As filed with the Securities and Exchange Commission on March 5, 2007
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Rule 13e-4)
(Amendment No. 8)
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
Adobe Systems Incorporated
(Name of Subject Company (Issuer) and Filing Person (Offeror))
OPTIONS TO PURCHASE COMMON STOCK
par value $0.0001 per share
(Title of Class of Securities)
00724F-10-1
(CUSIP Number of Class of Securities of Underlying Common Stock)
Bruce R. Chizen
Chief Executive Officer and Chief Financial Officer
Adobe Systems Incorporated
345 Park Avenue
San Jose, California 95110-2704
(408) 536-6000
(Name, address and telephone number of person authorized to receive notices and
communications on behalf of filing person)
Copies to:
| Karen O. Cottle, Esq. Senior Vice President, General Counsel and Corporate Secretary Adobe Systems Incorporated 345 Park Avenue San Jose, California 95110-2704 (408) 536-6000 |
Eric C. Jensen, Esq. John T. McKenna, Esq. Cooley Godward Kronish LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306-2155 (650) 843-5000 |
CALCULATION OF FILING FEE
| Transaction Valuation* |
Amount of Filing Fee** |
|
|---|---|---|
| $3,768,100 | $404 | |
| ý | Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. | |||||
Amount Previously Paid: $404 |
Filing Party: Adobe Systems Incorporated |
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Form or Registration No.: 005-39394 |
Date Filed: January 4, 2007 |
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o |
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
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Check the appropriate boxes below to designate any transactions to which the statement relates: |
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o |
Third-party tender offer subject to Rule 14d-1. |
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ý |
Issuer tender offer subject to Rule 13e-4. |
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o |
Going-private transaction subject to Rule 13e-3. |
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Amendment to Schedule 13D under Rule 13d-2. |
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Check the following box if the filing is a final amendment reporting the results of the tender offer: ý
This Amendment No. 8 to the Schedule TO amends and supplements the Offer to Amend Eligible Options (the "Offering Memorandum") filed with the Securities and Exchange Commission (the "SEC") on January 4, 2007, as amended by Amendment No. 1 thereto filed with the SEC on January 9, 2007, Amendment No. 2 thereto filed with the SEC on February 1, 2007, Amendment No. 3 filed with the SEC on February 7, 2007, Amendment No. 4 filed with the SEC on February 9, 2007, Amendment No. 5 filed with the SEC on February 20, 2007, Amendment No. 6 filed with the SEC on February 27, 2007 and Amendment No. 7 filed with the SEC on March 1, 2007, in connection with Adobe System Incorporated's (the "Company") offer to certain option holders to amend certain portions of certain stock options in order to limit the potential adverse personal tax consequences that may apply to these stock options under Section 409A of the Internal Revenue Code of 1986, as amended, and the proposed regulations issued by the U.S. Internal Revenue Service thereunder. This Amendment No. 8 is the final amendment relating to the Offer by the Company to amend certain outstanding options. This Amendment No. 8 reports the results of the Offer and is filed in satisfaction of the reporting requirements of Rule 13e-4(c)(4) promulgated under the Securities Exchange Act of 1934, as amended. Except as amended and supplemented hereby and by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5, Amendment No. 6 and Amendment No. 7 thereto, all terms of the Offer and the Offering Memorandum and all disclosure set forth in the Schedule TO and the Exhibits thereto remain unchanged.
The Offering Memorandum filed as Exhibit 99.(a)(1)(A) of the Schedule TO is hereby amended and restated as follows:
Item 4. Procedures for Amending Eligible Options
Section 4 of the Offering Memorandum titled "Procedures for Amending Eligible Options" is hereby further amended and supplemented to add the following final paragraph:
The Offer expired at 11:59 p.m. Pacific Time, on Friday, March 2, 2007. Pursuant to the Offer, we accepted for amendment Eligible Portions of Eligible Options to purchase 140,916 shares of common stock. Each Eligible Optionee elected to participate with respect to the Eligible Portion of such individual's Eligible Option in the Offer. We have sent or will send via email to each Eligible Optionee who made an election to participate in the Offer a Final Election Confirmation Statement substantially in the form of Exhibit 99.(a)(1)(G) to the Schedule TO confirming each such Eligible Optionee's final elections with respect to his/her Eligible Options.
