ADOBE SYSTEMS INCORPORATED 2005 EQUITY INCENTIVE ASSUMPTION PLANAssumption Agreement |
|
|
You are currently viewing: This Assumption Agreement involves
ADOBE SYSTEMS INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
|
Exhibit 10.2
ADOBE SYSTEMS INCORPORATED
2005 EQUITY INCENTIVE
i
ii
iii
ADOBE SYSTEMS INCORPORATED 2005 EQUITY INCENTIVE ASSUMPTION PLAN
1. ESTABLISHMENT, PURPOSE AND TERM OF PLAN .1.1 Establishment . Adobe Systems Incorporated, a Delaware corporation, hereby establishes the Adobe Systems Incorporated 2005 Equity Incentive Assumption Plan (the “ Plan ” ) effective as of December 3, 2005 (the “ Effective Date ” ).1.2 Background and Purpose . The Plan is established in connection with the acquisition by the Company of Macromedia, Inc. and is intended to comply with Rule 4350(i)(1)(A)(iii) of the Nasdaq Qualitative Listing Requirements. The purpose of the Plan is to advance the interests of the Participating Company Group and its stockholders by providing an incentive to attract, retain and reward persons performing services for the Participating Company Group and by motivating such persons to contribute to the growth and profitability of the Participating Company Group. The Plan seeks to achieve this purpose by providing for Awards in the form of Options, Stock Appreciation Rights, Stock Purchase Rights, Stock Bonuses, Performance Shares and Performance Units. Outstanding Awards shall continue to be governed by and administered under the terms of the Macromedia Plans pursuant to which they originally were granted. Awards granted on or after the Effective Date shall be subject to the terms of this Plan.1.3 Term of Plan. The Plan shall continue in effect until the earlier of its termination by the Board or the date on which all of the shares of Stock available for issuance under the Plan have been issued and all restrictions on such shares under the terms of the Plan and the agreements evidencing Awards granted under the Plan have lapsed; provided, however , that no Awards may be made from Reserve A after August 1, 2009, and no Awards may be made from Reserve B after November 10, 2014.2. DEFINITIONS AND CONSTRUCTION .2.1 Definitions. Whenever used herein, the following terms shall have their respective meanings set forth below:(a) “ Affiliate ” means (i) an entity, other than a Parent Corporation, that directly, or indirectly through one or more intermediary entities, controls the Company or (ii) an entity, other than a Subsidiary Corporation, that is controlled by the Company directly, or indirectly through one or more intermediary entities. For this purpose, the term “control” (including the term “controlled by”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the relevant entity, whether through the ownership of voting securities, by contract or otherwise; or shall have such other meaning assigned such term for the purposes of registration on Form S-8 under the Securities Act.(b) “ Award ” means any Option, SAR, Stock Purchase Right, Stock Bonus, Performance Share or Performance Unit granted under the Plan.
