$850,000,000 AT MATURITY
CITRIX SYSTEMS, INC.
Zero Coupon Convertible Subordinated Debentures Due March 22, 2019
REGISTRATION RIGHTS AGREEMENT
March 22, 1999
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Citrix Systems, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to Credit Suisse First Boston Corporation, (the "Initial
Purchaser"), upon the terms set forth in a purchase agreement of even date
herewith (the "Purchase Agreement"), $850,000,000 aggregate principal amount at
maturity of its Zero Coupon Convertible Subordinated Debentures due March 22,
2019 (the "Debentures"). The Debentures will be issued pursuant to an Indenture,
dated as of March 22, 1999 (the "Indenture") by and between the Company and
State Street Bank and Trust Company (the "Trustee"). Under the terms of the
Indenture, the Debentures are convertible, in whole or in part, into shares of
Common Stock, par value $.001 per share (the "Conversion Shares" and, together
with the Debentures, the "Securities"), at the option of the holders thereof at
any time following the date of original issuance thereof at the Conversion Rate
(as defined in the Indenture) set forth in the Debentures, as adjusted from time
to time pursuant to the Indenture. As an inducement to the Initial Purchaser,
the Company agrees with the Initial Purchaser, for the benefit of the holders of
the Debentures (including, without limitation, the Initial Purchaser) and
Conversion Shares (collectively, the "Holders"), as follows:
1. Resale Shelf Registration. (a) The Company shall, at its cost, use
its reasonable best efforts to file as promptly as practicable (but in no event
more than 60 days after the Closing Date (as defined in the Purchase Agreement))
with the Securities and Exchange Commission (the "Commission") and thereafter
shall use its reasonable best efforts to cause to be declared effective a
registration statement (the "Resale Shelf Registration Statement") on an
appropriate form under the Securities Act of 1933, as amended (the "Securities
Act") relating to the offer and sale of the Transfer Restricted Securities (as
defined in Section 5 hereof) by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Resale Shelf
Registration Statement and Rule 415 under the Securities Act (hereinafter, the
"Resale Shelf Registration"); provided, however, that no Holder (other than the
Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Resale Shelf Registration Statement unless
such Xxxxxx agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to keep the
Resale Shelf Registration Statement continuously effective in order to permit
the prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years from the date of its
effectiveness or such shorter period that will terminate when all the Securities
covered by the Resale Shelf Registration Statement (i) have been sold pursuant
thereto or (ii) are no longer Transfer Restricted Securities as defined in
Section 5(d) (in any such case, such period being called the "Shelf Registration
Period"). The Company shall be deemed not to have used its best efforts to keep
the Resale Shelf Registration Statement effective during the requisite period if
it voluntarily takes any action (other than as contemplated by Section 2(h))
that would result in Holders of Securities covered thereby not being able to
offer and sell such Securities during that period, unless such action is
required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Resale Shelf Registration Statement and
the related prospectus and any amendment or supplement thereto, as of the
effective date of the Resale Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(d) Each Holder agrees that if such Holder wishes to sell such
Xxxxxx's Securities pursuant to a Resale Shelf Registration Statement and
related prospectus, it will do so in accordance with this Section 1(d). Each
Holder wishing to sell Securities pursuant to a Resale Shelf Registration
Statement and related prospectus agrees to deliver a Notice and Questionnaire
(the form of which is attached as Annex A to the Offering Memorandum and in
connection with the offering of the Debentures) to the Company prior to any
intended distribution of Securities under the Resale Shelf Registration
Statement. From and after the date the Resale Shelf Registration Statement is
declared effective, the Company shall, as promptly as is practicable after the
date a Notice and Questionnaire is delivered, and in any event within five (5)
Business Days after such date, (i) if required by applicable law, file with the
Commission a post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the related
prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other required document so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in the Resale
Shelf Registration Statement and the related prospectus in such a manner as to
permit such Holder to deliver such prospectus to purchasers of the Securities in
accordance with applicable law and, if the Company shall file a post-effective
amendment to the Resale Shelf Registration Statement, use all reasonable efforts
to cause such post-effective amendment to be declared effective under the
Securities Act as promptly as is practicable, but in any event by the date that
is sixty (60) days after the date such post-effective amendment is required by
this clause to be filed; (ii) provide such Holder copies of any documents filed
pursuant to Section 1(d)(i); and (iii) notify such Holder as promptly as
practicable after the effectiveness under the Securities Act of any post-
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effective amendment filed pursuant to Section 1(d)(i); provided, that if such
Notice and Questionnaire is delivered during a period in which the use of the
prospectus is suspended pursuant to Section 2(h), the Company shall so inform
the Holder delivering such Notice and Questionnaire and shall take the actions
set forth in clauses (i), (ii) and (iii) above upon expiration of the suspension
period. Notwithstanding anything contained herein to the contrary, the Company
shall be under no obligation to name any Holder that has not supplied the
requisite information required by Section 1(d) as a selling securityholder in
any Registration Statement or related Prospectus; provided, however, that any
Holder that has subsequently supplied the requisite information required by this
Section 1(d) pursuant to the provisions of this Section (whether or not such
Holder has supplied the requisite information required by this Section 1(d) at
the time the Resale Shelf Registration Statement was declared effective) shall
be named as a selling securityholder in the Resale Shelf Registration Statement
or related prospectus in accordance with the requirements of this Section 1(d).