Item 12 of the Schedule TO is hereby amended and restated as follows:
| Exhibit Number |
Description |
|
|---|---|---|
| 99.(a)(1)(A)* | Offer to Amend Eligible Options, dated January 4, 2007. | |
| 99.(a)(1)(B)* | Email of Announcement of Tender Offer. | |
| 99.(a)(1)(C)* | Form of Email Regarding Election Form. | |
| 99.(a)(1)(D)* | Form of Election Form. | |
| 99.(a)(1)(E)* | Form of Email Regarding Failure to Make an Election. | |
| 99.(a)(1)(F)* | Form of Email: Election Confirmation Statement (Pre-Expiration Time). | |
| 99.(a)(1)(G)* | Form of Email: Final Election Confirmation Statement (Post-Expiration Time for Offer Participants). | |
| 99.(a)(1)(H)* | Form of Email: Final Election Confirmation Statement (Post-Expiration Time for Offer Non-Participants). | |
| 99.(a)(1)(I) | Adobe Systems Incorporated's Annual Report on Form 10-K/A, for its fiscal year ended December 1, 2006, filed with the SEC on February 6, 2007, and incorporated herein by reference. | |
| 99.(a)(1)(J) | Reserved. | |
| 99.(a)(1)(K)** | Deloitte Tax LLP Employee Presentation Materials. | |
| 99.(a)(1)(L)*** | Email of Extension of Expiration Time of the Offer to Amend Eligible Options. | |
| 99.(a)(1)(M)**** | Email of Extension of Expiration Time of the Offer to Amend Eligible Options and Amendment No. 3 to the Offering Memorandum. | |
| 99.(a)(1)(N)***** | Email of Third Extension of Expiration Time of the Offer to Amend Eligible Options. | |
| 99.(a)(1)(O)****** | Email of Fourth Extension of Expiration Time of the Offer to Amend Eligible Options. | |
| 99.(a)(1)(P)******* | Email of Fifth Extension of Expiration Time of the Offer to Amend Eligible Options. | |
| 99.(b) | Not applicable. | |
| 99.(d)(1)(A) | Adobe Systems Incorporated 1994 Stock Option Plan, as amended, filed as Exhibit 10.40 to the Registration Statement on Form S-8, filed with the SEC on May 30, 1997 and incorporated herein by reference. | |
| 99.(d)(1)(B) | Adobe Systems Incorporated 2003 Equity Incentive Plan, as amended, filed as Appendix A to the Definitive Proxy Statement on Schedule 14A, filed with the SEC on March 14, 2005 and incorporated herein by reference. | |
| 99.(d)(1)(C) | Forms of Stock Option and Restricted Stock Agreement used in connection with the 2003 Equity Incentive Plan, filed as Exhibit 10.11 to the Quarterly Report on Form 10-Q for the quarter ended September 3, 2004, filed with the SEC on October 7, 2004 and incorporated herein by reference. | |
| 99.(g) | Not applicable. | |
| 99.(h) | Not applicable. |
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: March 5, 2007
| ADOBE SYSTEMS INCORPORATED | |||
By: |
/s/ KAREN O. COTTLE |
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| Karen O. Cottle, Senior Vice President, General Counsel and Secretary |
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The Index of Exhibits to the Schedule TO is hereby amended and restated as follows:
| Exhibit Number |
Description |
|
|---|---|---|
| 99.(a)(1)(A)* | Offer to Amend Eligible Options, dated January 4, 2007. | |
| 99.(a)(1)(B)* | Email of Announcement of Tender Offer. | |
| 99.(a)(1)(C)* | Form of Email Regarding Election Form. | |
| 99.(a)(1)(D)* | Form of Election Form. | |
| 99.(a)(1)(E)* | Form of Email Regarding Failure to Make an Election. | |
| 99.(a)(1)(F)* | Form of Email: Election Confirmation Statement (Pre-Expiration Time). | |
| 99.(a)(1)(G)* | Form of Email: Final Election Confirmation Statement (Post-Expiration Time for Offer Participants). | |
| 99.(a)(1)(H)* | Form of Email: Final Election Confirmation Statement (Post-Expiration Time for Offer Non-Participants). | |
| 99.(a)(1)(I) | Adobe Systems Incorporated's Annual Report on Form 10-K/A, for its fiscal year ended December 1, 2006, filed with the SEC on February 6, 2007, and incorporated herein by reference. | |
| 99.(a)(1)(J) | Reserved. | |
| 99.(a)(1)(K)** | Deloitte Tax LLP Employee Presentation Materials. | |
| 99.(a)(1)(L)*** | Email of Extension of Expiration Time of the Offer to Amend Eligible Options. | |
| 99.(a)(1)(M)**** | Email of Extension of Expiration Time of the Offer to Amend Eligible Options and Amendment No. 3 to the Offering Memorandum. | |
| 99.(a)(1)(N)***** | Email of Third Extension of Expiration Time of the Offer to Amend Eligible Options. | |
| 99.(a)(1)(O)****** | Email of Fourth Extension of Expiration Time of the Offer to Amend Eligible Options. | |
| 99.(a)(1)(P)******* | Email of Fifth Extension of Expiration Time of the Offer to Amend Eligible Options. | |
| 99.(b) | Not applicable. | |
| 99.(d)(1)(A) | Adobe Systems Incorporated 1994 Stock Option Plan, as amended, filed as Exhibit 10.40 to the Registration Statement on Form S-8, filed with the SEC on May 30, 1997 and incorporated herein by reference. | |
| 99.(d)(1)(B) | Adobe Systems Incorporated 2003 Equity Incentive Plan, as amended, filed as Appendix A to the Definitive Proxy Statement on Schedule 14A, filed with the SEC on March 14, 2005 and incorporated herein by reference. | |
| 99.(d)(1)(C) | Forms of Stock Option and Restricted Stock Agreement used in connection with the 2003 Equity Incentive Plan, filed as Exhibit 10.11 to the Quarterly Report on Form 10-Q for the quarter ended September 3, 2004, filed with the SEC on October 7, 2004 and incorporated herein by reference. | |
| 99.(g) | Not applicable. | |
| 99.(h) | Not applicable. |