EXECUTIVE EMPLOYMENT
AGREEMENT
THIS EXECUTIVE
EMPLOYMENT AGREEMENT (this “Agreement”), dated as of
September 23, 2009, (the “Effective Date”) is made
and entered by and between Symantec Corporation, a Delaware
corporation (the “Company”), and Enrique T. Salem (the
“Executive”).
WHEREAS, the
Executive is currently employed as the Company’s President
and Chief Executive Officer and has made and is expected to
continue to make major contributions to the short- and long-term
profitability, growth and financial strength of the
Company;
WHEREAS, the
Company has determined that appropriate arrangements should be
taken to encourage the continued attention and dedication of the
Executive to his assigned duties without distraction;
and
WHEREAS, in
consideration of the Executive’s employment with the Company,
the Company desires to provide the Executive with certain
compensation and benefits as set forth in this Agreement in order
to ameliorate the financial and career impact on the Executive in
the event the Executive’s employment with the Company is
terminated for a reason related to, or unrelated to, a Change in
Control (as defined below) of the Company.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements hereinafter set forth and intending to be legally bound
hereby, the Company and the Executive agree as follows:
1.
Certain Defined Terms . In addition to terms defined
elsewhere herein, the following terms have the following meanings
when used in this Agreement with initial capital
letters:
(a)
“Annual Base Salary” means the Executive’s annual
base salary rate, exclusive of bonuses, commissions and other
incentive pay, as in effect immediately preceding Executive’s
Termination Date.
(b)
“Board” means the Board of Directors of the
Company.
(i)
an intentional tort (excluding any tort relating to a motor
vehicle) which causes loss, damage or injury to the property or
reputation of the Company or its subsidiaries;
(ii)
any crime or act of fraud or dishonesty against the Company or its
subsidiaries;
(iii)
the commission of a felony;
(iv)
habitual neglect of duties which is not cured within ten
(10) days after notice thereof by the Board to the
Executive;
(v)
the disregard of written policies of the Company or its
subsidiaries which causes loss, damage or injury to the property or
reputation of the Company or its subsidiaries which is not cured
within ten (10) days after notice thereof by the Board to the
Executive; or
(vi)
any material breach of the Executive’s ongoing obligation not
to disclose confidential information, and not to assign
intellectual property developed during employment.
(d)
“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 the signing of this Agreement,
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 the signing of
this Agreement, 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.
(e)
“COBRA” means the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended.
(f)
“Disability” means the ( i) the Executive has
been incapacitated by bodily injury, illness or disease so as to be
prevented thereby from engaging in the performance of the
Executive’s duties; (ii) such total incapacity shall
have continued for a period of six (6) consecutive months; and
(iii) such incapacity will, in the opinion of a qualified
physician, be permanent and continuous during the remainder of the
Executive’s life.
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(g)
“Good Reason Termination” means:
(i)
a material diminution in the Executive’s base compensation
below the amount as of the date of this Agreement or as increased
during the course of his employment with the Company, excluding any
reduction generally applicable to all senior executives provided,
however, that such exclusion shall not apply if the material
diminution in the Executive’s base compensation occurs within
(A) 60 days prior to the consummation of a Change in
Control where such Change in Control was under consideration at the
time of Executive’s Termination Date or (B) twelve
(12) months after the date upon which such a Change in Control
occurs;
(ii)
a material diminution in the Executive’s authority, duties or
responsibilities;
(iii)
a requirement that that the Executive report to a corporate officer
or employee of the Company instead of reporting directly to the
Board;
(iv)
a material diminution in the budget over which the Executive
retains authority;
(v)
a material change in the geographic location at which the Executive
must perform services; or
(vi)
any action or inaction that constitutes a material breach by the
Company of the agreement under which the Executive performs
services;
provided, however,
that for the Executive to be able to terminate his employment with
the Company on account of Good Reason he must provide notice of the
occurrence of the event constituting Good Reason and his desire to
terminate his employment with the Company on account of such within
ninety (90) days following the initial existence of the
condition constituting Good Reason, and the Company must have a
period of thirty (30) days following receipt of such notice to
cure the condition. If the Company does not cure the event
constituting Good Reason within such thirty (30) day period,
the Executive’s Termination Date shall be the day immediately
following the end of such thirty (30) day period, unless the
Company provides for an earlier Termination Date.
(h)
“Termination Date” means the last day of
Executive’s employment with the Company.
(i)
“Termination of Employment” means the termination of
Executive’s active employment relationship with the
Company.
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2.
Termination Unrelated to a Change in Control .
(a)
Involuntary Termination Unrelated to a Change in Control .
In the event of: (i) an involuntary termination of
Executive’s employment by the Company for any reason other
than Cause, death or Disability, or (ii) Executive’s
resignation for Good Reason, and if Section 3 does not apply,
Executive shall be entitled to the benefits provided in subsection
(b) of this Section 2.
(b)
Compensation Upon Termination Unrelated to a Change in
Control . Subject to the provisions of Section 5 hereof,
in the event a termination described in subsection (a) of this
Section 2 occurs, the Company shall provide Executive with the
following, provided that Executive executes and does not revoke the
Release (as defined in Section 5):
(i)
3.375 times Annual Base Salary paid in a single lump sum cash
payment on the sixtieth (60th) day following Executive’s
Termination Date.