2. Registration Procedures. In connection with the Resale Shelf
Registration contemplated by Section 1 hereof, the following provisions apply:
(a) The Company shall (i) furnish to the Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Resale Shelf Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that the Initial Purchaser (with
respect to any portion of an unsold allotment from the original offering) is
participating in the Resale Shelf Registration, the Company shall use its best
efforts to reflect in each such document, when so filed with the Commission,
such comments as the Initial Purchaser reasonably may propose; and (ii) include
the names of the Holders, who propose to sell Securities pursuant to the Resale
Shelf Registration Statement, as selling securityholders.
(b) The Company shall give written notice to the Initial Purchaser and
Holders of the Securities (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when the Resale Shelf Registration Statement or any
amendment thereto has been filed with the Commission and when the Resale Shelf
Registration Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Resale Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Resale Shelf Registration Statement or the
initiation of any proceedings for that purpose;
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(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the prospectus which forms a part of the Resale Shelf
Registration Statement in order that the prospectus does not contain an untrue
statement of a material fact nor omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Resale Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Resale Shelf Registration, without charge, at least
one copy of the Resale Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company shall, during the Resale Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of the Resale
Shelf Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the Resale Shelf Registration Statement
and any amendment or supplement thereto as such person may reasonably request.
The Company consents, subject to the provisions of this Agreement, to the use of
the prospectus or any amendment or supplement thereto by each of the selling
Holders of the Securities in connection with the offering and sale of the
Securities covered by the prospectus, or any amendment or supplement thereto,
included in the Resale Shelf Registration Statement in the manner described
therein.
(f) Prior to any public offering of the Securities, pursuant to any
Resale Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification of the
Securities for offer and sale under the securities or "blue sky" laws of such
states of the United States as any Holder of the Securities reasonably requests
in writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities covered by
such Resale Shelf Registration Statement; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action which
would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
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(g) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing the
Securities to be sold pursuant to any Resale Shelf Registration Statement (to
the extent such Securities are certificated) free of any restrictive legends and
in such denominations and registered in such names as the Holders may request a
reasonable period of time prior to sales of the Securities pursuant to such
Resale Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the Shelf Registration Period, the
Company shall promptly prepare and file a post-effective amendment to the Resale
Shelf Registration Statement or a supplement to the related prospectus and any
other required document so that, as thereafter delivered to Holders or
purchasers of Securities, the prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided however, that the Company may
delay preparing, filing and distributing any such supplement or amendment (and
continue the suspension of the use of the prospectus) if the Company determines
in good faith that such supplement or amendment would, in the reasonable
judgment of the Company, (i) interfere with or affect the negotiation or
completion of a transaction that is being contemplated by the Company (whether
or not a final decision has been made to undertake such transaction) or (ii)
involve initial or continuing disclosure obligations that are not in the best
interests of the Company's stockholders at such time; provided further, that
neither such delay nor such suspension shall extend for a period of more than 30
days in any three month period or more than 90 days for all such periods in any
twelve month period. If the Company notifies the Initial Purchaser and the
Holders of the Securities in accordance with paragraphs (ii) through (v) of
Section 2(b) above to suspend the use of the prospectus until the requisite
changes to the prospectus have been made, then the Initial Purchaser and the
Holders shall suspend use of such prospectus.
