This summary highlights selected information in this proxy statement and may not contain all of the information about the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement that are important to you. You should carefully read this proxy statement in its entirety, including the annexes hereto and the other documents to which we have referred you, for a more complete understanding of the matters being considered at the Special Meeting. You may obtain, without charge, copies of any of the documents we file with the Securities and Exchange Commission (the “SEC”) by following the instructions under the section of this proxy statement titled “Where You Can Find Additional Information.”
In this proxy statement: (1) the terms “we,” “us,” “our,” the “Company” and “Citrix” refer to Citrix Systems, Inc.; (2) the term “Parent” refers to Picard Parent, Inc.; (3) the term “Merger Subsidiary” refers to Picard Merger Sub, Inc.; (4) the term “TIBCO” refers to TIBCO Software Inc.; (5) the term “Vista” refers individually and collectively, as applicable, to Vista Equity Partners Management, LLC and its affiliated funds; (6) the term “Elliott” refers individually and collectively, as applicable, to Elliott Investment Management L.P., Evergreen Coast Capital Corp. and their affiliated funds; (7) the term “Merger Agreement” refers to the Agreement and Plan of Merger, dated as of January 31, 2022, by and among the Company, Parent, Merger Subsidiary, and solely for the limited purposes described in the Merger Agreement, TIBCO, as the same may be amended, supplemented or otherwise modified from time to time; (8) the term “Merger” refers to the merger of Merger Subsidiary with and into Citrix, with Citrix as the surviving corporation as described in the Merger Agreement; (9) the term “Citrix common stock” refers to the common stock, par value $0.001 per share, of the Company; and (10) the term “Special Meeting” refers to the special meeting of Citrix stockholders described in this proxy statement, including any adjournments or postponements thereof.
Citrix Systems, Inc.
Citrix is a Delaware corporation incorporated on April 17, 1989. Citrix is an enterprise software company focused on helping organizations deliver a consistent and secure work experience no matter where work needs to get done — in the office, at home, or in the field. We do this by delivering a digital workspace solution that provides unified, reliable and secure access to all work resources (apps, content, etc.) and simplifies work execution and collaboration across every work channel, device, and location. Our Workspace solutions are complemented by our general work solutions, such as content collaboration and collaborative work management solutions, and our App Delivery and Security solutions, which deliver the applications and data employees need across any network with security, reliability and speed.
Shares of Citrix common stock are quoted on the Nasdaq Stock Market LLC (“Nasdaq”) under the symbol “CTXS.” Our principal executive office is located at 851 West Cypress Creek Road, Fort Lauderdale, Florida 33309, our telephone number is (954) 267-3000, and our Internet address is http://www.citrix.com. Information on Citrix’s website is not incorporated by reference into or otherwise part of this proxy statement. Additional information about Citrix is contained in our public filings. See the section of this proxy statement titled “Where You Can Find Additional Information.”
TIBCO Software Inc.
TIBCO, a global leader in enterprise data, empowers its customers to connect, unify, and confidently predict business outcomes, solving the world’s most complex data-driven challenges. TIBCO is an indirect subsidiary of an affiliate of Vista, a leading global investment firm focused exclusively on enterprise software, data and technology-enabled businesses. Vista is partnering with Evergreen Coast Capital Corp., an affiliate of Elliott
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Investment Management L.P. that focuses on making investments exclusively in technology and technology-enabled services businesses. TIBCO’s principal executive office is located at 3303 Hillview Avenue, Palo Alto, California 94304, and its telephone number is (650) 846-1000.
Picard Parent, Inc.
Parent was formed by TIBCO solely for the purpose of engaging in the transactions contemplated by the Merger Agreement and has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement and arranging of the equity and debt financing in connection with the Merger. Upon completion of the Merger, Citrix will be a direct wholly owned subsidiary of Parent.
Picard Merger Subsidiary, Inc.
Merger Subsidiary is a wholly owned subsidiary of Parent and was formed by Parent solely for the purpose of engaging in the transactions contemplated by the Merger Agreement and has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Upon completion of the Merger, the Merger Subsidiary will cease to exist.
