Exhibit (e)(5)
EMPLOYMENT AGREEMENT
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AGREEMENT made this ___ day of March, 2001 by and between Xxxx Wesker (the
"Executive") and Citrix Systems, Inc., a Delaware corporation with a principal
place of business at 0000 Xxxxxxxxx Xxxxx Xxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000
("Citrix" or the "Company").
WHEREAS, Sequoia and Citrix are in the process of executing an Agreement
and Plan of Merger (the "Merger Agreement");
WHEREAS, execution of this Agreement by Executive is a condition to
completing the Merger Agreement;
WHEREAS, Executive wants to induce Sequoia and Citrix to finalize the
Merger Agreement;
WHEREAS, the Executive's position under this Agreement requires that he be
trusted with extensive confidential information and trade secrets of the Company
and that he develop a thorough and comprehensive knowledge of all details of the
Company's business, including, but not limited to, information relating to
research, development, inventions, financial and strategic planning, research,
marketing, distribution and licensing of the Company's products and services;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. Position and Responsibilities. During the term of this Agreement, the
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Executive agrees to initially serve as Vice President of Product Strategy and
Technology of the Company, reporting to the President, or in such other
comparable positions and with such other title as may be assigned from time to
time. The Executive shall be a member of the Company's Executive Management
Committee. The Executive agrees to devote substantially all of his business
time and efforts to the performance of his duties hereunder. The Executive
shall exercise such powers and comply with and perform, faithfully and to the
best of his ability, such directions and duties in relation to the business and
affairs of the Company as may from time to time be vested in or requested of
him. The Executive shall devote substantially all of his business time,
attention and energies to the Company's business and shall not engage in any
other business activity which (i) interferes with the performance of his duties
hereunder, (ii) creates a conflict of interest or the appearance of a conflict
of interest, or (iii) competes with the business activities, products or
services of the Company. The Executive shall perform his services under this
Agreement at such locations as may be required by the Company.
2. Compensation: Salary, Bonuses and Other Benefits. During the term of
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this Agreement, the Company shall pay the Executive, as consideration for the
Executive's satisfactory performance of his duties, the following compensation:
(A) Salary. In consideration of the services to be rendered by the
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Executive to the Company, the Company initially will pay to the Executive a
semi-monthly salary of $8,333.33 (annualized, $200,000.00) (the Executive's
"Base Salary") during the term of this Agreement. Such Base Salary shall be
payable in conformity with the Company's customary practices for executive
compensation, as such practices shall be established or modified from time to
time.
(B) Fringe Benefits. The Executive will be eligible to participate on
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the same general basis and subject to the same rules and regulations as other
Company Executives in the Company's standard benefit plans as such benefits
or plans may be modified or amended from time to time. The Company may
alter, add to, modify or delete its Executive benefits plans at any time it
determines in its sole judgment to be appropriate.
(C) Vacation. During the term hereof, the Executive shall be eligible
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to accrue paid vacation per calendar year, to be taken at such times and
intervals as shall be agreed to by the Company and the Executive in their
reasonable discretion. The accrual and use of Executive's vacation days will
be in accordance with the Company's regular vacation policy in effect from
time to time.
(D) Target Based Bonus. The Executive may also be eligible to receive
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a bonus of up to $80,000.00 for each of calendar years 2001 and 2002. Such
bonus, if any, shall be based on the Company's and Executive's achievement of
goals and objectives to be mutually determined by the Company and the
Executive at their reasonable discretion during calendar year 2001 and 2002,
respectively. No bonus under this paragraph shall be payable to Executive
with respect to any calendar year during which his employment is terminated,
regardless of the manner of such termination.
(E) Additional Bonus. The Executive may also be eligible to receive
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an additional bonus of up to an amount equal to the target bonus he is
awarded pursuant to Paragraph 2(D), provided the Executive is employed in
good standing on the first year and second year anniversary dates of his
employment and has satisfied performance objectives as detailed. By way of
example, if the Executive is employed in good standing on the first year
anniversary date of his employment and has met all performance objectives, he
will be eligible to receive an additional bonus amount equal to the target
bonus that we was awarded for calendar year 2001. Such additional bonus, if
any, shall be based on the Executive's achievement of mutually agreed upon
performance objectives. The Company at its sole discretion will determine
such performance objectives and whether the Executive achieved such
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objectives. No bonus under this paragraph shall be payable to Executive with
respect to any calendar year of the Company during which his employment is
terminated, regardless of the manner of such termination.
