UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):  July 26, 2016
LogMeIn, Inc.
(Exact name of registrant as specified in its charter)

Delaware	 	001-34391	 	20-1515952	
(State or other
jurisdiction of
incorporation)	 	(Commission File
Number)	 	(IRS Employer
Identification Number)	

320 Summer Street
Boston, Massachusetts	 	02210	
(Address of principal executive offices)	 	(Zip Code)	
Registrant’s telephone number, including area code: ( 781)-638-9050
N/A
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
x	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)	
 
¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)	
 
¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))	
 
¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))	

 

Explanatory Note
This Form 8-K/A (Amendment No. 1) amends and restates in its entirety the Form 8-K (the “ Original 8-K ”) filed on July 26, 2016 by LogMeIn, Inc. to file certain exhibits and to incorporate them herein by reference and to describe the material terms of the Tax Matters Agreement, dated as of July 26, 2016, by and among Citrix Systems, Inc. (“ Citrix ”), LogMeIn, Inc. (the “ Company ”) and GetGo, Inc., a wholly owned subsidiary of Citrix (“ GetGo ”) (the “ Tax Matters Agreement ”). Except as set forth herein, this amendment does not amend or update any other information set forth in the Original 8-K, and we have not updated disclosures contained therein to reflect any events that may have occurred at a date subsequent to the filing of the Original 8-K.
 
Item 1.01	Entry into a Material Definitive Agreement.	
On July 26, 2016, the Company, Lithium Merger Sub, Inc., a wholly owned subsidiary of the Company (“ Merger Sub ”), Citrix and GetGo entered into an Agreement and Plan of Merger (the “ Merger Agreement ”) pursuant to which the Company will combine with Citrix’s GoTo family of products (the “ GoTo Business ”) in a Reverse Morris Trust transaction.
Immediately prior to the Merger (as defined below) and pursuant to a Separation and Distribution Agreement, dated as of July 26, 2016, among the Company, Citrix and GetGo (the “ Separation Agreement ”), Citrix will, among other things, transfer the GoTo Business to GetGo and its subsidiaries (the “ Reorganization ”) and, thereafter, will distribute (the “ Distribution ”) to the Citrix common stockholders all of the issued and outstanding shares of common stock, par value $0.01 per share, of GetGo (the “ GetGo Common Stock ”), as further described below.
Immediately following the Distribution, in accordance with and subject to the terms and conditions of the Merger Agreement, Merger Sub will merge with and into GetGo (the “ Merger ”), with GetGo continuing as the surviving company in the Merger and as a wholly owned subsidiary of the Company.
Upon consummation of the transactions contemplated by the Merger Agreement, each share of GetGo Common Stock outstanding will automatically be converted into one share of common stock, par value $0.01 per share, of the Company (the “ Company Common Stock ”) such that former holders of GetGo Common Stock will own 50.1% of the issued and outstanding Company Common Stock on a fully diluted basis following the Merger in the aggregate, and the existing holders of Company Common Stock will own the remaining 49.9% of the issued and outstanding Company Common Stock on a fully diluted basis following the Merger in the aggregate.
Separation Agreement
The Separation Agreement governs the rights and obligations of Citrix and GetGo regarding the Reorganization, and provides, among other things, for the transfer by Citrix to GetGo of certain assets, and the assumption by GetGo of certain liabilities, related to the GoTo Business. The Separation Agreement also governs the rights and obligations of Citrix and GetGo regarding the Distribution. At Citrix’s election, the Distribution may be effected by means of a pro-rata distribution of GetGo Common Stock to Citrix’s stockholders or through an exchange offer of currently issued and outstanding shares of common stock of Citrix for GetGo Common Stock, which would be followed by a pro rata, clean-up distribution of any unsubscribed shares.
The Separation Agreement also sets forth other agreements between Citrix, GetGo and the Company related to the Distribution, including provisions concerning the termination and settlement of intercompany accounts and obtaining of necessary governmental approvals and third-party consents. The Separation Agreement also sets forth agreements that govern certain aspects of the relationship between Citrix, GetGo and the Company after the Distribution, including provisions with respect to release of claims, indemnification, insurance, access to financial and other information and access to and provision of records. The parties have mutual ongoing indemnification obligations following the Distribution with respect to losses related to the GoTo Business and Citrix business, respectively.
Consummation of the Distribution is subject to the satisfaction or waiver of all conditions under the Merger Agreement.
Agreement and Plan of Merger
The Merger Agreement provides that, immediately following the consummation of the Distribution, Merger Sub will merge with and into GetGo, with GetGo surviving the Merger as a wholly owned subsidiary of the Company. The combination will result in equity holders of Citrix receiving an aggregate of approximately 27.6 million shares of Company Common Stock, valued at approximately $1.8 billion based on the Company’s closing stock price of $65.31 on July 25, 2016.

The Merger Agreement provides that, in connection with the Merger, the Company’s Board of Directors will be comprised of nine members, and that four persons selected by Citrix and satisfactory to the Company will be appointed to Company’s Board of Directors.
The Merger Agreement contains customary representations and warranties made by each of Citrix, the Company and Merger Sub. Citrix and the Company have also agreed to various covenants in the Merger Agreement, including, among other things, covenants (i) to conduct their respective material operations in the ordinary course of business consistent with past practice, (ii) not to take certain actions prior to the closing of the Merger without the prior consent of the other, (iii) with respect to Citrix and its affiliates only, not to compete with the GoTo Business for a period of three years after the closing of the Transaction and (iv) not to solicit employees of the other party for a period of two years after the closing of the Merger.
In addition, the Company has agreed (i) to cause a stockholder meeting to be held for the purpose of voting upon the issuance of shares of Company Common Stock pursuant to the Merger (the “ Stock Issuance ”), (ii) not to solicit alternative transactions and (iii) subject to certain exceptions, to recommend that the Company’s stockholders vote in favor of the Stock Issuance and not to engage in any negotiations or discussions relating to any alternative transactions.
Consummation of the Merger is subject to various conditions, including, among others, (i) the Reorganization and the Distribution having taken place in accordance with the Separation Agreement; (ii) the effectiveness of the Company’s registration statement registering the Company Common Stock to be issued pursuant to the Merger Agreement, and any other required Registration Statement (as defined in the Merger Agreement); (iii) approval of the Stock Issuance by the requisite vote of the Company’s stockholders; (iv) expiration of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and approval by the Competition and Markets Authority in the United Kingdom; (v) consent of the Federal Communications Commission and certain other state communications authorities; and (vi) receipt of opinions of counsel with respect to the tax-free nature of the proposed transaction. The parties have agreed to use their respective reasonable best efforts to obtain all necessary regulatory approvals for the Merger. The obligation of each party to consummate the Merger is also conditioned upon the other party’s representations and warranties being true and correct (subject to certain materiality exceptions) and the other party having performed in all material respects its obligations under the Merger Agreement.
The Merger Agreement provides for certain mutual termination rights of the Company and Citrix, including the right of either party to terminate the Merger Agreement: (i) if the Merger is not consummated prior to July 26, 2017, which date may be extended to October 26, 2017 by either party under certain circumstances (the “ Outside Date ”); (ii) if a Governmental Order (as defined in the Merger Agreement) permanently enjoining the consummation of the Merger shall have been issued; (iii) if the approval of the Stock Issuance has not been obtained at a duly convened meeting of the Company’s stockholders held therefor; or (iv) in the event that the other party breaches any of its representations, warranties, covenants or other agreements in the Merger Agreement (and, in the case of Citrix, in the Separation Agreement) such that certain closing conditions are not able to be satisfied, and such breach is not cured within 30 days of notice of such breach by the other party.
In addition, Citrix may terminate the Merger Agreement (i) if the Company’s board of directors has changed its recommendation that the Company’s stockholders approve the Stock Issuance (provided that such termination must be elected by Citrix within 30 days of receiving notice from the Company of a change in recommendation if such change is in connection with a Competing Parent Transaction (as defined in the Merger Agreement); (ii) if the Company fails to include the recommendation of the Company’s board of directors that the Company’s stockholders approve the Stock Issuance in the proxy statement; (iii) if the Company has failed to convene a meeting of the Company’s stockholders for the purpose of voting on the Stock Issuance at least 60 days prior to the termination date or (iv) if the Company fails to comply in all material respects with certain obligations with respect to not soliciting competing proposals.
If the Merger Agreement is terminated by Citrix pursuant to clauses (i), (ii), (iii) or (iv) in the preceding paragraph, then the Company is obligated to pay Citrix a fee equal to $62 million (the “ Termination Fee ”). Further, (a) if the Merger Agreement is terminated (i) by Citrix or the Company if the Company’s stockholders do not approve the Stock Issuance, (ii) by Citrix or the Company if the Merger Agreement is not consummated by the applicable

Outside Date or (iii) by Citrix if the Company has committed an uncured or incurable breach of the Merger Agreement that would cause any of the conditions to the closing of the transaction not to be satisfied, (b) prior to such termination but after the date of the Merger Agreement a Competing Parent Transaction (as defined in the Merger Agreement) has been publicly announced (and not publicly withdrawn) or otherwise communicated to the Company’s Board of Directors or management (and not withdrawn) and (c) within 12 months after the date of such termination, the Company enters into an agreement contemplating such Competing Parent Transaction (regardless of whether such Competing Parent Transaction is ultimately consummated) or the Company enters into an agreement contemplating any other Competing Parent Transaction and such other Competing Parent Transaction is ultimately consummated, then the Company shall also be obligated to pay the Termination Fee to Citrix. In addition, the Merger Agreement provides that the Company will reimburse Citrix’s and GetGo’s expenses in an amount up to $10 million if the Merger Agreement is terminated by either party because the Company’s stockholders do not vote to approve the Stock Issuance (which amounts will be deducted from the Termination Fee if the Termination Fee later becomes payable).
Tax Matters Agreement
In connection with the transactions contemplated by the Merger Agreement, on July 26, 2016, Citrix, the Company and GetGo also entered into the Tax Matters Agreement. The Tax Matters Agreement will govern the respective rights, responsibilities, and obligations of Citrix and the Company after the Distribution and the Merger with respect to tax liabilities and benefits, tax attributes, tax contests and other matters regarding income taxes, other taxes and related tax returns. In general, Citrix will be responsible for all taxes of GetGo for periods before the Distribution, and the Company will be responsible for all taxes of GetGo for periods after the Distribution.
Different rules apply to any tax liability arising as a result of the Distribution and certain related transactions. While those transactions are intended to be tax-free, significant tax liability could arise if they are not. The Tax Matters Agreement allocates this tax liability between Citrix and the Company. In general, the Company is liable for all or a portion of any resulting taxes if the Distribution is taxable as a result of any action or failure to act by the Company that affects the tax-free status of the Distribution. Citrix is liable in all other cases.
Certain additional agreements will be entered into in connection with the transactions contemplated by the Merger Agreement and the Separation Agreement, including, among others:
 
•	 	a License Agreement, among Citrix, GetGo and the Company, pursuant to which (i) Citrix will grant GetGo a non-exclusive license to certain intellectual property owned by Citrix and its subsidiaries and related to the GetGo business and (ii) GetGo will grant Citrix a non-exclusive license to certain intellectual property owned by GetGo and its subsidiaries;	
•	 	an Employee Matters Agreement among the Company, GetGo and Citrix, which will govern, among other things, Citrix, GetGo and the Company’s obligations with respect to current and former employees of the GoTo Business;	
•	 	a Transition Services Agreement between Citrix and GetGo, pursuant to which each party will, on a transitional basis, provide the other party with certain support services and other assistance after the Distribution and Merger; and	
•	 	a Loan Agreement between the Company and Citrix, pursuant to which Citrix will provide the Company with a line of credit of financing of up to $25 million for the two-year period following the consummation of the transaction.	
The foregoing descriptions of the Separation Agreement, Merger Agreement and Tax Matters Agreement and the transactions contemplated thereby do not purport to be complete and are qualified in their entirety by reference to such agreements which are filed as Exhibit 2.1, Exhibit 2.2 and Exhibit 2.3 hereto and are incorporated herein by reference.
The Separation Agreement, Merger Agreement, Tax Matters Agreement and the above descriptions of the transaction documents have been included to provide investors and security holders with information regarding the terms thereof. They are not intended to provide any other factual information about the Company, Lithium Merger Sub, Citrix, GetGo, their respective subsidiaries and affiliates, or the GoTo Business. The Merger Agreement contains representations and warranties of the Company, Merger Sub and Citrix. The assertions embodied in those representations and warranties are qualified by information in confidential disclosure letters that the parties have exchanged in connection with signing the Merger Agreement as of a specific date. Moreover, the representations and warranties in the Merger Agreement were made solely for the benefit of the other parties to the Merger Agreement and were used for the purpose of allocating risk among the respective parties. Therefore, investors and security holders should not treat them as categorical statements of fact. Moreover, these representations and warranties may apply standards of materiality in a way that is different from what may be material to investors and were made only as of the date of the Merger Agreement or such other date or dates as may be specified in the Merger Agreement and are subject to more recent developments. Accordingly, investors and security holders should read the representations and warranties in the Merger Agreement not in isolation but only in conjunction with the other information about the Company, Citrix and their subsidiaries that the respective companies include in reports and statements they file with the Securities and Exchange Commission.
Voting Agreement
Simultaneously with and as a condition to the execution of the Merger Agreement, Citrix entered into a voting agreement (the “ Voting Agreement ”) with Michael Simon, the Chairman of the Company’s Board of Directors and former Chief Executive Officer of the Company. Mr. Simon is the beneficial owner of more than 3% of the

currently outstanding Company Common Stock. Pursuant to the Voting Agreement, Mr. Simon has agreed, among other things, to vote his shares in favor of the Stock Issuance.
 
Item 5.03	Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year	
On July 26, 2016, the Board of Directors of the Company approved an amendment (the “ Bylaw Amendment ”) to the Second Amended and Restated Bylaws of the Company (the “ Bylaws ”), which became effective immediately. The Bylaw Amendment added a new Article VII to the Bylaws which provides that, unless the Company consents in writing to the selection of an alternative forum, the sole and exclusive forum for certain legal actions involving the Company will be a state or federal court located within the State of Delaware. The foregoing description of the changes made in the Bylaws is qualified in its entirety by reference to the full text of the Bylaw Amendment, a copy of which was previously filed as Exhibit 3.1 to the Original 8-K and incorporated herein by reference.
 
Item 7.01	Regulation FD Disclosure	
On July 26, 2016, the Company also announced that its Board of Directors has declared a cash dividend of $0.50 per share of common stock. The dividend is payable to the Company’s shareholders of record as of August 8, 2016, and is expected to be paid on August 26, 2016. Although the Company has not adopted any plan or policy relating to paying dividends, the Company further announced that it intends to declare and pay two additional cash dividends, as permitted by the Merger Agreement. One dividend is expected to be declared and paid prior to the consummation of the transaction and the other dividend is expected to be declared and paid in connection with the consummations of the transaction, subject to the Merger Agreement being in effect and the consummation of the transactions contemplated thereby.
On July 26, 2016, the Company and Citrix jointly issued a press release in connection with the Merger. A copy of the press release was previously filed as Exhibit 99.1 to the Original 8-K and is incorporated by reference herein.
On July 26, 2016, the Company posted on its website, www.logmein.com, under “Investor Relations Home — Presentations & Events,” an investor presentation (the “ Investor Presentation ”), that includes, among other matters, information related to the transactions described above. A copy of the Investor Presentation posted by the Company was previously furnished as Exhibit 99.2 to the Original 8-K and is incorporated into this Item 7.01 by reference.
 
Item 9.01	Financial Statements and Exhibits	
 
(d)	Exhibits	

		
2.1	  	Agreement and Plan of Merger, dated as of July 26, 2016, by and among Citrix, the Company, GetGo and Merger Sub*	
		
2.2	  	Separation and Distribution Agreement, dated as of July 26, 2016, by and among Citrix, GetGo and the Company*	
		
2.3	  	Tax Matters Agreement, dated as of July 26, 2016, by and among Citrix, GetGo and the Company*	
		
3.1#	  	Amendment to Second Amended and Restated Bylaws of the Company	
		
99.1†	  	Press Release, dated July 26, 2016, jointly issued by LogMeIn, Inc. and Citrix Systems, Inc.	
		
99.2†	  	Investor Presentation, July 26, 2016	

*	Schedules (or similar attachments) have been omitted pursuant to Item 601(b)(2) of Regulation S-K and will be supplementally provided to the Securities and Exchange Commission upon request.	
†	Previously furnished with Original 8-K	
#	Previously filed.	
Cautionary Language Concerning Forward-Looking Statements
Information set forth in this filing constitutes forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These estimates and statements are subject to risks and uncertainties, and actual results might differ materially. Such estimates and statements include, but are not limited to, statements about the benefits of the proposed merger, including future financial and operating results, the combined company’s plans, objectives, expectations and intentions, the Company’s intention to declare future dividends and other statements that are not historical facts. Such statements are based upon the current beliefs and expectations of the management of the Company, GetGo and Citrix and are subject to significant risks and uncertainties outside of the Company’s control.
Among the risks and uncertainties that could cause actual results to differ from those described in the forward-looking statements are the following: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement, (2) the risk that the Company’s stockholders may not approve the issuance of the Company common stock in connection with the proposed merger, (3) the risk that the necessary regulatory approvals may not be obtained or may be obtained subject to conditions that are not anticipated, (4) risks that any of the closing conditions to the proposed merger, including Citrix’s distribution of the shares of GetGo, may

not be satisfied in a timely manner, (5) risks related to disruption of management time from ongoing business operations due to the proposed transactions, (6) failure to realize the estimated synergies or growth from the proposed transactions or that such benefits may take longer to realize than expected, (7) risks related to unanticipated costs of integration of GetGo by the Company, (8) the effect of the announcement of the proposed transactions or the consummation of the proposed transactions on the ability of the Company and Citrix to retain and hire key personnel and maintain relationships with their key business partners and customers, and on their operating results and businesses generally, (9) the length of time necessary to consummate the proposed transactions, (10) adverse trends in economic conditions generally or in the industries in which the Company and Citrix operate, (11) adverse changes to, or interruptions in, relationships with third parties unrelated to the announcement, (12) the Company’s ability to compete effectively and successfully and to add new products and services, (13) the Company’s ability to successfully manage and integrate acquisitions, (14) the ability to attract new customers and retain existing customers in the manner anticipated, (15) unanticipated changes relating to competitive factors in the parties’ industries, and (16) the business interruptions in connection with the Company’s technology systems. Discussions of additional risks and uncertainties are contained in the Company’s, Citrix’s and GetGo’s filings with the U.S. Securities and Exchange Commission (the “SEC”). None of the Company Citrix or GetGo is under any obligation, and each expressly disclaim any obligation, to update, alter, or otherwise revise any forward-looking statements, whether written or oral, that may be made from time to time, whether as a result of new information, future events, or otherwise. Persons reading this announcement are cautioned not to place undue reliance on these forward-looking statements which speak only as of the date hereof.
No Offer or Solicitation
This filing is not intended to and does not constitute an offer to sell or the solicitation of an offer to subscribe for or buy or an invitation to purchase or subscribe for any securities or the solicitation of any vote in any jurisdiction pursuant to the proposed transactions or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended. Subject to certain exceptions to be approved by the relevant regulators or certain facts to be ascertained, the public offer will not be made directly or indirectly, in or into any jurisdiction where to do so would constitute a violation of the laws of such jurisdiction, or by use of the mails or by any means or instrumentality (including without limitation, facsimile transmission, telephone and the internet) of interstate or foreign commerce, or any facility of a national securities exchange, of any such jurisdiction.
Important Additional Information Will be Filed with the SEC
In connection with the proposed transaction, the Company and GetGo intend to file registration statements with the SEC. The Company will also file a proxy statement. Citrix stockholders are urged to read the prospectus and/or information statement that will be included in the registration statements and any other relevant documents when they become available, and the Company’s stockholders are urged to read the proxy statement and any other relevant documents when they become available, because they will contain important information about the Company, GetGo, Citrix and the proposed transactions. The proxy statement, prospectus and/or information statement and other documents relating to the proposed transactions (when they become available) can also be obtained free of charge from the SEC’s website at www.sec.gov. The proxy statement, prospectus and/or information statement and other documents (when they are available) can also be obtained free of charge from Citrix upon written request to, Investor Relations, 851 Cypress Creek Road, Fort Lauderdale, FL 33309, or by calling (954) 229-5758 or upon written request to LogMeIn, Investor Relations, 320 Summer Street, Boston, MA 02210 or by calling (781) 897-0694.
Participants in the Solicitation
This communication is not a solicitation of a proxy from any security holder of the Company. However, the Company, Citrix and certain of their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from stockholders of the Company in connection with the proposed transaction under the rules of the SEC. Information regarding the persons who are, under the rules of the SEC, participants in the solicitation of the stockholders of the Company in connection with the proposed transactions, including a description

of their direct or indirect interests, by security holdings or otherwise, will be set forth in the proxy statement/prospectus when it is filed with the SEC. Information about the directors and executive officers of Citrix may be found in its Annual Report on Form 10-K filed with the SEC on February 18, 2016, and its definitive proxy statement relating to its 2016 Annual Meeting of Shareholders filed with the SEC on April 29, 2016. Information about the directors and executive officers of the Company may be found in its Annual Report on Form 10-K filed with the SEC on February 19, 2016, and its definitive proxy statement relating to its 2016 Annual Meeting of Stockholders filed with the SEC on April 8, 2016.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	 		 	LOGMEIN, INC.	
				
Date: July 28, 2016	 		 	By:	 	/s/ Michael J. Donahue	
	 		 		 	Name: Michael J. Donahue
Title: Senior Vice President, General Counsel and Secretary	

LOGMEIN, INC.
Exhibit Index

Exhibit
Number	  	Description of Exhibit	
		
2.1	  	Agreement and Plan of Merger, dated as of July 26, 2016, by and among Citrix, the Company, GetGo and Merger Sub*	
		
2.2	  	Separation and Distribution Agreement, dated as of July 26, 2016, by and among Citrix, GetGo and the Company*	
		
2.3	  	Tax Matters Agreement, dated as of July 26, 2016, by and among Citrix, GetGo and the Company*	
		
3.1#	  	Amendment to Second Amended and Restated Bylaws of the Company	
		
99.1†	  	Press Release, dated July 26, 2016, jointly issued by LogMeIn, Inc. and Citrix Systems, Inc.	
		
99.2†	  	Investor Presentation, July 26, 2016	

*	Schedules (or similar attachments) have been omitted pursuant to Item 601(b)(2) of Regulation S-K and will be supplementally provided to the Securities and Exchange Commission upon request.	
†	Previously furnished with Original 8-K	
#	Previously filed.	

