ADOBE SYSTEMS INCORPORATED RESTRICTED STOCK AWARD GRANT AGREEMENT
Exhibit
10.3
ADOBE
SYSTEMS INCORPORATED
1994
PERFORMANCE AND RESTRICTED STOCK PLAN
Adobe
Systems Incorporated (the “Company”) has granted _______________________ (the
“Participant”), as of ___________ ___, 2008 (the “Grant Date”), an award of
Restricted Stock (the “Award”) as described in this Restricted Stock Award Grant
Agreement (the “Agreement”) pursuant to the Company’s 1994 Performance and
Restricted Stock Plan (the “Plan”). Capitalized terms not defined in
this Agreement shall have the meaning set forth in the Plan and, if applicable,
the Superseding Agreement.
IT IS
AGREED between the parties as follows:
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1.
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Issuance of
Shares. Effective as of the Grant Date, the Company
shall issue the Participant _______________ shares of the Company’s common
stock (the “Stock”) in consideration for the Participant’s service with
the Company. In the event additional consideration is required
by law so that the Stock acquired under this Agreement is deemed fully
paid and nonassessable, the Board shall determine the amount and character
of such additional consideration to be paid and the Participant shall
deliver it promptly to the Company. The Company will direct the
transfer agent for the Company to deliver to Escrow Agent (as defined in
Section 6 below) the certificate or certificates evidencing the shares of
Stock being acquired by the Participant. Any such shares may be
held in book entry form directly registered with the transfer agent or in
such other form as the Company may
determine.
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2.
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Vesting and
Reacquisition Right.
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(a)
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Vesting. The
Award shall be subject to vesting in accordance with the Vesting Schedule
set forth on Exhibit A
hereto. Shares of Stock that have vested in accordance with the
Vesting Schedule are “Vested Shares.” Shares of Stock that have
not vested are “Unvested Shares.” Vesting is subject to the
Participant’s continued Service.
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(b)
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Reacquisition
Right. The Company shall simultaneously with the
termination of the Participant’s Service automatically reacquire for no
consideration all of the Unvested Shares (the “Reacquisition Right”),
unless the Company agrees to waive its Reacquisition Right as to some or
all of the Unvested Shares. Any such waiver shall be exercised
by the Company by written notice to the Participant (with a copy to Escrow
Agent) within ninety (90) days after the termination of Service, and
Escrow Agent may then release to the Participant the number of Unvested
Shares not being reacquired by the Company. If the Company does
not waive its Reacquisition Right as to all of the Unvested Shares, then
upon such termination of Service, Escrow Agent shall transfer to the
Company the number of Unvested Shares the Company is
reacquiring. The Reacquisition Right shall expire when all of
the shares have become Vested Shares. Notwithstanding the
foregoing, if necessary to avoid a charge to earnings for financial
accounting purposes, the Company shall not exercise its Reacquisition
Right until at least six (6) months (or such other period required for
financial accounting purposes) have elapsed following the Participant’s
acquisition of the shares of Stock issued pursuant to this Award, unless
otherwise determined by the Board. In the event of a Change of
Control or other change in the Company’s capital structure (as provided in
Section 5 of the Plan), the Reacquisition Right may be assigned by the
Company to the successor of the Company (or such successor’s parent
corporation), if any, in connection with such transaction. To
the extent the Reacquisition Right remains in effect following such
transaction, it shall apply to the new capital stock or other property
received in exchange for the Stock under this Award in consummation of
such transaction.
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3.
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Definitions. As
used in this Agreement, the following terms shall have the meanings
indicated unless the context requires a different
meaning.
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(a) Board. The
“Board” shall mean the Board of Directors of the Company.
(b) Code. “Code”
shall mean the Internal Revenue Code of 1986, as amended.
(c) Director. “Director”
shall mean a member of the Board of Directors of the Company.
