Exhibit 10.3
ADOBE SYSTEMS INCORPORATED
1994 PERFORMANCE AND RESTRICTED STOCK PLAN
RESTRICTED STOCK AWARD GRANT AGREEMENT
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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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 Escrow 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 Escrow 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 Escrow Agent and the Participant
here
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