1
(c) “ Award Agreement ” means a written agreement between the Company and a Participant setting forth the terms, conditions and restrictions of the Award granted to the Participant. An Award Agreement may be an “Option Agreement,” an “SAR Agreement,” a “Stock Purchase Agreement,” a “Stock Bonus Agreement,” a “Performance Share Agreement” or a “Performance Unit Agreement.”(d) “ Board ” means the Board of Directors of the Company.(e) “ Code ” means the Internal Revenue Code of 1986, as amended, and any applicable regulations promulgated thereunder.(f) “ Committee ” means the Executive Compensation Committee or other committee of the Board duly appointed to administer the Plan and having such powers as shall be specified by the Board. If no committee of the Board has been appointed to administer the Plan, the Board shall exercise all of the powers of the Committee granted herein, and, in any event, the Board may in its discretion exercise any or all of such powers.(g) “ Company ” means Adobe Systems Incorporated, a Delaware corporation, or any successor corporation thereto.(h) “ Disability ” means the permanent and total disability of the Participant, within the meaning of Section 22(e)(3) of the Code.(i) “ Dividend Equivalent ” means a credit, made at the discretion of the Committee or as otherwise provided by the Plan, to the account of a Participant in an amount equal to the cash dividends paid on one share of Stock for each share of Stock represented by an Award held by such Participant.(j) “ Employee ” means any person treated as an employee in the records of a Participating Company (including an Officer or a member of the Board who is also an employee); provided, however , that neither service as a member of the Board nor payment of a director’s fee shall be sufficient to constitute employment for purposes of the Plan.(k) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.(l) “ Fair Market Value ” means, as of any date, the value of a share of Stock or other property as determined by the Committee, in its discretion, or by the Company, in its discretion, if such determination is expressly allocated to the Company herein, subject to the following:(i) If, on such date, the Stock is listed on a national or regional securities exchange or market system, the Fair Market Value of a share of Stock shall be the closing price of a share of Stock (or the mean of the closing bid and asked prices of a share of Stock if the Stock is so quoted instead) as quoted on the Nasdaq National Market, The Nasdaq SmallCap Market or such other national or regional securities exchange or market system constituting the primary market for the Stock, as reported in The Wall Street Journal or such other source as the Company deems reliable. If the relevant date does not fall on a day on which2
the Stock has traded on such securities exchange or market system, the date on which the Fair Market Value shall be established shall be the last day on which the Stock was so traded prior to the relevant date, or such other appropriate day as shall be determined by the Committee, in its discretion.(ii) If, on such date, the Stock is not listed on a national or regional securities exchange or market system, the Fair Market Value of a share of Stock shall be as determined by the Committee in good faith without regard to any restriction other than a restriction which, by its terms, will never lapse.(m) “ Insider ” means an Officer, a member of the Board or any other person whose transactions in Stock are subject to Section 16 of the Exchange Act.(n) “ Macromedia Plans ” means the equity incentive plans of Macromedia, Inc described in Section 4.1 of the Plan.(o) “ Nonstatutory Stock Option ” means an Option not intended to be (as set forth in the Award Agreement) an incentive stock option within the meaning of Section 422(b) of the Code.(p) “ Officer ” means any person designated by the Board as an officer of the Company.(q) “ Option ” means the right to purchase Stock at a stated price for a specified period of time granted to a participant pursuant to Section 6 of the Plan. All Options shall be Nonstatutory Stock Options.(r) “ Outstanding Award ” means an award outstanding immediately prior to the Effective Date under the Macromedia Plans.(s) “ Parent Corporation ” means any present or future “parent corporation” of the Company, as defined in Section 424(e) of the Code.(t) “ Participant ” means any eligible person who has been granted one or more Awards.(u) “ Participating Company ” means the Company or any Parent Corporation, Subsidiary Corporation or Affiliate.(v) “ Participating Company Group ” means, at any point in time, all corporations collectively which are then Participating Companies.(w) “ Performance Award ” means an Award of Performance Shares or Performance Units.(x) “ Performance Award Formula ” means, for any Performance Award, a formula or table established by the Committee pursuant to Section 9.3 of the Plan which provides the basis for computing the value of a Performance Award at one or more3
