Registration No. 333-            

As filed with the Securities and Exchange Commission on January 8, 2015

 

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Citrix Systems, Inc.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Delaware   75-2275152

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

851 West Cypress Creek Road

Fort Lauderdale, Florida 33309

(Address of Principal Executive Offices) (Zip Code)

 

 

Citrix Systems, Inc. 2015 Employee Stock Purchase Plan

RightSignature, LLC 2014 Restricted Unit Plan

Solid Instance, Inc. 2014 Restricted Stock Unit Plan

(Full Title of the Plan)

 

 

David R. Friedman

Senior Vice President, Human Resources and General Counsel

Citrix Systems, Inc.

851 West Cypress Creek Road

Fort Lauderdale, Florida 33309

(Name and Address of Agent for Service of Process)

(954) 267-3000

(Telephone Number, Including Area Code, of Agent For Service)

 

 

Copies to:

Stuart M. Cable, Esq.

Goodwin Procter LLP

Exchange Place

53 State Street

Boston, Massachusetts 02109

Tel: (617) 570-1000

Fax: (617) 523-1231

 

 

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   x    Accelerated filer   ¨
Non-accelerated filer   ¨   (Do not check if a smaller reporting company)    Smaller reporting company   ¨

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Securities

to be Registered

 

Amount

to be
Registered (3)

  Proposed
Maximum
Offering Price
Per Share
  Proposed
Maximum
Aggregate
Offering Price
  Amount of
Registration Fee

Common Stock, $.001 par value (1)

  67,500   $62.50 (4)   $4,218,750 (4)   $490.22

Common Stock, $.001 par value (2)

  23,430   $62.50 (4)   $1,464,375 (4)   $170.17

Common Stock, $.001 par value

  20,000,000   $62.50 (5)   $1,062,500,000 (5)    $123,462.50

Total

  20,090,930       $1,068,183,125   $124,122.89

 

 

(1) Pursuant to a Membership Interest Purchase Agreement, dated as of October 8, 2014 by and among Citrix Systems, Inc. (the “Registrant”) and RightSignature, LLC, the Registrant assumed all of the awards of restricted stock units under the RightSignature, LLC 2014 Restricted Unit Plan (the “RightSignature Plan”). Effective October 17, 2014, all of the restricted stock units issued under the RightSignature Plan were converted into the right to receive up to 67,500 shares of the Registrant’s Common Stock.
(2) Pursuant to a Share Purchase Agreement, dated as of November 5, 2014 by and among the Registrant and Solid Instance, Inc., the Registrant assumed all of the awards of restricted stock units under the Solid Instance, Inc. 2014 Restricted Stock Unit Plan (the “Solid Instance Plan”). Effective November 10, 2014, all of the restricted stock units issued under the Solid Instance Plan were converted into the right to receive up to 23,430 shares of the Registrant’s Common Stock.
(3) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the RightSignature Plan, the Solid Instance Plan, or the Citrix Systems, Inc. 2015 Employee Stock Purchase Plan (the “ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of the Registrant.
(4) Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(h)(1) and 457(c) under the Securities Act and based upon the average of the high and low prices of the Common Stock reported on the Nasdaq Global Select Market on January 5, 2015.
(5) Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(h)(1) and 457(c) under the Securities Act and based upon the average of the high and low prices of the Common Stock reported on the Nasdaq Global Select Market on January 5, 2015 multiplied by 85%, which is the percentage of the price per share applicable to purchases under the ESPP.

 

 

 


EXPLANATORY NOTE

The Registrant’s board of directors (the “Board”) approved the ESPP on October 29, 2014, subject to the further approval of the ESPP by the holders of a majority of the votes cast at a meeting of stockholders at which a quorum is present. The Registrant intends to submit a resolution seeking approval of the ESPP to its stockholders at the Registrant’s 2015 annual meeting of stockholders and to include such resolution in the Registrant’s definitive proxy statement for such meeting. The Registrant is filing this Registration Statement on Form S-8 as it relates to the ESPP because, as permitted under the ESPP, the Registrant intends to permit employees to participate in the ESPP beginning on January 16, 2015; provided that any participation rights granted shall be contingent on receipt of stockholder approval and if stockholder approval is not obtained, any and all employee contributions shall be promptly refunded and no shares of Common Stock may be issued under the ESPP.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1. Plan Information.

The documents containing the information specified in this Item 1 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

 

Item 2. Registrant Information and Employee Plan Annual Information.

The documents containing the information specified in this Item 2 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under 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 pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference in this Registration Statement:

(a) The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2013, filed with the Commission on February 20, 2014;

(b) The Registrant’s Quarterly Reports on Form 10-Q for the quarter ended March 31, 2014, filed with the Commission on May 6, 2014, for the quarter ended June 30, 2014, filed with the Commission on August 5, 2014 and for the quarter ended September 30, 2014, filed with the Commission on November 4, 2014;

(c) The Registrant’s Current Reports on Form 8-K filed with the Commission on January 29, 2014 (but only with respect to Item 5.02), April 25, 2014, April 30, 2014, May 28, 2014, June 26, 2014 (but only with respect to Item 5.02 and as amended by Amendment No. 1 to Current Report on Form 8-K/A filed with the Commission on October 31, 2014), July 18, 2014, December 11, 2014 and January 8, 2015; and

(d) The section entitled “Description of Registrant’s Securities to be Registered” contained in the Registrant’s Registration Statement on Form 8-A, filed with the Commission pursuant to Section 12(g) of the Exchange Act on October 24, 1995.

 

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All documents subsequently filed with the Commission 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 herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or 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. Interest of Named Experts and Counsel.

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

The Delaware General Corporation Law (the “DGCL”) and the Registrant’s Amended and Restated Certificate of Incorporation, as amended (the “Charter”), provide for indemnification of the Registrant’s directors and officers for liabilities and expenses that they may incur in such capacities. In general, directors and officers are indemnified with respect to actions taken in good faith in a manner reasonably believed to be in, or not opposed to, the best interests of the Registrant, and with respect to any criminal action or proceeding, actions that the director or officer had no reasonable cause to believe were unlawful.

Section 145 of the DGCL makes provision for the indemnification of officers and directors of corporations in terms sufficiently broad to indemnify the officers and directors of the Registrant under certain circumstances from liabilities (including reimbursement of expenses incurred) arising under the Securities Act. Section 102(b)(7) of the DGCL permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director of the corporation to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for a breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) in respect of certain unlawful dividend payments or stock redemptions or repurchases, or (iv) for any transaction from which the director derived an improper personal benefit.

As permitted by the DGCL, the Charter provides that no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director notwithstanding any provision of law imposing such liability, except to the extent provided by applicable law in the situations described in clauses (i)—(iv), inclusive, set forth in the preceding paragraph. The effect of this provision of the Charter is to eliminate the rights of the Registrant and its stockholders (through stockholders’ derivative suits on behalf of the Registrant) to recover monetary damages against a director for breach of fiduciary duty as a director thereof, except in limited circumstances proscribed by law. This provision will not alter the liability of directors under federal securities laws.

The Charter also provides that the Registrant shall indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Registrant), by reason of the fact that he is or was, or has agreed to become, a director or officer of the Registrant, or is or was serving, or has agreed to serve, at the request of the Registrant, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan), or by

 

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reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful; provided, that the Registrant shall not indemnify any such person seeking indemnification in connection with a proceeding initiated by such person unless the initiation thereof was approved by the Board of Directors of the Registrant or unless the corporation otherwise determines that such person is entitled to indemnification following such person’s written request therefor. The Charter further provides that the Registrant shall similarly indemnify such persons made party to any threatened, pending or completed action or suit by or in the right of the Registrant to procure a judgment in its favor, against such expenses, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Registrant unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of Delaware or such other court shall deem proper.

The Charter also provides that, if the Registrant does not assume the defense of any claim of which the Registrant receives notice by a person seeking indemnification (each, an “Indemnitee”), any expenses incurred by an Indemnitee in defending a civil or criminal action, suit, proceeding or investigation or any appeal therefrom shall be paid by the Registrant in advance of the final disposition of such matter; provided, that the payment of such expenses shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Registrant as authorized by the Charter.

The Charter also provides that the indemnification and advancement of expenses described above shall not be deemed exclusive of any other rights to which an Indemnitee seeking indemnification or advancement of expenses may be entitled under any law, agreement or vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in any other capacity while holding office for the Registrant, and shall continue as to an Indemnitee who has ceased to be a director or officer, and shall inure to the benefit of the estate, heirs, executors and administrators of the Indemnitee. In addition, the Charter specifically authorizes the Registrant to enter into agreements with officers and directors providing indemnification rights and procedures different from those set forth in the Charter and, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Registrant or other persons serving the Registrant.

The Registrant has also entered into indemnification agreements with each of its directors and executive officers. The indemnification agreements provide, among other matters, that the Registrant indemnify the directors and executive officers to the fullest extent permitted by law, advance to the directors and executive officers all related expenses (subject to reimbursement if it is subsequently determined that indemnification is not permitted), and reimburse the directors and executive officers for expenses as a witness or in connection with a subpoena for a proceeding in which such director or executive officer is not a party.

The Registrant has obtained director and officer liability insurance for the benefit of its directors and officers.

 

Item 7. Exemption from Registration Claimed.

Not applicable.

 

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Item 8. Exhibits.

 

Exhibit

No.

 

Description of Exhibit

Exhibit 4.1 (1)   Amended and Restated Certificate of Incorporation
Exhibit 4.2 (2)   Amended and Restated By-laws of the Registrant
Exhibit 4.3 (3)   Specimen certificate representing the Common Stock
Exhibit 5.1   Opinion of Goodwin Procter LLP
Exhibit 23.1   Consent of Independent Registered Public Accounting Firm
Exhibit 23.2   Consent of Goodwin Procter LLP (included in Exhibit 5.1 and incorporated herein by reference)
Exhibit 24.1   Power of Attorney (included as part of the signature page to this Registration Statement)
Exhibit 99.1   RightSignature, LLC 2014 Restricted Unit Plan
Exhibit 99.2   Solid Instance, Inc. 2014 Restricted Stock Unit Plan
Exhibit 99.3   Citrix Systems, Inc. 2015 Employee Stock Purchase Plan

 

(1) Incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on May 29, 2013.
(2) Incorporated herein by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on May 29, 2013.
(3) Incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File No. 33-98542), as amended.

 

Item 9. Undertakings.

(a) The undersigned Registrant hereby undertakes:

(1) 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 the 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 the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section 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 in this Registration Statement.

(2) 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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(3) 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.

(b) 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 in the 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.

(c) 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 foregoing provisions, 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 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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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 Fort Lauderdale, in the State of Florida, on this 8th day of January, 2015.

 

CITRIX SYSTEMS, INC.
By:  

/s/ Mark B. Templeton

  Mark B. Templeton
  President and Chief Executive Officer

 

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POWER OF ATTORNEY AND SIGNATURES

We, the undersigned officers and directors of Citrix Systems, Inc., hereby severally constitute and appoint Mark B. Templeton and David J. Henshall, and each of them singly, our true and lawful attorneys, with full power to sign for us in our names in the capacities indicated below, any amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all things in our names and on our behalf in our capacities as officers and directors to enable Citrix Systems, Inc., to comply with the provisions of the Securities Act of 1933, as amended, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and all amendments thereto.

