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Adobe Systems 8-K 2011

Documents found in this filing:

  1. 8-K
  2. Ex-10.1
  3. Ex-10.2
  4. Ex-99.1
  5. Graphic
  6. Graphic

 

 

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 15, 2011 (December 12, 2011)

 

Adobe Systems Incorporated

(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):

 

o            Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o            Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o            Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o            Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 2.02. Results of Operations and Financial Condition.

 

On December 15, 2011, Adobe Systems Incorporated (“Adobe”) issued a press release announcing its financial results for its fourth fiscal quarter and year ended December 2, 2011. A copy of this press release is furnished and attached hereto as Exhibit 99.1 and is incorporated herein by reference.

 

The information in this report and the exhibit attached hereto are being furnished and shall not be deemed filed for purposes of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly stated by specific reference in such filing.

 

The attached press release includes non-GAAP operating income, non-GAAP operating margin, non-GAAP net income, non-GAAP operating expenses, non-GAAP tax rate and non-GAAP diluted net income per share, and forecasted non-GAAP diluted net income per share.

 

These non-GAAP measures are not in accordance with, or an alternative for, generally accepted accounting principles and may be different from non-GAAP measures used by other companies. In addition, these non-GAAP measures are not based on any comprehensive set of accounting rules or principles. We believe that non-GAAP measures have limitations in that they do not reflect all of the amounts associated with our results of operations as determined in accordance with GAAP and that these measures should only be used to evaluate our results of operations in conjunction with the corresponding GAAP measures.

 

For our internal budgeting and resource allocation process, we use non-GAAP financial measures, net of the related tax impacts, which exclude: (A) stock-based and deferred compensation expenses; (B) restructuring and other charges; (C) amortization of purchased intangibles; (D) resolution of an income tax audit; (E) investment gains and losses; (F) income tax adjustments; and (G) the income tax effect of the non-GAAP pre-tax adjustments from the provision for income taxes.  We use these non-GAAP financial measures in making operating decisions because we believe the measures provide meaningful supplemental information regarding our operational performance and give us a better understanding of how we should invest in research and development and fund infrastructure and go-to-market strategies.  We use these measures to help us make budgeting decisions, for example, as between product development expenses and research and development, sales and marketing and general and administrative expenses. In addition, these non-GAAP financial measures facilitate our internal comparisons to our historical operating results and comparisons to competitors’ operating results.

 

As described above, we exclude the following items from one or more of our non-GAAP measures:

 

A.            Stock-based and deferred compensation expenses and related tax impact.  Stock-based compensation expense consists of charges for employee stock options, restricted stock units, performance shares and employee stock purchases in accordance with current GAAP related to stock-based compensation including expense associated with stock-based compensation related to unvested options and restricted stock units assumed in connection with our acquisitions. As we apply current stock-based compensation standards, we believe that it is useful to investors to understand the impact of the application of these standards to our operational performance, liquidity and our ability to invest in research and development and fund acquisitions and capital expenditures.  Although stock-based compensation expense is calculated in accordance with current GAAP and constitutes an ongoing and recurring expense, such expense is excluded from non-GAAP results because it is not an expense that typically requires or will require cash settlement by us and because such expense is not used by us to assess the core profitability of our business operations. Deferred compensation expense consists of charges associated with movements in our liability related to our deferred compensation plan. Although deferred compensation expense constitutes an ongoing and recurring expense, such expense is excluded from non-GAAP results because it is not an expense that typically requires current cash settlement by us and because such expense is not used by us to assess the core profitability of our business operations. We further believe these measures are useful to investors in that they allow for greater transparency to certain line items in our financial statements.  In addition, excluding these items from various non-GAAP measures facilitates comparisons to our competitors’ operating results.

 

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B.            Restructuring and other charges and related tax impact.  During the past several years, we have initiated certain restructuring activities in order to align our costs in connection with both our operating plans and our business strategies based on then-current economic conditions. As a result, we recognized costs related to termination benefits for former Adobe employees whose positions were eliminated, the write-down of certain assets that were no longer useful to us based on changes in our business and the consolidation of leased facilities. Restructuring and other charges are excluded from non-GAAP results because such expense is not used by us to assess the core profitability of our business operations.

