Exhibit 10.2
ADOBE SYSTEMS
INCORPORATED
AMENDED 1994 PERFORMANCE AND
RESTRICTED STOCK PLAN
1.
Establishment and
Purpose .
(a)
Establishment
. The Adobe Systems
Incorporated 1989 Restricted Stock Plan was initially adopted on
February 9, 1989 (the “Initial Plan”
). The Initial Plan was amended and restated in its entirety
as the “1994 Performance and Restricted Stock Plan”
(the “Plan” ) effective as of August 31,
1994, the date it was approved by the stockholders of the
Company. This amendment is effective as of the date it is
approved by the Board of Directors of the Company (the
“Board” ).
(b)
Purpose . The purpose of the Plan is to attract,
retain and reward key employees of Adobe Systems Incorporated and
any successor corporation thereto (collectively referred to as the
“Company” ), and any present or future parent
and/or subsidiary corporations of the Company (all of whom along
with the Company being individually referred to as a
“Participating Company” and collectively
referred to as the “Participating Company Group”
), and to motivate such persons to contribute to the financial
success and progress of the Participating Company Group. For
purposes of the Plan, a parent corporation and a subsidiary
corporation shall be as defined in sections 424(e) and
424(f) of the Internal Revenue Code of 1986, as amended (the
“Code” ).
2.
Administration
.
(a)
Administration by
Committee . The
Plan shall be administered by one or more duly appointed committees
(individually, a “Committee” ) of the Board;
provided, however, that with respect to the participation of
individuals who are subject to the provisions of Section 16 of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act” ), or who are divisional officers
of the Participating Company Group, the Plan shall be administered
by a Committee consisting of not less than two directors each of
whom is both (i) a “Non-Employee Director “ within
the meaning of Rule 16b-3 under the Exchange Act or any
successor rule ( “Rule 16b-3” ) and
(ii) an “outside director” for purposes of
Section 162(m) of the Code and the regulations promulgated
thereunder. The Committee shall have all of the powers vested
in it by the terms of the Plan, subject to the limitations
described herein, including the full and final authority in its
sole discretion to:
(i)
select the eligible persons to whom
(a “Participant” ), and the time at which,
awards shall be granted under the Plan;
(ii)
determine type of award granted and
the number of shares of stock, units or other consideration subject
to awards (which need not be identical);
(iii)
determine the terms and conditions
of each award granted, including, without limitation, the terms of
vesting, if any, the effect of a Participant’s termination of
employment with the Participating Company Group, the method for
satisfaction of any tax
withholding obligation arising in
connection with any award, and all other terms and conditions of
the award not inconsistent with the terms of the Plan;
(iv)
determine the performance goals and
other conditions, if any, for the settlement of any award and
whether such goals and conditions have been satisfied;
(v)
determine whether an award shall be
paid in cash, in shares of stock or in any combination
thereof;
(vi)
determine whether payment of an
award should be reduced or eliminated;
(vii)
modify or amend any award, or waive
any restrictions or conditions applicable to any award;
(viii)
accelerate, continue, extend or
defer the payment or vesting of any award, including with respect
to the period following a Participant’s termination of
employment with the Participating Company Group;
(ix)
determine the fair market value of
the common stock of the Company;
(x)
authorize any person to execute on
behalf of the Company any instrument required to effectuate the
grant of an award;
(xi)
prescribe, amend or rescind rules,
regulations and policies relating to the Plan;
(xii)
approve one or more forms of
agreement for use under the Plan;
(xiii)
construe and interpret the Plan and
any agreement used under the Plan and define the terms employed
herein and therein;
(xiv)
make all other determinations and
take such other action with respect to the Plan and any award
granted hereunder as the Committee may deem advisable, to the
extent permitted by applicable law.
All decisions, determinations and
interpretations of the Committee shall be final and binding upon
all persons having an interest in the Plan or any award granted
under the Plan.
(b)
Authority of Officers
. Any officer of a
Participating Company 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.
3.
Eligibility
. Key employees of the
Participating Company Group are eligible to participate in the
Plan. The Committee shall, in the Committee’s sole
discretion, determine which individuals shall be granted awards
under the Plan.
4.
Shares Subject to Plan
. Shares issued pursuant to
the Plan shall be authorized but unissued shares of the common
stock of the Company (the “Stock” ).