Exhibit 2.1
Execution Version

AGREEMENT AND PLAN OF MERGER

among
CITRIX SYSTEMS, INC.,
GETGO, INC.,
LOGMEIN, INC.
and
LITHIUM MERGER SUB, INC.
Dated as of July 26, 2016

Table of Contents

 	  	Page	 	
	
ARTICLE I	  	
DEFINED TERMS	  	
			
Section 1.01	 	Certain Defined Terms	  	 	2	  	
			
Section 1.02	 	Other Defined Terms	  	 	14	  	
			
Section 1.03	 	Interpretation and Rules of Construction	  	 	16	  	
	
ARTICLE II	  	
THE MERGER	  	
			
Section 2.01	 	The Merger	  	 	17	  	
			
Section 2.02	 	Closing; Effective Time	  	 	17	  	
			
Section 2.03	 	Effect of the Merger	  	 	18	  	
			
Section 2.04	 	Effect on Capital Stock	  	 	18	  	
			
Section 2.05	 	Certificate of Incorporation; Bylaws	  	 	19	  	
			
Section 2.06	 	Directors and Officers of the Surviving Corporation	  	 	19	  	
			
Section 2.07	 	Board of Directors and Management of Parent	  	 	19	  	
	
ARTICLE III	  	
DELIVERY OF MERGER CONSIDERATION	  	
			
Section 3.01	 	Exchange Fund	  	 	20	  	
			
Section 3.02	 	Stock Transfer Books	  	 	22	  	
			
Section 3.03	 	No Appraisal Rights	  	 	22	  	
			
Section 3.04	 	Citrix Equity Awards	  	 	22	  	
			
Section 3.05	 	Determination of Net Adjustment	  	 	23	  	
	
ARTICLE IV	  	
REPRESENTATIONS AND WARRANTIES OF CITRIX	  	
			
Section 4.01	 	Organization and Qualification	  	 	25	  	
			
Section 4.02	 	Capital Structure of SpinCo	  	 	25	  	
			
Section 4.03	 	Transferred Subsidiaries	  	 	26	  	
			
Section 4.04	 	No Conflict; Board and Stockholder Approval	  	 	27	  	
			
Section 4.05	 	Governmental Consents and Approvals	  	 	27	  	
			
Section 4.06	 	Financial Information	  	 	28	  	
			
Section 4.07	 	Absence of Changes	  	 	28	  	
			
Section 4.08	 	Litigation	  	 	29	  	
			
Section 4.09	 	Registration Statement	  	 	29	  	
			
Section 4.10	 	Compliance with Laws	  	 	29	  	
			
Section 4.11	 	Intellectual Property; IT; Data Security	  	 	30	  	
			
Section 4.12	 	Real Property	  	 	32	  	
			
Section 4.13	 	Employee Benefit Matters	  	 	33	  	
			
Section 4.14	 	Labor Matters	  	 	34	  	
			
Section 4.15	 	Taxes	  	 	34	  	

							
			
Section 4.16	 	SpinCo Material Contracts	  	 	35	  	
			
Section 4.17	 	Environmental Matters	  	 	37	  	
			
Section 4.18	 	Sufficiency of Assets; Title	  	 	37	  	
			
Section 4.19	 	Brokers	  	 	37	  	
			
Section 4.20	 	Disclaimer of Citrix and SpinCo	  	 	38	  	
	
ARTICLE V	  	
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB	  	
			
Section 5.01	 	Organization and Qualification; Subsidiaries	  	 	39	  	
			
Section 5.02	 	Capitalization	  	 	40	  	
			
Section 5.03	 	No Conflict; Board and Stockholder Approval	  	 	40	  	
			
Section 5.04	 	Governmental Consents and Approvals	  	 	41	  	
			
Section 5.05	 	SEC Filings; Financial Information	  	 	41	  	
			
Section 5.06	 	Absence of Changes	  	 	42	  	
			
Section 5.07	 	Litigation	  	 	42	  	
			
Section 5.08	 	Registration Statement	  	 	42	  	
			
Section 5.09	 	Compliance with Laws	  	 	43	  	
			
Section 5.10	 	Intellectual Property; IT; Data Security	  	 	43	  	
			
Section 5.11	 	Real Property	  	 	45	  	
			
Section 5.12	 	Employee Benefit Matters	  	 	46	  	
			
Section 5.13	 	Labor Matters	  	 	46	  	
			
Section 5.14	 	Taxes	  	 	47	  	
			
Section 5.15	 	Parent Material Contracts	  	 	48	  	
			
Section 5.16	 	Environmental Matters	  	 	50	  	
			
Section 5.17	 	No Shareholder Rights Plan; No Antitakeover Law	  	 	50	  	
			
Section 5.18	 	Opinion of Financial Advisor	  	 	50	  	
			
Section 5.19	 	Brokers	  	 	50	  	
			
Section 5.20	 	Disclaimer of Parent and Merger Sub	  	 	50	  	
	
ARTICLE VI	  	
CONDUCT OF BUSINESS PENDING THE MERGER	  	
			
Section 6.01	 	Conduct of SpinCo Business Pending the Merger	  	 	51	  	
			
Section 6.02	 	Conduct of Parent Business Pending the Merger	  	 	53	  	
	
ARTICLE VII	  	
ADDITIONAL AGREEMENTS	  	
			
Section 7.01	 	Registration Statements; Proxy Statement; Schedule TO	  	 	56	  	
			
Section 7.02	 	Parent Stockholders’ Meeting	  	 	57	  	
			
Section 7.03	 	No Solicitation of Transactions	  	 	57	  	
			
Section 7.04	 	Access to Information	  	 	60	  	
			
Section 7.05	 	Directors’ and Officers’ Indemnification	  	 	61	  	
			
Section 7.06	 	Regulatory and Other Authorizations; Notices and Consents	  	 	61	  	
			
Section 7.07	 	Tax Matters	  	 	63	  	
 
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Section 7.08	 	Control of Other Party’s Business	  	 	64	  	
			
Section 7.09	 	Listing of Shares of Parent Common Stock	  	 	64	  	
			
Section 7.10	 	Section 16 Matters	  	 	64	  	
			
Section 7.11	 	Confidentiality	  	 	65	  	
			
Section 7.12	 	Further Actions	  	 	65	  	
			
Section 7.13	 	Employee Non-Solicitation; Non-Competition	  	 	65	  	
			
Section 7.14	 	Employee Benefits Matters	  	 	66	  	
			
Section 7.15	 	Takeover Statutes	  	 	67	  	
			
Section 7.16	 	Defense of Litigation	  	 	67	  	
			
Section 7.17	 	SpinCo Authorized Shares	  	 	68	  	
	
ARTICLE VIII	  	
CONDITIONS TO THE MERGER	  	
			
Section 8.01	 	Conditions to the Obligations of Each Party	  	 	68	  	
			
Section 8.02	 	Conditions to the Obligations of Parent and Merger Sub	  	 	68	  	
			
Section 8.03	 	Conditions to the Obligations of Citrix and SpinCo	  	 	69	  	
	
ARTICLE IX	  	
TERMINATION	  	
			
Section 9.01	 	Termination	  	 	70	  	
			
Section 9.02	 	Effect of Termination	  	 	71	  	
			
Section 9.03	 	Fees and Expenses	  	 	71	  	
	
ARTICLE X	  	
GENERAL PROVISIONS	  	
			
Section 10.01	 	Non-Survival of Representations, Warranties, Covenants and Agreements	  	 	72	  	
			
Section 10.02	 	Notices	  	 	72	  	
			
Section 10.03	 	Public Announcements	  	 	73	  	
			
Section 10.04	 	Severability	  	 	73	  	
			
Section 10.05	 	Entire Agreement	  	 	73	  	
			
Section 10.06	 	Assignment	  	 	73	  	
			
Section 10.07	 	Amendment	  	 	73	  	
			
Section 10.08	 	Waiver	  	 	73	  	
			
Section 10.09	 	No Third-Party Beneficiaries	  	 	74	  	
			
Section 10.10	 	Specific Performance	  	 	74	  	
			
Section 10.11	 	Governing Law	  	 	74	  	
			
Section 10.12	 	Waiver of Jury Trial	  	 	74	  	
			
Section 10.13	 	Counterparts	  	 	75	  	
			
Section 10.14	 	Interpretation	  	 	75	  	
 
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ANNEXES

A	  	Term Sheet for Loan Agreement	
B	  	Form of Certificate of Incorporation of Surviving Corporation	
C	  	Form of Bylaws of Surviving Corporation	
D	  	Form of Cooperation Agreement	
 
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER , dated as of July 26, 2016, among Citrix Systems, Inc., a Delaware corporation (“ Citrix ”), GetGo, Inc., a Delaware corporation and wholly-owned subsidiary of Citrix (“ SpinCo ”), LogMeIn, Inc., a Delaware corporation (“ Parent ”), and Lithium Merger Sub, Inc., a Delaware corporation and direct wholly-owned subsidiary of Parent (“ Merger Sub ”).
WHEREAS , Citrix, directly and indirectly, is engaged in the SpinCo Business and its other businesses;
WHEREAS , SpinCo is a recently-formed, wholly-owned direct subsidiary of Citrix;
WHEREAS , on or prior to the Closing Date, Citrix will complete the reorganization of the SpinCo Business, and following the reorganization of the SpinCo Business and prior to the Effective Time, and upon the terms and conditions set forth in the Separation Agreement, Citrix will either (a) distribute, without consideration, all of the then outstanding shares of SpinCo’s common stock, $0.01 par value per share (“ SpinCo Common Stock ”), to holders of Citrix’s common stock, $0.001 par value per share (“ Citrix Common Stock ”), by way of a pro rata dividend (the “ One-Step Spin-Off ”), or (b) consummate an offer to exchange shares of SpinCo Common Stock, for currently issued and outstanding shares of Citrix Common Stock (such offer to exchange shares, the “ Exchange Offer ”) and, in the event that Citrix stockholders subscribe for less than all of the shares of SpinCo Common Stock in the Exchange Offer, distribute, without consideration and pro rata to holders of Citrix Common Stock, any unsubscribed SpinCo Common Stock on the Distribution Date immediately following the consummation of the Exchange Offer so that Citrix may be treated for U.S. federal income Tax purposes as having distributed all of the SpinCo Common Stock to its stockholders (the “ Clean-Up Spin-Off ”);
WHEREAS , the disposition by Citrix of the SpinCo Common Stock to Citrix stockholders, whether by way of the One-Step Spin-Off or the Exchange Offer (followed by any Clean-Up Spin-Off, if necessary), is referred to as the “ Distribution ”;
WHEREAS , at the Effective Time, the parties hereto will effect the merger of Merger Sub with and into SpinCo (the “ Merger ”), with SpinCo continuing as the surviving corporation, all upon the terms and subject to the conditions set forth herein;
WHEREAS , the parties hereto intend that, for U.S. federal income Tax purposes, (a) the contribution (as part of the Separation) by Citrix of all of its ownership interests in the SpinCo Assets to SpinCo in exchange for additional SpinCo Common Stock and SpinCo’s assumption of the SpinCo Liabilities (the “ Contribution ”) and the Distribution, taken together, will qualify as a “reorganization” within the meaning of Section 368(a)(1)(D) of the Code and that each of Citrix and SpinCo will be a “party to a reorganization” within the meaning of Section 368(b) of the Code, (b) the Distribution, as such, will qualify as a distribution of the SpinCo Common Stock to Citrix’s stockholders pursuant to Section 355 of the Code and as a transaction in which the stock distributed thereby is “qualified property” for purposes of Sections 355(d), 355(e) and 361(c) of the Code, (c) the Merger will not cause Section 355(e) of the Code to apply to the Distribution, and (d) the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and that each of Parent, Merger Sub and SpinCo will be a “party to a reorganization” within the meaning of Section 368(b) of the Code;
WHEREAS , the parties hereto intend this Agreement to be, and hereby adopt this Agreement as, a “plan of reorganization” within the meaning of Treasury Regulations sections 1.368-2(g) and 1.368-3;
WHEREAS , the Board of Directors of Parent (the “ Parent Board ”) (a) has determined that the Merger and this Agreement are advisable and has approved this Agreement and the transactions contemplated hereby, including the Merger and the Parent Share Issuance, and will approve the Parent Charter Amendment as contemplated by this Agreement; and (b) has recommended the approval by the stockholders of Parent of the Parent Share Issuance and will recommend the approval by the stockholders of Parent of the Parent Charter Amendment;
WHEREAS , the Board of Directors of Merger Sub has determined that the Merger and this Agreement are advisable and has approved this Agreement and the transactions contemplated hereby, including the Merger;

WHEREAS , the Board of Directors of SpinCo (the “ SpinCo Board ”) has determined that the Merger and this Agreement are advisable and has approved this Agreement and the transactions contemplated hereby, including the Merger;
WHEREAS , the Board of Directors of Citrix (the “ Citrix Board ”) has approved this Agreement and the transactions contemplated hereby, including the Merger; and
WHEREAS , as a condition and inducement to Citrix and SpinCo entering into this Agreement, Citrix and a stockholder of Parent have entered into a Voting Agreement pursuant to which such stockholder of Parent has agreed to vote all shares of Parent Common Stock directly or indirectly held by such stockholder in favor of the Parent Share Issuance and the Parent Charter Amendment.
NOW, THEREFORE , in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.01 Certain Defined Terms . For purposes of this Agreement:
“ Acceptable Confidentiality Agreement ” means an executed confidentiality agreement between Parent and a Person who has made a proposal satisfying the requirements of  Section 7.03(c)  on terms no less favorable in the aggregate to Parent than those contained in the Confidentiality Agreement.
“ Action ” means any demand, action, claim, suit, countersuit, arbitration, inquiry, subpoena, case, litigation, proceeding or investigation (whether civil, criminal, administrative or investigative) by or before any court or grand jury, any Governmental Authority or any arbitration or mediation tribunal.
“ Adjustment Ratio ” means the quotient obtained by dividing the Citrix Stock Value by the Parent Stock Value.
“ Affiliate ” means, when used with respect to a specified Person and at a point in, or during a period of, time, a Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified Person at such point in or during such period of time. It is expressly agreed that neither Citrix nor SpinCo, nor any member of their respective Groups (as defined in the Separation Agreement), shall be deemed to be an Affiliate of the other or a member of such other party’s Group solely by reason of having common stockholders or one or more directors in common or by reason of having been under the common control of Citrix prior to the Distribution.
“ Agreement ” means this Agreement and Plan of Merger among the parties hereto, including all annexes, exhibits and schedules (including the Disclosure Letters), and all amendments hereto made in accordance with the provisions of  Section 10.07 .
“ Ancillary Agreements ” has the meaning set forth in the Separation Agreement.
“ beneficial owner ” has the meaning ascribed to such term under Rule 13d-3 of the Exchange Act.
“ Business Day ” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in the City of New York.
“ Citrix Disclosure Letter ” means the confidential disclosure letter delivered by Citrix to Parent immediately prior to the execution of this Agreement.
“ Citrix Entity ” means Citrix or any of its Subsidiaries.
“ Citrix RSUs ” means restricted stock units payable in shares of Citrix Common Stock or whose value is determined with reference to the value of shares of Citrix Common Stock.
 
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“ Citrix SEC Documents ” means all forms, reports, statements, schedules and other documents filed by Citrix with, or furnished by Citrix to, the SEC since January 1, 2013.
“ Citrix Stock Awards ” means Citrix Stock Options, Citrix RSUs, and any other equity or equity-based awards granted pursuant to the Citrix Stock Plan.
“ Citrix Stock Options ” means options to acquire shares of Citrix Common Stock from Citrix.
“ Citrix Stock Plan ” means Citrix’s 2014 Equity Incentive Plan, as amended.
“ Citrix Stock Value ” means the volume-weighted average per-share trading price of Citrix Common Stock, trading regular way with due bills, on the five trading days immediately prior to the date upon which the Effective Time occurs, as reported on Bloomberg.
“ Closing Date ” means the date on which the Closing occurs.
“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.
“ Communications Act ” means the Communications Act of 1934, as amended, together with the written orders, policies and decisions of the FCC.
“ Communications Licenses ” means any licenses, permits, certificates, waivers, amendments, consents, exemptions, other actions by, and notices, filings, registrations, qualifications, declarations and designations with, and other authorizations and approvals issued by or obtained from the FCC to any Transferred Subsidiary.
“ Competing Parent Transaction ” means any transaction or series of related transactions (other than the Merger) that constitutes, or is reasonably likely to lead to, (a) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or other similar transaction involving Parent or any of its Subsidiaries, the assets of which constitute or represent more than 15% of the total revenue, operating income or fair market value of the assets of Parent and its Subsidiaries, taken as a whole; (b) any sale, lease, license, transfer or other disposition of, or joint venture involving, assets or businesses that constitute or represent more than 15% of the total revenue, operating income or fair market value of the assets of Parent and its Subsidiaries, taken as a whole; (c) any sale, exchange, transfer or other disposition to any Person of more than 15% of any class of equity securities, or securities convertible into or exchangeable for equity securities, of Parent; (d) any tender offer or exchange offer that, if consummated, would result in any Person becoming the beneficial owner of more than 15% of any class of equity securities of Parent; or (e) any combination of the foregoing.
“ Competing Parent Transaction Agreement ” means a letter of intent, agreement in principle, term sheet, merger agreement, acquisition agreement, option agreement or other contract, commitment or agreement relating to any Competing Parent Transaction (other than an Acceptable Confidentiality Agreement).
“ Competing SpinCo Transaction ” means any transaction or series of related transactions (other than the Merger, the Internal Reorganization and the Separation or as otherwise contemplated by this Agreement, the Separation Agreement or any of the Ancillary Agreements and other than asset sales, licenses and transfers in the ordinary course of business not in violation of Section 6.01 ) that constitutes, or is reasonably likely to lead to, a merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution, sale, lease, license, transfer or other disposition or similar transaction involving the SpinCo Business or a material portion of the SpinCo Assets, taken as a whole. For the avoidance of doubt, a Competing SpinCo Transaction shall not include any other transaction involving any Citrix Entity or the assets or businesses thereof (other than the SpinCo Business).
“ Competing SpinCo Transaction Agreement ” means a letter of intent, agreement in principle, term sheet, merger agreement, acquisition agreement, option agreement or other contract, commitment or agreement relating to any Competing SpinCo Transaction.
“ Competitive Business ” means the business of designing, developing, marketing, selling and supporting cloud-based SaaS services each of which consist of a central processing component (including a communication server, central server or broker) connected to computerized end point devices (including host and client end point
 
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devices and mobile applications) such that all network traffic for such service is routed through the SaaS service provider’s owned or controlled infrastructure and that provide standalone: (a) integrated screen sharing technology, conference calling voice services, video technology and chat used to support online meetings and collaboration; (b) personal computer-based ( i.e. , as an end point device) remote access technology that permits one end point device to stream the contents of its screen to another end point device via an Internet connection; (c) virtual PBX voice services offering phone numbers, VoIP based endpoints, PSTN/VoIP bridging and mobile-based voice communication and text message services; or (d) clientless remote support technology that permits one end point device to stream the contents of its screen to another end point device via an Internet connection giving IT support specialists or call center agents the ability to remotely control a device from another system that can access the Web integrated with a purpose-built set of functionalities geared towards the IT support specialist or call center agents, in each case (meaning for each numbered subpart of this definition) designed, developed, marketed, sold and supported for either individuals, small and medium businesses or small and medium organizational units or functions within larger overall organizations (known as “small in big” segments).
“ Confidential Data ” means information, including Personal Data, in whatever form that a Citrix Entity or a Parent Entity, as the case may be, is obligated, by Law or Contract, to protect from unauthorized access, use, disclosure, modification or destruction together with any data owned or licensed by Citrix Entities or Parent Entities, as the case may be, that is not intentionally shared with the general public or that is classified by the Citrix Entities or Parent Entities, as the case may be, with a designation that precludes sharing with the general public.
“ Contract ” means any written or oral legally binding contract, agreement, understanding, arrangement, subcontract, loan or credit agreement, note, bond, indenture, mortgage, purchase order, deed of trust, lease, sublease, instrument, or other legally binding commitment, obligation or undertaking.
“ control ” (including the terms “ controlled by ” and “ under common control with ”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor, by Contract or otherwise.
“Data” means Confidential Data or Personal Data.
“ DGCL ” means the General Corporation Law of the State of Delaware, as amended.
“ Disclosure Letters ” means the Parent Disclosure Letter and the Citrix Disclosure Letter.
“ Distribution Date ” has the meaning set forth in the Separation Agreement.
“ Distribution Effective Time ” has the meaning set forth in the Separation Agreement.
“ Employee Matters Agreement ” has the meaning set forth in the Separation Agreement.
“ Encumbrance ” means any security interest, pledge, hypothecation, mortgage, lien or encumbrance, covenant, condition, restriction, easement, charge, right of first refusal or first offer, or other restriction on title or transfer of any nature whatsoever.
“ Environmental Law ” means any Law, consent decree or judgment, in each case, relating to (a) pollution or the protection of the environment; or (b) human exposure to any Hazardous Material.
“ Environmental Permit ” means any permit, approval, identification number, registration, exemption or license required pursuant to any applicable Environmental Law.
“ Estimated SpinCo Deferred Revenue Surplus ” means (i) if the Estimated SpinCo Deferred Revenue set forth in the Closing Statement is equal to or greater than the SpinCo Deferred Revenue Target, then zero (0), or (ii) if the Estimated SpinCo Deferred Revenue set forth in the Closing Statement is less than the SpinCo Deferred Revenue Target, then (a) the absolute value of the Estimated SpinCo Deferred Revenue minus (b) $124.0 million. For example and illustrative purposes only, if the Estimated SpinCo Deferred Revenue set forth in the Closing Statement is $(130.0 million) (which is a negative number), then the Estimated SpinCo Deferred Revenue Surplus shall be $6.0 million ( i.e. , $130.0 million minus $124.0 million).
 
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“ Estimated Working Capital Adjustment ” means (i) if the Estimated Working Capital set forth in the Closing Statement is within $3.0 million (plus or minus) of the SpinCo Target Working Capital, then zero (0), or (ii) if the Estimated Working Capital set forth in the Closing Statement is at least $3.0 million more or less than the SpinCo Target Working Capital, then the Estimated Working Capital minus the SpinCo Target Working Capital (which may be a positive or negative number).
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“ Excluded Assets ” has the meaning set forth in the Separation Agreement.
“ Excluded Liabilities ” has the meaning set forth in the Separation Agreement.
“ Expenses ” means all out-of-pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial advisors, experts and consultants) actually incurred or accrued by a party hereto or its Affiliates or on its or their behalf or for which it or they are liable in connection with or related to the authorization, planning, structuring, preparation, drafting, negotiation, execution and performance of the transactions contemplated by this Agreement, the Separation Agreement and the Ancillary Agreements, the preparation, printing, filing and mailing of the Registration Statements, the Proxy Statement and the Schedule TO (as applicable), the solicitation of stockholder approvals, the filing of any required notices under the HSR Act or other similar regulations and all other matters related to the Merger, the Internal Reorganization, the Separation, and the other transactions contemplated by this Agreement, the Separation Agreement and the Ancillary Agreements.
“ FCC ” means the Federal Communications Commission, including any bureau, office or division thereof.
“ FCC Consent ” means a notice or other action by the FCC granting its consent to the transfer of control or assignment of the Communications Licenses of the Transferred Subsidiaries, pursuant to the appropriate applications filed by the parties hereto with the FCC as contemplated by this Agreement.
“ Final Net Adjustment Amount ” means an amount equal to the following (each of which may be a positive or negative number):
(a) the SpinCo Cash Amount as finally determined pursuant to Section 3.05 minus the Estimated Cash Amount set forth in the Closing Statement; plus
(b) the Final Working Capital Adjustment minus the Estimated Working Capital Adjustment set forth in the Closing Statement; minus
(c) the amount of any SpinCo Indebtedness at Closing as finally determined pursuant to Section 3.05 minus the Estimated SpinCo Indebtedness set forth in the Closing Statement, if any; minus
(d) the Final SpinCo Deferred Revenue Surplus minus the Estimated SpinCo Deferred Revenue Surplus.
“ Final SpinCo Deferred Revenue Surplus ” means (i) if the SpinCo Deferred Revenue as finally determined pursuant to Section 3.05 is equal to or greater than the SpinCo Deferred Revenue Target, zero (0), or (ii) if the SpinCo Deferred Revenue as finally determined pursuant to Section 3.05 is less than the SpinCo Deferred Revenue Target, then (a) the absolute value of the SpinCo Deferred Revenue minus (b) $124.0 million.
“ Final Working Capital Adjustment ” means (i) if the SpinCo Working Capital as finally determined pursuant to Section 3.05 is within $3.0 million (plus or minus) of the SpinCo Target Working Capital, then zero (0), or (ii) if the SpinCo Working Capital as finally determined pursuant to Section 3.05 is at least $3.0 million more or less than the SpinCo Target Working Capital, then the SpinCo Working Capital minus the SpinCo Target Working Capital (which may be a positive or negative number).
 
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“ Free or Open Source Software ” means any software (in source or object code form) that is subject to (a) a license or other agreement commonly referred to as an open source, free software, copyleft or community source code license (including any code or library licensed under the GNU General Public License, GNU Lesser General Public License, BSD License, Apache Software License, or any other public source code license arrangement); or (b) any other license or other agreement that requires, as a condition of the use, modification or distribution of software subject to such license or agreement, that such software or other software linked with, called by, combined or distributed with such software be (i) disclosed, distributed, made available, offered, licensed or delivered in source code form, (ii) licensed for the purpose of making derivative works, (iii) licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind, or (iv) redistributable at no charge, including any license defined as an open source license by the Open Source Initiative as set forth on www.opensource.org.
“ GAAP ” means United States generally accepted accounting principles.
“ Governmental Authority ” means any nation or government, any state, municipality or other political subdivision thereof and any entity, body, agency, commission, department, board, bureau, arbitral panel or court, whether domestic, foreign, multinational, or supranational exercising executive, legislative, judicial, regulatory, self-regulatory or administrative functions of or pertaining to government and any executive official thereof.
“ Governmental Order ” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.
“ Hazardous Material ” means (a) petroleum and petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials and polychlorinated biphenyls; and (b) any other chemicals, materials or substances defined or regulated as toxic or hazardous or as a contaminant under any applicable Environmental Law.
“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“Information Privacy Laws” means any Laws or Governmental Orders pertaining to privacy, data protection or data transfer, including all privacy and security breach disclosure Laws that are applicable to the Citrix Entities or the Parent Entities, as the case may be.
“ Initial Net Adjustment Amount ” means an amount equal to the following:
(a) the Estimated Cash Amount set forth in the Closing Statement minus the SpinCo Target Cash Amount (which may be a positive or negative number); plus
(b) the Estimated Working Capital Adjustment; minus
(c) the amount of any Estimated SpinCo Indebtedness; minus
(d) the amount of any Estimated SpinCo Deferred Revenue Surplus.
“ Intellectual Property ” means all intellectual property and intellectual property rights of every kind and description throughout the world, including all U.S. and non-U.S.: (a) trademarks, trade dress, service marks, certification marks, logos, slogans, design rights, names, corporate names, trade names, Internet domain names, URLs, social media accounts and addresses and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (collectively, “ Marks ”); (b) patents and patent applications, and any and all related national or international counterparts thereto, including any divisionals, continuations, continuations-in-part, reissues, reexaminations, substitutions and extensions thereof (collectively, “ Patents ”); (c) copyrights and copyrightable subject matter, including databases, data collections (including knowledge databases, customers lists and customer databases) and rights therein, web site content, rights to compilations, collective works and derivative
 
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works, and the right to create collective and derivative works (collectively, “ Copyrights ”); (d) rights in Software; (e) rights under applicable trade secret law and any and all other confidential or proprietary information, know-how, inventions, processes, formulae, models, and methodologies including research in progress, algorithms, data, databases, data collections, designs, processes, formulae, drawings, schematics, blueprints, flow charts, models, strategies, prototypes, techniques, source code, source code documentation, beta testing procedures and beta testing results (collectively, “ Trade Secrets ”); (f) all applications and registrations, renewals and extensions for the foregoing; and (g) all rights and remedies against past, present, and future infringement, misappropriation or other violation thereof.
“ Intercompany Agreement ” means any Contract between Citrix or any Citrix Retained Entity, on the one hand, and SpinCo or any Transferred Subsidiary, on the other hand.
“ Internal Reorganization ” has the meaning set forth in the Separation Agreement.
“ Intervening Event ” means any event, circumstance, change or effect that (a) occurs or arises after the date of this Agreement and prior to receipt of the Required Parent Stockholder Vote, (b) is material to Parent and its Subsidiaries, taken as a whole, (c) was not known or foreseen, and could not reasonably have been known or foreseen by, the Parent Board as of or prior to the date of this Agreement, (d) does not involve or relate to a Competing Parent Transaction, and (e) does not involve or relate to SpinCo, the Transferred Subsidiaries and/or the SpinCo Business (it being understood and agreed that any events, circumstances, changes or effects involving or relating to SpinCo, the Transferred Subsidiaries and/or the SpinCo Business shall be governed solely by the definition of SpinCo Material Adverse Effect as set forth in this Agreement and the provisions of this Agreement utilizing such definition); provided that none of the following, either alone or in combination, shall be deemed to constitute an “Intervening Event”: (i) events, circumstances, changes or effects affecting general business, economic or political conditions, the industries or segments thereof in which Parent and its Subsidiaries operate, or the financial, credit or securities markets in the United States or in any other country or region in the world; (ii) events, circumstances, changes or effects arising out of, or attributable to, changes (or proposed changes) or modifications in GAAP, other applicable accounting standards or applicable Law or the interpretation or enforcement thereof; (iii) events, circumstances, changes or effects arising out of, or attributable to, the announcement of the execution of, or the consummation of the transactions contemplated by, this Agreement, or the identity of the other parties hereto; (iv) the status of the Merger under the HSR Act or any other antitrust Laws; (v) events, circumstances, changes or effects arising out of, or attributable to, any action taken or omitted to be taken pursuant to this Agreement, the Separation Agreement, the Loan Agreement or any of the Ancillary Agreements; (vi) any potential acquisition or disposition of any other Person or assets by Parent or any of its Subsidiaries; (vii) any change in the price or trading volume of Parent Common Stock; (viii) meeting or exceeding, or failing to meet or exceed, any internal or other estimates, expectations, forecasts, plans, projections or budgets for any period; or (ix) any matter relating to the foregoing or consequences of the foregoing.
“ IP License Agreement ” has the meaning set forth in the Separation Agreement.
“ IRS ” means the U.S. Internal Revenue Service or any successor agency.
“ Knowledge of Citrix ,” “ Citrix’s Knowledge ” or similar terms used in this Agreement mean the actual knowledge, after reasonable inquiry, of the Persons identified on  Schedule   1.01(a)  of the Citrix Disclosure Letter; provided that with respect to matters involving Intellectual Property, knowledge does not require any such Person to conduct or have conducted or obtain or have obtained any freedom to operate opinions or similar opinions of counsel or any Intellectual Property clearance searches, and no knowledge of any third-party Intellectual Property that would have been revealed by such inquiries, opinions or searches will be imputed to such Persons.
“ Knowledge of Parent ,” “ Parent’s Knowledge ” or similar terms used in this Agreement mean the actual knowledge, after reasonable inquiry, of the Persons identified on  Schedule   1.01  of the Parent Disclosure Letter; provided that with respect to matters involving Intellectual Property, knowledge does not require any such Person to conduct or have conducted or obtain or have obtained any freedom to operate opinions or similar opinions of counsel or any Intellectual Property clearance searches, and no knowledge of any third-party Intellectual Property that would have been revealed by such inquiries, opinions or searches will be imputed to such Persons.
 
