Exhibit 3.01
BYLAWS OF
SYMANTEC CORPORATION
(A DELAWARE CORPORATION)
ARTICLE I
STOCKHOLDERS
Section 1.1. Annual Meetings.
An annual meeting of stockholders shall be held for the election
of directors at such date, time and place, either within or without the State of Delaware, as the
Board of Directors shall each year fix. Any other proper business may be transacted at the annual
meeting.
Section 1.2. Special Meetings.
Special meetings of stockholders for any purpose or purposes
may be called at any time by the Chairman of the Board, the President or the Board of Directors.
Special meetings may not be called by any other person or persons.
Section 1.3. Notice of Meetings.
Written notice of all meetings of stockholders shall be given
stating the place, date and time of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called. Unless otherwise required by applicable law or the
Certificate of Incorporation of the Corporation, such notice shall be given not less than ten nor
more than sixty days before the date of the meeting to each stockholder entitled to vote at such
meeting.
Section 1.4. Adjournments.
Any meeting of stockholders may adjourn from time to time to
reconvene at the same or another place, and notice need not be given of any such adjourned meeting
if the time, date and place thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting. At the adjourned
meeting the Corporation may transact any business that might have been transacted at the original
meeting.
Section 1.5. Quorum.
At each meeting of stockholders, the holders of a majority of the shares
of stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum
for the transaction of business, except if otherwise required by law. If a quorum shall fail to
attend any meeting, the chairman of the meeting or the holders of a majority of the shares entitled
to vote who are present, in person or by proxy, at the meeting may adjourn the meeting. Shares of
the Corporation’s stock belonging to the Corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other corporation are held,
directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for
quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation
or any other corporation to vote any of the Corporation’s stock held by it in a fiduciary capacity.
Section 1.6. Organization.
Meetings of stockholders shall be presided over by such person as
the Board of Directors may designate, or, in the absence of such a person, the
Chairman of the Board, or, in the absence of such person, the President of the Corporation,
or, in the absence of such person, such person as may be chosen by the holders of a majority of the
shares entitled to vote who are present, in person or by proxy, at the meeting. Such person shall
be chairman of the meeting and shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of discussion as seems
to him or her to be in order. The Secretary of the Corporation shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any person to act as
secretary of the meeting.
Section 1.7. Voting; Proxies.
Unless otherwise provided by law or the Certificate of
Incorporation, and subject to the provisions of Section 1.8 of these Bylaws, each stockholder shall
be entitled to one vote for each share of stock held by such stockholder. Each stockholder entitled
to vote at a meeting of stockholders, or to express consent or dissent to corporate action in
writing without a meeting, may authorize another person or persons to act for such stockholder by
proxy. If a vote is to be taken by written ballot, each such ballot shall state the name of the
stockholder or proxy voting and such other information as the chairman of the meeting deems
appropriate. At all meetings of stockholders for the election of directors, a plurality of the
votes cast shall be sufficient to elect. All other elections or questions, unless otherwise
provided by applicable law, the Certificate of Incorporation or these Bylaws, shall be decided by
the affirmative vote of the holders of a majority of the shares of stock entitled to vote thereon
that are present in person or represented by proxy at the meeting.
Section 1.8. Fixing Date for Determination of Stockholders of Record.
In order that the
Corporation may determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action. If no record date is fixed by
the Board of Directors, then the record date shall be as provided by law. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 1.9. List of Stockholders Entitled to Vote.
A complete list of stockholders entitled
to vote at any meeting of stockholders, arranged in alphabetical order and showing the address of
each stockholder and the number of shares registered in the name of each stockholder, shall be open
to the examination of any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held. The list also be
produced and kept at the time and place of the meeting during the whole time thereof and may be
inspected by and stockholder who is present.
Section 1.10. Action by Consent of Stockholders.
Unless otherwise provided in the Certificate
of Incorporation, any action required to be taken at any annual or special meeting of stockholders
of the Corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior notice and without
a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders
of outstanding stock having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not consented in
writing.
In order that the corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorize or take corporate action by written consent shall, by
written notice to the Secretary, request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within 10 days after the date on which such a request
is received, adopt a resolution fixing the record date. If no record date has been fixed by the
Board of Directors within 10 days of the date on which such a request is received, the record date
for determining stockholders entitled to consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is required by applicable law, shall be the first
date on which a signed written consent setting forth the action taken or proposed to be taken is
delivered to the corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or any officer or agent of the corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation’s
registered office shall be by hand or by certified or registered mail, return receipt requested. If
no record date has been fixed by the Board of Directors and prior action by the Board of Directors
is required by applicable law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business on the date on
which the Board of Directors adopts the resolution taking such prior action.
Section 1.11. Inspectors of Elections.
(a) Applicability.
Unless otherwise provided in the Corporation’s Certificate of Incorporation
or required by the Delaware General Corporation Law, the following provisions of this Section 1.11
shall apply only if and when the Corporation has a class of voting stock that is: (i) listed on a
national securities exchange; (ii) authorized for quotation on an interdealer quotation system of a
registered national securities association; or (iii) held of record by more than 2,000
stockholders; in all other cases, observance of the provisions of this Section 1.11 shall be
optional and at the discretion of the Corporation.
(b) Appointment.
The Corporation shall, in advance of any meeting of stockholders, appoint one
or more inspectors of election to act at the meeting and make a written report thereof. The
Corporation may designate one or more persons as alternate inspectors to replace any inspector who
fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the meeting.
(c) Inspector’s Oath.
Each inspector of election, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability.
(d) Duties of Inspectors.
At a meeting of stockholders, the inspectors of election shall (i)
ascertain the number of shares outstanding and the voting power of each share, (ii) determine the
shares represented at a meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period of time a record of the disposition of
any challenges made to any determination by the inspectors and (v) certify their determination of
the number of shares represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the inspectors in the
performance of the duties of the inspectors.
(e) Opening and Closing of Polls.
The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall be announced by the
inspectors at the meeting. No ballot, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of
Chancery upon application by a stockholder shall determine otherwise.
(f) Determinations.
In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes submitted with those
proxies, any information provided in connection with proxies in accordance with Section 212(c)(2)
of the Delaware General Corporation Law, the ballots and the regular books and records of the
Corporation, except that the inspectors may consider other reliable information for the limited
purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their
nominees or similar persons that represent more votes than the holder of a proxy is authorized by
the record owner to cast or more votes than the stockholder holds of record. If the inspectors
consider other reliable information for the limited purpose permitted herein, the inspectors at the
time they make their certification of their determinations pursuant to this Section 1.11 shall
specify the precise information considered by them, including the person or persons from whom they
obtained the information, when the information was obtained, the means by which the information was
obtained and the basis for the inspectors’ belief that such information is accurate and reliable.
