0001104659-12-025275.txt : 20120413 0001104659-12-025275.hdr.sgml : 20120413 20120413162246 ACCESSION NUMBER: 0001104659-12-025275 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20120413 DATE AS OF CHANGE: 20120413 EFFECTIVENESS DATE: 20120413 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ADOBE SYSTEMS INC CENTRAL INDEX KEY: 0000796343 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 770019522 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-180730 FILM NUMBER: 12758928 BUSINESS ADDRESS: STREET 1: 345 PARK AVE CITY: SAN JOSE STATE: CA ZIP: 95110-2704 BUSINESS PHONE: 4085366000 MAIL ADDRESS: STREET 1: 345 PARK AVENUE CITY: SAN JOSE STATE: CA ZIP: 95110-2704 S-8 1 a12-9470_1s8.htm S-8

 

As filed with the Securities and Exchange Commission on April 13, 2012

 

 

Registration No. 333-    

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM S-8

 

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 


 

ADOBE SYSTEMS INCORPORATED

(Exact name of registrant as specified in its charter)

 

Delaware

 

77-0019522

(State or other jurisdiction of incorporation or
organization)

 

(I.R.S. Employer Identification No.)

 


 

345 Park Avenue
San Jose, California  95110
(408) 536-6000
(Address, including zip code, and telephone number, including area code, of principal executive offices)

 


 

Adobe Systems Incorporated 2003 Equity Incentive Plan, as amended and restated

 

Adobe Systems Incorporated 2005 Equity Incentive Assumption Plan, as amended

(Full title of the plan)

 


 

Mark Garrett
Executive Vice President and Chief Financial Officer
Adobe Systems Incorporated
345 Park Avenue
San Jose, California  95110
(408) 536-6000
(Name, address and telephone number, including area code, of agent for service)

 


 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer x

 

Accelerated filer o

Non-accelerated filer o   (Do not check if a smaller reporting company)

 

Smaller reporting company o

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities
to be Registered

 

Amount to be
Registered
(1)

 

Proposed Maximum
Offering
Price per Share
(2)

 

Proposed Maximum
Aggregate
Offering Price
(2)

 

Amount of
Registration
Fee

 

Common Stock par value $.0001 per share

 

12,723,868

 

$

32.865

 

$

418,169,921.82

 

$

47,922.28

 

 


(1)                  Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock which become issuable under the Adobe Systems Incorporated 2003 Equity Incentive Plan, as amended and restated (the “2003 Plan”) and the Adobe Systems Incorporated 2005 Equity Incentive Assumption Plan, as amended (the “2005 Plan”) by reason of any stock dividend, stock split, recapitalization or similar transaction effected without receipt of consideration by Adobe Systems Incorporated (the “Registrant”) which results in an increase in the number of outstanding shares of the Registrant’s common stock.

 

(2)                  Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) of the Securities Act. The offering price per share and aggregate offering price are calculated based upon the average of the high and low prices of the Registrant’s common stock on April 11, 2012, as reported on the Nasdaq Global Select Market.

 

The chart below details the calculation of the registration fee:

 

Securities

 

Number of
Shares

 

Offering Price Per
Share

 

Aggregate Offering
Price

 

Shares reserved for future grant under the 2003 Plan

 

12,390,000

 

$

32.865

 

$

407,197,350.00

 

Shares reserved for future grant under the 2005 Plan

 

333,868

 

$

32.865

 

$

10,972,571.82

 

Proposed Maximum Aggregate Offering Price

 

 

 

 

 

$

418,169,921.82

 

Registration Fee

 

 

 

 

 

$

47,922.28

 

 

 

 



 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents containing the information specified in Part I of Form S-8 will be sent or given to employees as specified by Securities and Exchange Commission (the “Commission”) Rule 428(b)(1).  Such documents need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.  These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

 



 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.    Incorporation of Documents by Reference

 

The following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:

 

(a)                                  The Registrant’s annual report on Form 10-K for its fiscal year ended December 2, 2011, filed with the Commission on January 26, 2012;

 

(b)                                 All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since the end of the fiscal year covered by the Registrant’s document referred to in (a) above; and

 

(c)                                  The description of the Registrant’s common stock contained in Registration Statement on Form 8-A, filed on November 19, 1986, under the Exchange Act including any amendment or report filed for the purpose of updating such description.

 

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement. For the purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.  Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4.    Description of Securities

 

Not applicable.

 

Item 5.    Interests of Named Experts and Counsel

 

Not applicable.

 

Item 6.    Indemnification of Directors and Officers

 

Section 145 of the Delaware General Corporation Law (the “DGCL”) provides that a Delaware corporation may indemnify directors, officers, employees and agents against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed action, suit or proceeding in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the corporation, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. The DGCL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders, or disinterested directors or otherwise.

 

II-1



 

Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation or an amendment thereto, to eliminate or limit the personal liability of a director to the corporation and its stockholders for monetary damages arising out of certain breaches of their fiduciary duty.

 

The Registrant’s Restated Certificate of Incorporation provides for the elimination of a director’s liability to the Registrant and its stockholders for monetary damages for breach of fiduciary duty, except for liability (i) for any breach of the director’s duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit and as otherwise limited by Section 102(b)(7) of the DGCL.

