As filed with the Securities and Exchange Commission on August 27, 2013
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Registration No. 333-
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Delaware
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77-0019522
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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Large accelerated filer
þ
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Accelerated filer
o
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Non-accelerated filer
o
(Do not check if a smaller reporting company)
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Smaller reporting company
o
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Title of Securities
to be Registered |
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Amount to be Registered
(1)
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Proposed Maximum
Offering Price per Share |
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Proposed Maximum
Aggregate Offering Price |
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Amount of
Registration Fee |
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Common Stock par value $.0001 per share, under the Neolane 2008 Stock Option Plan
(2)
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7,477
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$
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2.77
(3)
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$
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20,712
(3)
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$
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3
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Common Stock par value $.0001 per share, under the 2012 Neolane Stock Option Plan for The United States
(4)
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136,687
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$
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11.66
(5)
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$
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1,593,771
(5)
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$
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218
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Total
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144,164
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NA
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$
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1,614,483
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$
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221
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(1)
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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 Neolane 2008 Stock Option Plan (the “2008 Plan”) and the 2012 Neolane Stock Option Plan for The United States (the “2012 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.
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(3)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) under the Securities Act. The price per share and aggregate offering price are based upon the weighted average exercise price for outstanding options to purchase 7,477 shares of common stock granted pursuant to the 2008 Plan and assumed by the Registrant.
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(4)
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Represents shares subject to issuance upon the exercise of outstanding stock options under the 2012 Plan, and assumed by the Registrant pursuant to the Purchase Agreement.
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(5)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) under the Securities Act. The price per share and aggregate offering price are based upon the weighted average exercise price for outstanding options to purchase 136,687 shares of common stock granted pursuant to the 2012 Plan and assumed by the Registrant.
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(a)
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The Registrant’s annual report on Form 10-K for its fiscal year ended November 30, 2012, filed with the Commission on January 22, 2013;
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(b)
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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
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(c)
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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.
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1.
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The undersigned Registrant hereby undertakes:
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(a)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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
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(iii)
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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.
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(b)
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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.
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(c)
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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.
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2.
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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.
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3.
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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.
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ADOBE SYSTEMS INCORPORATED
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By:
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/s/ Mark Garrett
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Mark Garrett
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Executive Vice President and
Chief Financial Officer
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Signature
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Title
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/s/ John E. Warnock
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Chairman of the Board
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John E. Warnock
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/s/ Charles M. Geschke
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Chairman of the Board
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Charles M. Geschke
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/s/ Shantanu Narayen
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President and Chief Executive Officer and Director (Principal Executive Officer)
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Shantanu Narayen
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/s/ Mark S. Garrett
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Executive Vice President and Chief Financial Officer (Principal Financial Officer)
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Mark S. Garrett
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/s/ Richard T. Rowley
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Vice President and Corporate Controller
(Principal Accounting Officer)
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Richard T. Rowley
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/s/ Amy L. Banse
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Director
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Amy L. Banse
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/s/ Kelly J. Barlow
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Director
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Kelly J. Barlow
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/s/ Edward W. Barnholt
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Director
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Edward W. Barnholt
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/s/ Robert K. Burgess
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Director
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Robert K. Burgess
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/s/ Frank A. Calderoni
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Director
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Frank A. Calderoni
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/s/ Michael R. Cannon
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Director
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Michael R. Cannon
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/s/ James E. Daley
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Director
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James E. Daley
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/s/ Laura B. Desmond
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Director
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Laura B. Desmond
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/s/ Daniel L. Rosensweig
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Director
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Daniel L. Rosensweig
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/s/ Robert Sedgewick
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Director
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Robert Sedgewick
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Incorporated by Reference
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Exhibit Number
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Description
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Form
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Date of Report
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Exhibit No.
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Filed Herewith
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4.1
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Restated Certificate of Incorporation of Adobe Systems Incorporated
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8-K
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04/26/11
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3.3
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4.2
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Amended and Restated Bylaws
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8-K
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10/30/12
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3.1
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4.3
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Specimen Common Stock Certificate
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S-3
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01/15/10
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4.3
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5.1
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Opinion of Counsel
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X
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23.1
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Consent of KPMG LLP, Independent Registered Public Accounting Firm
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X
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23.2
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Consent of Counsel, contained within Exhibit 5.1
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X
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24.1
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Power of Attorney is contained on the signature page of this Registration Statement
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X
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99.1
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Neolane 2008 Stock Option Plan
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X
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99.2
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2012 Neolane Stock Option Plan for the United States
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X
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/s/ Justin Judd
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Justin Judd
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Vice President
Associate General Counsel
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1.
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Purposes of the Plan
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1
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2.
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Definitions
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1
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3.
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Shares Subject to the Plan
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3
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4.
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Administration of the Plan
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3
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4.1 Procedure
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3
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4.2 Powers of the Administrator
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4
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4.3 Effect of Administrator’s Decision
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4
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5.
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Limitations
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5
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6.
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Term of plan
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5
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7.
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Term of Option
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5
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8.
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Options Exercise Price and Consideration
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5
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8.1 Subscription or purchase Price
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5
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8.2 Waiting Period and Exercise Dates
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5
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8.3 Form of Consideration
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6
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9.
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Exercise of Option
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6
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9.1 Procedure for Exercise; Rights as a Shareholder
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6
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9.2 Termination of the Optionee’s Continuous Status as Beneficiary
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7
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9.3 Disability of Optionee
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7
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9.4 Death of Optionee
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8
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10.
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Non-Transferability of Options
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8
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11.