Section 1.12. Notice of Stockholder Business; Nominations.
(a) Annual Meeting of Stockholders.
(i) Nominations of persons for election to the Board of Directors and the proposal of business
to be considered by the stockholders shall be made at an annual meeting of stockholders (A)
pursuant to the Corporation’s notice of such meeting, (B) by or at the direction of the Board of
Directors or (C) by any stockholder of the Corporation who was a stockholder of record at the time
of giving of the notice provided for in this Section 1.12, who is entitled to vote at such meeting
and who complies with the notice procedures set forth in this Section 1.12.
(ii) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (C) of subparagraph (a)(i) of this Section 1.12, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation and such other business must otherwise be a proper matter for stockholder action.
To be timely, a stockholder’s notice must be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the sixtieth (60th) day nor
earlier than the close of business on the ninetieth (90th) day prior to the first anniversary of
the preceding year’s annual meeting; provided, however, that in the event that the date of the
annual meeting is more than thirty (30) days before or more than sixty (60) days after such
anniversary date, notice by the stockholder, to be timely, must be so delivered not earlier than
the close of business on the ninetieth (90th) day prior to such annual meeting and not later than
the close of business on the later of the sixtieth (60th) day prior to such annual meeting or the
close of business on the tenth (10th) day following the day on which public announcement of the
date of such meeting is first made by the Corporation. Such stockholder’s notice shall set forth:
(a) as to each person whom the stockholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be disclosed in solicitations
of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including such
person’s written consent to being named in the proxy statement as a nominee and to serving as a
director if elected; (b) as to any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before the meeting, the reasons
for conducting such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination
or proposal is made, (1) the name and address of such stockholder, as they appear on the
Corporation’s books, and of such beneficial owner and (2) the class and number of shares of the
Corporation that are owned beneficially and held of record by such stockholder and such beneficial
owner.
(iii) Notwithstanding anything in the second sentence of subparagraph (a)(ii) of this Section
1.12 to the contrary, in the event that the number of directors to be elected to the Board of
Directors of the Corporation is increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of the increased board of directors
at least seventy (70) days prior to the first anniversary of the preceding year’s annual meeting
(or, if the annual meeting is held more than thirty (30) days before or sixty (60) days after such
anniversary date, at least seventy (70) days prior to such annual meeting), a stockholder’s notice
required by this Section 1.12 shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to the Secretary of the
Corporation at the principal executive office of the Corporation not later than the close of
business on the tenth (10th) day following the day on which such public announcement is first made
by the Corporation.
(b) Special Meetings of Stockholders.
Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s
notice of such meeting. Nominations of persons for election to the Board of Directors may be made
at a special meeting of stockholders at which directors are to be elected pursuant to the
Corporation’s notice of such meeting (i) by or at the direction of the Board of Directors or (ii)
provided that the Board of Directors has determined that directors shall be elected at such
meeting, by any stockholder of the Corporation who is a stockholder of record at the time of giving
of notice of the special meeting, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this Section 1.12. In the event the
Corporation calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder may nominate a person or persons (as the
case may be), for election to such position(s) as specified in the Corporation’s notice of meeting,
if the stockholder’s notice required by subparagraph (a)(ii) of this Section 1.12 shall be
delivered to the Secretary of the Corporation at the principal executive offices of the Corporation
not earlier than the ninetieth (90th) day prior to such special meeting and not later than the
close of business on the later of the sixtieth (60th) day prior to such special meeting or the
tenth (10th) day following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be elected at such
meeting.
(c) General.
(i) Only such persons who are nominated in accordance with the procedures set forth in this
Section 1.12 shall be eligible to serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in accordance with the
procedures set forth in this Section 1.12. Except as otherwise provided by law or these Bylaws, the
chairman of the meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Section 1.12 and, if any proposed nomination or
business is not in compliance herewith, to declare that such defective proposal or nomination shall
be disregarded.
(ii) For purposes of this Section 1.12, the term “public announcement” shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to sections 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 1.12, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth herein. Nothing in this Section 1.12 shall be
deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. Number; Qualifications.
The Board of Directors shall consist of one or more
members. The initial number of directors shall be one, and thereafter shall be fixed from time to
time by resolution of the Board of Directors. Directors need not be stockholders.
Section 2.2. Election; Resignation; Removal; Vacancies.
The Board of Directors shall initially
consist of the person or persons elected by the incorporator. Each director shall hold office until
the next annual meeting of stockholders and until his or her successor is elected and qualified, or
until his or her earlier resignation or removal. Any director may resign at any time upon written
notice to the Corporation. Subject to the rights of any holders of Preferred Stock then
outstanding, (i) any director or the entire Board of Directors may be removed, with or
without cause, by the holders or a majority of the shares then entitled to vote at an election
of directors, and (ii) any vacancy occurring in the Board of Directors for any cause, and any newly
created directorship resulting from any increase in the authorized number of directors to be
elected by all stockholders having the right to vote as a single class, may be filled by the
stockholders, by a majority of the directors then in office, although less than a quorum, or by a
sole remaining director. No decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
Section 2.3. Regular Meetings.
Regular meetings of the Board of Directors may be held at such
places, within or without the State of Delaware, and at such times as the Board of Directors may
from time to time determine. Notice of regular meetings need not be given if the date, times and
places thereof are fixed by resolution of the Board of Directors.
Section 2.4. Special Meetings.
Special meetings of the Board of Directors may be called by the
Chairman of the Board, the President or a majority of the members of the Board of Directors then in
office and may be held at any time, date or place, within or without the State of Delaware, as the
person or persons calling the meeting shall fix. Notice of the time, date and place of such meeting
shall be given, orally or in writing, by the person or persons calling the meeting to all directors
at least four days before the meeting if the notice is mailed, or at least twenty-four hours before
the meeting if such notice is given by telephone, hand delivery, telegram, telex, mailgram,
facsimile or similar communication method. Unless otherwise indicated in the notice, any and all
business may be transacted at a special meeting.
Section 2.5. Telephonic Meetings Permitted.
Members of the Board of Directors, or any
committee of the Board, may participate in a meeting of the Board or such committee by means of
conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to
conference telephone or similar communications equipment shall constitute presence in person at
such meeting.
Section 2.6. Quorum; Vote Required for Action.
