EXHIBIT 2.1
DATED 8th June 1998
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THE NON-EXECUTIVE DIRECTORS OF APM LIMITED
THE EXECUTIVE DIRECTORS OF APM LIMITED
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CITRIX SYSTEMS, INC.
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AGREEMENT AND UNDERTAKING
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TAYLOR JOYNSON GARRETT
Carmelite
50 Victoria Embankment
Blackfriars
London EC4Y 0DX
Tel: 0171 353 1234
Fax: 0171 936 2666
DX: 41 London
I N D E X
CLAUSE NO. PAGE NO.
1. DEFINITIONS AND INTERPRETATION................................... 1
2. THE OFFERS AND IRREVOCABLE UNDERTAKINGS.......................... 5
3. UNDERTAKINGS BY THE DIRECTORS.................................... 7
4. RESTRICTIONS ON EXECUTIVE DIRECTORS.............................. 11
5. UNDERTAKINGS BY CITRIX........................................... 14
6. UNDERTAKINGS BY ALL PARTIES...................................... 15
7. TERMINATION...................................................... 16
8. LIABILITY........................................................ 16
9. MISCELLANEOUS.................................................... 17
SCHEDULE
Part 1 The Non-Executive Directors
Part 2 The Executive Directors
EXHIBITS
NUMBER DESCRIPTION
- ------ -----------
1 to 4 Employment Agreements
5 Citrix Letter
6 APM Disclosure Memorandum
7 to 9 Forms of Acceptance
10 Irrevocable Undertaking
11 Offer Document
12 Mutual Non-Disclosure Agreement
THIS AGREEMENT AND UNDERTAKING is made on 8th June, 1998
(1) THE PERSONS whose names and addresses are set out in part 1 of the Schedule
(the "Non-Executive Directors");
(2) THE PERSONS whose names and addresses are set out in part 2 of the Schedule
(the "Executive Directors"); and
(3) CITRIX SYSTEMS, INC, whose principal place of business is at 6400 NW 6/th/
Way Fort Lauderdale Florida, 33309, USA ("Citrix").
(A) Citrix desires to acquire the entire issued share capital of APM Limited
(Company No. 2300071) ("APM").
(B) Citrix will make the Offers (as defined below) subject to the terms and
conditions of this Agreement.
(C) In consideration of agreeing to make the Offers the Directors (as defined
below) have agreed to enter into this Agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
(a) The following terms, as used herein, have the following meanings:
"ACCEPTORS" means those APM shareholders, Loan Stock Holders and
Optionholders who accept the Offers and those APM shareholders whose
APM shares are compulsorily acquired under the Articles of Association
of APM:
"ACCOUNTS DATE" means 31 December 1997;
"AGENCY MEMORANDUM" means the Agency Memorandum to be entered into
between APM and Digitivity Inc.;
"AGREED FORM" means in a form which is agreed to by all of the Parties
and which is signed, for the purposes of identification only, by
Citrix's Solicitors and APM's Solicitors, and the "EXHIBITS" to this
Agreement shall be in the Agreed Form;
"AGREEMENT" means this agreement and undertaking including the
introduction and the Schedule;
"APM COMPANIES" means APM and its Subsidiaries and "APM COMPANY" shall
be construed accordingly;
"APM DEFERRED SHARES" means deferred ordinary shares of 1 pence each
in the capital of APM;
"APM DISCLOSURE MEMORANDUM" means the memorandum relating to APM of
even date herewith including the documents annexed thereto, as set out
in Exhibit 6;
"APM LOAN STOCK" means 5 per cent. convertible unsecured loan stock
2007 of APM;
"APM ORDINARY SHARES" means ordinary shares of 1 pence each in the
capital of APM;
"APM RESTRICTED SHARES" means restricted ordinary shares of 1 pence
each in the capital of APM;
"APM SHARES" means APM ordinary shares, APM restricted shares and APM
deferred ordinary shares issued and those issued by APM prior to the
Closing Date;
"APM SHAREHOLDERS" means the holders of APM shares;
"APM SHARE OPTIONS" means subsisting options granted under the APM
Limited Share Option Scheme 1996 which have not lapsed prior to the
date of the Offers;
"APM'S SOLICITORS" means Hewitson Becke + Shaw, Cambridge, England;
"ASSOCIATE" means, with respect to any Person, any Person directly, or
indirectly controlling, controlled by, or under common control with
such Person and, in the case of any Person being a trustee, includes
the principal beneficiaries of the relevant trust, and "ASSOCIATES"
shall be construed accordingly;
"BUSINESS DAY" means a day on which banks are open for the transaction
of all business in England and the United States;
"CITRIX'S GROUP" means Citrix and its Subsidiaries;
"CITRIX LETTER" means the letter to be written by Citrix to APM as set
out in Exhibit 5;
"CITRIX'S SOLICITORS" means Taylor Joynson Garrett, London, England;
"CLOSING" means the closing of the Offers;
"DEPOSITARY" means Citrix's Solicitors and APM's Solicitors jointly to
be appointed as the depositary under the Depositary Agreement;
"DEPOSITARY AGREEMENT" means the depositary agreement to be entered
into on the Closing Date among Citrix and the Depositary;
"EMPLOYMENT AGREEMENTS" means the contracts of employment to be
entered into by each of the Executive Directors other than Metcalf and