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Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset Sale
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8
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11.1 Changes in capitalization
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8
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11.2 Dissolution or Liquidation
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8
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11.3 Change of control, Merger or Asset Sale
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9
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12.
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Date of Grant
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9
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13.
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Amendment and Termination of the Plan
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9
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13.1 Amendment and Termination
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9
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13.2 Effect of amendment or termination
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9
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14.
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Liability of Company
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10
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15.
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Shareholders’ Approval
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10
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16.
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Law, Jurisdiction and Language
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10
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STOCK OPTION PLAN Addendum - United States
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11
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Part I NOTICE OF STOCK OPTION GRANT
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14
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Part II
TERMS AND CONDITIONS
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17
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EXHIBIT A
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EXERCISE NOTICE
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19
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1.
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PURPOSES OF THE PLAN
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-
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to attract and retain the best available personnel for positions of substantial responsibility with the Company and its Affiliated Companies;
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-
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to provide additional incentive to Beneficiaries; and
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to promote the success of the Company’s business.
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2.
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DEFINITIONS
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(a)
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“
Share
” means a share of the Company
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(b)
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“
Shareholders Authorization
” means the authorization given by the shareholders of the Company in the combined extraordinary and ordinary general meeting held on the 31st of March 2008 as increased or amended from time to time by a further general meeting of the shareholders enabling the Board to grant Options.
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(c)
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“
Optionee
” means a Beneficiary who holds at least one outstanding Option.
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(d)
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“
Share Capital
” means the issued and paid up capital of the Company.
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(e)
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“
Board
” means the management board of the Company.
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(f)
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“
Option Agreement
” means a written agreement entered into between the Company and an Optionee evidencing the terms and conditions of an individual Option grant. The Option Agreement is subject to the terms and conditions of the Plan.
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(g)
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“
Date of Grant”
means the date of the decision of the Board to grant the Options.
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(h)
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“
Date of Dismissal”
means the date of the receipt by the employee of his or her dismissal letter.
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(i)
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“
Notice of Grant
” means a written notice evidencing certain terms and conditions of an individual Option grant. The Notice of Grant is part of the Option Agreement.
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(j)
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“
Beneficiary
” means the president and the members of the management board (
président et membres du directoire)
, the general manager (
directeur général)
and the deputy general managers (
directeurs
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(k)
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“
Administrator
” means the management board of the Company which shall administer the Plan in accordance with Section 4 of the Plan.
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(l)
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“
Disability
” means, with respect to French nationals or citizens, a disability qualifying for the second and third categories set forth by Article L 341-4 of the French Social Security Code and declared further to a medical examination provided for in article R. 241-51 of the Labor Code or pursuant to any similar provision applicable to a foreign Affiliated Company.
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(m)
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“
Law
” means French Commercial Code.
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(n)
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“
Retirement”
means, pursuant to article L. 122-14-13 of the French Labor Code, the retirement, upon the employer’s discretion, at full rate of an employee who has reached the age giving right to retirement, or any similar provision applicable to a foreign Affiliated Company.
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(p)
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“
Option
” means an option to purchase or subscribe Shares granted pursuant to the Plan.
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(q)
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“
Plan
” means the 2008 Stock Option Plan.
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(r)
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“
Option Exchange Program
” means a program whereby outstanding Options are surrendered in exchange for Options with different exercise conditions.
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(s)
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“
Continuous Status as a Beneficiary
” means as regards the president of the board of directors, the general manager, the deputy general manager or, as the case may be, the president and the members of the management board that the term of their office has not been terminated and, as regards an employee that the employment relationship between the Beneficiary and the Company or any Affiliated Company is not terminated. Continuous Status as a Beneficiary shall not be considered terminated in the case of (i) any leave of absence having received a prior approval from the Company, or (ii) transfers between locations of the Company or between the Company or any Affiliated Company or the contrary or also from an Affiliated Company to another Affiliated Company. Leaves of absence which must receive a prior approval from the Company for the non-termination of the Continuous Status as a Beneficiary shall include leaves of more than three (3) months for illnesses or conditions about which the employee has advance knowledge, military leave, or any other personal leave.
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(t)
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“
Company
” means Neolane, a corporation organized under the laws of the Republic of France.
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(u)
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“
Affiliated Company
” means a company which conforms with the criteria set forth in Article L. 225-180 of the Law as follows:
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-
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companies of which at least ten per cent (10%) of the share capital or voting rights is held directly or indirectly by the Company;
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-
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companies which own directly or indirectly at least ten per cent (10%) of the share capital or voting rights of the Company; and
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companies of which at least fifty per cent (50%) of the share capital or voting rights is held directly or indirectly by a company which owns directly or indirectly at least fifty percent (50%) of the share capital or voting rights of the Company,
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(v)
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“
Fair Market Value
” means the value for one Share as determined in good faith by the Administrator, according to the following provisions, as provided in the Shareholder Authorization:
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3.
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SHARES SUBJECT TO THE PLAN
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4.