At all meetings of the Board of Directors a
majority of the total number of authorized directors shall constitute a quorum for the transaction
of business. Except as otherwise provided herein or in the Certificate of Incorporation, or
required by law, the vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 2.7. Organization.
Meetings of the Board of Directors shall be presided over by the
Chairman of the Board, or in his or her absence by the President, or in his or her absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or
her absence the chairman of the meeting may appoint any person to act as secretary of the meeting.
Section 2.8. Written Action by Directors.
Any action required or permitted to be taken at any
meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if
all members of the Board or such committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or committee.
Section 2.9. Powers.
The Board of Directors may, except as otherwise required by law or the
Certificate of Incorporation, exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation.
Section 2.10. Compensation of Directors.
Directors, as such, may receive, pursuant to a
resolution of the Board of Directors, fees and other compensation for their services as directors,
including, without limitation, their services as members of committees of the Board of Directors.
ARTICLE III
COMMITTEES
Section 3.1. Committees.
The Board of Directors may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of one or more of the
directors of the Corporation. The Board may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any Meeting of the committee.
In the absence or disqualification of a member of the committee, the member or members thereof
present at any meetings and not disqualified from voting, whether or not he, she or they constitute
a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
place of any such absent or disqualified member. Any such committee, to the extent provided in a
resolution of the Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the Corporation and may
authorize the seal of the Corporation to be affixed to all papers that may require it; but no such
committee shall have the power or authority in reference to amending the Certificate of
Incorporation (except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the Board of Directors as
provided in subsection (a) of Section 151 of the Delaware General Corporation Law, fix the
designations and any of the preferences or rights of such shares relating to dividends, redemption,
dissolution and distribution of assets of the Corporation, or the conversion into, or the exchange
of such shares for, shares of any other class classes or any other series of the same or any other
class or classes of stock of the Corporation, or fix the number of shares of any series of stock or
authorize the increase or decrease of the shares of any series), adopting an agreement of merger or
consolidation under Sections 251 or 252 of the Delaware General Corporation Law, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s
property and assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the Bylaws of the Corporation; and unless the resolution
of the Board of Directors expressly so provides, no such committee shall have the power or
authority to declare a dividend, authorize the issuance of stock or adopt a certificate of
ownership and merger pursuant to section 253 of the Delaware General Corporation Law.
Section 3.2. Committee Rules.
Unless the Board of Directors otherwise provides, each committee
designated by the Board may make, alter and repeal rules for the conduct of its business. In the
absence of such rules each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these Bylaws.
ARTICLE IV
OFFICERS
Section 4.1 Generally.
The officers of the Corporation shall consist of a President, one or
more Vice Presidents, a Secretary, a Treasurer and such other officers, including a Chairman of the
Board of Directors and/or Chief Financial Officer, as may from time to time be appointed by the
Board of Directors. Officers shall be elected by the Board of Directors. Each officer shall hold
office until his or her successor is elected and qualified or until his or her earlier resignation
or removal. Any number of offices may be held by the same person. Any officer may resign at any
time upon written notice to the Corporation. Any vacancy occurring in any office of the Corporation
by death, resignation, removal or otherwise may be filled by the Board of Directors.
Section 4.2. Chairman of the Board.
The Chairman of the Board shall have the power to preside
at all meetings of the Board of Directors and shall have such other powers and duties as the Board
of Directors may from time to time prescribe.
Section 4.3. President.
Unless otherwise designated by the Board of Directors, the President
shall be the chief executive officer of the Corporation. Subject to the provisions of these Bylaws
and to the direction of the Board of Directors, he or she shall have the responsibility for the
general management and control of the business and affairs of the Corporation and shall perform all
duties and have all powers that are commonly incident to the office of chief executive or that are
delegated to him or her by the Board of Directors. He or she shall have general supervision and
direction of all of the officers, employees and agents of the Corporation.
Section 4.4. Vice President.
Each Vice President shall have all such powers and duties as are
commonly incident to the office of Vice President, or that are delegated to him or her by the Board
of Directors or the President. A Vice President may be designated by the Board to perform the
duties and exercise the powers of the President in the event of the President’s absence or
disability.
Section 4.5. Chief Financial Officer.
Subject to the direction of the Board of Directors and
the President, the Chief Financial Officer shall perform all duties and have all powers that are
commonly incident to the office of chief financial officer.
Section 4.6. Treasurer.
The Treasurer shall have custody of all monies and securities of the
Corporation. He or she shall make such disbursements of the funds of the Corporation as are
authorized and shall render from time to time an account of all such transactions. The Treasurer
shall also perform such other duties and have such other powers as are commonly incident to the
office of Treasurer, or as the Board of Directors or the President may from time to time prescribe.
Section 4.7. Secretary.
The Secretary shall issue or cause to be issued all authorized notices
for, and shall keep, or cause to be kept, minutes of all meetings of the stockholders and the Board
of Directors. He or she shall have charge of the corporate books and records and shall perform such
other duties and have such other powers as are commonly incident to the office of Secretary, or as
the Board of Directors or the President may from time to time prescribe.
Section 4.8. Delegation of Authority.
The Board of Directors may from time to time delegate
the powers or duties of any officer to any other officers or agents, notwithstanding any provision
hereof.
Section 4.9. Removal.
Any officer of the Corporation may be removed at any time, with or
without cause, by the Board of Directors. Such removal shall be without prejudice to the
contractual rights of such officer, if any, with the Corporation.
ARTICLE V
STOCK
Section 5.1. Certificates.
Every holder of stock shall be entitled to have a certificate
signed by or in the name of the Corporation by the Chairman of the Board of Directors, or the
President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the Corporation, certifying the number of shares owned by such
stockholder in the Corporation. Any or all of the signatures on the certificate may be a facsimile.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates.
The
Corporation may issue a new certificate of stock in the place of any certificate previously issued
by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of
the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the issuance of such
new certificate.
Section 5.3. Other Regulations.
The issue, transfer, conversion and registration of stock
certificates shall be governed by such other regulations as the Board of Directors may establish.
ARTICLE VI
INDEMNIFICATION
Section 6.1. Indemnification of Officers and Directors.
