Securities Act of 1934
No Action, Interpretative and/or Exemptive Letter:
Adobe Systems Incorporated
Response of the Office of Mergers and Acquisitions
Division of Corporation Finance
February 28, 2007
Eric C. Jensen
Cooley Godward & Kronish LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Re: Adobe Systems IncorporatedExchange Offer
Dear Mr. Jensen:
We are responding to your letter dated February 28, 2007 addressed to Brian V. Breheny, Christina Chalk and Michael Pressman, as supplemented by telephone conversations with the staff of the Division of Corporation Finance, with regard to your request for exemptive relief. To avoid having to recite or summarize the facts set forth in your letter, our response is attached to the enclosed copy of your letter. Unless otherwise noted, capitalized terms in this letter have the same meaning as in your letter.
On the basis of your representations and the facts presented in your letter, the U.S. Securities and Exchange Commission hereby grants an exemption from Rule 13e-4(f)(5) and Rule 14e-1(c) to permit Adobe to delay the payment of the Cash Payment until January 2, 2008 as described in your letter.
In granting the requested relief, we note in particular that:
The Offer is being made for compensatory purposes in order to minimize or avoid potential materially adverse personal tax consequences to Adobe employees;
The delay in the payment of the Cash Payment to 2008 is required by the provisions of IRS Rule 409A;
The Offer is not being made to Adobe's officers and directors; and
Aside from the prompt payment issue, Adobe has determined that it may rely on the relief granted by the staff of the Division of Corporation Finance pursuant to the Exemptive Order for Issuer Exchange Offers that are Conducted for Compensatory Purposes issued on March 21, 2001.
The foregoing exemptive relief is based solely on your representations and the facts presented in your letter dated February 28, 2007, as supplemented by telephone conversations with the Commission staff. This relief is strictly limited to the application of the rules listed above to the Offer. You should discontinue the Offer pending further consultations with the staff if any of the facts or representations set forth in your letter change.
We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Section 9(a), 10(b) and 14(e) of the Exchange Act and Rule 10b-5 thereunder. Responsibility for compliance with these and any other applicable provisions of the federal securities laws rest with the participants in the Offer. The Division of Corporation Finance expresses no view with respect to any other questions that the Offer may raise, including, but not limited to, Adobe's compensation policies, the use of incorrect measurement dates for the Affected Options, Adobe's reliance on the Exemptive Order for Issuer Exchange Offers that are Conducted for Compensatory Purposes issued by the staff of the Division of Corporation Finance on March 21, 2001, and the adequacy of the disclosure concerning, and the applicability of any other federal or state laws to, the Offer.
For the Commission,
by the Division of Corporation Finance
pursuant to delegated authority
Brian V. Breheny
Chief, Office of Mergers and Acquisitions
Division of Corporation Finance
The Incoming Letter is in Acrobat format.