SEPARATION AGREEMENT AND RELEASE
Exhibit 10.2
EXECUTION VERSION
This Separation Agreement and Release (the “Release”) is entered into between Xxxxx Xxxxxxxx (referred to herein with the pronouns “I,” “me” and “my”), and Citrix Systems, Inc. (the “Company”), effective as of the Effective Date, as defined below.
WHEREAS, the Company and I are parties to an Executive Agreement dated August 13, 2019 as amended by the First Amendment to Executive Agreement dated October 13, 2021 (together, the “Executive Agreement”);
WHEREAS, the Company and I have mutually agreed to separate my employment with the Company without Cause (as defined in the Executive Agreement) effective on March 11, 2022;
WHEREAS, under the Executive Agreement, certain payments and other terms are subject to my execution of a Separation Agreement and Release; and
WHEREAS, the Company and I seek to resolve any differences regarding my entitlements under the Executive Agreement.
NOW, THEREFORE, the Company and I agree to the following terms:
1.Termination of Employment. The Company and I agree that my employment with the Company shall end on March 11, 2022 and that such termination shall be considered to be a termination without Cause for purposes of the Executive Agreement.
2.Severance Pay, Benefits and Vesting.
(a)Section 2 Pay, Benefits and Vesting. The Company shall provide me with severance pay, benefits (including COBRA) and accelerated vesting as set forth in Section 2 of the Executive Agreement as a result of the termination of my employment without Cause (the “Section 2 Consideration”).
(b)Supplemental Payment. In addition to the terms set forth in Section 2 of the Executive Agreement, the Company shall pay me a lump sum of $4,000,000 less tax-related deductions and withholdings applicable to Form W-2 income (the “Supplemental Payment”) contingent upon the consummation of the merger contemplated by that certain Agreement and Plan of Merger, dated January 31, 2022, by and among the Company, Xxxxxx Parent, Inc., Xxxxxx Merger Sub, Inc. and, for the purposes set forth therein, TIBCO Software Inc., as may be amended from time to time (the “Merger Agreement”). The Company shall pay the Supplemental Payment to me no later than the Company’s first regular payroll date following the effective time of the merger contemplated by the Merger Agreement.
(c)Separation Benefits Defined; No Additional Payments, Benefits or Vesting. The Section 2 Consideration and the Supplemental Payment are together referred to as the “Separation Benefits.” I acknowledge that no payments, benefits or additional vesting or other rights above and beyond the Separation Benefits shall be due to me as a result of the termination of my employment with the Company. Without limiting the foregoing, I specifically disclaim any rights to payments, benefits or vesting under Section 3 of the Executive Agreement.
3.Release of Claims. I voluntarily release and forever discharge the Company, its parents, subsidiaries, and affiliated entities, and each of those entities’ respective current and
former shareholders, investors, directors, officers, employees, agents, attorneys, insurers, legal successors and assigns (collectively referred to as the “Releasees”) generally from all claims, demands, debts, damages and liabilities of every name and nature, known or unknown (“Claims”) that, as of the date when I sign this Release, I have, ever had, now claim to have or ever claimed to have had against any or all of the Releasees. This includes, without limitation, the release of all Claims:
•relating to my employment by the Company and my separation from employment;
•of wrongful discharge;
•of breach of contract;
•of retaliation or discrimination under federal, state or local law (including, without limitation, Claims of age discrimination or retaliation under the Age Discrimination in Employment Act, Claims of disability discrimination or retaliation under the Americans with Disabilities Act, Claims of discrimination or retaliation under Title VII of the Civil Rights Act of 1964 and Claims of any form of discrimination or retaliation that is prohibited by the Florida Civil Rights Act or the law of any other state);
•under any other federal or state statute;
•of defamation or other torts;
•of violation of public policy;
•for wages, bonuses, incentive compensation, vacation pay or any other compensation or benefits; and
•for damages or other remedies of any sort, including, without limitation, compensatory damages, punitive damages, injunctive relief and attorney’s fees;
provided, however, that this release shall not affect my rights under the Company’s Section 401(k) plan, my rights to the Separation Benefits or otherwise under this Release, my rights to indemnification under the Indemnification Agreement between the Company and me (the “Indemnification Agreement”) and under the Merger Agreement, my rights to Directors’ and Officers’ insurance, my rights to any vested equity awards, my rights to file an administrative charge or complaint with the Equal Employment Opportunity Commission or other administrative agency, and any rights and claims that cannot be waived by law.