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities below on the 8th day of January, 2015.

 

Name

  

Title(s)

/s/ Mark B. Templeton

Mark B. Templeton

  

President, Chief Executive Officer and Director

(Principal Executive Officer)

/s/ Thomas F. Bogan

   Chairman of the Board of Directors
Thomas F. Bogan   

 

   Director
Robert M. Calderoni   

 

   Director
Nanci E. Caldwell   

/s/ Robert D. Daleo

   Director
Robert D. Daleo   

/s/ Murray J. Demo

   Director
Murray J. Demo   

 

   Director
Francis deSouza   

/s/ Stephen M. Dow

   Director
Stephen M. Dow   

/s/ Asiff S. Hirji

   Director
Asiff S. Hirji   

/s/ Gary E. Morin

   Director
Gary E. Morin   

/s/ Godfrey R. Sullivan

   Director
Godfrey R. Sullivan   

/s/ David J. Henshall

David J. Henshall

   Executive Vice President, Chief Operating Officer and Chief Financial Officer (Principal Financial and Principal Accounting Officer)

 

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INDEX TO EXHIBITS

 

Exhibit

No.

 

Description of Exhibit

Exhibit 4.1 (1)   Amended and Restated Certificate of Incorporation
Exhibit 4.2 (2)   Amended and Restated By-laws of the Registrant
Exhibit 4.3 (3)   Specimen certificate representing the Common Stock
Exhibit 5.1   Opinion of Goodwin Procter LLP
Exhibit 23.1   Consent of Independent Registered Public Accounting Firm
Exhibit 23.2   Consent of Goodwin Procter LLP (included in Exhibit 5.1 and incorporated herein by reference)
Exhibit 24.1   Power of Attorney (included as part of the signature page to this Registration Statement)
Exhibit 99.1   RightSignature, LLC 2014 Restricted Unit Plan
Exhibit 99.2   Solid Instance, Inc. 2014 Restricted Stock Unit Plan
Exhibit 99.3   Citrix Systems, Inc. 2015 Employee Stock Purchase Plan

 

(1) Incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on May 29, 2013.
(2) Incorporated herein by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed on May 29, 2013.
(3) Incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File No. 33-98542), as amended.

 

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EXHIBIT 5.1

January 8, 2015

Citrix Systems, Inc.

851 West Cypress Creek Road

Fort Lauderdale, Florida 33309

 

Re: Securities Being Registered under Registration Statement on Form S-8 relating to (i) the RightSignature, LLC 2014 Restricted Unit Plan, (ii) the Solid Instance, Inc. 2014 Restricted Stock Unit Plan and (iii) the Citrix Systems, Inc. 2015 Employee Stock Purchase Plan

Ladies and Gentlemen:

We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof relating to an aggregate of 20,090,930 shares (the “Shares”) of Common Stock, $0.001 par value per share, of Citrix Systems, Inc., a Delaware corporation (the “Company”), that may be issued pursuant to the RightSignature LLC 2014 Restricted Unit Plan (the “RightSignature Plan”), the Solid Instance, Inc. 2014 Restricted Stock Unit Plan (the “Solid Instance Plan”) and the Citrix Systems, Inc. 2015 Employee Stock Purchase Plan (the “ESPP”).

We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.

The opinion set forth below is limited to the Delaware General Corporation Law (which includes reported judicial decisions interpreting the Delaware General Corporation Law).

For purposes of the opinion set forth below, we have assumed that a sufficient number of authorized but unissued shares of the Company’s Common Stock will be available for issuance when the Shares are issued.

Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the RightSignature Plan, the Solid Instance Plan and the ESPP, as applicable (including, without limitation, with respect to the ESPP that it is subject to the approval of the stockholders of the Company), will be validly issued, fully paid and nonassessable.

We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.


Citrix Systems, Inc.

January 8, 2015

Page 2

 

Very truly yours,

/s/ G OODWIN P ROCTER LLP

GOODWIN PROCTER LLP

EXHIBIT 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Citrix Systems, Inc. 2015 Employee Stock Purchase Plan, RightSignature, LLC 2014 Restricted Unit Plan and Solid Instance Inc. 2014 Restricted Stock Unit Plan of our reports dated February 20, 2014, with respect to the consolidated financial statements and schedule of Citrix Systems, Inc. and the effectiveness of internal control over financial reporting of Citrix Systems, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2013, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Certified Public Accountants

Boca Raton, Florida

January 8, 2015

EXHIBIT 99.1

RIGHTSIGNATURE LLC

2014 Restricted Unit Plan

This 2014 Restricted Unit Plan (this “ Plan ”) has been adopted by RIGHTSIGNATURE LLC, a California limited liability company, to provide a long-term incentive to certain designated employees of the Company (as defined below) to continue their employment with the Company.

1. Certain Definitions . As used in this Plan:

Acquiror ” is defined in the definition of “ Sale Event .”

Board ” means (i) prior to the consummation of a Sale Event, the board of managers of the Company, and (ii) after the consummation of a Sale Event, the board of directors of the Parent Company. After the consummation of a Sale Event, the Board may delegate some or all of its powers and authority under this Plan to a committee of the Board, and if and to the extent of any such delegation, references in this Plan to the Board will mean any such committee.

Capitalization Adjustment ” is defined in Section 13.

Common Units ” means, collectively, the Series A common limited liability company units of the Company and the Series B common limited liability company units of the Company.

Company ” means RightSignature LLC, a California limited liability company, and its successors and assigns.

Effective Date ” means the effective date of this Plan, which is the date on which this Plan is first approved by the Board.

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

Exchange Ratio ” is defined in Section 3(b).

Fair Market Value ” of the Common Units (or, after the consummation of a Sale Event, the Parent Common Stock), on any given date means the fair market value of the Common Units or Parent Common Stock, as applicable, determined in good faith by the Board. Unless otherwise determined by the Board, after the consummation of a Sale Event, the Fair Market Value of the Parent Common Stock on any given date shall be the last sale price for the Parent Common Stock as reported on the Nasdaq Global Select Market or another national securities exchange for that date or if no closing price is reported for that date, the closing price on the next preceding date for which a closing price was reported.

Parent Acquisition ” shall mean (i) consummation of a merger or consolidation of the Parent Company with or into another person; (ii) the sale, transfer, or other disposition of all or substantially all of the Parent Company’s assets to one or more other persons in a single transaction or series of related transactions, unless, in the case of foregoing clauses (i) and (ii),


securities possessing more than 50% of the total combined voting power of the survivor’s or acquirer’s outstanding securities (or the securities of any parent thereof) are held by a person or persons who held securities possessing more than 50% of the total combined voting power of the Parent Company’s outstanding securities immediately prior to that transaction; (iii) any person or group of persons (within the meaning of Section 13(d)(3) of the Exchange Act) directly or indirectly acquires, including but not limited to by means of a merger or consolidation, beneficial ownership (determined pursuant to Securities and Exchange Commission Rule 13d-3 promulgated under the Exchange Act) of securities possessing more than 30% of the total combined voting power of the Parent Company’s outstanding securities pursuant to a tender or exchange offer made directly to the Parent Company’s stockholders that the Board does not recommend such stockholders accept, other than (a) the Parent Company or an affiliate of Parent Company, (b) an employee benefit plan of the Parent Company or any of its affiliates, (c) a trustee or other fiduciary holding securities under an employee benefit plan of the Parent Company or any of its affiliates, or (d) an underwriter temporarily holding securities pursuant to an offering of such securities; (iv) persons who, as of the effective date of a Sale Event, constitute the Board (the “ Incumbent Directors ”) cease for any reason, including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of the Board, provided that any person becoming a director of the Parent Company subsequent to the effective date of a Sale Event shall be considered an Incumbent Director if such person’s election was approved by or such person was nominated for election by either (A) a vote of at least a majority of the Incumbent Directors or (B) a vote of at least a majority of the Incumbent Directors who are members of a nominating committee comprised, in the majority, of Incumbent Directors; but provided further, that any such person whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of members of the Board or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board, including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation, shall not be considered an Incumbent Director; (v) any other acquisition of the business of the Parent Company in which a majority of the Board votes in favor of a decision that a Parent Acquisition has occurred within the meaning of the Plan; or (vi) the approval by the Parent Company’s stockholders of any plan or proposal for the liquidation or dissolution of the Parent Company.

Parent Common Stock ” means duly authorized, validly issued, fully paid and non-assessable shares of common stock of the Parent Company.

Parent Company ” means the ultimate parent corporation of the Acquiror.

Parent Price ” means the average of the closing prices of a share of Parent Common Stock as reported on the Nasdaq Global Select Market and as reported on www.nasdaq.com for the five (5) trading days ending on, but excluding the date that is three (3) trading days prior to, the day on which consummation of a Sale Event occurs.

Participants ” means those employees of the Company designated as participants, who have entered into and delivered to the Company a restricted unit agreement (a “ Restricted Unit Agreement ”), pursuant to which they have exchanged Common Units owned for Restricted Units under such Restricted Unit Agreement and this Plan pursuant to Section 2(a).

 

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Restricted Unit Agreement ” is defined in the definition of “ Participants .”

Restricted Units ” means those certain Restricted Units available for issuance under this Plan.

Sale Event ” means either the (i) first merger, after the Effective Date, of the Company with or into any other entity pursuant to which the holders of outstanding voting units of the Company immediately prior to such merger hold, directly or indirectly, less than 50% of the outstanding voting equity of the surviving entity of the merger, immediately after such merger, or (ii) first sale of all or substantially all of the outstanding capital securities of the Company, after the Effective Date, to any other entity (either the surviving corporation in clause (i) of this sentence, or the acquiring entity in clause (ii) of this sentence, the “ Acquiror ”). For purposes of clarity, there shall only be one Sale Event.

Securities Act ” is defined in Section 3(c)(X).

Separation Date ” is defined in Section 2(c).

Shares ” means shares of Parent Common Stock issued by the Parent Company to a Participant in accordance with Section 3(b) of this Plan.

Value Per Common Unit ” means (a) for the Common Units exchanged by Daryl Bernstein for Restricted Units, $3.925409 per Common Unit, and (b) for the Common Units exchanged by Cary Dunn for Restricted Units, $4.331426 per Common Unit.

Vesting Date ” is defined in Section 2(b).

2. Restricted Units .

(a) Grant of Restricted Units and Exchange for Common Units . Prior to the consummation of a Sale Event, the Board shall have the authority to (i) designate Participants in this Plan, (ii) elect to exchange a number of Common Units owned by certain designated employees on a one-for-one basis for Restricted Units as set forth on Schedule A hereto, each such employee to be designated a Participant in the Plan upon the exchange and (iii) enter into a Restricted Unit Agreement with such Participants, subject to guidelines, if any, that the Board shall set forth at any time or from time to time. No Restricted Units may be granted under this Plan following the consummation of a Sale Event. The maximum, aggregate value of grants of Restricted Units under this Section 2(a) shall not exceed $4,500,000 (as calculated under this Plan) and shall, at all times, be subject to all applicable terms and conditions of the Restricted Unit Agreement and this Plan.