The Company, Parent, Merger Subsidiary and, solely for the limited purposes set forth therein, TIBCO entered into the Merger Agreement on January 31, 2022. A copy of the Merger Agreement is included as Annex A to this proxy statement. On the terms and subject to the conditions set forth in the Merger Agreement and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), at the effective time of the Merger, Merger Subsidiary will merge with and into the Company, the separate corporate existence of Merger Subsidiary will thereupon cease, and the Company will continue as the surviving corporation of the Merger as a wholly owned subsidiary of Parent. From time to time in this proxy statement, we refer to Citrix as it will exist after the completion of the Merger as the “surviving corporation.”
At the effective time of the Merger, and without any action by any stockholder, each share of Citrix common stock that is outstanding immediately prior to the effective time of the Merger (other than shares held by the Company as treasury stock, owned by Parent or Merger Subsidiary immediately prior to the effective time of the Merger or as to which holders thereof have properly and validly exercised their statutory rights of appraisal in accordance with Section 262 of the DGCL) will be automatically converted into the right to receive cash in an amount equal to $104.00, without interest (which is referred to as the “merger consideration”), less any applicable withholding taxes.
Date, Time and Place
The Special Meeting will be held virtually on Thursday, April 21, 2022, at 8:00 a.m. Eastern time. At the Special Meeting, holders of Citrix common stock will be asked to, among other things, vote for the adoption of the Merger Agreement. All stockholders are cordially invited to attend the Special Meeting. Citrix is conducting the Special Meeting solely online via the Internet through a live webcast and online stockholder tools. Stockholders will be able to attend the Special Meeting by visiting www.virtualshareholdermeeting.com/CTXS2022SM and by using the 16-digit control number included in their proxy materials. You will not be able to attend the Special Meeting physically in person. For purposes of attendance at the Special Meeting, all references in this proxy statement to “present in person” or “in person” shall mean virtually present at the Special Meeting.
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Record Date and Stockholders Entitled to Vote
Only holders of Citrix common stock of record as of the close of business on March 8, 2022, the record date for the Special Meeting, are entitled to receive notice of and to vote the shares of Citrix common stock they held on the record date at the Special Meeting. As of the close of business on the record date, 125,913,152 shares of Citrix common stock were issued and outstanding and entitled to vote at the Special Meeting.
Quorum
The representation in person or by proxy of at least a majority of the outstanding shares of Citrix common stock entitled to vote at the Special Meeting, or 62,956,577 shares of Citrix common stock, is necessary to constitute a quorum for the transaction of business.
Vote Required
On each of the proposals presented at the Special Meeting, each holder of Citrix common stock is entitled to one vote for each share of Citrix common stock held by such stockholder on the record date. The adoption of the Merger Agreement by the holders of Citrix common stock requires the affirmative vote of stockholders holding a majority of the outstanding shares of Citrix common stock entitled to vote as of the close of business on the record date. The approval of the compensation proposal and adjournment proposal, if necessary or appropriate, to solicit additional proxies each requires the affirmative vote of a majority of the shares of Citrix common stock present, in person or represented by proxy, and voting on such matter. The approval of the compensation proposal is advisory and non-binding and is not a condition to the completion of the Merger.
Reasons for the Merger; Recommendation of the Citrix Board (page 38)
After careful consideration, the Citrix Board: (1) declared that the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement were advisable and in the best interests of the Company’s stockholders; (2) approved the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement; and (3) recommended the adoption of the Merger Agreement to the stockholders of the Company. Accordingly, the Citrix Board recommends that stockholders vote “FOR” the proposal to adopt the Merger Agreement, “FOR” the advisory, non-binding compensation proposal, and “FOR” the adjournment proposal, if necessary or appropriate, to solicit additional proxies.
For a discussion of the material factors that the Citrix Board considered in determining to recommend the adoption of the Merger Agreement, please see the section of this proxy statement titled “The Merger—Reasons for the Merger; Recommendation of the Citrix Board.”