 

The Registrant’s Amended and Restated Bylaws (the “Bylaws”) generally provide that the Registrant shall indemnify each of its directors and executive officers to the fullest extent not prohibited by the DGCL and may indemnify certain other persons as set forth in the DGCL.

 

The Registrant also maintains officer and director insurance coverage against certain liabilities for actions taken in their capacities as such, including liabilities under the Securities Act.  In addition, each executive officer and director is a party to a written agreement which states that the Registrant agrees to hold each of them harmless against any and all judgments, fines, settlements and expenses related to claims against such person by reason of the fact that the person is or was a director, executive officer, employee or other agent of the Registrant, and otherwise to the fullest extent authorized or permitted by the Registrant’s Bylaws and under the non-exclusivity provisions of the DGCL.

 

Item 7.    Exemption from Registration Claimed

 

Not applicable.

 

Item 8.    Exhibits

 

See Index to Exhibits.

 

Item 9.    Undertakings

 

1.                                       The undersigned Registrant hereby undertakes:

 

(a)                                  To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)                                     To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii)                                  To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and

 

(iii)                               To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement.

 

Provided, however, that paragraphs (a)(i) and (a)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference into this Registration Statement.

 

II-2



 

(b)                                 That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c)                                  To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

2.                                       The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

3.                                       Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the indemnity provisions summarized in Item 6, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.  In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

II-3



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Jose, State of California, on April 13, 2012.

 

 

ADOBE SYSTEMS INCORPORATED

 

 

 

 

 

By:

/s/ Mark Garrett

 

 

Mark Garrett

 

 

Executive Vice President and Chief Financial Officer

 

II-4



 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Mark Garrett and Karen Cottle, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed on April 13, 2012, by the following persons in the capacities indicated.

 

Signature

 

Title

 

 

 

/s/ John E. Warnock

 

Chairman of the Board

John E. Warnock

 

 

 

 

 

/s/ Charles M. Geschke

 

Chairman of the Board

Charles M. Geschke

 

 

 

 

 

/s/ Shantanu Narayen

 

President and Chief Executive Officer and Director (Principal Executive Officer)

Shantanu Narayen

 

 

 

 

/s/ Mark Garrett

 

Executive Vice President and Chief Financial Officer (Principal Financial Officer)

Mark Garrett

 

 

 

 

/s/ Richard Rowley

 

Vice President and Corporate Controller (Principal Accounting Officer)

Richard Rowley

 

 

 

 

/s/ Edward W. Barnholt

 

Director

Edward W. Barnholt

 

 

 

 

 

/s/ Robert K. Burgess

 

Director

Robert K. Burgess

 

 

 

 

 

/s/ Michael R. Cannon

 

Director

Michael R. Cannon

 

 

 

 

 

/s/ James E. Daley

 

Director

James E. Daley

 

 

 

 

 

/s/ Daniel Rosensweig

 

Director

Daniel Rosensweig

 

 

 

 

 

/s/ Robert Sedgewick

 

Director

Robert Sedgewick

 

 

 

II-5



 

INDEX TO EXHIBITS

 

 

 

 

 

Incorporated by Reference

Exhibit
Number

 

Description

 

Form

 

Date of Report

 

Exhibit No.

 

Filed
Herewith

4.1

 

Restated Certificate of Incorporation of Adobe Systems Incorporated

 

8-K

 

04/26/11

 

3.3

 

 

4.2

 

Amended and Restated Bylaws

 

8-K

 

04/26/11

 

3.4

 

 

4.3

 

Specimen Common Stock Certificate

 

S-3

 

01/15/10

 

4.3

 

 

5.1

 

Opinion of Counsel

 

 

 

 

 

 

 

X

23.1

 

Consent of KPMG LLP, Independent Registered Public Accounting Firm

 

 

 

 

 

 

 

X

23.2

 

Consent of Counsel, contained within Exhibit 5.1

 

 

 

 

 

 

 

X

24.1

 

Power of Attorney is contained on the signature page of this Registration Statement

 

 

 

 

 

 

 

X

99.1

 

2003 Equity Incentive Plan, as Amended and Restated

 

8-K

 

04/13/12

 

10.1

 

 

99.2

 

Form of Stock Option Agreement used in connection with the 2003 Equity Incentive Plan

 

8-K

 

12/20/10

 

99.4

 

 

99.3

 

Form of Restricted Stock Unit Agreement used in connection with the 2003 Equity Incentive Plan

 

10-K

 

1/26/12

 

10.14

 

 

99.4

 

Form of Restricted Stock Agreement used in connection with the 2003 Equity Incentive Plan

 

10-Q

 

10/7/04

 

10.11

 

 

99.5

 

Adobe Systems Incorporated Form of Performance Share Program pursuant to the 2003 Equity Incentive Plan

 

8-K

 

1/26/11

 

10.2

 

 

99.6

 

Form of Award Grant Notice and Performance Share Award Agreement used in connection with grants under the Adobe Systems Incorporated 2008 Performance Share Program pursuant to the 2003 Equity Incentive Plan

