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Exhibit 10.60
ADOBE SYSTEMS INCORPORATED
NONSTATUTORY STOCK OPTION AGREEMENT
(DIRECTOR)
THIS
NONSTATUTORY STOCK OPTION AGREEMENT (the “
Option
Agreement ” ) is made
and entered into as of the Date of Option Grant by and between
Adobe Systems Incorporated and
%%FIRST_NAME%-%
%%LAST_NAME%-% (the
“
Participant
”
). The Company has granted to the Participant
pursuant to the Adobe Systems Incorporated 2003 Equity
Incentive Plan (the “
Plan
” ) an
option to purchase certain shares of Stock (the “
Option
”), upon the terms and conditions set forth in this
Option Agreement.
1.
Definitions and Construction .
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1.1
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Definitions .
Whenever used herein, the following terms shall have
their respective meanings set forth below:
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(a)
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“ Date of
Option Grant ” means
%%OPTION_DATE,’Month DD, YYYY’%-%.
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(b)
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“ Number of
Option Shares ” means
%%TOTAL_SHARES_GRANTED%-% shares of Stock, as adjusted from time to
time pursuant to Section 10.
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(c)
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“ Exercise
Price ” means
$%%OPTION_PRICE%-% per share of Stock, as adjusted from time
to time pursuant to Section 10.
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(d)
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“ Initial
Vesting Date ” means the day
immediately preceding the day of the first annual meeting of the
stockholders of the Company (each such meeting, an “
Annual
Meeting ”) following the Date of Option
Grant.
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(e)
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“ Vested
Shares ” means, on any
relevant date, that portion (disregarding any fractional share) of
the Number of Option Shares determined by multiplying the Number of
Option Shares by the “ Vested
Percentage ” determined as
of such date as follows:
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Vested
Percentage
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Prior
to Initial Vesting Date
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— |
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On
Initial Vesting Date, provided the Participant’s Service
has not terminated prior to such date.
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25 |
% |
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Plus:
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On
each subsequent anniversary of the Initial Vesting Date, until
the Vested Percentage equals 100%, provided the
Particpant’s Service has not terminated prior to such
date.
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25 |
% |
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(f)
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“ 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
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assigned
such term for the purposes of registration in the United
States (“U.S.”) on Form S-8 under the Securities
Act.
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(g)
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“ Board
”
means the Board of Directors of the Company.
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(h)
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“ Code
”
means the U.S. Internal Revenue Code of 1986, as amended, and any
applicable regulations promulgated thereunder.
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(i)
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“ Committee
”
means the Executive Compensation Committee or other committee of
the Board duly appointed to administer the Plan in respect of
Directors 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.
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(j)
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“ Company
”
means Adobe Systems Incorporated, a Delaware corporation, or any
successor corporation thereto.
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(k)
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“ Disability
”
means the permanent and total disability of the Participant within
the meaning of Section 22(e)(3) of the Code.
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(l)
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“ Exchange
Act ” means the U.S.
Securities Exchange Act of 1934, as amended.
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(m)
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“ 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:
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(i)
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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 Global
Select 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 on www.Nasdaq.com or such
other source as the Company deems reliable. If the
relevant date does not fall on a day on which 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.
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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.
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(n)
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“Officer” means any person designated by the
Board as an officer of the Company.
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(o)
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“ Option
Expiration Date ” means the date
ten (10) years after the Date of Option Grant.
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(p)
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“ Parent
Corporation ” means any
present or future “parent corporation” of the Company,
as defined in Section 424(e) of the Code.
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(q)
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“ Participating
Company ” means the
Company or any Parent Corporation, Subsidiary Corporation or
Affiliate.
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(r)
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“ Participating
Company Group ” means, at any
point in time, all corporations collectively which are then
Participating Companies.
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(s)
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“ Securities
Act ” means the U.S.
Securities Act of 1933, as amended.
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(t)
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“ Service
”
means the Participant’s service with the Participating
Company Group as a Director. The Participant’s
Service shall be deemed to have terminated if the Participant
ceases to render Service to the Participating Company Group in such
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 Service in
such initial capacity, provided that there is no interruption or
termination of the Participant’s
Service. Furthermore, the Participant’s Service
with the Participating Company Group 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 with the Participating Company Group 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
Option Agreement. The 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.
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(u)
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“ Stock
”
means the common stock of the Company, as adjusted from time to
time in accordance with Section 10.
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(v)
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“ Subsidiary
Corporation ” means any
present or future “subsidiary corporation” of the
Company, as defined in Section 424(f) of the
Code.
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1.2
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Construction .
Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation
of any provision of this Option Agreement. 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.
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2.
Tax Status of Option .