(F) Stock Options. Subject to the approval of the Compensation
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Committee of the Company's Board of Directors and pursuant to a four (4) year
vesting schedule, the Executive will be granted the option to purchase
200,000 shares of common stock of the Company at the fair market value as of
the date of the grant. The options will be subject to
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the terms and conditions of the Company's Stock Option Agreement and Stock
Option Plan, which will include, among other things, a four (4) year vesting
schedule.
(G) Expenses. The Company shall pay or reimburse the Executive for
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all reasonable business expenses incurred or paid by the Executive in the
performance of his responsibilities hereunder in accordance with the
Company's prevailing policy and practice relating to reimbursements as
established, modified or amended from time to time. The Executive must
provide substantiation and documentation of these expenses to the Company in
order to receive reimbursement.
(H) Relocation Expenses. If Executive is required to relocate during
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the term of this Agreement, Executive will receive a one time relocation
allowance. This allowance will be payable after Executive provides the
applicable receipts to the Company for all such moving expenses in accordance
with Company policy.
(I) Tax Withholding. All payments in this Section 2 shall be subject
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to all applicable federal, state and local withholding, payroll and other
taxes.
3. Term. Subject to the earlier termination as hereafter provided in
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Section 4, the term of this Agreement shall commence on the completion of the
merger contemplated under the Merger Agreement (the "Closing Date") and shall
continue until two (2) years from the Closing Date. At the end of the term, the
Agreement will expire and, if the parties mutually desire for the Executive to
remain employed, such employment will continue solely on an "at-will" basis,
which means that either the Company or the Executive can terminate the
Executive's employment at any time, for any or no reason, and with or without
cause or prior notice.
4. Termination. The Executive's employment under this Agreement may be
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terminated as follows:
(A) By Expiration of the Agreement: If this Agreement expires as
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set forth in Section 3 hereof, the Executive's employment shall terminate and
the Executive shall be entitled to no payments, salary continuation,
severance or other benefits after the expiration date of the Agreement,
except for Base Salary and vacation to the extent accrued through the date of
such expiration; provided, however, that at the expiration of this Agreement,
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the parties may agree to continue the Executive's employment solely on an
"at-will" basis, as described in Section 3 above.
(B) At the Executive's Option. The Executive may terminate his
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employment under this Agreement, at any time by giving at least forty-five
(45) days' advance written notice to the Company. In the event of a
termination at the Executive's option, the Company may accelerate Executive's
departure date and will have no obligation to pay Executive after his actual
departure date. In the event of termination at the Executive's option, the
Executive shall be entitled to no payments, salary continuation, severance or
other benefits, except for earned but unpaid Base Salary and vacation to the
extent accrued through the Executive's departure date.
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(C) At the Election of the Company for Cause. The Company may,
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immediately and unilaterally, terminate the Executive's employment under this
Agreement for "Cause" at any time during the term of this Agreement without
any prior written notice to the Executive. Termination by the Company shall
constitute a termination for Cause under this Section 4(C) if such
termination is for one or more of the following causes:
(i) the Executive's continuing, repeated and willful failure or
refusal to perform his duties and services under this Agreement (other
than due to his incapacity due to illness or injury);
(ii) gross negligence, breach of fiduciary duty or breach of the
material terms of this Agreement or the other agreements executed in
connection herewith;
(iii) the commission by the Executive of an act of intentional
fraud, embezzlement or violation of the material rules or policies of the
Company or the commission by the Executive of any other action which
materially injures the Company, or may materially injure the company;
(iv) the Executive's conviction of any crime which constitutes a
felony in the jurisdiction involved; or
(v) a breach by the Executive of the terms of the Citrix Systems,
Inc. Non-Solicitation, Non-Compete and Confidentiality and Employee Non-
Disclosure Agreement (the "Non-solicitation Agreement").