Opinion of Qatalyst Partners (page 41)
Citrix engaged Qatalyst Partners LP (“Qatalyst Partners”) to act as financial adviser to the Citrix Board in connection with a potential transaction such as the Merger based on Qatalyst Partners’ qualifications, expertise, reputation and knowledge of Citrix’s business and the industry in which Citrix operates. At the meeting of the Citrix Board on January 30, 2022, Qatalyst Partners rendered to the Citrix Board its oral opinion, subsequently confirmed in writing, to the effect that, as of January 31, 2022, and subject to the various assumptions made, procedures followed, qualifications, limitations and other matters considered in connection with preparation of such opinion as set forth therein, the merger consideration to be received pursuant to, and in accordance with, the terms of the Merger Agreement by the holders of shares of Citrix common stock (other than Parent or any affiliate of Parent) was fair, from a financial point of view, to such holders.
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The full text of the written opinion of Qatalyst Partners, dated as of January 31, 2022, is attached to this proxy statement as Annex C and is incorporated into this proxy statement by reference. The opinion sets forth, among other things, the various assumptions made, procedures followed, qualifications, limitations and other matters considered by Qatalyst Partners in rendering its opinion. You should read the opinion carefully in its entirety.
Qatalyst Partners’ opinion was provided to the Citrix Board and addressed only, as of January 31, 2022, the fairness, from a financial point of view, of the merger consideration to be received pursuant to, and in accordance with, the terms of the Merger Agreement by the holders of shares of Citrix common stock (other than Parent or any affiliate of Parent) to such holders. It does not address any other aspect of the Merger. It does not constitute a recommendation to any Citrix stockholder as to how to vote with respect to the Merger or any other matter and does not in any manner address the price at which the shares of Citrix common stock will trade at any time.
For a description of the opinion that the Citrix Board received from Qatalyst Partners, see the section of this proxy statement titled “The Merger—Opinion of Qatalyst Partners.”
Certain Effects of the Merger (page 53)
Upon the consummation of the Merger, Merger Subsidiary will be merged with and into Citrix, the separate corporate existence of Merger Subsidiary will thereupon cease, and Citrix will continue to exist following the Merger as a wholly owned subsidiary of Parent.
Following the consummation of the Merger, shares of Citrix common stock will be delisted from Nasdaq, and the registration of shares of Citrix common stock under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), will be terminated.
Effects on the Company if the Merger Is Not Completed (page 54)
In the event that the proposal to adopt the Merger Agreement does not receive the required approval from the holders of Citrix common stock, or if the Merger is not completed for any other reason, the holders of Citrix common stock will continue to own their shares and will not receive any payment for their shares of Citrix common stock in connection with the Merger. Instead, the Company will remain an independent public company, with Citrix common stock listed and traded on Nasdaq. Under certain circumstances, if the Merger Agreement is terminated, the Company may be obligated to pay to Parent a termination fee of $409 million. Please see the section of this proxy statement titled “The Merger Agreement—Termination Fees and Expenses.”