(i) Not later than the effective date of the Resale Shelf Registration
Statement, the Company will provide CUSIP numbers for the Debentures and the
Conversion Shares registered under the Resale Shelf Registration Statement and
provide the Trustee with a certificate for the Debentures, in a form eligible
for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Resale Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Resale Shelf
Registration Statement, which statement shall cover such 12-month period.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and containing such
changes, if any, as shall be necessary for such qualification. In the event that
such qualification would require the
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appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(l) The Company shall enter into such customary agreements (including,
if requested an underwriting agreement in customary form) and take all such
other action, if any, as any Holder shall reasonably request in order to
facilitate the disposition of the Securities pursuant to any Resale Shelf
Registration.
(m) The Company shall (i) make reasonably available for inspection by
the Holders, any underwriter participating in any disposition pursuant to the
Resale Shelf Registration Statement and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company and (ii)
cause the Company's officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with the Resale Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Initial Purchaser and the other parties, by one firm of counsel, which firm
shall be Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation until
another firm shall be designated as described in Section 3 hereof.
(n) The Company shall cause (i) its counsel to deliver an opinion and
updates thereof relating to the Securities in customary form addressed to the
Holders and the managing underwriters, if any, thereof and dated, in the case of
the initial opinion, the effective date of such Resale Shelf Registration
Statement (it being agreed that the matters to be covered by such opinion shall
include, without limitation, the due incorporation and good standing of the
Company and its subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the type
referred to in Section 2(l) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
applicable Securities; the absence of governmental approvals required to be
obtained in connection with the Resale Shelf Registration Statement, the
offering and sale of the applicable Securities or any agreement of the type
referred to in Section 2(n) hereof; the compliance as to form of such Resale
Shelf Registration Statement and any documents incorporated by reference therein
and of the Indenture with the requirements of the Securities Act and the Trust
Indenture Act, respectively; and, as of the date of the opinion and as of the
effective date of the Resale Shelf Registration Statement or most recent post-
effective amendment thereto, as the case may be, the absence from such Resale
Shelf Registration Statement and the prospectus included therein, as then
amended or supplemented, and from any documents incorporated by reference
therein of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such documents, in the
light of the circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act); (ii) its officers to execute and
deliver all customary documents and certificates and updates thereof requested
by any underwriters of the
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applicable Securities; and (iii) its independent public accountants and the
independent public accountants, if any with respect to any other entity for
which financial information is provided in the Resale Shelf Registration
Statement to provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form; and covering matters of
the type customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
(o) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules (the "Rules") of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such
Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Company will assist such broker-
dealer in complying with the requirements of such Rules, including, without
limitation, by (i) if such Rules, including Rule 2720, shall so require,
engaging a "qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Resale Shelf Registration Statement
relating to such Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by such Resale
Shelf Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Securities, (ii)
indemnifying any such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 4 hereof and (iii) providing
such information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules.
(p) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration of the Securities covered by
the Resale Shelf Registration Statement contemplated hereby.
3. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 1
and 2 hereof whether or not a Resale Shelf Registration is filed or becomes
effective, shall bear or reimburse the Holders of the Securities covered thereby
for the reasonable fees and disbursements of one firm of counsel, which firm
shall be Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation until
another firm shall be designated by the Holders of a majority in principal
amount of the Debentures covered thereby to act as counsel for the Holders in
connection therewith.