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“ Law ” means any applicable U.S. or non-U.S. federal, national, supranational, state, provincial, local or similar statute, law, ordinance, regulation, rule, code, income Tax treaty, Governmental Order requirement or rule of law (including common law) or other binding directives promulgated, issued, entered into or taken by any Governmental Authority.
“ Liabilities ” means any and all debts, liabilities and obligations, whether accrued or unaccrued, fixed or variable, known or unknown, absolute or contingent, matured or unmatured or determined or determinable, including those arising under any Law, Action or Governmental Order and those arising under any Contract.
“ Licensed Intellectual Property ” means the Intellectual Property of the Retained Citrix Entities to be licensed to SpinCo pursuant to the IP License Agreement.
“ Loan Agreement ” means a loan agreement to be entered into between Parent and Citrix in connection with the Closing and effective as of the Effective Time, in a form consistent with the terms set forth on the Term Sheet attached hereto as Annex A .
“ Malicious Code ” means any “virus,” “worm,” “time bomb,” “key-lock,” “back door,” “drop dead device,” “Trojan horse,” “spyware,” or “adware” (as such terms are commonly understood in the software industry) or any other code intentionally designed or intended to have, or intended to be capable of performing or facilitating, any of the following functions: (i) disrupting, disabling, harming, or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed, or (ii) compromising the privacy or data security of a user or damaging or destroying any data or file without the user’s consent.
“ Nasdaq ” means the NASDAQ Stock Market LLC.
“ New Parent Stock Plan ” means a new incentive stock plan of Parent to be submitted for approval at the Parent Stockholders’ Meeting or at the next annual meeting of Parent stockholders, the terms and conditions of which are substantially the same as Parent’s Amended and Restated 2009 Stock Incentive Plan, except that the number of shares available for issuance under the plan shall not be greater than 4,500,000, or such greater number as Institutional Shareholder Services, Inc. may approve in a report to Parent.
“ Non-U.S. Parent Employee ” means any Parent Employee who is employed primarily outside (or, in the case of any expatriate Parent Employee, whose home country is outside) the United States.
“ Non-U.S. SpinCo Employee ” means any SpinCo Employee who is employed primarily outside (or, in the case of any expatriate SpinCo Employee, whose home country is outside) the United States.
“ Offshore Cash ” means all cash and cash equivalents held outside the United States that, on the Closing Date, may not be distributed or dividended to a Person in the United States in compliance with Law without the consent of any other Person or without incurring or being assessed any costs, expenses, penalties, Taxes or other amounts in respect of such distribution or dividend.
“ Parent Charter ” means the Restated Certificate of Incorporation of Parent.
“ Parent Charter Amendment ” means an amendment of the Parent Charter to provide for an increase in the authorized shares of Parent Common Stock to an amount not greater than the maximum amount authorized under the voting guidelines of Institutional Shareholder Services, Inc.
“ Parent Common Stock ” means the common stock, par value $0.01 per share, of Parent.
“ Parent Disclosure Letter ” means the confidential disclosure letter delivered by Parent to Citrix immediately prior to the execution of this Agreement.
“ Parent Employee ” means any employee of Parent or any of its Subsidiaries.
“ Parent Entity ” means Parent or any of its Subsidiaries.
 
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“ Parent Intellectual Property ” means all Intellectual Property owned or purported to be owned by Parent or one of its Subsidiaries, or used or held for use by Parent or one of its Subsidiaries.
“ Parent Leased Real Property ” means real property leased, subleased, licensed or otherwise occupied by Parent or its Subsidiaries, as tenant, subtenant, licensee or occupant.
“ Parent Material Adverse Effect ” means any event, circumstance, change in or effect on Parent and its Subsidiaries that, individually or in the aggregate, is or would reasonably be expected to be materially adverse to the business, results of operations or the financial condition of Parent and its Subsidiaries, taken as a whole;  provided ,  however , that none of the following, either alone or in combination, shall be deemed to constitute a “Parent Material Adverse Effect”, or taken into account in determining whether there has been a “Parent Material Adverse Effect”: (a) events, circumstances, changes or effects that generally affect the industries or segments thereof in which Parent and its Subsidiaries operate; (b) general business, economic or political conditions (or changes therein); (c) events, circumstances, changes or effects affecting the financial, credit or securities markets in the United States or in any other country or region in the world, including changes in interest rates or foreign exchange rates; (d) events, circumstances, changes or effects arising out of, or attributable to, the announcement of the execution of, or the consummation of the transactions contemplated by, this Agreement or the identity of the other parties hereto, including, in each case, with respect to employees, customers, distributors, suppliers, financing sources, landlords, licensors or licensees ( provided that this  clause (d)  shall not apply with respect to the matters described in  Sections 5.03  and  5.04 ); (e) events, circumstances, changes or effects arising out of, or attributable to, acts of armed hostility, sabotage, terrorism or war (whether or not declared), including any escalation or worsening thereof; (f) events, circumstances, changes or effects arising out of, or attributable to, earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides or other natural disasters, weather-related conditions, explosions or fires, or any force majeure events; (g) events, circumstances, changes or effects arising out of, or attributable to, changes (or proposed changes) or modifications in GAAP, other applicable accounting standards or applicable Law or the interpretation or enforcement thereof; or (h) events, circumstances, changes or effects arising out of, or attributable to, the failure by Parent to meet any internal or other estimates, expectations, forecasts, plans, projections or budgets for any period (it being understood that the underlying cause of, or factors contributing to, such failure may be taken into account in determining whether a Parent Material Adverse Effect has occurred, unless such underlying cause or factor would otherwise be excepted by another clause of this definition); except, in the case of  clauses (a) ,  (b) ,  (c) ,  (e) , (f) or  (g) , to the extent that such event, circumstance, change or effect has a disproportionate effect on Parent and its Subsidiaries, taken as a whole, as compared with other participants in the industries in which Parent and its Subsidiaries operate.
“ Parent Owned Real Property ” means all of the real property owned by Parent and its Subsidiaries.
“ Parent Preferred Stock ” means preferred stock, par value $0.01 per share, of Parent.
“ Parent Recommendation ” means the recommendation of the Parent Board that Parent stockholders vote in favor of the Parent Share Issuance at the Parent Stockholders’ Meeting.
“ Parent RSUs ” means restricted stock units payable in shares of Parent Common Stock or whose value is determined with reference to the value of shares of Parent Common Stock.
“ Parent SEC Documents ” means all forms, reports, statements, schedules and other documents filed by Parent with, or furnished by Parent to, the SEC since January 1, 2013.
“ Parent Share Issuance ” means the issuance of shares of Parent Common Stock to the stockholders of SpinCo in connection with the Merger.
“ Parent Stock Awards ” means Parent Stock Options, Parent RSUs, and any other equity or equity-based awards granted pursuant to the Parent Stock Plans.
“ Parent Stock Options ” means stock options to acquire shares of Parent Common Stock from Parent.
“ Parent Stock Plans ” means Parent’s 2004 Equity Incentive Plan, 2007 Stock Incentive Plan and Amended and Restated 2009 Stock Incentive Plan, each as amended.
 
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“ Parent Stock Value ” means the volume-weighted average per-share trading price of Parent Common Stock on the five trading days immediately following the date upon which the Effective Time occurs, as reported on Bloomberg.
“ Parent Stockholder Approval ” means (i) the approval of the Parent Share Issuance at the Parent Stockholders’ Meeting by the affirmative vote of holders of shares of Parent Common Stock having a majority in voting power of the votes cast by the holders of all of the shares of Parent Common Stock present or represented at the meeting and voting affirmatively or negatively (the “ Required Parent Stockholder Vote ”), (ii) the approval of the Parent Charter Amendment at the Parent Stockholders’ Meeting by the affirmative vote of the holders of a majority of the Parent Common Stock entitled to vote on the matter (the “ Parent Charter Approval ”) and (iii) if determined by Parent to be included in the Proxy Statement, the approval of the New Parent Stock Plan by the affirmative vote of holders of shares of Parent Common Stock having a majority in voting power of the votes cast by the holders of all of the shares of Parent Common Stock present or represented at the meeting and voting affirmatively or negatively.
“ Permitted Encumbrances ” means (a) statutory liens for current Taxes not yet due or delinquent or the validity or amount of which is being contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP on the applicable financial statements; (b) mechanics’, materialmens’, carriers’, workers’, repairers’ and other similar Encumbrances or security obligations incurred in the ordinary course of business and arising by operation of Law or the validity or amount of which is being contested in good faith by appropriate proceedings; (c) pledges, deposits or other Encumbrances securing the performance of bids, trade Contracts, leases or statutory obligations (including workers’ compensation, unemployment insurance or other social security legislation); (d) Encumbrances and other imperfections of title that do not materially impair the use or occupancy of the property to which they relate in the conduct of the SpinCo Business or the business of Parent and its Subsidiaries, as the case may be, as currently conducted; (e) Encumbrances arising under conditional sales Contracts and equipment leases with third parties and other Encumbrances arising on assets and products sold in the ordinary course of business and non-exclusive licenses of Intellectual Property entered into in the ordinary course of business; (f) landlords’ liens and Encumbrances on leases, subleases, easements, licenses, rights of use, rights to access and rights of way arising therefrom or benefiting or created by any superior estate, right or interest; (g) any zoning, entitlement, conservation restriction and other land use and environmental regulations by Governmental Authorities; (h) all covenants, conditions, restrictions, easements, charges, rights-of-way and other similar matters of record or that would be disclosed by an accurate survey or inspection of the real property, in each case that do not materially impair the use or occupancy of the property to which they relate in the conduct of the SpinCo Business or the business of Parent and its Subsidiaries, as the case may be, as currently conducted; (i) Encumbrances that will be released at or prior to the Closing; (j) Encumbrances identified in the SpinCo Financial Statements or the financial statements in the Parent SEC Documents, as the case may be; and (k) Encumbrances reserved or created pursuant to the Separation Agreement or any Ancillary Agreement.
“ Person ” means any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization or other entity, as well as any syndicate or group that would be deemed to be a person under Section 13(d)(3) of the Exchange Act and any Governmental Authority.
“ Personal Data ” means any data or information relating to an identified or identifiable natural person; an “identifiable natural person” is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity, including unique device or browser identifiers, names, ages, addresses, telephone numbers, email addresses, social security numbers, passport numbers, alien registration numbers, medical history, employment history, and/or account information; and shall also mean “personal information,” “personal health information” and “personal financial information” each as defined by applicable Laws relating to the collection, use, sharing, storage, and/or disclosure of information about an identifiable natural person.
“ Privacy Policy ” means a published policy of the Citrix Entities or the Parent Entities, as the case may be, made available in connection with the collection of information provided by or on behalf of individuals that is labeled as a “Privacy Policy” and/or is reached on a web site by a link that includes the label “Privacy”.
 
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“ Qualified SpinCo Common Stock ” means SpinCo Common Stock that was not acquired directly or indirectly pursuant to the plan (or series of related transactions) which includes the Distribution (within the meaning of Section 355(e) of the Code);  provided that for the avoidance of doubt, SpinCo Common Stock actually acquired in the Distribution shall be Qualified SpinCo Common Stock unless acquired with respect to or in exchange for Citrix Common Stock that was acquired as part of such a plan (or series of related transactions) which includes the Distribution (within the meaning of Section 355(e) of the Code).
“ Record Date ” has the meaning set forth in the Separation Agreement.
“ Release ” means disposing, discharging, injecting, spilling, leaking, pumping, pouring, leaching, dumping, emitting, escaping or emptying into or upon, from, or migrating through, within or into, the air or any soil, sediment, subsurface strata, surface water or groundwater, natural resources or structure.
“ Remedial Action ” means any action required to investigate, clean up, remove or remediate, or conduct remedial, responsive, monitoring or corrective actions with respect to, any presence or Release of Hazardous Materials.
“ Representatives ” means with respect to any Person, such Person’s Affiliates and its and their respective directors, officers, employees, agents and advisors.
“ Restricted Cash ” means any cash deposits being held as collateral or other security for contractual obligations where the cash in these accounts cannot be withdrawn without curing with a future cash deposit or other financial obligation, including any security deposits with landlords.
“ Restrictive Covenant Agreement ” means any current form of Contract or agreement concerning non-competition, non-solicitation of customers or employees, non-hiring of employees, non-disclosure of information, assignment or exclusive license of Intellectual Property or any other restrictive covenants.
“ Retained Citrix Entity ” means any Citrix Entity that is not a Transferred Subsidiary.
“ Sample Working Capital Statement ” means that illustrative statement attached as Schedule 1.01(b) of the Citrix Disclosure Letter setting forth the components, adjustments and methods of calculation for determining, as applicable, SpinCo Working Capital and SpinCo Deferred Revenue.
“ SEC ” means the U.S. Securities and Exchange Commission.
“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“ Separation ” has the meaning set forth in the Separation Agreement.
“ Separation Agreement ” means the Separation and Distribution Agreement, dated as of the date hereof, by and among Citrix, SpinCo and Parent.
“ Software ” means any computer programs (whether in source code, object code or other form), algorithms, databases, compilations and data technology supporting the foregoing, and all documentation, including user manuals and training materials, related to any of the foregoing.
“ Special Dividend ” means one or more special cash dividends in an aggregate amount of up to $1.50 per share of Parent Common Stock to holders of record of the issued and outstanding shares of Parent Common Stock prior to the Effective Time (regardless of whether the actual payment date for any special dividend is before, on or after the Effective Time); provided that (i) in the event the Closing does not occur on or before March 31, 2017, Parent may pay an additional dividend of $0.50 per share with respect to the completed first quarter of calendar year 2017; (ii) in the event the Closing does not occur on or before June 30, 2017, Parent may pay an additional dividend of $0.50 per share with respect to the completed second quarter of calendar year 2017; and (iii) in the event the Closing does not occur on or before September 30, 2017, Parent may pay an additional dividend of $0.50 per share with respect to the completed third quarter of calendar year 2017.
 
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“ SpinCo Assets ” has the meaning set forth in the Separation Agreement.
“ SpinCo Business ” has the meaning set forth in the Separation Agreement.
“ SpinCo Cash Amount ” means the aggregate amount of cash and cash equivalents held by SpinCo and its Subsidiaries as of the open of business on the Closing Date, calculated (a) net of issued but uncleared checks and drafts, (b) including the amount of any checks and drafts (i) received by SpinCo and its Subsidiaries but not yet deposited and (ii) deposited for the account of SpinCo or any of its Subsidiaries but not yet cleared and (c) excluding (x) the amount of any Restricted Cash and (y) the amount of any Offshore Cash in excess of the amounts set forth in Schedule 1.01(c) of the Citrix Disclosure Letter. As used herein, “drafts” shall include both written and electronic fund transfer orders.
“ SpinCo Contractor ” means any individual consultant or independent contractor of a Citrix Entity who is performing services primarily related to the SpinCo Business.
“ SpinCo Current Assets ” means the categories of current assets of SpinCo and its Subsidiaries set forth in the Sample Working Capital Statement, determined as of the open of business on the Closing Date in accordance with GAAP consistently applied with the SpinCo Financial Statements, subject to the adjustments set forth in the Sample Working Capital Statement. For the avoidance of doubt, the SpinCo Current Assets shall not include the SpinCo Cash Amount, any Tax assets, any Excluded Assets or any assets related to Intercompany Accounts (as defined in the Separation Agreement).
“ SpinCo Current Liabilities ” means the categories of current liabilities of SpinCo and its Subsidiaries set forth in the Sample Working Capital Statement, determined as of the open of business on the Closing Date in accordance with GAAP consistently applied with the SpinCo Financial Statements, subject to the adjustments set forth in the Sample Working Capital Statement. SpinCo Current Liabilities shall include (i) the current and long-term portion of liabilities for capital leases and (ii) the current and long-term portion of liabilities under a Non-U.S. SpinCo Plan (x) that is sponsored or maintained by SpinCo or a Transferred Subsidiary or (y) for which liabilities transfer to SpinCo or a Transferred Subsidiary under applicable Law as a result of the transactions contemplated by the Transaction Agreements; provided, that in the case of this clause (ii) such liabilities shall not be included as SpinCo Current Liabilities unless the aggregate present value of such liabilities exceeds $100,000. For the avoidance of doubt, the SpinCo Current Liabilities shall not include the current portion of deferred revenue, any Liabilities for Taxes, any SpinCo Indebtedness, any Excluded Liabilities or any Liabilities related to Intercompany Accounts.
“ SpinCo Deferred Revenue ” means the current and long-term portions of deferred revenue of SpinCo and its Subsidiaries (excluding amounts relating to activation deferred revenue) determined as of the open of business on the Closing Date in accordance with GAAP consistently applied with the SpinCo Financial Statements, subject to the adjustment set forth in the Sample Working Capital Statement.
“ SpinCo Deferred Revenue Target ” means $(124.0 million) (which is a negative number).
“ SpinCo Employee ” means any individual who is either actively employed by, or on a short-term leave of absence (including maternity, paternity, family, sick, short-term disability leave, qualified military service under the Uniformed Services Employment and Reemployment Rights Act of 1994, and leave under the Family Medical Leave Act and other approved leaves) from, a Citrix Entity and who is performing services primarily related to the SpinCo Business, but excluding any such individual mutually agreed upon by Parent and Citrix.
“ SpinCo Indebtedness ” means, without duplication, (a) any indebtedness of the Transferred Subsidiaries for borrowed money or issued in substitution for or exchange of indebtedness of the Transferred Subsidiaries for borrowed money; (b) any indebtedness of the Transferred Subsidiaries evidenced by any note, bond, debenture or other debt security; (c) any commitment by which a Transferred Subsidiary assures a creditor against loss (including any contingent reimbursement liability with respect to letters of credit, but excluding any letters of credit collateralized by Restricted Cash); (d) any off-balance sheet financing of a Transferred Subsidiary; (e) any obligations of the Transferred Subsidiaries for the deferred purchase price of property, other assets or services (including earn-outs or similar contingent payment obligations); (f) any interest rate cap agreements, interest rate swap agreements, foreign currency exchange agreements, collars and any other hedging agreements or arrangements of the Transferred Subsidiaries; (g) any obligations of the Transferred Subsidiaries for Expenses which remain
 
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unpaid as of the Closing; (h) the obligations set forth on Schedule 1.01(d) of the Citrix Disclosure Letter which remain unpaid as of the Closing; (i) all obligations of the type referred to in clauses (a)  through (h) as to which any Transferred Subsidiary is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise; and (j) any accrued and unpaid interest on, and any prepayment premiums, penalties or similar contractual charges in respect of, any of the foregoing.
“ SpinCo Intellectual Property ” means all Intellectual Property included in the SpinCo Assets and the Licensed Intellectual Property.
“ SpinCo Liabilities ” has the meaning set forth in the Separation Agreement.
“ SpinCo Material Adverse Effect ” means any event, circumstance, change in or effect on the SpinCo Business that, individually or in the aggregate, is or would reasonably be expected to be materially adverse to the business, results of operations or the financial condition of the SpinCo Business, taken as a whole;  provided ,  however , that none of the following, either alone or in combination, shall be deemed to constitute a “SpinCo Material Adverse Effect”, or taken into account in determining whether there has been a “SpinCo Material Adverse Effect”: (a) events, circumstances, changes or effects that generally affect the industries or segments thereof in which the SpinCo Business operates; (b) general business, economic or political conditions (or changes therein); (c) events, circumstances, changes or effects affecting the financial, credit or securities markets in the United States or in any other country or region in the world, including changes in interest rates or foreign exchange rates; (d) events, circumstances, changes or effects arising out of, or attributable to, the announcement of the execution of, or the consummation of the transactions contemplated by, this Agreement, the Separation Agreement or any Ancillary Agreement (including the Internal Reorganization, the Contribution, the Distribution and the Merger) or the identity of the other parties hereto, including, in each case, with respect to employees, customers, distributors, suppliers, financing sources, landlords, licensors, or licensees ( provided that this  clause (d) shall not apply with respect to the matters described in  Sections 4.04  and  4.05 ); (e) events, circumstances, changes or effects arising out of, or attributable to, acts of armed hostility, sabotage, terrorism or war (whether or not declared), including any escalation or worsening thereof; (f) events, circumstances, changes or effects arising out of, or attributable to, earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides or other natural disasters, weather-related conditions, explosions or fires, or any force majeure events; (g) events, circumstances, changes or effects arising out of, or attributable to, changes (or proposed changes) or modifications in GAAP, other applicable accounting standards or applicable Law or the interpretation or enforcement thereof; or (h) events, circumstances, changes or effects arising out of, or attributable to, the failure by the SpinCo Business to meet any internal or other estimates, expectations, forecasts, plans, projections or budgets for any period (it being understood that the underlying cause of, or factors contributing to, such failure or change may be taken into account in determining whether a SpinCo Material Adverse Effect has occurred, unless such underlying cause or factor would otherwise be excepted by another clause of this definition); except, in the case of clauses (a) ,  (b) ,  (c) ,  (e) , (f)  or  (g) , to the extent that such event, circumstance, change or effect has a disproportionate effect on the SpinCo Business, taken as a whole, as compared with other participants in the industries in which the SpinCo Business operates.
“ SpinCo Target Cash Amount ” means $25.0 million or such greater amount calculated after giving effect to the adjustment, if any, pursuant to Section 2.04(e)(z) .
“ SpinCo Target Working Capital ” means $29.0 million.
“ SpinCo Working Capital ” means (a) the SpinCo Current Assets minus (b) the SpinCo Current Liabilities as of the open of business on the Closing Date. For purposes of this Agreement, SpinCo Working Capital shall be calculated in accordance with the applicable definitions included herein and in a manner consistent with the SpinCo Financial Statements and the Sample Working Capital Statement.
“ Sponsored Employe e” has the meaning set forth in the Employee Matters Agreement.
“ Subsidiary ” of any Person means any corporation, partnership, limited liability company or other organization, whether incorporated or unincorporated, which is directly or indirectly controlled by such Person or one or more of its respective Subsidiaries.
 
