8-K
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`Page 1 of 10
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`8-K 1 d202474d8k.htm 8-K
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`UNITED STATES
`SECURITIES AND EXCHANGE COMMISSION
`WASHINGTON, D.C. 20549
`
`FORM 8-K
`
`CURRENT REPORT
`Pursuant to Section 13 or 15(d) of the
`Securities Exchange Act of 1934
`
`Date of Report (Date of Earliest Event Reported): June 12, 2016
`
`Symantec Corporation
`
`(Exact Name of Registrant as Specified in Charter)
`
`Delaware
`(State or Other Jurisdiction of
`Incorporation)
`
`000-17781
`(Commission
`File Number)
`
`350 Ellis Street, Mountain View, CA
`(Address of Principal Executive Offices)
`
`77-0181864
`(IRS Employer
`Identification No.)
`
`94043
`(Zip Code)
`
`Registrant’s Telephone Number, Including Area Code (650) 527-8000
`
`Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the
`registrant under any of the following provisions (see General Instruction A.2. below):
`
`(cid:133) Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
`(cid:133) Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
`(cid:133) Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
`(cid:133) Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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`8-K
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`Page 2 of 10
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`Item 1.01 Entry into a Material Definitive Agreement.
`Merger Agreement
`On June 12, 2016, Symantec Corporation (the “Company”), S-B0616, a Delaware corporation and a wholly owned
`subsidiary of the Company (“Merger Sub”), and Blue Coat, Inc., a Delaware corporation (“Blue Coat”), entered into an
`Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which the Company would acquire all of the
`outstanding capital stock of Blue Coat through a merger of Merger Sub with and into Blue Coat, with Blue Coat surviving
`the merger as a wholly owned subsidiary of the Company (the “Merger”).
`
`Pursuant to the Merger Agreement, and subject to the terms and conditions contained therein, at the closing of the
`Merger (the “Closing”), the Company will pay an aggregate consideration of $4.65 billion in cash based on the estimated
`Blue Coat debt and cash balances at time of close and before estimated transaction expenses.
`
`Completion of the Merger will be subject to the satisfaction or waiver of customary closing conditions, including,
`among others, (i) the approval of the Merger by an affirmative vote of the holders of a majority of the outstanding capital
`stock of Blue Coat, which approval was effected after execution of the Merger Agreement by written consent of certain
`Blue Coat stockholders, (ii) absence of a Material Adverse Effect (as defined in the Merger Agreement) with respect to
`Blue Coat, (iii) the accuracy of representations and warranties (subject to materiality or Company Material Adverse Effect
`(as defined in the Merger Agreement) qualifiers, as applicable), (iv) the absence of any court or governmental order or
`other legal restraint or prohibition preventing the consummation of the Merger and (v) the expiration of the waiting period
`or receipt of approvals under the Hart-Scott-Rodino Act and other applicable antitrust laws. The consummation of the
`Merger is not subject to a financing condition.
`
`The Merger Agreement contains customary representations and warranties of the Company, Merger Sub and Blue
`Coat. The Company and Blue Coat have agreed to various customary covenants and agreements, including, among others,
`an agreement by Blue Coat to conduct its business in the ordinary course in all material aspects during the period prior to
`the Closing and not to engage in certain kinds of transactions during this period. The Merger Agreement provides that
`Blue Coat’s outstanding senior notes will be redeemed in accordance with the redemption provisions of the indenture
`governing the senior notes, and it is presently anticipated that this redemption would be completed at or about the Closing.
`The Merger Agreement generally requires each party to use reasonable best efforts to consummate the Merger and related
`transactions and obtain the required antitrust approvals, subject to certain limitations.
`
`The Merger Agreement may be terminated at any time prior to the Closing by mutual written consent of the
`Company and Blue Coat, and under certain other conditions, including the event that the Merger is not consummated by
`December 12, 2016.
`
`The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified
`in its entirety by reference to the full text of the Merger Agreement. A copy of the Merger Agreement is attached hereto as
`Exhibit 2.1 and incorporated herein by reference.
