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Exhibit
10.3
EMPLOYMENT
AGREEMENT
AGREEMENT (this
“Agreement”) made this 14th day of August, 2007 by and
between Peter Levine (the “Executive”) and Citrix
Systems, Inc. and its affiliates, subsidiaries, divisions,
successors and assigns, including, but not limited to, the
Surviving Entity (as defined below) (collectively,
“Citrix” or the “Company”).
WHEREAS, XenSource, Inc.
(“XenSource”), Citrix Systems, Inc., PVA Acquisition
Corporation, a wholly-owned subsidiary of Citrix Systems, Inc. (the
“Merger Sub”), PVA Acquisition LLC, a wholly-owned
subsidiary of Citrix Systems, Inc. (the “LLC”), and the
Stockholder Representative named therein have executed an Agreement
and Plan of Merger and Reorganization dated as of August 14,
2007 (the “Merger Agreement”) whereby the Merger Sub
shall be merged (the “Merger”) with and into XenSource,
with XenSource to be the surviving corporation of the Merger and
whereby the surviving corporation shall subsequently be merged (the
“LLC Merger”) with and into LLC, with the LLC to be the
surviving entity and a wholly-owned subsidiary of XenSource (the
“Surviving Entity”);
WHEREAS, Citrix’s
business is conducted throughout the world and Citrix’s
reputation and goodwill are an integral part of its business
success;
WHEREAS, the
Executive’s position with the Company shall require that he
be trusted with extensive confidential and trade secret information
about the Company, and that he develop a thorough and comprehensive
knowledge of all details of the Company’s business,
including, but not limited to, information relating to research,
development, inventions, financial and strategic planning,
research, marketing, distribution and licensing of the
Company’s products and services;
WHEREAS, execution of this
Agreement by the Executive is a condition to Parent’s
execution of the Merger Agreement, and the execution by the
Executive of the Executive Confidentiality, Non-Solicitation and
Non-Competition Agreement (attached hereto as Exhibit A )
(the “Non-Solicitation Agreement”) is a condition to
the execution by Citrix of this Agreement and the Merger
Agreement;
WHEREAS, this Agreement shall
not become effective or enforceable until the Effective Time (as
defined in the Merger Agreement);
WHEREAS, as a material
inducement to Citrix entering into the Merger Agreement and
consummating the Merger, and in consideration of the covenants and
agreements set forth in the Merger Agreement, and in order to
provide Citrix with the full benefits of the Merger, the Executive
has agreed to execute and deliver this Agreement and the
Non-Solicitation Agreement because he wishes to induce XenSource
and Citrix to consummate the Merger, which would not occur absent
his executing this Agreement and the Non-Solicitation
Agreement;
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of the mutual covenants
and obligations herein contained, the parties hereto agree as
follows:
1. Position and
Responsibilities . During the term of this Agreement, the
Executive agrees to initially serve as Senior Vice President and
General Manager, XenSource Division of Citrix, reporting to Mark
Templeton, or in such other comparable positions and with such
other title or reporting structure as may be assigned from time to
time. The Executive agrees to devote substantially all of his
business time and efforts to the performance of his duties
hereunder. The Executive shall exercise such powers and comply with
and perform, faithfully and to the best of his ability, such
directions and duties in relation to the business and affairs of
the Company as may from time to time be vested in or requested of
him. The Executive shall devote substantially all of his business
time, attention and energies to the Company’s business and
shall not engage in any other business activity which
(i) interferes with the performance of his duties hereunder,
(ii) creates a conflict of interest or the appearance of a
conflict of interest, or (iii) competes with the business
activities, products or services of the Company. The Executive
shall perform his services under this Agreement at such locations
as may be required by the Company.
2. Merger-related
Payments . The parties hereto acknowledge that in connection
with the Merger, the Executive is eligible to receive a transaction
bonus payment, subject to the terms and conditions of the
Transaction Bonus Plan as described in this Section 2. Prior
to the Merger, the XenSource Board of Directors will have adopted a
2007 Transaction Bonus Plan (the “TB Plan”) and
allocated the Executive a bonus award thereunder of $7,671,068 (a
“Bonus Award”). At the Effective Time, Citrix will have
assumed the TB Plan. The Executive’s receipt of a cash
payment in respect of the Bonus Award under the TB Plan is
contingent upon the Executive signing a General Release in the form
and substance satisfactory to Citrix and is otherwise subject to
the terms and conditions of the TB Plan.
3. Compensation: Salary,
Bonus and Other Benefits . During the term of this Agreement,
the Company shall pay to the Executive, as consideration for the
Executive’s satisfactory performance of his duties, the
following compensation:
(A) Salary . In
consideration of the services to be rendered by the Executive to
the Company, the Company initially will pay to the Executive a
semi-monthly salary of $12,500 (annualized, $300,000) (the
Executive’s “Base Salary”) during the term of
this Agreement. Such Base Salary shall be payable in conformity
with the Company’s customary practices for executive
compensation, as such practices shall be established or modified
from time to time.