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ADMINISTRATION OF THE PLAN
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(i)
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to determine the Fair Market Value of the Shares, in accordance with Section 2 (v) of the Plan;
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(ii)
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to determine the Beneficiaries to whom Options may be granted hereunder;
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(iii)
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to select the Beneficiaries and determine whether and to what extent Options are granted hereunder;
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(iv)
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to approve or amend forms of agreement for use under the Plan;
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(v)
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to determine the terms and conditions of any Options granted hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Options may be exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Option or the Shares of Common Stock relating thereto, based in each case on such factors as the Administrator, in its sole discretion, shall determine with the exception of the exercise price; it being specified that the Administrator’s discretion remains subject to the rules and limitations set forth in this Plan and in the Law;
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(vi)
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to construe and interpret the terms of the Plan and Options granted pursuant to the Plan;
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(vii)
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to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans established for the purpose of qualifying for preferred tax treatment under foreign tax laws;
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(viii)
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to modify or amend each Option (subject to the provisions of
Section 13.2 of the Plan), including the discretionary authority to extend the post-termination exercise period of Options after the termination of the employment agreement or the end of the term of office, longer than is otherwise provided for in the Plan (but in no event past the date described in Section 7, or any addendum to the Plan);
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(ix)
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to authorize any person to execute or sign on behalf of the Company any instrument required to effect the grant of an Option previously granted by the Administrator;
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(x)
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to decide to implement an Option Exchange Program;
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(xi)
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to determine the terms and restrictions applicable to Options; and
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(xii)
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to make all other determinations deemed necessary or appropriate for administering the Plan.
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-
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maternity leave,
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-
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paternity leave,
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-
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illness triggering, over a period of twelve months, an absence or a cumulative absence of three months at least,
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-
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work related accident triggering, over a period of twelve months, an absence or a cumulative absence of at least three months.
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11.
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ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR ASSET SALE
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-
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amortization or reduction of the share capital,
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-
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amendment of the allocation of profits,
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-
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distribution of free shares,
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-
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capitalization of reserves, profits, issuance premiums,
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-
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the issuance of shares or securities giving right to shares to be subscribed for in cash or by set-off of existing indebtedness offered exclusively to the shareholders,
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-
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stock splits;
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-
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stock dividends.
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(a)
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“
Applicable U.S. Laws
” means the legal requirements relating to the administration of stock option plans under state corporate and securities laws and the Code in force in the United States of America.
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(b)
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“
Code
” means the United States Internal Revenue Code of 1986, as amended.
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(c)
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“
Continuous Status as a Beneficiary
” means as regards the president of the board of directors, the general manager, the deputy general manager or, as the case may be, the president and the members of the management board that the term of their office has not been terminated and, as regards an employee that the employment relationship between the Beneficiary and the Company or any Affiliated Company is not terminated. Continuous Status as a Beneficiary shall not be considered terminated in the case of (i) any leave of absence having received a prior approval from the Company or requiring no prior approval under U.S. laws, or (ii) transfers between locations of the Company or between the Company or any Affiliated Company or the contrary or also from an Affiliated Company to another Affiliated Company. Leaves of absence which must receive a prior approval from the Company for the non-termination of the Continuous Status as a Beneficiary shall include leaves of more than three (3) months for illnesses or conditions about which the employee has advance knowledge, military leave, or any other personal leave. For purposes of U.S. Beneficiaries and
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(d)
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“
Disability”
means, with respect to U.S. residents, a disability that renders a Beneficiary unable to perform the essential functions of such person’s position with the Company or any Subsidiary as determined in his or her employment agreement, as the case may be, by the Board, with any dispute regarding the existence of such incapacity to be resolved by a physician selected by the Board and agreeable to the Beneficiary in his or her reasonable discretion. Notwithstanding anything to the contrary in the Plan, an Incentive Stock Option held by a U.S. Beneficiary shall be exercisable for 3 months following the date of such U.S. Beneficiary’s termination of the Continuous Status with the Company or any Subsidiary as a result of a Disability; provided, however, that if such Disability qualifies as a “permanent and total disability” within the meaning of Section 22(e)(3) of the Code, the U.S. Beneficiary shall have 6 months following termination of employment to exercise his or her Incentive Stock Option.
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(e)
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“
Exchange Act
” means the United States Securities Exchange Act of 1934, as amended.
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(f)
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“
Incentive Stock Option
” means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.
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(g)
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“
Non-Statutory Stock Option
” means an Option which does not qualify as an Incentive Stock Option.
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(h)
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“
Officer
” means a U.S. Beneficiary designed by the Company or an Affiliated Company, as the case may be, as an officer (as defined in section 16 of the Exchange Act and its regulations)
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(i)
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“
Parent
” means a “parent corporation”, whether now or hereafter existing, as defined in Section 424(e) of the United States Internal Revenue Code of 1986, as amended.
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(j)
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“
Subsidiary
” means a “subsidiary corporation”, whether now or hereafter existing, as defined in Section 424(f) of the Code.
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(k)
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“
U.S. Beneficiary
” means a Beneficiary of the Company or a Subsidiary of the Company residing in the United States or otherwise subject to United States’ laws and regulations.
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(l)
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“
U.S. Optionee”
means a US Beneficiary who holds at least one outstanding option.
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Date of Grant
(1)
:
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xx/xx/xxxx
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Vesting Commencement Date
(2)
:
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xx/xx/xxxx
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Exercise Price per Share:
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EUR x.xx
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Total Number of Shares Granted:
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xx,xxx
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Total Exercise Price:
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EUR xx,xxx.xx
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Type of Options:
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<type of option>
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Term/Expiration Date
(3)
:
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xx/xx/xx+10
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(1)
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date of the management board meeting having allocated the Option
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(2)
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date chosen by the management board as the date of beginning of the vesting schedule or, if not, date of granting of the Option by the management board
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(3)
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date of termination of the Option (article 7 of the Plan)
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1-
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Special condition in the event of transfer of shares subscribed for following the exercise of the Options
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2-
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Special condition in the event of transfer of 100% of Neolane capital
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3-
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Procedure for executing the special conditions set out in Paras. 1 and 2 above
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a.