`
`The Merger Agreement and the above description have been included to provide investors and securityholders with
`information regarding the terms of the Merger Agreement. They are not intended to provide any other factual information
`about the Company, Blue Coat, Merger Sub or their respective subsidiaries or affiliates or stockholders. The
`representations, warranties and covenants contained in the Merger Agreement were made only for purposes of the Merger
`Agreement and as of specific dates; were solely for the benefit of the parties to the Merger Agreement; and may be subject
`to limitations agreed upon by the parties, including being qualified by confidential disclosures made by each contracting
`party to the other for the purposes of allocating contractual risk between them that differ from those applicable to investors
`or securityholders. Investors and securityholders should be aware that the representations, warranties and covenants or any
`description thereof may not reflect the actual state of facts or condition of the Company, Blue Coat, Merger Sub or any of
`their respective subsidiaries, affiliates, businesses, or stockholders. Moreover, information concerning the subject matter
`of the representations, warranties and covenants may change after the date of the Merger Agreement. Accordingly,
`investors and securityholders should read the representations and warranties in the Merger Agreement not in isolation but
`only in conjunction with the other information about the Company and its subsidiaries that the Company includes in
`reports, statements and other filings it makes with the U.S. Securities and Exchange Commission (the “SEC”).
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`8-K
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`Page 3 of 10
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`Term Loan Commitment Letter
`In connection with the execution of the Merger Agreement, on June 12, 2016, the Company entered into a
`commitment letter (the “Commitment Letter”) with JPMorgan Chase Bank, N.A., Bank of America, N.A., Merrill Lynch,
`Pierce, Fenner & Smith Incorporated, Barclays Bank PLC, Citigroup Global Market Inc., Wells Fargo Bank, N.A. and
`Wells Fargo Securities, LLC (together with its designated affiliates, “Commitment Parties”), pursuant to which the
`Commitment Parties committed to provide a term loan facility (the “Term Loan Facility”) in an aggregate amount of $2.8
`billion, consisting of a $1.8 billion five-year term loan, an $800 million three-year term loan and a $200 million three-year
`term loan. The commitments of the Commitment Parties to provide the Term Loan Facility are subject to customary
`conditions, including the consummation of the Merger, absence of a Material Adverse Effect (as defined in the Merger
`Agreement) with respect to Blue Coat, the execution and delivery of definitive documentation, the accuracy of certain
`specified representations and other customary closing conditions.
`
`Certain of the Commitment Parties who are existing lenders of the Company have agreed to consent to amend (the
`“Credit Facility Amendments”) the Company’s existing credit agreement, dated as of May 10, 2016, by and among the
`Company and the existing lenders parties thereto (the “Existing Credit Agreement”) to, among other things, modify
`certain financial covenants and permit the term loans described above, which amendments would become operative upon
`the Closing. In the event the Credit Facility Amendments are not approved, the Commitment Parties committed to provide
`a $2.0 billion replacement credit facility.
`
`Investment Agreement
`On June 12, 2016, the Company entered into an investment agreement (the “Investment Agreement”) with Bain
`Capital Fund XI, L.P. and Bain Capital Europe Fund IV, L.P. (collectively, “Bain”) and Silver Lake Partners IV Cayman
`(AIV II), L.P. (“Silver Lake”, and together with Bain and their respective designated affiliates, the “Purchasers”), relating
`to the issuance to the Purchasers of $1.25 billion aggregate principal amount of 2.0% convertible unsecured notes due
`2021 (the “Notes”). The transactions contemplated by the Investment Agreement (the “Investment Transactions”) are
`expected to close concurrently with the Merger (the “Investment Agreement Closing”), subject to satisfaction of the
`conditions set forth in the Investment Agreement.
`
`Issuance of Convertible Notes
`The Notes are expected to be governed by an indenture (the “Indenture”) between the Company and an institutional
`trustee, and will bear interest at a rate of 2.0% per annum, payable semiannually in cash. The Notes will mature in 2021
`subject to earlier conversion.