(ii)
For a period of up to twelve (12) months following
Executive’s Termination Date, Executive and where applicable,
Executive’s spouse and eligible dependents, will continue to
be eligible to receive medical coverage under the Company’s
medical plans in accordance with the terms of the applicable plan
documents; provided, that in order to receive such continued
coverage at such rates, Executive will be required to pay the
applicable premiums to the plan provider, and the Company will
reimburse the Executive, within 60 days following the date
such monthly premium payment is due, an amount equal to the monthly
COBRA premium payment, less applicable tax withholdings.
Notwithstanding the foregoing, if Executive obtains full-time
employment during this twelve (12) month period, Executive
must notify the Company and no further reimbursements will be paid
by the Company to the Executive pursuant to this subsection. In
addition, if Executive does not pay the applicable monthly COBRA
premium for a particular month at any time during the twelve(12)
month period, no further reimbursements will be paid by the Company
to the Executive pursuant to this subsection.
(iii)
With respect to any outstanding Company stock options held by the
Executive as of his Termination Date that are not vested and
exercisable as of such date, the Company shall accelerate that
portion of the Executive’s stock options, if any, which would
have vested and become exercisable within the one year period after
the Executive’s Termination Date, such options (as well as
any outstanding stock options that previously became vested and
exercisable) to remain exercisable, notwithstanding anything in any
other agreement governing such options, until the earlier of
(A) a period of one year after the Executive’s
Termination Date, or (B) the original term of the option.
Except as provided in this Section 2(b)(iii) and in
Section 3(b)(iii) below, any portion of Executive’s
outstanding stock options that are not vested and exercisable as of
Executive’s Termination Date shall terminate.
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(iv)
With respect to any restricted stock units representing shares of
Company common stock (“Restricted Stock Units”) held by
the Executive that are unvested at the time of his Termination
Date, the number of unvested Restricted Stock Units that would have
vested within the one year period after the Executive’s
Termination Date shall vest. Except as provided in this
Section 2(b)(iv) and in Section 3(b)(iv) below, any
Restricted Stock Units that are not vested as of Executive’s
Termination Date shall terminate.
(v)
Executive shall receive any amounts earned, accrued or owing but
not yet paid to Executive as of his Termination Date, payable in a
lump sum, and any benefits accrued or earned in accordance with the
terms of any applicable benefit plans and programs of the
Company.
3.
Termination Related to a Change in Control .
(a)
Involuntary Termination Relating to a Change in Control . In
the event Executive’s employment is terminated on account of
(i) an involuntary termination by the Company for any reason
other than Cause, death or Disability, or (ii) the Executive
voluntarily terminates employment with the Company on account of a
resignation for Good Reason, in either case that occurs (x) at
the same time as, or within the twelve (12) month period
following, the consummation of a Change in Control or
(y) within the sixty (60) day period prior to the date of
a Change in Control where the Change in Control was under
consideration at the time of Executive’s Termination Date,
then Executive shall be entitled to the benefits provided in
subsection (b) of this Section 3.
(b)
Compensation Upon Involuntary Termination Relating to a Change
in Control . Subject to the provisions of Section 5
hereof, in the event a termination described in subsection
(a) of this Section 3 occurs, the Company shall provide
that the following be paid to the Executive after his Termination
Date, provided that Executive executes and does not revoke the
Release:
(i)
4.5 times Annual Base Salary paid in a single lump sum cash payment
on the sixtieth (60th) day following Executive’s Termination
Date. Notwithstanding the foregoing, to the extent Executive is
entitled to receive the severance benefit payable pursuant to
Section 2(b)(i) as a result of a qualifying termination prior
to a Change in Control and then becomes entitled to receive the
severance benefit payable pursuant to this Section 3 as a
result of the Change in Control that was considered at the time of
Executive’s Termination Date becoming consummated within
sixty (60) days following Executive’s Termination Date,
Executive shall not receive the severance benefit payable pursuant
to Section 2(b)(i) of this Agreement, but instead shall
receive the severance benefit payable pursuant to this
Section 3(b)(i) on the sixtieth (60th) day following
Executive’s Termination Date.
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(ii)
For a period of up to twelve (12) months following
Executive’s Termination Date, Executive and where applicable,
Executive’s spouse and eligible dependents, will continue to
be eligible to receive medical coverage under the Company’s
medical plans in accordance with the terms of the applicable plan
documents; provided, that in order to receive such continued
coverage at such rates, Executive will be required to pay the
applicable premiums to the plan provider, and the Company will
reimburse the Executive, within sixty (60) days following the
date such monthly premium payment is due, an amount equal to the
monthly COBRA premium payment, less applicable tax withholdings.