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(d)
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Participating
Company. “Participating Company” shall mean (i) the
Company, and (ii) any present or future parent and/or subsidiary
corporation of the Company while such corporation is a parent or
subsidiary of the Company. For purposes of this Agreement, a
parent corporation and a subsidiary corporation shall be as defined in
Sections 424(e) and 424(f) of the
Code.
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(e)
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Participating Company
Group. “Participating Company Group” shall mean at any
point in time all corporations collectively which are then a Participating
Company.
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(f)
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Service. “Service”
means the Participant’s employment or service with the Participating
Company Group as an employee or a consultant, whichever such capacity the
Participant held on the Grant Date. Unless otherwise determined
by the Board, the Participant’s Service shall be deemed to have terminated
if the Participant ceases to render service to the Participating Company
Group in such initial capacity. However, the Participant’s
Service shall not be deemed to have terminated merely because of a change
in the Participating Company for which the Participant renders such
Service in such initial capacity, provided that there is no interruption
or termination of the Participant’s Service. Furthermore, the
Participant’s Service shall not be deemed to have terminated if the
Participant takes any bona fide leave of absence approved by the Company
of ninety (90) days or less. In the event of a leave in excess
of ninety (90) days, the Participant’s Service shall be deemed to
terminate on the ninety-first (91st) day of the leave unless the
Participant’s right to return to Service is guaranteed by statute or
contract. Notwithstanding the foregoing, unless otherwise
designated by the Company or required by law, a leave of absence shall not
be treated as Service for purposes of determining vesting under this
Agreement. A Participant’s Service shall be deemed to have
terminated either upon an actual termination of Service or upon the
corporation for which the Participant performs Service ceasing to be a
Participating Company. Subject to the foregoing, the Board, in
its discretion, shall determine whether the Participant’s Service has
terminated and the effective date of such
termination.
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(g)
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Superseding
Agreement. “Superseding Agreement” shall mean the Adobe
Systems Incorporated Executive Severance Plan in the Event of a Change of
Control and/or the individual written retention agreement in effect on the
Grant Date between the Company and the Participant, to the extent
applicable to the Participant.
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4.
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Administration. All
questions of interpretation concerning this Agreement shall be determined
by the Board and/or by a duly appointed committee of the Board having such
powers as shall be specified by the Board. Any reference herein
to the Board shall also mean the committee if such committee has been
appointed. All determinations by the Board shall be final and
binding upon all persons having an interest in this
Agreement.
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5.
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Rights as a
Stockholder. The Participant shall have no rights as a
stockholder with respect to Unvested Stock. No adjustment shall be made
for dividends or distributions or other rights for which the record date
is prior to the date such Stock becomes Vested
Stock.
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2
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6.
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Escrow of Unvested
Shares.
As security for the Participant’s faithful performance of the terms
of this Agreement (including Section 2) and to insure the availability for
delivery of the Participant’s Stock upon execution of the Reacquisition
Right, the Participant agrees to the following “Joint Escrow” and “Joint
Escrow Instructions,” and the Participant and the Company hereby authorize
and direct the Corporate Secretary of the Company or the Corporate
Secretary’s designee (“Escrow Agent”) to hold the documents delivered to
Escrow Agent pursuant to the terms of this Agreement, in accordance with
the following Joint Escrow
Instructions:
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(a)
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As
provided in Section 2 above, in the event of the termination of the
Participant’s Service, the Company shall pursuant to the Reacquisition
Right, automatically reacquire for no consideration all Unvested Shares,
as of the date of such termination, unless the Company elects to waive
such right as to some or all of the Unvested Shares. If the
Company elects to waive the Reacquisition Right, the Company will give the
Participant and Escrow Agent a written notice specifying the number of
Unvested Shares not to be reacquired. The Participant and the Company
hereby irrevocably authorize and direct Escrow Agent to close the
transaction contemplated by such notice as soon as practicable following
the date of termination of Service in accordance with the terms of this
Agreement and the notice of waiver, if
any.