(b) Vesting . Provided a Participant remains employed by the Company or any of its subsidiaries (or, after the consummation of a Sale Event, the Company, the Acquiror or any of its subsidiaries or the Parent Company or any of its subsidiaries), such Participant’s Restricted Units shall vest on the following vesting schedule: one-third (1/3 rd ) of the Restricted Units shall vest on the one (1)-year anniversary of the date of the consummation of the Sale Event; one-third (1/3 rd ) of the Restricted Units shall vest on the two (2)-year anniversary of the date of the consummation of the Sale Event; and one-third (1/3 rd ) of the Restricted Units shall vest on the three (3)-year anniversary of the date of the consummation of the Sale Event (each date, a “ Vesting Date ”).

 

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(c) Termination of Restricted Units . Except as set forth in the Restricted Unit Agreement between the Company and each Participant, upon termination of any Participant’s employment with the Company or any of its subsidiaries (or, after the consummation of a Sale Event, the Company, the Acquiror, or any of its subsidiaries or the Parent Company or any of its subsidiaries), such that after such termination, such Participant is no longer employed by the Company or any of its subsidiaries (or, after the consummation of a Sale Event, the Company, the Acquiror or any of its subsidiaries or the Parent Company or any of its subsidiaries), regardless of the reason, if any, for such termination (including by reason of death or permanent disability or disaffiliation of any such subsidiary or affiliate with the Parent Company) or whether such termination is by the Company or any of its subsidiaries (or, after the consummation of a Sale Event, the Company, the Acquiror or any of its subsidiaries or the Parent Company or any of its subsidiaries) or such employee (the date of such termination, the “ Separation Date ”), all Restricted Units granted to or held by that Participant that are unvested as of the Separation Date shall terminate and be forfeited by that Participant as of the Separation Date; and thereafter such Participant will have no rights in respect of any Restricted Units, the Restricted Unit Agreement or this Plan except the right to receive payment for Restricted Units that vested prior to the Separation Date as set forth in such Participant’s Restricted Unit Agreement and this Plan. All Restricted Units so terminated and forfeited will for all purposes under this Plan be cancelled and void and shall not be available for reallocation under this Plan or otherwise. This Section 2(c) may be modified by a written agreement between the Participant and the Company, the Acquiror or the Parent Company, as the case may be, which written agreement shall control. For purposes of the Plan, after the consummation of a Sale Event, the following events shall not be deemed a termination of employment: (i) a transfer to the employment of the Parent Company from an affiliate of the Parent Company, or from the Parent Company to an affiliate of the Parent Company, or from one affiliate of the Parent Company to another; or (ii) an approved leave of absence for any purpose approved by the Parent Company; provided, however, that unless the Board (and any delegate thereof) provides otherwise, vesting of awards granted hereunder will be suspended one hundred eighty (180) days after the commencement of an unpaid leave of absence.

3. Settlement of Restricted Units .

(a) Vesting of Units . Subject to Sections 3(c), 3(d), 3(k) and 8, prior to the consummation of a Sale Event and upon the vesting of each Restricted Unit, the Company shall, within ten (10) business days following the applicable Vesting Date, credit to the Participant holding such Restricted Unit one Common Unit of the same series that such Participant tendered in exchange for such Restricted Unit, and such Restricted Unit shall be deemed satisfied and retired (and, for clarity, shall not be available for reallocation under this Plan or otherwise). Notwithstanding the foregoing, this Section 3(a) shall not apply if Section 3(b) applies with respect to a Restricted Unit.

(b) Following a Sale Event . Effective upon the consummation of a Sale Event, by virtue of the Sale Event and without any action on the part of the Participant, the Company, the Acquiror, the Parent Company or the Board, each Restricted Unit shall be

 

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converted into the right to receive, as of the applicable Vesting Date upon which such Restricted Units vest and subject to Sections 3(c), 3(d), 3(k) and 8, a number of Shares equal to the quotient obtained by dividing the Value Per Common Unit by the Parent Price (the “ Exchange Ratio ”). Within a reasonable period of time following the consummation of a Sale Event and subject to Sections 3(c), 3(d), 3(k) and 8, the Parent Company shall deliver to each Participant a communication describing the number of Shares represented by each Restricted Unit.

(c) Violation of Law . Notwithstanding any other provision of this Plan, if, at any time, in the reasonable opinion of the Company (or, after the consummation of a Sale Event, the Parent Company), the issuance of Shares upon settlement of a Restricted Unit would constitute a violation of law, then the Company (or, after the consummation of a Sale Event, the Parent Company) may delay such payment or issuance until (i) approval shall have been obtained from such governmental agencies, other than the Securities and Exchange Commission, as may be required under applicable law, rule, or regulation, or the Company (or, after the consummation of a Sale Event, the Parent Company) is otherwise satisfied that such payment or issuance is in compliance with applicable law, rule or regulation, and (ii) in the case where such issuance would constitute a violation of a law administered by or a regulation of the Securities and Exchange Commission regarding the registration of shares, one of the following conditions shall have been satisfied:

(X) the Shares are at the time of the issue of such Shares effectively registered under the Securities Act of 1933, as amended (the “ Securities Act ”), if applicable; or

(Y) the Company (or, after the consummation of a Sale Event, the Parent Company) shall have determined, on such basis as it deems appropriate, acting reasonably (which may, if reasonably necessary, include an opinion of counsel in form and substance satisfactory to the Company (or, after the consummation of a Sale Event, the Parent Company)) that the issuance and delivery of such Shares does not require registration under the Securities Act or any applicable State securities laws.

The Company (and, after the consummation of a Sale Event, the Parent Company) shall use its commercially reasonable efforts to bring about the occurrence of said events. Without limiting the foregoing and subject at all times to applicable law, rule and regulation, the Parent Company shall (i) file prior to the first Vesting Date, a registration statement on Form S-8 (or any successor form or another appropriate form) under the Securities Act to register the Shares issuable under this Plan, (ii) use commercially reasonable efforts at least equivalent to those used in maintaining the effectiveness of Parent’s other registration statements on Form S-8 to maintain the effectiveness of such registration statement for as long as Restricted Units remain outstanding, and (iii) promptly notify the Participants if at any time after such registration statement becomes effective the Participants are not permitted to resell such Shares under such registration statement because of any condition affecting the Parent Company.

(d) Tax Withholding .

(i) Payment by Participant . Each Participant shall, no later than the date as of which the value of Restricted Units or of any Common Unit, Parent Common Stock or other amounts received thereunder first becomes includable in the gross

 

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income of the Participant for Federal income tax purposes, pay to the Company (or, after the consummation of a Sale Event, the Parent Company), or make arrangements satisfactory to the Board regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld by the Company (or, after the consummation of a Sale Event, the Parent Company) with respect to such income. The Company (or, after the consummation of a Sale Event, the Parent Company) or any of its (or, after the consummation of a Sale Event, Parent Company’s) affiliates shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the Participant. The Company’s (or, after the consummation of a Sale Event, the Parent Company’s) obligation to deliver evidence of units, book entry, or stock certificates to any Participant is subject to and conditioned on tax withholding obligations being satisfied by the Participant.

(ii) Payment in Securities . Subject to approval by the Board, a Participant may elect to have the Company’s (or, after the consummation of a Sale Event, the Parent Company’s) minimum required tax withholding obligation satisfied, in whole or in part, by authorizing the Company (or, after the consummation of a Sale Event, the Parent Company) to withhold from Common Units or Parent Common Stock, as applicable, to be issued pursuant to any Restricted Unit Agreement a number of Common Units or Shares with an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the withholding amount due.

(e) Each Participant has made his or her decision to participate in this Plan by himself or herself. Each Participant has informed himself or herself about any and all conditions and tax risks and has obtained advice of competent tax advisors if and as considered necessary by him or her.

(f) No Rights to Transfer . Restricted Units are not assignable or transferable. No Participant shall have the right to sell, assign, transfer, pledge, gift, bequeath, encumber or hypothecate his or her right in or to any Restricted Units (or, until such time as such Shares have been delivered to such Participant pursuant to Section 3(a) or 3(b), respectively, the Shares to be issued in respect thereof) in any manner, nor shall such right of any Participant be subject to claims of his or her creditors, or be liable to attachment, execution or other process of law. Any attempted sale, assignment, transfer, pledge, hypothecation, gift, bequest or other disposition of a Participant’s right in or to the Restricted Units (or, until such time as such Shares have been delivered to such Participant pursuant to Section 3(a) or 3(b), respectively, the Shares to be issued in respect thereof) shall be null and void and without effect.

(g) Treatment upon a Parent Acquisition following a Sale Event .

(i) After the consummation of a Sale Event, in the case of and subject to the consummation of a Parent Acquisition of the Parent Company following a Sale Event, the parties thereto may cause the assumption or continuation of Restricted Units theretofore granted by the successor entity, or the substitution of such Restricted Units on an equitable basis with new awards of the successor entity or

 

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parent thereof, with appropriate adjustment as to the number and kind of shares as such parties shall agree, the Fair Market Value (as determined by the Board in its sole discretion) of which shall not materially differ from the Fair Market Value of the shares of Parent Common Stock subject to such Restricted Units immediately preceding the Parent Acquisition. To the extent the parties to such Parent Acquisition do not provide for the assumption, continuation or substitution of Restricted Units, as of the effective time of the Parent Acquisition, the Plan and all outstanding Restricted Units granted shall terminate and all Restricted Units shall become fully vested and nonforfeitable as of the effective time of the Parent Acquisition.

(ii) After the consummation of a Sale Event, notwithstanding anything to the contrary herein, in the event of an involuntary termination of services of a Participant for any reason other than death, disability or Cause within six (6) months following the consummation of a Parent Acquisition, any Restricted Units of the Participant assumed or substituted in a Parent Acquisition which are subject to vesting conditions, shall accelerate in full. As used in this subsection (g)(ii) only, “ Cause ” shall mean the commission of any act of fraud, embezzlement or dishonesty by the Participant, any unauthorized use or disclosure by such person of confidential information or trade secrets of the Parent Company, or any other intentional misconduct by such person adversely affecting the business or affairs of the Parent Company in a material manner.

(h) Restricted Units Uncertificated . Restricted Units will not be certificated and the right to receive Restricted Units shall be a contract right only and will be evidenced only by the Restricted Unit Agreements, this Plan and by entries in the Company’s books, records and systems. Restricted Units carry no voting, dividend, participation, liquidation or other equity rights or characteristics. Except as may be provided in the Restricted Unit Agreement, no Participant shall have any rights as a securityholder of the Company, the Acquiror or the Parent Company by reason of holding Restricted Units.