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Right of pre-emption set out in Para. 1 above
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b.
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Transfer commitment set out in Para. 2 above
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(1)
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wire transfer; or
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(2)
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check;
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(3)
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offset between receivables ;or
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(4)
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any combination of the foregoing methods of payment.
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OPTIONEE:
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NEOLANE
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By:
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By:
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Title:
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NEOLANE
45-47 avenue Carnot
94230 Cachan
France
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[______________], [______]
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Attention: [___________]
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Submitted by:
OPTIONEE
(*)
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Accepted by:
NEOLANE
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__________________________
Signature
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_______________________
Signature
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__________________________
Print Name
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Its:____________________
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Address
:
__________________________
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(*)
|
The signature of the Optionee must be preceded by the following manuscript mention
“accepted for formal and irrevocable subscription of [__________] Shares”
.
|
1.
|
|
Introduction
|
1
|
|
2.
|
|
Purposes of the Plan
|
1
|
|
3.
|
|
Definitions
|
1
|
|
4.
|
|
Shares Subject to the Plan
|
4
|
|
5.
|
|
Administration of the Plan
|
4
|
|
|
|
5.1 Procedure
|
4
|
|
|
|
5.2 Powers of the Administrator
|
4
|
|
|
|
5.3 Effect of Administrator’s Decision
|
5
|
|
6.
|
|
Limitations
|
5
|
|
7.
|
|
Options Exercise Price, Consideration, Grant Date and Term
|
6
|
|
8.
|
|
Exercise of Option
|
7
|
|
|
|
8.1 Procedure for Exercise; Rights as a Shareholder
|
7
|
|
|
|
8.2 Termination of the Holder’s Continuous Status as Beneficiary
|
7
|
|
|
|
8.3 Disability of Holder
|
8
|
|
|
|
8.4 Death of Holder
|
8
|
|
9.
|
|
Non-Transferability of Options
|
8
|
|
10.
|
|
Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset Sale
|
8
|
|
|
|
10.1 Changes in capitalization
|
8
|
|
|
|
10.2 Dissolution or Liquidation
|
9
|
|
|
|
10.3 Change of control, Merger or Asset Sale
|
9
|
|
11.
|
|
Amendment and Termination of the Plan
|
9
|
|
|
|
11.1
Amendment and Termination
|
9
|
|
|
|
11.2
Effect of amendment or termination
|
10
|
|
12.
|
|
Liability of Company
|
10
|
|
13.
|
|
Shareholders’ Approval
|
10
|
|
14.
|
|
Vesting
|
10
|
|
15.
|
|
Effective Date and Duration of Plan
|
10
|
|
16.
|
|
Compliance with Securities Laws
|
11
|
|
17.
|
|
Taxes; Withholding and Notice of Disqualifying Disposition
|
12
|
|
18.
|
|
Law, Jurisdiction and Language
|
12
|
|
Part I
NOTICE OF STOCK OPTION GRANT
|
13
|
|
Part II
OPTIONS TERMS AND CONDITIONS
|
15
|
|
Part III SHORT FORM SHAREHOLDER’ AGREEMENT
|
17
|
|
|
|
|
EXHIBIT A
|
|
|
EXERCISE NOTICE
|
23
|
|
-
|
to attract and retain the best available personnel for positions of substantial responsibility with the Company and its Affiliated Companies;
|
-
|
to provide additional incentive to Beneficiaries; and
|
-
|
to promote the success of the Company’s business.
|
(a)
|
“10% Shareholder”
means the owner of stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or any Related Company (after taking into account the attribution of stock ownership of Section 424(d) of the Code).
|
(b)
|
“Administrator
” means the management board of the Company, or such party as the management board of the Company shall appoint, which shall administer the Plan in accordance with Section 4 of the Plan.
|
(c)
|
“Applicable U.S. Laws
” means the legal requirements relating to the administration of stock option plans under state corporate and securities laws and the Code in force in the United States of America.
|
(d)
|
“Beneficiary
” means the president and the members of the management board (
président et membres du directoire)
, the general manager (
directeur général)
and the deputy general managers (
directeurs généraux délégués)
or, as the case may be, the president of the board of directors (
président du conseil d’administration)
of the Company as well as any individual employed by the Company or by any Affiliated Company under the terms and conditions of an employment contract, it being specified that a term of office of Director or director of an Affiliated Company (remunerated or not) shall not be deemed to constitute an employment relationship or be eligible for the grant of an Option.
|
(e)
|
“Board
” means the management board of the Company.
|
(f)
|
“Code
” means the United States Internal Revenue Code of 1986, as amended.
|
(g)
|
“Company
” means Neolane, a corporation organized under the laws of the Republic of France.
|
(h)
|
“Continuous Status as a Beneficiary
” means as regards the president of the board of directors, the general manager, the deputy general manager or, as the case may be, the president and the members of the management board that the term of their office has not been terminated and, as regards an employee that the employment relationship between the Beneficiary and the Company or any Related Party is not terminated. Continuous Status as a Beneficiary shall not be considered terminated in the case of (i) any leave of absence having received a prior approval from the Company or requiring no prior approval under United States laws, or (ii) transfers between locations of the Company or between the Company or any Related Party or the contrary. Leaves of absence which must receive a prior approval from the Company for the non-termination of the Continuous Status as a Beneficiary shall include leaves of more than three (3) months for illnesses or conditions about which the employee has advance knowledge, military leave, or any other personal leave.
|
(i)
|
“
Date of Dismissal”
means the date of the receipt by the employee of his or her dismissal letter.