confidentiality and proprietary information agreements to be entered
into by each of the Executive Directors other than Metcalf and the
consulting agreement to be entered into by Metcalf as set out in
Exhibits 1 to 4;
"ENCUMBRANCE" means, with respect to any asset, any mortgage,
encumbrance, pledge, charge, security interest or restriction of any
kind in respect of such asset;
"FORMS OF ACCEPTANCE" means the separate forms of acceptance for use
in connection with the Offers, as set out in Exhibits 7 to 10;
"IRREVOCABLE UNDERTAKING" means the undertaking for use in connection
with the Offers as set out in Exhibit 10;
"HERBERT" means Mr A J Herbert whose full name and address are set out
in Part 2 of the Schedule;
"LETTER OF CONSENT" means the letter of consent from APM to Sun
MicroSystems Inc.;
"LOAN STOCK HOLDERS" means the holders of APM loan stock;
"METCALF" means Mr SM Metcalf whose full name and address are set out
in Part 2 of the Schedule;
"OFFER DOCUMENT" means the offer document as set out in Exhibit 11;
"OFFERS" means the offers to be made by Citrix for APM contained in
the Offer Document;
"OPTIONHOLDERS" means holders of options to subscribe for APM
restricted Shares;
"PARTIES" means the parties to this Agreement and "PARTY" shall be
construed accordingly:
"PERSON" means an individual, corporation, partnership, association,
trust or other entity or organisation, including a government or
political subdivision or an agency or instrumentality thereof;
"PHOENIX" means Mr CJ Phoenix whose full name and address are set out
in Part 2 of the Schedule;
"SCHEDULE" means the schedule comprising parts 1 and 2 annexed hereto;
"SUBSIDIARY" means any entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are
owned directly or indirectly by APM or Citrix, as the case may be, and
"SUBSIDIARIES" shall be construed accordingly.
Each of the following terms is defined in the clause set forth
opposite such term:
Term Clause
"Closing Date" 2.7
"APM Statements" 8.3
1.2 Interpretation
In this Agreement:
(a) All references to a statutory provision herein shall be construed as
including references to:
(i) any statutory modification, consolidation or re-enactment
(whether before or after the date of this Agreement) for the
time being in force;
(ii) all statutory instruments or orders made pursuant to a
statutory provision; and
(iii) any statutory provisions of which a statutory provision is a
consolidation, re-enactment or modification.
PROVIDED that this shall not operate to impose any additional or
extended liability on any party to this Agreement;
(b) the singular includes a reference to the plural and vice versa;
(c) any clause or sub-clause is to a clause or sub-clause (as the case may
be) of or to this Agreement;
(d) any gender includes a reference to all other genders.
1.3 Consistency with Past Practice
The phrase "consistent with its past practice" means consistent with
such practice(s) (if any) established by APM by any of its
Subsidiaries and observed in relation to the conduct of each APM
Company's business during the year preceding the Accounts Date.
2. THE OFFERS AND IRREVOCABLE UNDERTAKINGS
2.1 Documents to be delivered on signing
On the date hereof:
(a) each of the Executive Directors shall deliver to Citrix copies of
his Employment Agreement duly executed by him, APM and by Citrix
and be conditional on all matters referred to in clause 2.7 being
completed;
(b) each of the Executive Directors shall procure that there is
delivered to Citrix's Solicitors the current draft of APM
Disclosure Memorandum; and
(c) there shall be delivered to Citrix's Solicitors the Letter of
Consent duly signed by Sun MicroSystems, Inc.
2.2 Recommendation of the Offers
Each of the Directors hereby irrevocably and unconditionally
undertakes to Citrix, subject always to such Director's fiduciary
duties, which shall be determined by each Director in his sole
discretion, to recommend acceptance of the Offers.
2.3 Irrevocable Undertakings
Each of the Executive Directors shall upon signing the Agreement sign
an Irrevocable Undertaking in respect of all of his APM shares.
2.4 The Offers
Citrix hereby unconditionally and irrevocably undertakes to each of
the Directors to despatch the Offer Document and deliver the Citrix
Letter to APM as soon as reasonably practicable (and in any event
within three Business Days) after Citrix has received:
(a) Irrevocable Undertakings in respect of at least 50 per cent of
the issued share capital of APM; and
(b) the APM Disclosure Memorandum updated to reflect events solely
occuring following the date of this Agreement and relating solely
to the business of APM which in Citrix's sole discretion is in a
form and substance acceptable to Citrix save that Citrix may not
decline to accept any part of that APM Disclosure Memorandum
which is contained in Exhibit 6.
2.5 Implementation of drag along
Each of the Directors hereby irrevocably and unconditionally undertakes to
Citrix to do all acts as are required of him by Article 41 of the Articles
of Association of APM to give effect to the rights of the Vendors (as
defined in that Article).
