exv10w05



 





Exhibit 10.05




SYMANTEC EXECUTIVE RETENTION PLAN



This Executive Retention Plan (the “Plan”) applies to two groups of beneficiaries: (i) the Chief
Executive Officer (“CEO”), President, and other executive officers of Symantec Corporation (the
“Company”) who are designated as Section 16(b) officers or are otherwise designated as “Group 1”
beneficiaries by the Company’s Compensation Committee; and (ii) any other employees who are
designated as “Group 2” beneficiaries by the Company’s Compensation Committee, based on
recommendations made by the CEO (the Group 1 and Group 2 beneficiaries are collectively defined as
the “Designated Beneficiaries”).




1. Acceleration of Equity Compensation Awards.



If the employment of a Group 1 beneficiary is terminated other than for Cause, or if the Group 1
beneficiary resigns following a Constructive Termination, in either case within 12 months after a
Change in Control, all Equity Compensation Awards granted by the Company to such Group 1
beneficiary shall become fully vested and, if applicable, exercisable. Acceleration of vesting will
not occur if there is no Change in Control within 12 months prior to such termination or
Constructive Termination.



If the employment of a Group 2 beneficiary is terminated other than for Cause within 12 months
after a Change in Control, all Equity Compensation Awards granted by the Company to such Group 2
beneficiary shall become fully vested and, if applicable, exercisable. Acceleration of vesting will
not occur if there is no Change in Control within 12 months prior to such termination.




2. Definitions.



Unless defined elsewhere herein, for purposes of the Plan, the following shall have the meaning as
set forth below:



“Cause” means (i) gross negligence or willful misconduct in the performance of duties to the
Company (other than as a result of a disability) that has resulted or is likely to result in
substantial and material damage to the Company, after a demand for substantial performance is
delivered by the Company which specifically identifies the manner in which it believes the
Designated Beneficiary has not substantially performed his/her duties and provides the Designated
Beneficiary with a reasonable opportunity to cure any alleged gross negligence or willful
misconduct; (ii) commission of any act of fraud with respect to the Company or its affiliates; or
(iii) conviction of a felony or a crime involving moral turpitude causing material harm to the
business and affairs of the Company. No act or failure to act by the Designated Beneficiary shall
be considered “willful” if done or omitted by the Designated Beneficiary in good faith with
reasonable belief that such action or omission was in the best interest of the Company.



“Change in Control” means (i) any person or entity becoming the beneficial owner, directly or
indirectly, of securities of the Company representing forty (40%) percent of the total voting power
of all its then outstanding voting securities, (ii) a merger or consolidation of the Company in
which its voting securities immediately prior to the merger or consolidation do not represent, or
are not converted into securities that represent, a majority of the voting power of all voting
securities of the surviving entity immediately after the merger or consolidation, (iii) a sale of
substantially all of the assets of the Company or a liquidation or dissolution of the Company, or
(iv) individuals who, as of the date of adoption of this Plan, constitute the Board of Directors (the “Incumbent Board”) cease
for any reason to constitute at least a majority of such Board; provided that any individual who
becomes a director of the Company subsequent to the date of adoption of this Plan, whose election,


 









 






or nomination for election by the Company stockholders, was approved by the vote of at least a
majority of the directors then in office shall be deemed a member of the Incumbent Board.



“Constructive Termination” means the occurrence of any of the following conditions without a Group
1 beneficiary’s written consent, which condition remains in effect for ten (10) days after written
notice to the Company from such Group 1 beneficiary of such condition:



(a) a decrease in the Group 1 beneficiary’s base salary or target bonus, or a substantial reduction
of other compensation and benefits, from that in effect immediately prior to the Change in Control;



(b) the relocation of a Group 1 beneficiary’s work place for the Company to a location more than 25
miles from the location of such Group 1 beneficiary’s work place prior to the Change in Control;



(c) the assignment of responsibilities and duties that are not the Substantive Functional
Equivalent of the position which the Group 1 beneficiary occupied immediately preceding the Change
in Control; or



(d) any material breach by the Company of the terms of this Plan which is not cured within 10
days of written notice.



“Equity Compensation Award” shall mean any award of stock options, restricted stock, restricted
stock units, stock appreciation rights or such other equity compensation award held by a Designated
Beneficiary granted under an equity compensation plan of the Company, including, without
limitation, the Company’s 1996 Equity Incentive Plan, its 2004 Equity Incentive Plan and any equity
compensation award assumed by the Company in prior acquisitions.



“Substantive Functional Equivalent” means an employment position occupied by a Group 1 beneficiary
after the Change in Control that:



(a) is in a substantive area of competence (such as, accounting; engineering management; executive
management; finance; human resources; marketing, sales and service; operations and manufacturing;
etc.) that is consistent with such Group 1 beneficiary’s experience;



(b) requires a Group 1 beneficiary to serve in a role and perform duties that are functionally
equivalent to those performed by the Group 1 beneficiary prior to the Change in Control,



(c) does not otherwise constitute a material, adverse change in the Group 1 beneficiary’s
responsibilities or duties, as measured against the Group 1 beneficiary’s responsibilities or
duties prior to the Change in Control, in each case, causing it to be of materially lesser rank or
responsibility.



Notwithstanding the foregoing, any change in role, responsibilities or duties that is solely
attributable to the change in the Company’s status from that of an independent company to that of a
subsidiary of the newly controlling entity shall not constitute a change in role, responsibilities
or duties for purposes of claims (b) or (c) above.




3. Adjustment of Excess Parachute Payments to a Designated Beneficiary.



If (1) benefits that accrue to a Designated Beneficiary under this Plan are characterized as excess
parachute payments pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the
“Code”), and (2) the Designated Beneficiary thereby would be subject to any United States federal
excise tax due to that characterization, then (3) the Designated Beneficiary may elect, in the


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Designated Beneficiary’s sole discretion, to reduce the benefits that accrue under this Agreement
or to have any portion of an applicable Equity Compensation Award not vest in order to avoid any
“excess parachute payment” under Section 28OG(b)(1) of the Code.




4. No Employment Agreement.



This Plan does not obligate the Company to continue to employ a Designated Beneficiary for any
specific period of time, or in any specific role or geographic location. Subject to the terms of
any applicable written employment agreement between Company and a Designated Beneficiary, the
Company may assign a Designated Beneficiary to other duties, and either the Company or Designated
Beneficiary may terminate Designated Beneficiary’s employment at any time for any reason.




5. Release of Claims.



The Company may condition the benefits described provided under this Plan upon the delivery by the
Designated Beneficiary of a signed release of claims in a form reasonably satisfactory to the
Company.




6. Deductions and Withholding.



The Company may withhold or require payment of all federal, state, and/or local taxes which the
Company determines are required to be withheld in accordance with applicable statutes and/or
regulations from time to time in effect.




7. Governing Law.



This Plan shall be subject to, and governed by, the laws of the State of California applicable to
agreements made and to be performed entirely therein.




8. Amendment or Termination.



This Plan may be amended or terminated by the Board of Directors prior to a Change in Control.
Notwithstanding the foregoing, no amendment or termination of this Plan shall reduce any Designated
Beneficiary’s rights or benefits that have accrued and become payable under this Plan before such
amendment or termination.





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