`
`The Notes will be convertible into cash, shares of the Company’s common stock (the “Common Stock”) or a
`combination of cash and Common Stock, at the Company’s option, at a conversion rate of 48.9860 per $1,000 principal
`amount of the Notes (which represents an initial conversion price of approximately $20.41 per share), subject to
`customary anti-dilution adjustments. Notes that are converted in connection with a Make-Whole Fundamental Change (as
`defined in the Indenture) are, under certain circumstances, entitled to an increase in the conversion rate.
`
`With certain exceptions, upon a change in control of the Company, the holders of the Notes may require that the
`Company repurchase all or part of the principal amount of the Notes at a purchase price equal to the principal amount plus
`accrued and unpaid interest. The Notes are not redeemable by the Company.
`
`The Indenture will include customary events of default, which may result in the acceleration of the maturity of the
`Notes under the Indenture.
`
`Board Representation
`In connection with, and subject to, the Investment Agreement Closing, the Company will increase the size of the
`Company’s Board of Directors (the “Board”) from ten to eleven members and appoint one nominee designated by Bain to
`the Board. The Bain nominee will be David Humphrey, managing director of Bain.
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`Bain’s rights to Board representation will terminate under certain circumstances, as described in the Investment
`Agreement, including if Bain and its affiliates beneficially own less than 4% of all the Common Stock (on an as-converted
`basis) then outstanding.
`
`For so long as Bain has rights to nominate a director to the Board, the Company has, subject to the approval of the
`Nominating and Governance Committee of the Board, agreed to include such person in its slate of nominees for election
`to the Board at each of the Company’s meetings of stockholders in which directors are to be elected and to use its
`reasonable efforts to cause the election of such person.
`
`Standstill and Voting Obligations
`Pursuant to the Investment Agreement, the Purchasers have agreed, subject to certain exceptions, that until the
`earliest of (i) the later of (A) the date that is six months following such time as (x) in the case of Bain, Bain or its affiliates
`no longer have a representative or rights to have a representative on the Board and (y) in the case of Silver Lake, Silver
`Lake or its affiliates no longer have a representative or rights to have a representative on the Board and (B) the three-year
`anniversary of the Investment Agreement Closing, (ii) the effective date of a change in control of the Company and (iii)(x)
`in the case of Bain, 90 days after Bain does not beneficially own any Notes or shares of Common Stock other than any
`shares issued to any Bain designee as compensation for their service on the Board and (y) in the case of Silver Lake, 90
`days after Silver Lake does not beneficially own any Notes or shares of Common Stock other than any shares issued to
`any Silver Lake designee as compensation for their service on the Board (the “Standstill Period”), the Purchasers will not,
`among other things: (i) acquire any securities of the Company if, immediately after such acquisition, the Purchaser would
`collectively own in the aggregate more than 12.5% of the then outstanding voting securities of the Company, (ii) propose
`or seek to effect any tender or exchange offer, merger or other business combination involving the Company or its
`securities, or make any public statement with respect to such transaction, (iii) make, or in any way participate in any
`“proxy contest” or other solicitation of proxies, (iv) sell, transfer or otherwise dispose of any voting securities of the
`Company to any person who is (or will become upon consummation of such sale, transfer or other disposition) a beneficial
`owner of 12.5% or more of the outstanding voting securities of the Company or (v) call or seek to call any meeting of
`stockholders or other referendum or consent solicitation.
`
`In addition, each Purchaser has agreed to vote any shares of Common Stock beneficially owned by it during the
`Standstill Period in accordance with the recommendations of the Board at each meeting of stockholders of the Company
`or pursuant to any action by written consent.
`
`Transfer and Conversion Restrictions
`The Investment Agreement restricts the Purchasers’ ability to transfer or convert the Notes to Common Stock, subject
`to certain exceptions specified in the Investment Agreement and summarized below.
`
`Prior to the earlier of (i) the 12-month anniversary of the Investment Agreement Closing and (ii) the effective date of
`a change of control of the Company, the Purchasers will be restricted from transferring or entering into an agreement that
`transfers the economic consequences of ownership of the Notes or converting the Notes. These restrictions shall not apply
`to, among others transfers, pledges of the Notes or the satisfaction of obligations related to pledged Notes, in each case in
`connection with one or more bona fide margin loans.