2.6 Offers Becoming Wholly Unconditional
(a) At the meeting convened for the purposes set out in clause 2.7 Citrix
shall, following receipt of the supplemental disclosure memorandum
pursuant to clause 2.7(a), consider whether the conditions of Citrix
set out in paragraph 1 of part 1 of Appendix I to the Offer Document
have been satisfied or should be waived.
(b) Subject to the satisfaction (or waiver) of the conditions in favour of
Citrix set out in Appendix I of the Offer Document, Citrix shall
declare the Offers wholly unconditional on the Closing Date provided
that such conditions have been so satisfied prior to 1 August 1998. If
such conditions have not been so satisfied the Offers will lapse.
2.7 Closing Meeting
On or before 1 July 1998 (or at such other date as Citrix and the
Executive Directors may agree) (hereinafter referred to as the "CLOSING
DATE"), the following shall take place at the offices of Citrix's
Solicitors:
(a) There shall be delivered to Citrix or to its Solicitors the final form
of a supplemental disclosure memorandum (if any) updating the
information shown in the APM Disclosure Memorandum to the Closing
Date; provided, however, that such supplemental disclosure memorandum
shall be solely for information and shall not be deemed to amend or
restate the APM Disclosure Memorandum.
(b) Board meetings shall be held of each of the APM Companies at which:
(i) the Directors (other than Phoenix) shall resign as directors of
such companies together with the Company Secretary and deliver
letters of resignation in the Agreed Form, and those persons as
Citrix may designate shall be appointed additional directors and
as Company Secretary; and
(ii) there shall be presented the written resignation of the auditors
of each APM Company together with a statement in accordance with
section 394 of the Companies Act 1985 that there are no
circumstances connected with such resignation which they consider
should be brought to the attention of the members or creditors of
any APM Company and that there are no fees or other payments due
to them from the relevant APM Company.
(c) There shall be delivered to Citrix or to its Solicitors:-
(i) the statutory books of each APM Company complete and accurate
up to the Closing Date and any company seal(s), certificates of
incorporation, certificates of incorporation on change of name
and all unused share certificates of each APM Company;
(ii) duly completed and signed transfers in favour of Citrix or such
person or persons as it may direct of all shares in each of the
Subsidiaries of APM which are not registered in the name of APM
together with the relative share certificates;
(iii) lists certified by APM's Company Secretary of names and address
of the APM shareholders, Loan Stock Holders and Optionholders
and the tax identification numbers for each of the APM
shareholders and Loan Stock Holders who are resident in the
United States but not employed by any of the APM Companies;
(iv) the Agency Memorandum duly executed by APM and Digitivity, Inc,
together with the written advice from the advisers to APM and
Digitivity, Inc. supporting the conclusions reached in the
Agency Memorandum; and
(v) copies, certified by APM's Company Secretary, of a letter to
each of Mr P Dawe and Mr R Sanson terminating immediately the
arrangements set out in the letters dated 17 January 1997 from
APM to each of them.
(d) The Depositary Agreement shall be executed by or on behalf of the
parties thereto.
(e) Each of the Parties shall execute and deliver any other instruments,
documents and certificates that are required to be delivered pursuant
to this Agreement, the Offer Document or as may be reasonably
requested by any Party in order to consummate the transactions
contemplated by this Agreement and the Offers.
Each of the Executive Directors shall use his reasonable endeavours to
procure that each of the acts, documents and events specified in clause
2.7 shall be done, delivered and/oroccur as provided in such clause.
3. UNDERTAKINGS BY THE DIRECTORS
3.1 Conduct of Business
From the date hereof until the earlier of the date on which the Offers
lapse and the Closing Date, each of the Directors shall use his respective
reasonable endeavours to procure that each of the APM Companies shall,
conduct its business in the ordinary course and use his reasonable
endeavours to preserve intact its business and its relationships with third
parties and use his reasonable endeavours to keep available the services of
its present officers and employees, save with the prior written consent of
Citrix. Without limiting the generality of the foregoing, from the date
hereof until the earlier of the date on which the Offers lapse and the
Closing Date, without the prior
written consent of Citrix, no APM Company shall, and each of the Directors
shall use his respective reasonable endeavours to procure that no APM
Company shall:
(a) adopt or propose any change in its memorandum or articles of
association;
(b) merge or consolidate with any other Person or acquire a material
interest in the share capital or business of any other Person;
(c) sell, lease, license or otherwise dispose of or acquire any assets or
property except pursuant to existing contracts or commitments;
(d) effect any direct or indirect redemption, purchase or other
acquisition of any securities of APM, or declare, set aside or pay any
dividend or make any other distribution of assets of any kind
whatsoever with respect to any securities of APM;
(e) save pursuant to a legal obligation existing prior to the signing of
this Agreement issue any securities of APM or create any Encumbrance;
(f) borrow any money or incur any credit or make any loan or other advance
to any Person;
(g) compromise or settle any legal or arbitration proceedings by or
against it;
(h) enter into any licensing, development, sales, employment, severance or
settlement agreements or any other agreement (whether or not in the
ordinary course of business) in each case that is material to the APM
Companies taken as a whole, ("material" in this context means any long
term agreement or arrangement exceeding 3 months in duration or any
agreement or arrangement with a value of over (Pounds)25,000 or any
agreement or arrangement of strategic importance to APM and Citrix);
(i) incur any expenditure from the date of this Agreement to the Closing
Date which in aggregate exceeds that disclosed in the APM Disclosure
Memorandum; and
(j) agree or commit to do any of the foregoing.