Treatment of Equity Awards (page 71)
| • | Vested Citrix stock options: Each vested option to purchase shares of Citrix common stock (referred to as “Citrix stock options”) will be automatically cancelled and converted into the right to receive an amount in cash equal to the product obtained by multiplying (1) the excess, if any, of the merger consideration over the per share exercise price of such Citrix stock option, by (2) the aggregate number of shares of Citrix common stock that would have been issuable upon exercise of such Citrix stock option immediately prior to the effective time. |
| • | Unvested Citrix stock options: Each unvested Citrix stock option will be automatically cancelled and converted into the contingent right to receive an aggregate amount in cash (referred to as a “converted cash award”) equal to the product obtained by multiplying (1) the excess, if any, of the merger consideration over the per share exercise price of such Citrix stock option, by (2) the aggregate number of shares of Citrix common stock that would have been issuable upon exercise of such Citrix stock option immediately prior to the effective time. The converted cash award will be subject to generally the same terms as the corresponding, cancelled equity award, including vesting conditions. |
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| • | Citrix DSU awards: Each outstanding deferred stock unit award covering shares of Citrix common stock (including any restricted stock units deferred pursuant to Citrix’s stock plans) (referred to as “Citrix DSU awards”), whether or not vested, will be automatically cancelled and converted into the right to receive an amount in cash equal to the product obtained by multiplying (1) the aggregate number of shares of Citrix common stock subject to such Citrix DSU award by (2) the merger consideration. |
| • | Citrix RSU awards: Each outstanding restricted stock unit award that is not subject to performance-based vesting (referred to as “Citrix RSU awards”) will be automatically cancelled and converted into a converted cash award with respect to an aggregate amount in cash equal to the product obtained by multiplying (1) the aggregate number of shares of Citrix common stock subject to such Citrix RSU award by (2) the merger consideration. The converted cash award will be subject to generally the same terms as the corresponding, cancelled equity award, including vesting conditions. |
| • | Citrix PRSU awards: Each outstanding restricted stock unit award that is subject to performance-based vesting (referred to as “Citrix PRSU awards”) will be deemed earned for such number of shares of Citrix common stock as determined in accordance with the terms of the applicable award agreement, and such Citrix PRSU awards will be automatically cancelled and converted into a converted cash award with respect to an aggregate amount in cash equal to the product obtained by multiplying (1) the aggregate number of shares of Citrix common stock subject to such Citrix PRSU award (as deemed earned) by (2) the merger consideration. The converted cash award will be subject to generally the same terms as the corresponding, cancelled equity award, including vesting conditions. |
All payments with respect to Citrix equity awards will be made without interest and less any applicable withholding taxes.
Interests of the Company’s Directors and Executive Officers in the Merger (page 56)
The Company’s directors and executive officers have interests in the Merger that may be different from, or in addition to, the interests of the Company’s stockholders generally. The members of the Citrix Board were aware of and considered these interests in reaching the determination to approve the Merger Agreement and deem the Merger Agreement, the Merger and the other transactions and agreements contemplated by the Merger Agreement to be advisable, fair to and in the best interests of the Company and its stockholders, and in recommending that stockholders vote for the adoption of the Merger Agreement. These interests include:
| • | the Company’s executive officers and directors hold equity-based awards that will be afforded the treatment described immediately above under “Treatment of Equity Awards”; |
| • | the Company’s executive officers are party to existing employment and executive agreements with the Company that provide for severance in the case of a qualifying termination of employment within specified periods following a change in control, which will include completion of the Merger; and |
| • | the Company’s directors and executive officers are entitled to continued indemnification and insurance coverage following the Merger under the Merger Agreement. Please see the section of this proxy statement titled “The Merger Agreement—Indemnification of Directors and Officers and Insurance.” |
Security Ownership of Certain Beneficial Owners and Management (page 99)
As of March 8, 2022, the directors and executive officers of Citrix beneficially owned in the aggregate approximately 508,490 shares, or approximately 0.4% of the outstanding shares, of Citrix common stock.
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In connection with the execution of the Merger Agreement, Elliott Associates, L.P. and Elliott International, L.P., funds affiliated with Elliott, entered into a voting agreement with the Company (the “Voting Agreement”). Subject to its terms, the Voting Agreement obligates the specified stockholders to, among other things, vote shares of Citrix common stock beneficially owned by the specified stockholders in favor of the adoption of the Merger Agreement and, subject to certain exceptions, not transfer any shares of Citrix common stock prior to the termination of the Voting Agreement. The Voting Agreement will terminate upon the earliest to occur of (1) the effective time of the Merger, (2) the termination of the Merger Agreement in accordance with its terms, and (3) the termination of the Voting Agreement by the mutual written consent of the parties to that agreement. As of the close of business on the record date, the specified stockholders in the aggregate beneficially owned approximately 1,200,000 shares, representing approximately 1% of the outstanding shares entitled to vote at the Special Meeting. A copy of the Voting Agreement is included as Annex D to this proxy statement.
