on the resale of the securities by
them and any commissions received by any of these dealers or
agents might be deemed to be underwriting commissions under the
Securities Act.
In connection with distribution of the securities covered by
this prospectus:
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the selling securityholders may enter into hedging transactions
with broker-dealers;
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the broker-dealers may engage in short sales of the securities
in the course of hedging the positions they assume with the
selling securityholders;
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the selling securityholders may sell the securities short and
deliver the securities to close out these short positions;
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the selling securityholders may enter into option or other
transactions with broker-dealers that involve the delivery of
the securities to the broker-dealers, who may then resell or
otherwise transfer the securities; and
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the selling securityholders may loan or pledge the securities to
a broker-dealer or other person or entity and the broker-dealer
or other person or entity may sell the securities so loaned or
upon a default may sell or otherwise transfer the pledged
securities.
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Persons participating in the distribution of the securities
offered by this prospectus may engage in transactions that
stabilize the price of the securities. The anti-manipulation
rules of Regulation M under the Exchange Act may apply to
sales of the securities in the market and to the activities of
the selling securityholders.
To the extent required, the securities to be sold, the names of
the selling securityholders, the respective purchase prices and
public offering prices, the names of any agent, dealer or
underwriter, and any applicable commissions or discounts with
respect to a particular offer will be set forth in an
accompanying prospectus supplement or, if appropriate, a
post-effective amendment to the registration statement of which
this prospectus is a part.
LEGAL
MATTERS
Unless otherwise specified in the prospectus supplement
accompanying this prospectus, in connection with particular
offerings of the securities in the future, the validity of those
securities will be passed upon for us by Fenwick & West
LLP.
4
EXPERTS
The consolidated financial statements of Symantec Corporation
and subsidiaries as of March 31, 2006 and 2005, and for
each of the years in the three-year period ended March 31,
2006, and the related financial statement schedule, appearing in
the current report on
Form 8-K
of Symantec Corporation dated December 11, 2006, and
Symantec Corporation managements assessment of the
effectiveness of internal control over financial reporting as of
March 31, 2006, appearing in the annual report on
Form 10-K
of Symantec Corporation for the fiscal year ended March 31,
2006, have been audited by KPMG LLP, independent registered
public accounting firm, as set forth in their reports thereon.
The report dated June 8, 2006, on managements
assessment of the effectiveness of internal control over
financial reporting and the effectiveness of internal control
over financial reporting as of March 31, 2006, expresses
the opinion of KPMG LLP that Symantec Corporation did not
maintain effective internal control over financial reporting as
of March 31, 2006 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
Symantec Corporation has identified a material weakness with
respect to the internal controls over financial reporting
related to accounting for income taxes.
Such consolidated financial statements, financial statement
schedule, and managements assessment are incorporated
herein by reference in reliance upon such reports given on the
authority of such firm as experts in accounting and auditing.
5
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
ITEM 14.
|
OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION
|
Set forth below are the expenses, other than underwriting
discounts and commissions, to be incurred by the Registrant in
connection with the issuance and distribution of the securities
being registered. All amounts set forth below are estimated.
|
|
|
|
|
Securities Act Registration Fee
|
|
$
|
*
|
|
Legal Fees and Expenses
|
|
$
|
40,000
|
|
Printing Expenses
|
|
$
|
10,000
|
|
Accounting Fees and Expenses
|
|
$
|
12,000
|
|
Miscellaneous
|
|
$
|
8,000
|
|
|
|
|
|
|
Total
|
|
$
|
70,000
|
|
|
|
|
* |
|
Deferred in accordance with Rules 456(b) and 457(r). |
|
|
ITEM 15.
|
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
|
Section 145 of the Delaware General Corporation Law (the
DGCL) 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 Sections 102(b)(7) and 145 of the DGCL, 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:
|
|
|
|
|
for any breach of the directors duty of loyalty to the
Registrant or its stockholders;
|
|
|
|
for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of the law;
|
|
|
|
under Section 174 of the DGCL regarding unlawful dividends
and stock purchases; and
|
|
|
|
for any transaction from which the director derived an improper
personal benefit.
|
Article 7 of the Registrants Amended and Restated
Certificate of Incorporation, as amended, limits the liability
of directors to the fullest extent permitted by
Section 102(b)(7).
As permitted by the DGCL, the Registrants Bylaws provide
that:
|
|
|
|
|
the Registrant is required to indemnify its directors and
officers to the fullest extent permitted by the DGCL, subject to
limited exceptions;
|
|
|
|
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 DGCL, subject to limited
exceptions; and
|
|
|
|
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.
The Registrant maintains directors and officers
liability insurance that includes coverage for public securities
matters, subject to the policy terms and conditions.
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:
|
|
|
|
|
Exhibit Document
|
|
Number
|
|
|
Amended and Restated Certificate
of Incorporation of Symantec Corporation
|
|
|
4.01
|
|
Certificate of Amendment of
Amended and Restated Certificate of Incorporation of Symantec
Corporation
|
|
|
4.02
|
|
Bylaws of Symantec Corporation
|
|
|
4.04
|
|
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.