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(b)
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Vested
Shares shall be delivered to the Participant upon the Participant’s
request given in the manner provided for in this Agreement for providing
notice.
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(c)
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At
any closing involving the transfer or delivery of some or all of the
property subject to the Agreement, Escrow Agent is directed (i) to
date any stock assignments necessary for the transfer in question,
(ii) to fill in the number of shares being transferred, and
(iii) to deliver the same, together with the certificate, if any,
evidencing the shares of Stock to be transferred, to the Participant or
the Company, as applicable.
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(d)
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The
Participant irrevocably authorizes the Company to deposit with Escrow
Agent the certificates, if any, evidencing shares of Stock to be held by
Xxxxxx Agent hereunder and any additions and substitutions to such shares
as specified in this Agreement. The Participant hereby
irrevocably constitutes and appoints Escrow Agent as the Participant’s
attorney-in-fact and agent for the term of this escrow to execute with
respect to such securities and other property all documents of assignment
and/or transfer and all stock certificates necessary or appropriate to
make all securities negotiable and complete any transaction contemplated
herein.
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(e)
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This
escrow shall terminate upon the expiration or application in full of the
Reacquisition Right and the completion of the tasks contemplated by these
Joint Escrow Instructions.
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(f)
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If
at the time of termination of this escrow, Escrow Agent should have in its
possession any documents, securities, or other property belonging to the
Participant, Escrow Agent shall deliver all of same to the Participant and
shall be discharged of all further obligations
hereunder.
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(g)
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Except
as otherwise provided in these Joint Escrow Instructions, Escrow Agent’s
duties hereunder may be altered, amended, modified, or revoked only by a
writing signed by all of the parties
hereto.
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(h)
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Escrow
Agent shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in
relying or refraining from acting on any instrument reasonably believed by
Escrow Agent to be genuine and to have been signed or presented by the
proper party or parties or their assignees. Escrow Agent shall
not be personally liable for any act Escrow Agent may do or omit to
do
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hereunder
as Escrow Agent or as attorney-in-fact for the Participant while acting in good
faith and any act done or omitted by Escrow Agent pursuant to the advice of
Xxxxxx Agent’s own attorneys shall be conclusive evidence of such good
faith.
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(i)
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Escrow
Agent is hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders, judgments, decrees or process of courts of law, and
is hereby expressly authorized to comply with and obey orders, judgments,
or decrees of any court. In case Escrow Agent obeys or complies
with any such order, judgment, or decree of any court, Escrow Agent shall
not be liable to any of the parties hereto or to any other person, firm,
or corporation by reason of such compliance, notwithstanding any such
order, judgment, or decree being subsequently reversed, modified,
annulled, set aside, vacated, or found to have been entered without
jurisdiction.
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(j)
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Escrow
Agent shall not be liable in any respect on account of the identity,
authority, or rights of the parties executing or delivering or purporting
to execute or deliver this Agreement or any documents or papers deposited
or called for hereunder.
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(k)
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Escrow
Agent shall not be liable for the outlawing of any rights under any
statute of limitations with respect to these Joint Escrow Instructions or
any documents deposited with Escrow
Agent.
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(l)
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Escrow
Agent’s responsibilities as Escrow Agent hereunder shall terminate if
Escrow Agent shall cease to be the Secretary of the Company (or the
Secretary’s designee, if applicable) or if Escrow Agent shall resign by
written notice to each party. In the event of any such
termination, the Company may appoint any officer or assistant officer of
the Company or any other person as successor Xxxxxx Agent and the
Participant hereby confirm the appointment of such successor or successors
as the Participant’s attorney-in-fact and agent to the full extent of such
successor Xxxxxx Agent’s
appointment.
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(m)
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If
Escrow Agent reasonably requires other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such
instruments.
