As filed with the Securities and Exchange Commission on June 27, 2018
 
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 of incorporation)
 
(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
 
  (Full title of the plan)
 
 
 
 
 
 
 
John Murphy
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)
 
 
 
 
With a copy to :
 
 
Jonathan Vaas, Esq.  
Adobe Systems Incorporated
3900 North Adobe Way
Lehi, Utah 84043
(408) 536-6000
 
 
 
 
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 þ  
Accelerated filer o  
Non-accelerated filer o (Do not check if a smaller reporting company)
Smaller reporting company o  
Emerging growth company o
 
If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.   o




CALCULATION OF REGISTRATION FEE
Title of Securities
to be Registered
Amount to be Registered

 
Proposed Maximum Offering
Price per Share
 
Proposed Maximum
Aggregate
Offering Price
 
Amount of
Registration
Fee
Common Stock par value $.0001 per share (1)
7,500,000
 
$
238.915 (2)
 
$
1,791,862,500.00 (2)
$
223,086.89
Common Stock par value $.0001 per share, under the MagentoTech LLC Unit Option Plan, as amended (3)
218,236 (4)
 
$
93.937 (5)
 
$
20,500,350.36 (5)
 
$
2,552.30
Totals
7,718,236
 
N/A
 
$
1,812,362,850.36
 
$
225,639.19
    
(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 (the “2003 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 June 25, 2018, as reported on the Nasdaq Global Select Market.
(3)
Pursuant to Rule 416(a) of the Securities Act, this Registration Statement shall also cover any additional shares of common stock which become issuable under the MagentoTech LLC Unit Option Plan, as amended (the “2016 Plan”) by reason of any stock dividend, stock split, recapitalization or similar transaction effected without receipt of consideration by the Registrant which results in an increase in the number of outstanding shares of the Registrant’s common stock.
(4)
Represents shares subject to issuance upon the exercise of outstanding stock options under the 2016 Plan and assumed by the Registrant pursuant to the Purchase Agreement by and among the Registrant, MagentoTech LLC and certain other parties named therein (the “Purchase Agreement”).
(5)
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 218,236 shares of common stock granted pursuant to the 2016 Plan and assumed by the Registrant pursuant to the Purchase Agreement.







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 1, 2017, filed with the Commission on January 22, 2018;
(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
Jonathan Vaas, who is issuing the opinion of counsel on the legality of the Registrant’s Common Stock offered hereby, is Director and Associate General Counsel of the Registrant. Mr. Vaas beneficially owns shares of and other interests in the Common Stock of the Registrant.




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.
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.

(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.
 




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 June 27, 2018.
 
ADOBE SYSTEMS INCORPORATED
 
 
By:
/s/ John Murphy
 
John Murphy
 
Executive Vice President and
Chief Financial Officer
 





POWER OF ATTORNEY
                KNOW ALL PERSONS BY THESE PRESENTS , that each person whose signature appears below constitutes and appoints John Murphy and Dana Rao, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him or her and in his or her 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 June 27, 2018, by the following persons in the capacities indicated.
Signature
 
Title
 
 
 
 
 
 
/s/ Shantanu Narayen
 

Chairman of the Board, President and Chief Executive Officer and Director (Principal Executive Officer)
Shantanu Narayen
 
 
 
/s/ John Murphy
 

Executive Vice President and Chief Financial Officer (Principal Financial Officer)
John Murphy
 
 
 
/s/ Amy Banse
 
Director
Amy Banse
 
 
 
/s/ Edward Barnholt
 
Director
Edward Barnholt
 
 
 
/s/ Robert Burgess
 
Director
Robert Burgess
 
 
 
/s/ Frank Calderoni
 
Director
Frank Calderoni
 
 
 
/s/ James Daley
 
Director
James Daley
 
 
 
/s/ Laura Desmond
 
Director
Laura Desmond
 
 
 
/s/ Charles Geschke
 
Director
Charles Geschke
 
 
 
/s/ David Ricks
 
Director
David Ricks
 
 
 
/s/ Daniel Rosensweig
 
Director
Daniel Rosensweig
 
 
 
/s/ John Warnock
 
Director
John Warnock

 
 
 




INDEX TO EXHIBITS
 
 
 
 
Incorporated by Reference
 
Exhibit Number
 
Description
 
Form
 
Filing Date
 
Exhibit Number
 
SEC File No.
 