(i) Certificates for Common Units or Parent Common Stock . The Common Units will not be certificated and will be recorded as an entry in the Company’s books and records. Stock certificates to Participants under this Plan shall be deemed delivered for all purposes when, after the consummation of a Sale Event, the Parent Company or a stock transfer agent of the Parent Company, shall have mailed such certificates in the United States mail, addressed to the Participant, at the Participant’s last known address on file with the Parent Company. Uncertificated Parent Common Stock shall be deemed delivered for all purposes when the Parent Company or a stock transfer agent of the Parent Company shall have given to the Participant by electronic mail (with proof of receipt) or by United States mail, addressed to the Participant, at the Participant’s last known address on file with the Parent Company notice of issuance and recorded the issuance in its records (which may include electronic “book entry” records). All stock certificates delivered pursuant to the Plan shall be subject to any stop-transfer orders and other restrictions as the Board deems necessary or advisable to comply with federal, state or foreign jurisdiction, securities or other laws, rules and quotation system on which the Parent Common Stock is listed, quoted or traded. The Board may place legends on any stock certificate to reference restrictions applicable to the Parent Common Stock. In addition to the

 

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terms and conditions provided herein, the Board may require that an individual make such reasonable covenants, agreements, and representations as the Board, in its discretion, deems necessary or advisable in order to comply with any such laws, regulations, or requirements. The Board shall have the right to require any individual to comply with any timing or other restrictions with respect to the settlement of any Restricted Units, including a window-period limitation, as may be imposed in the discretion of the Board.

(j) No Representation or Warranty . NO REPRESENTATION OR WARRANTY IS MADE WITH RESPECT TO THE VALUE, IF ANY, OF ANY RESTRICTED UNITS, COMMON UNITS, OR ANY UNITS OR SHARES GRANTED OR ISSUED IN RESPECT THEREOF AS SET FORTH IN THIS PLAN AND THE RESTRICTED UNIT AGREEMENTS.

(k) No Fractional Shares . No fraction of a Share shall be issued upon settlement of a Restricted Unit. The total number of Shares potentially payable to a particular Participant upon vesting of all of such Participant’s Restricted Units (calculated pursuant to Section 3(b)) shall be adjusted to a whole number of Shares with no payment for any fraction in accordance with the procedures established by the Board or any administrator to whom the Board has delegated administration of this Plan.

(l) Reservation of Shares . After the consummation of a Sale Event, the Parent Company will at all times during the term of this Plan reserve or keep available such number of Shares as will be sufficient to satisfy the requirements of this Plan.

4. No Rights to Continued Employment . Nothing in this Plan is intended to confer on any person any right to continued employment with the Company, the Acquiror or the Parent Company, or any of their respective subsidiaries or affiliates, notwithstanding that the continuation of employment may be required in order to receive any Shares under this Plan.

5. Governing Law and Administration of Plan . This Plan will be governed by and interpreted and construed in accordance with the internal laws of the State of Delaware, without reference to principles of conflicts or choice of law. The captions of sections of this Plan are for convenience of reference only and will not affect the interpretation or construction of this Plan.

This Plan will be administered by the Board. The Board will have authority, exercisable in its sole and absolute discretion, to interpret and construe this Plan, to make all determinations necessary or advisable for Plan administration, and to correct any defect, supply any omission or reconcile any inconsistency in this Plan in such manner and to such extent as it shall reasonably determine in good faith to be advisable to effectuate the purposes of this Plan. All such interpretations, determinations, and actions by the Board will be final, binding, and conclusive.

After the consummation of a Sale Event, the Board may delegate some or all of its powers and authority hereunder to a committee of the Board and if and to the extent of any such delegation, references in this Plan to the Board will mean such committee.

6. Arbitration and Class Action Waiver . Any dispute or claim relating to or arising out of this Plan, Restricted Units and/or any actions taken thereunder, to the fullest extent permitted by law, shall be fully and finally resolved by confidential, binding arbitration by a

 

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single, neutral arbitrator agreed upon by the Participant and the Company or, after the consummation of a Sale Event, the Parent Company. The arbitration shall be held in the county where the Company or, after the consummation of a Sale Event, the Parent Company, has an office at which the applicable Participant provides services (for remote Participants, the nearest county where the Company or Parent Company, as applicable, has an office) or any other locale to which the parties jointly agree. If the parties cannot agree upon an arbitrator, the arbitrator shall be a JAMS neutral arbitrator selected in accordance with the then-current Employment Arbitration Rules & Procedures of JAMS (which are available at www.jamsadr.com), and the arbitration shall be conducted in accordance with those rules and procedures. The parties each waive their respective rights to have any such disputes/claims tried by a judge or a jury. The arbitrator shall permit adequate discovery and shall be empowered to award all remedies otherwise available in a court of competent jurisdiction, and any judgment rendered by the arbitrator may be entered by any court of competent jurisdiction. The arbitrator shall issue a written award setting forth the essential findings and conclusions on which the award is based. Other than an amount equal to the fee for filing such an action in the local state court, which amount the Participant shall pay toward the costs of the arbitration, the Company (or, after the consummation of a Sale Event, the Parent Company) shall bear the costs of the arbitration, including the JAMS administrative fees and the arbitrator’s fees. Each party shall otherwise bear its own respective attorneys’ fees and costs of the arbitration, except to the extent otherwise provided by law and awarded by the arbitrator. The Participant and the Company or Parent Company, as applicable, agree that each may bring claims against the other only in an individual capacity, and not as a plaintiff or class member in any purported class action or other representative proceeding.

7. Amendment . Except as otherwise provided herein, prior to the consummation of a Sale Event, the Board may, in its sole and absolute discretion, amend the provisions of this Plan and the terms of any Restricted Units issued under this Plan without the consent of any Participant. Except as otherwise provided herein, on and after the consummation of a Sale Event, the Board may not amend the provisions of this Plan or the terms of any Restricted Units without the written consent of each Participant who would be adversely affected by such amendment.

8. Release . Except as provided in a Participant’s employment agreement, no Participant shall receive any Shares hereunder unless such Participant has first executed and delivered to the Company, the Acquiror and/or the Parent Company, as applicable, as of a date no more than five (5) days prior to such receipt, a general release in such form as the Board may require, provided that any such general release shall not require a Participant to waive any claims such Participant has or may have under any definitive purchase agreement relating to the Sale Event.

9. Termination . This Plan shall by its terms terminate automatically, and all Restricted Units outstanding under this Plan shall by their terms be automatically cancelled and deemed forfeited, if the consummation of a Sale Event does not occur within one hundred eighty (180) business days following the Effective Date; provided , however , that the Board at any time prior to the consummation of a Sale Event may extend the term of this Plan, the Restricted Unit Agreements and the term of any Restricted Unit for one or more additional period(s) as it shall determine in its sole and absolute discretion. On and after the consummation of a Sale Event,

 

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this Plan, the Restricted Unit Agreements and all Restricted Units, and all claims of Participants connected therewith, outstanding under this Plan shall by their terms automatically terminate immediately upon the earlier of (a) the issuance of all Shares as contemplated by Section 3 of this Plan or (b) the ten (10) year anniversary of the Effective Date.

10. Benefit Amounts Not Salary . No Shares issuable pursuant to this Plan shall be deemed salary or other compensation to any Participant for purposes of computing benefits to which a Participant may be entitled under any vacation, disability, profit sharing, pension plan, compensation for loss of office or other arrangement of the Company or any of its subsidiaries or the Acquiror or any of its subsidiaries or affiliates (including the Parent Company) for the benefit of its respective employees or independent contractors except as otherwise specifically provided by such plan or arrangement. To the extent applicable upon the consummation of a Sale Event, this Plan is intended to constitute an “unfunded” plan for incentive compensation, and is not intended to constitute a plan subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended.

11. Successors . This Plan shall be binding upon and inure to the benefit of the Company, its successors and assigns. Without limiting the foregoing, effective at the consummation of a Sale Event, this Plan shall be binding upon the Company and the Parent Company by virtue of the Sale Event and without the need for any further action on the part of the Company, the Board, the Acquiror or the Parent Company.

12. Nonexclusivity of this Plan . The adoption of this Plan by the Board shall not be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including without limitation, the granting of cash incentives, options and restricted equity other than under this Plan, and such arrangements may be either applicable generally or only in specific cases.

13. Adjustments . If, after the consummation of a Sale Event, any change is made in, or other event occurs with respect to, the Shares subject to this Plan or subject to any Restricted Unit (through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transaction) (each a “ Capitalization Adjustment ”), the outstanding Restricted Units will be appropriately adjusted in the class(es) and number of securities or other property subject to such outstanding Restricted Units. The Board shall make such adjustments, or shall delegate authority to any administrator of this Plan to make such adjustments, in good faith, and its determination so made shall be final, binding and conclusive.

14. Entire Understanding . This Plan together with the Restricted Unit Agreements, prior to a Sale Event, the limited liability operating company agreement of the Company, as amended, and any other written agreement between the Participant and the Company, the Acquiror or the Parent Company, as the case may be, modifying the provisions of Section 2(b), sets forth the entire understanding between the Company, the Acquiror, the Parent Company and the Participants with respect to the matters referred to herein and supersedes all prior representations, commitments, understandings or agreements with respect to thereto.

 

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Exhibit 99.2

SOLID INSTANCE, INC.

2014 Restricted Stock Unit Plan

This 2014 Restricted Stock Unit Plan (this “ Plan ”) has been adopted by Solid Instance, Inc., a Delaware corporation, to provide a long-term incentive to certain designated employees of the Company (as defined below) to continue their employment with the Company.

1. Certain Definitions . As used in this Plan:

Acquiror ” is defined in the definition of “ Sale Event .”

Board ” means (i) prior to the consummation of a Sale Event, the board of directors of the Company, and (ii) after the consummation of a Sale Event, the board of directors of the Parent Company. After the consummation of a Sale Event, the Board may delegate some or all of its powers and authority under this Plan to a committee of the Board, and if and to the extent of any such delegation, references in this Plan to the Board will mean any such committee.

Capitalization Adjustment ” is defined in Section 13.

Common Stock ” means the common stock of the Company, $0.0001 par value per share.

Common Stock Value Per Share ” means $1.00 per share.

Company ” means Solid Instance, Inc., a Delaware corporation, and its successors and assigns.

Effective Date ” means the effective date of this Plan, which is the date on which this Plan is first approved by the Board.

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

Exchange Ratio ” is defined in Section 3(b).

Fair Market Value ” of the Common Stock (or, after the consummation of a Sale Event, the Parent Common Stock), on any given date means the fair market value of the Common Stock or Parent Common Stock, as applicable, determined in good faith by the Board. Unless otherwise determined by the Board, after the consummation of a Sale Event, the Fair Market Value of the Parent Common Stock on any given date shall be the last sale price for the Parent Common Stock as reported on the Nasdaq Global Select Market or another national securities exchange for that date or if no closing price is reported for that date, the closing price on the next preceding date for which a closing price was reported.