`
`Registration Rights
`Subject to certain limitations, the Investment Agreement provides the Purchasers with certain registration rights for
`the Notes, the 2.5% convertible senior notes due 2021 issued by the Company under the indenture dated March 4, 2016
`(the “Other Notes”), the shares of Common Stock issuable upon conversion of the Notes or the Other Notes and certain
`other shares of Common Stock that may be held by the Purchasers.
`
`The foregoing description of the Investment Agreement is qualified in its entirety by reference to the Investment
`Agreement (including the form of Indenture attached as Exhibit A thereto), which is attached hereto as Exhibit 2.2 and
`incorporated herein by reference.
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`Page 5 of 10
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`Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of
`the Registrant.
`The information relating to the financing contained in Item 1.01 of this Current Report on Form 8-K is incorporated
`herein by reference.
`
`Item 3.02 Unregistered Sale of Securities.
`On June 12, 2016, the Company entered into the Investment Agreement, pursuant to which it agreed to sell $1.25
`billion aggregate principal amount of the Notes to the Purchasers in a private placement pursuant to an exemption from the
`registration requirements of the Securities Act of 1933, as amended (the “Securities Act”). The Company will offer and
`sell the Notes to the Purchasers in reliance on the exemption from registration provided by Section 4(a)(2) of the
`Securities Act. The Company will rely on this exemption from registration based in part on representations made by the
`Purchasers in the Investment Agreement.
`
`The information relating to the Investment Agreement contained in Item 1.01 of this Current Report on Form 8-K is
`incorporated herein by reference.
`
`Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers;
`Compensatory Arrangements of Certain Officers.
`Appointment of Chief Executive Officer
`On June 12, 2016, the Company announced that, in connection with the Merger, the Board has appointed Gregory
`Clark, the current chief executive officer of Blue Coat, as its Chief Executive Officer and a member of the Board effective
`upon, and subject to, the Closing. Mr. Clark, age 51, has served as the chief executive officer of Blue Coat and as a
`member of Blue Coat’s board of directors since September 2011. Prior to joining Blue Coat, Mr. Clark was the president
`and chief executive officer of Mincom, a global software and service provider to asset-intensive industries, from 2008 to
`August 2011. Before joining Mincom, Mr. Clark was a founder and served as president and chief executive officer of
`E2open, a provider of cloud-based supply chain software, from 2001 until 2008. Earlier in his career, Mr. Clark founded
`security software firm Dascom, which was acquired by IBM in 1999. Mr. Clark served as a distinguished engineer and
`vice president of IBM’s Tivoli Systems, a division providing security and management products, from 1999 until 2001.
`Mr. Clark holds a B.S. from Griffith University.
`
`There are no family relationships between Mr. Clark and any director or executive officer of the Company, and he
`has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation
`S-K.
`
`On the effective date of his appointment, Mr. Clark will enter into an Indemnification Agreement with the Company,
`on substantially the terms contained in the Company’s standard form, which provides for indemnification of the
`indemnitee to the full extent allowed by Delaware law.
`
`Appointment of Director
`On June 12, 2016, pursuant to the Investment Agreement and conditioned and effective upon the Investment
`Agreement Closing, David Humphrey, managing director of Bain, will join the Board as a director of the Company. It has
`not yet been determined on which committees of the Board he will serve.
`
`Except for the Investment Agreement, and the transactions contemplated thereby, there are no arrangements or
`understandings pursuant to which Mr. Humphrey was appointed to the Board. Mr. Humphrey currently serves on the
`Board of Blue Coat, which is a party to the Merger Agreement described in Item 1.01 of this Current Report on Form 8-K.
`
`In connection with his appointment, Mr. Humphrey will receive a pro-rated portion of the annual cash and equity
`retainer that is part of the standard compensation received by the Company’s non-employee directors.
`
`On the effective date of his appointment, Mr. Humphrey will enter into an Indemnification Agreement with the
`Company, on substantially the terms contained in the Company’s standard form, which provides for indemnification of the
`indemnitee to the full extent allowed by Delaware law.