Filed Herewith
 
4.1
 
 
8-K
 
4/26/11
 
3.3
 
000-15175
 
 
 
4.2
 
 
8-K
 
9/2/16
 
3.2
 
000-15175
 
 
 
4.3
 
 
10-Q
 
6/25/14
 
4.1
 
000-15175
 
 
 
5.1
 
 
 
 
 
 
 
 
 
 
X
 
23.1
 
 
 
 
 
 
 
 
 
 
X
 
23.2
 
 
 
 
 
 
 
 
 
 
X
 
24.1
 
 
 
 
 
 
 
 
 
 
X
 
99.1
 
 
8-K
 
04/13/18
 
10.1
 
000-15175
 
 
 
99.2
 
 
8-K
 
12/20/10
 
99.4
 
000-15175
 
 
 
99.3
 
 
8-K
 
1/26/18
 
10.6
 
000-15175
 
 
 
99.4
 
 
10-Q
 
10/7/04
 
10.11
 
000-15175
 
 
 
99.5
 
 
8-K
 
1/29/16
 
10.2
 
000-15175
 
 
 
99.6
 
 
8-K
 
1/29/16
 
10.3
 
000-15175
 
 
 
99.7
 
 
8-K
 
1/27/17
 
10.2
 
000-15175
 
 
 
99.8
 
 
8-K
 
1/27/17
 
10.3
 
000-15175
 
 
 
99.9
 
 
8-K
 
1/26/18
 
10.2
 
000-15175
 
 
 
99.10
 
 
8-K
 
1/26/18
 
10.3
 
000-15175
 
 
 




99.11
 
 
8-K
 
12/20/10
 
99.6
 
000-15175
 
 
 
99.12
 
 
8-K
 
12/20/10
 
99.7
 
000-15175
 
 
 
99.13
 
 
8-K
 
12/20/10
 
99.8
 
000-15175
 
 
 
99.14
 
 
 
 
 
 
 
 
 
 
X
 





Exhibit 5.1


June 27, 2018

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 7,500,000 shares of the Registrant’s common stock, $.0001 par value, pursuant to the Registrant’s 2003 Equity Incentive Plan, as amended (the “2003 Plan”) and the offering of 218,236 shares of Registrant's common stock, $.0001 par value (together with the shares covered by 2003 Plan, the “Shares”), subject to issuance by Registrant upon the exercise of stock options granted under the 2016 MagentoTech LLC Unit Option Plan, as amended (the “2016 Plan”), and assumed by Registrant in accordance with the terms of the Purchase Agreement by and amount the Registrant, MagentoTech LLC and certain other parties named therein.

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 and 2016 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 and 2016 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 and further consent to the use of my name wherever appearing in 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.


Very truly yours,
 
 
/s/ Jonathan Vaas
 
Jonathan Vaas
 
Associate General Counsel
 






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 with respect to the consolidated financial statements and the effectiveness of internal control over financial reporting incorporated by reference herein.

Our report dated January 22, 2018, on the effectiveness of internal control over financial reporting as of December 1, 2017, contains an explanatory paragraph that our audit of internal control over financial reporting excluded an evaluation of the internal control over financial reporting of TubeMogul.