|
(j)
|
“
Date of Grant”
means the date of the decision of the Board to value and grant the Options.
|
(k)
|
“
Disability”
means, with respect to United States residents, a disability that renders a Beneficiary unable to perform the essential functions of such person’s position with the Company or any Subsidiary as determined in his or her employment agreement, as the case may be, by the Board, with any dispute regarding the existence of such incapacity to be resolved by a physician selected by the Board and agreeable to the Beneficiary in his or her reasonable discretion or , if applicable, “permanent and total disability” as defined in Section 22(e)(3) of the Code.
|
(l)
|
“
Disqualifying Disposition
” is any disposition (including any sale) of such Shares before the later of (i) two (2) years after the date the employee was granted the Incentive Stock Option or (ii) one (1) year after the date the employee acquired Shares by exercising the Incentive Stock Option. If the employee has died before such stock is sold, these holding period requirements do not apply and no Disqualifying Disposition can occur thereafter.
|
(m)
|
“employment”
shall be defined in accordance with the provisions of Regulation Section 1.421-7(h) (or any successor regulations).
|
(n)
|
“Exchange Act
” means the United States Securities Exchange Act of 1934, as amended.
|
(o)
|
“
Fair Market Value
” shall mean the fair market value of a share of Common Stock, as determined by the Administrator, and to the extent required, as provided in Regulation 1.409A-1(b)(5)(iv).
|
(p)
|
“
Holder
” means a Beneficiary who holds at least one outstanding Option.
|
(q)
|
“
Incentive Stock Option
” means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.
|
(r)
|
“Law
” means French Commercial Code. In the event there is a conflict as between French law and the Code as related to Options, the requirements of the Code shall prevail.
|
(s)
|
“Non-Statutory Stock Option
” means an Option which does not qualify as an Incentive Stock Option.
|
(t)
|
“Notice of Grant
” means a written notice evidencing certain terms and conditions of an individual Option grant. The Notice of Grant is part of the Option Agreement.
|
(u)
|
“
Officer
” means a U.S. Beneficiary designated by the Company, or a Parent or Subsidiary as hereinafter defined, as the case may be, as an officer (as defined in section 16 of the Exchange Act and its regulations)
|
(v)
|
“Option
” means an option to purchase or subscribe Shares granted pursuant to the Plan.
|
(w)
|
“Option Agreement
” means a written stock option agreement entered into between the Company and a HolderHolder evidencing the terms and conditions of an individual Stock Option grant. The Option Agreement includes the Notice of Grant, the Option terms and conditions and the Short Form Shareholder’ Agreement. The Option Agreement is subject to the terms and conditions of the Plan.
|
(x)
|
“
Main Shareholders”
means the following shareholders:
|
1.
|
Monsieur Stéphane DEHOCHE
|
2.
|
Monsieur Thomas BOUDALIER
|
3.
|
Monsieur Stéphane DIETRICH
|
4.
|
Monsieur Benoît GOURDON
|
5.
|
Monsieur Philippe FERDINAND
|
6.
|
Mr. Gilles QUERU
|
7.
|
AURIGA VENTURES II
|
8.
|
Poste Innovation 7
|
9.
|
Poste Innovation 10
|
10.
|
XAnge Capital
|
11.
|
Banque Postale Investissement PME
|
12.
|
Battery Ventures IX, L.P.
|
13.
|
Battery Investment Partners IX, LLC
|
14.
|
W Capital
|
(y)
|
“
Parent
” means a “parent corporation”, whether now or hereafter existing, as defined in Section 424(e) of the Code.
|
(z)
|
“
Plan
” means this 2012 Stock Option Plan.
|
(aa)
|
“Regulations”
means the regulations, including without limitation proposed regulations, promulgated by the Internal Revenue Service pursuant to the Code.
|
(ab)
|
“
Related Party
” means the Company, its Parent (if any) and any present or future
|
(a
c)
|
“Rule 16b-3”
means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan or US Sub-Plan.
|
(ad)
|
“Rule 701”
means Rule 701 under the Securities Act of 1933, as amended.
|
(ae)
|
“
Securities
”
: the Shares and any securities (
valeurs mobilières
) or other rights entitling their holders, immediately or on a due date, to subscribe or otherwise acquire or receive Shares, including but not limited to stock options (
options de souscription ou d’achat d’actions
), founders’ warrants (
bons de souscription de parts de créateur d’entreprise
) and free shares during their acquisition or holding period.
|
(af)
|
“
Share
” means the shares issued by the Company in representation of its capital and outstanding as at the relevant date irrespective of their class or category.
|
(ag)
|
“
Shareholders Authorization
” means the authorization given by the shareholders of the Company in the combined extraordinary and ordinary general meeting held on the December 30, 2012 as increased or amended from time to time by a further general meeting of the shareholders enabling the Board to grant Options.
|
(ah)
|
“Share Capital
” means the issued and paid up capital of the Company.
|
(ai)
|
“
Subsidiary
” means a “subsidiary corporation”, whether now or hereafter existing, as defined in Section 424(f) of the Code.
|
(aj)
|
“
Transfer
”: any transaction resulting or which may result at a later date (e.g., the granting of a put or call option) in a transfer of ownership of Securities (propriété, nue-propriété ou usufruit) for any reason whatsoever (including but not limited to sales, gratuities, contributions, partial contributions of assets, mergers, de-mergers or any combination of these methods of transfer of ownership).
|
(ak)
|
“
U.S. Beneficiary
” means a Beneficiary of the Company or a Subsidiary of the Company residing in the United States or otherwise subject to the United States’ laws and regulations.