 

C.            Amortization of purchased intangibles and related tax impact.  We incur amortization of purchased intangibles in connection with our acquisitions. Purchased intangibles include (i) purchased technology, (ii) trademarks, (iii) customer contracts and relationships and (iv) other intangibles. We expect to amortize for accounting purposes the fair value of the purchased intangibles based on the pattern in which the economic benefits of the intangible assets will be consumed as revenue is generated. Although the intangible assets generate revenue for us, we exclude this item because this expense is non-cash in nature and because we believe the non-GAAP financial measures excluding this item provide meaningful supplemental information regarding our operational performance, liquidity and our ability to invest in research and development and fund acquisitions and capital expenditures. In addition, excluding this item from various non-GAAP measures facilitates our internal comparisons to our historical operating results and comparisons to our competitors’ operating results. We exclude these items because these expenses are not reflective of ongoing operating results in the current period.

 

D.            Resolution of an income tax audit and related tax impact. During the fiscal year ended December 3, 2010, we realized a one-time tax benefit as a result of the resolution of an income tax audit for fiscal years 2005 through 2007. We have excluded this item because this tax benefit is unrelated to our ongoing business and operating results.

 

E.            Investment gains and losses and related tax impact.  We incur investment gains and losses principally from realized gains or losses from the sale and exchange of marketable equity investments, other-than-temporary declines in the value of marketable and non-marketable equity securities, unrealized holding gains and losses associated with our deferred compensation plan assets (classified as trading securities) and gains and losses on the sale of equity securities held indirectly through investment partnerships. We do not actively trade publicly held securities nor do we rely on these securities positions for funding our ongoing operations.  We exclude gains and losses and the related tax impact on these equity securities because these items are unrelated to our ongoing business and operating results.

 

F.             Income tax adjustments.  Other income tax adjustments are primarily related to one-time tax charges in connection with certain acquisitions, a one-time tax benefit associated with certain portions of a favorable California state income tax ruling and prior year items such as a one-time tax benefit due to the retroactive reinstatement of the Federal Research and Development tax credit which was retroactively extended to January 1, 2010. We exclude these adjustments because these items are not used by us to assess the core profitability of our business operations.

 

G.            Income tax effect of the non-GAAP pre-tax adjustments from the provision for income taxes. Excluding the income tax effect of the non-GAAP pre-tax adjustments from the provision for income taxes assists investors in understanding the tax provision associated with those adjustments and the effective tax rate related to our ongoing operations.

 

We believe that non-GAAP measures have limitations in that they do not reflect all of the amounts associated with our financial results as determined in accordance with GAAP and that these measures should only be used to evaluate our financial results in conjunction with the corresponding GAAP measures and that is why we qualify the use of non-GAAP financial information in a statement when non-GAAP information is presented.

 

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Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

On December 12, 2011, our Executive Compensation Committee approved the adoption of the Adobe Systems Incorporated 2011 Executive Severance Plan in the Event of a Change of Control for Prior Participants (the “Prior Participant Change of Control Plan”) and the Adobe Systems Incorporated 2011 Executive Severance Plan in the Event of a Change of Control (together with the Prior Participant Change of Control Plan, the “Change of Control Plans”), each of which became effective on December 13, 2011 and are attached to this Current Report on Form 8-K as Exhibit 10.1 and 10.2, respectively, and incorporated herein by reference.  The Change of Control Plans replace Adobe’s prior Executive Severance Plan in the Event of a Change of Control, as amended, which terminated in accordance with its terms on December 12, 2011.

 

Item 9.01. Financial Statements and Exhibits.

 

(d)         Exhibits

 

10.1            Adobe Systems Incorporated 2011 Executive Severance Plan in the Event of a Change of Control for Prior Participants

 

10.2                Adobe Systems Incorporated 2011 Executive Severance Plan in the Event of a Change of Control

 

99.1                Press release issued on December 15, 2011 entitled “Adobe Reports Record Quarterly and Annual Revenue”

 

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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 SYSTEMS INCORPORATED

 

 

Date: December 15, 2011

By:

/s/ Mark Garrett

 

 

 

 

 

Mark Garrett

 

 

Executive Vice President and Chief

 

 

Financial Officer

 

5



 

EXHIBIT INDEX

 

Exhibit
No.

 

Description

10.1

 

Adobe Systems Incorporated 2011 Executive Severance Plan in the Event of a Change of Control for Prior Participants

10.2

 

Adobe Systems Incorporated 2011 Executive Severance Plan in the Event of a Change of Control

99.1

 

Press release issued on September 20, 2011 entitled “Adobe Reports Record Quarterly and Annual Revenue”

 

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