Parent Acquisition ” shall mean (i) consummation of a merger or consolidation of the Parent Company with or into another person; (ii) the sale, transfer, or other disposition of all or substantially all of the Parent Company’s assets to one or more other persons in a single transaction or series of related transactions, unless, in the case of foregoing clauses (i) and (ii), securities possessing more than 50% of the total combined voting power of the survivor’s or acquirer’s outstanding securities (or the securities of any parent thereof) are held by a person or persons who held securities possessing more than 50% of

 

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the total combined voting power of the Parent Company’s outstanding securities immediately prior to that transaction; (iii) any person or group of persons (within the meaning of Section 13(d)(3) of the Exchange Act) directly or indirectly acquires, including but not limited to by means of a merger or consolidation, beneficial ownership (determined pursuant to Securities and Exchange Commission Rule 13d-3 promulgated under the Exchange Act) of securities possessing more than 30% of the total combined voting power of the Parent Company’s outstanding securities pursuant to a tender or exchange offer made directly to the Parent Company’s stockholders that the Board does not recommend such stockholders accept, other than (a) the Parent Company or an affiliate of Parent Company, (b) an employee benefit plan of the Parent Company or any of its affiliates, (c) a trustee or other fiduciary holding securities under an employee benefit plan of the Parent Company or any of its affiliates, or (d) an underwriter temporarily holding securities pursuant to an offering of such securities; (iv) persons who, as of the effective date of a Sale Event, constitute the Board (the “Incumbent Directors”) cease for any reason, including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of the Board, provided that any person becoming a director of the Parent Company subsequent to the effective date of a Sale Event shall be considered an Incumbent Director if such person’s election was approved by or such person was nominated for election by either (A) a vote of at least a majority of the Incumbent Directors or (B) a vote of at least a majority of the Incumbent Directors who are members of a nominating committee comprised, in the majority, of Incumbent Directors; but provided further, that any such person whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of members of the Board or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board, including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation, shall not be considered an Incumbent Director; (v) any other acquisition of the business of the Parent Company in which a majority of the Board votes in favor of a decision that a Parent Acquisition has occurred within the meaning of the Plan; or (vi) the approval by the Parent Company’s stockholders of any plan or proposal for the liquidation or dissolution of the Parent Company.

Parent Common Stock ” means duly authorized, validly issued, fully paid and non-assessable shares of common stock of the Parent Company.

Parent Company ” means the ultimate parent corporation of the Acquiror.

Parent Price ” means the average of the closing prices of a share of Parent Common Stock as reported on the Nasdaq Global Select Market and as reported on www.nasdaq.com for the five (5) trading days ending on, but excluding the date that is three (3) trading days prior to, the day on which consummation of a Sale Event occurs.

Participants ” means those employees of the Company designated as participants, who have entered into and delivered to the Company a restricted stock unit agreement (a “ Restricted Stock Unit Agreement ”), pursuant to which they have been granted Restricted Stock Units under such Restricted Stock Unit Agreement and this Plan pursuant to Section 2(a).

Restricted Stock Unit Agreement ” is defined in the definition of “ Participants .”

Restricted Stock Units ” means those certain Restricted Stock Units available for issuance under this Plan.

 

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Sale Event ” means either the (i) first merger, after the Effective Date, of the Company with or into any other entity pursuant to which the holders of outstanding voting stock of the Company immediately prior to such merger hold, directly or indirectly, less than 50% of the outstanding voting stock of the surviving corporation of the merger, immediately after such merger, or (ii) first sale of all or substantially all of the outstanding capital securities of the Company, after the Effective Date, to any other entity (either the surviving corporation in clause (i) of this sentence, or the acquiring entity in clause (ii) of this sentence, the “ Acquiror ”). For purposes of clarity, there shall only be one Sale Event.

Securities Act ” is defined in Section 3(c)(X).

Separation Date ” is defined in Section 2(c).

Shares ” means shares of Parent Common Stock issued by the Parent Company to a Participant in accordance with Section 3(b) of this Plan.

Vesting Date ” is defined in Section 2(b).

2. Restricted Stock Units .

(a) Grant of Restricted Stock Units . Prior to the consummation of a Sale Event, the Board shall have the authority to (i) designate Participants in this Plan, and (ii) enter into a Restricted Stock Unit Agreement with such Participants, subject to guidelines, if any, that the Board shall set forth at any time or from time to time. No Restricted Stock Units may be granted under this Plan following the consummation of a Sale Event. The maximum, aggregate value of grants of Restricted Stock Units under this Section 2(a) shall not exceed $1,500,000 (as calculated under this Plan) and shall, at all times, be subject to all applicable terms and conditions of the Restricted Stock Unit Agreement and this Plan. As of the date that this Plan is adopted, each of the Restricted Stock Units granted under this Plan shall have a value of $1.00.

(b) Vesting . Provided a Participant remains employed by the Company or any of its subsidiaries (or, after the consummation of a Sale Event, the Company, the Acquiror or any of its subsidiaries or the Parent Company or any of its subsidiaries), such Participant’s Restricted Stock Units shall vest on the following vesting schedule: one-third (1/3 rd ) of the Restricted Stock Units shall vest on the one (1)-year anniversary of the date of the consummation of the Sale Event; one-third (1/3 rd ) of the Restricted Stock Units shall vest on the two (2)-year anniversary of the date of the consummation of the Sale Event; and one-third (1/3 rd ) of the Restricted Stock Units shall vest on the three (3)-year anniversary of the date of the consummation of the Sale Event (each date, a “ Vesting Date ”).

(c) Termination of Restricted Stock Units . Upon termination of any Participant’s employment with the Company or any of its subsidiaries (or, after the consummation of a Sale Event, the Company, the Acquiror or any of its subsidiaries or the Parent Company or any of its subsidiaries), such that after such termination, such Participant is no longer employed by the Company or any of its subsidiaries (or, after the consummation of a Sale Event, the Company, the Acquiror or any of its subsidiaries or the Parent Company or any of its subsidiaries), regardless of the reason, if any, for such termination (including by reason of death or permanent disability or disaffiliation of any such subsidiary or affiliate with the Parent Company) or whether such termination is by the Company or any of its subsidiaries (or, after the consummation of a Sale Event, the Company, the Acquiror or any of its subsidiaries or the Parent Company or any of its subsidiaries) or such employee (the date of such termination, the “ Separation Date ”), all Restricted Stock Units granted to or held by that Participant that

 

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are unvested as of the Separation Date shall terminate and be forfeited by that Participant as of the Separation Date; and thereafter such Participant will have no rights in respect of any Restricted Stock Units, the Restricted Stock Unit Agreement or this Plan except the right to receive payment for Restricted Stock Units that vested prior to the Separation Date as set forth in such Participant’s Restricted Stock Unit Agreement and this Plan. All Restricted Stock Units so terminated and forfeited will for all purposes under this Plan be cancelled and void and shall not be available for reallocation under this Plan or otherwise. This Section 2(c) shall only be modified by a written agreement between the Participant and the Company, the Acquiror or the Parent Company, as the case may be, which written agreement shall control. For purposes of the Plan, after the consummation of a Sale Event, the following events shall not be deemed a termination of employment: (i) a transfer to the employment of the Parent Company from an affiliate of the Parent Company, or from the Parent Company to an affiliate of the Parent Company, or from one affiliate of the Parent Company to another; or (ii) an approved leave of absence for any purpose approved by the Parent Company; provided, however, that unless the Board (and any delegate thereof) provides otherwise, vesting of awards granted hereunder will be suspended for a period of one hundred eighty (180) days after the commencement of an unpaid leave of absence.

3. Settlement of Restricted Stock Units .

(a) Delivery of Shares . Subject to Sections 3(c), 3(d), 3(k) and 8, prior to the consummation of a Sale Event and upon the vesting of each Restricted Stock Unit, the Company shall, within ten (10) business days following the applicable Vesting Date, deliver to the Participant holding such Restricted Stock Unit one share of Common Stock, and such Restricted Stock Unit shall be deemed satisfied and retired (and, for clarity, shall not be available for reallocation under this Plan or otherwise). Notwithstanding the foregoing, this Section 3(a) shall not apply if Section 3(b) applies with respect to a Restricted Stock Unit.

(b) Following a Sale Event . Effective upon the consummation of a Sale Event, by virtue of the Sale Event and without any further action on the part of the Participant, the Company, the Acquiror, the Parent Company or the Board, each Restricted Stock Unit shall be converted into the right to receive, as of the applicable Vesting Date upon which such Restricted Stock Unit vests and subject to Sections 3(c), 3(d), 3(k) and 8, a number of Shares equal to the quotient obtained by dividing the Common Stock Value Per Share by the Parent Price (the “ Exchange Ratio ”). Within a reasonable period of time following the consummation of a Sale Event and subject to Sections 3(c), 3(d), 3(k) and 8, the Parent Company shall deliver to each Participant a communication describing the number of Shares represented by each Restricted Stock Unit.

(c) Violation of Law . Notwithstanding any other provision of this Plan, if, at any time, in the reasonable opinion of the Company (or, after the consummation of a Sale Event, the Parent Company), the issuance of Shares upon settlement of a Restricted Stock Unit would constitute a violation of law, then the Company (or, after the consummation of a Sale Event, the Parent Company) may delay such payment or issuance until (i) approval shall have been obtained from such governmental agencies, other than the Securities and Exchange Commission, as may be required under applicable law, rule, or regulation, or the Company (or, after the consummation of a Sale Event, the Parent Company) is otherwise satisfied that such payment or issuance is in compliance with applicable law, rule or regulation, and (ii) in the case where such issuance would constitute a violation of a law administered by or a regulation of the Securities and Exchange Commission regarding the registration of shares, one of the following conditions shall have been satisfied:

(X) the Shares are at the time of the issue of such Shares effectively registered under the Securities Act of 1933, as amended (the “ Securities Act ”), if applicable; or

 

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(Y) the Company (or, after the consummation of a Sale Event, the Parent Company) shall have determined, on such basis as it deems appropriate, acting reasonably (which may, if reasonably necessary, include an opinion of counsel in form and substance satisfactory to the Company (or, after the consummation of a Sale Event, the Parent Company)) that the issuance and delivery of such Shares does not require registration under the Securities Act or any applicable State securities laws.

The Company (and, after the consummation of a Sale Event, the Parent Company) shall use its commercially reasonable efforts to bring about the occurrence of said events. Without limiting the foregoing and subject at all times to applicable law, rule and regulation, the Parent Company shall (i) file prior to the first Vesting Date, a registration statement on Form S-8 (or any successor form or another appropriate form) under the Securities Act to register the Shares issuable under this Plan, (ii) use commercially reasonable efforts at least equivalent to those used in maintaining the effectiveness of Parent’s other registration statements on Form S-8 to maintain the effectiveness of such registration statement for as long as Restricted Stock Units remain outstanding, and (iii) promptly notify the Participants if at any time after such registration statement becomes effective the Participants are not permitted to resell such Shares under such registration statement because of any condition affecting the Parent Company.

(d) Tax Withholding .

(i) Payment by Participant . Each Participant shall, no later than the date as of which the value of Restricted Stock Units or of any Common Stock, Parent Common Stock or other amounts received thereunder first becomes includable in the gross income of the Participant for Federal income tax purposes, pay to the Company (or, after the consummation of a Sale Event, the Parent Company), or make arrangements satisfactory to the Board regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld by the Company (or, after the consummation of a Sale Event, the Parent Company) with respect to such income. The Company (or, after the consummation of a Sale Event, the Parent Company) or any of its (or, after the consummation of a Sale Event, Parent Company’s) affiliates shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the Participant. The Company’s (or, after the consummation of a Sale Event, the Parent Company’s) obligation to deliver evidence of book entry (or stock certificates) to any Participant is subject to and conditioned on tax withholding obligations being satisfied by the Participant.

