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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): December 18, 2023 (December 17, 2023)
ADOBE INC.
(Exact name of Registrant as specified in its charter) | | | | | | | | | | | | | | |
| Delaware | | 0-15175 | | 77-0019522 |
| (State or other jurisdiction of incorporation) | | (Commission File Number) | | (I.R.S. Employer Identification No.) |
345 Park Avenue
San Jose, California 95110-2704
(Address of principal executive offices and zip code)
Registrant’s telephone number, including area code: (408) 536-6000
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act: | | | | | | | | |
| Title of Each Class | Trading Symbol | Name of Each Exchange on Which Registered |
| Common Stock, $0.0001 par value per share | ADBE | NASDAQ Global Select Market |
Indicate by check mark whether the Registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
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. ☐
Item 1.01. Entry Into a Material Definitive Agreement.
The disclosure set forth below under Item 1.02 of this Current Report on Form 8-K is incorporated by reference herein.
Item 1.02. Termination of a Material Definitive Agreement.
As previously disclosed, on September 15, 2022, Adobe Inc. (the “Company”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) by and among the Company, Saratoga Merger Sub I, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“Merger Sub I”), Saratoga Merger Sub II, LLC, a Delaware limited liability company and wholly owned subsidiary of the Company (“Merger Sub II”), Figma, Inc., a Delaware corporation (“Figma”), and Fortis Advisors LLC, a Delaware limited liability company, in its capacity as the representative of the Figma stockholders, pursuant to which the Company agreed to acquire Figma on the terms and subject to the conditions therein.
On December 17, 2023, the Company and Figma mutually agreed to terminate the Merger Agreement and entered into a mutual termination agreement effective as of such date (the “Termination Agreement”). The mutual termination of the Merger Agreement was approved by the Company’s and Figma’s respective Boards of Directors. In accordance with the terms of the Termination Agreement, the Company will make a cash payment to Figma in the previously agreed amount of one billion dollars ($1,000,000,000) (the “Termination Fee”) within three business days following the date thereof. The Termination Fee is the sole and exclusive remedy under the Merger Agreement, and the Company and Figma have each waived any and all other claims in connection with the Merger Agreement and the transactions contemplated thereby.
The foregoing description of the Merger Agreement and the Termination Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement, which was previously filed as Exhibit 2.1 to our Current Report on Form 8‐K on September 15, 2022, and the full text of the Termination Agreement, which is attached hereto as Exhibit 10.1 and incorporated by reference herein.
Item 8.01. Other Information.
On December 18, 2023, the Company and Figma issued a joint press release announcing the mutual termination of the Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated by reference herein.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | Incorporated by Reference | | | | |
Exhibit
Number | | Exhibit Description | | Form | | Filing Date | | Exhibit Number | | SEC File No. | | Filed
Herewith |
| | | | | | | | | | | | |
| 10.1* | | | | | | | | | | | | X |
| 99.1 | | | | | | | | | | | | X |
| 104 | | Cover Page Interactive Data File. (Embedded within the Inline XBRL Document) | | | | | | | | | | |
*Certain exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K promulgated by the United States Securities and Exchange Commission (the “SEC”). The Company agrees to furnish supplementally a copy of any omitted exhibit to the SEC upon request.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| | | | | | | | |
| | ADOBE INC. |
| | |
| | By: | /s/ DANA RAO |
| | | Dana Rao |
| | | Executive Vice President, General Counsel & Corporate Secretary |
Date: December 18, 2023
Exhibit 10.1
MUTUAL TERMINATION AGREEMENT
MUTUAL TERMINATION AGREEMENT (this “Agreement”), dated as of December 17, 2023, by and among Adobe Inc., a Delaware corporation (“Parent”), Figma, Inc., a Delaware corporation (the “Company”), Saratoga Merger Sub I, Inc., a Delaware corporation and a direct, wholly owned subsidiary of Parent (“Merger Sub I”), and Saratoga Merger Sub II, LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of Parent (“Merger Sub II”).