4. Indemnification. The Company agrees to indemnify and hold harmless
each Holder of the Securities and each person, if any, who controls such Holder
within the meaning of the Securities Act or the Exchange Act (each Holder and
such controlling persons are referred to collectively as the "Indemnified
Parties") from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to purchases and sales
of the Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise,
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insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Resale Shelf Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary prospectus relating to
the Resale Shelf Registration, or arise out of, or are based upon, the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances in which they were made, not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Resale Shelf Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to the Resale Shelf
Registration in reliance upon and in conformity with written information
pertaining to a Holder and furnished to the Company by or on behalf of such
Holder specifically for inclusion therein, and (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus relating to the Resale Shelf Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Holder from whom the person asserting any such losses, claims,
damages or liabilities purchased the Securities concerned, to the extent that a
prospectus relating to such Securities was required to be delivered by such
Holder under the Securities Act in connection with such purchase and any such
loss, claim, damage or liability of such Holder results from the fact that there
was not sent or given to such person, at or prior to the written confirmation of
the sale of such Securities to such person, a copy of the final prospectus if
the Company had previously furnished copies thereof to such Holder, provided,
further, however, that this indemnity agreement will be in addition to any
liability which the Company may otherwise have to such Indemnified Party. The
Company shall also indemnify underwriters, their officers and directors and each
person who controls such underwriters within the meaning of the Securities Act
or the Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders if requested by such Holders.
(l) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Resale
Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Resale Shelf
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein in
light of the circumstances in which they were made, not misleading, but in each
case only to the extent that the untrue statement or omission or alleged untrue
statement or omission was made in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically
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for inclusion therein; and, subject to the limitation set forth immediately
preceding this clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such controlling
person in connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. This indemnity agreement will be in
addition to any liability which such Holder may otherwise have to the Company or
any of its controlling persons.
(m) Promptly after receipt by an indemnified party under this Section
4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action. An indemnifying party will not be liable for any settlement of
any action or claim effected without its written consent; provided, however,
that such consent will not be reasonably withheld.
(n) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the sale of the Securities,
pursuant to the Resale Shelf Registration, or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the
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untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or such Holder or such other indemnified party, as the case may
be, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding any other
provision of this Section 4(d), the Holders of the Securities shall not be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities pursuant to a
Resale Shelf Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(o) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to the Resale Shelf Registration Statement and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any indemnified
party.
5. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Debentures and
Conversion Shares that are Transfer Restricted Securities shall be assessed as
follows if any of the following events occur (each such event in clauses (i)
through (iii) below a "Registration Default":
(i) If on or prior to the 60th day after the first date of
original issuance of the Debentures, the Resale Shelf Registration Statement has
not been filed with the Commission;
(ii) If on or prior to the 180th day after the first date of
original issuance of the Debentures, the Resale Shelf Registration Statement has
not been declared effective by the Commission; or
(iii) If after the Resale Shelf Registration Statement is
declared effective (A) such Resale Shelf Registration Statement thereafter
ceases to be effective; or (B) such Resale Shelf Registration Statement or the
related prospectus ceases to be usable (except as permitted in paragraph (b)) in
connection with resales of Transfer Restricted Securities during the periods
specified herein because either (1) any event occurs as a result of which the
related
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prospectus forming part of such Resale Shelf Registration Statement would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or (2) it shall be necessary to amend
such Resale Shelf Registration Statement or supplement the related prospectus,
to comply with the Securities Act or the Exchange Act or the respective rules
thereunder.
Additional Interest shall accrue on the Debentures and Conversion Shares
that are Transfer Restricted Securities over and above the interest set forth in
the title of the Securities from and including the date on which any such
Registration Default shall occur to but excluding the date on which all such
Registration Defaults have been cured, at a rate of 0.25% per annum in the case
of (i) and 0.50% per annum in the case of (ii) or (iii) of the aggregate
Applicable Principal Amount of such Debentures and, in the case of the
Conversion Shares, the aggregate Applicable Conversion Price.