(signed) KPMG LLP

Santa Clara, California
June 27, 2018





MAGENTOTECH LLC
UNIT OPTION PLAN
Section 1.      Purpose
MagentoTech LLC (the “ Company ” ), a Delaware limited liability company, has adopted the MagentoTech LLC Unit Option Plan (the “ Plan ” ) effective as of the date indicated in Section 9 hereof (the “ Effective Date ” ). The purposes of the Plan are to provide financial incentives to and to encourage selected employees, non-employee operating committee members, non-employee directors and consultants of the Company or any Subsidiary to acquire a proprietary interest in the growth and performance of the Company and its Subsidiaries and to enhance the ability of the Company and its Subsidiaries to attract, retain and reward qualified individuals.
Section 2.      Definitions
As used in the Plan, the following terms shall have the meanings set forth below:
(a)     “ Accredited Investor ” shall mean an “ accredited investor, ” as that term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended, and the rules and regulations in effect thereunder.
(b)     “ Affiliate ” shall mean, with respect to a person or entity, a person that directly or indirectly controls, or is controlled by, or is under common control with, such person or entity.
(c)     “ Cause ” shall mean the Participant's having engaged in any of the following: (A) willful misconduct or gross negligence in the performance of any of his or her duties to the Group, which, if capable of being cured, is not cured to the reasonable satisfaction of the Company within 30 days after the Participant receives from the Company written notice of such willful misconduct or gross negligence; (B) intentional failure or refusal to perform reasonably assigned duties by the Company, which is not cured to the reasonable satisfaction of the Company within 30 days after the Participant receives from the Company written notice of such failure or refusal; (C) any indictment for, conviction of, or plea of guilty or nolo contendere to, (1) any felony (other than motor vehicle offenses the effect of which do not materially affect the performance of the Participant's duties) or (2) any crime (whether or not a felony) involving fraud, theft, breach of trust or similar acts, whether of the United States or any state thereof or any similar foreign law to which the Participant may be subject; or (D) any willful failure to comply with any written rules, regulations, policies or procedures of any member of the Group which, if not complied with, would reasonably be expected to have a material adverse effect on the business or financial condition of the Group, which in the case of a failure that is capable of being cured, is not cured to the reasonable satisfaction of the Company within 30 days after the Participant receives from the Company written notice of such failure. If the Group terminates the Participant's Employment for Cause, the Company shall provide written notice to the Participant of that fact on or before the termination of employment. If, within 60 days following the termination, the Group first discovers facts that would have established “ Cause" for termination, and those facts were not known by the Group at the time of the termination, then the Company may provide the Participant with written notice, including the facts establishing that the purported “ Cause" was not known at the time of the termination, in which case the Participant's termination of Employment will be considered a for "Cause" termination.
(d)     “ Change in Control ” shall mean any transaction or series of related transactions (including the consummation of a merger, unit purchase, recapitalization, redemption, issuance of capital stock, consolidation, reorganization or otherwise) pursuant to which (i) the equity holders of Parent immediately before such transaction own (together with their affiliates), immediately following such transaction, securities representing fifty percent (50%) or less of the combined voting power of the outstanding voting securities of the entity surviving or resulting from such transaction, or (ii) Parent sells all or substantially all of the assets of the Parent and its Subsidiaries on a consolidated basis.
(e)     “ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time.
(f)     “ Committee ” shall mean the Compensation Committee of the Operating Committee of the Company, unless otherwise specified by the Operating Committee, in which event the Committee shall be as specified




by the Operating Committee, which Committee shall administer the Plan and perform the functions set forth herein. If there is no Compensation Committee and the Operating Committee does not specify otherwise, the Committee shall mean the Operating Committee.
(g)     “ Employment ” shall mean (a) a Participant's employment if the Participant is an employee of any member of the Group, (b) a Participant's services as a consultant or non-employee contractor, if the Participant is a consultant to, or non-employee contractor providing services for, any member of the Group and (c) a Participant's services as a non-employee operating committee member or director, if the Participant is a non-employee member of the operating committee or similar governing body of any member of the Group. Unless otherwise determined by the Committee, a Participant's employment shall be deemed terminated if such Participant's status changes from that of an employee to an independent contractor. A Participant's employment shall not be deemed terminated if such Participant continues to or commences to provide services as an operating committee member or a director to the Company (as the case may be) or any of its Subsidiaries immediately following the termination of services as an employee.
(h)     “ Fair Market Value ” shall mean, as of any date: (a) if the Units are not listed on a nationally recognized stock exchange, the value of such Units on that date, as determined by the Operating Committee or the audit committee, as applicable, in its good faith discretion taking into account the requirements of Section 409A of the Code; or (b) if the Units are listed or admitted to unlisted trading privileges on a nationally recognized stock exchange, the closing price of the Units as reported on the principal nationally recognized stock exchange on which the Units are traded on such date, or if no Unit prices are reported on such date, the closing price of the Units on the next preceding date on which there were reported Unit prices.
(i)     “ Group ” shall mean the Parent and the Parent's direct and indirect Subsidiaries.
(j)     “ IPO ” means the initial firm commitment underwritten offering (or series of related offerings) of securities of any member of the Group to the public pursuant to an effective registration statement (or statements) after which there is an active trading market in such securities.
(k)     “ LLC Agreement ” shall mean the Amended and Restated Limited Liability Company Agreement of the Company as amended from time to time.
(l)     “ Operating Committee ” shall mean the Operating Committee of the Company.
(m)     “ Option ” shall mean an option to purchase one or more Units granted under the Plan.
(n)     “ Option Agreement ” shall mean, with respect to any particular Option, the written document that sets forth the terms of that particular Option.
(o)     “ Parent ” shall mean Magenlux MIPCo S.ar.1., a societe a responsabilite limitee organized and existing under the laws of Grand Duchy of Luxembourg, having its registered office at 488, route de Longwy, L-1940 Luxembourg, and registered with the Luxembourg Register of Commerce and Companies under number B 200 440, together with any successor or permitted assignee thereof.
(p)     “ Participant ” shall mean an employee, non-employee operating committee member, director or consultant of the Company or any Subsidiary of the Company (as the case may be) who has been granted an Option under the Plan.
(q)     “ Person ” shall mean any individual, corporation, partnership, association, joint-stock company, trust, unincorporated organization or government or political subdivision thereof.
(r)     “ Qualifying IPO ” shall mean an IPO after which the holders of interests in Parent own interests directly in the entity the securities of which are publicly traded or, if elected by the Committee in its sole discretion, any other IPO.
(s)     “ Securities Act ” shall mean the Securities Act of 1933, as amended, and the rules and regulations in effect thereunder.




