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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
___________ ___, 2009 (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:
1. 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.
2. Vesting
and Reacquisition Right.
(a) Vesting.
(i) Vesting Schedule. The Award shall be subject to vesting in
accordance with the Vesting Schedule set forth on Exhibit A
hereto, except as otherwise set forth herein. Shares of
Stock that have vested in accordance with the Vesting Schedule, or
as otherwise set forth herein, are “Vested
Shares.” Shares of Stock that have not vested are
“Unvested Shares.” Vesting is subject to the
Participant’s continued Service.
(ii) Acceleration Upon Death or Disability. If the
Participant’s service with the Company terminates because of
his or her death or Disability, then he or she will be given credit
for an additional twelve (12) months of continuous service;
provided, however, that in no event shall such applicable vesting
exceed 100% vesting of the Award. For purposes of this provision,
(i) the Participant’s service shall be deemed to have
terminated on account of death if his or her death occurs within
three (3) months after the Participant’s termination of
service, and (ii) “Disability” shall mean the
Participant’s permanent and total disability within the
meaning of Section 22(e)(3) of the Code, and any applicable
regulations promulgated thereunder to the extent not inconsistent
with the regulations under Section 409A of the Code.
(b) 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.
3. Definitions. As
used in this Agreement, the following terms shall have the meanings
indicated unless the context requires a different meaning.
(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.
(d) 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.
(e) Participating
Company Group. “Participating Company Group”
shall mean at any point in time all corporations collectively which
are then a Participating Company.
(f) 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) 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.
4. 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.
5. 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.
6. 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:
(a) 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.
(b) 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.
(c) 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.
(d) 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) 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.
(f) 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.
(g) 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.
(h) 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 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.
(i) 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.
(j) Escrow
Agent shall not be liable in any respect on account of the
identity, authority, or rights of the parties executing or
deliverin
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