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“ Superior Proposal ” means an unsolicited written bona fide offer or proposal made by a third party with respect to a Competing Parent Transaction on terms and conditions that the Parent Board determines, in its good faith judgment, after consulting with a financial advisor of nationally recognized reputation and outside legal counsel, and taking into account all legal, financial and regulatory and other aspects of the proposal, including availability of financing, and any changes to the terms of this Agreement proposed in writing by Citrix in response to such offer or proposal, to be (a) more favorable from a financial point of view to the stockholders of Parent than the Merger; and (b) reasonably expected to be consummated. For purposes of the definition of “Superior Proposal,” each reference to “15%” in the definition of “Competing Parent Transaction” shall be replaced with “50%”.
“ Tax ” or “ Taxes ” has the meaning set forth in the Tax Matters Agreement.
“ Tax-Free Status ” has the meaning set forth in the Tax Matters Agreement.
“ Tax-Free Status of the External Transactions ” means the Tax-Free Status, but only as it applies to the Contribution, the Distribution and the Merger.
“ Tax Matters Agreement ” has the meaning set forth in the Separation Agreement.
“ Tax Representation Letters ” means Tax representation letters containing normal and customary representations and statements, substantially in compliance with IRS published advance ruling guidelines, and with customary assumptions, exceptions and modifications thereto, and consistent with the allowances and the restrictions contained in the Tax Matters Agreement, reasonably satisfactory in form and substance to Parent Tax Counsel and Citrix Tax Counsel in light of the facts and the conclusions to be reached in the Parent Merger Tax Opinion and the Citrix RMT Tax Opinions, executed by Parent, SpinCo and Citrix, and other parties, if required, as reasonably agreed by the parties hereto.
“ Tax Returns ” has the meaning set forth in the Tax Matters Agreement.
“ Termination Fee ” means $62.0 million.
“ Transferred Leased Real Property ” has the meaning set forth in the Separation Agreement.
“ Transferred Owned Real Property ” has the meaning set forth in the Separation Agreement.
“ Transferred Subsidiaries ” means each of SpinCo and the other entities that Citrix will contribute to SpinCo pursuant to the Separation Agreement, and each of their respective Subsidiaries.
“ Transition Services Agreement ” has the meaning set forth in the Separation Agreement.
“ U.S. Parent Employee ” means any Parent Employee who is employed primarily in (or, in the case of any expatriate Parent Employee, whose home country is) the United States.
“ U.S. SpinCo Employee ” means any SpinCo Employee who is employed primarily in (or, in the case of any expatriate SpinCo Employee, whose home country is) the United States.
Section 1.02 Other Defined Terms . The following terms have the meanings set forth in the Sections set forth below:

Defined Term	  	Location of Definition	
		
Adjusted Citrix RSU	  	§ 3.04(c)	
Aggregate Merger Consideration	  	§ 2.04(a)	
Antitrust Remedial Actions	  	§ 7.06(c)	
Certificate of Merger	  	§ 2.02	
Change in the Parent Recommendation	  	§ 7.03(d)	
Citrix	  	Preamble	
Citrix Board	  	Recitals	
Citrix Board Designees	  	§ 2.07(a)	
 
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Citrix Common Stock	  	Recitals	
Citrix Merger Tax Opinion	  	§ 7.07(b)	
Citrix Plan	  	§ 7.14(a)	
Citrix RMT Tax Opinions	  	§ 7.07(b)	
Citrix Separation Tax Opinion	  	§ 7.07(b)	
Citrix Tax Counsel	  	§ 7.07(b)	
Clean-Up Spin-Off	  	Recitals	
Closing	  	§ 2.02	
Closing Statement	  	§ 3.05(a)	
Commercial Arrangements	  	§ 4.18	
Confidentiality Agreement	  	§ 7.11(a)	
Continuing SpinCo Employee	  	§ 7.14(a)	
Contribution	  	Recitals	
Copyrights	  	§ 1.01	
Dispute Notice	  	§ 3.05(c)	
Distribution	  	Recitals	
Effective Time	  	§ 2.02	
Elliott	  	§ 2.07(a)	
ERISA	  	§ 4.13(a)	
Estimated Cash Amount	  	§ 3.05(a)	
Estimated SpinCo Deferred Revenue	  	§ 3.05(a)	
Estimated SpinCo Indebtedness	  	§ 3.05(a)	
Estimated Working Capital	  	§ 3.05(a)	
Exchange Agent	  	§ 3.01(a)	
Exchange Fund	  	§ 3.01(a)	
Exchange Offer	  	Recitals	
Extended Termination Date	  	§ 9.01(a)	
FCPA	  	§ 4.10(b)	
Independent Accounting Firm	  	§ 3.05(d)	
Initial Termination Date	  	§ 9.01(a)	
Marks	  	§ 1.01	
Merger	  	Recitals	
Merger Consideration	  	§ 2.04(a)	
Merger Sub	  	Preamble	
Non-U.S. Parent Plans	  	§ 5.12(b)	
Non-U.S. SpinCo Plans	  	§ 4.13(b)	
Notice Period	  	§ 7.03(d)(ii)	
One-Step Spin-Off	  	Recitals	
Operating Committee	  	§ 2.07(c)	
Parent	  	Preamble	
Parent Board	  	Recitals	
Parent Capitalization Date	  	§ 5.02(a)	
Parent Charter Approval	  	§ 1.01	
Parent Customer Data	  	§ 5.10(l)	
Parent Employee Representative Agreements	  	§ 5.13	
Parent IP Contracts	  	§ 5.15(a)(iv)	
Parent IT Systems	  	§ 5.10(j)	
Parent Material Contracts	  	§ 5.15(a)	
Parent Merger Tax Opinion	  	§ 7.07(b)	
Parent Plans	  	§ 5.12(b)	
Parent Products	  	§ 5.10(i)	
Parent Tax Counsel	  	§ 7.07(b)	
Parent Registration Statement	  	§ 7.01(a)	
Parent Stockholders’ Meeting	  	§ 7.02	
Patents	  	§ 1.01	
Proxy Statement	  	§ 7.01(a)	
 
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Registered Parent Intellectual Property	  	§ 5.10(b)	
Registered SpinCo Intellectual Property	  	§ 4.11(b)	
Registration Statements	  	§ 7.01(a)	
Replacement Citrix Board Designee	  	§ 2.07(a)	
Required Parent Stockholder Vote	  	§ 1.01	
Revised Transaction Proposal	  	§ 7.03(d)(ii)	
Schedule TO	  	§ 7.01(a)	
Shares	  	§ 2.04(a)	
SpinCo	  	Preamble	
SpinCo Board	  	Recitals	
SpinCo Closing Report	  	§ 3.05(b)	
SpinCo Common Stock	  	Recitals	
SpinCo Contractor Schedule	  	§ 4.14	
SpinCo Customer Data	  	§ 4.11(l)	
SpinCo Employee Representative Agreement	  	§ 4.14	
SpinCo Employee Schedule	  	§ 4.14	
SpinCo Financial Statements	  	§ 4.06(a)	
SpinCo IP Contracts	  	§ 4.16(a)(iv)	
SpinCo IT Systems	  	§ 4.11(j)	
SpinCo Material Contracts	  	§ 4.16(a)	
SpinCo Plans	  	§ 4.13(b)	
SpinCo Products	  	§ 4.11(i)	
SpinCo Registration Statement	  	§ 7.01(a)	
Surviving Corporation	  	§ 2.01	
Termination Date	  	§ 9.01(a)	
Third Party Rights	  	§ 4.11(d)	
Threshold Percentage	  	§ 2.04(e)	
Trade Secrets	  	§ 1.01	
U.S. Parent Plans	  	§ 5.12(a)	
U.S. SpinCo Plans	  	§ 4.13(a)	
Section 1.03 Interpretation and Rules of Construction .
(a) In this Agreement, except to the extent otherwise provided or that the context otherwise requires:
(i) when a reference is made in this Agreement to an Article, Section or Exhibit, such reference is to an Article or Section of, or an Exhibit to, this Agreement;
(ii) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;
(iii) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”;
(iv) the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;
(v) all terms defined in this Agreement have the defined meanings when used in any certificate or other document delivered or made available pursuant hereto, unless otherwise defined therein;
(vi) where used with respect to information, the phrases “delivered” or “made available” shall mean that the information referred to has been physically or electronically delivered to the relevant parties or their respective Representatives, including, (A) in the case of “made available” to Parent, material that has been posted in a “data room” (virtual or otherwise) established by or on behalf of Citrix or SpinCo and (B) in the case of “made available” to Citrix or SpinCo, material that has been posted in a “data room” (virtual or otherwise) established by or on behalf of Parent or Merger Sub;
 
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(vii) references to “day” or “days” are to calendar days;
(viii) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms;
(ix) references to a Person are also to its successors and permitted assigns;
(x) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day;
(xi) references to sums of money are expressed in lawful currency of the United States of America, and “$” refers to U.S. dollars;
(xii) references to any “statute” or “regulation” are to such statute or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, include any rules and regulations promulgated under such statute) and to any “section of any statute or regulation” include any successor to such section;
(xiii) the word “or” shall not be exclusive; and
(xiv) reference in this Agreement to any time shall be to Eastern time unless otherwise expressly provided herein.
(b) Notwithstanding anything to the contrary contained in the Disclosure Letters, in this Agreement, the Separation Agreement or in the Ancillary Agreements, the information and disclosures contained in any Section of a Disclosure Letter shall be deemed to be disclosed and incorporated by reference in each other Section of such Disclosure Letter as though fully set forth in such other Section to the extent the relevance of such information to such other Section is reasonably apparent on the face of such disclosure notwithstanding the omission of a reference or a cross-reference with respect thereto and notwithstanding any reference to a Section of such Disclosure Letter in this Agreement. Certain items and matters are listed in the Disclosure Letters for informational purposes only and may not be required to be listed therein by the terms of this Agreement. In no event shall the listing of items or matters in a Disclosure Letter be deemed or interpreted to broaden, or otherwise expand the scope of, the representations and warranties or covenants and agreements contained in this Agreement. No reference to, or disclosure of, any item or matter in any Section of this Agreement or any Section of a Disclosure Letter shall be construed as an admission or indication that such item or matter is material or that such item or matter is required to be referred to or disclosed in this Agreement or in such Disclosure Letter. Without limiting the foregoing, no reference to, or disclosure of, a possible breach or violation of any Contract, Law or Governmental Order shall be construed as an admission or indication that a breach or violation exists or has actually occurred.
ARTICLE II
THE MERGER
Section 2.01 The Merger . Upon the terms and subject to the satisfaction or written waiver (where permissible under applicable Law) of the conditions set forth in Article VIII , and in accordance with the applicable provisions of the DGCL, at the Effective Time, Merger Sub shall be merged with and into SpinCo. As a result of the Merger, the separate corporate existence of Merger Sub shall cease and SpinCo shall continue as the surviving corporation of the Merger (the “ Surviving Corporation ”).
Section 2.02 Closing; Effective Time . As promptly as practicable, but in no event later than the third (3rd) Business Day (unless another date is agreed to in writing by Citrix and Parent), after the satisfaction
 
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or written waiver (where permissible under applicable Law) of the conditions set forth in Article VIII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or written waiver (where permissible under applicable Law) of those conditions at the Closing), the parties hereto shall cause the Merger to be consummated by filing a certificate of merger (the “ Certificate of Merger ”) with the Secretary of State of the State of Delaware, in such form as is required by, and executed in accordance with, the relevant provisions of the DGCL (the date and time of such filing of the Certificate of Merger (or such later time as may be agreed by each of the parties hereto and specified in the Certificate of Merger) being the “ Effective Time ”). Immediately prior to such filing of the Certificate of Merger, a closing (the “ Closing ”) shall be held at the offices of Latham & Watkins LLP, 200 Clarendon Street, Boston, Massachusetts, or such other place as the parties shall agree, for the purpose of confirming the satisfaction or waiver, as the case may be, of the conditions set forth in  Article VIII.
Section 2.03 Effect of the Merger . At the Effective Time, the effect of the Merger shall be as provided in the applicable provisions of the DGCL.
Section 2.04 Effect on Capital Stock .
(a) Conversion of SpinCo Common Stock . At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, SpinCo or the holders of the SpinCo Common Stock, each share of SpinCo Common Stock (all shares of SpinCo Common Stock being collectively, the “ Shares ”) issued and outstanding immediately prior to the Effective Time shall be converted automatically into the right to receive one (1) fully paid and non-assessable share of Parent Common Stock, subject to adjustment in accordance with  Sections 2.04(e) and 3.01(f) (the “ Merger Consideration ” and, the aggregate number of such shares of Parent Common Stock issuable in the Merger prior to any adjustment, the “ Aggregate Merger Consideration ”), and each holder of certificates or book-entry shares which immediately prior to the Effective Time represented such Shares shall thereafter cease to have any rights with respect thereto except the right to receive the Merger Consideration, any dividends or other distributions pursuant to Section 3.01(c) and cash in lieu of any fractional shares payable pursuant to Section 3.01(e) , in each case to be issued or paid, without interest, in consideration therefor.
(b) Cancellation of Certain Shares . At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, SpinCo or the holders of the SpinCo Common Stock, each Share held in the treasury of SpinCo shall automatically be cancelled without any conversion thereof and no payment or distribution shall be made with respect thereto.
(c) Capital Stock of Merger Sub . At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, SpinCo or the holders of the SpinCo Common Stock, each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and non-assessable share of common stock, par value $0.01 per share, of the Surviving Corporation.
(d) Capital Stock of Citrix . Each share of Citrix Common Stock that is issued and outstanding immediately prior to the Effective Time shall remain outstanding following the Effective Time.
(e) Exchange Ratio True-Up . If the condition set forth in Section 8.03(b) would be unable to be satisfied because immediately after the Effective Time, the percentage of outstanding shares of Parent Common Stock to be received by the former holders of SpinCo Common Stock with respect to Qualified SpinCo Common Stock would be less than 50.1% (the “ Threshold Percentage ”) of all the stock of Parent (including (i) any instruments that are treated as stock for U.S. federal income Tax purposes; and (ii) any stock that may be issued after the Effective Time, pursuant to the exercise or settlement of an option or other Contract acquired or entered into on or before the Effective Time that may be regarded as having been acquired or entered into before the Effective Time as part of a “plan” of which the Distribution is a part within the meaning of Section 355(e) of the Code, but excluding (A) for purposes of clause (i) , any employee stock option that, at the time of grant, was not in-the-money and, unless an election has been made under Section 83(b) of the Code with respect thereto, any stock or stock rights granted as compensation before the Effective Time that is not vested at the Effective Time; and (B) for purposes of clause (ii) , any stock that may be issued after the Effective Time, pursuant to the exercise or settlement of any rights pursuant to a Parent Stock Plan), determined without regard to any adjustment pursuant to this Section 2.04(e) ,
 
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then (w) Citrix shall promptly provide notice to Parent setting forth in detail the reasons the condition set forth in Section 8.03(b) would be unable to be satisfied, (x) Citrix shall consider in good faith any comments provided by Parent, (y) the aggregate number of shares of Parent Common Stock into which the shares of SpinCo Common Stock are converted pursuant to Section 2.04(a) shall be increased such that the number of shares of Parent Common Stock to be received by the former holders of SpinCo Common Stock with respect to Qualified SpinCo Common Stock equals the Threshold Percentage, if and to the extent necessary after considering Parent’s comments pursuant to clause (x) of this Section 2.04(e) , and (z) except if the condition set forth in Section 8.03(b) would be unable to be satisfied as a result of (1) a breach by Parent of its obligations under this Agreement, (2) solely any actions taken by Parent or any of its Subsidiaries after the signing hereof pursuant to a plan (or series of related transactions) that includes the Distribution (within the meaning of Section 355(e) of the Code) other than the Merger, or (3) the issuance, vesting, settlement or exercise of Parent Stock Awards after the date hereof, the SpinCo Target Cash Amount shall be increased by an amount equal to the product of $63.92 multiplied by the number of additional shares of Parent Common Stock required to be issued pursuant to the true-up set forth in clause (y) of this Section 2.04(e) .
(f) Issuance of Shares of SpinCo Common Stock . As contemplated by the Separation Agreement, and subject to the adjustments provided in Section 2.04(e) and Section 3.01(f) , on or before the Distribution Date, SpinCo shall issue and deliver to Citrix a number of shares of SpinCo Common Stock equal to the difference of (i) 26,868,269, minus (ii) the number of shares of SpinCo Common Stock held by Citrix immediately prior to such issuance.
Section 2.05 Certificate of Incorporation; Bylaws .
(a) The certificate of incorporation of SpinCo shall, by virtue of the Merger and without any action on the part of Parent, Merger Sub, SpinCo or the holders of the SpinCo Common Stock, be amended and restated in its entirety to read as set forth in Annex B and, as so amended and restated, shall be the certificate of incorporation of the Surviving Corporation until thereafter duly amended in accordance with such certificate of incorporation and applicable Law ( provided that no such amendment shall be in breach of Section 7.05 of this Agreement).
(b) The bylaws of SpinCo shall, by virtue of the Merger and without any action on the part of Parent, Merger Sub, SpinCo or the holders of the SpinCo Common Stock, be amended and restated in their entirety to read as set forth in Annex C and, as so amended and restated, shall be the bylaws of the Surviving Corporation until thereafter duly amended in accordance with the certificate of incorporation of the Surviving Corporation, such bylaws and applicable Law ( provided that no such amendment shall be in breach of Section 7.05 of this Agreement).
Section 2.06 Directors and Officers of the Surviving Corporation . The directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation, and the officers of SpinCo immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, in each case until their respective successors are duly elected and qualified or until such officer’s earlier death, resignation or removal.
Section 2.07 Board of Directors and Management of Parent .
(a) The Parent Board shall take all such action as may be necessary to cause the number of directors comprising the Parent Board as of immediately following the Effective Time to consist of nine (9) directors, including (i) four (4) individuals designated by Citrix and satisfactory to Parent (the “ Citrix Board Designees ”) and (ii) five (5) of the current members of the Parent Board designated by Parent. Each of the Citrix Board Designees shall qualify as an “independent director,” as such term is defined in NASDAQ Marketplace Rule 5605(a)(2) and at least one (1) of the Citrix Designees shall meet the minimum requirements to serve on the Audit Committee of the Parent Board under the NASDAQ Marketplace Rules. Parent acknowledges and agrees that (A) the individuals set forth on Schedule 2.07(a) of the Citrix Disclosure Letter are satisfactory to Parent as Citrix Board Designees and (B) after consideration of the transactions contemplated by this Agreement, the Separation Agreement, the Loan Agreement and the Ancillary Agreements, and the other information regarding such individuals provided to Parent by Citrix prior to the date of this Agreement, as of the date hereof such individuals
 
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meet the qualifications set forth in the immediately preceding sentence. Notwithstanding the foregoing, the appointment of Jesse A. Cohn or any other director, officer, employee or other Affiliate of Elliott Associates, L.P., Elliott International, L.P. or Elliott International Capital Advisors Inc. (collectively, “ Elliott ”) to the Parent Board as a Citrix Board Designee shall be conditioned upon the prior execution and delivery to Parent by Elliott of the Cooperation Agreement, in substantially the form set forth as Annex D or as otherwise may be mutually agreed between Parent and Elliott. The Citrix Board Designees shall be assigned to Class I, Class II and Class III of the Parent Board, under the Parent Charter and applicable Law, as specified on Schedule 2.07(a) of the Citrix Disclosure Letter. For a period of two (2) years following the Closing Date, or, in the case of the Citrix Board Designee whose term of office expires at the second annual meeting of stockholders of Parent occurring after the Effective Time, the period ending on such second annual meeting of stockholders of Parent, if any of the Citrix Board Designees is unable or unwilling to serve or is otherwise no longer serving as a member of the Parent Board, then Citrix may designate a replacement individual satisfactory to the Nominating and Corporate Governance Committee of the Parent Board (a “ Replacement Citrix Board Designee ”) and the Parent Board shall promptly appoint such Replacement Citrix Board Designee to fill the vacancy created thereby. In connection with the first annual meeting of stockholders of Parent occurring after the Effective Time, the Parent Board shall, subject to the reasonable exercise of its fiduciary duties under applicable Law, take all such action as may be necessary to include the Citrix Board Designees and/or Replacement Citrix Board Designees in such class up for re-election as a nominee recommended by the Parent Board for election by Parent’s stockholders and shall use no less rigorous efforts to support the election of each such Citrix Board Designee or Replacement Citrix Board Designee at such annual meeting than the manner in which Parent supports all other nominees of the Parent Board.
(b) The Parent Board shall take all such action as may be necessary to cause each of the Audit Committee, the Nominating and Corporate Governance Committee, the Compensation Committee and any other standing committees of the Parent Board to include at least one (1) Citrix Board Designee as of immediately following the Effective Time (subject, to the extent required by the NASDAQ Marketplace Rules, to qualification of such Citrix Designees to serve on such Committees).
(c) The Parent Board shall take all such action as may be necessary to cause the Parent Board to establish an Operating Committee of the Parent Board (the “ Operating Committee ”) as of immediately following the Effective Time. The Operating Committee shall have a mandate to design and oversee a plan to achieve the synergies expected to result from the Merger and undertake such other activities related thereto as may be delegated in accordance with applicable Law by the Parent Board, and shall be empowered to hire, compensate and direct the work of third-party advisors to assist therewith, with funding for such third-party advisors to be provided by Parent. The Operating Committee shall be composed of four (4) members reasonably agreed upon by Parent and Citrix, consisting of two (2) Citrix Board Designees and two (2) current members of the Parent Board. If any of the Citrix Board Designees is unable or unwilling to serve or is otherwise no longer serving as a member of the Operating Committee, then the Parent Board shall promptly appoint another Citrix Board Designee (or Replacement Citrix Board Designee) to fill the vacancy created thereby. For a period of two (2) years following the Closing Date, (x) the size of the Operating Committee shall not be increased by the Parent Board and (y) the Operating Committee shall not be disbanded by the Parent Board, in each case without the consent of the Citrix Board Designees and/or Replacement Citrix Board Designees then serving on the Operating Committee. At the second anniversary of the Closing Date, unless the Parent Board acts to extend the existence of the Operating Committee, the Operating Committee shall automatically be disbanded and shall cease to exist as a committee of the Parent Board.
(d) During the period from the date of this Agreement to the Effective Time, Parent shall consult with, and consider the views of, Citrix regarding the roles and responsibilities of members of management of the SpinCo Business in the management of Parent and the Surviving Corporation following the Effective Time.
ARTICLE III
DELIVERY OF MERGER CONSIDERATION
Section 3.01 Exchange Fund .
(b) Exchange Agent . Prior to the Effective Time, Citrix shall designate a nationally-recognized commercial bank or trust company reasonably acceptable to Parent to act as agent (the “ Exchange
 
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Agent ”) for the benefit of the holders of Shares who exchange their Shares in accordance with this Article III . Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of the holders of Shares, for exchange in accordance with this Article III promptly after the Effective Time, book-entry shares representing the Merger Consideration issuable to holders of Shares as of the Effective Time pursuant to Section 2.04(a) (such book-entry shares of Parent Common Stock, together with any dividends or distributions with respect thereto pursuant to Section 3.01(c) and other amounts payable in accordance with Section 3.01(e) , the “ Exchange Fund ”). The Exchange Agent shall, pursuant to irrevocable instructions from Parent, deliver the Merger Consideration out of the Exchange Fund. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Parent; provided that (i) no such investment of or losses thereon shall relieve Parent from making the payments required by this Article III or elsewhere in this Agreement, or affect the amount payable in respect of the Shares, and following any losses Parent shall promptly provide additional funds to the Exchange Agent in the amount of any such losses, and (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement. Any interest or other income from such investments shall be paid to and become income of Parent. Except as contemplated by Section 3.01(g) , the Exchange Fund shall not be used for any purpose other than as specified in this Section 3.01(a) .
(c) Exchange Procedures . As promptly as practicable after the Effective Time, Parent shall cause the Exchange Agent to distribute the shares of Parent Common Stock into which the shares of SpinCo Common Stock that were distributed in the Distribution have been converted pursuant to the Merger, which shares shall be distributed on the same basis as the shares of SpinCo Common Stock were distributed in the Distribution and to the Persons who received SpinCo Common Stock in the Distribution. Each Person entitled to receive SpinCo Common Stock in the Distribution shall be entitled to receive in respect of the shares of SpinCo Common Stock distributed to such Person a book-entry authorization representing the number of whole shares of Parent Common Stock that such holder has the right to receive pursuant to this Section 3.01(b) (and cash in lieu of fractional shares of Parent Common Stock, as contemplated by Section 3.01(e) ) (and any dividends or distributions and other amounts pursuant to Section 3.01(c) ). The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to Parent Common Stock held by it from time to time hereunder, except as contemplated by Section 3.01(c) .
(d) Distributions with Respect to Undistributed Shares of Parent Common Stock . No dividends or other distributions declared after the Effective Time with respect to Parent Common Stock shall be paid with respect to any shares of Parent Common Stock that are not able to be distributed by the Exchange Agent promptly after the Effective Time, whether due to a legal impediment to such distribution or otherwise. Subject to the effect of abandoned property, escheat, Tax or other applicable Laws, following the distribution of any such previously undistributed shares of Parent Common Stock, there shall be paid to the record holder of such shares of Parent Common Stock, without interest, (i) at the time of the distribution, the amount of cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 3.01(e) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Parent Common Stock; and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to the distribution of such whole shares of Parent Common Stock and a payment date subsequent to the distribution of such whole shares of Parent Common Stock.
(e) No Further Rights in SpinCo Common Stock . All shares of Parent Common Stock issued upon the exchange of SpinCo Common Stock in accordance with the terms of this Article III (including any cash paid pursuant to Section 3.01(c) or Section 3.01(e) ) shall be deemed to have been issued or paid, as the case may be, in full satisfaction of all rights pertaining to such shares of SpinCo Common Stock.
(f) No Fractional Shares . No certificates or scrip representing fractional shares of Parent Common Stock or book-entry credit of the same shall be issued upon the surrender for exchange of SpinCo Common Stock, and such fractional share interests will not entitle the owner thereof to vote, or to any other rights of a stockholder of Parent. All fractional shares of Parent Common Stock that a holder of shares of SpinCo Common Stock would otherwise be entitled to receive as a result of the Merger shall be aggregated by the Exchange Agent. The Exchange Agent shall cause the whole shares obtained thereby to be sold on behalf of such holders of shares of SpinCo Common Stock that would otherwise be entitled to receive such fractional shares of Parent Common Stock pursuant to the Merger, in the open market or otherwise, in each case at then-prevailing market
 
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prices, and in no case later than five (5) Business Days after the time of the Distribution. The Exchange Agent shall make available the net proceeds thereof, subject to the deduction of the amount of any withholding Taxes as contemplated in Section 3.01(i) and brokerage charges, commissions and conveyance and similar Taxes, on a pro rata basis, without interest, as soon as practicable to the holders of SpinCo Common Stock that would otherwise be entitled to receive such fractional shares of Parent Common Stock pursuant to the Merger.
(g) Adjustments to Exchange Ratio . The Merger Consideration shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock or SpinCo Common Stock), extraordinary cash dividends, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Common Stock or SpinCo Common Stock (other than, in the case of SpinCo Common Stock, to the extent contemplated in the Separation Agreement) with a record date occurring on or after the date hereof and prior to the Effective Time, other than the issuance of stock by SpinCo in the Separation, the Special Dividend, or the other transactions contemplated by this Agreement and the Separation Agreement; provided that nothing in this Section 3.01(f) shall be construed to permit SpinCo, Parent or Merger Sub to take any action with respect to its securities that otherwise is prohibited by the terms of this Agreement.
(h) Termination of Exchange Fund . Any portion of the Exchange Fund (including proceeds of any investment thereof) that remains undistributed to the former holders of Shares on the date that is twelve (12) months after the Effective Time shall be delivered to Parent, upon demand, and any former holders of Shares who have not theretofore received shares of Parent Common Stock in accordance with this Article III shall thereafter look only to Parent for the Merger Consideration to which they are entitled pursuant to Section 2.04(a) , any cash in lieu of fractional shares of Parent Common Stock to which they are entitled pursuant to Section 3.01(e) and any dividends or other distributions with respect to the Parent Common Stock to which they are entitled pursuant to Section 3.01(c) (subject to any abandoned property, escheat or similar Law).
(i) No Liability . None of Parent, Citrix, SpinCo, Merger Sub, the Surviving Corporation or the Exchange Agent shall be liable to any Person for any Merger Consideration from the Exchange Fund (or dividends or distributions with respect to Parent Common Stock) or other cash delivered to a public official pursuant to any abandoned property, escheat or similar Law. Any portion of the Exchange Fund remaining unclaimed by holders of Shares as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Authority shall, to the extent permitted by applicable Law, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(j) Withholding Rights . Each of the Surviving Corporation, the Exchange Agent, Parent and Merger Sub shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code, the rules or regulations promulgated thereunder, any provision of applicable state, local or foreign Tax Law or any other Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for purposes of this Agreement as having been paid to the Persons otherwise entitled thereto in respect of which such deduction and withholding was made.
Section 3.02 Stock Transfer Books . From and after the Effective Time, the stock transfer books of SpinCo shall be closed and there shall be no further registration of transfers of Shares thereafter on the records of SpinCo.
Section 3.03 No Appraisal Rights . In accordance with Section 262 of the DGCL, no appraisal rights shall be available to holders of Shares in connection with the Merger.
Section 3.04 Citrix Equity Awards .
(a) Each Citrix Stock Option held by a SpinCo Employee that is outstanding immediately prior to the Effective Time shall, automatically and without any required action on the part of the holder thereof, remain outstanding as an option to acquire shares of Citrix Common Stock pursuant to the terms and conditions of the applicable award.
 