(t)     “ Subsidiary ” shall mean, in respect of any entity, any direct or indirect subsidiary company of such entity, whether now or hereafter existing.
(u)     “ Trigger Event" shall ” mean a Change in Control or a Qualifying IPO.
(v)     “ Unit's ” shall mean the units of the Company, and any and all securities of any kind whatsoever of the Company which may be issued after the date hereof in respect of, or in exchange for, such units of the Company pursuant to a merger, consolidation, stock split, stock dividend or recapitalization of the Company or otherwise.
Section 3.      Administration
(a) Generally. The Plan shall be administered by the Committee. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations and other decisions under or with respect to the Plan or any Option shall be within the sole discretion of the Committee, may be made at any time, and shall be final, conclusive, and binding upon all Persons, including the Company or any Subsidiary, any Participant, any holder or beneficiary of any Option, any holder of a Unit of the Company and any employee of the Company or any Subsidiary.
(b) Powers. Subject to the terms of the Plan and applicable law, the Committee shall have full power and authority to: (i) designate Participants; (ii) determine the number of Units to be covered by Options; (iii) determine the terms and conditions of any Option; (iv) determine whether, to what extent, and under what circumstances Options may be settled or exercised in cash, Units or other property, or canceled, forfeited, or suspended, and the method or methods by which Options may be settled, exercised, canceled, forfeited, or suspended; (v) interpret and administer the Plan and any instruments or agreements relating to, Options granted under, the Plan; (vi) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (vii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan.
In the exercise of its discretion, the Committee is under no obligation to make uniform determinations and/or interpretations as to any issue relating to any Participant or group of Participants (whether or not such Participants are similarly situated). No member of the Committee, nor any Person to whom ministerial duties have been delegated, shall be personally liable for any action, interpretation or determination made with respect to the Plan or Options made thereunder, and each member of the Committee shall be fully indemnified, held harmless and protected by the Company with respect to any liability he or she may incur with respect to any such action, interpretation or determination made in good faith, to the extent permitted by applicable law and, in addition, to the extent provided in the LLC Agreement or any other agreement between any such member and the Company. The foregoing right of indemnification shall inure to the benefit of the heirs, executors or administrators of each such member of the Committee and shall be in addition to all other rights to which such member of the Committee would be entitled to as a matter of law, contract or otherwise.
All decisions made by the Committee pursuant to the provisions of the Plan will be final and binding on all persons, including the Company and Participants.
The acts by members holding a majority of the votes held by members of the Committee at any meeting shall be the acts of the Committee; provided, that, if at any time the Committee is the Operating Committee, the acts by members holding a majority of the votes held by the members of the Operating Committee present at any meeting shall be the acts of the Committee.
Section 4.      Units Available for Options
(a)     Units Available. Subject to adjustment as provided in Section 4(b), the maximum aggregate number of Units which may be issued pursuant to the exercise of Options shall be 12,565,800. To the extent that an Option granted ceases to remain outstanding by reason of termination of rights granted thereunder or forfeiture, the Units subject to such Option shall again become available for issuance under the Plan.
(b)     Adjustments. In the event that the Committee shall determine that any change in corporate capitalization, such as an extraordinary dividend or other distribution of Units, or a corporate transaction, such as a