|
5.
|
ADMINISTRATION OF THE PLAN
|
(i)
|
to determine the Fair Market Value of the Shares, in accordance with Section 3(o) of the Plan;
|
(ii)
|
to determine the Beneficiaries to whom Options may be granted hereunder;
|
(iii)
|
to select the Beneficiaries and determine whether and to what extent Options are granted hereunder;
|
(iv)
|
to approve or amend forms of agreement for use under the Plan;
|
(v)
|
to determine the terms and conditions of any Options granted hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Options may be exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Option or the Shares of Common Stock relating thereto, based in each case on such factors as the Administrator, in its sole discretion, shall determine with the exception of the exercise price; it being specified that the Administrator’s discretion remains subject to the rules and limitations set forth in this Plan and in the Law;
|
(vi)
|
to construe and interpret the terms of the Plan and Options granted pursuant to the Plan;
|
(vii)
|
to prescribe, amend and rescind rules and regulations relating to the Plan;
|
(viii)
|
to modify or amend each Option (subject to the provisions of Section 11.2 of the Plan), including the discretionary authority to extend the post-termination exercise period of Options after the termination of the employment agreement or the end of the term of office, longer than is otherwise provided for in the Plan (but in no event past the date described in Section 7, or any addendum to the Plan);
|
(ix)
|
to authorize any person to execute or sign on behalf of the Company any instrument required to effect the grant of an Option previously granted by the Administrator;
|
(ix)
|
to determine the terms and restrictions applicable to Options; and
|
(x)
|
to make all other determinations deemed necessary or appropriate for administering the Plan.
|
7.
|
OPTIONS EXERCISE PRICE, CONSIDERATION, GRANT DATE AND TERM
|
(1)
|
Wire transfer; or
|
(2)
|
Check; or
|
(3)
|
Any combination of the foregoing methods of payment.
|
8.1
|
Procedure for Exercise;
|
•
|
(i) written notice of exercise (in accordance with the provisions of
the Option Agreement) together with a share subscription or purchase form (
bulletin de souscription ou d’achat
) duly executed by the person entitled to exercise the Option, and
|
•
|
(ii) Full payment for the Shares with respect to which the Option is exercised. Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Option Agreement and the Plan. Shares issued or sold upon exercise of an Option shall be sold to or issued in the name of the Holder or, if requested by the Holder, in the name of the Holder and his or her spouse.
|
8.2
|
Termination of the Holder’s Continuous Status as Beneficiary
|
8.3
|
Disability of Holder
|
10.
|
ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR ASSET SALE
|
10.1
|
Changes in capitalization
|
-
|
amortization or reduction of the share capital,
|
-
|
amendment of the allocation of profits,
|
-
|
distribution of free shares,
|
-
|
capitalization of reserves, profits, issuance premiums,
|
-
|
the issuance of shares or securities giving right to shares to be subscribed for in cash or by set-off of existing indebtedness offered exclusively to the shareholders,
|
-
|
stock splits;
|
-
|
stock dividends.
|
10.3
|
Change of control, Merger or Asset Sale
|
11.1
|
Amendment and Termination
|
11.2
|
Effect of amendment or termination
|
(A)
|
A summary of the material terms of the Plan;
|
(B)
|
Information about the risks associated with investment in the Shares; and
|
(C)
|
Financial statements required to be furnished under Rule 701, which must be as of a date no more than one hundred eighty (180) days before the issuance of Shares.
|
Date of Grant
(1)
:
|
XX/XX/XXXX
|
Vesting Commencement Date
(2)
:
|
XX/XX/XXXX
|
Exercise Price per Share:
|
EUR X.XX
|
Total Number of Shares Granted:
|
XXXXXX
|
Total Exercise Price:
|
EUR
|
Term/Expiration Date
(3)
:
|
XX/XX/2022
|
|
(1)
|
date of the management board meeting having allocated the Option
|
(2)
|
date chosen by the management board as the date of beginning of the vesting schedule or, if not, date of granting of the Option by the management board
|
(3)
|
date of termination of the Option (article 7 of the Plan)
|
HOLDER:
|
NEOLANE
|
|
|
|
|
|
|
Name Last Name
|
By:
|
Address
|
Title:
|
State, U.S.
|
|
|
|
|
|
|
|
(1)
|
wire transfer; or
|
(2)
|
check; or
|
(3)
|
any combination of the foregoing methods of payment.
|
HOLDER:
|
NEOLANE
|
Name Last Name
|
By:
|
|
|
|
Title:
|
Address,
|
|
Address,
|
|
State, U.S.
|
|
2.1.
|
Option 1
|
2.1.1
|
Should one or several Main Shareholders, or any other person(s) (acting alone or in concert within the meaning of article L.233-10 of the French Commercial Code) (the “
Offeror
”) offer to acquire 100% of the share capital and voting rights of the Company (the “
Offer
”) and such offer be accepted by shareholders holding at least 75% of the share capital and voting rights of the Company (the “
Beneficiary
”), the Holder shall, if so requested by the Beneficiary transfer his or her Securities to the Offeror right to dividends attached and free of any pledge or surety interest of any nature whatsoever, except for Securities which cannot be transferred under applicable French law (if any) which are covered in Article 2.2 below.
|
2.1.2
|
The Beneficiary shall notify the Company of its decision to call Option 1 when the conditions set forth in Article 2.1.1 above are met and, in turn the Company shall promptly notify it to the Holder. Such notification shall include the terms of the accepted Offer.