I agree that I shall not seek or accept damages of any nature, other equitable or legal remedies for my own benefit, attorney’s fees, or costs from any of the Releasees with respect to any Claim released by this Release; provided that nothing in this Release limits any right I may have to receive a whistleblower award or bounty for information provided to the Securities and Exchange Commission. I represent that I have not assigned to any third party and I have not filed with any court any Claim released by this Release.
4.Ongoing Obligations. I reaffirm my ongoing obligations under the Citrix Systems, Inc. Confidential Information, Inventions Assignment and Noncompetition Agreement between me and the Company dated September 10, 2019 (the “Restrictive Covenant Agreement”), including, without limitation, my obligations to maintain the confidentiality of all confidential and proprietary information of the Company, to return to the Company (in good condition) all of the Company’s equipment, property, and documents (whether in paper, electronic, or other format, and all copies thereof) that are in my possession or control, and refrain from certain competition and solicitation activities for a twelve (12) month period after my termination of employment; provided, however, that I may solicit my administrative assistant for employment at any subsequent employer. I also reaffirm my ongoing obligations under the Citrix Systems, Inc. Statement of Company Policy Regarding Xxxxxxx Xxxxxxx and Disclosure of Material Non-Public Information (the “Xxxxxxx Xxxxxxx Policy”) and agree that those obligations continue to apply following my separation from employment, until such time as any material, nonpublic information possessed by me has become public or is no longer material, but not to exceed 12 months. Without limiting the foregoing, I acknowledge and agree that I shall continue
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to be subject to the remainder of any Quarterly Black-Out or Special Black-Out (as defined in the Xxxxxxx Xxxxxxx Policy), if such black-out period was instituted prior to my separation from employment. Notwithstanding anything in this Release or the Restrictive Covenant Agreement to the contrary, I understand that pursuant to the federal Defend Trade Secrets Act of 2016, I shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. The Company shall timely provide me and my attorney with an advance draft of any public disclosure regarding the terms of this Release for review and comment, which comments the Company shall fully consider.
5.Litigation and Regulatory Cooperation. I agree to cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while I was employed by the Company. My full cooperation in connection with such claims or actions shall include, but not be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. I also agree to cooperate fully with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while I was employed by the Company. Any cooperation pursuant to this Section 5 is subject to the Company’s obligation to (i) reimburse me for any expenses incurred during activities reasonably performed at the Company’s request pursuant to this Section 5, subject to the same standards and procedures as apply to business expense reimbursements pursuant to the Company’s Travel and Expense reimbursement policy, and (ii) compensate me at a daily rate equal to the sum of my annual base salary as of the date of my separation from employment and my “Target Variable Cash Compensation” (as defined in the Executive Agreement), divided by 365, to the extent that I reasonably expend any time in performing activities at the Company’s request pursuant to this Section 5 at any time more than one year after my separation from employment; provided that I acknowledge that I shall not at any time be entitled to compensation for time spent in activities that could have been compelled pursuant to a subpoena, including testimony and related attendance at depositions, hearings or trials.
6.Non-Disparagement and No Cooperation.
(a)I agree that I will not, at any time in the future, make any written or oral statement that disparages or damages (i) the business of the Company or any affiliate of the Company (together, “Company Parties”), (ii) any products or services of any Company Party, (iii) any member of the board of directors or management of any Company Party, or (iv) any investor in the securities of the Company or any representative thereof. In addition, the Company shall not in any Company communication or disclosure, and shall cause its directors and officers not to, at any time in the future, make or cause to be made any written or oral statement that disparages or damages me or my reputation. I agree that I will not counsel or assist any attorneys or their clients in the presentation or prosecution of any disputes, differences, grievances, claims, charges, or complaints by any third party against the Company and/or any of the other Releasees, unless under a subpoena or other court order to do so. In addition, I recognize that the Company’s business relationships with its customers, distributors, resellers and partners (collectively, “Customers and Partners”) are very important to the Company, and that if I – as an important Company representative in its dealings with Customers and Partners during the course of my employment – make any statement (directly or indirectly) to such Customers or Partners about the Company, any other Company Party, employees of any Company Party or the products or services of any Company Party that is untrue or otherwise may
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be harmful to the Company or any other Company Party, I will be deemed to have violated this Section 6(a).