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(b) Each Citrix RSU held by a SpinCo Employee that is outstanding as of immediately prior to the Effective Time and is subject to time-based vesting shall, after taking into account any accelerated vesting in connection with the transactions contemplated by this Agreement pursuant to the terms of the applicable award, automatically and without any required action on the part of the holder thereof, cease as of the Effective Time to represent the right with respect to Citrix Common Stock and shall be cancelled and a substitute Parent RSU with respect to shares of Parent Common Stock shall be granted on the same terms and conditions as were applicable to the Citrix RSU immediately prior to the Effective Time (including vesting and forfeiture provisions), with the number of shares of Parent Common Stock subject to each such Parent RSU equal to the number of shares of Citrix Common Stock subject to each Citrix RSU immediately prior to the Effective Time multiplied by the Adjustment Ratio, rounded down to the nearest whole share.
(c) Each Citrix RSU held by a SpinCo Employee that is outstanding as of immediately prior to the Effective Time and is subject to performance-based vesting shall be adjusted based on an interim performance assessment as if the applicable performance period ended as of the day immediately prior to the Closing Date and pro-rated based on the portion of the 36-month performance period which has elapsed as of the day immediately prior to the Closing Date, rounded down to the nearest whole share (each an “ Adjusted Citrix RSU ”). Each Adjusted Citrix RSU then shall, after taking into account any accelerated vesting in connection with the transactions contemplated by this Agreement pursuant to the terms of the applicable award, automatically and without any required action on the part of the holder thereof, cease as of the Effective Time to represent the right with respect to Citrix Common Stock and shall be cancelled and a substitute Parent RSU with respect to shares of Parent Common Stock shall be granted on the same terms and conditions as were applicable to the Adjusted Citrix RSU immediately prior to the Effective Time (except that such awards shall thereafter be subject to cliff vesting as of the end of the applicable performance period and no longer subject to any performance-vesting criteria), with the number of shares of Parent Common Stock subject to each such Parent RSU equal to the number of shares of Citrix Common Stock subject to each Adjusted Citrix RSU immediately prior to the Effective Time multiplied by the Adjustment Ratio, rounded down to the nearest whole share. Notwithstanding the foregoing, any Citrix RSU held by a SpinCo Employee with respect to the 2014-2016 performance period that remains outstanding as of the Effective Time shall not be adjusted, prorated or cancelled and no Parent RSU shall be granted in substitution for such Citrix RSU as provided in this Section 3.04(c) . Each Citrix RSU described in the immediately preceding sentence shall continue to constitute the right to earn shares of Citrix Common Stock based on the actual performance of Citrix during such performance period in accordance with the terms of the applicable award agreements (except that the Effective Time shall not constitute a termination of employment of any SpinCo Employee for purposes of such Citrix RSU).
(d) Prior to the Effective Time, the Citrix Board and/or the Compensation Committee of the Citrix Board, as applicable, shall adopt any resolutions and Citrix shall take any actions that are necessary to effectuate the provisions of this Section 3.04 .
Section 3.05 Determination of Net Adjustment .
(a) Within two (2) Business Days prior to the Closing Date, Citrix shall prepare and deliver to Parent a report setting forth an estimate, prepared in good faith based on SpinCo’s and Citrix’s books and records and other information available at the time, of (i) the SpinCo Cash Amount (the “ Estimated Cash Amount ”), (ii) the total amount of SpinCo Indebtedness as of the Closing (the “ Estimated SpinCo Indebtedness ”), (iii) the SpinCo Working Capital (the “ Estimated Working Capital ”) and the calculation by Citrix of the Estimated Working Capital Adjustment (if any), (iv) the SpinCo Deferred Revenue (the “ Estimated SpinCo Deferred Revenue ”) and the calculation by Citrix of the Estimated SpinCo Deferred Revenue Surplus (if any), and (v) the calculation by Citrix of the Initial Net Adjustment Amount (if any), which, in the case of Estimated Working Capital and Estimated SpinCo Deferred Revenue, shall be prepared in a manner consistent in all respects with the Sample Working Capital Statement, including the line items set forth therein in accordance with GAAP (the report referred to in this sentence is hereinafter referred to as the “ Closing Statement ”) together with any documentary materials used in the calculations thereof. If based on the Closing Statement, the Initial Net Adjustment Amount is a positive number, then immediately prior to the Closing, SpinCo shall distribute to Citrix an amount in cash equal to such Initial Net Adjustment Amount, and if based on the Closing Statement, the Initial Net Adjustment Amount is a negative number, then immediately prior to the Closing, Citrix shall contribute to SpinCo an amount in cash equal to the absolute value of such Initial Net Adjustment Amount. For the avoidance of doubt, if the Initial Net Adjustment Amount is zero (0), then no payments shall be made in connection therewith.
 
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(b) Within sixty (60) days after the Closing Date, Parent shall prepare and deliver to Citrix a report that sets forth Parent’s good faith calculation of (A) the SpinCo Cash Amount, (B) the total SpinCo Indebtedness as of the Closing, (C) the SpinCo Working Capital, (D) the Final Working Capital Adjustment (if any), (E) the SpinCo Deferred Revenue, (F) the Final SpinCo Deferred Revenue Surplus (if any), and (G) the Final Net Adjustment Amount (if any) which, in the case of SpinCo Working Capital and SpinCo Deferred Revenue, shall be prepared in a manner consistent in all respects with the Sample Working Capital Statement, including the line items set forth therein in accordance with GAAP (the report referred to in this sentence is hereinafter referred to as the “ SpinCo Closing Report ”). Citrix shall provide reasonable assistance, including reasonably requested documentation, to Parent in the preparation of the SpinCo Closing Report. Parent shall also deliver to Citrix documentary materials and analyses used in preparation of the SpinCo Closing Report reasonably requested by Citrix. The amounts set forth in the SpinCo Closing Report shall be determined in accordance with GAAP and in accordance with the definitions set forth in this Agreement.
(c) In the event that Citrix believes that (i) the SpinCo Closing Report prepared by Parent does not accurately reflect all or any portion of the SpinCo Cash Amount, SpinCo Working Capital, SpinCo Deferred Revenue or SpinCo Indebtedness at Closing, (ii) the Final Working Capital Adjustment, the SpinCo Deferred Revenue Surplus and/or the Final Net Adjustment Amount were incorrectly calculated by Parent, and/or (iii) the SpinCo Closing Report was not prepared in the manner required by this Agreement, Citrix shall, within thirty (30) days of the date on which Parent delivers the SpinCo Closing Report to Citrix, prepare and deliver to Parent a written notice of dispute (the “ Dispute Notice ”), which Dispute Notice shall set forth in reasonable detail the basis for the dispute. In the event that Citrix does not deliver a Dispute Notice to Parent within the time period required by the immediately preceding sentence, then the SpinCo Closing Report prepared by Parent, including the SpinCo Cash Amount, SpinCo Working Capital, SpinCo Deferred Revenue, SpinCo Indebtedness, Final Working Capital Adjustment, Final SpinCo Deferred Revenue Surplus and Final Net Adjustment Amount set forth therein, shall be deemed to be and shall become final, binding and conclusive on all of the parties hereto.
(d) In the event that Citrix timely delivers a Dispute Notice to Parent in accordance with the terms hereof, Parent and Citrix shall attempt to reconcile their differences, and any resolution by them as to any such disputes shall be final, binding and conclusive on all of the parties hereto. If Citrix and Parent are unable to resolve any such dispute within ten (10) Business Days of Parent’s receipt of the Dispute Notice from Citrix, Parent and Citrix shall submit the items remaining in dispute for resolution to KPMG LLP (the “ Independent Accounting Firm ”). Promptly following the engagement of the Independent Accounting Firm, and in any event within ten (10) Business Days following such engagement, Parent and Citrix shall submit to such Independent Accounting Firm (and the other party) all documentary materials and analyses that Parent or Citrix, as the case may be, believes to be relevant to a resolution of the dispute set forth in the Dispute Notice. The Independent Accounting Firm shall consider only those items or amounts set forth in the SpinCo Closing Report as to which Citrix has disagreed in the Dispute Notice. The Independent Accounting Firm shall, within thirty (30) days after receipt of all such submissions by Parent and Citrix, determine and deliver to Parent and Citrix a written report containing such Independent Accounting Firm’s determination of all disputed matters submitted to it for resolution, and such written report and the determinations contained therein shall be final, binding and conclusive on all of the parties hereto. The fees and disbursements of the Independent Accounting Firm shall be allocated to Citrix in the same proportion that the aggregate amount of such remaining disputed items so submitted to the Independent Accounting Firm that is unsuccessfully disputed by Citrix (as finally determined by the Independent Accounting Firm) bears to the total amount of such remaining disputed items so submitted, and the balance shall be paid by Parent.
(e) If the Final Net Adjustment Amount as finally determined in accordance with this Section 3.05 is a negative number, then within two (2) Business Days following the final determination of the Final Net Adjustment Amount, Citrix shall pay to the Surviving Corporation via wire transfer in immediately available funds (in accordance with the wire instructions provided by the Surviving Corporation) an amount in cash equal to the absolute value of such Final Net Adjustment Amount. If the Final Net Adjustment Amount as finally determined in accordance with this Section 3.05 is a positive number, then within two (2) Business Days following the final determination of the Final Net Adjustment Amount, Parent shall cause the Surviving Corporation to pay to Citrix via wire transfer in immediately available funds (in accordance with the wire instructions provided by Citrix) an amount in cash equal to such Final Net Adjustment Amount. For the avoidance of doubt, if the Final Net Adjustment Amount is zero (0), then no payments shall be made in connection therewith.
 
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CITRIX
Except as otherwise disclosed or identified in (a) the Citrix SEC Documents filed with or furnished to the SEC prior to the date of this Agreement, but excluding any risk factor disclosure and disclosure of risks included in any “forward looking statements” disclaimer or any other statement included in such Citrix SEC Documents to the extent they are predictive or forward looking in nature; or (b) the Citrix Disclosure Letter, Citrix hereby represents and warrants to Parent and Merger Sub as follows:
Section 4.01 Organization and Qualification .
(a) Each of Citrix and SpinCo is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to own its properties and carry on its business as now being conducted. Each of Citrix and SpinCo has the necessary corporate power and authority to enter into this Agreement and the Separation Agreement, to carry out its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. Each of Citrix and SpinCo is duly licensed or qualified and in good standing (or equivalent status as applicable) in each jurisdiction in which the assets owned or leased by it or the character of its activities require it to be licensed or qualified or in good standing (or equivalent status as applicable), except as would not have a SpinCo Material Adverse Effect.
(b) The execution and delivery by Citrix and SpinCo of this Agreement and the Separation Agreement, the performance by Citrix and SpinCo of their respective obligations hereunder and thereunder, and the consummation by Citrix and SpinCo of the transactions contemplated hereby and thereby have been duly authorized by all requisite action on the part of Citrix and SpinCo, except for such further action of the Citrix Board required, if applicable, to establish the Record Date and the Distribution Date, and the effectiveness of the declaration of the Distribution by the Citrix Board (which is subject to the satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in the Separation Agreement), and in the case of the Merger, the adoption of this Agreement by Citrix in its capacity as the sole stockholder of SpinCo. Each of this Agreement and the Separation Agreement has been duly executed and delivered by Citrix and SpinCo, and (assuming due authorization, execution and delivery by the other parties hereto) each of this Agreement and the Separation Agreement constitutes a legal, valid and binding obligation of Citrix and SpinCo, enforceable against Citrix and SpinCo in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to or affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity).
(c) To the extent it will be a party thereto, each Retained Citrix Entity and each Transferred Subsidiary has the necessary corporate power and authority to enter into the Loan Agreement and the Ancillary Agreements, to carry out its obligations thereunder and to consummate the transactions contemplated thereby. The execution and delivery by each Retained Citrix Entity and each Transferred Subsidiary of the Loan Agreement and the Ancillary Agreements, in each case to the extent it will be a party thereto, the performance by each Retained Citrix Entity and each Transferred Subsidiary of their respective obligations thereunder and the consummation by each Retained Citrix Entity and each Transferred Subsidiary of the transactions contemplated thereby will be, duly authorized by all requisite action on the part of each Retained Citrix Entity and each Transferred Subsidiary. The Loan Agreement and each Ancillary Agreement will be duly executed and delivered by each Retained Citrix Entity and each Transferred Subsidiary party thereto, and (assuming due authorization, execution and delivery by the other parties thereto) the Loan Agreement and each Ancillary Agreement will constitute, a legal, valid and binding obligation of each Retained Citrix Entity and each Transferred Subsidiary party thereto or contemplated to be party thereto, enforceable against each such Retained Citrix Entity or Transferred Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to or affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity).
Section 4.02 Capital Structure of SpinCo .
(a) As of the date hereof, (i) the authorized capital stock of SpinCo consists of 100 Shares; (ii) 100 Shares are issued and outstanding and owned by Citrix; and (iii) no Shares are being held by SpinCo in its
 
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treasury. Immediately following the Distribution, (x) the number of Shares issued and outstanding shall equal the total number of Shares contemplated by Section 2.04(f) of this Agreement, and the number of authorized Shares shall exceed that number and (y) no Shares will be held by SpinCo in its treasury.
(b) Except in connection with the Merger and as provided for in the Separation Agreement and the Employee Matters Agreement, (i) there are no options, warrants, convertible debt, other convertible instruments or other rights, agreements, arrangements or commitments of any character (A) relating to the issued or unissued capital stock of SpinCo; (B) obligating SpinCo to issue or sell any shares of capital stock of, or other equity interests in, SpinCo; (C) obligating SpinCo or any Transferred Subsidiary to issue, grant, extend or enter into any such option, warrant, right, agreement, arrangement or commitment; or (D) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights accruing to holders of Shares; and (ii) there are no outstanding contractual obligations of SpinCo to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, SpinCo or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, SpinCo or any other Person. All outstanding Shares are, and all such Shares which may be issued prior to the Effective Time in accordance with the terms of this Agreement and the Separation Agreement will be when issued, duly authorized, validly issued, fully paid and non-assessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any applicable Contracts or any provision of the certificate of incorporation or bylaws of SpinCo.
(c) There are no issued and outstanding bonds, debentures, notes or other indebtedness of SpinCo having the right to vote (or convertible into or exercisable for securities having the right to vote) on any matters on which stockholders of SpinCo may vote. Neither SpinCo nor any of the Transferred Subsidiaries is a party to any Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of, any Shares.
(d) The copies of the certificate of incorporation and bylaws of SpinCo which were previously furnished or made available to Parent are true, complete and correct copies of such documents as in effect on the date of this Agreement.
Section 4.03 Transferred Subsidiaries .
(a) Each Transferred Subsidiary (other than SpinCo) is duly organized, validly existing and in good standing (to the extent such concept is recognized in the relevant jurisdiction) under the Laws of its respective jurisdiction of incorporation and has the corporate power and authority to own its properties and carry on its business as now being conducted. Each Transferred Subsidiary (other than SpinCo) is duly licensed or qualified and in good standing (or equivalent status as applicable) in each jurisdiction in which the assets owned or leased by it or the character of its activities require it to be licensed or qualified or in good standing (or equivalent status as applicable), except as would not have a SpinCo Material Adverse Effect.
(b) As of the Effective Time, (i) SpinCo or another Transferred Subsidiary will own, directly or indirectly, all equity interests in the Transferred Subsidiaries (other than SpinCo), in substantially the manner set forth on  Schedule 4.03(b)  of the Citrix Disclosure Letter, in each case, free and clear of all Encumbrances other than restrictions imposed by applicable securities Laws; (ii) all equity interests in the Transferred Subsidiaries will have been duly authorized, validly issued, fully paid and non-assessable; and (iii) there will be no outstanding options, warrants, convertible debt, other convertible instruments or other rights, agreements, preemptive rights, subscription rights, or similar rights, or arrangements or commitments of any character (A) relating to the equity interests in the Transferred Subsidiaries or (B) obligating any Transferred Subsidiary to issue, grant, extend or enter into any such option, warrant, convertible debt, other convertible instrument or other right, agreement, arrangement or commitment.
(c) Except for its interests in the Transferred Subsidiaries (other than SpinCo), as of the Effective Time, SpinCo will not own, directly or indirectly, any capital stock of, or other equity or voting interest in, any Person.
(d) Prior to the Effective Time, true, complete and correct copies of the certificate of incorporation and bylaws (or similar organizational documents) of the Transferred Subsidiaries (other than SpinCo) will be furnished or made available to Parent.
 
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Section 4.04 No Conflict; Board and Stockholder Approval .
(a) Assuming that all consents, approvals, authorizations and other actions described herein or set forth on Schedule 4.04(a) of the Citrix Disclosure Letter have been obtained, all filings and notifications listed in Section 4.05 below or on Schedule 4.05 of the Citrix Disclosure Letter have been made, any applicable waiting period has expired or been terminated under applicable antitrust Laws, and except as may result from any facts or circumstances relating solely to Parent or its Affiliates, the execution, delivery and performance by Citrix and SpinCo of this Agreement and the Separation Agreement does not, and the execution, delivery and performance by each Retained Citrix Entity and each Transferred Subsidiary of the Loan Agreement and the Ancillary Agreements, in each case to which it is contemplated to be a party, will not, (i) violate, conflict with, or result in the breach of any provision of the certificate of incorporation or bylaws (or similar organizational documents) of any Retained Citrix Entity or Transferred Subsidiary; (ii)   conflict with or violate any Law or Governmental Order applicable to any Retained Citrix Entity, Transferred Subsidiary, or any SpinCo Asset; (iii) conflict with, result in any breach of, constitute a default (or an event which, with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, acceleration or cancellation of, any SpinCo Material Contract or any other Contract to which any Retained Citrix Entity or Transferred Subsidiary is a party or by which any of their respective material properties or assets is bound; or (iv) (A) result in the creation or the imposition of (x) any Encumbrance upon any of the SpinCo Assets (other than a Permitted Encumbrance); or (y) any Encumbrance upon any of the capital stock of the Transferred Subsidiaries; or (B) result in the cancellation, modification, revocation or suspension of any material license or permit, authorization or approval issued or granted by any Governmental Authority in respect of the SpinCo Assets or the Transferred Subsidiaries, except, in the case of  clauses (ii ) – (iv) , as would not materially and adversely affect the ability of Citrix or SpinCo to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement, the Loan Agreement, the Separation Agreement and the Ancillary Agreements or have a SpinCo Material Adverse Effect.
(b) The Citrix Board, by resolutions duly adopted at a meeting duly called and held and not subsequently rescinded or modified in any way, has approved this Agreement, the Separation Agreement and the transactions contemplated hereby and thereby. The SpinCo Board, by unanimous written consent, has approved and declared the advisability of this Agreement and the Separation Agreement and the transactions contemplated hereby and thereby, including the Merger. To Citrix’s Knowledge, no state takeover statute is applicable to the Merger or any of the other transactions contemplated by this Agreement.
(c) As promptly as practicable after execution of this Agreement, Citrix will approve and adopt, as SpinCo’s sole stockholder, this Agreement, the Merger and the other transactions contemplated by this Agreement and the transactions contemplated by the Separation Agreement which require the consent of SpinCo’s stockholders under the DGCL, SpinCo’s certificate of incorporation or SpinCo’s bylaws. Following such approval and adoption by Citrix, the approval of SpinCo’s stockholders after the Distribution Date will not be required to effect the transactions contemplated by this Agreement, including the Merger, unless this Agreement is amended on or after the Distribution Date and such approval is required, solely as a result of such amendment, under the DGCL or SpinCo’s certificate of incorporation or bylaws. The approval of Citrix’s stockholders is not required to effect the transactions contemplated by this Agreement, the Loan Agreement, the Separation Agreement or the Ancillary Agreements.
Section 4.05 Governmental Consents and Approvals . The execution, delivery and performance by Citrix and SpinCo of this Agreement and the Separation Agreement and the execution, delivery and performance by each Retained Citrix Entity and each Transferred Subsidiary of the Loan Agreement and the Ancillary Agreements, in each case to which it is contemplated to be a party, do not require any consent, approval, authorization or other order or declaration of, action by, filing with or notification to, any Governmental Authority, other than (a) compliance with, and filings under, the HSR Act or any other applicable antitrust Laws; (b) the filing and recordation of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to Section 2.02 ; (c) the filing with the SEC and effectiveness of the Registration Statements and, if applicable, the filing with the SEC of the Schedule TO, and such other compliance with the Exchange Act and the Securities Act as may be
 
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required in connection with the transactions contemplated by this Agreement; (d) compliance with, and filings under, the Communications Act; (e) consents, approvals, authorizations or other orders or declarations of, actions by, filings with, or notifications to, the state public utility commissions or similar state authorities having jurisdiction over the assets of Citrix and each Transferred Subsidiary; (f) consents, approvals, authorizations or other orders or declarations of, actions by, filings with, or notifications to, any Governmental Authority relating to the Internal Reorganization; (g) the amendment and restatement of SpinCo’s certificate of incorporation as described in Section 7.17 ; (h) as a result of any facts or circumstances relating solely to Parent or any of its Affiliates; or (i) where the failure to obtain such consent, approval, authorization, order, declaration or action, or to make such filing or notification, would not prevent or materially delay the consummation by Citrix or SpinCo of the transactions contemplated by this Agreement, the Loan Agreement, the Separation Agreement and the Ancillary Agreements or would not have a SpinCo Material Adverse Effect.
Section 4.06 Financial Information .
(a) Set forth on Schedule 4.06(a) of the Citrix Disclosure Letter are (i) the audited combined balance sheets of the SpinCo Business at December 31, 2015 and 2014 and the audited combined statements of income and comprehensive income, combined statements of equity and combined statements of cash flows of the SpinCo Business for the years ended December 31, 2015, 2014 and 2013, and (ii) the unaudited combined balance sheet of the SpinCo Business at March 31, 2016 and the unaudited combined statements of income and comprehensive income, combined statement of equity and combined statement of cash flows of the SpinCo Business for the quarterly period ended March 31, 2016 (collectively, the “ SpinCo Financial Statements ”). The SpinCo Financial Statements, subject to the notes thereto, (i) present fairly, in all material respects, the combined financial position of the SpinCo Business as of the dates thereof and the results of operations and cash flows of the SpinCo Business for the periods covered thereby; and (ii) were prepared in accordance with GAAP, consistently applied during the periods covered thereby.
(b) Except as set forth in the SpinCo Financial Statements or the notes thereto, and except for Liabilities arising out of or in connection with this Agreement, the Separation Agreement or the Ancillary Agreements, since December 31, 2015, the Citrix Entities have not incurred any Liabilities that will be liabilities of the Transferred Subsidiaries as a SpinCo Liability pursuant to the Separation Agreement other than Liabilities that would not have a SpinCo Material Adverse Effect. The Transferred Subsidiaries do not have as of the date hereof, and will not have as of the Closing Date, any indebtedness for borrowed money or liability for any indebtedness for borrowed money of any other Person.
(c) With respect to the SpinCo Business, Citrix maintains, and has maintained, a standard system of accounting established and administered in accordance with GAAP applied on a consistent basis. Citrix and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions in the SpinCo Business are executed in accordance with management’s general or specific authorizations; (ii) transactions in the SpinCo Business are recorded as necessary to permit preparation of financial statements of the SpinCo Business in conformity with GAAP applied on a consistent basis and to maintain accountability for assets of the SpinCo Business; (iii) access to assets of the SpinCo Business is permitted only in accordance with management’s general or specific authorizations; and (iv) the recorded accountability for assets of the SpinCo Business is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(d) As of immediately following the consummation of the transactions contemplated by this Agreement, the Separation Agreement and the Ancillary Agreements, (i) SpinCo will not be insolvent; (ii) SpinCo will not be left with unreasonably small capital; (iii) SpinCo will not have incurred debts or other Liabilities beyond its ability to pay such debts or other Liabilities as they mature; and (iv) the capital of SpinCo will not be impaired.
Section 4.07 Absence of Changes . Since December 31, 2015, (a) there has not occurred any SpinCo Material Adverse Effect and (b) except as contemplated by or permitted under this Agreement, the Separation Agreement and the Ancillary Agreements, the Citrix Entities have conducted the SpinCo Business in the ordinary course in all material respects. Without limiting the generality of the foregoing, since December 31, 2015, neither SpinCo nor any Transferred Subsidiary has taken any action that would require the consent of Parent under clauses (v) , (viii) , (ix) or (xiv) - (xvii) of Section 6.01(b) if taken after the date hereof.
 