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`Departure of Chief Executive Officer, Interim President and Chief Operating Officer.
`Effective upon the Closing and the appointment of Mr. Clark as the Company’s Chief Executive Officer, Michael A.
`Brown will cease serving as Chief Executive Officer of the Company and Mr. Brown will resign from the Board. Effective
`upon the Closing, Ajei Gopal will cease serving as Interim President and Chief Operating Officer of the Company.
`
`Officer Compensation
`Mr. Clark’s Employment Agreement.
`On June 12, 2016, the Company entered into an employment agreement with Mr. Clark, to be effective upon the
`closing of the Merger (the “Clark Agreement”). The material terms of Mr. Clark’s compensation arrangements and the
`Clark Agreement are summarized below.
`
`Base Salary and Bonus. Mr. Clark will receive an annual base salary of $1,000,000. He is also eligible for an annual
`bonus under the Company’s annual bonus plan with a target amount of 100% of base salary. The actual amount of the
`annual bonus will be determined by the independent members of the Board based on the Company’s achievement of
`targeted performance metrics for the Company in the relevant fiscal year.
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`Re-vesting of Options. In connection with the Merger, Mr. Clark’s option to purchase shares of Blue Coat’s common
`stock (“Assumed Clark Options”) will be assumed by the Company and the entire portion of the Assumed Clark Options
`will vest monthly over two years starting from the date of the Closing, subject to Mr. Clark’s continued service to the
`Company. The shares acquired upon exercise of the Assumed Clark Options are subject to transfer restrictions for two
`years following the Closing but may be released from such restriction on or after the one-year anniversary of the closing if
`the Common Stock achieves a specified volume weighted average trading price over a defined period.
`
`Grant of Restricted Stock Units and Performance-Based Restricted Stock Units. Upon his appointment as the
`Company’s Chief Executive Officer, Mr. Clark will be granted the following.
`2017 Equity Award: Prior to the Closing, Blue Coat will grant to Mr. Clark a combination of restricted
`•
`stock units (“RSUs”) and performance-based restricted stock units (“PRUs”) equal to $15,000,000 in
`value on the date of grant (the “2017 Equity Award”). 30% of the 2017 Equity Award will be RSUs and
`70% will be PRUs. Upon the Closing, the RSUs and PRUs will convert into Company RSUs and PRUs
`based on the exchange ratio in the Merger Agreement. The RSUs will vest over a three-year period with
`30% of the RSUs vesting on the one-year anniversary of the Closing, an additional 30% vesting on the
`two-year anniversary of the Closing and the final 40% vesting on the three-year anniversary of the
`Closing. The PRUs will vest, subject to Mr. Clark’s continued service to the Company, based on the
`Company’s achievement of certain performance metrics during the applicable performance period as
`determined by the Company’s Compensation and Leadership Development Committee (the
`“Compensation Committee”) as summarized below:
`•
`0% of the PRUs shall vest if the Company’s performance is below the threshold level;
`•
`100% of the PRUs shall vest if the Company’s performance meets the threshold level;
`•
`200% of the PRUs shall vest if the Company’s performance is at the excess threshold level; and
`•
`300% of the PRUs shall vest if the Company’s performance is at or above the maximum level.
`2018 Equity Award: For fiscal year 2018 under the Clark Agreement, the Company has committed to
`grant Mr. Clark a combination of RSUs and PRUs equal to $15,000,000 on the grant date in relative
`amounts subject to terms and conditions approved by the Company’s Compensation Committee.
`Retention RSUs: Blue Coat had previously agreed to grant Mr. Clark a $15,000,000 cash retention bonus,
`subject to certain vesting requirements. In lieu thereof, prior to the Closing Blue Coat will grant Mr. Clark
`RSUs with an equal dollar value that will convert into Company RSUs based on the exchange ratio in the
`Merger Agreement (the “Retention RSUs”). Subject to Mr. Clark’s continued service with the Company,
`50% of the Retention RSUs will vest on November 12, 2016 and 50% will vest on November 12, 2017.