Each person who was or is made a party
to, or is threatened to be made a party to, or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact
that he or she or a person of whom he or she is the legal representative, is or was a director or
officer of the Corporation (including any constituent corporation absorbed in a merger) or is or
was serving at the request of the Corporation (including any such constituent corporation) as a
director or officer of another corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, shall be indemnified and held
harmless by the Corporation to the fullest extent permitted by the Delaware General Corporation
Law, against all expenses, liability and loss (including attorneys’ fees, judgments, fines, ERISA
excise taxes and penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith, and such indemnification shall continue as to a
person who has ceased to be a director or officer and shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that the Corporation shall indemnify any
such person seeking indemnity in connection with a proceeding (or part thereof) initiated by such
person only if such proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation.
Section 6.2. Advance of Expenses.
The Corporation shall pay all expenses incurred by such a
director or officer in defending any such proceeding as they are incurred in advance of its final
disposition; provided, however, that if the Delaware General Corporation Law then so
requires, the payment of such expenses incurred by a director or officer in advance of the
final disposition of such proceeding shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer to repay all amounts so advanced if it
should be determined ultimately that such director or officer is not entitled to be indemnified
under this Article VI or otherwise; and provided further that the Corporation shall not be required
to advance any expenses to a person against whom the Corporation brings a claim, in a proceeding,
alleging that such person has breached his or her duty of loyalty to the Corporation, committed an
act or omission not in good faith or that involves intentional misconduct or a knowing violation of
law, or derived an improper personal benefit from a transaction; and provided further that the
Corporation shall not be obligated to advance expenses incurred by a director or officer in defending
any proceeding if: (i) members of the Board of Directors consisting of those who are not parties
to the proceeding for which indemnification is sought, even though less than a quorum, or (ii)
independent legal counsel, selected by the indemnified director or officer and approved by the
Board of Directors, which approval may not be unreasonably withheld, or (iii) a panel of
arbitrators (one of whom is selected by the Corporation, another of whom is selected by the
indemnified director or officer and the last of whom is selected by the first two arbitrators so
selected), determines in good faith, that the facts known to them at the time such determination is
made demonstrate clearly and convincingly that such director or officer acted in bad faith.
Section 6.3. Non-Exclusivity of Rights.
The rights conferred on any person in this Article VI
shall not be exclusive of any other right that such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, Bylaw, agreement, vote or consent of
stockholders or disinterested directors or otherwise.
Section 6.4. Indemnification Contracts.
The Board of Directors is authorized to cause the
Corporation to enter into a contract with any director, officer or employee of the Corporation, or
any person serving at the request of the Corporation as a director, officer or employee of another
corporation, partnership, joint venture, trust or other enterprise, including employee benefit
plans, providing for indemnification rights equivalent to or, if the Board of Directors so
determines, greater than, those provided for in this Article VI.
Section 6.5. Insurance.
The Corporation shall maintain insurance, at its expense, to the
extent it determines such to be reasonably available, to protect itself, its directors and
officers, and any other persons the Board of Directors may select, against any such expense,
liability or loss, whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation Law.
Section 6.6. Effect of Amendment.
Any amendment, repeal or modification of any provision of
this Article VI shall be prospective only, and shall not adversely affect any right or protection
conferred on a person pursuant to this Article VI and existing at the time of such amendment,
repeal or modification.
ARTICLE VII
NOTICES
Section 7.1. Notice.
Except as otherwise specifically provided herein or required by law, all
notices required to be given pursuant to these Bylaws shall be in writing and may in every
instance be effectively given by hand delivery (including use of a delivery service), by
depositing such notice in the mail, postage prepaid, or by sending such notice by prepaid telegram,
telex, mailgram or facsimile. Any such notice shall be addressed to the person to whom notice is to
be given at such person’s address as it appears on the records of the Corporation. The notice shall
be deemed given (i) in the case of hand delivery, when received by the person to whom notice is to
be given or by any person accepting such notice on behalf of such person, (ii) in the case of
delivery by mail, when deposited in the mail, and (iii) in the case of delivery via telegram,
mailgram, telex, or facsimile, when dispatched.
Section 7.2. Waiver of Notice.
Any written waiver of notice, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors or members of a committee of directors need be specified in any written
waiver of notice.
ARTICLE VIII
INTERESTED DIRECTORS
Section 8.1. Interested Directors; Quorum.
No contract or transaction between the Corporation
and one or more of its directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the Board or committee thereof that authorizes the contract or transaction, or solely because his,
her or their votes are counted for such purpose if: (i) the material facts as to his, her or their
relationship or interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; (ii) the material facts as to his, her or
their relationship or interest and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is specifically approved
in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a
committee thereof, or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Fiscal Year.
The fiscal year of the Corporation shall be determined by resolution
of the Board of Directors.
Section 9.2. Seal.
The Board of Directors may provide for a corporate seal, which shall have
the name of the Corporation inscribed thereon and shall otherwise be in such form as may be
approved from time to time by the Board of Directors.
Section 9.3. Form of Records.
Any records maintained by the Corporation in the regular course
of its business, including its stock ledger, books of account and minute books, may be kept on, or
be in the form of, punch cards, magnetic tape, photographs, microphotographs or any other
information storage device, provided that the records so kept can be converted into clearly legible
form within a reasonable time. The Corporation shall so convert any records so kept upon the
request of any person entitled to inspect the same.
Section 9.4. Reliance Upon Books and Records.
A member the Board of Directors, shall, in the
performance of his or her duties, be fully protected in relying in good faith upon the books of
account or reports made to the Corporation by any of its officers, or by an independent certified
public accountant, or by an appraiser selected with reasonable care by the Board of Directors or by
any such committee, or in relying in good faith upon other records of the Corporation.
Section 9.5. Certificate of Incorporation Governs.
In the event of any conflict between the
provisions of the Corporation’s Certificate of Incorporation and Bylaws, the provisions of the
Certificate of Incorporation shall govern.
Section 9.6. Severability.
If any provision of these Bylaws shall be held to be invalid,
illegal, unenforceable or in conflict with the provisions of the Corporation’s Certificate of
Incorporation, then such provision shall nonetheless be enforced to the maximum extent possible
consistent with such holding and the remaining provisions of these Bylaws (including without
limitation, all portions of any section of these Bylaws containing any such provision held to be
invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation, that are not
themselves invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation)
shall remain in full force and effect.
ARTICLE X
AMENDMENT
Section 10.1. Amendments.
Shareholders of the Corporation holding a majority of the
Corporation’s outstanding voting stock shall have the power to adopt, amend or repeal Bylaws. The
Board of Directors of the Corporation shall also have the power to adopt, amend or repeal Bylaws of
the Corporation, except as such power may be expressly limited by Bylaws adopted by the
shareholders.