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Section 4.08 Litigation . There is no Action by or against any Citrix Entity and relating to the SpinCo Business pending or, to the Knowledge of Citrix, threatened by or before any Governmental Authority that would have a SpinCo Material Adverse Effect or would prevent or materially delay the consummation by Citrix or SpinCo of the transactions contemplated by this Agreement, the Loan Agreement, the Separation Agreement and the Ancillary Agreements.
Section 4.09 Registration Statement . The information supplied by Citrix for inclusion or incorporation by reference in the Registration Statements and the Proxy Statement and, if applicable, the Schedule TO and any other filing contemplated by Section 7.01 , shall not, (a) with respect to each Registration Statement, at the time each Registration Statement is declared or becomes effective; (b) with respect to the Parent Registration Statement, at the time the prospectus contained in such Registration Statement is first mailed to stockholders of Citrix; (c) with respect to the Proxy Statement, at the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent; (d) at the time of the Parent Stockholders’ Meeting; (e) at the time the Schedule TO is filed with the SEC (if applicable); (f) on the Distribution Date; or (g) at the Effective Time, contain any untrue statement of a material fact or fail to state any 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. All documents that Citrix and SpinCo are responsible for filing with the SEC in connection with the transactions contemplated by this Agreement, the Loan Agreement, the Separation Agreement and the Ancillary Agreements will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
Section 4.10 Compliance with Laws .
(a) Citrix and its Subsidiaries are conducting the SpinCo Business in all material respects in compliance with all Laws and Governmental Orders applicable to the SpinCo Business, and the SpinCo Business is not in material violation of any such Law or Governmental Order. In connection with the SpinCo Business, Citrix and its Subsidiaries have obtained and are, in all material respects, in compliance with all material permits, licenses, approvals, agreements and authorizations issued or granted by any Governmental Authority (other than Environmental Permits, which are the subject of Section 4.17 ) that are necessary to conduct the SpinCo Business as currently conducted or to own, lease or operate the SpinCo Assets. This Section 4.10 does not apply with respect to the matters that are the subject of the representations and warranties set forth in Section 4.11 , Section 4.13 , Section 4.14 , Section 4.15 and Section 4.17 .
(b) Each of Citrix and its Subsidiaries is in compliance in all material respects with the Foreign Corrupt Practices Act of 1977, as amended (the “ FCPA ”), the U.K. Bribery Act and any similar U.S. or foreign Law concerning corrupt payments applicable to the SpinCo Business. Since January 1, 2013, neither Citrix nor any of its Subsidiaries has been given written notice by a Governmental Authority of, or to Citrix’s Knowledge has been investigated by any Governmental Authority with respect to, any violation by Citrix or its Subsidiaries of the FCPA, the U.K. Bribery Act, or any similar U.S. or foreign Law concerning corrupt payments applicable to the SpinCo Business. Neither Citrix nor any of its Subsidiaries nor, to Citrix’s Knowledge, any Person authorized to act, and acting, on behalf of Citrix or any of its Subsidiaries, in each case, with respect to the SpinCo Business, has paid or given, offered or promised to pay or give, or authorized or ratified the payment or giving, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other government official or employee or any political party or candidate for political office or Governmental Authority for the direct or indirect purpose of influencing any act or decision of such Person or of the Governmental Authority to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage that has resulted in a material violation of applicable Law. For purposes of this provision, an “official or employee” includes any known official or employee of any directly or indirectly government-owned or government-controlled entity, and any known officer or employee of a public international organization, as well as any person known to be acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.
(c) Without limiting Section 4.10(a) above, to the Knowledge of Citrix, each Citrix Entity is in compliance in all material respects with all export control and embargo laws applicable to the SpinCo Business. (A) Each Citrix Entity has obtained all approvals necessary for (i) exporting the SpinCo Products and related technology, including Software, outside the United States in accordance with all applicable U.S. export control
 
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regulations, and (ii) when any Citrix Entity is the seller of record, importing SpinCo Products and related technology, including Software, into any country in which such SpinCo Products are now sold or licensed for use, and (B) all such export and import approvals in the United States and throughout the world are valid, current, outstanding and in full force and effect, except in each case of clauses (A) or (B) as would not have a SpinCo Material Adverse Effect.
(d) Without limiting Section 4.10(a) above, to the Knowledge of Citrix, each Citrix Entity is in compliance in all material respects with the Communications Act applicable to the SpinCo Business. Each Citrix Entity has obtained all Communications Licenses necessary for the ownership and operation of its businesses as currently conducted and each such Communications License is in full force and effect. Except as would not reasonably be expected to have, individually or in the aggregate, a SpinCo Material Adverse Effect, Citrix and each Citrix Entity (i) is in compliance with the terms of all Communications Licenses and (ii) has not received written notice from the FCC alleging any conflict with or breach of any permit, license, approval, agreement or authorizations. Citrix and each Citrix Entity is in compliance with, and to the Knowledge of Citrix is not under investigation with respect to, and has not been threatened with any investigation, complaint or audit regarding or given notice of any violation of, the Communications Act, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a SpinCo Material Adverse Effect or to materially interfere with or delay the consummation of the Merger. There is no judgment, decree, injunction, rule or order of the FCC outstanding against Citrix or any Citrix Entity that has or would reasonably be expected to have, individually or in the aggregate, a SpinCo Material Adverse Effect or that, as of the date hereof, seeks to materially interfere with or delay the consummation of the Merger.
Section 4.11 Intellectual Property; IT; Data Security .
(a) Schedule 4.11(a) of the Citrix Disclosure Letter contains a complete and accurate list of (i) all Patents, registered and material unregistered and pending applications for Marks, and registered and pending applications for Copyrights, and domain name registrations, in each such case that are included in the SpinCo Intellectual Property and (ii) the owner of such item of Intellectual Property and the jurisdiction in which such item of Intellectual Property has been registered or filed and the applicable application, registration, or serial or other similar identification number.
(b) All Patents, Marks and Copyrights that are included in the SpinCo Intellectual Property that are issued by, or registered or the subject of an application filed with, as applicable, the U.S. Patent and Trademark Office, the U.S. Copyright Office or any similar office or agency anywhere in the world (the “ Registered SpinCo Intellectual Property ”) (i) are in compliance with all formal legal requirements and have been duly maintained (including the payment of maintenance fees) and are not expired, cancelled or abandoned, except for such issuances, registrations or applications that a Citrix Entity has permitted to expire or has cancelled or abandoned in its reasonable business judgment and (ii) are not subject to any maintenance fees or taxes or actions falling due within ninety (90) days after the Closing Date. No Registered SpinCo Intellectual Property is involved as of the date of this Agreement in any interference, reissue, re-examination, inter-partes review, post-grant review, or opposition proceeding. All Registered SpinCo Intellectual Property is subsisting, valid and enforceable; provided that the foregoing representation and warranty is made to Citrix’s Knowledge with respect to any Registered SpinCo Intellectual Property that is not issued or the subject of a registration.
(c) The Citrix Entities exclusively own all of the Intellectual Property owned or purported to be owned by the Citrix Entities and included in the SpinCo Assets and have valid and enforceable rights pursuant to written agreements to use, sell, license and otherwise exploit, as the case may be, all other Intellectual Property included in the SpinCo Assets as the same is used, sold, licensed and otherwise exploited by the Citrix Entities in the SpinCo Business as currently conducted, free and clear of all Encumbrances (other than Permitted Encumbrances). No Citrix Entity has any commitments or outstanding offers to or agreements with any standards body, patent pool, or similar formal or informal organization applicable to any SpinCo Intellectual Property.
(d) In the five (5) years immediately prior to the date hereof, there have been, and there are as of the date hereof, no Actions pending, or, to Citrix’s Knowledge, threatened alleging (i) infringement, misappropriation or any other violation of any Intellectual Property of any Person (“ Third Party Rights ”) by any of the Transferred Subsidiaries, the operation of the SpinCo Business or the manufacture, sale, offer for sale, importation and/or use of any SpinCo Product or (ii) that any of the SpinCo Intellectual Property is invalid or unenforceable.
 
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(e) To the Knowledge of Citrix, the operation of the SpinCo Business and the manufacture, sale, offer for sale, importation and/or use of any SpinCo Product have not in the five (5) years prior to the date hereof, do not and will not (if operated in substantially the same manner as operated by the Citrix Entities prior to the date hereof) infringe, misappropriate or otherwise violate any material Third Party Right. Notwithstanding any provision in this Agreement to the contrary, the representations and warranties contained in this Section 4.11(e) are the only representations and warranties being made by the Citrix Entities with respect to the infringement, misappropriation or other violation of any Third Party Rights.
(f) To the Knowledge of Citrix, there is no actual, alleged or suspected infringement, misappropriation or other violation by any Person of any of the SpinCo Intellectual Property and there is no Action pending or claim threatened, and no Citrix Entity has received from or delivered to any Person written notice of a claim, for any such infringement, misappropriation or other violation.
(g) The Citrix Entities have taken reasonable security measures to protect the confidentiality of Trade Secrets included in the SpinCo Intellectual Property, including requiring each employee and consultant of a Citrix Entity and any other Person with access to such Trade Secrets to execute a binding confidentiality agreement, copies or forms of which have been made available to Parent and, to the Knowledge of Citrix, there has not been any breach by any party to such confidentiality agreements.
(h) All current or former employees, consultants and contractors of the Citrix Entities who have contributed to the SpinCo Intellectual Property did so (i) within the scope of his or her employment or engagement such that, subject to and in accordance with applicable Law, all Intellectual Property arising therefrom became the exclusive property of the applicable Citrix Entity or (ii) pursuant to valid and enforceable written agreements assigning, subject to applicable Law, all Intellectual Property arising therefrom to the applicable Citrix Entity.
(i) (i) No Citrix Entity has granted, directly or indirectly, any current or contingent rights, licenses or interests in or to any source code of any product and service developed, marketed, licensed, sold, performed, distributed or otherwise made available by the SpinCo Business included in the SpinCo Assets (the “ SpinCo Products ”), and (ii) no Citrix Entity has provided or disclosed any source code of any SpinCo Product to any Person.
(j) Each SpinCo Product substantially performs in accordance with its documented specifications and as the applicable Citrix Entity has warranted to its customers, and the SpinCo Products do not contain any Malicious Code. Citrix uses industry standard methods to detect and prevent Malicious Code (and subsequently to correct or remove such Malicious Code) that may be present in the SpinCo Products. SpinCo does not include or install any spyware, adware, or other similar Software that monitors the use of the SpinCo Products or contacts any remote computer without the knowledge and express consent of the user(s) of the applicable SpinCo Product or remote computer, as applicable. The computer systems, servers, network equipment and other computer hardware owned, leased or licensed by the Citrix Entities included in the SpinCo Assets (“ SpinCo IT Systems ”) are, to Citrix’s Knowledge, adequate and sufficient for the operation of the SpinCo Business as currently conducted. The Citrix Entities have each implemented commercially reasonable data security, data backup, data storage, system redundancy and disaster avoidance and recovery procedures with respect to the SpinCo IT Systems.
(k) None of the SpinCo Products contain, incorporate, link or call to, are distributed with, or otherwise use any Free or Open Source Software. Neither the development of any SpinCo Product with any Free or Open Source Software, nor the incorporation, linking, calling, distribution or other use in, by or with any SpinCo Product of any such Free or Open Source Software, (i) obligates any Citrix Entity to disclose, make available, offer or deliver any portion of the source code of such SpinCo Product or component thereof to any third party, or (ii) requires that any SpinCo Product be licensed for the purpose of making derivative works, or be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind, or be redistributed at no charge, other than the applicable Free or Open Source Software. The Citrix Entities are in material compliance with all terms and conditions of any license for Free or Open Source Software that is contained in, incorporated into, linked or called by, distributed with, or otherwise used by any SpinCo Product.
 
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(l) (i) The Citrix Entities have reasonable security measures in place to protect Data relating to the customers of the SpinCo Business (“ SpinCo Customer Data ”) under their and, to the Knowledge of Citrix, their service providers’ possession or control from unauthorized access; and (ii) the Citrix Entities’ hardware, software, encryption, systems, policies and procedures are reasonably sufficient to protect the security and confidentiality of all material SpinCo Customer Data. To the Knowledge of Citrix, none of the Citrix Entities nor any of their service providers has suffered any breach in security that has permitted or resulted in any unauthorized access to or disclosure of SpinCo Customer Data. In the collection and processing by the Citrix Entities of any SpinCo Customer Data, the Citrix Entities, and, to the Knowledge of Citrix, their service providers have complied in all material respects with applicable Information Privacy Laws and the Privacy Policies of the Citrix Entities. No Action has been filed or commenced or, to the Knowledge of Citrix, threatened against, any of the Citrix Entities or their service providers alleging any failure to comply with any Information Privacy Laws related to or in connection with the SpinCo Business. The execution, delivery and performance of this Agreement, the transactions contemplated herein, including the Internal Reorganization and Distribution, will not violate any applicable Information Privacy Laws and the Privacy Policies of the Citrix Entities.
(m) There are no settlements, covenants not to sue, consents, judgments, or orders or similar obligations that: (i) restrict the rights of any Citrix Entity to use any SpinCo Intellectual Property; (ii) restrict the SpinCo Business in order to accommodate a third party’s Intellectual Property; or (iii) permit third parties to use the SpinCo Intellectual Property.
(n) The execution, delivery and performance of this Agreement, including the Internal Reorganization, the Distribution and the performance of any transactions contemplated by this Agreement, will not (i) violate, conflict with or result in a default (whether after the giving of notice, lapse of time or both) under any SpinCo IP Contract; (ii) cause the release, disclosure, or delivery of any SpinCo Intellectual Property by or to any escrow agent or other person, or any grant, assignment, or transfer to any other person of any license or other right or interest under, to, or in any SpinCo Intellectual Property; or (iii) result in the loss of or creation of any Encumbrance on any SpinCo Intellectual Property.
Section 4.12 Real Property .
(a) Schedule 4.12(a) of the Citrix Disclosure Letter sets forth the address (or other identifying description) of each parcel of Transferred Leased Real Property and the identity of the lessor, lessee and current occupant (if different from lessee) of each such parcel of Transferred Leased Real Property. The Transferred Leased Real Property constitutes all of the leased real property used or held for use by any Citrix Entity that is material to the conduct of the SpinCo Business as currently conducted. A Citrix Entity has a valid and binding leasehold interest in each parcel of Transferred Leased Real Property, free and clear of all Encumbrances other than Permitted Encumbrances. No Citrix Entity has subleased, licensed or otherwise granted to a third party any right to use or occupy all or any portion of the Transferred Leased Real Property.
(b) Schedule 4.12(b) of the Citrix Disclosure Letter sets forth the address and parcel number of each parcel of Transferred Owned Real Property. A Citrix Entity has good and marketable fee simple title in and to each parcel of Transferred Owned Real Property, including all of the buildings and improvements thereon, free and clear of all Encumbrances, other than Permitted Encumbrances. The Transferred Owned Real Property constitutes all of the owned real property used or held for use by any Citrix Entity that is material to the conduct of the SpinCo Business as currently conducted. All buildings, structures and other improvements located on the Transferred Owned Real Property are in good condition and repair in all material respects, reasonable wear and tear excepted. Other than the right of Parent pursuant to this Agreement, there are no outstanding options, rights of first offer or rights of first refusal to purchase any such Transferred Owned Real Property or any portion thereof or interest therein. Other than pursuant to easements of record, no Citrix Entity has leased or granted any right to use or occupy all or any portion of a Transferred Owned Real Property to a third party. There is no condemnation or other proceeding in eminent domain, pending or, to the Knowledge of Citrix, threatened, affecting the Transferred Owned Real Property or any portion thereof or interest therein.
 
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Section 4.13 Employee Benefit Matters .
(a) Schedule 4.13(a) of the Citrix Disclosure Letter lists, as of the date hereof, all material “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), whether or not subject to ERISA), all material bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance or other compensation or benefit plans, programs or arrangements, and all material employment, termination, severance or other Contracts, to which Citrix or a Subsidiary of Citrix is a party, with respect to which Citrix or a Subsidiary of Citrix has any obligation or which are maintained, contributed to or sponsored by Citrix or a Subsidiary of Citrix, in each case, for the benefit of any U.S. SpinCo Employee or to which any U.S. SpinCo Employee is a party (collectively, the “ U.S. SpinCo Plans ”). Citrix has made available to Parent the plan document, summary plan description, or summary of material terms of each material U.S. SpinCo Plan. Schedule 4.13(a) separately identifies, as of the date hereof, any U.S. SpinCo Plans (i) that are sponsored or maintained by SpinCo or a Transferred Subsidiary or (ii) for which Liabilities are expected to transfer to SpinCo or a Transferred Subsidiary under applicable Law as a result of the transactions contemplated by the Transaction Agreements (as defined in the Separation Agreement).
(b) Schedule 4.13(b) of the Citrix Disclosure Letter lists, as of the date hereof, all material employee benefit plans, material bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, jubilee, long-service, termination indemnity, severance or other compensation or benefit plans, programs or arrangements and all material employment, termination, severance or other Contracts, to which Citrix or a Subsidiary of Citrix is a party, with respect to which Citrix or a Subsidiary of Citrix has any obligation or which are maintained, contributed to or sponsored by Citrix or a Subsidiary of Citrix, in each case, for the benefit of any Non-U.S. SpinCo Employee or to which any Non-U.S. SpinCo Employee is a party (other than statutory plans) (collectively, the “ Non-U.S. SpinCo Plans ” and together with the U.S. SpinCo Plans, the “ SpinCo Plans ”). Citrix has made available to Parent the plan document, summary plan description, or summary of material terms of each material Non-U.S. SpinCo Plan. Schedule 4.13(b) separately identifies, as of the date hereof, any Non-U.S. SpinCo Plans (i) that are sponsored or maintained by SpinCo or a Transferred Subsidiary or (ii) for which Liabilities are expected to transfer to SpinCo or a Transferred Subsidiary under applicable Law as a result of the transactions contemplated by the Transaction Agreements (as defined in the Separation Agreement).
(c) Except as would not result in material liability to SpinCo or a Transferred Subsidiary, each SpinCo Plan (and any related trust or other funding vehicle) has been administered in all material respects in accordance with its terms and is in compliance in all material respects with ERISA, the Code and all other applicable material Laws. Each of SpinCo, its Subsidiaries and the Transferred Subsidiaries is in compliance in all material respects with ERISA, the Code and all other material Laws applicable to the SpinCo Plans.
(d) None of the execution and delivery of this Agreement, the Separation Agreement or the Ancillary Agreements, the Internal Reorganization, the Separation or the consummation of the Merger or any other transaction contemplated hereby (alone or in conjunction with any other event, including any termination of employment) will (i) entitle any SpinCo Employee to an increase in or right to receive any material compensation or benefit; (ii) accelerate the time of payment or vesting, or trigger any payment or funding, of any material compensation or benefit or trigger any other material obligation under any SpinCo Plan; or (iii) result in any breach or violation of or default under, or limit SpinCo’s right to amend, modify or terminate, any SpinCo Plan, except in each case as provided in this Agreement or the Employee Matters Agreement or required pursuant to applicable Law.
(e) Schedule 4.13(e) of the Citrix Disclosure Letter includes a list of all employees with the title of Vice President or above of Citrix and its Affiliates who, during the six (6) months prior to the date hereof, were internally transferred or whose duties and responsibilities were otherwise altered, in either case, in a manner that affects whether such employee is or is not classified as a SpinCo Employee, and with respect to each such employee, the employee’s name (to the extent permitted under applicable Law), job title and base rate of pay as of February 1, 2016 and July 1, 2016. Except (x) as set forth on Schedule 4.13(e) of the Citrix Disclosure Letter, (y) transfers of employees related to Citrix’s ShareFile business, and (z) as would not otherwise materially impair the operation of the SpinCo Business, during the six (6) months prior to the date hereof, no employees of the Citrix Entities were internally transferred or had their duties and responsibilities otherwise altered in a manner that affected whether such employee is or is not classified as a SpinCo Employee.
(f) Since December 31, 2015, there has not occurred any material increase in the base salaries, target bonus opportunity, or other compensation or benefits payable by Citrix or its Affiliates (including SpinCo and its Subsidiaries) to any of the SpinCo Employees other than in the ordinary course of business and consistent with past custom and practice.
 
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Section 4.14 Labor Matters . Schedule 4.14(a) of the Citrix Disclosure Letter (the “ SpinCo Employee Schedule ”) lists, as of the date hereof, all SpinCo Employees, including (to the extent permitted under applicable Law), each such individual’s name (or identification number to the extent the name cannot legally be provided), position, base salary or wage rate, bonus opportunity, date of hire, principal work location, whether such SpinCo Employee is actively at work or on leave of absence (including the nature of such leave) and whether such SpinCo Employee is a Sponsored Employee (and, with respect to each Sponsored Employee, the type and expiration date of the Sponsored Employee’s visa or work permit and the issuing country and country of citizenship of the Sponsored Employee). Schedule 4.14(b) of the Citrix Disclosure Letter (the “ SpinCo Contractor Schedule ”) lists, as of the date hereof, all SpinCo Contractors, including (to the extent permitted under applicable Law) each such individual’s name, base compensation rate and principal work location. Schedules 4.14(a) and (b) of the Citrix Disclosure Letter shall be updated in accordance with Section 7.14(c) . There are no collective bargaining agreements that are applicable to the current employees of Citrix and its Subsidiaries who will become SpinCo Employees to which a Citrix Entity is a party, including arrangements with works councils and other similar employee representative bodies, under which the SpinCo Employees will have outstanding rights or obligations on and following the Closing (each, a “ SpinCo Employee Representative Agreement ”). (a) There are no material strikes or lockouts with respect to any SpinCo Employees pending, or to the Knowledge of Citrix, threatened; (b) there is no material union organizing effort pending or, to the Knowledge of Citrix, threatened against the SpinCo Business; (c) there is no unfair labor practice, material labor dispute (other than routine individual grievances) or material labor arbitration proceeding pending or, to the Knowledge of Citrix, threatened against the SpinCo Business; and (d) there is no material slowdown, or work stoppage in effect or, to the Knowledge of Citrix, threatened with respect to the SpinCo Employees. Citrix conducts the SpinCo Business in compliance in all material respects with all applicable Laws with respect to labor relations, employment and employment practices, including occupational safety and health standards, terms and conditions of employment, payment of wages, classification of employees, immigration, visas, work status, pay equity and workers’ compensation.
Section 4.15 Taxes .
(a) All material Tax Returns required to be filed by or with respect to the Transferred Subsidiaries, as applicable, have been filed when due (taking into account any extensions of such due date), all such Tax Returns are true, correct and complete in all material respects, and the Transferred Subsidiaries have paid (or have had paid on their behalf) all respective material Taxes due and owing (whether or not shown on any Tax Return).
(b) Each of the Transferred Subsidiaries has withheld and paid all respective material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.
(c) The unpaid Taxes of the Transferred Subsidiaries did not, as of March 31, 2016, exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the SpinCo Financial Statements (rather than in any notes thereto). Since March 31, 2016, none of the Transferred Entities has incurred any liability for Taxes outside the ordinary course of business or otherwise inconsistent with past custom and practice.
(d) There are (i) no examinations or audits of any material Tax Return of the Transferred Subsidiaries in progress and (ii) no written notice of a claim or pending investigation has been received by Citrix or any of the Transferred Subsidiaries in the past three (3) years from any Governmental Authority in any jurisdiction where the Transferred Subsidiaries do not file Tax Returns or pay Taxes that the SpinCo Business is or may be subject to Taxes in that jurisdiction or may have a duty to file Tax Returns in that jurisdiction. None of the
 
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Transferred Subsidiaries has a permanent establishment or is resident for Tax purposes outside of its jurisdiction or territory of incorporation or formation that would give rise to material Taxes with respect to the Transferred Subsidiaries.
(e) To the Knowledge of Citrix, no Action is pending or has been threatened against or with respect to the Transferred Subsidiaries in respect of any Tax. No deficiency of material Taxes in respect of the SpinCo Business or the Transferred Subsidiaries has been asserted in writing as a result of any audit or examination by any Governmental Authority that is not adequately reserved for in the SpinCo Financial Statements in accordance with GAAP or has not been otherwise resolved or paid in full.
(f) Neither Citrix nor any of the Transferred Subsidiaries has entered into any “listed transaction” within the meaning of Treasury Regulations section 1.6011-4.
(g) To the Knowledge of Citrix, none of Citrix or its Subsidiaries has taken or agreed to take any action that would (and none of them is aware of any facts, agreement, plan or other circumstance that would) prevent either the Merger or the Separation from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code or otherwise prevent the Tax-Free Status of the External Transactions.
(h) There are no material Tax Encumbrances on any Transferred Subsidiary (other than Permitted Encumbrances).
(i) No Transferred Subsidiary has distributed stock of another Person or had its stock distributed by another Person in a transaction (other than the Distribution or a transaction effected in connection therewith, including the Internal Reorganization) that was intended to be governed in whole or in part by Section 355 of the Code (i) in the two (2) years prior to the date of this Agreement or (ii) in a distribution that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in connection with the Merger.
(j) None of the Transferred Subsidiaries is a party to, is bound by or has any obligation under any material Tax sharing, Tax allocation or Tax indemnity agreement or similar contract or arrangement (including any advance pricing agreement, closing agreement or other agreement relating to Taxes with any Governmental Authority) other than (i) commercial agreements entered into in the ordinary course of business, the principal purpose of which is not related to Taxes and (ii) the Tax Matters Agreement. None of the Transferred Subsidiaries has any Liability for Taxes of any Person (other than Citrix or any of its Subsidiaries) under Treasury Regulations section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(k) None of the Transferred Subsidiaries (or any of its respective predecessors) (i) is or was a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code, or (ii) was created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to the dual charter provision of Treasury Regulations section 301.7701-5(a).
(l) Except as set forth on Schedule 4.15(l) of the Citrix Disclosure Letter, no entity classification election pursuant to Treasury Regulations section 301.7701-3 has been filed with respect to any of the Transferred Subsidiaries.
(m) The representations and warranties set forth in this Section 4.15 and, to the extent relating to Tax matters, Section 4.13 , constitute the sole and exclusive representations and warranties of Citrix regarding Tax matters.
Section 4.16 SpinCo Material Contracts .
(a) Schedule 4.16(a) of the Citrix Disclosure Letter lists each of the following Contracts (x) to which a Citrix Entity is a party, in each case to the extent relating to the SpinCo Business, and (y) to which any Transferred Subsidiary is a party or by which their properties or assets are bound (such Contracts being “ SpinCo Material Contracts ”) that, in each case, is in effect as of the date of this Agreement:
(i) Contracts for the purchase of products or for the receipt of services, the performance of which will extend over a period of one (1) year or more and which involved consideration or payments by a Citrix Entity in excess of $250,000 in the aggregate during the calendar year ended December 31, 2015, or which require consideration or payments by a Citrix Entity in excess of $250,000 in the aggregate during any future calendar year;
 
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(ii) Contracts for the furnishing of products or services by a Citrix Entity, the performance of which will extend over a period of one (1) year or more and which involved consideration or payments to a Citrix Entity in excess of $250,000 in the aggregate during the calendar year ended December 31, 2015, or which require consideration or payments to a Citrix Entity in excess of $250,000 in the aggregate during any future calendar year;
(iii) Contracts concerning the establishment or operation of a partnership, joint venture or limited liability company;
(iv) Contracts (A) that (i) involve a settlement, standstill, co-existence, consent to use or similar obligation of a Citrix Entity to any other Person or of any other Person to a Citrix Entity relating to any claim or allegation of infringement, misappropriation or any other violation of Intellectual Property; (ii) grant any Citrix Entity a license to, option to, or right to use or exploit (including by means of a covenant not to sue) Intellectual Property owned or controlled by any other Person that is material to the operation of the SpinCo Business or (iii) assign any Citrix Entity Intellectual Property developed by any other Person that is material to the operation of the SpinCo Business, or (B) under which any Citrix Entity assigns or grants a license to, option to, or right to use or exploit (including by means of a covenant not to sue) any Intellectual Property, except, in each case of the foregoing clauses (A) and (B) , (x) Contracts with customers entered into in the ordinary course of business (other than (i) any such Contracts that are Restrictive Covenant Agreements, (ii) such Contracts the performance of which will extend over a period of one (1) year or more and that have fees greater than $250,000 in the aggregate during the calendar year ended December 31, 2015, or which require consideration or payments to a Citrix Entity in excess of $250,000 in the aggregate during any future calendar year, or (iii) such Contracts that are entered into on forms of Contract other than the applicable Citrix Entity’s standard form of customer Contract without material modification of any provisions relating to any SpinCo Intellectual Property), (y) off-the-shelf, commercially available and “shrink-wrap” software licenses that have annual or total license fees of less than $250,000 in the three (3) years prior to the date hereof or Free or Open Source Software (other than any such licenses for software that are imbedded or incorporated in a SpinCo Product) and (z) Contracts with former or current employees, independent contractors or consultants (collectively, other than such Contracts excluded under the foregoing clauses (x) , (y) and (z) , the “ SpinCo IP Contracts ”);
(v) the lease agreements that pertain to each parcel of Transferred Leased Real Property;
(vi) Contracts for the furnishing of products or services by a Citrix Entity to any Governmental Authority that are material to the SpinCo Business, taken as a whole;
(vii) Contracts containing (A) a covenant materially restricting the ability of any Transferred Subsidiary or its Affiliates to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers; (B) a provision granting the other party “most favored nation” status or equivalent preferential pricing terms; or (C) a provision granting the other party exclusivity or similar rights in respect of the SpinCo Business;
(viii) indentures, credit agreements, loan agreements and similar instruments pursuant to which a Transferred Subsidiary has or will incur or assume any indebtedness for borrowed money or has or will guarantee or otherwise become liable for any such indebtedness of any other Person; and
(ix) material Contracts under which there has been imposed an Encumbrance (other than Permitted Encumbrances) on any of the assets, tangible or intangible, of the SpinCo Business.
 
