CTXS Citrix Systems Inc

Registration No. 333-            

As filed with the Securities and Exchange Commission on February 19, 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)

 

 

Sanbolic, 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 (2)		Proposed Maximum Offering Price Per Share		Proposed Maximum Aggregate Offering Price		Amount of Registration Fee
Common Stock, $.001 par value (1)		37,057		$63.60 (3)		$2,356,825.20 (3)		$273.87
Total		37,057				$2,356,825.20		$273.87

(1)

Pursuant to an Agreement and Plan of Merger, dated as of December 16, 2014 by and among Citrix Systems, Inc. (the “Registrant”), Sancerre Acquisition Corporation, Sanbolic, Inc., and Shareholder Representative Services LLC, the Registrant assumed all of the awards of restricted stock units under the Sanbolic, Inc. 2014 Restricted Stock Unit Plan (the “Sanbolic Plan”). Effective January 8, 2015, all of the restricted stock units issued under the Sanbolic Plan were converted into the right to receive up to 37,057 shares of the Registrant’s Common Stock.

(2)

This Registration Statement shall also cover any additional shares of common stock of the Registrant which become issuable under the Sanbolic Plan 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.

(3)	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 February 11, 2015.

 

 

 

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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 Securities and Exchange Commission (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 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, 2014, filed with the Commission on February 19, 2015;

(b) The Registrant’s Current Reports on Form 8-K filed with the Commission on January 8, 2015 (but only with respect to Item 5.02), January 13, 2015 (but only with respect to Item 5.02), January 28, 2015 (but only with respect to Item 2.05) and February 13, 2015; and

(c) 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.

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.

 

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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 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.

 

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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.

 

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		Sanbolic, Inc. 2014 Restricted Stock Unit 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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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.

(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 19th day of February, 2015.

 

 

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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 19th day of February, 2015.

 

Name		Title(s)
/s/    Mark B. Templeton		President, Chief Executive Officer and Director (Principal Executive Officer)
Mark B. Templeton
/s/    Thomas F. Bogan		Chairman of the Board of Directors
Thomas F. Bogan
/s/    Robert M. Calderoni		Director
Robert M. Calderoni
/s/    Nanci E. Caldwell		Director
Nanci E. Caldwell
/s/    Robert D. Daleo		Director
Robert D. Daleo
/s/    Murray J. Demo		Director
Murray J. Demo
/s/    Francis deSouza		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		Executive Vice President, Chief Operating Officer and Chief Financial Officer (Principal Financial Officer)
David J. Henshall
/s/    David Zalewski		Vice President, Chief Accounting Officer and Corporate Controller (Principal Accounting Officer)
David Zalewski

 

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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		Sanbolic, Inc. 2014 Restricted Stock Unit 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

February 19, 2015

Citrix Systems, Inc.

851 West Cypress Creek Road

Fort Lauderdale, Florida 33309

 

Re:

Securities Being Registered under Registration Statement on Form S-8

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 37,057 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 Sanbolic, Inc. 2014 Restricted Stock Unit Plan (the “Plan”).

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 Plan, 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.

 

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 Sanbolic, Inc. 2014 Restricted Stock Unit Plan of our reports dated February 19, 2015, 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, 2014, filed with the Securities and Exchange Commission.

 

Boca Raton, Florida

February 19, 2015

EXHIBIT 99.1

SANBOLIC, INC.

2014 Restricted Stock Unit Plan

This 2014 Restricted Stock Unit Plan (this “Plan”) has been adopted by Sanbolic, Inc., a Delaware corporation, to provide a long-term incentive to certain designated employees of the Company (as defined below) or its wholly-owned subsidiary to continue their employment with the Company, its wholly-owned subsidiary or another Employing Entity, as applicable.

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, $0.001 par value per share.

“Common Stock Value Per Share” means the per share consideration payable or otherwise distributable to a holder of shares of Common Stock in a Sale Event (including, for the avoidance of doubt, any portion of such per share consideration allocated to fund escrow obligations).

“Company” means Sanbolic, 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.

“Employing Entity” means the Company or its wholly-owned subsidiary or, after the consummation of a Sale Event, or after any transactions in connection therewith, including transactions that occur before the consummation of a Sale Event, the Company, the Acquirer or any of its subsidiaries or the Parent Company or any of its subsidiaries.

“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.

 

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“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 or its wholly-owned subsidiary 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.”

 

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“Restricted Stock Units” means those certain Restricted Stock 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 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 employees eligible to participate in this Plan, and (ii) enter into a Restricted Stock Unit Agreement with such employees, 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 $2,380,000 and shall, at all times, be subject to all applicable terms and conditions of the Restricted Stock Unit Agreement and this Plan.

(b) Vesting. Subject to Section 3(g) hereof, provided a Participant is employed by an Employing Entity, 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. Except in the event of a termination of any Participant’s employment by the Employing Entity, upon termination of any Participant’s employment with an Employing Entity, such that after such termination, such Participant is no longer employed by the Employing Entity, for any reason (including by reason of death or permanent disability or disaffiliation of any such subsidiary or affiliate with the Parent Company) (the date of such termination, the “Separation Date”), all Restricted Stock 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 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) may be modified by a written agreement between the Participant and the

 

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Company, the Acquiror or the Parent Company, as the case may be, which written agreement shall control. For purposes of the Plan, (i) for the avoidance of doubt, in connection with a Sale Event, a transfer to the employment of the Company, the Acquiror or any of its subsidiaries or the Parent Company or any of its subsidiaries from the Company or its wholly-owned subsidiary shall not be deemed a termination of employment, and (ii) after the consummation of a Sale Event, the following events shall not be deemed a termination of employment: (x) 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 (y) 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 Stock Units.

(a) Delivery. 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, as soon as practicable 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 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. Following the consummation of a Sale Event and upon the vesting of each Restricted Stock Unit, the Parent Company shall, as soon as practicable following the applicable Vesting Date, deliver to the Participant holding such Restricted Stock Unit the number of Shares determined in accordance with this Section 3(b), 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).

(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 of Common Stock by the Company or Shares by the Parent Company, as applicable, 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 of Common Stock or Shares are at the time of the issue of such shares of Common Stock or Shares by the Company or the Parent Company, as applicable, 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 of Common Stock or 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 appropriate Employing Entity, 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 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 minimum required tax withholding obligation satisfied, in whole or in part, by authorizing the appropriate Employing Entity 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.

(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.

 

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(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 of Common Stock or Shares have been delivered to such Participant by the Company or the Parent Company, as applicable, pursuant to Section 3(a) or 3(b), respectively, the shares of Common Stock or 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 of Common Stock or Shares, as applicable, have been delivered to such Participant pursuant to Section 3(a) or 3(b), respectively, the shares of Common Stock or Shares to be issued by the Company or the Parent Company, as applicable, 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, all Restricted Stock Units shall become fully vested and nonforfeitable as of immediately prior to the effective time of the Parent Acquisition and the Plan shall terminate thereafter.

(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)(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 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.

(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

 

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(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 of Common Stock or Parent Common Stock 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.

 

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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.

8. 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 of Common Stock or Parent Common Stock as contemplated by Section 3 of this Plan or (b) the ten (10) year anniversary of the Effective Date.

9. Section 409A. This Plan is intended to provide for the grant of awards that are exempt from Section 409A of the Internal Revenue Code of 1986, as amended.

10. Benefit Amounts Not Salary. No shares of Common Stock or Parent Common Stock issuable pursuant to this Plan shall be deemed salary or other compensation to any Participant for

 

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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.

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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