II-1
INDEX
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
|
|
Incorporated by Reference
|
|
Filed
|
Number
|
|
Exhibit Description
|
|
Form
|
|
File No.
|
|
Exhibit
|
|
Filing Date
|
|
Herewith
|
|
|
1
|
.01*
|
|
Form of Underwriting Agreement
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
.01
|
|
Amended and Restated Certificate
of Incorporation of Symantec Corporation
|
|
S-8
|
|
333-119872
|
|
|
4
|
.01
|
|
10/21/04
|
|
|
|
4
|
.02
|
|
Certificate of Amendment of
Amended and Restated Certificate of Incorporation of Symantec
Corporation
|
|
S-8
|
|
333-126403
|
|
|
4
|
.03
|
|
07/06/05
|
|
|
|
4
|
.03
|
|
Certificate of Designations of
Series A Junior Participating Preferred Stock of Symantec
Corporation
|
|
8-K
|
|
000-17781
|
|
|
3
|
.01
|
|
12/21/04
|
|
|
|
4
|
.04
|
|
Bylaws of Symantec Corporation
|
|
8-K
|
|
000-17781
|
|
|
3
|
.01
|
|
01/23/06
|
|
|
|
4
|
.05*
|
|
Form of Indenture
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
.06*
|
|
Form of Indenture Security
(included in Exhibit 4.05)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
.07
|
|
Form of Common Stock Certificate
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
4
|
.08
|
|
Form of Preferred Stock Certificate
|
|
8-A
|
|
000-17781
|
|
|
4
|
.1
|
|
08/19/98
|
|
|
|
4
|
.09*
|
|
Form of Warrant Agreement and
Warrant Certificate
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
.10
|
|
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
|
|
8-A
|
|
000-17781
|
|
|
4
|
.1
|
|
08/19/98
|
|
|
|
4
|
.11
|
|
Indenture related to the
0.75% Convertible Senior Notes, due 2011, dated as of
June 16, 2006, between Symantec Corporation and
U.S. Bank National Association, as trustee (including form
of 0.75% Convertible Senior Notes due 2011)
|
|
8-K
|
|
000-17781
|
|
|
4
|
.01
|
|
06/16/06
|
|
|
|
4
|
.12
|
|
Indenture related to the
1.00% Convertible Senior Notes, due 2013, dated as of
June 16, 2006, between Symantec Corporation and
U.S. Bank National Association, as trustee (including form
of 1.00% Convertible Senior Notes due 2013)
|
|
8-K
|
|
000-17781
|
|
|
4
|
.02
|
|
06/16/06
|
|
|
|
4
|
.13
|
|
Registration Rights Agreement,
dated as of June 16, 2006, among Symantec Corporation and
Citigroup Global Markets, Inc., Morgan Stanley & Co.
Incorporated, and UBS Securities, LLC, for themselves and the
other Initial Purchasers
|
|
8-K
|
|
000-17781
|
|
|
4
|
.03
|
|
06/16/06
|
|
|
|
5
|
.01
|
|
Opinion of Fenwick & West
LLP
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
12
|
.01
|
|
Statement of Computation of Ratio
of Earnings to Fixed Charges
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
23
|
.01
|
|
Consent of KPMG LLP, Independent
Registered Public Accounting Firm
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
23
|
.02
|
|
Consent of Fenwick & West
LLP (included in Exhibit 5.01)
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
24
|
.01
|
|
Power of Attorney (incorporated by
reference to the signature page hereto)
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
25
|
.01
|
|
Statement of Eligibility and
Qualification of Trustee under the Trust Indenture Act of 1939,
as amended, on
Form T-1
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
25
|
.02
|
|
Statement of Eligibility and
Qualification of Trustee under the Trust Indenture Act of 1939,
as amended, on
Form T-1
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
* |
|
To be filed by amendment or incorporated by reference in
connection with the offering of the offered securities. |
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) 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
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 or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the
II-2
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
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) of this section do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities
of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes 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
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities 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.
II-3
(c) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with
the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
(d) 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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than for 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 such
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 such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
city of Cupertino, State of California, on the date set forth
below.
SYMANTEC CORPORATION
John W. Thompson
Chairman of the Board and
Chief Executive Officer
POWER OF
ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints John W.
Thompson, James A. Beer and Arthur F. Courville, or any of them,
his
attorney-in-fact,
each with the power of substitution and re-substitution, for him
in any and all capacities, to sign any amendments and
post-effective amendments to this registration statement, or any
registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the
Securities Act, and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that
each of said
attorneys-in-fact,
or his substitute or substitutes, may do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed below by the following
persons in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
/s/ John
W.
Thompson
John
W. Thompson
|
|
Chairman of the Board and Chief
Executive Officer
(Principal Executive Officer)
|
|
December 8, 2006
|
|
|
|
|
|
/s/ James
A.
Beer
James
A. Beer
|
|
Executive Vice President and Chief
Financial Officer
(Principal Financial Officer)
|
|
December 8, 2006
|
|
|
|
|
|
/s/ Stephen
C.