(B) Fringe Benefits .
During the term hereof and subject to any contribution therefor
generally required of executives of XenSource, the Executive shall
be eligible to participate in all employee benefits plans of
XenSource from time to time adopted by XenSource and in effect for
executives of XenSource in similar positions. Such participation
shall be subject to (i) the terms of the applicable plan
documents, (ii) generally applicable policies of XenSource,
and (iii) the discretion of XenSource, the Company and/or the
Company’s board of directors (the “Board”) or any
administrative or other committee provided for in or contemplated
in any such plan. XenSource’s current plans and policies
shall govern all
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benefits. Commencing after
XenSource’s benefits plans have been terminated, and subject
to eligibility requirements under Citrix’s employee and/or
executive benefits plans, the Executive will be eligible to
participate in Citrix’s employee and/or executive benefits
plans. Such participation shall be subject to (i) the terms of
the applicable plan documents, (ii) generally applicable
policies of Citrix, and (iii) the discretion of Citrix and/or
the Board or any administrative or other committee provided for in,
or contemplated by, any such plan. The Company may alter, modify,
add to, or delete its or their employee benefits plans at any time
as they and/or the Board, in their sole judgment, determine to be
appropriate.
(C) Vacation . During
the term hereof, the Executive shall be eligible to accrue paid
vacation per calendar year, to be taken at such times and intervals
as shall be agreed to by the Company and the Executive in their
reasonable discretion. The accrual and use of the Executive’s
vacation days will be in accordance with the Company’s
regular vacation policy in effect from time to time. Vacation days
accrued but unused by the Executive prior to the Effective Time of
the Merger shall be carried over as already accrued vacation after
the Effective Time.
(D) Target Based Bonus
. During the term hereof, the Executive also may be eligible to
receive a bonus of up to $210,000 for each calendar year of
full-time employment as an executive (beginning January 1,
2008). Such bonus, if any, shall be based on the Company’s
and the Executive’s achievement (as determined by the
Company) of goals and objectives, which are to be mutually
determined by the Company and the Executive at their reasonable
discretion. No bonus under this paragraph shall be payable to the
Executive with respect to any calendar year during which his
employment is terminated, regardless of the manner of such
termination, except as set forth in Section 5(G). To be
eligible for a bonus, the Executive must be employed by the Company
on the date that the bonus is paid, except as set forth in
Section 5(G). The Executive agrees and acknowledges that he is
not eligible for any bonus or incentive payment under any XenSource
plan, and that all such plans have been terminated.
(E) Expenses . The
Company shall pay or reimburse the Executive for all reasonable
business expenses incurred or paid by the Executive in the
performance of his responsibilities hereunder in accordance with
the Company’s prevailing policy and practice relating to
reimbursements as established, modified or amended from time to
time. The Executive must provide substantiation and documentation
of these expenses to the Company in order to receive
reimbursement.
(F) Tax Withholding .
All payments in this Agreement shall be subject to all applicable
federal, state and local withholding, payroll and other taxes, and
the Company may withhold from any such amounts due to the Executive
in order to satisfy such withholding obligations.
4. Term . Subject to
the earlier termination as hereafter provided in Section 5,
the term of this Agreement shall commence at the Effective Time and
shall continue until two (2) years therefrom. At the end of
the term, the Agreement will expire and, if the parties
mutually
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desire for the Executive to remain
employed, such employment will continue solely on an
“at-will” basis, which means that either the Company or
the Executive can terminate the Executive’s employment at any
time, for any or no reason, and with or without cause or prior
notice.
5. Termination . The
Agreement and the Executive’s employment under this Agreement
may be terminated as follows:
(A) By Expiration of the
Agreement . If this Agreement expires as set forth in
Section 4 hereof, the Executive shall be entitled to no
further payments or benefits pursuant to this Agreement, but the
Executive’s employment shall continue solely on an
“at-will” basis, as described in Section 4
above.
(B) At the
Executive’s Option. The Executive may terminate his
employment under this Agreement at any time by giving at least
thirty (30) business days’ advance written notice to the
Company. In the event of a termination at the Executive’s
option, the Company may accelerate the Executive’s departure
date and will have no obligation to pay the Executive after his
actual departure date. In the event of termination at the
Executive’s option, the Executive shall be entitled to no
payments, salary continuation, severance or other benefits, except
for earned but unpaid Base Salary and vacation to the extent
accrued but unused through the Executive’s actual departure
date, and reimbursement for any previously incurred expenses as set
forth in Section 3(E).
(C) At the Election of the
Company or the Board for Cause . The Company or the Board may,
immediately and unilaterally, terminate the Executive’s
employment under this Agreement for “Cause” at any time
during the term of this Agreement without any prior notice to the
Executive, except as set forth below. Termination by the Company or
the Board shall constitute a termination for Cause under this
Section 5(C) if such termination is for one or more of the
following causes:
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(i) |
the Executive’s failure |
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