Financing of the Merger (page 55)
The obligation of Parent and Merger Sub to consummate the Merger is not subject to any financing condition. It is anticipated that the total amount of funds necessary to complete the Merger and the related transactions, and to pay the fees and expenses required to be paid at the closing of the Merger by Parent and Merger Sub under the Merger Agreement, will be approximately $17.3 billion in cash. Parent has obtained equity and debt financing commitments for the transactions contemplated by the Merger Agreement, the aggregate proceeds of which, together with cash on hand at TIBCO and the Company, will be used to pay the aggregate merger consideration and all related fees and expenses of Parent and Merger Sub and to repay the Company’s outstanding debt.
Elliott Associates, L.P. and Elliott International, L.P., funds affiliated with Elliott, have committed, pursuant to an equity commitment letter dated as of January 31, 2022 (the “Equity Commitment Letter”), to capitalize Parent, at or prior to the effective time of the Merger, with an aggregate equity contribution in an amount of $2.275 billion, on the terms and subject to the conditions set forth in the Equity Commitment Letter. The Equity Commitment Letter also provides that, at or prior to the closing of the Merger, the Elliott funds will, directly or indirectly, contribute to Parent an aggregate of 1,200,000 shares of Citrix common stock in exchange for, directly or indirectly through one or more intermediate entities, additional equity securities of Parent. Such Elliott funds, Vista and TIBCO have executed limited guarantees in favor of the Company to guarantee, subject to certain limitations, the payment of the termination fee that may become payable by Parent under the terms of the Merger Agreement and certain other expense and indemnification obligations of Parent under the Merger Agreement.
Certain institutional investors have committed, pursuant to a commitment letter dated as of January 31, 2022 (the “Preferred Equity Commitment Letter”), to purchase, directly or through one or more of their respective affiliates or managed funds, preferred equity interests to be issued by Picard Holdco, LLC, an indirect parent entity of TIBCO, at or prior to the effective time of the Merger, with an aggregate initial liquidation preference amount of up to $2.5 billion, on the terms and subject to the conditions set forth in the Preferred Equity Commitment Letter.
In addition, Bank of America, N.A., Credit Suisse AG, Goldman Sachs Bank USA, Barclays Bank PLC, Citigroup Global Markets Inc., Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, KKR Capital Markets LLC, Mizuho Bank, Ltd., Morgan Stanley Senior Funding, Inc. and Royal Bank of Canada have committed to provide debt financing for the Merger consisting of (1) a senior secured term loan facility in an aggregate principal amount equal to $7.05 billion, (2) a senior secured revolving credit facility in an aggregate principal amount equal to $1.0 billion, (3) a senior secured bridge term facility in an aggregate principal amount equal to $4.0 billion, and (4) an unsecured bridge term facility in an aggregate principal amount equal to $3.95 billion, in each case, on the terms and subject to the conditions set forth in a commitment letter,
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dated as of January 31, 2022 and delivered to the Company in advance of execution of the Merger Agreement (the “Debt Commitment Letter” and together with the Equity Commitment Letter and the Preferred Equity Commitment Letter, the “Financing Commitment Letters”).
Conditions of the Merger (page 92)
The obligations of the parties to consummate the Merger are subject to the satisfaction or waiver of various conditions, including the following:
| • | the adoption of the Merger Agreement by the Company’s stockholders; |
| • | the absence of any order from any governmental authority having jurisdiction over any party to the Merger Agreement (whether temporary, preliminary or permanent) restraining, enjoining or otherwise prohibiting the consummation of the Merger, and the absence of any applicable law being adopted that makes consummation of the Merger illegal or otherwise prohibited; and |
| • | the expiration or early termination of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and receipt of the consents required under the antitrust laws and applicable foreign investment regulations of certain foreign jurisdictions or expiration or termination of any applicable waiting period thereunder (see the section titled “The Merger—Regulatory Approvals Required for the Merger”). |
Each party’s obligation to consummate the Merger is also subject to the satisfaction or waiver of certain additional conditions, including:
| • | subject to certain materiality and other qualifiers, the accuracy of the representations and warranties of the other party; |
| • | performance in all material respects by the other party of its obligations under the Merger Agreement; |
| • | the delivery of a customary closing certificate signed on behalf of the respective party by an officer of the party certifying certain conditions have been satisfied; and |
| • | in the case of Parent’s and Merger Subsidiary’s obligations, the absence of a Company Material Adverse Effect (which term is described in the section titled “The Merger Agreement—Representations and Warranties”). |
The consummation of the Merger is not conditioned upon Parent’s receipt of financing.