Markowski
Stephen
C. Markowski
|
|
Vice President of Finance and
Chief Accounting Officer
(Principal Accounting Officer)
|
|
December 8, 2006
|
|
|
|
|
|
/s/ Michael
Brown
Michael
Brown
|
|
Director
|
|
December 8, 2006
|
|
|
|
|
|
/s/ William
T.
Coleman III
William
T. Coleman III
|
|
Director
|
|
December 8, 2006
|
|
|
|
|
|
/s/ David
L.
Mahoney
David
L. Mahoney
|
|
Director
|
|
December 8, 2006
|
|
|
|
|
|
/s/ Robert
S.
Miller
Robert
S. Miller
|
|
Director
|
|
December 8, 2006
|
|
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
/s/ David
J.
Roux
David
J. Roux
|
|
Director
|
|
December 8, 2006
|
|
|
|
|
|
/s/ Daniel
H.
Schulman
Daniel
H. Schulman
|
|
Director
|
|
December 8, 2006
|
|
|
|
|
|
/s/ V.
Paul
Unruh
V.
Paul Unruh
|
|
Director
|
|
December 8, 2006
|
II-5
Exhibit Index
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit
|
|
|
|
Incorporated by Reference
|
|
Filed
|
Number
|
|
Exhibit Description
|
|
Form
|
|
File No.
|
|
Exhibit
|
|
Filing Date
|
|
Herewith
|
|
|
1
|
.01*
|
|
Form of Underwriting Agreement
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
.01
|
|
Amended and Restated Certificate
of Incorporation of Symantec Corporation
|
|
S-8
|
|
333-119872
|
|
|
4
|
.01
|
|
10/21/04
|
|
|
|
4
|
.02
|
|
Certificate of Amendment of
Amended and Restated Certificate of Incorporation of Symantec
Corporation
|
|
S-8
|
|
333-126403
|
|
|
4
|
.03
|
|
07/06/05
|
|
|
|
4
|
.03
|
|
Certificate of Designations of
Series A Junior Participating Preferred Stock of Symantec
Corporation
|
|
8-K
|
|
000-17781
|
|
|
3
|
.01
|
|
12/21/04
|
|
|
|
4
|
.04
|
|
Bylaws of Symantec Corporation
|
|
8-K
|
|
000-17781
|
|
|
3
|
.01
|
|
01/23/06
|
|
|
|
4
|
.05*
|
|
Form of Indenture
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
.06*
|
|
Form of Indenture Security
(included in Exhibit 4.05)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
.07
|
|
Form of Common Stock Certificate
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
4
|
.08
|
|
Form of Preferred Stock Certificate
|
|
8-A
|
|
000-17781
|
|
|
4
|
.1
|
|
08/19/98
|
|
|
|
4
|
.09*
|
|
Form of Warrant Agreement and
Warrant Certificate
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4
|
.10
|
|
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
|
|
8-A
|
|
000-17781
|
|
|
4
|
.1
|
|
08/19/98
|
|
|
|
4
|
.11
|
|
Indenture related to the
0.75% Convertible Senior Notes, due 2011, dated as of
June 16, 2006, between Symantec Corporation and
U.S. Bank National Association, as trustee (including form
of 0.75% Convertible Senior Notes due 2011)
|
|
8-K
|
|
000-17781
|
|
|
4
|
.01
|
|
06/16/06
|
|
|
|
4
|
.12
|
|
Indenture related to the
1.00% Convertible Senior Notes, due 2013, dated as of
June 16, 2006, between Symantec Corporation and
U.S. Bank National Association, as trustee (including form
of 1.00% Convertible Senior Notes due 2013)
|
|
8-K
|
|
000-17781
|
|
|
4
|
.02
|
|
06/16/06
|
|
|
|
4
|
.13
|
|
Registration Rights Agreement,
dated as of June 16, 2006, among Symantec Corporation and
Citigroup Global Markets, Inc., Morgan Stanley & Co.
Incorporated, and UBS Securities, LLC, for themselves and the
other Initial Purchasers
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8-K
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000-17781
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4
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.03
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06/16/06
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5
|
.01
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|
Opinion of Fenwick & West
LLP
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|
|
|
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|
|
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X
|
|
12
|
.01
|
|
Statement of Computation of Ratio
of Earnings to Fixed Charges
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|
|
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|
|
|
|
|
|
X
|
|
23
|
.01
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|
Consent of KPMG LLP, Independent
Registered Public Accounting Firm
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|
|
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|
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|
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X
|
|
23
|
.02
|
|
Consent of Fenwick & West
LLP (included in Exhibit 5.01)
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|
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|
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X
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24
|
.01
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Power of Attorney (incorporated by
reference to the signature page hereto)
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|
|
|
|
|
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X
|
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25
|
.01
|
|
Statement of Eligibility and
Qualification of Trustee under the Trust Indenture Act of 1939,
as amended, on
Form T-1
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
25
|
.02
|
|
Statement of Eligibility and
Qualification of Trustee under the Trust Indenture Act of 1939,
as amended, on
Form T-1
|
|
|
|
|
|
|
|
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X
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* |
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To be filed by amendment or incorporated by reference in
connection with the offering of the offered securities. |