Exhibit 10.01
Form of
INDEMNIFICATION AGREEMENT
This Indemnification Agreement, dated as of
, 200___, is made by and between
SYMANTEC CORPORATION, a Delaware corporation (the “
Company
”), and
, a
director, officer or key employee of the Company or one of the Company’s Subsidiaries (the
“
Indemnitee
”).
RECITALS
A. The Company is aware that competent and experienced persons are increasingly reluctant
to serve as representatives of corporations unless they are protected by comprehensive liability
insurance and/or indemnification, due to increased exposure to litigation costs and risks
resulting from their service to such corporations, and due to the fact that the exposure
frequently bears no reasonable relationship to the compensation of such representatives;
B. The statutes and judicial decisions regarding the duties of directors and officers are
often difficult to apply, ambiguous, or conflicting, and therefore fail to provide such
directors and officers with adequate, reliable knowledge of legal risks to which they are
exposed or information regarding the proper course of action to take;
C. Plaintiffs often seek damages in such large amounts and the costs of litigation may be
so substantial (whether or not the case is meritorious), that the defense and/or settlement of
such litigation is often beyond the personal resources of representatives;
D. The Company believes that it is unfair for its representatives and the representatives
of its Subsidiaries (as defined below) to assume the risk of large judgments and Expenses (as
defined below) that may be incurred in cases in which the representative received no personal
profit and in cases where the director or officer was not culpable;
E. The Company recognizes that the issues in controversy in litigation against a
representative of a corporation such as the Company or a Subsidiary of the Company are often
related to the knowledge, motives and intent of such representatives, that he or she is usually
the only witness with knowledge of the essential facts and exculpating circumstances regarding
such matters and that the long period of time which usually elapses before the trial or other
disposition of such litigation often extends beyond the time that the representative can
reasonably recall such matters; and may extend beyond the normal time for retirement for such
director or officer with the result that he or she, after retirement or in the event of his or
her death, his or her spouse, heirs, executors or administrators, may be faced with limited
ability and undue hardship in maintaining an adequate defense, which may discourage such a
representatives from serving in that position;
F. Based upon their experience as business managers, the Board of Directors of the Company
(the “
Board
”) has concluded that, to retain and attract talented and experienced
individuals to serve as representatives of the Company and its Subsidiaries and to encourage
such individuals to take the business risks necessary for the success of the
Company and its
Subsidiaries, it is necessary for the Company to contractually indemnify its representatives and
the representatives of its Subsidiaries, and to assume for itself maximum liability for Expenses
and damages in connection with claims against such representatives in connection with their
service to the Company and its Subsidiaries, and has further concluded that the failure to
provide such contractual indemnification could result in great harm to the Company and its
Subsidiaries and the Company’s stockholders;
G. Section 145 of the General Corporation Law of Delaware, under which the Company is
organized (“
Section 145
”), empowers the Company to indemnify by agreement its officers,
directors, employees and agents, and persons who serve, at the request of the Company, as
directors, officers, employees or agents of other corporations or enterprises, and expressly
provides that the indemnification provided by Section 145 is not exclusive;
H. The Company desires and has requested the Indemnitee to serve or continue to serve as a
representatives of the Company and/or the Subsidiaries of the Company free from undue concern
for claims for damages arising out of or related to such services to the Company and/or the
Subsidiaries of the Company; and
I. The Indemnitee is willing to serve, or to continue to serve, the Company and/or the
Subsidiaries of the Company, provided that he or she is furnished the indemnity provided for
herein.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions.
(a)
Affiliate
. For purposes of this Agreement, “Affiliate” of the Company means any
corporation, partnership, joint venture, trust or other enterprise in respect of which the
Indemnitee is or was or will be serving as a director, officer, advisory director, trustee,
manager, member, partner, employee, agent, attorney, consultant, member of the entity’s governing
body (whether constituted as a board of directors, board of managers, general partner or
otherwise), fiduciary, or in any other similar capacity at the direct or indirect request of the
Company, and including, but not limited to, any employee benefit plan of the Company or a
Subsidiary or Affiliate of the Company.
(b)
Agent
. For the purposes of this Agreement, “Agent” of the Company means any
person who is or was a director, officer, employee, attorney or other agent of the Company or a
Subsidiary of the Company; or is or was serving at the request of, for the convenience of, or to
represent the interest of the Company or a Subsidiary of the Company as a director, officer,
employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise; or was a director, officer, employee or agent of a foreign or domestic
corporation which was a predecessor corporation of the Company or a Subsidiary of the Company, or
was a director, officer, employee or agent of another enterprise at the request of, for the
convenience of, or to represent the interests of such predecessor corporation.
2
(c)
Expenses
. For purposes of this Agreement, “Expenses” means all direct and
indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees
and related disbursements, and other out-of-pocket costs) actually and reasonably incurred by the
Indemnitee in connection with either the investigation, defense or appeal of, or being a witness
in, a Proceeding (as defined below) or establishing or enforcing a right to indemnification under
this Agreement, Section 145 or otherwise; provided, however, that Expenses shall not include any
judgments, fines, ERISA excise taxes or penalties or amounts paid in settlement of a Proceeding.
(d)
Other Liabilities
. For purposes of this Agreement, “Other Liabilities” means any
and all liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA
(or other benefit plan related) excise taxes or penalties, and amounts paid in settlement and all
interest, taxes, assessments and other charges paid or payable in connection
with or in respect of any Expenses or any such judgments, fines, ERISA (or other benefit plan
related) excise taxes or penalties, or amounts paid in settlement).
(e)
Proceeding
. For the purposes of this Agreement, “Proceeding” means any
threatened, pending, or completed action, suit or other proceeding, whether civil, criminal,
administrative, investigative or any other type whatsoever, including any arbitration or other
alternative dispute resolution and including any appeal of any of the foregoing.
(f)
Subsidiary
. For purposes of this Agreement, “Subsidiary” means any corporation of
which more than 50% of the outstanding voting securities is owned directly or indirectly by the
Company, by the Company and one or more other subsidiaries, or by one or more other subsidiaries.
2.
Agreement to Serve
. The Indemnitee agrees to serve and/or continue to serve as an
Agent of the Company, at the will of the Company (or under separate agreement, if such agreement
exists), in the capacity the Indemnitee currently serves as an Agent of the Company, so long as he
or she is duly appointed or elected, and is and remains qualified to serve in such capacity, in
accordance with the applicable provisions of the Bylaws of the Company or any Subsidiary of the
Company and until the resignation, removal, termination, permanent disability or death of the
Indemnitee; provided, however, that nothing contained in this Agreement is intended to create any
right to continued employment or other form of service by the Indemnitee.