(ii) Payment in Stock . Subject to approval by the Board, a Participant may elect to have the Company’s (or, after the consummation of a Sale Event, the Parent Company’s) minimum required tax withholding obligation satisfied, in whole or in part, by authorizing the Company (or, after the consummation of a Sale Event, the Parent Company) to withhold from shares of Common Stock or Parent Common Stock, as applicable, to be issued pursuant to any Restricted Stock Unit Agreement a number of shares with an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the withholding amount due.

 

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(e) Each Participant has made his or her decision to participate in this Plan by himself or herself. Each Participant has informed himself or herself about any and all conditions and tax risks and has obtained advice of competent tax advisors if and as considered necessary by him or her.

(f) No Rights to Transfer . Restricted Stock Units are not assignable or transferable. No Participant shall have the right to sell, assign, transfer, pledge, gift, bequeath, encumber or hypothecate his or her right in or to any Restricted Stock Units (or, until such time as such Shares have been delivered to such Participant pursuant to Section 3(a) or 3(b), respectively, the Shares to be issued in respect thereof) in any manner, nor shall such right of any Participant be subject to claims of his or her creditors, or be liable to attachment, execution or other process of law. Any attempted sale, assignment, transfer, pledge, hypothecation, gift, bequest or other disposition of a Participant’s right in or to the Restricted Stock Units (or, until such time as such Shares have been delivered to such Participant pursuant to Section 3(a) or 3(b), respectively, the Shares to be issued in respect thereof) shall be null and void and without effect.

(g) Treatment upon a Parent Acquisition following a Sale Event .

(i) After the consummation of a Sale Event, in the case of and subject to the consummation of a Parent Acquisition of the Parent Company following a Sale Event, the parties thereto may cause the assumption or continuation of Restricted Stock Units theretofore granted by the successor entity, or the substitution of such Restricted Stock Units on an equitable basis with new awards of the successor entity or parent thereof, with appropriate adjustment as to the number and kind of shares as such parties shall agree, the Fair Market Value (as determined by the Board in its sole discretion) of which shall not materially differ from the Fair Market Value of the shares of Parent Common Stock subject to such Restricted Stock Units immediately preceding the Parent Acquisition. To the extent the parties to such Parent Acquisition do not provide for the assumption, continuation or substitution of Restricted Stock Units, as of the effective time of the Parent Acquisition, the Plan and all outstanding Restricted Stock Units granted shall terminate, and all Restricted Stock Units shall become fully vested and nonforfeitable as of the effective time of the Parent Acquisition.

(ii) After the consummation of a Sale Event, notwithstanding anything to the contrary herein, in the event of an involuntary termination of services of a Participant for any reason other than death, disability or Cause within six (6) months following the consummation of a Parent Acquisition, any Restricted Stock Units of the Participant assumed or substituted in a Parent Acquisition which are subject to vesting conditions, shall accelerate in full. As used in this subsection (g)(i) only, “Cause” shall mean the commission of any act of fraud, embezzlement or dishonesty by the Participant, any unauthorized use or disclosure by such person of confidential information or trade secrets of the Parent Company, or any other intentional misconduct by such person adversely affecting the business or affairs of the Parent Company in a material manner.

(h) Restricted Stock Units Uncertificated . Restricted Stock Units will not be certificated and the right to receive Restricted Stock Units shall be a contract right only and will be evidenced only by the Restricted Stock Unit Agreements, this Plan and by entries in the Company’s books, records and systems. Restricted Stock Units carry no voting, dividend, participation, liquidation or other equity rights or characteristics. Except as may be provided in the Restricted Stock Unit Agreement, no Participant shall have any rights as a stockholder of the Company, the Acquiror or the Parent Company by reason of holding Restricted Stock Units.

 

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(i) Stock Certificates for Common Stock or Parent Common Stock . Stock certificates to Participants under this Plan shall be deemed delivered for all purposes when the Company (or, after the consummation of a Sale Event, the Parent Company) or a stock transfer agent of the Company or Parent Company, as applicable, shall have mailed such certificates in the United States mail, addressed to the Participant, at the Participant’s last known address on file with the Company or Parent Company, as applicable. Uncertificated Common Stock or Parent Common Stock, as applicable, shall be deemed delivered for all purposes when the Company (or, after the consummation of a Sale Event, the Parent Company) or a stock transfer agent of the Company or Parent Company, as applicable, shall have given to the Participant by electronic mail (with proof of receipt) or by United States mail, addressed to the Participant, at the Participant’s last known address on file with the Company or Parent Company, as applicable, notice of issuance and recorded the issuance in its records (which may include electronic “book entry” records). All stock certificates delivered pursuant to the Plan shall be subject to any stop-transfer orders and other restrictions as the Board deems necessary or advisable to comply with federal, state or foreign jurisdiction, securities or other laws, rules and quotation system on which the Common Stock or Parent Common Stock, as applicable, is listed, quoted or traded. The Board may place legends on any stock certificate to reference restrictions applicable to the Common Stock or Parent Common Stock. In addition to the terms and conditions provided herein, the Board may require that an individual make such reasonable covenants, agreements, and representations as the Board, in its discretion, deems necessary or advisable in order to comply with any such laws, regulations, or requirements. The Board shall have the right to require any individual to comply with any timing or other restrictions with respect to the settlement of any Restricted Stock Units, including a window-period limitation, as may be imposed in the discretion of the Board.

(j) No Representation or Warranty . NO REPRESENTATION OR WARRANTY IS MADE WITH RESPECT TO THE VALUE, IF ANY, OF ANY RESTRICTED STOCK UNITS, SHARES OF COMMON STOCK, OR ANY SHARES GRANTED OR ISSUED IN RESPECT THEREOF AS SET FORTH IN THIS PLAN AND THE RESTRICTED STOCK UNIT AGREEMENTS.

(k) No Fractional Shares . No fraction of a Share shall be issued upon settlement of a Restricted Stock Unit. The total number of Shares potentially payable to a particular Participant upon vesting of all of such Participant’s Restricted Stock Units (calculated pursuant to Section 3(b)) shall be adjusted to a whole number of Shares with no payment for any fraction in accordance with the procedures established by the Board or any administrator to whom the Board has delegated administration of this Plan.

(l) Reservation of Shares . After the consummation of a Sale Event, the Parent Company will at all times during the term of this Plan reserve or keep available such number of Shares as will be sufficient to satisfy the requirements of this Plan.

4. No Rights to Continued Employment . Nothing in this Plan is intended to confer on any person any right to continued employment with the Company, the Acquiror or the Parent Company, or any of their respective subsidiaries or affiliates, notwithstanding that the continuation of employment may be required in order to receive any Shares under this Plan.

 

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5. Governing Law and Administration of Plan . This Plan will be governed by and interpreted and construed in accordance with the internal laws of the State of Delaware, without reference to principles of conflicts or choice of law. The captions of sections of this Plan are for convenience of reference only and will not affect the interpretation or construction of this Plan.

This Plan will be administered by the Board. The Board will have authority, exercisable in its sole and absolute discretion, to interpret and construe this Plan, to make all determinations necessary or advisable for Plan administration, and to correct any defect, supply any omission or reconcile any inconsistency in this Plan in such manner and to such extent as it shall reasonably determine in good faith to be advisable to effectuate the purposes of this Plan. All such interpretations, determinations, and actions by the Board will be final, binding, and conclusive.

After the consummation of a Sale Event, the Board may delegate some or all of its powers and authority hereunder to a committee of the Board and if and to the extent of any such delegation, references in this Plan to the Board will mean such committee.

6. Arbitration and Class Action Waiver . Any dispute or claim relating to or arising out of this Plan, Restricted Stock Units and/or any actions taken thereunder, to the fullest extent permitted by law, shall be fully and finally resolved by confidential, binding arbitration by a single, neutral arbitrator agreed upon by the Participant and the Company or, after the consummation of a Sale Event, the Parent Company . The arbitration shall be held in the county where the Company or, after the consummation of a Sale Event, the Parent Company, has an office at which the applicable Participant provides services (for remote Participants, the nearest county where the Company or Parent Company, as applicable, has an office) or any other locale to which the parties jointly agree. If the parties cannot agree upon an arbitrator, the arbitrator shall be a JAMS neutral selected in accordance with the then-current Employment Arbitration Rules & Procedures of JAMS (which are available at www.jamsadr.com), and the arbitration shall be conducted in accordance with those rules and procedures. The parties each waive their respective rights to have any such disputes/claims tried by a judge or a jury. The arbitrator shall permit adequate discovery and shall be empowered to award all remedies otherwise available in a court of competent jurisdiction, and any judgment rendered by the arbitrator may be entered by any court of competent jurisdiction. The arbitrator shall issue a written award setting forth the essential findings and conclusions on which the award is based. Other than an amount equal to the fee for filing such an action in the local state court, which amount the Participant shall pay toward the costs of the arbitration, the Company (or, after the consummation of a Sale Event, the Parent Company) shall bear the costs of the arbitration, including the JAMS administrative fees and the arbitrator’s fees. Each party shall otherwise bear its own respective attorneys’ fees and costs of the arbitration, except to the extent otherwise provided by law and awarded by the arbitrator. The Participant and the Company or Parent Company, as applicable, agree that each may bring claims against the other only in an individual capacity, and not as a plaintiff or class member in any purported class action or other representative proceeding.

7. Amendment . Except as otherwise provided herein, prior to the consummation of a Sale Event, the Board may, in its sole and absolute discretion, amend the provisions of this Plan and the terms of any Restricted Stock Units issued under this Plan without the consent of any Participant. Except as otherwise provided herein, on and after the consummation of a Sale Event, the Board may not amend the provisions of this Plan or the terms of any Restricted Stock Units without the written consent of each Participant who would be adversely affected by such amendment.

 

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8. Release . Except as provided in a Participant’s employment agreement, no Participant shall receive any Shares hereunder unless such Participant has first executed and delivered to the Company, the Acquiror and/or the Parent Company, as applicable, as of a date no more than five days prior to such receipt, a general release in such form as the Board may require, provided that any such general release shall not require a Participant to waive any claims such Participant has or may have under any definitive purchase agreement relating to the Sale Event.

9. Termination . This Plan shall by its terms terminate automatically, and all Restricted Stock Units outstanding under this Plan shall by their terms be automatically cancelled and deemed forfeited, if the consummation of a Sale Event does not occur within one hundred eighty (180) business days following the Effective Date; provided , however , that the Board at any time prior to the consummation of a Sale Event may extend the term of this Plan, the Restricted Stock Unit Agreements and the term of any Restricted Stock Unit for one or more additional period(s) as it shall determine in its sole and absolute discretion. On and after the consummation of a Sale Event, this Plan, the Restricted Stock Unit Agreements and all Restricted Stock Units, and all claims of Participants connected therewith, outstanding under this Plan shall by their terms automatically terminate immediately upon the earlier of (a) the issuance of all Shares as contemplated by Section 3 of this Plan or (b) the ten (10) year anniversary of the Effective Date.