`
`•
`
`•
`
`Severance Terms. Pursuant to the Clark Agreement, Mr. Clark is entitled to receive certain benefits upon termination
`of his employment with the Company under certain circumstances. In the event of (i) an involuntary termination of
`Mr. Clark’s employment by the Company for any reason other than “Cause” (as defined in the Clark Agreement) or
`(ii) Mr. Clark’s resignation for “Good Reason” (as defined in the Clark Agreement), Mr. Clark will be entitled to (x) a
`lump-sum cash payment of two-years of his base salary then in effect within 60 days following such termination date;
`(y) reimbursement of COBRA premiums for a 18-month period after such termination date; and (z) acceleration of 100%
`of the Assumed Clark Options, the Retention RSUs and the unvested Restricted Reinvestment Shares (as defined below).
`Upon a Change of Control (as defined in the Clark Agreement) of the Company, Mr. Clark will be entitled to 100%
`acceleration of any unvested Retention RSUs. All severance benefits described above are conditioned upon Mr. Clark’s
`execution of a customary release of claims in agreed form in favor of the Company.
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`Mr. Clark shall not be entitled to any benefits under the Clark Agreement in the case of his involuntary termination
`for Cause or his resignation under circumstances that do not constitute Good Reason.
`
`The foregoing description of the Clark Agreement is qualified in its entirety by reference to the full text of the Clark
`Agreement, which will be filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the fiscal quarter
`ending July 1, 2016.
`
`Mr. Clark’s Reinvestment Agreements.
`On June 12, 2016, in connection with the Merger, the Company entered into substantially similar reinvestment
`agreements with Mr. Clark and an entity controlled by Mr. Clark (the “Reinvestment Agreements”), pursuant to which
`Mr. Clark agreed to purchase 2,329,520 shares of Common Stock (the “Reinvestment Shares”) for an aggregate purchase
`price of $40,300,696 at the Closing. 207,907 of the Reinvestment Shares (the “Restricted Reinvestment Shares”) will vest
`monthly over the period starting from the date of the Closing until October 30, 2019, subject to Mr. Clark’s continued
`service to the Company. All of the Reinvestment Shares are subject to transfer restrictions for two years after the purchase
`date but may be released from such restriction on or after the one-year anniversary of the Closing if the Common Stock
`achieves a specified volume weighted average trading price over a defined period as set forth in the Reinvestment
`Agreements.
`
`The foregoing description of the Reinvestment Agreements is qualified in its entirety by reference to the full text of
`the form of reinvestment agreement, which will be filed as an exhibit to the Company’s Quarterly Report on Form 10-Q
`for the fiscal quarter ending July 1, 2016.
`
`Item 9.01 Financial Statements and Exhibits.
`(d) Exhibits
`
`Exhibit No.
`2.1
`
`2.2
`
`Description
`Agreement and Plan of Merger, dated as of June 12, 2016, by and among Symantec Corporation,
`S-B0616 Merger Sub, Inc. and Blue Coat, Inc. (the schedules and exhibits have been omitted pursuant
`to Item 601(b)(2) of Regulation S-K).
`Investment Agreement, dated as of June 12, 2016, by and among Symantec Corporation, Bain Capital
`Fund XI, L.P., Bain Capital Europe Fund IV, L.P. and Silver Lake Partners IV Cayman (AIV II), L.P.
`(including the form of Indenture attached as Exhibit A thereto).
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`Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be
`signed on its behalf by the undersigned hereunto duly authorized.
`
`SIGNATURE
`
`Date: June 14, 2016
`
`Symantec Corporation
`
`By: /s/ Scott C. Taylor
`Scott C. Taylor
`Executive Vice President, General Counsel and
`Secretary
`
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`8-K
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`Exhibit No.
`2.1
`
`2.2
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`Page 10 of 10
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`Exhibit Index
`
`Description
`Agreement and Plan of Merger, dated as of June 12, 2016, by and among Symantec Corporation,
`S-B0616 Merger Sub, Inc. and Blue Coat, Inc. (the schedules and exhibits have been omitted pursuant
`to Item 601(b)(2) of Regulation S-K).