(b)Nothing in this Release shall be construed to affect my right to initiate or participate in any proceeding before a federal, state or local administrative agency or commission (a “Government Agency”), including, without limitation, by cooperating with any such Government Agency’s request for information, including by providing documents or other information without notice to the Company, or by making any good faith report to a Government Agency concerning any act or omission that I believe constitutes a possible violation of federal or state law or making other disclosures that are protected under the anti-retaliation or whistleblower provisions of applicable federal or state law or regulation.
7.California Civil Code Section 1542. I acknowledge that I have been advised to consult with legal counsel and am familiar with the provisions of California Civil Code Section 1542, a statute that otherwise prohibits the release of unknown claims, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
Being aware of said code section, I agree to expressly waive any rights I may have thereunder, as well as under any other statute or common law principles of similar effect. I further acknowledge and agree that the inclusion of the waiver of said code section in this Release shall not be construed to affect the applicability of Florida law to this Release or to any other agreement between the Company and me.
8.Right to Consider and Revoke Release. I acknowledge that I have been given the opportunity to consider this Release for a period ending twenty-one (21) days after the date when it was proposed to me. In the event that I execute this Release within less than twenty-one (21) days after such date, I acknowledge that such decision was entirely voluntary and that I had the opportunity to consider this Release until the end of the twenty-one (21) day period. To accept this Release, I shall deliver a signed Release to the Company’s General Counsel within such twenty-one (21) day period. For a period of seven (7) days from the date when I execute this Release (the “Revocation Period”), I shall retain the right to revoke this Release by written notice that is received by the General Counsel on or before the last day of the Revocation Period. This Release shall take effect only if it is executed within the twenty-one (21) day period as set forth above and if it is not revoked pursuant to the preceding sentence. If those conditions are satisfied, this Release shall become effective and enforceable on the date immediately following the last day of the Revocation Period (the “Effective Date”).
9.Other Terms.
(a)Legal Representation; Review of Release. I acknowledge that I have been advised to discuss all aspects of this Release with my attorney, that I have carefully read and fully understand all of the provisions of this Release and that I am voluntarily entering into this Release.
(b)Binding Nature of Release. This Release shall be binding upon me and upon my heirs, administrators, representatives and executors.
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(c)Amendment. This Release may be amended only upon a written agreement executed by the Company and me.
(d)Severability. In the event that at any future time it is determined by an arbitrator or court of competent jurisdiction that any covenant, clause, provision or term of this Release is illegal, invalid or unenforceable, the remaining provisions and terms of this Release shall not be affected thereby and the illegal, invalid or unenforceable term or provision shall be severed from the remainder of this Release. In the event of such severance, the remaining covenants shall be binding and enforceable.
(e)Governing Law and Interpretation. This Release shall be deemed to be made and entered into in the State of Florida, and shall in all respects be interpreted, enforced and governed under the laws of the State of Florida, without giving effect to the conflict of laws provisions of Florida law. The language of all parts of this Release shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against the Company or me.
(f)Entire Agreement; Absence of Reliance. I acknowledge that I am not relying on any promises or representations by the Company or any of its agents, representatives or attorneys regarding any subject matter addressed in this Release. I acknowledge that this Release constitutes the entire agreement between the Company and me and that this Release supersedes any previous agreements or understandings between me and the Company, except the Indemnification Agreement, the Restrictive Covenant Agreement, the Xxxxxxx Xxxxxxx Policy, and any equity award agreements and equity plans to which they are subject, those portions of the Executive Agreement that are specifically preserved in this Release and any other obligations specifically preserved in this Release.
(g)Counterparts. This Release may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
(h)Electronic Signatures. In addition, transmission by facsimile or electronic mail of a document in Adobe Portable Document Format or other electronic file based on common standards, including any electronic signature complying with the U.S. federal ESIGN Act of 2000, including DocuSign, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be acceptable to the parties for all purposes.
So agreed.
| CITRIX SYSTEMS, INC. | ||||||||||||||
| /s/Xxxxx Xxxxxxxx | By: | /s/Xxxxxxx X. Xxxxx | ||||||||||||
| Xxxxx Xxxxxxxx | Xxxxxxx X. Xxxxx | |||||||||||||
| Executive Vice President and Chief Legal Officer | ||||||||||||||
| Date: | March 14, 2022 | |||||||||||||
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