Before the closing, each of the Company, Parent and Merger Subsidiary may waive any of the conditions to its obligation to consummate the Merger even though one or more of the conditions described above has not been met, except where waiver is not permissible under applicable law.
Regulatory Approvals Required for the Merger (page 68)
The consummation of the Merger is subject to review under the HSR Act. As described above in the section titled “ —Conditions of the Merger,” the obligations of Parent and the Company to consummate the Merger are subject to the waiting period applicable to the Merger under the HSR Act, and any agreement between a party and any governmental authority not to consummate the Merger, having expired or been terminated. Under the HSR Act and the rules and regulations promulgated thereunder, the Merger may not be completed until notifications have been filed and certain information has been furnished to the Federal Trade Commission (the “FTC”) and the Antitrust Division of the Department of Justice (the “DOJ”) and the specified waiting period has expired or been terminated. The Company and Parent each filed or caused to be filed the requisite notification forms under the HSR Act with the DOJ and the FTC on February 14, 2022 and the applicable waiting period expires at 11:59 p.m. Eastern time on March 16, 2022. Both before and after the expiration of the applicable waiting period, the FTC and the DOJ retain the authority to challenge the Merger on antitrust grounds.
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The consummation of the Merger is also conditioned upon the receipt of the consents and approvals required by the antitrust authorities in certain other jurisdictions and other relevant authorities under foreign investment laws. The Merger cannot be completed until Citrix and Parent obtain clearance to consummate the Merger or the applicable waiting periods have expired or been terminated in such jurisdictions.
No-Shop; Citrix Board Recommendation Change (page 79)
The Merger Agreement generally restricts the Company’s ability to:
| • | solicit, initiate, propose, assist, knowingly facilitate, or knowingly encourage any inquiries, proposals or offers that constitute, or that could reasonably be expected to lead to, an acquisition proposal (as defined below in the section titled “The Merger Agreement—No-Shop; Citrix Board Recommendation Change”); |
| • | engage in, continue or otherwise participate in any discussions or negotiations with any third party regarding an acquisition proposal, or furnish to any third party information or provide to any third party access to the businesses, properties, assets or personnel of the Company or any of its subsidiaries; |
| • | enter into any alternative acquisition agreement (as defined below in the section titled “The Merger Agreement—No-Shop; Citrix Board Recommendation Change”); or |
| • | approve, endorse or recommend any proposal that constitutes, or could reasonably be expected to lead to, an acquisition proposal. |
Prior to the adoption of the Merger Agreement by Citrix stockholders, if the Citrix Board receives a written acquisition proposal from a third party that did not result from a material breach of the Merger Agreement, and the Citrix Board or any committee thereof determines in good faith (after consultation with its financial advisor and outside legal counsel) that such acquisition proposal constitutes or would reasonably be expected to lead to a superior proposal (as defined below in the section titled “The Merger Agreement—No-Shop; Citrix Board Recommendation Change— Citrix Board Recommendation Change”) and the failure to take such actions would be inconsistent with its fiduciary duties pursuant to applicable law, then the Company may furnish non-public information to, and participate in discussions or negotiations with, the party that made the acquisition proposal.