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(n)
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It
is understood and agreed that should any dispute arise with respect to the
delivery and/or ownership or right of possession of the securities, Escrow
Agent is authorized and directed to retain in its possession without
liability to anyone all or any part of such securities until such dispute
shall have been settled either by mutual written agreement of the parties
concerned or by a final order, decree, or judgment of a court of competent
jurisdiction after the time for appeal has expired and no appeal has been
perfected, but Escrow Agent shall be under no duty whatsoever to institute
or defend any such proceedings.
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(o)
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By
signing this Agreement below Escrow Agent becomes a party hereto only for
the purpose of the Joint Escrow Instructions; Escrow Agent does not become
a party to any other rights and obligations of this Agreement apart from
those in this Section 6.
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(p)
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Escrow
Agent shall be entitled to employ such legal counsel and other experts as
Escrow Agent may deem necessary to properly advise Escrow Agent in
connection with Escrow Agent’s obligations hereunder. Escrow
Agent may rely upon the advice of such counsel, and may pay such counsel
reasonable compensation therefor. The Company shall be
responsible for all fees generated by such legal counsel in connection
with Xxxxxx Agent’s obligations
hereunder.
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(q)
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These
Joint Escrow Instructions shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted
assigns. It is understood and agreed that references to “Escrow
Agent” herein refer to the original Escrow Agent and to any and all
successor Escrow Agents. It is understood and agreed that the
Company may at any time or from time to time assign its rights under the
Agreement and these Joint Escrow Instructions in whole or in
part.
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7.
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Legends. The
Participating Company Group may at any time place legends referencing the
Reacquisition Right set forth in Section 2 above and any applicable
federal and/or state securities restrictions on all certificates
representing shares of Stock subject to the provisions of this
Agreement. The Participant shall, at the request of the
Participating Company Group, promptly present to the Participating Company
Group any and all certificates representing shares of Stock acquired under
this Agreement in the possession of the Participant in order to effectuate
the provisions of this Section. Unless otherwise specified by
the Participating Company Group, legends placed on such certificates may
include but shall not be limited to the
following:
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“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS SET FORTH
IN AN AGREEMENT BETWEEN THIS CORPORATION AND THE REGISTERED HOLDER, OR HIS OR
HER PREDECESSOR IN INTEREST, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE
OF THE CORPORATION.”
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8.
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Transfers in Violation
of Agreement. The Participant’s Award and any Unvested Shares are
not transferable, except by will or by the laws of descent and
distribution. The Company shall not be required (a) to transfer on its
books any shares of the Stock which shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement, or (b) to
treat as owner of such shares or to accord the right to vote as such owner
or to pay dividends to any transferee to whom any such shares shall have
been so transferred.
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9. Tax
Matters.
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(a)
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Tax
Consequences.
The Participant acknowledges and agrees that the Participant has reviewed
with the Participant’s own tax advisors the federal, state, local and
foreign tax consequences of the Award and the transactions contemplated by
this Agreement, or has knowingly and voluntarily declined to do
so. The Participant shall rely solely on such advisors and not
on any statements or representations of the Company or any of its
agents. The Participant understands that the Participant (and
not the Company) shall be responsible for the Participant’s own tax
liability that may arise as a result of the Award or the transactions
contemplated by this Agreement. The Participant acknowledges
that the Participant shall be solely responsible for making any filings or
elections, including any election under Section 83(b) of the Code, even if
the Participant requests the Company or its representatives to make any
filing on the Participant’s behalf.
