In connection with the execution of the Merger Agreement, Citrix entered into a Voting Agreement with the Elliott Funds. The following is a summary of the material provisions of the Voting Agreement, a copy of which is attached as Annex D to this proxy statement and is incorporated into this proxy statement by reference.
As of the close of business on the record date, the Elliott Funds in the aggregate beneficially owned approximately 1,200,000 shares, representing approximately 1% of the outstanding shares entitled to vote at the Special Meeting. In addition, the Elliott Funds held derivative positions with respect to 14,290,969 shares of Citrix common stock representing economic exposure to approximately 11% of the outstanding shares of Citrix common stock. The derivative positions provide the Elliott Funds with economic results that are comparable to the economic results of ownership but do not provide them with the power to vote or direct the voting or dispose of or direct the disposition of the shares. In the event any Elliott Fund acquires record ownership or beneficial ownership of Citrix common stock after the execution of the Voting Agreement, such additional shares shall automatically become subject to the Voting Agreement. The shares of Citrix common stock subject to the Voting Agreement are referred to in this section as “covered shares.”
Voting Provisions
Under the Voting Agreement, the Elliott Funds agreed to vote or cause to be voted all covered shares: (1) in favor of the adoption of the Merger Agreement; (2) in favor of the approval of any proposal to adjourn or postpone the meeting to a later date, if there are not sufficient votes for the approval of the Merger Agreement on the date on which such meeting is held; (3) in favor of the approval of any “say-on-golden parachute” proposal, whether such proposal is recommended for approval on an advisory or a binding basis; (4) against approval of any proposal, transaction, agreement or action, without regard to the terms of such proposal, transaction, agreement or action, made in opposition to, in competition with, or inconsistent with the Merger Agreement, the Merger or the transactions contemplated by the Merger Agreement, in each case, unless otherwise consented to in writing by the Company or following a Citrix Board recommendation change; and (5) in favor of any other matter or action necessary or appropriate to or in furtherance of the consummation of the Merger Agreement or the transactions contemplated by the Merger Agreement.
The Elliott Funds also have agreed to be present in person or by proxy at any meeting of the Company’s stockholders or otherwise cause the covered shares to be counted as present for purposes of establishing a quorum.
Restrictions on Transfer
Pursuant to the Voting Agreement, each Elliott Fund agreed that, during the term of the Voting Agreement, it will not (1) sell, pledge, encumber (other than encumbrances permitted under the Voting Agreement), exchange, assign, grant an option with respect to, transfer, tender or otherwise dispose of covered shares or any interest in such covered shares (including by merger, by testamentary disposition, by gift, by operation of law or otherwise), (2) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent or execute any written consent in or with respect to any or all of the covered shares that is inconsistent with the Voting Agreement (other than any written consent executed in accordance with the Voting Agreement), (3) create or permit to exist any liens, other than liens arising under or imposed by applicable law or pursuant to the Voting Agreement, the Merger Agreement or the transactions contemplated thereby, or any “permitted transfers” (as defined in the Voting Agreement) or that are not material to the stockholders’ performance of their respective obligations under the Voting Agreement, (4) deposit any covered shares into a voting trust or enter into a voting agreement or arrangement or understanding that is inconsistent with the Voting Agreement, or (5) agree or commit (whether or not in writing) to take any of the actions referred to in the foregoing clauses, in each case, other than as permitted by the Voting Agreement.
Waiver of Appraisal Rights; Termination
Under the Voting Agreement, the Elliott Funds waived and may not assert any statutory rights to demand appraisal of the covered shares in connection with the Merger.
The Voting Agreement terminates and expires upon the earliest of: (1) such date and time as the Merger is completed in accordance with the terms and provisions of the Merger Agreement; (2) the valid termination of the Merger Agreement in accordance with the termination provisions of the Merger Agreement; and (3) the termination of the Voting Agreement by the mutual written consent of the parties.