3.2 Access to Information
From the date hereof until the earlier of the date on which the Offers
lapse and the Closing Date:
(a) upon Citrix giving notice to the Directors, each of the Directors
shall use his reasonable endeavours to procure that each APM Company
shall:
(i) give Citrix, its lawyers, financial advisers, auditors and other
authorised representatives reasonable access to the offices,
properties, books and records of each APM Company;
(ii) furnish to Citrix, its counsel, financial advisers, auditors and
other authorised representatives such financial and operating
data and other information relating to each APM Company as such
persons may reasonably request; and
(iii) instruct the employees of each APM Company to co-operate with
the reasonable requests of Citrix in its investigation of that
APM Company; provided that:
(A) compliance with the above shall not unreasonably interfere
with the business of the APM Companies being conducted in
the ordinary course; and
(B) no information provided to Citrix pursuant to this clause
shall affect the rights of Citrix under the Offer Document
or this Agreement.
(b) each of the Executive Directors shall use his respective reasonable
endeavours to procure that each APM Company shall co-operate with the
reasonable requests of Citrix in relation to the combining of the
businesses of Citrix and each APM Company; provided that:
(i) compliance with the above shall not unreasonably interfere with
the business of the APM Companies being conducted in the ordinary
course; and
(ii) Citrix shall consult with the Directors regarding any proposals
it may have in relation to the combining of the businesses before
entering into discussions with any employees, customers,
suppliers, distributors, VARs and professional advisers of the
APM Companies.
3.3 Notices of Certain Events
From the date hereof until the earlier of the date on which the Offers
lapse and the Closing Date, each of the Directors shall use his respective
reasonable endeavours to procure that each APM Company shall, promptly
notify Citrix of:
(a) any notice or other communication received by him or it from any
Person alleging that the consent of such Person is or may be required
in connection with the transactions contemplated by this Agreement or
the Offers;
(b) any notice or other communication received by him or it from any
governmental or regulatory agency or authority, that relates to the
consummation of the transactions contemplated by this Agreement or the
Offers; and
(c) any actions, suits, claims, investigations or proceedings commenced
or, to the knowledge of him or it, threatened against such APM
Company, that relate to the consummation of the transactions
contemplated by this Agreement or the Offers.
3.4 No Negotiations with Third Parties
From the date hereof until the earlier of the Closing Date and the date on
which the Offers lapse, each of the Directors shall not, directly or
indirectly, encourage, solicit or engage in any discussions or negotiations
with, or provide any information to, any Person, concerning the possible
acquisition by a third party of all or any material part of the business of
any APM Company, whether by purchase of assets, shares, merger or otherwise
(an "Acquisition Proposal"), other than as contemplated or permitted by
this Agreement and the Offers. Each of the Directors agrees promptly to
notify Citrix of the expression of an interest by any Person to such
Director with respect to any such Acquisition Proposal and to provide
Citrix with copies of any documents received relating thereto and each of
the Directors shall use his respective reasonable endeavours to procure
that each APM Company shall do likewise.
3.5 Continuing Disclosure
From the date hereof until the earlier of the Closing Date and the date on
which the Offers lapse, each of the Executive Directors shall have the
continuing obligation to cause APM promptly (upon becoming aware of the
same) to advise Citrix with respect to any matter hereafter arising or
discovered that, if existing or known at the date of this Agreement, would
have rendered any statement set out in Part 2 of Appendix III of the Offer
Document untrue in any material respect, or that places such Executive
Director in breach, or is likely to place such party in breach of this
Agreement.
3.6 Undertakings on Statements
Each of the Executive Directors shall use his respective reasonable
endeavours to procure that the APM Companies shall not prior to the Closing
Date:
(a) take or agree or commit to take any action that would make any
statement set out in Part 2 of Appendix III of the Offer Document (as
varied by the APM Disclosure Memorandum) inaccurate in any material
respect at the Closing Date, or as at any time after the date hereof
and prior to the Closing Date; or
(b) omit or agree or commit to omit to take any action necessary to
prevent any such statement from becoming so inaccurate in any material
respect at any such time.
3.7 Non-Solicitation
If the Offer lapses each of the Executive Directors agrees that he shall
not and shall use his respective reasonable endeavours to procure that the
APM Companies in respect of Citrix and its Subsidiaries and, for a period
of two years from the date hereof, shall not:
(a) solicit, induce or recruit any of Citrix's employees to leave their
employment; or
(b) hire any of Citrix's former or current employees, except that the
foregoing prohibition on hiring shall not apply with respect to any
former employee whose employment was terminated without cause or to
any former employee whose employment terminated prior to 30 June 1998;
or
(c) use any confidential information now or hereafter received or obtained
with respect to any of the business or operations of Citrix.