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(b)
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Withholding
Obligations. Regardless of any action taken by the
Company or the Participating Company Group with respect to any or all
income, employment, social insurance, or payroll taxes, payment on account
or other tax-related withholding (“Tax-Related Items”), the Participant
acknowledges that the ultimate liability for all Tax-Related Items legally
due by the Participant is and remains the Participant’s responsibility and
that the Company and Participating Company Group (i) make no
representations or undertakings regarding the treatment of any Tax-Related
Items in connection with any aspect of this Agreement, the subsequent sale
of the Stock, or the receipt of any dividends, and (ii) do not commit to
structure the terms of the grant or any other aspect of this Agreement to
reduce or eliminate the Participant’s liability for Tax-Related Items. At
the time the Participant vests in the Stock or at any other time as
reasonably requested by the Company or the Participating Company Group,
the Participant shall pay or make adequate arrangements satisfactory to
the Participating Company Group to satisfy
all
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withholding
obligations of the Participating Company Group. In this regard, the Participant
hereby authorizes the withholding of that number of whole vested shares
otherwise deliverable to the Participant pursuant to this Agreement having a
fair market value not in excess of the amount of the Tax-Related Items
determined by the applicable minimum statutory rates. In no event may shares of
Stock be withheld with a value exceeding the minimum amount of tax required to
be withheld by law. Finally, the Participant shall pay to the Company or
Participating Company Group (as applicable) any amount of the Tax-Related Items
that the Company or the Participating Company Group may be required to withhold
as a result of the Participant’s participation in the Plan that cannot be
satisfied by the means previously described. The Participant expressly
acknowledges and agrees that the Company may withhold from any compensation paid
to the Participant by the Company in partial or full satisfaction of the
withholdings contemplated by this Section.
10. Acknowledgement. By
accepting this Agreement, the Participant acknowledges that:
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(a)
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the
Plan is established voluntarily by the Company; it is discretionary in
nature and it may be modified, amended, suspended or terminated by the
Board at any time, unless otherwise provided in the Plan and this
Agreement;
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(b)
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this
grant is voluntary and occasional and does not create any contractual or
other right to receive future grants of awards, or benefits in lieu of
awards, even if awards have been granted repeatedly in the
past;
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(c)
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all
decisions with respect to future awards under the Plan, if any, will be at
the sole discretion of the Board;
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(d)
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the
Participant’s participation in the Plan shall not create a right to
further employment with the Company or the Participating Company Group and
shall not interfere with any ability of the Company or the Participating
Company Group to terminate the Participant’s employment relationship at
any time, with or without cause;
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(e) the
Participant is voluntarily participating in the Plan;
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(f)
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this
Award is not part of normal or expected compensation or salary for any
purpose, including, but not limited to, calculating any severance,
resignation, termination, redundancy, end-of-service payments, bonuses,
long-service awards, pension or retirement benefits or similar
payments;
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(g)
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in
the event that the Participant is not an employee of the Company, this
Agreement will not be interpreted to form an employment contract or
relationship with the Company; and furthermore, this Agreement will not be
interpreted to form an employment contract with the other members of the
Participating Company Group;
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(h) the
future value of the Stock is unknown and cannot be predicted with certainty;
and
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(i)
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no
claim or entitlement to compensation or damages arises from termination of
this Award or diminution in value of the Stock issued resulting from
termination of the Participant’s Service with the Company or the
Participating Company Group (for any reason whether or not in breach of
applicable labor laws), and the Participant irrevocably releases the
Company and the Participating Company Group from any such claim that may
arise. If, notwithstanding the foregoing, any such claim is found by a
court of competent jurisdiction to have arisen then, by accepting this
Agreement, the Participant shall be deemed irrevocably to have waived the
Participant’s entitlement to pursue such a
claim.
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11.
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Delivery of Documents
and Notices. Any document relating to participating in
the Plan and/or notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given (except to the extent that
this Agreement provides for effectiveness only upon actual receipt of such
notice) upon personal delivery, electronic delivery, or upon deposit in
the U.S. Post Office or foreign postal service, by registered or certified
mail, with postage and fees prepaid, addressed to the other party at the
e-mail address, if any, provided for the Participant by a Participating
Company or at such other address as such party may designate in writing
from time to time to the other
party.