spin-off, recapitalization, merger, consolidation, reorganization or partial or complete liquidation of the Company or other similar corporate transaction or event, that affects the Units such that an adjustment is determined by the Committee to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in such manner as it may deem necessary to prevent dilution or enlargement of the benefits or potential benefits intended to be made under the Plan, adjust any or all of (i) the number and type of securities or other equity interests which thereafter may be made the subject of Options, (ii) the number and type of securities or other equity interests subject to outstanding Options, and (iii) the grant, purchase, or exercise price or any other terms of any Option or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Option in exchange for cancellation of such Option or provide for the cancellation of outstanding Option without payment (in cash or otherwise) in respect thereof. Notwithstanding the foregoing, any adjustments in connection with a Change in Control shall be governed by Section 4(c) hereof and not this Section 4(b). Any adjustments made pursuant to this Section 4(b) need not be identical for all Participants or for all classes of Participants, and the Committee's determination shall be final, binding and conclusive for all purposes of the Plan and each Option Agreement entered into under the Plan.
(c)     Change in Control. Upon the occurrence of a Change in Control, the Committee may, in its discretion, (i) cancel any or all Options outstanding at such time in exchange for a payment (in cash and/or other substitute consideration) to the holders of affected Options in respect of each Unit covered by the Option being cancelled in an amount equal to the excess, if any, of the per Unit price paid or distributed to equity holders of the Company, as applicable, in the transaction (the value of any non-cash consideration to be determined by the Committee in its good faith discretion) over the exercise price of the Option; provided , that, if the amount determined pursuant to this sentence is zero or less, the affected Option may be cancelled without any payment therefor, or (ii) provide for, in connection with such transaction, the assumption or continuation of such Options by, or the substitution for such Options, with new options or substitute options of the surviving, successor or resulting entity, or a parent or subsidiary thereof, with such adjustments as to the number and kind of shares or other securities or property subject to such new options or substitute options, option exercise prices, and other terms of such new options or substitute options as the Committee shall provide. In such latter event, the Plan and unexercised Options theretofore granted or the new options or substitute options substituted therefor shall continue in the manner and under the terms provided in the Plan and the applicable Option Agreements.
Section 5.      Eligibility
In determining the individuals to whom Options shall be granted and the number of Units to be covered by each Option, the Committee shall take into account the nature of his or her duties and present and potential contributions to the success of the Company and such other factors as it shall deem relevant in connection with accomplishing the purposes of the Plan. A Participant who has been granted an Option or Options under the Plan may be granted an additional Option or Options.
Section 6.      Options
The Committee is hereby authorized to grant Options to Participants upon the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine:
(a) Exercise Price. The exercise price per Unit purchasable under an Option shall not be less than the Fair Market Value of one Unit at the time the Option is granted.
(b) Option Term. The term of each Option shall be fixed by the Committee but shall not exceed ten (10) years from the date of grant.
(c) Time and Method of Exercise. The Committee shall determine the time or times at which the right to exercise an Option may vest and become exercisable, and the method or methods by which, and the form or forms in which, payment of the option price with respect to exercises of such Option may be made or deemed to have been made, which may include cash or such other consideration as deemed appropriate by the Committee. If, at the time of grant of an Option, a Participant is not an Accredited Investor, the Participant shall be required to provide no