 

8-K

 

1/30/08

 

10.2

 

 

99.7

 

2008 Award Calculation Methodology Exhibit A to the 2008 Performance Share Program pursuant to the 2003 Equity Incentive Plan

 

8-K

 

1/30/08

 

10.3

 

 

99.8

 

Form of Director Annual Grant Stock Option Agreement used in connection with the 2003 Equity Incentive Plan

 

8-K

 

12/20/10

 

99.8

 

 

99.9

 

Form of Director Initial Grant Restricted Stock Unit Agreement in connection with the 2003 Equity Incentive Plan

 

8-K

 

12/20/10

 

99.6

 

 

99.10

 

Form of Director Annual Grant Restricted Stock Unit Agreement in connection with the 2003 Equity Incentive Plan

 

8-K

 

12/20/10

 

99.7

 

 

99.11

 

Form of Performance Share Award Grant Notice and Performance Share Award Agreement pursuant to the 2003 Equity Incentive Plan

 

10-K

 

1/26/12

 

10.61

 

 

 

II-6



 

99.12

 

2010 Performance Share Program Award Calculation Methodology pursuant to the 2003 Equity Incentive Plan

 

8-K

 

1/29/10

 

10.3

 

 

99.13

 

Award Calculation Methodology to the 2011 Performance Share Program pursuant to the 2003 Equity Incentive Plan

 

8-K

 

1/28/11

 

10.3

 

 

99.14

 

Award Calculation Methodology to the 2012 Performance Share Program pursuant to the 2003 Equity Incentive Plan

 

8-K

 

1/26/12

 

10.3

 

 

99.15

 

2005 Equity Incentive Assumption Plan, as amended

 

10-Q

 

4/9/10

 

10.19

 

 

99.16

 

Form of Stock Option Agreement used in connection with the 2005 Equity Incentive Assumption Plan

 

8-K

 

12/20/10

 

99.10

 

 

99.17

 

Form of Restricted Stock Unit Award Agreement used in connection with the 2005 Equity Incentive Assumption Plan

 

10-K

 

1/26/12

 

10.66

 

 

 

II-7


EX-5.1 2 a12-9470_1ex5d1.htm EX-5.1

Exhibit 5.1

 

April 13, 2012

 

Adobe Systems Incorporated

345 Park Avenue

San Jose, CA  95110

 

Ladies and Gentlemen:

 

You have requested my opinion with respect to certain matters in connection with the filing by Adobe Systems Incorporated (the “Registrant”) of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) covering the offering of up to 12,723,868 shares of the Registrant’s common stock, $.0001 par value (the “Shares”), pursuant to the Registrant’s 2003 Equity Incentive Plan, as amended and restated (the “2003 Plan”) and its 2005 Equity Incentive Assumption Plan, as amended (the “2005 Plan”).

 

In connection with this opinion, I have examined such documents and such matters of fact and law as I have deemed necessary as a basis for this opinion.  I have assumed the genuineness and authenticity of all documents submitted to me as originals, the conformity to originals of all documents submitted to me as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof.

 

I am opining herein as to the effect on the subject transactions of only the General Corporation Law of the State of Delaware (“DGCL”), and I express no opinion with respect to the applicability thereto or the effect thereon of any other laws or as to any matters of municipal law or any other local agencies within any state.

 

Subject to the foregoing and in reliance thereon, it is my opinion that, upon the issuance and sale of the Shares in accordance with the terms of the 2003 Plan or the 2005 Plan and in the manner contemplated by the Registration Statement, and subject to the Registrant completing all actions and proceedings required on its part to be taken prior to the issuance of the Shares pursuant to the terms of the 2003 Plan or 2005 Plan and the Registration Statement, including, without limitation, receipt of legal consideration in excess of the par value of the Shares issued and, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers or when certificates representing the Shares have been signed by an authorized officer of the transfer agent and registrar therefor, the Shares will be validly issued, fully paid and nonassessable securities of the Registrant. In rendering the foregoing opinion, I have assumed that the Registrant will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.

 

I consent to the filing of this opinion as an exhibit to the Registration Statement.  In giving such consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission.

 

This opinion is solely for your benefit and may not be relied upon by any person without my prior written consent.

 

Very truly yours,

 

/s/ Justin Judd

 

Justin Judd

 

Associate General Counsel

 

 


EX-23.1 3 a12-9470_1ex23d1.htm EX-23.1

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

The Board of Directors

Adobe Systems Incorporated:

 

We consent to the use of our report dated January 26, 2012, with respect to the consolidated balance sheets of Adobe Systems Incorporated and subsidiaries as of December 2, 2011 and December 3, 2010, and the related consolidated statements of income, stockholders’ equity and comprehensive income, and cash flows for each of the years in the three-year period ended December 2, 2011, and the effectiveness of internal control over financial reporting as of December 2, 2011, incorporated herein by reference.

 

Our report on the consolidated financial statements refers to changes in the accounting for multiple element revenue transactions in fiscal 2010, resulting from the adoption of new accounting pronouncements.

 

 

/s/ KPMG LLP

 

Santa Clara, California

April 13, 2012