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(b) Citrix has made available to Parent true, complete and correct copies of each SpinCo Material Contract in effect on the date of this Agreement. Each SpinCo Material Contract is valid and binding on the applicable Citrix Entity and, to the Knowledge of Citrix, the counterparty thereto, and is in full force and effect, subject to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to or affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity), except insofar as it has expired in accordance with its terms after the date hereof. No Citrix Entity is in material breach of, or material default under, any SpinCo Material Contract to which it is a party.
Section 4.17 Environmental Matters .
(a) (i) Citrix and its Subsidiaries are conducting the SpinCo Business in compliance in all material respects with Environmental Law; (ii) in connection with the SpinCo Business, Citrix and its Subsidiaries have obtained and are in compliance in all material respects with all Environmental Permits that are necessary to conduct the SpinCo Business as now conducted or to own, lease or operate the SpinCo Assets; (iii) in connection with the SpinCo Business, Citrix and its Subsidiaries have not, to the Knowledge of Citrix, Released any Hazardous Materials that require any material Remedial Action pursuant to Environmental Law; and (iv) there is no Action pending or, to the Knowledge of Citrix, threatened, in connection with the SpinCo Business, against Citrix or any of its Subsidiaries that relates to any violation or alleged violation of, or any Liability or alleged Liability under, any Environmental Law that would reasonably be expected to result in a material cost or obligation to the SpinCo Business.
(b) Notwithstanding anything in this Agreement to the contrary, the representations and warranties contained in Section 4.05 , and, as such relates to occupational health and safety standards, Section 4.12 and in this Section 4.17 are the only representations and warranties being made by Citrix or SpinCo in this Agreement with respect to compliance with or Liability under Environmental Law or Environmental Permits or with respect to any environmental, health or safety matter related in any way to the SpinCo Business, the Transferred Leased Real Property or the Transferred Owned Real Property.
Section 4.18 Sufficiency of Assets; Title . Except as otherwise provided in this Agreement and after giving effect to the Internal Reorganization, the SpinCo Assets and the employment of the SpinCo Employees, together with the services and assets to be provided, the licenses to be granted and the other arrangements contemplated by the Separation Agreement, the Ancillary Agreements (including the services available under the Transition Services Agreement) and the commercial arrangements set forth on Schedule 4.18 of the Citrix Disclosure Letter (the “ Commercial Arrangements ”), shall, in the aggregate, constitute all of the assets necessary to conduct, in all material respects, the SpinCo Business immediately after the Closing in substantially the same manner as currently conducted by Citrix and its Subsidiaries. Except for Permitted Encumbrances, Citrix has good and valid title to, or valid leases, licenses or rights to use, all of the SpinCo Assets material to the SpinCo Business. Except for (a) the Excluded Assets to be used by the Retained Citrix Entities to provide the services to the Transferred Subsidiaries described in the Transition Services Agreement, (b) the Intellectual Property subject to the IP License Agreement and (c) the Commercial Arrangements, none of the Excluded Assets are used or held for use in any material respect in connection with the SpinCo Business, and none of the SpinCo Assets are used or held for use in any material respect in Citrix’s business other than the SpinCo Business. Except with respect to services or products contemplated to be provided pursuant to the Separation Agreement, the Ancillary Agreements or the Commercial Arrangements, none of the Intercompany Agreements is material to the SpinCo Business. Immediately after consummation of the Distribution and the other transactions contemplated by the Separation Agreement, except for this Agreement, the Separation Agreement, the Ancillary Agreements and the Commercial Arrangements, (i) SpinCo and the Transferred Subsidiaries will owe no obligations or Liabilities to Citrix and its Subsidiaries, and vice versa, and (ii) there will be no Contracts between SpinCo or any Transferred Subsidiary, on the one hand, and Citrix or any of its Subsidiaries, on the other hand.
Section 4.19 Brokers . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement, the
 
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Separation Agreement, the Loan Agreement or the Ancillary Agreements based upon arrangements made by or on behalf of Citrix or any of its Subsidiaries, for which Parent or any of its Subsidiaries (including the Transferred Subsidiaries following the Closing) would be liable.
Section 4.20 Disclaimer of Citrix and SpinCo .
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE IV OR IN THE SEPARATION AGREEMENT, THE LOAN AGREEMENT OR THE ANCILLARY AGREEMENTS, AND EXCEPT IN THE CASE OF FRAUD WITH RESPECT TO THE MATTERS SPECIFICALLY ADDRESSED IN THIS ARTICLE IV OR IN THE SEPARATION AGREEMENT OR THE ANCILLARY AGREEMENTS, AND NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF CITRIX, SPINCO OR THEIR RESPECTIVE REPRESENTATIVES MAKES OR HAS MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF THE SPINCO BUSINESS, THE RETAINED CITRIX ENTITIES, THE TRANSFERRED SUBSIDIARIES, THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE SPINCO ASSETS OR SPINCO LIABILITIES TO BE ASSUMED. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE IV OR IN THE SEPARATION AGREEMENT, THE LOAN AGREEMENT OR THE ANCILLARY AGREEMENTS AND EXCEPT IN THE CASE OF FRAUD WITH RESPECT TO THE MATTERS SPECIFICALLY ADDRESSED IN THIS ARTICLE IV OR IN THE SEPARATION AGREEMENT, THE LOAN AGREEMENT OR THE ANCILLARY AGREEMENTS, CITRIX, SPINCO AND THEIR RESPECTIVE REPRESENTATIVES HAVE NOT MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, WITH RESPECT TO (I) ANY RETAINED CITRIX ENTITIES, EXCLUDED ASSETS OR EXCLUDED LIABILITIES; (II) MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE OR PURPOSE AND ALL OTHER WARRANTIES ARISING UNDER THE UNIFORM COMMERCIAL CODE (OR SIMILAR LAWS); (III) THE OPERATION OF THE SPINCO BUSINESS AFTER THE CLOSING; OR (IV) THE PROBABLE SUCCESS, PROFITABILITY OR PROSPECTS OF THE SPINCO BUSINESS AFTER THE CLOSING, AND ANY SUCH REPRESENTATION OR WARRANTY IS HEREBY EXPRESSLY DISCLAIMED.
(b) EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE IV OR IN THE SEPARATION AGREEMENT, THE LOAN AGREEMENT OR THE ANCILLARY AGREEMENTS, AND EXCEPT IN THE CASE OF FRAUD WITH RESPECT TO THE MATTERS SPECIFICALLY ADDRESSED IN THIS ARTICLE IV OR IN THE SEPARATION AGREEMENT, THE LOAN AGREEMENT OR THE ANCILLARY AGREEMENTS, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF CITRIX, SPINCO OR THEIR REPRESENTATIVES WILL HAVE OR BE SUBJECT TO ANY LIABILITY OR INDEMNIFICATION OBLIGATION TO PARENT, MERGER SUB, ITS REPRESENTATIVES OR TO ANY OTHER PERSON RESULTING FROM THE DISTRIBUTION TO PARENT, MERGER SUB OR ITS REPRESENTATIVES OF, OR PARENT’S, MERGER SUB’S OR THEIR REPRESENTATIVES’ USE OF, ANY INFORMATION RELATING TO THE SPINCO BUSINESS, INCLUDING ANY PROJECTIONS, FORECASTS, BUSINESS PLANS, BUDGETS, COST ESTIMATES OR OTHER MATERIAL MADE AVAILABLE TO PARENT OR ITS REPRESENTATIVES, WHETHER ORALLY OR IN WRITING, IN CERTAIN “DATA ROOMS,” MANAGEMENT PRESENTATIONS, FUNCTIONAL “BREAK-OUT” DISCUSSIONS, “EXPERT SESSIONS,” DILIGENCE CALLS OR MEETINGS, RESPONSES TO QUESTIONS SUBMITTED ON BEHALF OF PARENT, MERGER SUB OR THEIR REPRESENTATIVES OR IN ANY OTHER FORM IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
 
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except as otherwise disclosed or identified in (a) the Parent SEC Documents filed with or furnished to the SEC prior to the date of this Agreement, but excluding any risk factor disclosure and disclosure of risks included in any “forward looking statements” disclaimer or any other statement included in such Parent SEC Documents to the extent they are predictive or forward looking in nature; or (b) the Parent Disclosure Letter, Parent and Merger Sub, jointly and severally, hereby represent and warrant to Citrix and SpinCo as follows:
Section 5.01 Organization and Qualification; Subsidiaries .
(a) Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to own its properties and carry on its business as now being conducted. Each of Parent and Merger Sub has the necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder, and to consummate the transactions contemplated hereby. Each of Parent and Merger Sub is duly licensed or qualified and in good standing (or equivalent status as applicable) in each jurisdiction in which the assets owned or leased by it or the character of its activities require it to be licensed or qualified or in good standing (or equivalent status as applicable), except as would not have a Parent Material Adverse Effect.
(b) The execution and delivery by Parent and Merger Sub of this Agreement, the performance by Parent and Merger Sub of their respective obligations hereunder and the consummation by Parent and Merger Sub of the transactions contemplated hereby and thereby have been duly authorized by all requisite action on the part of Parent and Merger Sub, except for the Parent Stockholder Approval, and in the case of the Merger, the adoption of this Agreement by Parent in its capacity as the sole stockholder of Merger Sub. This Agreement has been duly executed and delivered by Parent and Merger Sub, and (assuming due authorization, execution and delivery by the other parties hereto) this Agreement constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to or affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity).
(c) Parent has the necessary corporate power and authority to enter into the Loan Agreement and each Ancillary Agreement to which it is or will be a party, to carry out its obligations thereunder and to consummate the transactions contemplated thereby. The execution and delivery by Parent of the Loan Agreement and each Ancillary Agreement to which it is or will be a party, the performance by Parent of its obligations thereunder and the consummation by Parent of the transactions contemplated thereby have been, or will be, duly authorized by all requisite action on the part of Parent. The Loan Agreement and each Ancillary Agreement will be duly executed and delivered by Parent, and (assuming due authorization, execution and delivery by the other parties thereto) the Loan Agreement and each Ancillary Agreement will constitute, a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to or affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity).
(d) Schedule 5.01(d)  of the Parent Disclosure Letter sets forth a list as of the date hereof of the Subsidiaries of Parent and their respective jurisdictions of organization. Each Subsidiary of Parent is duly organized, validly existing and in good standing (to the extent such concept is recognized in the relevant jurisdiction) under the Laws of its respective jurisdiction of incorporation and has the corporate power and authority to own its properties and carry on its business as now being conducted. Each Subsidiary of Parent is duly licensed or qualified and in good standing (or equivalent status as applicable) in each jurisdiction in which the assets owned or leased by it or the character of its activities require it to be licensed or qualified or in good standing (or equivalent status as applicable), except as would not have a Parent Material Adverse Effect. (i) Parent or a Subsidiary of Parent owns, directly or indirectly, all equity interests in the Subsidiaries of Parent, in each case, free and clear of all Encumbrances other than restrictions imposed by applicable securities Laws; (ii) all equity interests in the Subsidiaries of Parent have been duly authorized and are validly issued, fully paid and non-assessable; and (iii) there are no outstanding options, warrants, convertible debt, other convertible instruments or other rights, agreements, arrangements or commitments of any character relating to the equity interests in the Subsidiaries of Parent.
(e) Merger Sub is a direct, wholly-owned Subsidiary of Parent. Merger Sub has been formed solely for the purpose of engaging in the transactions contemplated by this Agreement and prior to the Closing Date will have engaged in no other business activities. The copies of the certificate of incorporation and bylaws of Merger Sub that were previously furnished or made available to Citrix are true, complete and correct copies of such documents as in effect on the date of this Agreement.
 
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Section 5.02 Capitalization .
(a) As of the date hereof, the authorized capital stock of Parent consists of 75,000,000 shares of Parent Common Stock and 5,000,000 shares of Parent Preferred Stock. As of the close of business on July 22, 2016 (the “ Parent Capitalization Date ”), (i) 25,306,647 shares of Parent Common Stock, and zero shares of Parent Preferred Stock, were issued and outstanding; (ii) (A) 526,535 shares of Parent Common Stock were subject to outstanding Parent Stock Options; (B) 1,367,678 shares of Parent Common Stock were subject to outstanding Parent RSUs with time-based vesting; and (C) 189,500 shares of Parent Common Stock were subject to outstanding Parent RSUs with performance-based vesting; and (iii) 2,798,389 shares of Parent Common Stock, and zero shares of Parent Preferred Stock, were held in the treasury of Parent. Except as set forth above, as of the Parent Capitalization Date, (x) there were no options, warrants, convertible debt, other convertible instruments or other rights, agreements, arrangements or commitments of any character (aa) relating to the issued or unissued capital stock of Parent; (bb) obligating Parent or any of its Subsidiaries to issue or sell any shares of capital stock of, or other equity interests in, Parent; (cc) obligating Parent or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, right, agreement, arrangement or commitment; or (dd) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights accruing to holders of shares of Parent Common Stock; and (y) there are no outstanding contractual obligations of Parent or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Parent Common Stock. All outstanding shares of Parent Common Stock are, and all such shares of Parent Common Stock which may be issued in accordance with the terms of this Agreement (including the Merger Consideration) will be when issued, duly authorized, validly issued, fully paid and non-assessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any applicable Contracts or any provision of the Parent Charter or the bylaws of Parent.
(b) There are no issued and outstanding bonds, debentures, notes or other indebtedness of Parent or any of its Subsidiaries having the right to vote (or convertible into or exercisable for securities having the right to vote) on any matters on which stockholders of Parent may vote. Neither Parent nor any of its Subsidiaries is a party to any Contract or agreement relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of, any shares of Parent Common Stock.
Section 5.03 No Conflict; Board and Stockholder Approval .
(a) Assuming that all consents, approvals, authorizations and other actions described herein or set forth on Schedule 5.03(a) of the Parent Disclosure Letter have been obtained, all filings and notifications listed in Section 5.04 below or on Schedule 5.04 of the Parent Disclosure Letter have been made, any applicable waiting period has expired or been terminated under applicable antitrust Laws, and except as may result from any facts or circumstances relating solely to Citrix or its Affiliates, the execution, delivery and performance by Parent of this Agreement does not, and the execution, delivery and performance by Parent of the Loan Agreement and each Ancillary Agreement to which it is contemplated to be a party will not, (a) violate, conflict with, or result in the breach of any provision of the certificate of incorporation or bylaws of Parent; (b) conflict with or violate any Law or Governmental Order applicable to Parent or any Subsidiary of Parent; (c) conflict with, result in any breach of, constitute a default (or an event which, with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, acceleration or cancellation of, any Parent Material Contract or any other Contract to which Parent or any Subsidiary of Parent is a party or by which any of their respective material properties or assets is bound; or (d) (i) result in the creation or the imposition of (x) any Encumbrance upon any assets of Parent or any of its Subsidiaries (other than a Permitted Encumbrance); or (y) any Encumbrance upon any of the capital stock of Parent or any of its Subsidiaries; or (ii) result in the cancellation, modification, revocation or suspension of any material license or permit, authorization or approval issued or granted by any Governmental Authority in respect of Parent or any of its Subsidiaries, or any of their respective assets, except, in the case of clauses (b) - (d) , as would not materially and adversely affect the ability of Parent to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement, the Loan Agreement and the Ancillary Agreements or have a Parent Material Adverse Effect.
(b) (b) The Parent Board, by resolutions duly adopted at a meeting duly called and held and not subsequently rescinded or modified in any way, has (i) determined that this Agreement and the transactions contemplated hereby, including the Merger, are advisable and has approved this Agreement; and (ii) recommended
 
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the approval by the stockholders of Parent of the Parent Share Issuance. The Parent Board, by resolutions duly adopted at a meeting duly called and held and not subsequently rescinded or modified in any way, will have approved, declared advisable and recommended the approval by the stockholders of Parent of the Parent Charter Amendment and, to the extent the New Parent Stock Plan will be included in the Proxy Statement, the New Parent Stock Plan.
(c) The Parent Stockholder Approval is the only vote of the holders of any voting securities of Parent under any Law, the rules and regulations of Nasdaq, the Parent Charter and Parent’s bylaws necessary to approve the transactions contemplated by this Agreement, including the Parent Share Issuance, the Parent Charter Amendment and the New Parent Stock Plan.
(d) As promptly as practicable after execution of this Agreement (and in any event within twenty-four (24) hours), Parent will approve and adopt, as Merger Sub’s sole stockholder, this Agreement, the Merger and the other transactions contemplated by this Agreement which require the consent of Merger Sub’s stockholders under the DGCL, Merger Sub’s certificate of incorporation or Merger Sub’s bylaws.
Section 5.04 Governmental Consents and Approvals . The execution, delivery and performance by Parent and Merger Sub of this Agreement and the execution, delivery and performance by Parent of the Loan Agreement and the Ancillary Agreements to which it is contemplated to be a party do not require any consent, approval, authorization or other order or declaration of, action by, filing with or notification to, any Governmental Authority, other than (a) compliance with, and filings under, the HSR Act or any other applicable antitrust Laws; (b) the filing and recordation of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to Section 2.02 ; (c) the filing with the SEC of the Proxy Statement, the filing with the SEC and effectiveness of the Registration Statements and such other compliance with the Exchange Act and the Securities Act as may be required in connection with the transactions contemplated by this Agreement; (d) compliance with the rules and regulations of Nasdaq as required in connection with the transactions contemplated by this Agreement; (e) as a result of any facts or circumstances relating solely to Citrix or any of its Affiliates; or (f) where the failure to obtain such consent, approval, authorization, order, declaration or action, or to make such filing or notification, would not prevent or materially delay the consummation by Parent or Merger Sub of the transactions contemplated by this Agreement, the Loan Agreement and the Ancillary Agreements or would not have a Parent Material Adverse Effect.
Section 5.05 SEC Filings; Financial Information .
(a) Parent has made available to Citrix complete and correct copies of the Parent SEC Documents. Since January 1, 2013, Parent has filed with the SEC each report, statement, schedule or registration statement or other filing required by applicable Law to be filed by Parent at or prior to the time so required. As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), each Parent SEC Document complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act. As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), no Parent SEC Document filed pursuant to the Exchange Act contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. No Parent SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act, as of the date such registration statement or amendment became effective, contained any untrue statement of a material fact or omitted 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.
(b) Each of the consolidated financial statements (including, in each case, any notes thereto) contained (or incorporated by reference) in the Parent SEC Documents (i) present fairly, in all material respects, the combined financial position of Parent and its Subsidiaries as of the dates thereof and the results of operations and cash flows of Parent and its Subsidiaries for the periods covered thereby (subject, in the case of unaudited statements, to normal and recurring year-end adjustments which have not had, and would not have, a Parent Material Adverse Effect); and (ii) were prepared in accordance with GAAP as applied by Parent (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC).
 
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(c) Parent has timely filed all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the Exchange Act; or (ii) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) with respect to all applicable Parent SEC Documents. Parent maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that all material information concerning Parent and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of Parent’s SEC filings and other public disclosure documents. As used in this Section 5.05(c) , the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. There were no significant deficiencies or material weaknesses identified in management’s assessment of internal control over financial reporting as of and for the year ended December 31, 2015 (nor has any such deficiency or weakness been identified as of the date hereof).
(d) Parent maintains, and has maintained, a standard system of accounting established and administered in accordance with GAAP applied on a consistent basis. Parent and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP applied on a consistent basis and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorizations; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(e) Upon the consummation of the transactions contemplated by this Agreement, the Separation Agreement, the Loan Agreement and the Ancillary Agreements, (i) Parent will not be insolvent; (ii) Parent will not be left with unreasonably small capital; (iii) Parent will not have incurred debts or other Liabilities beyond its ability to pay such debts or other Liabilities as they mature; and (iv) the capital of Parent will not be impaired.
Section 5.06 Absence of Changes . Since December 31, 2015, (a) there has not occurred any Parent Material Adverse Effect and (b) except as contemplated by or permitted under this Agreement, Parent and its Subsidiaries have conducted their businesses in the ordinary course in all material respects. Without limiting the generality of the foregoing, since December 31, 2015, neither Parent nor any of its Subsidiaries has taken any action that would require the consent of Citrix under clauses (vi) , (viii) - (ix) or (xiv) - (xvi) of Section 6.02(b) if taken after the date hereof.
Section 5.07 Litigation . There is no Action by or against Parent or any of its Subsidiaries pending or, to Parent’s Knowledge, threatened before any Governmental Authority that would have a Parent Material Adverse Effect or would prevent or materially delay the consummation by Parent or Merger Sub of the transactions contemplated by this Agreement, the Loan Agreement and the Ancillary Agreements.
Section 5.08 Registration Statement . The information supplied by Parent for inclusion or incorporation by reference in the Registration Statements and the Proxy Statement and, if applicable, the Schedule TO and any other filing contemplated by Section 7.01 , shall not, (a) with respect to each Registration Statement, at the time each Registration Statement is declared or becomes effective; (b) with respect to the Parent Registration Statement, at the time the prospectus contained in such Registration Statement is first mailed to stockholders of Citrix; (c) with respect to the Proxy Statement, at the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Parent; (d) at the time of the Parent Stockholders’ Meeting; (e) at the time the Schedule TO is filed with the SEC (if applicable); (f) on the Distribution Date; or (g) at the Effective Time, contain any untrue statement of a material fact or fail to state any 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. All documents that Parent is responsible for filing with the SEC in connection with the transactions contemplated by this Agreement, the Loan Agreement and the Ancillary Agreements will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the Exchange Act.
 