less than thirty (30) days' notice of intent to exercise an Option prior to such exercise. Notwithstanding the foregoing, in no event shall any Option or portion thereof be exercisable prior to the occurrence of a Trigger Event, and any Option Agreement that provides otherwise shall be void ab initio.
(d) Limits on Transfer of Options. No Option and no right under any such Option shall be assignable, alienable, saleable or transferable by a Participant otherwise than by will or by the laws of descent and distribution, and such Option, and each right under any such Option, shall be exercisable during the Participant's lifetime, only by the Participant or, if permissible under applicable law, by the Participant's guardian or legal representative. No Option and no right under any such Option, may be pledged, alienated, attached, or otherwise encumbered, and any purported pledge, alienation, attachment, or encumbrance thereof shall be void and unenforceable against the Company or any Subsidiary. Notwithstanding the foregoing, the Committee may, in its discretion, provide that Options may be transferable, without consideration, to immediate family members (i.e., children, grandchildren or spouse), to trusts for the benefit of such immediate family members and to partnerships in which such family members are the only partners. In addition, a Participant may, in the manner established by the Committee, designate a beneficiary (which may be a person or a trust) to exercise the rights of the Participant upon the death of the Participant. A beneficiary, guardian, legal representative or other person claiming any rights under the Plan from or through any Participant shall be subject to all terms and conditions of the Plan and any Option Agreement applicable to such Participant, except as otherwise determined by the Committee, and to any additional restrictions deemed necessary or appropriate by the Committee.
Section 7.      Amendment and Termination
Except to the extent prohibited by applicable law:
(a) Amendments to the Plan. The Plan may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Committee, but no amendment without the approval of the equity holders of the Company shall be made if such approval would be required under any law or rule of any governmental authority, stock exchange or other self-regulatory organization to which the Company may then be subject.
(b) Correction of Defects, Omissions, and Inconsistencies. The Committee may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Option in the manner and to the extent it shall deem desirable to carry the Plan into effect.
Section 8.      General Provisions
(a) No Rights to Options. No Participant shall have any claim to be granted any Option under the Plan, and there is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Options under the Plan. The terms and conditions of Options need not be the same with respect to each recipient.
(b) No Right to Employment. The grant of an Option shall not be construed as giving a Participant the right to be retained in the employ of or to continue to provide services to the Company or any Subsidiary. Further, the Company or a Subsidiary, as applicable, may at any time dismiss a Participant from employment or service, free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or in any Option Agreement.
(c) Governing Law. The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the laws of the State of Delaware and applicable United States Federal law.
(d) Severability. If any provision of the Plan or any Option is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction, or would disqualify the Plan or any Option under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan, such provision shall be deemed void, stricken and the remainder of the Plan and any such Option shall remain in full force and effect.




(e) Headings. Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision hereof.
(f)      Tax Withholding. The Company and an applicable Subsidiary are authorized to withhold from any payment relating to an Option under the Plan the minimum amounts of taxes required by law to be withheld in connection with any transaction involving an Option, and to take such other action as the Committee may deem advisable to satisfy obligations for the payment of withholding taxes and other tax obligations relating to any Option. This authority shall include authority to withhold or receive Units or other property or cash payments otherwise due to the Participant in respect thereof in satisfaction of a Participant's tax obligations.
Section 9.      Effective Date of the Plan
The Plan will be effective as of the date of its adoption by the Committee (the “ Effective Date ” ), subject only to the approval by the affirmative vote of the holders of a majority of the securities of the Company present, or represented, and entitled to vote at a meeting of security holders duly held in accordance with the applicable laws of the State of Delaware within twelve months after the adoption of the Plan by the Committee.
Section 10.      Term of the Plan
The Plan shall continue until the earlier of (i) the date on which all Options issuable hereunder have been issued, (ii) the termination of the Plan by the Committee or (iii) the 10th anniversary of the Effective Date. However, unless otherwise expressly provided in the Plan or in an applicable Option Agreement, any Option theretofore granted may extend beyond (and be exercisable after) such date of termination and the authority of the Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Option or to waive any conditions or rights under any such Option, and the authority of the Committee to amend the Plan, shall also extend beyond such date of termination.





ANNEX A
(Provisions Applicable to Options Issued in California)
To the extent not in accordance with the foregoing, the following shall govern all options granted and securities sold to residents of California:
1.
Options shall be exercisable for not more than 120 months from the date the option is granted.
2.
Options granted pursuant to the plan shall not be transferred other than by will, by the laws of descent and distribution, to a revocable trust, or as permitted by Rule 701 of the Securities Act of 1933, as amended (17 C.F.R. 230.701).
3.
The number of securities purchasable pursuant to any option and the exercise price thereof, shall be proportionately adjusted in the event of a unit split, reverse unit split, unit dividend, recapitalization, combination, reclassification or other distribution of the issuer's equity securities without the receipt of consideration by the issuer, of or on the issuer's class or series of securities underlying the option.
4.
Unless the grantee's employment is terminated for cause as defined by applicable law, the right to exercise the option in the event of termination of employment, to the extent that the Participant is entitled to exercise on the date employment terminates, shall continue until the earlier of the option expiration date or (1) at least 6 months from the date of termination if termination was caused by death or disability, or (2) at least 30 days from the date of termination if termination was caused by other than death or disability.
5.
The Plan must be approved by a majority of the outstanding securities entitled to vote by the
6.
later of (1) within twelve (12) months before or after the date the Plan is adopted, or (2) prior to or within twelve (12) months of the granting of any option under the Plan in California. Securities issued pursuant to the Plan shall not be counted in determining whether such approval is obtained.
7.
No options may be granted more than 10 years from the date the plan or agreement is adopted or the date the plan or agreement is approved by the issuer's security holders, whichever is earlier.



