threshold levels of attainment of the applicable Performance Goal(s) measured as of the end of the applicable Performance Period.(y) “ Performance Goal ” means a performance goal established by the Committee pursuant to Section 9.3 of the Plan.(z) “ Performance Period ” means a period established by the Committee pursuant to Section 9.3 of the Plan at the end of which one or more Performance Goals are to be measured.(aa) “ Performance Share ” means a bookkeeping entry representing a right granted to a Participant pursuant to Section 9 of the Plan to receive a payment equal to the value of a Performance Share, as determined by the Committee, based on performance.(bb) “ Performance Unit ” means a bookkeeping entry representing a right granted to a Participant pursuant to Section 9 of the Plan to receive a payment equal to the value of a Performance Unit, as determined by the Committee, based upon performance.(cc) “Reserve A” means the shares of Stock described in Section 4.1 of the Plan as being allocated to such reserve.(dd) “Reserve B” means the shares of Stock described in Section 4.1 of the Plan as being allocated to such reserve.(ee) “ Restriction Period ” means the period established in accordance with Section 8.5 of the Plan during which shares subject to a Stock Award are subject to Vesting Conditions.(ff) “ Rule 16b-3 ” means Rule 16b-3 under the Exchange Act, as amended from time to time, or any successor rule or regulation.(gg) “ SAR ” or “ Stock Appreciation Right ” means a bookkeeping entry representing, for each share of Stock subject to such SAR, a right granted to a Participant pursuant to Section 7 of the Plan to receive payment of an amount equal to the excess, if any, of the Fair Market Value of a share of Stock on the date of exercise of the SAR over the exercise price.(hh) “ Section 162(m) ” means Section 162(m) of the Code.(ii) “ Securities Act ” means the Securities Act of 1933, as amended.(jj) “ Service ” means a Participant’s employment with the Participating Company Group as an Employee. Unless otherwise determined by the Board, a Participant’s Service shall be deemed to have terminated if the Participant ceases to render service to the Participating Company Group as an Employee. However, a 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 as an Employee, provided that there is no interruption or termination of the Participant’s Service. Furthermore, a Participant’s Service4
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 the Participant’s Award 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 Company, in its discretion, shall determine whether the Participant’s Service has terminated and the effective date of such termination.(kk) “ Stock ” means the common stock of the Company, as adjusted from time to time in accordance with Section 4.2 of the Plan.(ll) “ Stock Award ” means an Award of a Stock Bonus or a Stock Purchase Right.(mm) “ Stock Bonus ” means Stock granted to a Participant pursuant to Section 8 of the Plan.(nn) “ Stock Purchase Right ” means a right to purchase Stock granted to a Participant pursuant to Section 8 of the Plan.(oo) “ Subsidiary Corporation ” means any present or future “subsidiary corporation” of the Company, as defined in Section 424(f) of the Code.(pp) “ Vesting Conditions ” mean those conditions established in accordance with Section 8.5 of the Plan prior to the satisfaction of which shares subject to a Stock Award remain subject to forfeiture or a repurchase option in favor of the Company.2.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of the Plan. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.3. ADMINISTRATION .3.1 Administration by the Committee. The Plan shall be administered by the Committee. All questions of interpretation of the Plan or of any Award shall be determined by the Committee, and such determinations shall be final and binding upon all persons having an interest in the Plan or such Award.3.2 Authority of Officers. Any Officer shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, determination or election which is the responsibility of or which is allocated to the Company herein, provided the Officer has apparent authority with respect to such matter, right, obligation, determination or election.5
The Board may, in its discretion, delegate to a committee comprised of one or more Officers the authority to grant one or more Options, without further approval of the Board or the Committee, to any Employee, other than a person who, at the time of such grant, is an Insider; provided, however , that (i) such Awards shall not be granted for shares in excess of the maximum aggregate number of shares of Stock authorized for issuance pursuant to Section 4.1, (ii) the exercise price per share of each Option shall be not less than the Fair Market Value per share of the Stock on the effective date of grant (or, if the Stock has not traded on such date, on the last day preceding the effective date of grant on which the Stock was traded), and (iii) each such Award shall be subject to the