10. Benefit Amounts Not Salary . No Shares issuable pursuant to this Plan shall be deemed salary or other compensation to any Participant for purposes of computing benefits to which a Participant may be entitled under any vacation, disability, profit sharing, pension plan, compensation for loss of office or other arrangement of the Company or any of its subsidiaries or the Acquiror or any of its subsidiaries or affiliates (including the Parent Company) for the benefit of its respective employees or independent contractors except as otherwise specifically provided by such plan or arrangement. To the extent applicable upon the consummation of a Sale Event, this Plan is intended to constitute an “unfunded” plan for incentive compensation, and is not intended to constitute a plan subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended.

11. Successors . This Plan shall be binding upon and inure to the benefit of the Company, its successors and assigns. Without limiting the foregoing, effective at the consummation of a Sale Event, this Plan shall be binding upon the Company and the Parent Company by virtue of the Sale Event and without the need for any further action on the part of the Company, the Board, the Acquiror or the Parent Company.

12. Nonexclusivity of this Plan . The adoption of this Plan by the Board shall not be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including without limitation, the granting of cash incentives, stock options and restricted stock other than under this Plan, and such arrangements may be either applicable generally or only in specific cases.

13. Adjustments . If, after the consummation of a Sale Event, any change is made in, or other event occurs with respect to, the Shares subject to this Plan or subject to any Restricted Stock Unit (through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transaction) (each a “ Capitalization Adjustment ”), the outstanding Restricted Stock Units will be appropriately adjusted in the class(es) and number of securities or other property subject to such outstanding Restricted Stock Units. The Board shall make such adjustments, or shall delegate authority to any administrator of this Plan to make such adjustments, in good faith, and its determination so made shall be final, binding and conclusive.

 

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14. Entire Understanding . This Plan together with the Restricted Stock Unit Agreements and any other written agreement between the Participant and the Company, the Acquiror or the Parent Company, as the case may be, modifying the provisions of Section 2(b), sets forth the entire understanding between the Company, the Acquiror, the Parent Company and the Participants with respect to the matters referred to herein and supersedes all prior representations, commitments, understandings or agreements with respect to thereto.

 

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Exhibit 99.3

CITRIX SYSTEMS, INC.

2015 EMPLOYEE STOCK PURCHASE PLAN

The purpose of the Citrix Systems, Inc. 2015 Employee Stock Purchase Plan (“the Plan”) is to provide eligible employees of Citrix Systems, Inc. (the “Company”), a Delaware corporation, and each Participating Company (as defined in Section 12) with opportunities to purchase shares of the Company’s common stock, par value $0.001 per share. The Plan includes two components: a Code Section 423 Component (the “423 Component”) and a non-Code Section 423 Component (the “Non-423 Component”). It is intended for the 423 Component to constitute an “employee stock purchase plan” within the meaning of Section 423(b) of the Internal Revenue Code of 1986, as amended (the “Code”). In addition, this Plan authorizes the grant of options under the Non-423 Component that does not qualify as an “employee stock purchase plan” under Section 423 of the Code. Except as otherwise provided herein, the Non-423 Component will operate and be administered in the same manner as the 423 Component.

1. Administration . The Plan will be administered by the Compensation Committee (the “Committee”) of the Company’s Board of Directors (the “Board”). For any period during which no such committee is in existence, “Committee” shall mean the Board and all authority and responsibility assigned to the Committee under the Plan shall be exercised, if at all, by the Board. The Committee has authority at any time to: (i) adopt, alter and repeal such rules, guidelines and practices for the administration of the Plan and for its own acts and proceedings as it shall deem advisable (including, without limitation, to adopt such procedures and sub-plans as are necessary or appropriate to permit the participation in the Plan by employees who are foreign nationals or employed outside the U.S.); (ii) interpret the terms and provisions of the Plan; (iii) make all determinations it deems advisable for the administration of the Plan; (iv) designate separate Offerings under the Plan; (v) designate Subsidiaries as participating in the 423 Component or the Non-423 Component; (vi) delegate its authority to designate Subsidiaries as participating in the Non-423 Component under the Plan to senior officers of the Company; (vii) decide all disputes arising in connection with the Plan; and (viii) otherwise supervise the administration of the Plan. Unless otherwise determined by the Committee, the employees eligible to participate in each sub-plan will participate in a separate Offering or in the Non-423 Component. All interpretations and decisions of the Committee shall be binding on all persons, including the Company and the Participants. No member of the Board or individual exercising administrative authority with respect to the Plan shall be liable for any action or determination made in good faith with respect to the Plan or any option granted hereunder.

2. Stock Subject to the Plan . The stock subject to the options under the Plan shall be shares of the Company’s authorized but unissued common stock, par value $0.001 per share (the “Common Stock”), or shares of Common Stock reacquired by the Company, including shares purchased in the open market. The aggregate number of shares which may be issued pursuant to the Plan is 20,000,000, subject to adjustment as provided in Section 19. If any option granted under the Plan shall expire or terminate for any reason without having been exercised in full or shall cease for any reason to be exercisable in whole or in part, the unpurchased shares subject thereto shall again be available under the Plan.


3. Payment Period . The payment periods during which contributions will be accumulated under the Plan shall consist of periods ranging from three months to twenty-four months, as determined in advance by the Committee from time to time (each, a “Payment Period” and collectively, the “Payment Periods”). Contributions under the Plan shall be made by way of payroll deductions, unless otherwise required by applicable law.

4. Eligibility . All individuals classified as employees on the payroll records of the Company and each Participating Company are eligible to participate in any one or more of the Payment Periods under the Plan, provided that as of the first business day of the applicable Payment Period they are customarily employed by the Company or a Participating Company for more than 20 hours a week for more than five (5) months in any calendar year, or any lesser number of hours per week and/or number of months in any calendar year established by the Committee (if required under applicable local law) for purposes of any separate Offering or for employees participating in the Non-423 Component. Notwithstanding any other provision herein, individuals who are not contemporaneously classified as employees of the Company or a Participating Company for purposes of the Company’s or applicable Participating Company’s payroll system are not considered to be eligible employees of the Company or any Participating Company and shall not be eligible to participate in the Plan. In the event any such individuals are reclassified as employees of the Company or a Participating Company for any purpose, including, without limitation, common law or statutory employees, by any action of any third party, including, without limitation, any government agency, or as a result of any private lawsuit, action or administrative proceeding, such individuals shall, notwithstanding such reclassification, remain ineligible for participation. Notwithstanding the foregoing, the exclusive means for individuals who are not contemporaneously classified as employees of the Company or a Participating Company on the Company’s or Participating Company’s payroll system to become eligible to participate in this Plan is through an amendment to this Plan, duly executed by the Company, which specifically renders such individuals eligible to participate herein.

5. Enrollment .

(a) An employee may elect to enter the Plan by, at the election of the Committee, (i) through an electronic enrollment that provides required enrollment information requested by the Company, or (ii) by completing, signing and delivering to the Company a written authorization, in either case:

(i) Stating the percentage to be deducted regularly from the employee’s Compensation (or contributed by other means to the extent permitted by the Committee);

(ii) Authorizing the purchase of Common Stock for the employee in each Payment Period in accordance with the terms of the Plan; and

(iii) Specifying the exact name or names in which Common Stock purchased for the employee is to be issued as provided under Section 11 hereof.

Such enrollment or authorization must be received by the Company at least ten (10) business days before the first day of the next succeeding Payment Period and shall take effect only if the employee is an eligible employee on the first business day of such Payment Period, unless otherwise required by applicable law.


Unless a Participant completes a new enrollment or authorization or withdraws from the Plan or no longer meets the eligibility requirements in Section 4, the deductions and purchases under the enrollment or authorization the Participant has on file under the Plan will continue from one Payment Period to succeeding Payment Periods as long as the Plan remains in effect.

(b) Notwithstanding the foregoing, participation in the Plan will neither be permitted nor be denied contrary to the requirements of the Code.

6. Employee Contributions . Each eligible employee may authorize payroll deductions in an amount (expressed as a whole percentage) not less than one (1) percent and not more than ten (10) percent of such employee’s Compensation for each pay period. The Company will maintain book accounts showing the amount of payroll deductions made by each Participant for each Payment Period.

Notwithstanding any provisions to the contrary in the Plan, the Committee may allow employees to participate in the Plan via cash contributions instead of payroll deductions if (i) payroll deductions are not permitted under applicable local law, and (ii) the Committee determines that cash contributions are permissible under Section 423 of the Code or (iii) such eligible employees will participate in the Non-423 Component.

7. Deduction Changes . A Participant may not increase or decrease his or her payroll deduction between commencement of a Payment Period and the Payroll Cutoff Date (as defined in Section 9) applicable to such Payment Period.

8. Withdrawal . A Participant may withdraw from participation in the Plan (in whole but not in part) at any time, except, with respect to withdrawal from a Payment Period, on the last day of the Payment Period, by delivering a notice of withdrawal to his or her appropriate payroll location. The Participant’s withdrawal will be effective as of the next business day. Following a Participant’s withdrawal, the Company will promptly refund such individual’s entire account balance under the Plan to him or her (after payment for any Common Stock purchased before the effective date of withdrawal). Partial withdrawals are not permitted. Such an employee may not begin participation again during the remainder of the Payment Period, but may enroll in a subsequent Payment Period in accordance with Section 5.

9. Grant of Options . Twice a year, on the first business day of a Payment Period, the Company will grant to each eligible employee who is then a Participant in the Plan an option to purchase on the last day of such Payment Period (the “Exercise Date”), at the Option Price hereinafter provided for, the lowest of (a) a number of shares of Common Stock determined by dividing such Participant’s accumulated payroll deductions on the 15 th day of the month immediately preceding the Exercise Date (each, a “Payroll Cutoff Date”) by the Option Price on the last business date of the Payment Period, rounded up to the nearest whole cent, (b) 12,000 shares; or (c) such other lesser maximum number of shares as shall have been established by the Committee in advance of the Payment Period; provided, however, that such option shall be subject to the limitations set forth below. Each Participant’s option shall be exercisable only to


the extent of such Participant’s accumulated payroll deductions on the Exercise Date. The Option Price will be 85 percent of the Fair Market Value (as defined in Section 12) of the Common Stock on the last business date of the Payment Period; provided that the Committee may determine, prior to the beginning of any Payment Period, that the Option Price for such Payment Period will be 85 percent of the Fair Market Value of the Common Stock on either the first business day of the Payment Period or the last business day of the Payment Period, whichever is lower. Any payroll deductions accumulated between a Payroll Cut-off Date and the end of the Payment Period to which such Payroll Cut-off Date applies shall be applied to the Payment Period that commenced immediately after such Payroll Cut-off Date. If a Participant’s accumulated payroll deductions on a Payroll Cut-off Date would enable a Participant to purchase more than the share limit provided under this Section 9, the excess of the amount of the accumulated payroll deductions over the aggregate purchase price of the shares of Common Stock permitted to be purchased under the Plan shall be promptly refunded to such Participant by the Company.