3.8 Contracts
Upon receiving a written request from Citrix, each of the Executive
Directors (in their capacity as directors) shall use all reasonable
endeavours to obtain appropriate waivers from third parties of any rights
which they may have to terminate agreements with APM Companies consequent
upon any change of control or the like.
3.9 401(k) Plan
Prior to the Closing Date the Directors shall procure the termination of
the Digitivity Inc. 401(k) Plan.
4. RESTRICTIONS ON EXECUTIVE DIRECTORS
4.1 For the purposes of this clause the following words have the following
meanings:
"the Restricted - the design, sale of and procuring of
Business" customers for the Products and the
sale and procuring of customers for
maintenance training and consultancy
services in respect of the
installation and running of the
Products but limited to products and
services for which the Executive
Director has been responsible or
involved with on behalf of one or
more of the APM Companies during the
twelve months prior to the Closing
Date;
"the Restricted - the countries with which the
Area" Executive Director has been
responsible or involved with on
behalf of APM or in respect of any
branch of APM with respect to the
Restricted Business during the twelve
months prior to the Closing Date
including without limitation the
United States and the United Kingdom;
"the Products" - products which provide secured
deployment or managed deployment of
Java applications for internet,
intranet and extranet use;
"the Restricted Period" - the period of 24 months from the
Closing Date APM.
4.2 In consideration of Citrix purchasing APM shares from each of the Executive
Directors each of them hereby severally covenants and undertakes with
Citrix that he will not:
(a) for the Restricted Period whether alone or jointly with or as agent of
any person or persons and whether directly or indirectly:
(i) engage, take up or hold any office in or with any business
which is engaged or is intended to be engaged in the field of
the Restricted Business within the Restricted Area;
(ii) take up or hold any post or position which enables or permits
him to exercise whether personally or by an agent and whether
on his own account or in association with or for the benefit of
any other person any influence over any business which is
engaged or is intended to be engaged in the field of the
Restricted Business within the Restricted Area; or
(iii) take up or hold any employment or consultancy with any person
which is engaged or is intended to be engaged in the field of
the Restricted Business within the Restricted Area
and which would have the necessary or probable result of him being engaged
within the Restricted Area in business activities which are the same or
similar to the Restricted Business;
(b) for the Restricted Period either personally or by an agent and either
on his own account or for or in association with any other person or
otherwise directly or indirectly engage in any capacity in any
business concern (of whatever kind) which shall be in competition at
the Closing Date with the Restricted Business provided always that he
may hold as an investment not more than 1% of the issued share capital
of a company quoted on a stock exchange;
(c) for the Restricted Period either personally or by an agent and either
on his own account or for or in association with any other person
directly or indirectly canvass or by any other means solicit, approach
or seek out or cause to be canvassed, solicited, approached or sought
out any person for orders or instructions in respect of any goods or
services provided or supplied by APM in the course of the Restricted
Business who or which has within the period of 12 months prior to the
Restricted Period transacted the Restricted Business with him;
(d) for the Restricted Period either personally or by an agent or either
on his own account or for or in association with any other person
canvass approach solicit seek out or by any other means endeavour to
entice away from APM or induce to break their contract of employment
with APM, or aid or assist any other person or persons in employing or
otherwise retaining the services of any one who is employed by APM or
who is a consultant to APM and in either case was engaged in any
executive, technical or advisory capacity at APM (excluding junior
clerical and administrative staff) during the 12 months prior to the
Restricted Period;
(e) for the Restricted Period either personally or by an agent and either
on his own account or for or in association with any other person in
connection with the carrying on of business in the field of the
Restricted Business offer employment to or retain as a consultant
(whether by way of a contract of services, a consultancy agreement,
partnership or howsoever and whether on his own behalf or on behalf of
any other person) any person who is employed by any of APM Companies
or who is a consultant to any of APM Companies and in either case is
engaged in any executive, technical or advisory capacity (excluding
junior clerical and administrative work) at the time of the
commencement of the Restricted Period;
(f) at any time, use whether directly or indirectly or in connection with
any trade or business, the name "APM" "ANSA" or "Digitivity" or "CAGE"
or any colourable imitation thereof or any name resembling the same or
capable of causing confusion.
4.3 Each of the Executive Directors hereby agrees that he will at the request
and cost of Citrix enter into a direct agreement or undertaking with any
Associate of Citrix whereby he will accept restrictions and provisions
corresponding to the restrictions and provisions above (or such of them as
may be appropriate in the circumstances) in relation to such activities and
such areas and/or such periods not greater than those set out above as any
such Associate of Citrix may require for the protection of its legitimate
interests.
4.4 Each of the Executive Directors hereby acknowledges and agrees that:
(a) each of the covenants contained in sub-clauses 4.2(a), 4.2(b), 4.2(c),
4.2(d), 4.2(e), 4.2(f) and 4.3 constitute an entirely separate and
independent restriction on him; and
(b) the duration extent and application of each of the restrictions are no
greater than as necessary for the protection of the interests of APM.