W I T N E S S E T H:
WHEREAS, Parent, Merger Sub I, Merger Sub II, the Company and Fortis Advisors LLC, a Delaware limited liability company, in its capacity as the representative of the stockholders of the Company, have entered into that certain Agreement and Plan of Merger, dated as of September 15, 2022 (the “Merger Agreement”), in order to, among other things, advance the respective business operations of Parent and the Company. Any capitalized term used but not otherwise defined herein shall have the meaning set forth in the Merger Agreement.
WHEREAS, Section 8.1(a) of the Merger Agreement provides that the Merger Agreement may be terminated and the Mergers may be abandoned at any time prior to the Closing by mutual written consent of the Company and Parent.
WHEREAS, the Boards of Directors of each of the Company and Parent have determined that it is in the best interests of their respective companies and their respective stockholders to terminate the Merger Agreement in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows:
1.The parties hereto mutually agree to terminate the Merger Agreement, effective as of the execution of this Agreement (the “Termination Time”), such agreement constituting the requisite mutual agreement and written consent required to terminate the Merger Agreement pursuant to Section 8.1(a) of the Merger Agreement and otherwise as may be required pursuant to applicable Law. Parent and the Company each agree that the Merger Agreement is hereby and forthwith void and without effect.
2.The press release of Parent announcing the termination of the Merger Agreement pursuant to this Agreement is set forth on Annex A. Parent and the Company shall issue such joint press release prior to the opening of trading on Nasdaq on December 18, 2023. Each of Parent and the Company agree that the Confidentiality Agreement will expire on the 18-month anniversary of the Termination Time. Pursuant to Section 5 of the Confidentiality Agreement, Parent and the Company will, and will instruct their agents to (a) promptly return or destroy all Confidential Information received from the Disclosing Party (as defined in the Confidentiality Agreement) (including any copies, extracts or other reproductions of the Confidential Information) and (b) promptly confirm such return or destruction; provided that Parent and the Company and their agents will not be required to destroy Confidential Information that is contained in, or intermingled with, other documents or data of Parent or the Company, as applicable, that Parent or the Company, as applicable, is required by applicable law, regulation, or legal process to preserve, and the legal department of Parent or the Company, as applicable, may retain one copy of any item of written Confidential Information for record retention purposes only.
3.Each of Parent and the Company hereby represents and warrants that (a) such party has full corporate power and authority to execute and deliver this Agreement, (b) the execution and delivery of this Agreement, the termination of the Merger Agreement and consummation of the other transactions contemplated hereby have been duly and validly approved by the Board of Directors (or similar governing body in the case of a party that is not a corporation) of such party, (c) no other corporate proceedings on the part of such party are necessary to approve this Agreement or the termination of the Merger Agreement or to consummate the other transactions contemplated hereby and (d) this Agreement has been duly and validly executed and delivered by such party (assuming due authorization, execution and delivery by the other parties) and constitutes a valid and binding obligation of such party, enforceable against such party in accordance with its terms (except in all cases as such enforceability may be limited by the Bankruptcy and Equity Exceptions).
4.This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. Any agreement on the part of a party hereto to any extension or waiver of the Agreement shall be valid only if set forth in a written instrument signed on behalf of such party, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
5.As liquidated damages as contemplated by Section 8.2 of the Merger Agreement and as consideration for the Company agreeing to terminate the Merger Agreement at the Termination Time, the Company agreeing to waive any other rights or remedies it may have under the Merger Agreement as set forth in Section 6 of this Agreement, and for any of the Company’s lost profits, negative impacts to its market, and/or other financial and operational setbacks it incurred and anticipates to incur as a result of such termination, Parent shall pay to the Company, within three (3) Business Days following the date hereof, a payment in the amount of One Billion Dollars ($1,000,000,000) (the “Termination Fee”) in cash by wire transfer of immediately available funds to an account designated by the Company to Parent in writing.