(b) A Registration Default referred to in Section 5(a)(iii)(B) hereof
shall be deemed not to have occurred and be continuing in relation to the Resale
Shelf Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Resale Shelf Registration Statement to incorporate annual
audited financial information with respect to the Company where such post-
effective amendment is not yet effective and needs to be declared effective to
permit Holders to use the related prospectus or (y) other material events, with
respect to the Company that would need to be described in such Resale Shelf
Registration Statement or the related prospectus and (ii) in the case of clause
(y), the Company is proceeding promptly and in good faith to amend or supplement
such Resale Shelf Registration Statement and related prospectus to describe such
events; provided, however, that in any case if such Registration Default occurs
for a continuous period in excess of 30 days, Additional Interest shall be
payable in accordance with the above paragraph from the day such Registration
Default occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to clause (i),
(ii) or (iii) of Section 5(a) above will be payable in cash to the Record Holder
on the Damages Payment Dates with respect to the Debentures and Conversion
Shares. The amount of Additional Interest will be determined by multiplying the
applicable Additional Interest rate by, in the case of the Debentures, the
Applicable Principal Amount and, in the case of the Conversion Shares, the
Applicable Conversion Price, multiplied by a fraction, the numerator of which is
the number of days such Additional Interest rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
(d) Certain Definitions. For purposes of this Section 5:
Applicable Conversion Price: The Applicable Conversion Price means
the Applicable Principal Amount divided by the Conversion Rate in effect as of
the next succeeding March 22 or September 22 following such Registration Default
in the case of the first such payment of Additional Interest with respect to a
Registration Default (and thereafter at the next succeeding March 22 or
September 22 until the cure of such Registration Default) or, if no Debentures
are then
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outstanding, the last Conversion Rate that was in effect when the Debentures
were last outstanding.
Applicable Principal Amount: Applicable Principal Amount with respect
to each $1,000 principal amount at maturity of Debentures means the sum of the
initial issue price of such Debenture ($354.71) plus accrued original issue
discount with respect to such Debenture through the next succeeding March 22 or
September 22 following such Registration Default in the case of the first such
payment of Additional Interest with respect to a Registration Default (and
thereafter at the next succeeding March 22 or September 22 until the cure of
such Registration Default) or, if no Debentures are then outstanding, such sum
calculated as if such Debentures were then outstanding.
Damages Payment Date: Each March 22 and September 22 in the case of
Debentures and the Conversion Shares.
Record Holder: With respect to any Damages Payment Date relating to
any Debenture or Conversion Shares as to which any Additional Interest has
accrued, the registered holder of such Debenture or Conversion Shares, as the
case may be, 15 days prior to the next succeeding Damages Payment Date.
Transfer Restricted Securities: Each Security until (i) the date on
which such Security has been effectively registered under the Securities Act and
disposed of in accordance with the Resale Shelf Registration Statement or (ii)
the date on which such Security is distributed to the public pursuant to Rule
144 under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act.
6. Rules 144 and 144A. The Company shall use its reasonable best efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Debentures,
make publicly available such other information as is necessary to permit sales
of their securities pursuant to Rules 144 and 144A. The Company covenants that
it will take such further action as any Holder of Debentures may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Debentures without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Debentures identified to the Company by
the Initial Purchaser upon request. Upon the request of any Holder of
Debentures, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
7. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Resale Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering ("Managing Underwriters") will be
selected by the Holders of a majority in aggregate principal amount of such
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Transfer Restricted Securities to be included in such offering, provided however
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that such Managing Underwriters must be reasonably satisfactory to the Company.
No person may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such person's Transfer Restricted Securities on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting agreements.
8. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding Conversion Shares constituting Transfer
Restricted Securities (with Holders of Debentures deemed to be the Holders, for
purposes of this Section 8, of the number of outstanding shares of Conversion
Shares into which such Debentures are or would be convertible or exchangeable as
of the date on which such consent is requested). Notwithstanding the foregoing,
a waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders of Transfer Restricted
Securities whose securities are being sold pursuant to a Resale Shelf
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Transfer Restricted Securities may be given by
Holders of at least a majority of the Transfer Restricted Securities being sold
by such Holders pursuant to such Resale Shelf Registration Statement; provided,
that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Each Holder of Transfer Restricted Securities outstanding
at the time of any such amendment, modification, supplement, waiver or consent
or thereafter shall be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 8, whether or not any
notice, writing or marking indicating such amendment, modification, supplement,
waiver or consent appears on the Transfer Restricted Securities or is delivered
to such Holder. Each Holder may waive compliance with respect to any obligation
of the Company under this Agreement as it may apply or be enforced by such
particular Holder
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Company.
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(2) if to the Initial Purchaser:
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-1050
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxx
(3) if to the Company, at its address as follows:
Citrix Systems, Inc.
0000 XX 0xx Xxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attention: President
with a copy to:
Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
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(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement on the
Initial Purchaser and the Company in accordance with its terms.
Very truly yours,
CITRIX SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman of the Board
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The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxx Xxxxxx
Title: Director
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