4.5 Whilst the restrictions in sub-clauses 4.2 and 4.3 are considered by the
Parties to be reasonable in all the circumstances as at the date of this
Agreement it is acknowledged that restrictions of such a nature may be
invalid because of changing circumstances or other unforeseen reasons and
accordingly it is hereby agreed and declared that if any one or more of
those restrictions is judged to be void as going beyond what is reasonable
in all the circumstances for the protection of the interests of APM but
would be valid if part of the wording of the restriction was deleted or its
duration was reduced or the range of activities covered by it was reduced
in scope then each restriction(s) shall apply with such modification(s) as
may be necessary to make it valid and effective and any such modification
shall not thereby affect the validity of any other restriction contained in
this clause.
4.6 Each of the Executive Directors further undertakes with Citrix and agrees
that:
(a) he will observe any substitute restrictions (in place of these set out
in sub-clauses 4.2 and 4.3 as Citrix may from time to time specify in
writing which are
in all respects less restrictive in extent than those specified in
sub-clauses 4.2 and 4.3;
(b) if any breach or violation of any of the terms of sub-clauses 2 and 3
occurs damages alone cannot compensate for such breach of violation
and that injunctive relief is reasonable and essential to safeguard
the interests of APM and that an injunction in addition to any other
remedy may accordingly be obtained by APM. No waiver of any such
breach or violation shall be implied from the forbearance or failure
by APM to take action in respect of such breach or violation;
(c) any covenant or undertaking given by him under this clause 4 to Citrix
is given to Citrix in its capacity as trustee for APM, any parent or
other holding company of APM and any Associate of APM which has a
legitimate interest to protect.
4.7 None of the Executive Directors shall be treated as committing a breach or
violation of the provisions of this clause at any time after Closing Date
while he is acting solely in his capacity as a director or employee of any
of the APM Companies in accordance with the terms of this Agreement.
4.8 Each of Herbert and Phoenix hereby respectively agree until the 18 month
anniversary of the Closing Date not to transferencumber or dispose
(collectively, "TRANSFER") 55.5 per cent. of the Initial Consideration (as
defined in the Offer Document) he receives from the Offers (with respect to
each, his Restricted Consideration) except that he may Transfer 28 per
cent. of his Restricted Consideration on or after the 12 month anniversary
of the Closing Date. Notwithstanding the foregoing, Herbert and Phoenix
each may transfer all or any of his Restricted Consideration (a) by way of
gift to any member of his respective family or to any trust for the benefit
of any such family member, provided that any such transferee shall agree in
writing with Citrix, as a condition precedent to such transfer, to be bound
by all of the provisions of this clause 4.8 to the same extent as if such
transferee were Herbert or Phoenix, as the case may be, or (b) by will or
otherwise following his death in which event such transferee shall not be
bound by the provisions of this clause 4.8. Herbert and Phoenix each
hereby acknowledges that he shall not be entitled to Transfer any of his
Retained Consideration (as defined in the Offer Document) until such
consideration has been released to him in accordance with the provisions of
Appendix II of the Offer Document but on such release such Retained
Consideration shall not be subject to any restrictions on Transfer. These
restrictions shall cease to apply to Herbert or Phoenix if his employment
by Citrix Group or any of the APM Companies is terminated by reason of
redundancy following a decision by Citrix to withdraw from the Java
deployment market. The Restricted Consideration shall be invested by each
of Herbert and Phoenix within such reasonably prudent investment parameters
as shall be mutually agreed upon by Citrix and each of Herbert and Phoenix
prior to closing. Until the release of all of the Restricted Consideration
Herbert and Phoenix shall provide Citrix with quarterly reports of how the
Restricted Consideration has been invested.
5. UNDERTAKINGS BY CITRIX
Citrix agrees that:
5.1 Non-Solicitation
If the Offer lapses Citrix agrees that for a period of two years from the
date hereof, it shall not:
(a) solicit, induce or recruit any of the employees of the APM Companies
to leave their employment; or
(b) hire any of the APM Companies former or current employees, except that
the foregoing prohibition on hiring shall not apply with respect to
any former employee whose employment was terminated without cause or
to any former employee whose employment terminated prior to 30 June
1998; or
(c) use any of the confidential information now or hereafter received or
obtained with respect to any of the business or operations of the APM
Companies.
5.2 COBRA
Citrix acknowledges the obligations of Digitivity, Inc. (and APM as parent
of Digitivity, Inc.) under United States Federal law to provide, to the
extent possible, COBRA benefits to all United States employees of
Digitivity, Inc. After Closing Date, Citrix shall cause Digitivity, Inc.
to offer or shall itself offer COBRA benefits to all United States
employees of Digitivity, Inc.