3.
Mandatory Indemnification
. The Company shall indemnify the Indemnitee to the
fullest extent not prohibited by the provisions of the Company’s Bylaws and the Delaware General
Corporation Law (“GCL”), as the same may be amended from time to time (but only to the extent that
such amendment permits the Company to provide broader indemnification rights than the Bylaws or the
GCL permitted prior to the adoption of such amendment) as follows, subject to the limitations set
forth in Section 10 below:
(a)
Third Party Actions
. If the Indemnitee is a person who was or is a party to, or
witness in, or is threatened to be made a party to, or witness in, any Proceeding (other than an
action by or in the right of the Company, which actions are addressed in Section 3(b) below) by
reason of the fact that he or she is or was an Agent of the Company, or by reason of anything done
or not done by the Indemnitee in any such capacity, against any and all Expenses and Other
Liabilities actually and reasonably incurred by the Indemnitee in connection with the
3
investigation, defense, settlement or appeal of such Proceeding if he or she acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or Proceeding, had no reasonable cause to believe
his or her conduct was unlawful; and
(b)
Derivative Actions
. If the Indemnitee is a person who was or is a party or is
threatened to be made a party to any Proceeding by or in the right of the Company to procure a
judgment in its favor by reason of the fact that he or she is or was an Agent of the Company, or by
reason of anything done or not done by the Indemnitee in any such capacity, against any amounts
paid in settlement of any such Proceeding, to the maximum extent permitted by law, and all Expenses
actually and reasonably incurred by the Indemnitee in connection with the investigation, defense,
settlement, or appeal of such Proceeding if the Indemnitee acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the Company; except
that no indemnification under this subsection shall be made in respect of any claim, issue or
matter as to which such person shall have been finally adjudged to be liable to the Company, unless
and only to the extent that the Court of Chancery of the State of Delaware (“Court of Chancery”) or
the court in which such Proceeding was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such amounts which the
Court of Chancery or such other court shall deem proper.
4.
Determination of “Good Faith”
. For purposes of any determination of “good faith”
hereunder, the Indemnitee shall be deemed to have acted in good faith if in taking such action the
Indemnitee relied on the records or books of account of the Company or a Subsidiary or Affiliate of
the Company, including financial statements, or on information, opinions, reports or statements
provided to the Indemnitee by the officers or other employees of the Company or a Subsidiary or
Affiliate of the Company in the course of their duties, or on the advice of legal counsel for the
Company or a Subsidiary or Affiliate of the Company, or on information or records given or reports
made to the Company or a Subsidiary or Affiliate of the Company by an independent certified public
accountant or by an appraiser or other expert selected by the Company or a Subsidiary or Affiliate
of the Company, or by any other person (including legal counsel, accountants and financial
advisors) as to matters the Indemnitee reasonably believes are within such other person’s
professional or expert competence and who has been selected with reasonable care by or on behalf of
the Company. In connection with any determination as to whether the Indemnitee is entitled to be
indemnified hereunder, the Reviewing Party (as defined below) or court shall presume that the
Indemnitee has satisfied the applicable standard of conduct and shall be entitled to
indemnification, and the burden of proof shall be on the Company to establish that the Indemnitee
is not so entitled. The provisions of this Section 4 shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement. In addition, the knowledge and/or
actions, or failures to act, of any other person serving the Company or a Subsidiary or Affiliate
of the Company as an indemnifiable person shall not be imputed to the Indemnitee for purposes of
determining the right to indemnification hereunder.
5.
Exception for Amounts Covered by Insurance and Other Sources
. Notwithstanding the
foregoing, the Company shall not be obligated to indemnify the Indemnitee for Expenses or Other
Liabilities of any type whatsoever (including, but not limited to judgments,
4
fines, ERISA excise
taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to
the Indemnitee by any directors and officers insurance (“
D&O Insurance
”) maintained by the
Company or other indemnity arrangements with third parties.
6.
Partial Indemnification and Contribution
.
(a)
Partial Indemnification
. If the Indemnitee is entitled under any provision of
this Agreement to indemnification by the Company for some or a portion of any Expenses or Other
Liabilities, but not entitled, however, to indemnification for all of the total amount thereof, the
Company shall nevertheless indemnify the Indemnitee for such total amount except as to the portion
thereof to which the Indemnitee is not entitled.
(b)
Contribution
. If the Indemnitee is not entitled to the indemnification provided
in Section 3 above for any reason other than the statutory limitations set forth in the GCL, then
in respect of any threatened, pending or completed Proceeding in which the Company is jointly
liable with the Indemnitee (or would be if joined in such Proceeding), the Company shall contribute
to the amount of Expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred and paid or payable by the Indemnitee in such
proportion as is appropriate to reflect (i) the relative benefits received by the Company on the
one hand and the Indemnitee on the other hand from the transaction from which such Proceeding arose
and (ii) the relative fault of the Company on the one hand and of the Indemnitee on the other hand
in connection with the events which resulted in such Expenses, judgments, fines or settlement
amounts, as well as any other relevant equitable considerations. The relative fault on the Company
on the one hand and of the Indemnitee on the other hand shall be determined by reference to, among
other things, the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent the circumstances resulting in such
Expenses, judgments, fines or settlement amounts. The Company agrees that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or any
other method of allocation which does not take into account the foregoing equitable considerations.
7.
Mandatory Advancement of Expenses
.
(a)
Advancement
. Subject to Section 10 below, the Company shall advance prior to the
final disposition of the Proceeding, all Expenses incurred by the Indemnitee in connection with the
investigation, defense, settlement or appeal of any Proceeding to which the Indemnitee is a party
or is threatened to be made a party by reason of the fact that the Indemnitee is or was an Agent of
the Company or by reason of anything done or not done by him or her in any such capacity. The
Indemnitee hereby undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Company
under the provisions of this Agreement, the Company’s Bylaws or the GCL. The advances to be made
hereunder shall be paid by the Company to the Indemnitee or directly to a third party designated in
writing by the Indemnitee within twenty (20) days following delivery of a written request therefor
by the Indemnitee to the Company.