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(a)
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Description of
Electronic Delivery. The Plan documents, which may
include but do not necessarily include: the Plan prospectus, this
Agreement and U.S. financial reports of the Company, may be delivered to
the Participant electronically. In addition, the Participant
may deliver electronically any notices called for by this
Agreement. Such means of delivery may include but do not
necessarily include the delivery of a link to a Company intranet or the
internet site of a third party involved in administering the Plan, the
delivery of the document via e-mail or such other delivery determined at
the Board’s discretion.
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(b)
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Consent to Electronic
Delivery. The Participant acknowledges and consents to
the electronic delivery of the Plan documents and notice pursuant to this
Agreement. The Participant acknowledges that he or she may
receive from the Company a paper copy of any documents delivered
electronically at no cost if the Participant contacts the Company by
telephone, through a postal service or electronic mail at
xxxxxx@xxxxx.xxx. The Participant further acknowledges that the
Participant will be provided with a paper copy of any documents delivered
electronically if electronic delivery fails; similarly, the Participant
understands that the Participant must provide the Company or any
designated third party with a paper copy of any documents delivered
electronically if electronic delivery fails. Also, the
Participant understands that the Participant’s consent may be revoked or
changed, including any change in the electronic mail address to which
documents are delivered (if Participant has provided an electronic mail
address), at any time by notifying the Company of such revised or revoked
consent by telephone, postal service or electronic mail at
xxxxxx@xxxxx.xxx.
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12.
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Successors and
Assigns. This Agreement shall inure to the benefit of
the successors and assigns of the Company and, subject to the restrictions
on transfer herein set forth, be binding upon Participant, his or her
heirs, executors, administrators, successors and
assigns.
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13.
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Securities Law
Compliance. The grant and issuance of the Stock under this Award
shall be subject to compliance with all applicable requirements of
federal, state or foreign law with respect to such securities. The
Participant may not be issued any shares of Stock if such issuance would
constitute a violation of any applicable federal, state or foreign
securities laws or other law or regulations or the requirements of any
stock exchange or market system upon which the Stock may then be listed.
In addition, the Participant may not be issued any shares of Stock unless
(i) a registration statement under the Securities Act shall at the time of
issuance be in effect with respect to the shares or (ii) in the opinion of
legal counsel to the Company, the shares may be issued in accordance with
the terms of an applicable exemption from the registration requirements of
the Securities Act. YOU ARE CAUTIONED THAT THE SHARES MAY NOT BE ISSUED
UNLESS THE FOREGOING CONDITIONS ARE SATISFIED. The inability of the
Company to obtain from any regulatory body having jurisdiction the
authority, if any, deemed by the Company’s legal counsel to be necessary
to the lawful issuance and sale of any shares of Stock shall relieve the
Company of any liability in respect of the failure to issue or sell such
shares as to which such requisite authority shall not have been obtained.
As a condition to the issuance of any shares of Stock pursuant to this
Agreement, the Company may require the Participant to satisfy any
qualifications that may be necessary or appropriate, to evidence
compliance with any applicable law or regulation and to make any
representation or warranty with respect thereto as may be requested by the
Company.
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14.
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Data Privacy
Consent. The Participant hereby explicitly and
unambiguously consents to the collection, use and transfer, in electronic
or other form, of the Participant’s personal data as described in this
document by and among the members of the Participating Company Group for
the exclusive purpose of implementing, administering and managing the
Participant’s participation in the
Plan.