6. UNDERTAKINGS BY ALL PARTIES
Each of the Parties agrees that:
6.1 Reasonable Endeavours
Subject to the terms and conditions of this Agreement, such Party will use
his reasonable endeavours to take, or cause to be taken, all actions and to
do, or cause to be done, all things necessary or desirable under applicable
laws and regulations to consummate the transactions contemplated by this
Agreement or the Offers such that the Closing Date shall occur on or prior
to 1 July 1998. Each of the Parties agrees that he shall use all reasonable
endeavours, after the Closing Date, to execute and deliver such other
documents, certificates, agreements and other writings as may be reasonably
necessary in order to consummate or implement expeditiously the
transactions contemplated by this Agreement or the Offers; provided that
this does not involve such party incurring substantial expenditure.
6.2 Certain Filings
Each of the Executive Directors and Citrix shall co-operate with each
other:
(a) in determining whether any action by or in respect of, or filing with,
any governmental body, agency, official or authority is required, or
any actions, consents, approvals or waivers are required to be
obtained from parties to any
material contracts, in connection with the consummation of the
transactions contemplated by this Agreement or the Offers; and
(b) in taking such actions or making any such filings, and furnishing any
information required in connection therewith and seeking timeously to
obtain any such actions, consents, approvals or waivers;
provided that this does not involve such party incurring substantial
expenditure.
6.3 Public Announcements
(a) None of the Parties shall issue prior to the Closing Date any press
release or make any public statement with respect to this Agreement or
the Offers or the transactions contemplated hereby or thereby without
the prior written consent of the other Parties save as may be required
by applicable law or regulation (including regulations of the Nasdaq
Stock Market).
(b) A Party shall be deemed to have given his written consent to any such
proposed press release or public statement if he shall fail to object
in writing within 24 hours of receipt of the other Party's proposed
press release or written description of its proposed public statement.
7. TERMINATION
7.1 Automatic Termination
This Agreement shall automatically terminate in the event that the Offers
lapse.
7.2 Survival
The provisions of clauses 3.7, 5.1, 6.3, 8, 9.1, 9.3, 9.5, 9.8 and 9.9
together with the Non-Disclosure Agreement shall survive any termination
hereof.
8. LIABILITY
8.1 General
(a) If this Agreement is terminated (including in circumstances where the
Offers are not declared or do not become wholly unconditional for any
reason) or is rescinded, none of the Parties shall have any liability
of any nature whatsoever to any of the other Parties either under this
Agreement or under the Offers or under any of the agreements entered
into pursuant to or as contemplated by this Agreement or by the Offer
Document and whether to recover damages or compensation or otherwise
and whether under breach of contract to make restitution or under any
statute save in relation to any of the provisions of clauses 3.7 and
5.1 of this Agreement.
(b) Until such termination or rescission, each of the Parties shall comply
in all respects with its obligations under this Agreement, the Offers
and each of the agreements entered into pursuant or as contemplated by
this Agreement,
including, but not limited to, such obligations of performance as
would facilitate the consummation of the transactions contemplated
hereby or thereby.
8.2 If the Offers become or are declared unconditional in all respects and
Closing takes place:
(a) none of the Parties shall have any rights or remedies of any nature
whatsoever against any of the other Parties under this Agreement and
whether to recover damages or compensation or otherwise and whether
for breach of contract or to make restitution or under any statute or
otherwise save in relation to any of the provisions of clauses 3.7, 4,
5.3 or 5.4;
(b) none of the Parties shall have any rights or remedies of any nature
whatsoever against APM in respect of the Offers or under this
Agreement in circumstances which would entitle Citrix to exercise its
remedies under Part 2 of the Appendix II of the Offer Document.
8.3 The statements set out in part 2 of the Appendix III of the Offer Document
("the APM Statements") shall not be construed as being any form of
warranty, representation, undertaking or covenant or by any of the Non-
Directors or Executive Directors or by APM conferring upon Citrix any
rights or remedies; provided that the foregoing is without prejudice to
Citrix's rights in respect of the APM Statements as provided for in Part 2
of Appendix II of the Offer Document.
8.4 Each of the Parties acknowledges that it does not enter into this Agreement
in reliance on any of the warranties, representations or undertakings
howsoever or to whomsoever made except in so far as embodied in this
Agreement, subject to this clause 8.
8.5 For the avoidance of doubt, the provisions of this clause 8 shall not apply
to release a Party from liability in the case of fraud on the part of such
party.
9. MISCELLANEOUS
9.1 Notices
All notices, requests and other communications to either party hereunder
shall be in writing (including telecopy or similar writing) and shall be
given,
if to Citrix, to: with a copy to:
Citrix Sytems, Inc. Testa, Hurwitz & Thibeault LLP
Attn: Daniel P Roy Attn: George W Lloyd
6400 NW 6th Way High Street Tower
Fort Lauderdale 125 High Street
Florida 33309 Boston, Massachusetts 02110
Telecopy: 001 954 267 2503 Telecopy: 001 617 248 7100
if to the Directors: with a copy to:
to each of them at his address Hewitson Becke + Shaw
as set out in the Schedule Attn: Bridget Kerle
Shakespeare House
42 Newmarket Road
Cambridge CB5 8EP
Telecopy: 011 44 1223 316511
9.2 Amendments: No Waivers
(a) Any provision of this Agreement may be amended or waived prior to the
Closing Date or the termination of this Agreement if such amendment or
waiver is in writing and signed by or on behalf of the Parties.