(b)
Exception
. Notwithstanding the foregoing provisions of this Section 7, the
Company shall not be obligated to advance any Expenses to the Indemnitee if: (i) those members of
the Board consisting of directors who were not parties to the Proceeding for which a claim is
5
made under this Agreement, even though less than a quorum or (ii) independent legal counsel, selected by
the Indemnitee, and approved by the Board, which approval may not be unreasonably withheld, by
written legal opinion, or (iii) a panel of arbitrators (one of whom is selected by the Company,
another of whom is selected by the Indemnitee and the last of whom is selected by the first two
arbitrators so selected), determines in good faith, within thirty (30) days of the Indemnitee’s
request to be advanced Expenses, that the facts known to them at the time such determination is
made demonstrate clearly and convincingly that the Indemnitee acted in bad faith. If such a
determination is made, the Indemnitee may have such decision reviewed in the manner set forth in
Section 9(d) hereof, with all references therein to “indemnification” being deemed to refer to
“advancement of Expenses,” and the burden of proof shall be on the Company to demonstrate clearly
and convincingly that, based on the facts known at the time, the Indemnitee acted in bad faith.
8.
Notice and Other Indemnification Procedures
.
(a)
Notification
. Promptly after receipt by the Indemnitee of notice of the
commencement of or the threat of commencement of any Proceeding, the Indemnitee shall, if the
Indemnitee believes that indemnification with respect thereto may be sought from the Company under
this Agreement, notify the Company of the commencement or threat of commencement thereof. The
failure to promptly notify the Company of the commencement of, or the threat of commencement of,
any Proceeding, or the Indemnitee’s request for indemnification will not relieve the Company from
any obligation that it may have to the Indemnitee hereunder, except to the extent that the Company
is materially prejudiced in its defense of such Proceeding as a result of such failure.
(b)
Insurance and Other Matters
. If, at the time of the receipt of a notice of the
commencement of a Proceeding pursuant to Section 8(a) above, the Company has D&O Insurance in
effect, the Company shall give prompt notice of the commencement of such Proceeding to the issuers
in accordance with the procedures set forth in the respective policies. The Company shall
thereafter take all reasonable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such Proceeding in accordance with the terms of such D&O
Insurance policies.
(c)
Assumption of Defense
. In the event the Company shall be obligated to advance the
Expenses for any Proceeding against the Indemnitee, the Company, if deemed appropriate by the
Company, shall be entitled to assume the defense of such Proceeding as provided herein. Following
delivery of written notice to the Indemnitee of the Company’s election to assume the defense of
such Proceeding, the approval by the Indemnitee (which approval shall not be unreasonably withheld)
of counsel designated by the Company and the retention of such counsel by the Company, the Company
will not be liable to the Indemnitee under this Agreement for any fees and expenses of counsel
subsequently incurred by the Indemnitee with respect to the same Proceeding. If (A) the employment
of counsel by the Indemnitee has been previously authorized by the Company, (B) the Indemnitee
shall have notified the Board in writing that the Indemnitee has reasonably concluded that there
may be a conflict of interest between the Company and the Indemnitee in the conduct of any such
defense, or (C) the Company fails to employ counsel to assume the defense of such Proceeding, the
fees and expenses of the Indemnitee’s counsel shall be subject to indemnification and/or
advancement
6
pursuant to the terms of this Agreement. Nothing herein shall prevent the Indemnitee
from employing counsel for any such Proceeding at the Indemnitee’s expense.
9.
Determination of Right to Indemnification
.
(a)
Success on the Merits
. To the extent the Indemnitee has been successful on the
merits or otherwise in defense of any Proceeding referred to in Section 3(a) or 3(b) of this
Agreement or in the defense of any claim, issue or matter described therein, the Company shall
indemnify the Indemnitee against Expenses actually and reasonably incurred by him or her in
connection therewith.
(b)
Right to Indemnification in Other Situations
. In the event that Section 9(a) is
inapplicable, the Company shall also indemnify the Indemnitee if he or she has not failed to meet
the applicable standard of conduct for indemnification.
(c)
Forum
. The Indemnitee shall be entitled to select the forum in which
determination of whether or not the Indemnitee has met the applicable standard of conduct will be
made from among the following, except that the Indemnitee can select the forum consisting of the
stockholders of the Company only with the approval of the Company:
(1) Those members of the Board consisting of directors who are not parties to the Proceeding
for which indemnification is being sought, even though less than a quorum;
(2) The stockholders of the Company;
(3) Independent legal counsel selected by the Indemnitee, and approved by the Board, which
approval may not be unreasonably withheld, which counsel shall make such determination in a written
opinion; or
(4) A panel of three arbitrators, one of whom is selected by the Company, another of whom is
selected by the Indemnitee and the last of whom is selected by the first two arbitrators so
selected.
The selected forum shall be referred to herein as the “
Reviewing Party
”.
As soon as practicable, and in no event later than 30 days after written notice of the Indemnitee’s
choice of forum pursuant to Section 9(c) above, the Company and the Indemnitee shall each submit to
the Reviewing Party such information as they believe is appropriate for the Reviewing Party to
consider.
(d)
Delaware Court of Chancery
. Notwithstanding a final determination by any
Reviewing Party that the Indemnitee is not entitled to indemnification with respect to a specific
Proceeding, the Indemnitee shall have the right to apply to the Court of Chancery of Delaware, the
court in which that Proceeding is or was pending or any other court of competent jurisdiction, for
the purpose of enforcing the Indemnitee’s right to indemnification pursuant to this Agreement.
7
(e)
Expenses
. Notwithstanding any other provision of this Agreement to the contrary,
the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in
connection with any hearing or Proceeding under this Section 9 involving the Indemnitee and against
all Expenses incurred by the Indemnitee in connection with any other Proceeding between the Company
and the Indemnitee involving the interpretation or enforcement of the rights of the Indemnitee
under this Agreement unless a court of competent jurisdiction finds that each of the material
claims and/or defenses of the Indemnitee in any such Proceeding was frivolous or not made in good
faith.
10.
Exceptions
. Any other provision herein to the contrary notwithstanding, the
Company shall not be obligated pursuant to the terms of this Agreement under the following
circumstances:
(a)
Claims Initiated by Indemnitee
. To indemnify or advance Expenses to the
Indemnitee with respect to Proceedings or claims initiated or brought voluntarily by the Indemnitee
and not by way of defense, except with respect to (1) Proceedings brought to establish or enforce a
right to indemnification under this Agreement, any other statute or law, as permitted under Section
145, or otherwise, and (2) Proceedings brought to discharge the Indemnitee’s fiduciary
responsibilities, whether under ERISA or otherwise, but such indemnification or advancement of
Expenses may be provided by the Company in specific cases if the Board finds it to be appropriate;
or
(b)
Unauthorized Settlements
. To indemnify the Indemnitee under this Agreement for
any amounts paid in settlement of a Proceeding unless the Company consents to such settlement,
which consent shall not be unreasonably withheld or delayed; or
(c)
Undeserved Personal Advantage
. To indemnify the Indemnitee under this Agreement
for Other Liabilities from a Proceeding in which a court enters a judgment concluding that the
Indemnitee gained in fact a material personal profit or advantage to which the Indemnitee is not
entitled; or
(d)
Advance Expenses
. To advance Expenses to the Indemnitee under this Agreement for
any Expenses incurred by the Indemnitee with respect to any Proceeding brought by the Company
against the Indemnitee for breach of the duty of loyalty, an act or omission not in good faith or
that involves intentional misconduct or knowing violation of law, or a transaction from which the
Indemnitee gained an improper personal benefit.