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The
Participant understands that the Company and the Participating Company Group
hold certain personal information about the Participant, including, but not
limited to, the Participant’s name, home address and telephone number, date of
birth, social insurance number or other identification number, salary,
nationality, job title, any shares of Stock or directorships held in the
Company, details of any entitlement to shares of Stock awarded, canceled,
exercised, vested, unvested or outstanding in the Participant’s favor, for the
purpose of implementing, administering and managing the Plan
(“Data”). The Participant understands that Data may be transferred to
any third parties assisting in the implementation, administration and management
of the Plan, that these recipients may be located in the Participant’s country
or elsewhere, and that the recipient’s country may have different data privacy
laws and protections than the Participant’s country. The Participant
understands that he or she may request a list with the names and addresses of
any potential recipients of the Data by contacting the Participant’s local human
resources representative. The Participant authorizes the recipients
to receive, possess, use, retain and transfer the Data, in electronic or other
form, for the purposes of implementing, administering and managing the
Participant’s participation in the Plan. The Participant understands
that Data will be held only as long as is necessary to implement, administer and
manage the Participant’s participation in the Plan. The Participant
understands that he or she may, at any time, view Data, request additional
information about the storage and processing of Data, require any necessary
amendments to Data or refuse or withdraw the consents herein, in any case
without cost, by contacting in writing the Participant’s local human resources
representative. The Participant understands, however, that refusing
or withdrawing the Participant’s consent may affect the Participant’s ability to
participate in the Plan. For more information on the consequences of
the Participant’s refusal to consent or withdrawal of consent, the Participant
understands that he or she may contact the Participant’s local human resources
representative.
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15.
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Integrated
Agreement. This Agreement, together with the Superseding
Agreement, if any, and the Plan constitutes the entire understanding and
agreement of the Participant and the Participating Company Group with
respect to the subject matter contained herein and supersedes any prior
agreements, understandings, restrictions, representations, or warranties
among the Participant and the Participating Company Group with respect to
such subject matter other than those as set forth or provided for
herein. In the event of any conflict between the provisions of
this Agreement and those of the Plan, the provisions of the Plan shall
control. In the event of any conflict between the provisions of
this Agreement and/or the Plan and the provisions of the Superseding
Agreement, the Superseding Agreement shall
control.
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16.
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Applicable Law and
Venue. This Agreement shall be governed by the laws of
the State of California as such laws are applied to agreements between
California residents entered into and to be performed entirely within the
State of California. For purposes of litigating any dispute that arises
directly or indirectly from the relationship of the parties as evidenced
by this Agreement, the parties herby submit to and consent to the
jurisdiction of the State of California and agree that such litigation
shall be conducted only in the courts of Santa Xxxxx County, California,
or the federal courts of the United States for the Northern District of
California, and no other courts, where this Agreement is made and/or
performed.
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17.
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Application of Code
Section 409A. Notwithstanding
any other provision of this Agreement, to the extent that (i) one or more
of the payments or benefits received or to be received by the Participant
pursuant to this Agreement would constitute deferred compensation subject
to the requirements of Code Section 409A, and (ii) the Participant is a
“specified employee” within the meaning of Code Section 409A, then such
payment or benefit (or portion thereof) will be delayed until the earliest
date following the Participant’s “separation from service” with the
Participating Company Group within the meaning of Code Section 409A on
which the Company can provide such payment or benefit to the Participant
without the Participant’s incurrence of any additional tax or interest
pursuant to Code Section 409A, with all payments or benefits due
thereafter occurring in accordance with the original
schedule. In addition, this Award and the payments and benefits
to be provided hereunder are intended to comply in all respects with the
applicable provisions of Code Section
409A.
|
ADOBE
SYSTEMS INCORPORATED
|
ESCROW
AGENT
|
|
By:
_______________________
|
By:
__________________________________
|
|
Xxxxxxxx
Xxxxxxx
|
[Designee
of Corporate Secretary]
|
|
Chief Executive Officer
|
[Title]
|
|
Adobe Systems Incorporated
|
Adobe
Systems Incorporated
|
|
Address: 345 Park
Avenue
|
Address: 000
Xxxx Xxxxxx
|
|
San Jose, CA 95110-2704
|
San Jose, CA
95110-2704
|
The
Participant represents that he or she is familiar with the terms and provisions
of this Agreement and hereby accepts the Stock subject to all of the terms and
provisions thereof. The Participant hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the Board upon
any questions arising under this Agreement.
9