(b) No failure or delay by any Party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege.
9.3 Expenses
(a) Subject to sub-clause (a) below, if this Agreement is terminated, each
Party shall pay his own expenses incurred in connection with this
Agreement together with its Exhibits, and the Offer Document,
including without limitation the fees and expenses of his or its
professional advisers.
(b) If the Offers are closed in accorance with clause 2.6 Citrix shall pay
the reasonable expenses of all of the Parties in connection with this
Agreement, together with its Exhibits and the Offer Document.
9.4 Successors and Assigns
The provisions of this Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assignees;
provided that no party may assign, delegate or otherwise transfer any of
his or its rights or obligations under this Agreement without the consent
of the other Parties,except that Citrix may transfer or assign, in whole or
from time to time in part, to one or more of its Associates, its rights
under this Agreement, but no such transfer or assignment will relieve
Citrix of its obligations hereunder. The employees of Digitivity, Inc. are
third party beneficiaries of the Agreement entitled to bring an action to
enforce the covenant in Clause 5.2. Any Executive Director is permitted to
enforce such covenant on their behalf.
9.5 Entire Agreement
This Agreement together with its Exhibits, and the mutual Non-Disclosure
Agreement between Citrix and APM attached hereto as Exhibit 12 constitute
the entire agreement
between the Parties with respect to the subject matter hereof and supersede
all prior agreements, understandings and negotiations, both written and
oral, between the Parties with respect to the subject matter hereof. No
representation, inducement, promise, understanding, condition or warranty
not set forth herein or therein has been made or relied upon by any Party .
Neither this Agreement nor any provision hereof is intended to confer upon
any Person other than the Parties any rights or remedies hereunder.
9.6 Saving
Save as otherwise expressly provided herein or in the Offer Document, the
rights and obligations of the Parties shall not be restricted by or
extinguished by the Offers becoming or being declared wholly unconditional
save to the extent performed in accordance with this Agreement.
9.7 Headings
The headings herein are included for convenience of reference only and
shall be ignored in the construction or interpretation hereof.
9.8 Counterparts
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same agreement and any party
may enter into this Agreement by executing any such counterpart.
9.9 Governing Law
This Agreement shall be construed in accordance with and governed by the
laws of England.
9.10 Jurisdiction
(a) Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement and/or the Offer Document
shall be brought against any of the parties in the High Court of
Justice, London, England and each of the parties hereby submits to the
non-exclusive jurisdiction of such court (and of the appropriate
appellate courts) in any such action or proceeding.
(b) Citrix hereby irrevocably appoints Citrix's solicitors as its agent to
accept service of legal proceedings in connection with all matters
arising out of this Agreement and the transactions contemplated by
this Agreement and agrees that any writ, judgment or other notice of
legal process in connection with any such legal action or proceedings
shall be sufficiently served if delivered to Citrix's solicitors.
This Agreement has been entered into as a deed on the date first above written.
THE SCHEDULE
PART 1
THE NON EXECUTIVE DIRECTORS
Name Address
James Edwin Goodman 43 Stanton Lane
Keyworth
Nottingham
Nottinghamshire
NG12 5BE
Paul Matthew Linkstone Frew Cloverlea
Birtley Road
Bramley
Surrey
GU5 0HX
PART 2
THE EXECUTIVE DIRECTORS
NAMES ADDRESSES
Scott McKenzie Metcalf 1876 Grand Teton
Milpitas
California 95035
USA
Christopher Jon Phoenix The Crofters
19 Church Hill
Camberley
Surrey GU15 2HA
Robertus Johannes van der Linden 93 Histon Road
Cottenham
Cambridge CB4 4UQ
Andrew James Herbert 35 Fairway
Girton
Cambridge
Cambridgeshire CB3 0QF
Executed as a deed by )
JAMES EDWIN GOODMAN ) /s/ James Edwin Goodman,
in the presence of: ) by his attorney
Executed as a deed by )
PAUL MATTHEW LINKSTONE FREW ) /s/ Paul Matthew Linkstone Frew,
in the presence of: ) by his attorney
Executed as a deed by )
SCOTT MCKENZIE METCALF ) /s/ Scott McKenzie Metcalf
in the presence of: )
Executed as a deed by )
CHRISTOPHER JON PHOENIX ) /s/ Christopher Jon Phoenix
in the presence of: ) by his attorney
Executed as a deed by )
ROBERTUS JOHANNES VAN DER LINDEN ) /s/ Robertus Johannes Van Der Linden
in the presence of: )
Executed as a deed by )
ANDREW JAMES HERBERT ) /s/ Andrew James Herbert
in the presence of: )
Executed as a deed )
on behalf of )
CITRIX SYTEMS, INC. )
by )
/s/ Mark B. Templeton
.....................................
President
Its duly authorized representative
/s/ Dan P. Roy
.....................................
Secretary