AMENDMENT TO THE MAGENTOTECH LLC
UNIT OPTION PLAN
WHEREAS, MagentoTech LLC (the “ Company ”), a Delaware limited liability company, sponsors the MagentoTech LLC Unit Option Plan (the “ Plan ”);
WHEREAS, Section 7 of the Plan provides that the Committee may amend the Plan, subject to certain limitations therein;
WHEREAS, consistent with Section 7 of the Plan, the increase in the number of Units available under Section 4(a) of the Plan is required to be approved by the equity holder of the Company in order to comply with certain securities laws;
WHEREAS, the Committee and the equity holder of the Company each desires to amend the Plan as set forth herein and increase the number of Units available under Section 4(a) of the Plan;
WHEREAS, capitalized terms that are not defined herein shall have the meanings set forth in the
Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1.
The first sentence of Section 4(a) is deleted in its entirety and replaced by the following:
“Subject to adjustment provided in Section 4(b), the maximum aggregate number of Units which may be issued pursuant to the exercise of Options shall be 16,968,575.”

2.
Governing Law. The validity, construction and effect of the amendment to the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the laws of the State of Delaware and applicable United States Federal law.
3.
All other provisions of the Plan shall remain in full force and effect.

















AMENDMENT No.2 TO THE MAGENTOTECH LLC
UNIT OPTION PLAN
WHEREAS, MagentoTech LLC (the “ Company ”), a Delaware limited liability company, sponsors the MagentoTech LLC Unit Option Plan (the “ Plan ”);
WHEREAS, Section 7 of the Plan provides that the Committee may amend the Plan, subject to certain limitations therein;
WHEREAS, consistent with Section 7 of the Plan, the increase in the number of Units available under Section 4(a) of the Plan is required to be approved by the equity holder of the Company in order to comply with certain securities laws;
WHEREAS, the Committee and the equity holder of the Company each desires to amend the Plan as set forth herein and increase the number of Units available under Section 4(a) of the Plan;
WHEREAS, capitalized terms that are not defined herein shall have the meanings set forth in the
Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1.
The first sentence of Section 4(a) is deleted in its entirety and replaced by the following:
“Subject to adjustment provided in Section 4(b), the maximum aggregate number of Units which may be issued pursuant to the exercise of Options shall be 17,714,575.”

2.
Governing Law. The validity, construction and effect of the amendment to the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the laws of the State of Delaware and applicable United States Federal law.
3.
All other provisions of the Plan shall remain in full force and effect.


















AMENDMENT No.3 TO THE MAGENTOTECH LLC
UNIT OPTION PLAN
WHEREAS, MagentoTech LLC (the “ Company ”), a Delaware limited liability company, sponsors the MagentoTech LLC Unit Option Plan (the “ Plan ”);
WHEREAS, Section 7 of the Plan provides that the Committee may amend the Plan, subject to certain limitations therein;
WHEREAS, consistent with Section 7 of the Plan, the increase in the number of Units available under Section 4(a) of the Plan is required to be approved by the equity holder of the Company in order to comply with certain securities laws;
WHEREAS, the Committee and the equity holder of the Company each desires to amend the Plan as set forth herein and increase the number of Units available under Section 4(a) of the Plan;
WHEREAS, capitalized terms that are not defined herein shall have the meanings set forth in the
Plan;
NOW, THEREFORE, the Plan is hereby amended as follows:
1.
The first sentence of Section 4(a) is deleted in its entirety and replaced by the following:
“Subject to adjustment provided in Section 4(b), the maximum aggregate number of Units which may be issued pursuant to the exercise of Options shall be 18,763,153.”

2.
Governing Law. The validity, construction and effect of the amendment to the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the laws of the State of Delaware and applicable United States Federal law.
3.
All other provisions of the Plan shall remain in full force and effect.