terms and conditions of the appropriate standard form of Award Agreement approved by the Board or the Committee and shall conform to the provisions of the Plan and such other guidelines as shall be established from time to time by the Board or the Committee.3.3 Administration with Respect to Insiders. With respect to participation by Insiders in the Plan, at any time that any class of equity security of the Company is registered pursuant to Section 12 of the Exchange Act, the Plan shall be administered in compliance with the requirements, if any, of Rule 16b-3.3.4 Powers of the Committee . In addition to any other powers set forth in the Plan and subject to the provisions of the Plan, the Committee shall have the full and final power and authority, in its discretion:(a) to determine the persons to whom, and the time or times at which, Awards shall be granted and the number of shares of Stock or units to be subject to each Award;(b) to determine the type of Award granted;(c) to determine the Fair Market Value of shares of Stock or other property;(d) to determine the terms, conditions and restrictions applicable to each Award (which need not be identical) and any shares acquired pursuant thereto, including, without limitation, (i) the exercise or purchase price of shares purchased pursuant to any Award, (ii) the method of payment for shares purchased pursuant to any Award, (iii) the method for satisfaction of any tax withholding obligation arising in connection with Award, including by the withholding or delivery of shares of Stock, (iv) the timing, terms and conditions of the exercisability or vesting of any Award or any shares acquired pursuant thereto, (v) the Performance Award Formula and Performance Goals applicable to any Award and the extent to which such Performance Goals have been attained, (vi) the time of the expiration of any Award, (vii) the effect of the Participant’s termination of Service on any of the foregoing, and (viii) all other terms, conditions and restrictions applicable to any Award or shares acquired pursuant thereto not inconsistent with the terms of the Plan;(e) to determine whether an Award of SARs, Performance Shares or Performance Units will be settled in shares of Stock, cash, or in any combination thereof;(f) to approve one or more forms of Award Agreement;
6
(g) to amend, modify, extend, cancel or renew any Award or to waive any restrictions or conditions applicable to any Award or any shares acquired pursuant thereto;(h) to accelerate, continue, extend or defer the exercisability or vesting of any Award or any shares acquired pursuant thereto, including with respect to the period following a Participant’s termination of Service;(i) to prescribe, amend or rescind rules, guidelines and policies relating to the plan, or to adopt sub-plans or supplements to, or alternative versions of, the Plan, including, without limitation, as the Committee deems necessary or desirable to comply with the laws of or to accommodate the laws, regulations, tax or accounting effectiveness, accounting principles or custom of, foreign jurisdictions whose citizens may be granted Awards; and(j) to correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award Agreement and to make all other determinations and take such other actions with respect to the Plan or any Award as the Committee may deem advisable to the extent not inconsistent with the provisions of the Plan or applicable law.3.5 Option Repricing. Without the affirmative vote of holders of a majority of the shares of Stock cast in person or by proxy at a meeting of the stockholders of the Company at which a quorum representing a majority of all outstanding shares of Stock is present or represented by proxy, the Board shall not approve a program providing for either (a) the cancellation of outstanding Options and the grant in substitution therefore of new Options having a lower exercise price or (b) the amendment of outstanding Options to reduce the exercise price thereof. This paragraph shall not be construed to apply to “issuing or assuming a stock option in a transaction to which section 424(a) applies,” within the meaning of Section 424 of the Code.3.6 Indemnification. In addition to such other rights of indemnification as they may have as members of the Board or the Committee or as officers or employees of the Participating Company Group, members of the Board or the Committee and any officers or employees of the Participating Company Group to whom authority to act for the Board, the Committee or the Company is delegated shall be indemnified by the Company against all reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan, or any right granted hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such person is liable for gross negligence, bad faith or intentional misconduct in duties; provided, however , that within sixty (60) days after the institution of such action, suit or proceeding, such person shall offer to the Company, in writing, the opportunity at its own expense to handle and defend the same.