6.The parties agree that, other than payment of the Termination Fee, none of Parent, Merger Sub I, Merger Sub II, any other Subsidiary of Parent or any of their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates, agents or Representatives shall have any further liability whatsoever with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement to the Company, any Subsidiary of the Company or any of their respective Affiliates or Representatives and payment of the Termination Fee by Parent shall be the Company’s and its Affiliates’ sole and exclusive remedy for any Action, losses, liabilities, damages, judgments, inquiries, fines, fees, costs and expenses suffered or incurred by the Company, the Subsidiaries of the Company or any other Person in connection with the Merger Agreement, the transactions contemplated by the Merger Agreement (and the termination thereof) or any matter forming the basis for such termination, and the Company shall not have, and expressly waives and relinquishes, any other right, remedy or recourse (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity) under the Merger Agreement and the transactions contemplated by the Merger Agreement, provided that the Confidentiality Agreement and the Clean Team Agreement shall survive termination of the Merger Agreement in accordance with their terms as and to the extent provided therein and in Section 2. If Parent fails to promptly pay the Termination Fee pursuant to this Agreement, Parent shall pay to the Company all reasonable and documented fees, costs and expenses of enforcement (including reasonable and documented outside attorneys’ fees as well as expenses incurred in connection with any action initiated by the Company), together with interest on the amount of the Termination Fee, at the prime lending rate as published in The Wall Street Journal, in effect on the date such payment is required to be made.
7.The parties agree that none of Company, any other Subsidiary of Company or any of their respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates, agents or Representatives shall have any further liability whatsoever with respect to the Merger Agreement or the transactions contemplated by the Merger Agreement to Parent, any Subsidiary of Parent or any of its respective Affiliates or Representatives, and none of Parent, Merger Sub I or Merger Sub II shall have, and expressly waive and relinquish, any other right, remedy or recourse (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity) against the Company under the Merger Agreement and the transactions contemplated by the Merger Agreement, provided that the Confidentiality Agreement and the Clean Team Agreement shall survive termination of the Merger Agreement in accordance with their terms as and to the extent provided therein and in Section 2.
8.Parent and the Company have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by Parent and the Company, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of a provision of this Agreement. When a reference is made in this Agreement to Sections or Annexes, such reference shall be to a Section or an Annex of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The word “or” shall not be exclusive. Each Party shall pay its own expenses incident to this Agreement.
9.Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any party (whether by operation of law or otherwise) without the prior written consent of the other (which may be withheld by such other party in its sole discretion). Any purported assignment in contravention hereof shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement (including the documents and instruments referred to herein) is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein.
10.Sections 11.1, 11.4, 11.5, 11.7, 11.9, 11.10, 11.12 and 11.13 of the Merger Agreement are hereby incorporated into this Agreement by reference, and shall apply hereto as though set forth herein, mutatis mutandis.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first above written.
| | | | | |
| ADOBE INC. | |
| |
| By: | /s/ Dan Durn |
| Name: | Dan Durn |
| Title: | Chief Financial Officer and Executive Vice President |
| | | | | |
SARATOGA MERGER SUB I, INC. |
| |
| By: | /s/ Allison Blais |
| Name: | Allison Blais |
| Title: | President |
| | | | | |
| SARATOGA MERGER SUB II, LLC |
| |
| By: | ADOBE INC., its sole member |
| |
| By: | /s/ Dan Durn |
| Name: | Dan Durn |
| Title: | Chief Financial Officer and Executive Vice President |
[Signature Page to Mutual Termination Agreement]
| | | | | |
FIGMA, INC. |
| |
| By: | /s/ Dylan Field |
| Name: | Dylan Field |
| Title: | Chief Executive Officer |
[Signature Page to Mutual Termination Agreement]
EXHIBIT A
Parent Press Release
Exhibit 99.1
Adobe Investor Relations Contact
Jonathan Vaas
ir@adobe.com
Adobe Public Relations Contact
Ashley Levine
adobepr@adobe.com
Figma Public Relations Contact
Michael Amodeo
Press@figma.com
ADOBE AND FIGMA MUTUALLY AGREE TO TERMINATE MERGER AGREEMENT
San Jose and San Francisco, Calif, Dec. 18, 2023 – Today, Adobe (Nasdaq:ADBE) and Figma announced that they have entered into a mutual agreement to terminate their previously announced merger agreement, originally announced on September 15, 2022, under which Adobe would have acquired Figma for a mix of cash and stock consideration.