`Investment Agreement, dated as of June 12, 2016, by and among Symantec Corporation, Bain Capital
`Fund XI, L.P., Bain Capital Europe Fund IV, L.P. and Silver Lake Partners IV Cayman (AIV II), L.P.
`(including the form of Indenture attached as Exhibit A thereto).
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`EX-2.1
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`EX-2.1 2 d202474dex21.htm EX-2.1
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`EXHIBIT 2.1
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`AGREEMENT AND PLAN OF MERGER
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`by and among
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`SYMANTEC CORPORATION,
`a Delaware corporation,
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`S-B0616 MERGER SUB, INC.,
`a Delaware corporation,
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`and
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`BLUE COAT, INC.
`a Delaware corporation,
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`Dated as of June 12, 2016
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`https://www.sec.gov/Archives/edgar/data/849399/000119312516621451/d202474dex21....
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`EX-2.1
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`Page 2 of 95
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`TABLE OF CONTENTS
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`ARTICLE I THE MERGER
`1.1 The Contribution and the Merger
`1.2 Closing Deliveries
`1.3 Effect on Capital Stock, Options and Certain Performance Stock Units and Certain Restricted Stock Units
`1.4 Payment Procedures
`1.5 No Further Ownership Rights in the Company Common Stock
`1.6 Tax Consequences
`1.7 Certain Taxes
`1.8 Withholding Rights
`1.9 Taking of Necessary Action; Further Action
`ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY
`2.1 Organization of the Company
`2.2 Authority
`2.3 No Conflicts
`2.4 Consents
`2.5 Subsidiaries
`2.6 Company Capital Structure
`2.7 Company Financial Statements and Internal Controls
`2.8 Liabilities
`2.9 Absence of Certain Changes
`2.10 Accounts Receivable; Bank Accounts
`2.11 Restrictions on Business Activities
`2.12 Real Property; Leases
`2.13 Assets; Absence of Encumbrances
`2.14 Intellectual Property
`2.15 Product Warranties; Support Services
`2.16 Material Contracts
`2.17 Change in Control Agreements
`2.18 Interested Party Transactions
`2.19 Compliance with Laws
`2.20 Litigation
`2.21 Insurance
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`EX-2.1
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`2.22 Minute Books
`2.23 Environmental Matters
`2.24 Brokers’ and Finders’ Fees
`2.25 Employee Benefit Plans
`2.26 Employment Matters
`2.27 Tax Matters
`2.28 Customers; Suppliers; Resellers
`2.29 Governmental Authorizations
`2.30 FCPA
`2.31 Data Collection and Privacy
`2.32 Conflict Minerals
`2.33 Exclusivity of Representations
`ARTICLE III REPRESENTATIONS AND WARRANTIES OF ACQUIRER AND MERGER SUB
`3.1 Organization of Acquirer and Merger Sub
`3.2 Authority
`3.3 No Conflicts
`3.4 No Consent
`3.5
`Stockholder Notice
`3.6
`Financing
`3.7
`Solvency
`3.8 No Prior Merger Sub Operations
`3.9
`Legal Proceedings; Orders
`3.10 Brokers’ Fees
`3.11 Acquirer Common Stock
`3.12 Independent Investigation
`ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME
`4.1 Conduct of the Business
`4.2 Restrictions on Conduct of the Business
`4.3 Certain Limitations
`ARTICLE V ADDITIONAL AGREEMENTS
`5.1 Board Recommendation, Stockholder Approval and Stockholder Notice
`5.2 No Solicitation.
`5.3 Confidentiality; Public Disclosure
`5.4 Reasonable Best Efforts; Regulatory Approval
`5.5
`Third-Party Consents; Notices
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`EX-2.1
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`5.6 Notices of Certain Matters
`5.7 Access to Information
`5.8 Expenses; Company Debt
`5.9 Employees
`5.10 Assumption of New Performance Stock Units and New Restricted Stock Units
`5.11 Form S-8
`5.12 Termin