|
2.1.3
|
If Option is called in accordance with the terms provided for above, the Holder undertakes to transfer its Securities in accordance with the terms and conditions of the Offer, including the Offer price per Share or other Securities subject always to the terms of Article 5 below. For the avoidance of doubt, the Holder acknowledges that the price per Share to be received following the exercise of the drag-along right set out in this Article 2 may be less than the price per Share or other Securities initially offered by the Offeror (as a consequence of and in accordance with Article 5 below).
|
2.1.4
|
The Transfer of the Holder’s Securities and the payment of their purchase price will take place no later than sixty (60) days after the date on which Option 1 is called by the Beneficiary or at any other date mutually agreed upon in writing. On the Transfer date:
|
(a)
|
The Offeror shall deliver to the Holder, in case of sale (
vente
), a bank check (or any document evidencing the execution of a wire transfer) for an amount equal to the purchase price of his/her Securities or, in case of a non-cash Transfer, the consideration for such Securities set forth in the Offer (subject to Article 5 below);
|
(b)
|
The Holder shall deliver to the Beneficiary a share transfer form (
ordre de mouvement)
requesting the Company to effect the Transfer of the relevant Securities to the Beneficiary and, to the extent necessary, the corresponding CERFA form n° 2759, duly completed and executed.
|
2.2.
|
Option 2
|
2.2.1
|
Should a Holder, the conditions defined in Article 2.1.1 above being met, hold Securities that cannot be transferred to the Offeror under applicable French law (including, in particular, the right to receive free shares
at a future date, any
bons de souscription de parts de créateur d’entreprise
or any
options de souscription ou d’achat d’actions
) (the “
Rights
”), the Holder shall, if so requested by the Beneficiary or the Offeror (as the case may be), transfer to the Offeror, in accordance with the terms and conditions of the Offer, including the Offer price per Share subject always to Article 5 below, all Shares of the Company which the Holder shall come to hold as a result of the vesting (
acquisition définitive
, in case of free shares) or exercise of the Rights.
|
2.2.2
|
The Holder irrevocably undertakes to notify the Beneficiary and the Offeror in writing (a “
Notification
”) promptly upon acquiring or being issued Shares as a result of the vesting or exercise of any Right, which Notification shall indicate the number of Shares so acquired or issued to the Holder.
|
2.2.3
|
The Beneficiary or the Offeror may notify the Holder of its decision to call Option 2 each time one or more Shares are acquired by or issued to the Holder as a result of the vesting or exercise of any Right, no later than 30 days following receipt of the related Notification; provided that the Beneficiary or the Offeror may call Option 2 if the conditions set forth in Article 2.1.1 have previously been met notwithstanding the absence of Notification. In the event of several Beneficiaries, the notice provided by the Beneficiary or the Offeror shall include the allocation of the transferred shares between the Beneficiaries.
|
2.2.4
|
The Transfer of the relevant Shares and the payment of their purchase price will take place no later than fifteen (15) days after the date on which Option 2 was called by the Beneficiary or the Offeror or at any other date mutually agreed upon in writing.
|
2.2.5
|
The Transfer shall be conditional upon the delivery:
|
(i)
|
to the Holder, in case of a sale (
vente
), of a bank check (or any document evidencing the execution of a wire transfer) in an amount equal to the purchase price of its Shares or, in case of a non-cash Transfer, of the relevant consideration determined as provided above;
|
(ii)
|
to the Offeror (as the case may be) of a stock transfer form (
ordre de mouvement)
duly completed and signed, requesting the Company to effect the Transfer of the relevant Shares to the Offeror and, to the extent necessary, the corresponding CERFA form n° 2759, duly completed and executed.
|
2.3
|
In case the Beneficiary has notified the exercise of Option 1 or 2 as set forth above but the Holder has defaulted in the execution of its obligations hereunder, the Beneficiary or the Offeror may deposit the price of the relevant Securities for which Option 1 or 2 has been exercised in escrow with the Company or any person willing to act as escrow. In such case, the mere remittance to the Company of a copy of the exercise notice of the Option 1 or 2, as the case may be, and a copy of the escrow agreement shall be deemed a duly executed transfer order and shall cause the Company, which the Company hereby accepts, to register the corresponding transfer of Available Securities in the shareholders registry (
registre des mouvements de titres
) and the relevant individual shareholders’ accounts. It is expressly agreed between the Parties that, in compliance with article 6 of the French Civil Code, article 1142 of the French Civil Code shall not apply to this Agreement and the Parties shall be entitled to obtain compulsory execution (
exécution forcée
) of the undertakings contained in this Agreement, without prejudice to their right to indemnification.
|
ARTICLE 5
|
Priority Right of the Preferred Shareholders in case of liquidation/sale of Assets, sale or merger of the Company
|
5.2.
|
Liquidation, Sale or sale of assets of the Company
|
(a)
|
In case of a (i) dissolution, liquidation or winding up of the Company (the “
Liquidation
”) or (ii) a sale (
vente
) to any Party or Third Party, for any reason, of a number of Shares representing fifty per-cent (50%) or more of the share capital or voting rights of the Company (the “
Sale
”) (each an “
Exit
Event
”), the net proceeds (the “
Net Proceeds
”) (if any) of the Exit Event available after repayment of:
|
(1)
|
the nominal value of the Shares to each (a) shareholder of the Company in case of Liquidation or (b) Party and Signatory selling its Shares in case of Sale pro rata the number of Shares respectively sold by each of them, and
|
(2)
|
in case of Liquidation, all liabilities of the Company and, more generally, after any priority payment imposed by applicable laws and regulations,
|
I.