The Citrix Board generally is not permitted under the Merger Agreement to change its recommendation to stockholders in favor of the adoption of the Merger Agreement. However, prior to the adoption of the Merger Agreement by Citrix stockholders, the Citrix Board is permitted to withdraw, amend, qualify or modify its recommendation in response to certain unforeseen, intervening events or to accept a superior proposal if, in either case, the Citrix Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties under applicable law. Any such change in the Citrix Board’s recommendation is subject to the procedures set forth in the Merger Agreement, including that the Company negotiates in good faith with Parent and its representatives, if requested by Parent, for four business days (or two business days following an amended acquisition proposal) to make amendments to the terms and conditions of the Merger Agreement and related documents so that, as applicable, the Citrix Board’s fiduciary duties no longer require it to make a recommendation change in response to the intervening event or the acquisition proposal no longer constitutes a superior proposal.
The Merger Agreement may be terminated at any time prior to the effective time of the Merger in the following circumstances:
| • | by mutual written consent of Parent and the Company; |
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| • | by either Parent or the Company if: |
| • | the Merger is not consummated on or before October 31, 2022, subject to extension in certain circumstances to a date no later than January 31, 2023 (referred to as the “end date”); |
| • | if any governmental authority has issued a final and non-appealable order, which remains in effect, permanently enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by the Merger Agreement; or |
| • | if the Company’s stockholders fail to adopt the Merger Agreement upon a final vote taken at the Special Meeting; |
| • | by Parent if: |
| • | the Company breaches any representation, warranty, covenant or other agreement contained in the Merger Agreement that would result in a condition to the closing of the Merger not being satisfied and such breach has not been timely cured; or |
| • | prior to adoption of the Merger Agreement by Citrix stockholders, the Citrix Board shall have effected an adverse recommendation change; and |
| • | by the Company if: |
| • | Parent, Merger Subsidiary or TIBCO breaches any representation, warranty, covenant or other agreement contained in the Merger Agreement that would result in a condition to the closing of the Merger not being satisfied and such breach has not been timely cured; |
| • | prior to the adoption of the Merger Agreement by Citrix stockholders, (1) the Company receives a superior proposal and the Citrix Board effects an adverse recommendation change in respect of such superior proposal and authorizes the Company to enter into a definitive agreement to consummate the transaction contemplated by the superior proposal (and immediately following such termination, the Company enters into a definitive agreement with respect to such superior proposal), (2) the Company has complied in all material respects with its obligations under the no-shop provisions in the Merger Agreement and (3) substantially concurrently with such termination Citrix pays Parent the termination fee; or |
| • | (1) all of the mutual closing conditions and conditions to the obligations of Parent and Merger Subsidiary to effect the Merger have been and remain satisfied or waived (other than those conditions that by their nature are to be satisfied by actions taken at the closing; provided that each such condition would be satisfied if the closing were on such date, other than solely by virtue of Parent’s failure to effect the closing), (2) the Company has irrevocably notified Parent in writing that the Company stands ready, willing and able to consummate the Merger, (3) the Company has given Parent written notice at least five business days (or, if earlier, the business day immediately preceding the end date) prior to such termination stating that the Company intends to terminate the Merger Agreement and (4) Parent and Merger Subsidiary fail to consummate the Merger within such five business day period after the delivery by the Company to Parent of a notice to such effect (or, if earlier, the end date). |
The Company will be required to pay Parent a termination fee of $409.0 million if the Merger Agreement is terminated under certain circumstances, and Parent will be required to pay the Company a termination fee of $818.0 million if the Merger Agreement is terminated under certain other circumstances.
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Pursuant to Section 262 of the DGCL, Citrix stockholders who continuously hold shares of Citrix common stock through the effective time of the Merger, who do not vote in favor of the adoption of the Merger Agreement, who properly demand appraisal of their shares and do not withdraw their demands, and who otherwise comply with the applicable requirements of Section 262 of the DGCL, will be entitled to seek appraisal of their shares of Citrix common stock in connection with the Merger under Section 262 of the DGCL. The “fair value” of shares of Citrix common stock as determined by the Delaware Court of Chancery could be greater than, the same as, or less than the per share merger consideration that stockholders would otherwise be entitled to receive under the terms of the Merger Agreement if they did not seek appraisal of their shares of Citrix common stock.