Although both companies continue to believe in the merits and procompetitive benefits of the combination, Adobe and Figma mutually agreed to terminate the transaction based on a joint assessment that there is no clear path to receive necessary regulatory approvals from the European Commission and the UK Competition and Markets Authority.
“Adobe and Figma strongly disagree with the recent regulatory findings, but we believe it is in our respective best interests to move forward independently,” said Shantanu Narayen, chair and CEO, Adobe. “While Adobe and Figma shared a vision to jointly redefine the future of creativity and productivity, we continue to be well positioned to capitalize on our massive market opportunity and mission to change the world through personalized digital experiences.”
“Figma has built an incredible product design platform, and I am confident in their continued innovation and growth after spending more than a year with their team and community,” said David Wadhwani, president, Digital Media Business, Adobe. “I have been impressed with Dylan and his incredible team at Figma and will look for ways to partner to delight joint customers in the future.”
“Going through this process with Shantanu, David and the Adobe team has only reinforced my belief in the merits of this deal, but it’s become increasingly clear over the past few months that regulators don’t see things the same way,” said Dylan Field, co-founder and CEO, Figma. “While we’re disappointed in the outcome, I am deeply grateful to everyone who has contributed to this effort and excited to find other ways to innovate on behalf of our respective communities with Adobe.”
The companies have signed a termination agreement that resolves all outstanding matters from the transaction, including Adobe paying Figma the previously agreed upon termination fee.
Advisors
Wachtell, Lipton, Rosen & Katz; Skadden, Arps, Slate, Meagher & Flom LLP; and Freshfields Bruckhaus Deringer are serving as legal advisors to Adobe. Fenwick & West LLP; Slaughter and May; and Cleary Gottlieb Steen & Hamilton LLP are serving as legal advisors to Figma.
Forward-Looking Statements Disclosure
In addition to historical information, this press release contains forward-looking statements within the meaning of applicable securities law. In addition, when used in this press release, the words “will,” “expects,” “could,” “would,” “may,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “targets,” “estimates,” “looks for,” “looks to,” “continues” and similar expressions, as well as statements regarding our focus for the future, are generally intended to identify forward-looking statements. Each of the forward-looking statements we make in this press release involves risks, uncertainties and assumptions based on information available to us as of the date of this press release. Such risks and uncertainties, many of which relate to matters beyond our control, could cause actual results to differ materially from these forward-looking statements. Factors that might cause or contribute to such differences include, but are not limited to: failure to innovate effectively and meet customer needs; issues relating to development and use of AI; failure to realize the anticipated benefits of investments or acquisitions; failure to compete effectively; damage to our reputation or brands; service interruptions or failures in information technology systems by us or third parties; security incidents; failure to effectively develop, manage and maintain critical third-party business relationships; risks associated with being a multinational corporation and adverse macroeconomic conditions; failure to recruit and retain key personnel; complex sales cycles; changes in, and compliance with, global laws and regulations, including those related to information security and privacy; failure to protect our intellectual property; litigation, regulatory inquiries and intellectual property infringement claims; changes in tax regulations; complex government procurement processes; risks related to fluctuations in or the timing of revenue recognition from our subscription offerings; fluctuations in foreign currency exchange rates; impairment charges; our existing and future debt obligations; catastrophic events; and fluctuations in our stock price. Further information on these and other factors are discussed in the section titled “Risk Factors” in Adobe’s most recently filed Annual Report on Form 10-K and Adobe's most recently filed Quarterly Reports on Form 10-Q. The risks described in this press release and in Adobe’s filings with the U.S. Securities and Exchange Commission should be carefully reviewed. Adobe undertakes no obligation to publicly release any revisions to the forward-looking statements or reflect events or circumstances after the date of this communication, except as required by law.
About Adobe
Adobe is changing the world through digital experiences. For more information, visit www.adobe.com.
About Figma
Figma is a design platform for teams who build products together. Born on the web, Figma helps teams brainstorm, design, and build better products—from start to finish. Whether it’s consolidating tools, simplifying workflows, or collaborating across teams and time zones, Figma makes the design process faster, more efficient, and fun while keeping everyone on the same page.