|
In the event that any Concerned Shares are still P, P’ and/or P” Shares not converted into Ordinary Shares as at the date of the Exit Event pursuant to the conversion rights of the Preferred Shares set forth in paragraph (E) of article 9 of the Company’s bylaws:
|
(i)
|
the sum of all Subscription Prices of all Preferred Shares it held or sold, as applicable,
|
(ii)
|
plus
the aggregate amount of any declared but unpaid dividends as at the date of the Exit Event due to such Relevant Party for its Preferred Shares held or sold, as applicable, and
|
(iii)
|
less
the aggregate amount of the nominal value of its Preferred Shares held or sold, as applicable, already repaid under the first paragraph of Article 5.2.(a)(1) above.
|
II.
|
In the event that all of the Preferred Shares have been converted into Ordinary Shares, to all Relevant Parties holding or selling, as applicable, Ordinary Shares (including, for the avoidance of doubt, any
|
(b)
|
In case of disposal of substantially all of the assets of the Company (including the exclusive license of material intellectual property rights), the proceeds resulting from such disposal shall be payable to the Parties and Signatories, after repayment to them of the nominal value of their Shares,
mutatis mutandis
as set forth in case of Liquidation in Article 5.2.(a) above.
|
(c)
|
It being expressly agreed by the Parties that in the event the Sale includes an earn-out of any kind payable after closing of the Sale the payment of which is not certain at the time of closing of the Sale, such earn-out shall be allocated pro rata to the number of Concerned Shares respectively sold in the Sale, irrespective of their class or category, on an as-converted-to-Ordinary Shares basis to all Relevant Parties minus, for each Share, any amount already received pursuant to the preferential right set forth in
Article 5.2(a)
above so the Relevant Parties being Preferred Shareholders shall not receive less than the greater of their respective Subscription Price or the Net Proceeds received by Ordinary Shareholders.
|
5.3
|
Merger
|
ARTICLE 6
|
Term and termination of the Agreement
|
6.1.
|
The rights and obligations of the Parties with respect to this Agreement shall enter into force starting upon its execution date and shall remain in force for a fifteen (15)-year term.
|
6.2.
|
In addition, this Agreement will automatically terminate, as to any specific Party, (i) on the date when such Party shall cease to hold any Share or Security, subject to the provisions of this Agreement having authority to apply after this date and (ii) immediately before the listing (
première cotation
) of all or part of the shares on any regulated market or stock exchange in Europe or the United States.
|
6.3.
|
The Agreement replaces and supersedes any and all agreements previously entered into between some or all of the Parties with respect to the subject matter hereof. As a consequence, each Party hereby irrevocably waives any and all rights which it may have under any and all such previous agreements.
|
ARTICLE 7
|
Notices
|
7.1
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All notices and other communications required or authorized hereunder shall be in writing and validly made if either hand delivered against written receipt or sent by registered letter (return receipt requested), e-mail or facsimile (provided that it be confirmed by same day registered letter, return receipt requested or courier on expedited basis for notices sent across international boundaries, in case of an e-mail or facsimile) to the registered office or residence of the Holder or of the Company (if directed to the Company and/or to a Main Shareholder) as set out on the first page hereof; provided that in case the Company receives a notice to the attention of a Main Shareholder, it shall promptly so inform the relevant Main Shareholder.
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7.2
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Notices and other communications hand delivered shall be effective as of their date of delivery, as evidenced by the delivery receipt.
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7.3
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Notices and other communications sent by registered mail, return receipt requested, shall be effective as of their date of first presentation to the addressee.
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7.4
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Notices and other communications sent by e-mail or facsimile shall be deemed effective as of the date thereof, provided that they be confirmed by same day registered letter, return receipt requested or courier on expedited basis for notices sent across international boundaries.
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ARTICLE 8
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Applicable law and jurisdiction
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ARTICLE 9
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Miscellaneous provisions
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9.1
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This Agreement shall be assigned by operation of law to, and bind, the Party’s heirs, successors and assigns.
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9.2
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The Parties agree that the Agreement is representative of the entirety of their agreement with respect to its purpose.
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9.3
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The Parties agree that the provisions set forth in the preamble and schedules hereof shall form an integral part of the Agreement.
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9.4
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Any modification to the Agreement can only result from the written approval of each of the Parties.
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9.5
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In the event that any of the provisions of the Agreement would be declared null and void in any way whatsoever and for any reason whatsoever, the cancellation shall not affect any of the other terms and conditions of the Agreement, and the Parties undertake to use their best efforts to remedy the cause of such nullity so that, except where impossible, the Agreement shall remain in full force and effect without disruption.
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9.6
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The fact that a Party does not prevail itself with one of the rights that are granted to it by the Agreement shall not be representative of a waiver of such Party to ultimately prevail itself with such right, if the conditions for exercising such right are met on another occasion.
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9.7
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The Parties undertake to provide, sign and deliver any information and any document and enter into any instruments or take any decisions that could prove necessary for the performance of the Agreement.
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Executed in ______________________________
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On _________________________________________
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In two (2) originals
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HOLDER:
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NEOLANE
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Name Last Name
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By:
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Title:
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Address,
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Address,
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State, U.S.
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NEOLANE
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18 rue Roger-Simon Barboux
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94110 Arcueil
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France
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[______________], [______]
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Attention: [___________]
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(*)
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The signature of the Holder must be preceded by the following manuscript mention
“accepted for formal and irrevocable subscription of [__________] Shares”
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