Notwithstanding the foregoing, no Participant may be granted an option hereunder if such Participant, immediately after the option was granted, would be treated as owning stock possessing 5 percent or more of the total combined voting power or value of all classes of stock of the Company or any Parent or Subsidiary (as defined in Section 12). For purposes of the preceding sentence, the attribution rules of Section 424(d) of the Code shall apply in determining the stock ownership of a Participant, and all stock which the Participant has a contractual right to purchase shall be treated as stock owned by the Participant. In addition, no Participant may be granted an option which permits his or her rights to purchase stock under the Plan, and any other employee stock purchase plan of the Company and its Parent and Subsidiaries, to accrue at a rate which exceeds $25,000 of the Fair Market Value of such stock (determined on the option grant date or dates) for each calendar year in which the option is outstanding at any time. The purpose of the limitation in the preceding sentence is to comply with Section 423(b)(8) of the Code and shall be applied taking options into account in the order in which they were granted.

10. Exercise of Option and Purchase of Shares . Each employee who continues to be a Participant in the Plan on the last day of the Payment Period shall be deemed to have exercised his or her option on such date and shall acquire from the Company such number of whole shares of Common Stock reserved for the purpose of the Plan as his or her accumulated payroll deductions on the Payroll Cut-off Date will purchase at the Option Price, subject to the share limit of the option and the Section 423(b)(8) limitation described in Section 9.

11. Issuance of Stock . Shares of Common Stock purchased under the Plan may be issued only in the name of the Participant or, if the Participant’s authorization so specifies and if permitted by the Committee, in the name of the Participant and another person of legal age as joint tenants with rights of survivorship, or in the name of a broker authorized by the Participant to be his, her or their, nominee for such purpose.


12. Definitions .

The term “Affiliate” means any entity, other than a Subsidiary, that (a) directly or indirectly, is controlled by, controls or is under common control with, the Company, or (b) any entity in which the Company has a significant equity interest, in either case as determined by the Committee, whether now or hereafter existing.

The term “Code” means the U.S. Internal Revenue Code of 1986, as amended. Reference to a specific section of the Code or U.S. Treasury Regulation thereunder will include such section or regulation, any valid regulation or other official applicable guidance promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or regulation.

The term “Compensation” means the amount of gross cash compensation, including base pay, any 13th month payments, payments for overtime, commissions, variable cash compensation, and incentive or bonus awards, but excluding allowances and reimbursements for expenses such as relocation allowances or travel expenses, income or gains on the vesting or exercise of Company options and other stock-settled awards, and similar items.

The term “Fair Market Value of the Common Stock” on any given date means the fair market value of the Common Stock determined in good faith by the Committee; provided , however , that if the Common Stock is admitted to quotation on the National Association of Securities Dealers Automated Quotation System (“NASDAQ”), NASDAQ Global Market or another national securities exchange, the determination shall be made by reference to the closing price on such date. If there is no closing price for such date, the determination shall be made by reference to the last date preceding such date for which there is a closing price.

The term “Offering” means an offer under the Plan of an option that may be exercised during a Payment Period as further described in Section 3. Unless otherwise specified by the Committee, each Offering under the Plan to the eligible employees of the Company or a Subsidiary shall be deemed a separate Offering, even if the dates of the applicable Payment Periods of each such Offering are identical, and the provisions of the Plan will separately apply to each Offering. To the extent permitted by U.S. Treasury Regulation Section 1.423-2(a)(1), the terms of each Offering need not be identical provided that the terms of the Plan and an Offering together satisfy U.S. Treasury Regulation Section 1.423-2(a)(2) and (a)(3).

The term “Parent” means a “parent corporation” with respect to the Company, as defined in Section 424(e) of the Code.

The term “Participant” means an individual who is eligible as determined in Section 4 and who has complied with the provisions of Section 5.

The term “Participating Company” means any present or future Subsidiary or Affiliate of the Company that is designated from time to time by the Committee to participate in the Plan. The Committee may so designate any Subsidiary, or revoke any such designation, at any time and from time to time, either before or after the Plan is approved by the stockholders and may further designate such companies as participating in the 423 Component or the Non-423 Component. For purposes of the 423 Component, only Subsidiaries may be Participating Companies provided, however, that at any given time, a Subsidiary that is a Participating Company under the 423 Component shall not be a Participating Company under the Non-423 Component.


The term “Subsidiary” means a “subsidiary corporation” with respect to the Company, as defined in Section 424(f) of the Code.

13. Rights on Termination of Employment . If a Participant’s employment terminates for any reason before the Exercise Date for any Payment Period, the option will be automatically be terminated and the balance in the Participant’s account will be paid to such Participant or, in the case of such Participant’s death, to his or her designated beneficiary as if such Participant had withdrawn from the Plan under Section 8. An employee will be deemed to have terminated employment, for this purpose, if the corporation that employs him or her, having been a Participating Company, ceases to be a Subsidiary or an Affiliate, or if the employee is transferred to any corporation other than the Company or a Participating Company. A Participant whose employment transfers between entities through a termination with an immediate rehire (with no break in service) by the Company or a Participating Company shall not be treated as terminated under the Plan; however, if a Participant transfers from an Offering under the 423 Component to the Non-423 Component, the exercise of the option shall be qualified under the 423 Component only to the extent it complies with Section 423 of the Code. An employee will not be deemed to have terminated employment for this purpose, if the employee is on an approved leave of absence for military service or sickness or for any other purpose approved by the Company, for up to 90 days, or for so long as the employee’s right to reemployment is guaranteed either by a statute or by contract, if longer than 90 days.

14. Special Rules . Notwithstanding anything herein to the contrary, the Committee may adopt special rules applicable to the employees of a particular Participating Company, whenever the Committee determines that such rules are necessary or appropriate for the implementation of the Section 423 Component of the Plan in a jurisdiction where such Participating Company has employees; provided that such rules are consistent with the requirements of Section 423(b) of the Code. Any special rules established pursuant to this Section 14 shall, to the extent possible, result in the employees subject to such rules having substantially the same rights as other Participants in the Plan.

15. Interest . No interest will accrue on the accumulated payroll deductions or other contributions permitted by the Committee of a Participant, except as may be required by applicable local law, as determined by the Company, and if so required by the laws of a particular jurisdiction, shall apply to all Participants in the relevant Offering under the 423 Component, except to the extent otherwise permitted by U.S. Treasury Regulation Section 1.423-2(f).

16. Hardship Withdrawal and Suspension . Notwithstanding anything to the contrary in the foregoing, a Participant who has made a hardship withdrawal from his Section 401(k) account in the Company’s Section 401(k) plan is suspended from participating in this Plan for a period of six (6) months beginning on the date of his hardship withdrawal. The Company will promptly refund such Participant’s entire account balance under the Plan to him or her (after payment for any Common Stock purchased before the effective date of the hardship withdrawal).


17. Optionees Not Stockholders . Neither the granting of an option to a Participant nor the deductions from his or her pay shall constitute such Participant a holder of the shares of Common Stock covered by an option under the Plan until such shares have been purchased by and issued to him or her.

18. Rights Not Transferable . Rights under the Plan are not transferable by a Participant other than by will or the laws of descent and distribution, and are exercisable during the Participant’s lifetime only by the Participant.

19. Application of Funds . All funds received or held by the Company under the Plan may be combined with other corporate funds except under Offerings for Participants in the Non-423 Component for which applicable local laws require that contributions to the Plan by Participants be segregated from the Company’s general corporate funds and/or deposited with an independent third party, and may be used for any corporate purpose.

20. Adjustment in Case of Changes Affecting Common Stock . In the event of a subdivision of outstanding shares of Common Stock, the payment of a dividend in Common Stock or any other change affecting the Common Stock, the number of shares approved for the Plan and the share limitation set forth in Section 2 shall be equitably or proportionately adjusted to give proper effect to such event.

21. Amendment of the Plan . The Board may at any time and from time to time amend the Plan in any respect, except that without the approval within 12 months of such Board action by the stockholders, no amendment shall be made increasing the number of shares approved for the Plan or making any other change that would require stockholder approval in order for the Plan, as amended, to qualify as an “employee stock purchase plan” under Section 423(b) of the Code. Notwithstanding the foregoing, nothing herein shall restrict the Committee or the Board from amending the Plan to implement a “look-back period” for purposes of calculating any Option Price to the maximum extent permitted by Section 423 of the Code.

22. Insufficient Shares . If the total number of shares of Common Stock that would otherwise be purchased on any Exercise Date plus the number of shares purchased under previous Payment Periods under the Plan exceeds the maximum number of shares issuable under the Plan, the shares then available shall be apportioned among Participants in proportion to the amount of payroll deductions accumulated on behalf of each Participant that would otherwise be used to purchase Common Stock on such Exercise Date.

23. Termination of the Plan . The Plan may be terminated at any time by the Board. Upon termination of the Plan, all amounts in the accounts of Participants shall be promptly refunded.

24. Governmental Regulations . The Company’s obligation to sell and deliver Common Stock under the Plan is subject to obtaining all governmental approvals required in connection with the authorization, issuance, or sale of such Common Stock.

25. Governing Law . This Plan and all options and actions taken thereunder shall be governed by, and construed in accordance with, the laws of the State of Delaware, applied without regard to conflict of law principles.


26. Tax Withholding . Participation in the Plan is subject to any obligation on the Company or the employer to withhold federal, state, local or any other tax liability payable to any authority including taxes imposed by jurisdictions outside of the U.S., national insurance, social security or other tax withholding obligations, if any, which arise in connection with such participation. Each Participant agrees, by entering the Plan, that the Company and its Subsidiaries and Affiliates shall have the right to withhold any such taxes from any payment of any kind otherwise due by the Company or the employer to the Participant, including shares issuable under the Plan.

27. Notification Upon Sale of Shares . Each Participant who is a U.S. taxpayer agrees, by entering the Plan, to give the Company prompt notice of any disposition of shares purchased under the Plan where such disposition occurs within two years after the date of grant of the option pursuant to which such shares were purchased.

28. Tax Qualification . Although the Company may endeavor to (a) qualify an option for specific tax treatment under the laws of the U.S. or jurisdictions outside of the U.S. or (b) avoid adverse tax treatment (e.g., under Section 409A of the Code), the Company makes no representation to that effect and expressly disavows any covenant to maintain favorable or avoid unfavorable tax treatment, notwithstanding anything to the contrary in the Plan. The Company shall be unconstrained in its corporate activities without regard to any potential negative tax impact on Participants under the Plan.

29. Effective Date and Approval of Stockholders . The Plan shall take effect on the later of the date it is adopted by the Board and the date it is approved by the holders of a majority of the votes cast at a meeting of stockholders at which a quorum is present or by written consent of the stockholders. Notwithstanding the foregoing, a Payment Period can commence after Board approval but prior to stockholder approval; provided that options granted under such Payment Period shall be contingent on receipt of stockholder approval and if stockholder approval is not obtained, all employee contributions for such Payment Period shall be promptly refunded and no shares of Common Stock may be issued under the Plan.