Notwithstanding the foregoing, if Executive obtains full-time
employment during this twelve (12) month period, Executive
must notify the Company and no further reimbursements will be paid
by the Company to the Executive pursuant to this subsection. In
addition, if Executive does not pay the applicable monthly COBRA
premium for a particular month at any time during the twelve(12)
month period, no further reimbursements will be paid by the Company
to the Executive pursuant to this subsection. Notwithstanding the
foregoing, to the extent Executive is entitled to receive the
severance benefit provided pursuant to Section 2(b)(ii) of the
Agreement as a result of a qualifying termination prior to a Change
in Control, if Executive becomes entitled to receive the severance
benefits payable pursuant to this Section 3 as a result of the
Change in Control that was considered at the time of
Executive’s Termination Date becoming consummated within
sixty (60) days following Executive’s Termination Date,
Executive shall be entitled to receive the severance benefit
provided pursuant to this clause (ii) and not the benefit
provided pursuant to Section 2(b)(ii).
(iii)
With respect to any outstanding Company stock options held by the
Executive as of his Termination Date, the Company shall fully
accelerate the vesting and exercisability of such stock options, so
that all such stock options shall be fully vested and exercisable
as of Executive’s Termination Date, such options (as well as
any outstanding stock options that previously became vested and
exercisable) to remain exercisable, notwithstanding anything in any
other agreement governing such options, until the earlier of
(A) a period of one year after the Executive’s
Termination Date, or (B) the original term of the option.
Notwithstanding the foregoing, to the extent Executive is entitled
to receive the vesting and exercisability acceleration provided
pursuant to Section 2(b)(iii) of the Agreement as a result of
a qualifying termination prior to a Change in Control, if Executive
becomes entitled to receive the severance benefits payable pursuant
to this Section 3 as a result of the Change in Control that
was considered at the time of Executive’s Termination Date
becoming consummated within sixty (60) days following
Executive’s Termination Date, any outstanding stock options
that did not become vested and exercisable pursuant to Section
2(b)(iii) shall become vested and exercisable as of the date of the
Change in Control; provided, however, if a Change in Control does
not occur within sixty (60) days following Executive’s
Termination Date, any stock options held by Executive that are not
vested and exercisable shall terminate as of the sixtieth (60th)
day following Executive’s Termination Date or the end of the
term, if earlier.
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(iv)
With respect to any Restricted Stock Units held by the Executive
that are unvested at the time of his Termination Date, all such
unvested Restricted Stock Units shall vest . Notwithstanding the
foregoing, to the extent Executive is entitled to receive the
vesting acceleration provided pursuant to Section 2(b)(iv) of
the Agreement as a result of a qualifying termination prior to a
Change in Control, if Executive becomes entitled to receive the
severance benefits payable pursuant to this Section 3 as a
result of the Change in Control that was considered at the time of
Executive’s Termination Date becoming consummated within
sixty (60) days following Executive’s Termination Date,
any outstanding Restricted Stock Units that did not become vested
pursuant to Section 2(b)(iv) shall become vested as of the
date of the Change in Control; provided, however, if a Change in
Control does not occur within sixty (60) days following
Executive’s Termination Date, any Restricted Stock Units held
by Executive that are not vested shall terminate as of the sixtieth
(60th) day following Executive’s Termination Date.
(v)
Executive shall receive any amounts earned, accrued or owing but
not yet paid to Executive as of his Termination Date, payable in a
lump sum, and any benefits accrued or earned in accordance with the
terms of any applicable benefit plans and programs of the
Company.
(c)
Consequence of a Change in Control . Notwithstanding the
terms of the Symantec 2004 Executive Incentive Plan (the
“2004 Plan”), if, as of the date of a Change in
Control, Executive holds stock options issued under the 2004 Plan
that are not vested and exercisable, such stock options shall
become fully vested and exercisable as of the date of the Change in
Control if the acquirer does not agree to assume or substitute for
equivalent stock options such outstanding stock options.
4.
Termination of Employment on Account of Disability, Death, Cause
or Voluntarily Without Good Reason .
(a)
Termination on Account of Disability . Notwithstanding
anything in this Agreement to the contrary, if Executive’s
employment terminates on account of Disability, Executive shall be
entitled to receive disability benefits under any disability
program maintained by the Company that covers Executive, and
Executive shall not be considered to have terminated employment
under this Agreement and shall not receive benefits pursuant to
Sections 2 and 3 hereof except for the following:
(i)
For a period of up to twelve (12) months following
Executive’s Termination Date, Executive and where applicable,
Executive’s spouse and eligible dependents, will continue to
be eligible to receive medical coverage under the Company’s
medical plans in accordance with the terms of the applicable plan
documents; provided, that in order to receive such continued
coverage at such rates, Executive will be required to pay the
applicable
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premiums to the
plan provider, and the Company will reimburse the Executive, within
60 days following the date such monthly premium payment is
due, an amount equal to the monthly COBRA premium payment, less
applicable tax withholdings. Notwithstanding the foregoing, if
Executive obtains full-time employment during this twelve
(12) month period, Executive must notify the Company and no
further reimbursements will be paid by the Company to the Executive
pursuant to this subsection. In addition, if Executive does not pay
the applicable monthly COBRA premium for a particular month at any
time during the twelve (12) month period, no further
reimbursements will be paid by the Company to the Executive
pursuant to this subsection.
(ii)
With respect to any outstanding Company stock options held
b
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