7
4. SHARES SUBJECT TO PLAN .4.1 Maximum Number of Shares Issuable. The Plan shall have two separate share reserves (“Reserve A” and “Reserve B”) reflecting the unused share reserves and potential reversions to such reserves, as of the Effective Date, with respect to the following equity incentive plans that were maintained by Macromedia, Inc. prior to the Effective Date:Reserve A: Andromedia, Inc. 1999 Stock Plan
Reserve B: Macromedia, Inc. 2002 Equity Incentive Plan; Allaire Corp. 1997 Stock Incentive Plan; Allaire Corporation 1998 Stock Incentive Plan; Allaire Corporation 2000 Stock Incentive Plan
Accordingly, as of the Effective Date, Reserve A consists of 190,678 shares of Stock, of which there are Outstanding Awards covering 186,279 shares of Stock and 4,399 shares of Stock remaining available for Awards; and Reserve B consists of 8,648,196 shares of Stock, of which there are Outstanding Awards covering 8,382,090 shares of Stock and 266,106 shares of Stock remaining available for Awards. Outstanding Awards shall continue to be governed by and administered under the terms of the Macromedia Plans pursuant to which they originally were granted, but in the event of their forfeiture or expiration unexercised, the shares of Stock associated with such forfeited or expired Outstanding Awards shall become available for award pursuant to the terms of this Plan from Reserve A or Reserve B, as applicable. Reserve A and Reserve B shall both be subject to adjustment as provided in Section 4.2 of the Plan. Such shares shall consist of authorized but unissued or reacquired shares of Stock or any combination thereof. If an Award for any reason expires or is terminated or canceled without having been exercised or settled in full, or if shares of Stock acquired pursuant to an Award subject to forfeiture or repurchase are forfeited or repurchased by the Company at the Participant’s purchase price to effect a forfeiture of unvested shares upon termination of Service, the shares of Stock allocable to the terminated portion of such Award or such forfeited or repurchased shares of Stock shall again be available for issuance under the Plan from Reserve A or Reserve B, as applicable. Shares of Stock shall not be deemed to have been issued pursuant to the Plan with respect to any portion of an Award (other than an SAR that may be settled in shares of Stock or cash) that is settled in cash. Shares withheld in satisfaction of tax withholding obligations pursuant to Section 13.2 shall not again become available for issuance under the Plan. Upon payment in shares of Stock pursuant to the exercise of an SAR, the number of shares available for issuance under the Plan shall be reduced by the gross number of shares for which the SAR is exercised. If the exercise price of an Option is paid by tender to the Company, or attestation to the ownership, of shares of Stock owned by the Participant, the number of shares available for issuance under the Plan shall be reduced by the gross number of shares for which the Option is exercised.
4.2 Adjustments for Changes in Capital Structure . In the event of any change in the Stock through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the stockholders of the Company in a form other than Stock (excepting normal cash dividends) that has a material effect8
on the Fair Market Value of shares of Stock, appropriate adjustments shall be made in the number and class of shares subject to the Plan, in the Award limits set forth in Section 5.3 and in the number of shares of Stock subject to, and the exercise or purchase price per share under, any Award then outstanding under this Plan. Notwithstanding the foregoing, any fractional share resulting from an adjustment pursuant to this Section 4.2 shall be rounded down to the nearest whole number, and in no event may the exercise or purchase price under any Award be decreased to an amount less than the par value, if any, of the stock subject to such Award. The adjustments determined by the Committee pursuant to this Section 4.2 shall be final, binding and conclusive.5. ELIGIBILITY AND AWARD LIMITATIONS .5.1 Persons Eligible for Awards. Awards may be granted only to Employees who were not employed by or providing service to any Participating Company (other than Macromedia, Inc. and its Affiliates and Subsidiaries) prior to the Effective Date. For purposes of the foregoing sentence, “Employees” shall include prospective Employees to whom Awards are granted in connection with written offers of an employment with the Participating Company Group; provided, however , that no Stock subject to any such Award shall vest, become exercisable or be issued prior to the date on which such person commences Service.5.2 Participation. Awards are granted solely at the discretion of the Committee. Eligible persons may be granted more than one (1) Award. However, eligibility in accordance with this Section shall not entitle any person to be granted an Award, or, having been granted an Award, to be granted an additional Award.5.3 Award Limits. Subject to adjustment as provided in Section 4.2, in no event shall more than one hundred thousand (100,000) shares of Stock in the aggregate be issued under the Plan pursuant to the exercise or settlement of Stock Awards and Performance Awards.6. TERMS AND CONDITIONS OF OPTIONS .Options shall be evidenced by Award Agreements specifying the number of shares of Stock covered thereby, in such form as the Committee shall from time to time establish. No Option or purported Option shall be a valid and binding obligation of the Company unless evidenced by a fully exec | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
SITE SEARCH
AGREEMENTS / CONTRACTS
CLAUSES
| Get Email Updates |