(e)
16(b) Actions
. To indemnify the Indemnitee on account of any suit in which
judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of
the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal,
state or local statutory law; or
(f)
Unlawful Indemnification
. To indemnify the Indemnitee for Other Liabilities if a
final decision by a court having jurisdiction in the matter shall determine that such
indemnification is prohibited by law. Both the Company and the Indemnitee acknowledge that in
certain instances, federal law or applicable public policy may prohibit the Company from
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indemnifying under this Agreement or otherwise a person serving the Company or a Subsidiary or
Affiliate of the Company as an Agent.
11.
Non-exclusivity
. The provisions for indemnification and advancement of Expenses
set forth in this Agreement shall not be deemed exclusive of any other rights which the Indemnitee
may have under any provision of law, the Company’s Certificate of Incorporation or Bylaws, the vote
of the Company’s stockholders or disinterested directors, other agreements, or otherwise, both as
to acts or omissions in his or her official capacity and to acts or omissions in another capacity
while occupying his or her position as an Agent of the Company, and the Indemnitee’s rights
hereunder shall continue after the Indemnitee has ceased acting as an Agent of the Company and
shall inure to the benefit of the heirs, executors and administrators of the Indemnitee. If the
Company and the Indemnitee have previously entered into an Indemnity Agreement providing for
indemnification of the Indemnitee by the Company, the parties’ entry into this Indemnification
Agreement shall be deemed to amend and restate such Indemnity Agreement to read in its entirety as,
and to be superseded by, this Indemnification Agreement.
12.
Interpretation of Agreement
. It is understood that the parties hereto intend this
Agreement to be interpreted and enforced so as to provide indemnification and advancement of
Expenses to the Indemnitee to the fullest extent now or hereafter permitted by law, except as
expressly prohibited herein.
13.
Severability
. If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever, (i) the validity, legality and
enforceability of the remaining provisions of the Agreement (including, without limitation, all
portions of any paragraphs of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in
any way be affected or impaired thereby, and (ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, all portions of any paragraphs of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable and to give effect to Section 12 above.
14.
Modification and Waiver
. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar) and except as expressly provided herein, no such waiver
shall constitute a continuing waiver.
15.
Successors and Assigns
. The terms of this Agreement shall bind, and shall inure
to the benefit of, the successors and assigns of the parties hereto.
16.
Notice
. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and receipt
is provided by the party to whom such communication is delivered or (ii) if mailed by certified or
registered mail with postage prepaid, return receipt requested, on the signing by the recipient of
an acknowledgment of receipt form accompanying deliver through the U.S. mail, (iii) personal
service by a process server, or (iv) delivery to the recipient’s address by overnight delivery
(e.g. FedEx, UPS or DHL) or other commercial delivery service. Addresses for notice to either
party
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are as shown on the signature page of this Agreement, or as subsequently modified by written
notice complying with the provisions of this Section 16. Delivery of communications to the Company
with respect to this Agreement shall be sent to the attention of the Company’s General Counsel.
17.
No Presumptions
. For purposes of this Agreement, the termination of any
Proceeding, by judgment, order, settlement (whether with or without court approval) or conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption
that the Indemnitee did not meet any particular standard of conduct or have any particular belief
or that a court has determined that indemnification is not permitted by applicable law or
otherwise. In addition, neither the failure of the Company or a Reviewing Party to have made a
determination as to whether the Indemnitee has met any particular standard of conduct or had any
particular belief, nor an actual determination by the Company or a Reviewing Party that the
Indemnitee has not met such standard of conduct or did not have such belief, prior to the
commencement of Proceedings by the Indemnitee to secure a judicial determination by exercising the
Indemnitee’s rights under Section 7 or 9(d) of this Agreement that the Indemnitee should be
indemnified under applicable law shall be a defense to the Indemnitee’s claim or create a
presumption that the Indemnitee has failed to meet any particular standard of conduct or did not
have any particular belief or is not entitled to indemnification under applicable law or otherwise.
18.
Survival of Rights
. The rights conferred on the Indemnitee by this Agreement
shall continue after the Indemnitee has ceased to serve the Company or a Subsidiary or Affiliate of
the Company as an Indemnifiable Person and shall inure to the benefit of the Indemnitee’s heirs,
executors and administrators.
19.
Subrogation
. In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who
shall execute all documents required and shall do all acts that may be necessary to secure such
rights and to enable the Company effectively to bring suit to enforce such rights.
20.
Specific Performance
. The parties recognize that if any provision of this
Agreement is violated by the Company, the Indemnitee may be without an adequate remedy at law.
Accordingly, in the event of any such violation, the Indemnitee shall be entitled, if the
Indemnitee so elects, to institute Proceedings, either in law or at equity, to obtain damages, to
enforce specific performance, to enjoin such violation, or to obtain any relief or any combination
of the foregoing as the Indemnitee may elect to pursue.
21.
Counterparts
. This Agreement may be executed in counterparts, each of which shall
for all purposes be deemed to be an original but all of which together shall constitute one and the
same agreement. Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
22.
Headings
. The headings of the sections and paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this Agreement or to
affect the construction of interpretation thereof.
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23.
Governing Law
. This Agreement shall be governed exclusively by and construed
according to the laws of the State of Delaware, as applied to contracts between Delaware residents
entered into and to be performed entirely with Delaware.
24.
Consent to Jurisdiction
. The Company and the Indemnitee each hereby irrevocably
consent to the jurisdiction of the courts of the State of Delaware for all purposes in connection
with any action or Proceeding which arises out of or relates to this Agreement.
The parties hereto have entered into this Indemnification Agreement effective as of the date
first above written.
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SYMANTEC CORPORATION
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Address:
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20330 Stevens Creek Blvd.
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Cupertino, California 95014
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By
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Its
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INDEMNITEE:
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Address:
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