In the event of a termination for Cause pursuant to the provisions of clauses
(i) through (v) above, inclusive, the Executive shall be entitled to no
payments, salary continuation, severance or other benefits, except for earned
but unpaid Base Salary and vacation to the extent accrued through the
Executive's termination date.
(D) At the Election of the Company for Reasons Other than for Cause.
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The Company may, immediately and unilaterally, terminate the Executive's
employment under this Agreement at any time during the term of this Agreement
without Cause by giving ten (10) days' advance written notice to the
Executive of the Company's election to terminate. During such ten-day period,
the Executive will be available on a full-time basis for the benefit of the
Company to assist the Company in making the transition to a successor. The
Company, at its option, may pay the Executive his prorated Base Salary rate
for ten (10) days in lieu of such notice. In the event the Company exercises
its right to terminate the Executive under this Section 4(D), Executive shall
be eligible for severance payments upon satisfaction of the conditions as set
forth in 4(G).
(E) Benefits if Agreement Terminated Due to Death or Disability.
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Executive's employment will terminate if Executive dies or suffers physical
incapacity or mental incompetence. For the purposes of this Agreement, the
Executive shall be deemed to have suffered physical incapacity or mental
incompetence if the Executive is unable to perform
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the essential functions of his job with reasonable accommodation for a period
of 120 consecutive or cumulative days in any one year period. Any
accommodation will not be deemed reasonable if it imposes an undue hardship
on the Company. If this Agreement terminates due to the death or disability
of Executive, Executive (or in the case of death, Executive's designated
beneficiary, or if no beneficiary has been designated by you, your estate)
shall be entitled to no payments, salary continuation, severance or other
benefits, except for earned but unpaid Base Salary, vacation and benefits to
the extent accrued or vested through the Executive's termination date.
(F) At the Election of the Executive For A Material Breach By the
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Company of the Terms of this Agreement. The Executive may terminate his
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employment hereunder in the event that the Company materially breaches the
terms of this Agreement, provided that the Executive presents the Company
with written notice of such event within thirty (30) days of the date the
Executive knew of such event, and it is not corrected by the Company within
thirty (30) days of the date the Executive provides such written notice to
the Company. In the event the Executive terminates his employment under this
Section 4(F), Executive shall be eligible for severance payments upon
satisfaction of conditions as set forth in 4(G).
(G) In the event the Company terminates Executive's employment under
Section 4(D) (For Reasons Other Than For Cause) or the Executive terminates
his employment under Section 4(F) (For Material Breach By the Company of the
Terms of This Agreement) and the Executive signs a comprehensive release in
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the form, and of a scope, acceptable to the Company, the Company agrees to
pay the Executive severance payments at the Executive's then current Base
Salary rate for the remainder of the term of this Agreement. Such severance
payments shall be payable on a semi-monthly basis in conformity with the
Company's customary practices for executive compensation as such practices
may be modified from time to time and shall be subject to all applicable
federal, state and local withholding, payroll and other taxes. Except as
expressly set forth in this Section 4(G), Executive acknowledges that the
Company shall not have any further obligations to the Executive in the event
of Executive's termination under Section 4(D) or 4(F), except such further
obligations as may be imposed by law and except for earned but unpaid Base
Salary and vacation to the extent accrued through the Executive's termination
date.
If Executive breaches his post-employment obligations under the Non-
Solicitation Agreement or any other restrictive covenants or agreements
(including, but not limited to, any noncompetition, nonsolicitation,
nondisclosure, nonhire or assignment of intellectual property covenants or
agreements) executed by Executive, the Company may immediately cease payment of
all severance and/or benefits described in this Agreement. This cessation of
severance and/or benefits shall be in addition to, and not as an alternative to,
any other remedies in law or in equity available to the Company, including the
right to seek specific performance or an injunction.