The right to seek appraisal will be lost if a Citrix stockholder votes “FOR” the proposal to adopt the Merger Agreement. However, abstaining or voting against adoption of the Merger Agreement is not in itself sufficient to perfect appraisal rights because additional actions must also be taken to perfect such rights. To exercise appraisal rights, Citrix stockholders who wish to exercise the right to seek an appraisal of their shares must so advise the Company by submitting a written demand for appraisal (or by electronic transmission directed to an information processing system, if any, expressly designated for that purpose in the notice of appraisal) to the Company prior to the taking of the vote on the merger proposal at the Special Meeting, and must otherwise strictly follow the applicable procedures and requirements prescribed by Section 262 of the DGCL. A person having a beneficial interest in shares of Citrix common stock held of record in the name of another person, such as a bank, broker or other nominee, must act promptly to cause the record holder to follow the steps required by Section 262 of the DGCL and in a timely manner to perfect appraisal rights. In addition, under Section 262 of the DGCL, the Delaware Court of Chancery will dismiss any appraisal proceedings as to all stockholders who have perfected their appraisal rights unless (1) the total number of shares entitled to appraisal exceeds 1% of the outstanding shares of Citrix common stock or (2) the value of the per share merger consideration multiplied by the total number of shares of Citrix common stock entitled to appraisal exceeds $1 million.
In view of the complexity of Section 262 of the DGCL, Citrix stockholders that may wish to pursue appraisal rights are urged to consult their legal and financial advisors.
Accounting Treatment (page 65)
The Merger will be accounted for as a “purchase transaction” for financial accounting purposes.
Material U.S. Federal Income Tax Considerations (page 65)
The receipt of cash by a holder of Citrix common stock who is a U.S. holder (as defined below in the section of this proxy statement titled “The Merger—Material U.S. Federal Income Tax Considerations”) in exchange for shares of Citrix common stock pursuant to the Merger will generally be a taxable transaction for U.S. federal income tax purposes and may also be a taxable transaction under applicable state, local or foreign income or other tax laws. Generally, for U.S. federal income tax purposes, if you are a U.S. holder, you will recognize gain or loss equal to the difference, if any, between the amount of cash you receive (or are deemed to receive) in the Merger and your adjusted tax basis in the shares of Citrix common stock converted into cash in the Merger. If you are a holder of Citrix common stock who is a non-U.S. holder (as defined below in the section of this proxy statement titled “The Merger—Material U.S. Federal Income Tax Considerations”), the Merger will generally not be a taxable transaction to you under U.S. federal income tax laws unless you have certain connections to the United States, or the Company is, or was during the relevant period, a U.S. real property holding corporation. Further, the Merger may be a taxable transaction to you under non-U.S. tax laws, and you are encouraged to seek tax advice regarding such matters. Because individual circumstances may differ, we urge you to consult your own tax advisor to determine the particular tax effects to you.
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You are urged to read the section of this proxy statement titled “The Merger—Material U.S. Federal Income Tax Considerations” for a more complete discussion of the material U.S. federal income tax consequences of the Merger.
Additional Information (page 108)
You can find more information about Citrix in the periodic reports and other information we file with the SEC. The information is available at the SEC’s public reference facilities and at the website maintained by the SEC at www.sec.gov. See the section of this proxy statement titled “Where You Can Find Additional Information.”
If you have any questions concerning the Merger Agreement, the Merger or the other transactions contemplated by the Merger Agreement, the Special Meeting or the accompanying proxy statement, would like additional copies of the proxy statement, or need help submitting a proxy to have your shares of Citrix common stock voted, please contact Citrix’s proxy solicitor:
MacKenzie Partners, Inc.
1407 Broadway, 27th Floor
New York, NY 10018
Stockholders may call toll free: 1 (800) 322-2885
Banks and Brokers may call collect: 1 (212) 929-5500
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