Subject to adjustment as provided in Section 5, the maximum
number of shares of Stock that may be issued under the Plan is
16,000,000 (reflecting Stock splits on October 26, 1999,
October 24, 2000 and May 23, 2005). In the event
that any award granted under the Plan denominated in shares for any
reason expires or is canceled, terminated or paid in cash, or
shares of Stock subject to forfeiture are forfeited to the Company,
the shares allocable to such award or such forfeited shares shall
again be available for issuance under the Plan.
Notwithstanding the foregoing, any such shares shall be made
subject to a new award only if the grant of such new award and the
issuance of such shares pursuant to such new award would not cause
the Plan or any award granted under the Plan to contravene
Rule 16b-3.
5.
Adjustments for Changes in
Capital Structure .
Appropriate adjustments shall be made in the number and class of
shares of Stock subject to the Plan, in the maximum number of
shares set forth in Section 7(f), and to any awards
outstanding under the Plan, other than Performance Units (as
defined below), in the event of a stock dividend, stock split,
reverse stock split, recapitalization, combination,
reclassification or like change in the capital structure of the
Company. In the event a majority of the shares which are of
the same class as the shares that are subject to outstanding awards
under the Plan are exchanged for, converted into, or otherwise
become shares of another corporation (the “New
Shares” ), the Company may unilaterally amend outstanding
awards to provide that such awards may be settled in New
Shares. In the event of any such amendment, the number of
shares shall be adjusted in a fair and equitable manner. Any
and all new, substituted or additional shares or Performance Shares
(as defined below) received by a Participant pursuant to this
Section 5 will be subject to the applicable restrictions set
forth in the agreement evidencing an award as if such shares or
Performance Shares were part of the original award.
6.
Term of Plan
. The Plan shall continue in
effect until terminated by the Board or Committee or until 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 such awards have
lapsed.
7.
Performance Awards
.
(a)
Types of Performance
Awards . The
Committee may from time to time grant awards under this
Section 7 ( “Performance Awards” ) which
are Performance-Based Restricted Stock, Performance Shares, or
Performance Units. Performance Awards shall be evidenced by
written agreements, in such form as the Committee shall from time
to time establish (each an “Award Agreement” ),
specifying the number of shares of Stock or the dollar amount
covered thereby, the performance goals established by the
Committee, the period in which such goals are to be met and the
other terms, conditions and restrictions of the award, which Award
Agreements may incorporate all or any of the terms of the Plan by
reference. The
Committee shall not require a
Participant to make any monetary payment (other than applicable tax
withholding) as a condition of receiving a Performance
Award.
(i)
“Performance-Based
Restricted Stock” shall mean shares of Stock awarded to a
Participant which, in accordance with rules established by the
Committee prior to the grant of such award, are subject to
forfeiture in full or in part or with respect to which additional
shares of Stock may be granted on the basis of the degree of
attainment of Performance Goals (as defined below) within a
Performance Period (as defined below). Shares of
Performance-Based Restricted Stock shall be evidenced in such
manner as the Committee may deem appropriate, including by
book-entry registration or issuance of one or more stock
certificates. Any certificate issued in respect of shares of
Performance-Based Restricted Stock shall be registered in the name
of the Participant and shall bear an appropriate legend referring
to the terms, conditions, and restrictions applicable to such
award. The Committee may require that such certificates be
held in the custody of the Company or other escrow agent until the
restrictions thereon lapse.
(ii)
“Performance
Shares” shall mean
bookkeeping units, denominated in shares of Stock, awarded to a
Participant which, in accordance with rules established by the
Committee prior to the grant of such award, are subject to
forfeiture in full or in part or with respect to which additional
shares of Stock may be granted on the basis of the degree of
attainment of Performance Goals (as defined below) within a
Performance Period (as defined below).
(iii)
“Performance
Units” shall mean
bookkeeping units, denominated in dollar amounts, awarded to a
Participant which, in accordance with rules established by the
Committee prior to the grant of such award, are subject to
forfeiture in full or in part or with respect to which additional
such units may be granted on the basis of the degree of attainment
of Performance Goals (as defined below) within a Performance Period
(as defined below).
(b)
Performance Goals and Performance
Period . Unless
otherwise permitted in compliance with the requirements of
Section 162(m) of the Code with respect to
“performance-based compensation,” the Committee shall
establish with respect to one or more of the Performance Factors
set forth below the target levels of attainment of such Performance
Factors (collectively, “Performance Goals” )
which, when measured at the end of the Performance Period (as
defined below), in accordance with the Performance Award Formula
(as defined below), shall de