5. Execution of "Non-Solicitation Agreement;" Survival of Certain
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Provisions. As a condition of his employment by the Company pursuant to the
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terms of this Agreement, Executive shall execute the "Non-Solicitation
Agreement" on the "Closing Date." Executive's post-employment obligations under
the Non-Solicitation Agreement and any other restrictive
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covenants or agreements executed by Executive shall survive any termination of
employment or termination or expiration of this Agreement. The obligation of the
Company to make payments to or on behalf of the Executive under Section 4(G)
hereof is expressly conditioned upon Executive's continued full performance of
the Non-Solicitation Agreement and any other obligations under any restrictive
covenants or agreements.
6. Consent and Waiver by Third Parties. The Executive hereby represents
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and warrants that he has obtained all waivers and/or consents from third parties
which are necessary to enable him to enjoy employment with the Company on the
terms and conditions set forth herein and to execute and perform this Agreement
without being in conflict with any other agreement, obligation or understanding
with any such third party. The Executive represents that he is not bound by any
agreement or any other existing or previous business relationship which
conflicts with, or may conflict with, the performance of his obligations
hereunder or prevent the full performance of his duties and obligations
hereunder.
7. Governing Law. This Agreement, the employment relationship
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contemplated herein and any claim arising from such relationship, whether or not
arising under this Agreement, shall be governed by and construed in accordance
with the internal laws of the State of Florida, without giving effect to the
principles of choice of law or conflicts of laws of Florida and this Agreement
shall be deemed to be performable in Florida. Any claims or legal actions by one
party against the other arising out of the relationship between the parties
contemplated herein (whether or not arising under this Agreement) shall be
commenced or maintained in any state or federal court located in Florida, and
Executive hereby submits to the jurisdiction and venue of any such court.
8. Severability. In case any one or more of the provisions contained in
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this Agreement or the other agreements executed in connection with the
transactions contemplated hereby for any reason shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or such
other agreements, but this Agreement or such other agreements, as the case may
be, shall be construed and reformed to the maximum extent permitted by law.
9. Waivers and Modifications. This Agreement may be modified, and the
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rights, remedies and obligations contained in any provision hereof may be
waived, only in accordance with this Section 9. No waiver by either party of
any breach by the other or any provision hereof shall be deemed to be a waiver
of any later or other breach thereof or as a waiver of any other provision of
this Agreement. This Agreement and its terms may not be waived, changed,
discharged or terminated orally or by any course of dealing between the parties,
but only by an instrument in writing signed by the party against whom any
waiver, change, discharge or termination is sought. No modification or waiver
by the Company shall be effective without the consent of the President then in
office at the time of such modification or waiver.
10. Assignment. The Executive acknowledges that the services to be
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rendered by him hereunder are unique and personal in nature. Accordingly, the
Executive may not assign any of his rights or delegate any of his duties or
obligations under this Agreement. The rights and
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obligations of the Company under this Agreement may be assigned by the Company
and shall inure to the benefit of, and shall be binding upon, the successors and
assigns of the Company.
11. Entire Agreement. This Agreement constitutes the entire understanding
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of the parties relating to the subject matter hereof and supersedes and cancels
all agreements relating to the subject matter hereof, whether written or oral,
made prior to the date hereof between the Executive and the Company or any of
its affiliates or predecessors including, without limitation, the Amended and
Restated Employment Agreement; provided, however, that any standard stock option
agreement shall remain in full force and effect.
12. Notices. All notices hereunder shall be in writing and shall be
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delivered in person or mailed by certified or registered mail, return receipt
requested, addressed as follows:
If to the Company, to: General Counsel
Citrix Systems, Inc.
0000 Xxxxxxxxx Xxxxx Xxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
with a copy to: ______________________
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
If to the Executive, at the Executive's address set forth on the
signature page hereto.
13. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
14. Section Headings. The descriptive section headings herein have been
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inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
as of the date first above written as an instrument under seal.
CITRIX SYSTEMS, INC. EXECUTIVE
By: /s/ Xxxx X. Xxxxxxxxxx /s/ Xxxx X. Wesker
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Signature
Title: Chief Financial Officer
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Xxxx X. Wesker
0 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
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