This
Option is intended to be a nonstatutory stock option and shall
not be treated as an incentive stock option within the meaning
of Section 422(b) of the Code.
3.
Administration
.
All
questions of interpretation concerning this Option Agreement
shall be determined by the Committee. All
determinations by the Committee shall be final and binding
upon all persons having an interest in the
Option. Any Officer shall have the authority to act
on behalf of the Company with respect to any matter, right,
obligation, 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, or election.
4.
Exercise of the Option .
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4.1
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Right to Exercise .
Except as otherwise provided herein, the Option shall
be exercisable on and after the Initial Vesting Date and prior to
the termination of the Option (as provided in Section 7) in an
amount not to exceed the number of Vested Shares less the number of
shares previously acquired upon exercise of the
Option. In no event shall the Option be exercisable for
more shares than the Number of Option Shares.
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4.2
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Method of Exercise .
Exercise of the Option shall be by means of electronic
notice in a form authorized by the Company, which shall be
digitally signed or authenticated by the Participant in such manner
as required by the notice and transmitted to the Equity
Compensation Department of the Company or other authorized
representative of the Company (including a third-party
administrator designated by the Company). In the event
that the Participant is not authorized or is unable to provide
electronic notice of exercise, the Option shall be exercised by
written notice to the Company, which shall be signed by the
Participant and delivered in person, by certified or registered
mail, return receipt requested, by confirmed facsimile
transmission, or by such other means as the Company may permit, to
the Equity Compensation Department of the Company, or other
authorized representative of the Company (including a third-party
administrator designated by the Company). Each such
notice, whether electronic or written, must state the
Participant’s election to exercise the Option, the number of
whole shares of Stock for which the Option is being exercised and
such other representations and agreements as to the
Participant’s investment intent with respect to such shares
as may be required pursuant to the provisions of this Option
Agreement. Further, each such notice must be received by
the Company prior to the termination of the Option as set forth in
Section 7 and must be accompanied by full payment of the
aggregate Exercise Price for the number of shares of Stock being
purchased. The Option shall be deemed to be exercised
upon receipt by the Company of such electronic or written notice
and the aggregate Exercise Price.
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4.3
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Payment of Exercise Price.
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(a)
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Forms of Consideration Authorized. Except as
otherwise provided below, payment of the aggregate Exercise Price
for the number of shares of Stock for which the Option is being
exercised shall be made (i) in cash, by check or by cash equivalent
or (ii) by means of a Cashless Exercise, as defined in
Section 4.3(b).
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(b)
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Cashless Exercise. A “ Cashless
Exercise ” means the
delivery of a properly executed notice of exercise together with
irrevocable instructions to a broker in a form acceptable to the
Company providing for the assignment to the Company of the proceeds
of a sale or loan with respect to some or all of the shares being
acquired upon the exercise of the Option pursuant to a program or
procedure approved by the Company (including, without limitation,
through an exercise complying with the provisions of
Regulation T as promulgated from time to time by the Board of
Governors of the Federal Reserve System). The Company
reserves, at any and all times, the right, in the Company’s
sole and absolute
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discretion,
to establish, decline to approve or terminate any such program
or procedure, including with respect to the Participant
notwithstanding that such program or procedures may be
available to others.
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4.4
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Tax Withholding .
Regardless of any action taken by the Participating
Company Group with respect to any or all income tax, social
insurance, payroll tax, 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 Participating
Company Group (i) makes no representations or undertakings
regarding the treatment of any Tax-Related Items in connection with
any aspect of the Option, including the grant, vesting or exercise
of the Option, the subsequent sale of shares acquired pursuant to
such exercise, or the receipt of any dividends and (ii) does not
commit to structure the terms of the grant or any other aspect of
the Option to reduce or eliminate the Participant’s liability
for Tax-Related Items. At the time of exercise of the
Option, the Participant shall pay or make adequate arrangements
satisfactory to the Participating Company Group to satisfy all
withholding obligations of the Participating Company
Group. In this regard, at the time the Option is
exercised, in whole or in part, or at any other time as reasonably
requested by the Company, the Participant hereby authorizes
withholding of all applicable Tax-Related Items from payroll and
any other amounts payable to the Participant, and otherwise agrees
to make adequate provision for withholding of all applicable Tax
Related Items by the Participating Company Group, if any, which
arise in connection with the Option. Alternatively, or
in addition, if permissible under applicable law, the Participating
Company Group may (i) sell or arrange for the sale of shares
acquired by the Participant to meet the withholding obligation of
Tax-Related Items and/or (ii) withhold in shares, provided that
only the amount of shares necessary to satisfy the minimum
withholding amount are withheld. Finally, the
Participant shall pay to the Participating Company Group any amount
of the Tax-Related Items that 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 Company shall have no
obligation to process
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