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Section 5.09 Compliance with Laws .
(a) Parent and its Subsidiaries are conducting their businesses in all material respects in compliance with all Laws and Governmental Orders applicable to the businesses of Parent and its Subsidiaries and are not in material violation of any such Law or Governmental Order. Each of Parent and its Subsidiaries has obtained and is, in all material respects, in compliance with all material permits, licenses, approvals, agreements and authorizations issued or granted by any Governmental Authority (other than Environmental Permits, which are the subject of Section 5.16) that are necessary to conduct its business as currently conducted or to own, lease or operate its assets and facilities. This Section 5.09(a) does not apply with respect to the matters that are the subject of the representations and warranties set forth in Section 5.10 , Section 5.12 , Section 5.13 , Section 5.14 and Section 5.16 .
(b) Each of Parent and its Subsidiaries is in compliance in all material respects with the FCPA, the U.K. Bribery Act and any similar U.S. or foreign Law concerning corrupt payments applicable to its businesses. Since January 1, 2013, neither Parent nor any of its Subsidiaries has been given written notice by a Governmental Authority of, or to Parent’s Knowledge has been investigated by any Governmental Authority with respect to, any violation by Parent or its Subsidiaries of the FCPA, the U.K. Bribery Act, or any similar U.S. or foreign Law concerning corrupt payments applicable to its businesses. Neither Parent nor any of its Subsidiaries nor, to Parent’s Knowledge, any Person authorized to act, and acting, on behalf of Parent or its Subsidiaries has paid or given, offered or promised to pay or give, or authorized or ratified the payment or giving, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other government official or employee or any political party or candidate for political office or Governmental Authority for the direct or indirect purpose of influencing any act or decision of such Person or of the Governmental Authority to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage that has resulted in a material violation of applicable Law. For purposes of this provision, an “official or employee” includes any known official or employee of any directly or indirectly government-owned or government-controlled entity, and any known officer or employee of a public international organization, as well as any person known to be acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.
(c) Without limiting Section 5.09(a) above, to the Knowledge of Parent, each Parent Entity is in compliance in all material respects with all export control and embargo laws applicable to the business of Parent and its Subsidiaries. (A) Each Parent Entity has obtained all approvals necessary for (i) exporting the Parent Products and related technology, including Software, outside the United States in accordance with all applicable U.S. export control regulations, and (ii) when any Parent Entity is the seller of record, importing Parent Products and related technology, including Software, into any country in which such Parent Products are now sold or licensed for use, and (B) all such export and import approvals in the United States and throughout the world are valid, current, outstanding and in full force and effect, except in each case in clauses (A) and (B) as would not have a Parent Material Adverse Effect.
Section 5.10 Intellectual Property; IT; Data Security .
(a) Schedule 5.10(a) of the Parent Disclosure Letter contains a complete and accurate list of (i) all Patents, registered and material unregistered and pending applications for Marks, and registered and pending applications for Copyrights, and domain name registrations, in each such case that are included in the Parent Intellectual Property and (ii) the owner of such item of Intellectual Property and the jurisdiction in which such item of Intellectual Property has been registered or filed and the applicable application, registration, or serial or other similar identification number.
(b) All Patents, Marks and Copyrights owned or purported to be owned or exclusively licensed by Parent and each of its Subsidiaries and used or held for use in their respective businesses that are issued by, or registered or the subject of an application filed with, as applicable, the U.S. Patent and Trademark Office, the U.S. Copyright Office or any similar office or agency anywhere in the world (the “ Registered Parent Intellectual Property ”) (i) are in compliance with all formal legal requirements and have been duly maintained (including the payment of maintenance fees) and are not expired, cancelled or abandoned, except for such issuances, registrations or applications that Parent or any of its Subsidiaries has permitted to expire or has cancelled or abandoned in its reasonable business judgment and (ii) are not subject to any maintenance fees or taxes or actions falling due within
 
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ninety (90) days after the Closing Date. No Registered Parent Intellectual Property is involved as of the date of this Agreement in any interference, reissue, re-examination, inter-partes review, post-grant review, or opposition proceeding. All Registered Parent Intellectual Property is subsisting, valid and enforceable; provided that the foregoing representation and warranty is made to Parent’s Knowledge with respect to any Registered Parent Intellectual Property that is not issued or the subject of a registration.
(c) Parent and its Subsidiaries exclusively own all of the Intellectual Property owned or purported to be owned by them and have valid and enforceable rights pursuant to written agreements to use, sell, license and otherwise exploit, as the case may be, all other Intellectual Property that is currently used, sold, licensed and otherwise exploited by Parent and its Subsidiaries in their business as currently conducted, free and clear of all Encumbrances (other than Permitted Encumbrances). None of Parent or any of its Subsidiaries has any commitments or outstanding offers to or agreements with any standards body, patent pool, or similar formal or informal organization applicable to any Parent Intellectual Property.
(d) In the five (5) years immediately prior to the date hereof, there have been, and there are as of the date hereof, no Actions pending, or, to the Knowledge of Parent, threatened alleging (i) infringement, misappropriation or any other violation of any Third Party Rights by Parent or any of its Subsidiaries, the operation of any of the businesses of Parent and its Subsidiaries or the manufacture, sale, offer for sale, importation and/or use of any Parent Product or (ii) that any of the Parent Intellectual Property is invalid or unenforceable.
(e) To the Knowledge of Parent, the operation of each of the businesses of Parent and its Subsidiaries and the manufacture, sale, offer for sale, importation and/or use of any Parent Products have not in the five (5) years prior to the date hereof, do not and will not infringe, misappropriate or otherwise violate any material Third Party Right. Notwithstanding any provision of this Agreement to the contrary, the representations and warranties contained in this Section 5.10(e) are the only representations and warranties being made by Parent with respect to the infringement, misappropriation or other violation of any Third Party Rights.
(f) To the Knowledge of Parent, there is no actual, alleged or suspected infringement, misappropriation or other violation by any Person of any of the Parent Intellectual Property and there is no Action pending or claim threatened, and neither Parent nor any of its Subsidiaries has received from or delivered to any Person written notice of a claim, for any such infringement, misappropriation or other violation.
(g) Parent and each of its Subsidiaries has taken reasonable security measures to protect the confidentiality of Trade Secrets included in the Parent Intellectual Property, including requiring each employee and consultant of Parent and its Subsidiaries and any other Person with access to such Trade Secrets to execute a binding confidentiality agreement, copies or forms of which have been made available to Citrix and, to the Knowledge of Parent, there has not been any breach by any party to such confidentiality agreements.
(h) All current or former employees, consultants and contractors of the Parent Entities who have contributed to the Parent Intellectual Property did so (i) within the scope of his or her employment or engagement such that, subject to and in accordance with applicable Law, all Intellectual Property arising therefrom became the exclusive property of the applicable Parent Entity or (ii) pursuant to valid and enforceable written agreements assigning, subject to applicable Law, all Intellectual Property arising therefrom to the applicable Parent Entity.
(i) (i) Neither Parent nor any of its Subsidiaries has granted, directly or indirectly, any current or contingent rights, licenses or interests in or to any source code of any product and service developed, marketed, licensed, sold, performed, distributed or otherwise made available by their respective businesses (the “ Parent Products ”), and (ii) neither Parent nor any of its Subsidiaries has provided or disclosed any source code of any of the Parent Products to any Person.
(j) Each Parent Product substantially performs in accordance with its documented specifications and as Parent or its applicable Subsidiary has warranted to its customers, and the Parent Products do not contain any Malicious Code. Parent uses industry standard methods to detect and prevent Malicious Code (and subsequently to correct or remove such Malicious Code) that may be present in the Parent Products. Parent does not
 
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include or install any spyware, adware, or other similar Software that monitors the use of the Parent Products or contacts any remote computer without the knowledge and express consent of the user(s) of the applicable Parent Product or remote computer, as applicable. The computer systems, servers, network equipment and other computer hardware owned, leased or licensed by Parent and its Subsidiaries (“ Parent IT Systems ”) are, to Parent’s Knowledge, adequate and sufficient for the operation of Parent’s and its Subsidiaries’ business as currently conducted. Parent and its Subsidiaries have each implemented commercially reasonable data security, data backup, data storage, system redundancy and disaster avoidance and recovery procedures with respect to the Parent IT Systems.
(k) None of the Parent Products contain, incorporate, link or call to, are distributed with, or otherwise use any Free or Open Source Software. Neither the development of any Parent Product with any Free or Open Source Software, nor the incorporation, linking, calling, distribution or other use in, by or with any Parent Product of any such Free or Open Source Software, (i) obligates Parent or any of its Subsidiaries to disclose, make available, offer or deliver any portion of the source code of such Parent Product or component thereof to any third party, or (ii) requires that any Parent Product be licensed for the purpose of making derivative works, or be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind, or be redistributed at no charge, other than the applicable Free or Open Source Software. Parent and its Subsidiaries are in material compliance with all terms and conditions of any license for Free or Open Source Software that is contained in, incorporated into, linked or called by, distributed with, or otherwise used by any Parent Product.
(l) (i) Parent and its Subsidiaries have reasonable security measures in place to protect Data relating to the customers of their respective businesses (“ Parent Customer Data ”) under their and, to the Knowledge of Parent, their service providers’ possession or control from unauthorized access; and (ii) Parent and each of its Subsidiaries’ hardware, software, encryption, systems, policies and procedures are reasonably sufficient to protect the security and confidentiality of all material Parent Customer Data. To the Knowledge of Parent, none of Parent or its Subsidiaries nor their service providers has suffered any breach in security that has permitted or resulted in any unauthorized access to or disclosure of Parent Customer Data. In the collection and processing by Parent and its Subsidiaries of any Parent Customer Data, Parent and its Subsidiaries, and, to the Knowledge of Parent, their service providers have complied in all material respects with applicable Information Privacy Laws, the Privacy Policies of Parent and its Subsidiaries. No Action has been filed or commenced or, to the Knowledge of Parent, threatened against, any of Parent or its Subsidiaries or their service providers alleging any failure to comply with any Information Privacy Laws related to or in connection with the business conducted by Parent and its Subsidiaries. The execution, delivery and performance of this Agreement, the transactions contemplated herein, including the Distribution, will not violate any applicable Information Privacy Laws and the Privacy Policies of Parent and its Subsidiaries.
(m) There are no settlements, covenants not to sue, consents, judgments, or orders or similar obligations that: (i) restrict the rights of Parent or any of its Subsidiaries to use any Parent Intellectual Property, (ii) restrict any business of Parent or any of its Subsidiaries in order to accommodate a third party’s Intellectual Property, or (iii) permit third parties to use the Parent Intellectual Property.
(n) The execution, delivery and performance of this Agreement and the performance of any transactions contemplated by this Agreement, will not (i) violate, conflict with or result in a default (whether after the giving of notice, lapse of time or both) under any Parent IP Contract; (ii) cause the release, disclosure, or delivery of any Parent Intellectual Property by or to any escrow agent or other person, or any grant, assignment, or transfer to any other person of any license or other right or interest under, to, or in any Parent Intellectual Property, or (iii) result in the loss of or creation of any Encumbrance on any Parent Intellectual Property.
Section 5.11 Real Property .
(a) Schedule 5.11(a) of the Parent Disclosure Letter sets forth the address (or other identifying description) of each parcel of Parent Leased Real Property and the identity of the lessor, lessee and current occupant (if different from lessee) of each such parcel of Parent Leased Real Property. The Parent Leased Real Property constitutes all of the leased real property used or held for use by Parent and its Subsidiaries that is material to the conduct of their business as currently conducted. A Parent Entity has a valid and binding leasehold interest in each parcel of Parent Leased Real Property, free and clear of all Encumbrances other than Permitted Encumbrances. No Parent Entity has subleased, licensed or otherwise granted to a third party any right to use or occupy all or any portion of the Parent Leased Real Property.
 
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(b) Schedule 5.11(b) of the Parent Disclosure Letter sets forth the address and parcel number of each parcel of Parent Owned Real Property. A Parent Entity has good and marketable fee simple title in and to each parcel of Parent Owned Real Property, including all of the buildings and improvements thereon, free and clear of all Encumbrances, other than Permitted Encumbrances. There are no outstanding options, rights of first offer or rights of first refusal to purchase any such Parent Owned Real Property or any portion thereof or interest therein. The Parent Owned Real Property constitutes all of the owned real property used or held for use by Parent and its Subsidiaries that is material to the conduct of their business as currently conducted. All buildings, structures and other improvements located on the Parent Owned Real Property are in good condition and repair in all material respects, reasonable wear and tear excepted. Other than pursuant to easements of record, no Parent Entity has leased or granted any right to use or occupy all or any portion of a Parent Owned Real Property to a third party. There is no condemnation or other proceeding in eminent domain, pending or, to Parent’s Knowledge, threatened, affecting the Parent Owned Real Property or any portion thereof or interest therein.
Section 5.12 Employee Benefit Matters .
(a) Schedule 5.12(a) of the Parent Disclosure Letter lists, as of the date hereof, all material “employee benefit plans” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA), all material bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance or other compensation or benefit plans, programs or arrangements, and all material employment, termination, severance or other Contracts, to which Parent or any of its Subsidiaries is a party, with respect to which Parent or any of its Subsidiaries has any obligation or which are maintained, contributed to or sponsored by Parent or any of its Subsidiaries, in each case, for the benefit of any U.S. Parent Employee or to which any U.S. Parent Employee is a party (collectively, the “ U.S. Parent Plans ”). Parent has made available to Citrix the plan document, summary plan description, or summary of material terms of each material U.S. Parent Plan.
(b) Schedule 5.12(b) of the Parent Disclosure Letter lists, as of the date hereof, all material employee benefit plans, material bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, jubilee, long-service, termination indemnity, severance or other compensation or benefit plans, programs or arrangements, and all material employment, termination, severance or other Contracts, to which Parent or any of its Subsidiaries is a party, with respect to which Parent or any of its Subsidiaries has any obligation or which are maintained, contributed to or sponsored by Parent or any of its Subsidiaries, in each case, for the benefit of any Non-U.S. Parent Employee or to which any Non-U.S. Parent Employee is a party (other than statutory plans) (collectively, the “ Non-U.S. Parent Plans ” and together with the U.S. Parent Plans, the “ Parent Plans ”). Parent has made available to Citrix the plan document, summary plan description, or summary of material terms of each material Non-U.S. Parent Plan.
(c) Each Parent Plan (and any related trust or other funding vehicle) has been administered in all material respects in accordance with its terms and is in compliance in all material respects with ERISA, the Code and all other applicable material Laws. Each of Parent and its Subsidiaries is in compliance in all material respects with ERISA, the Code and all other material Laws applicable to the Parent Plans.
(d) None of the execution and delivery of this Agreement, the Loan Agreement and the Ancillary Agreements or the consummation of the Merger or any other transaction contemplated hereby (alone or in conjunction with any other event, including any termination of employment) will (i) entitle any Parent Employee to an increase in or right to receive any material compensation or benefit; (ii) accelerate the time of payment or vesting, or trigger any payment or funding, of any material compensation or benefit or trigger any other material obligation under any Parent Plan; or (iii) result in any breach or violation of or default under, or limit Parent’s right to amend, modify or terminate, any Parent Plan, except pursuant to applicable Law.
Section 5.13 Labor Matters . Schedule 5.13 of the Parent Disclosure Letter lists each collective bargaining agreement that is applicable to the current employees of Parent and its Subsidiaries to which Parent or any of its Subsidiaries is a party, including arrangements with works councils and other similar employee
 
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representative bodies, under which the employees of Parent and its Subsidiaries will have outstanding rights or obligations on and following the Closing (collectively, the “ Parent Employee Representative Agreements ”). Parent has made available to Citrix each Parent Employee Representative Agreement. (a) There are no material strikes or lockouts with respect to any employees of Parent and its Subsidiaries pending, or to the Knowledge of Parent, threatened; (b) there is no material union organizing effort pending or, to the Knowledge of Parent, threatened against Parent or any of its Subsidiaries; (c) there is no unfair labor practice, material labor dispute (other than routine individual grievances) or material labor arbitration proceeding pending or, to Parent’s Knowledge, threatened against Parent or any of its Subsidiaries; and (d) there is no material slowdown, or work stoppage in effect or, to Parent’s Knowledge, threatened with respect to Parent or any of its Subsidiaries. Parent and each of its Subsidiaries conducts its business in compliance in all material respects with all applicable Laws with respect to labor relations, employment and employment practices, including occupational safety and health standards, terms and conditions of employment, payment of wages, classification of employees, immigration, visas, work status, pay equity and workers’ compensation.
Section 5.14 Taxes .
(a) All material Tax Returns required to be filed by or with respect to Parent or any of its Subsidiaries, as applicable, have been filed when due (taking into account any extensions of such due date), all such Tax Returns are true, correct and complete in all material respects, and Parent and its Subsidiaries have paid (or have had paid on their behalf) all respective material Taxes due and owing (whether or not shown on any Tax Return).
(b) Each of Parent and its Subsidiaries has withheld and paid all respective material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.
(c) The unpaid Taxes of Parent and its Subsidiaries did not, as of March 29, 2016, exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the financial statements included in the Parent SEC Documents (rather than in any notes thereto). Since March 29, 2016, neither Parent nor any of its Subsidiaries has incurred any liability for Taxes outside the ordinary course of business or otherwise inconsistent with past custom and practice.
(d) There are (i) no examinations or audits of any material Tax Return of Parent or any of its Subsidiaries in progress and (ii) no written notice of a claim or pending investigation has been received by Parent or any of its Subsidiaries in the past three (3) years from any Governmental Authority in any jurisdiction where Parent or any of its Subsidiaries do not file Tax Returns or pay Taxes that Parent or any of its Subsidiaries is or may be subject to Taxes in that jurisdiction or may have a duty to file Tax Returns in that jurisdiction. Neither Parent nor any of its Subsidiaries has a permanent establishment or is resident for Tax purposes outside of its jurisdiction or territory of incorporation or formation that would give rise to material Taxes with respect to Parent or its Subsidiaries.
(e) To the Knowledge of Parent and its Subsidiaries, no Action is pending or has been threatened against or with respect to Parent or any of its Subsidiaries in respect of any Tax. No deficiency of material Taxes in respect of Parent or any of its Subsidiaries has been asserted in writing as a result of any audit or examination by any Governmental Authority that is not adequately reserved for in the financial statements included in the Parent SEC Documents in accordance with GAAP or has not been otherwise resolved or paid in full.
(f) Neither Parent nor any of its Subsidiaries has entered into any “listed transaction” within the meaning of Treasury Regulations section 1.6011-4.
(g) To the Knowledge of Parent, none of Parent, Merger Sub or their respective Subsidiaries has taken or agreed to take any action that would (and none of them is aware of any facts, agreement, plan or other circumstance that would) prevent either the Merger or the Separation from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code or otherwise prevent the Tax-Free Status of the External Transactions.
 
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(h) There are no material Tax Encumbrances on Parent or any of its Subsidiaries (other than Permitted Encumbrances).
(i) Neither Parent nor any of its Subsidiaries has distributed stock of another Person or had their stock distributed by another Person in a transaction that was intended to be governed in whole or in part by Section 355 of the Code (i) in the two (2) years prior to the date of this Agreement or (ii) in a distribution that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in connection with the Merger.
(j) Neither Parent nor any of its Subsidiaries is a party to, is bound by or has any obligation under any material Tax sharing, Tax allocation or Tax indemnity agreement or similar contract or arrangement (including any advance pricing agreement, closing agreement or other agreement relating to Taxes with any Governmental Authority) other than (i) commercial agreements entered into in the ordinary course of business, the principal purpose of which is not related to Taxes and (ii) the Tax Matters Agreement. Neither Parent nor any of its Subsidiaries has any Liability for Taxes of any Person (other than Parent or any of its Subsidiaries) under Treasury Regulations section 1.1502-6 (or any similar provision of state, local or non-U.S. Law) or as a transferee or successor.
(k) Neither Parent nor any of its Subsidiaries (nor any of its respective predecessors) (i) is or was a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code, or (ii) was created or organized in the United States such that such entity would be taxable in the United States as a domestic entity pursuant to the dual charter provision of Treasury Regulations section 301.7701-5(a).
(l) Except as set forth on Schedule 5.14(l) of the Parent Disclosure Letter, no entity classification election pursuant to Treasury Regulations section 301.7701-3 has been filed with respect to Parent or any of its Subsidiaries.
(m) The representations and warranties set forth in this Section 5.14 and, to the extent relating to Tax matters, Section 5.12 , constitute the sole and exclusive representations and warranties of Parent regarding Tax matters.
Section 5.15 Parent Material Contracts .
(a) Schedule 5.15(a) of the Parent Disclosure Letter lists each of the following Contracts of Parent and its Subsidiaries (such Contracts being “ Parent Material Contracts ”) that is in effect as of the date of this Agreement:
(i) Contracts for the purchase of products or for the receipt of services, the performance of which will extend over a period of one (1) year or more and which involved consideration or payments by Parent or any of its Subsidiaries in excess of $250,000 in the aggregate during the calendar year ended December 31, 2015, or which require consideration or payments by Parent or any of its Subsidiaries in excess of $250,000 in the aggregate during any future calendar year;
(ii) Contracts for the furnishing of products or services by Parent or any of its Subsidiaries, the performance of which will extend over a period of one (1) year or more and which involved consideration or payments to any Parent Entity in excess of $250,000 in the aggregate during the calendar year ended December 31, 2015, or which require consideration or payments to Parent or any of its Subsidiaries in excess of $250,000 in the aggregate during any future calendar year;
(iii) Contracts concerning the establishment or operation of a partnership, joint venture or limited liability company;
(iv) Contracts (A) that (i) involve a settlement, standstill, co-existence, consent to use or similar obligation of Parent or any of its Subsidiaries to any other Person or of any other Person to Parent or any of its Subsidiaries relating to any claim or allegation of infringement, misappropriation or any
 
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other violation of Intellectual Property; (ii) grant Parent or any of its Subsidiaries a license to, option to, or right to use or exploit (including by means of a covenant not to sue) Intellectual Property owned or controlled by any other Person that is material to the operation of any of the businesses of Parent or its Subsidiaries or (iii) assign Parent or any of its Subsidiaries Intellectual Property developed by any other Person that is material to the operation of any of the businesses of Parent or its Subsidiaries, or (B) under which Parent or any of its Subsidiaries assigns or grants a license to, option to, or right to use or exploit (including by means of a covenant not to sue) any Intellectual Property, except, in each case of the foregoing clauses (A) and (B) , (x) Contracts with customers entered into in the ordinary course of business (other than (i) any such Contracts that are Restrictive Covenant Agreements, (ii) such Contracts the performance of which will extend over a period of one (1) year or more and that have fees greater than $250,000 in the aggregate during the calendar year ended December 31, 2015, or which require consideration or payments to Parent or any of its Subsidiaries in excess of $250,000 in the aggregate during any future calendar year, or (iii) such Contracts that are entered into on forms of Contract other than the applicable Parent Entity’s standard form of customer Contract without material modification of any provisions relating to any Parent Intellectual Property), (y) off-the-shelf, commercially available and “shrink-wrap” software licenses that have annual or total license fees of less than $250,000 in the three (3) years prior to the date hereof or Free or Open Source Software (other than any such licenses for software that are imbedded or incorporated in a Parent Product) and (z) Contracts with former or current employees, independent contractors or consultants (collectively, other than such Contracts excluded under the foregoing clauses (x) , (y) and (z) , the “ Parent IP Contracts ”);
(v) the lease agreements of Parent or any of its Subsidiaries that pertain to each parcel of Parent Leased Real Property;
(vi) Contracts for the furnishing of products or services by a Parent Entity to any Governmental Authority that are material to Parent’s and its Subsidiaries’ business, taken as a whole;
(vii) Contracts containing (A) a covenant materially restricting the ability of Parent or any of its Subsidiaries to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers; (B) a provision granting the other party “most favored nation” status or equivalent preferential pricing terms; or (C) a provision granting the other party exclusivity or similar rights in respect of the business of Parent or any of its Subsidiaries;
(viii) indentures, credit agreements, loan agreements and similar instruments pursuant to which Parent or any of its Subsidiaries has or will incur or assume any indebtedness for borrowed money or has or will guarantee or otherwise become liable for any such indebtedness of any other Person in excess of $250,000, other than any indentures, credit agreements, loan agreements or similar instruments between or among any of Parent and any of its Subsidiaries; and
(ix) material Contracts under which there has been imposed an Encumbrance (other than a Permitted Encumbrance) on any of the assets, tangible or intangible, of Parent or any of its Subsidiaries.
(b) Parent has made available to Citrix true, complete and correct copies of each Parent Material Contract in effect on the date of this Agreement. Each Parent Material Contract is valid and binding on Parent or one of its Subsidiaries, as applicable and, to Parent’s Knowledge, the counterparty thereto, and is in full force and effect, subject to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to or affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity), except insofar as it has expired in accordance with its terms after the date hereof. Neither Parent nor any of its Subsidiaries is in material breach of, or material default under, any Parent Material Contract to which it is a party.
 
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Section 5.16 Environmental Matters .
(a) (i) Parent and its Subsidiaries are conducting their businesses in compliance in all material respects with Environmental Law; (ii) Parent and its Subsidiaries have obtained and are in compliance in all material respects with all Environmental Permits that are necessary to conduct their businesses as now conducted or to own, lease or operate their assets and facilities; (iii) Parent and its Subsidiaries have not, to Parent’s Knowledge, Released any Hazardous Materials that require any material Remedial Action pursuant to Environmental Law; and (iv) there is no Action pending or, to Parent’s Knowledge, threatened, against Parent or against any of its Subsidiaries that relates to any violation or alleged violation of, or any Liability or alleged Liability under, any Environmental Law that would reasonably be expected to result in a material cost or obligation to Parent’s and its Subsidiaries’ businesses.
(b) Notwithstanding anything in this Agreement to the contrary, the representations and warranties contained in Section 5.04 , and, as such relates to occupational health and safety standards, Section 5.13 and in this Section 5.16 are the only representations and warranties being made by Parent in this Agreement with respect to compliance with or Liability under Environmental Laws or Environmental Permits or with respect to any environmental, health or safety matter related in any way to the businesses of Parent and its Subsidiaries, the Parent Leased Real Property or the Parent Owned Real Property.
Section 5.17 No Shareholder Rights Plan; No Antitakeover Law . There is no shareholder rights plan, “poison pill,” antitakeover plan or other similar device in effect, to which Parent or any of its Subsidiaries is a party or otherwise bound. No “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar antitakeover Law applicable to Parent or Merger Sub enacted under the Law of any jurisdiction applies to this Agreement, the Merger or the other transactions contemplated hereby.
Section 5.18 Opinion of Financial Advisor . The Parent Board has received the opinion of RBC Capital Markets, LLC as to the fairness, from a financial point of view, to Parent of the Aggregate Merger Consideration to be paid by Parent pursuant to this Agreement.
Section 5.19 Brokers . No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement, the Loan Agreement or the Ancillary Agreements based upon arrangements made by or on behalf of Parent or any of its Subsidiaries for which any of the Retained Citrix Entities would be liable.
Section 5.20 Disclaimer of Parent and Merger Sub .
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE V OR IN THE SEPARATION AGREEMENT, THE LOAN AGREEMENT OR THE ANCILLARY AGREEMENTS, AND EXCEPT IN THE CASE OF FRAUD WITH RESPECT TO THE MATTERS SPECIFICALLY ADDRESSED IN THIS ARTICLE V OR IN THE SEPARATION AGREEMENT, THE LOAN AGREEMENT OR THE ANCILLARY AGREEMENTS, AND NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF PARENT, MERGER SUB OR THEIR RESPECTIVE REPRESENTATIVES MAKES OR HAS MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THEIR BUSINESSES OR THEIR SUBSIDIARIES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE V OR IN THE SEPARATION AGREEMENT, THE LOAN AGREEMENT OR THE ANCILLARY AGREEMENTS, AND EXCEPT IN THE CASE OF FRAUD WITH RESPECT TO THE MATTERS SPECIFICALLY ADDRESSED IN THIS ARTICLE V OR IN THE SEPARATION AGREEMENT, THE LOAN AGREEMENT OR THE ANCILLARY AGREEMENTS, PARENT, MERGER SUB AND THEIR RESPECTIVE REPRESENTATIVES HAVE NOT MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, WITH RESPECT TO (I) MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE OR PURPOSE AND ALL OTHER WARRANTIES ARISING UNDER THE UNIFORM COMMERCIAL CODE (OR SIMILAR LAWS); (II) THE OPERATION OF THEIR BUSINESSES AFTER THE CLOSING; OR (III) THE PROBABLE SUCCESS, PROFITABILITY OR PROSPECTS OF THEIR BUSINESSES AFTER THE CLOSING, AND ANY SUCH REPRESENTATION OR WARRANTY IS HEREBY EXPRESSLY DISCLAIMED.
 
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(b) EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE V OR IN THE SEPARATION AGREEMENT, THE LOAN AGREEMENT OR THE ANCILLARY AGREEMENTS, AND EXCEPT IN THE CASE OF FRAUD WITH RESPECT TO THE MATTERS SPECIFICALLY ADDRESSED IN THIS ARTICLE V OR IN THE SEPARATION AGREEMENT, THE LOAN AGREEMENT OR THE ANCILLARY AGREEMENTS, AND NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF PARENT, MERGER SUB, OR THEIR RESPECTIVE REPRESENTATIVES WILL HAVE OR BE SUBJECT TO ANY LIABILITY OR INDEMNIFICATION OBLIGATION TO CITRIX, ITS REPRESENTATIVES OR TO ANY OTHER PERSON RESULTING FROM THE DISTRIBUTION TO CITRIX, SPINCO, OR THEIR REPRESENTATIVES, OR CITRIX’S, SPINCO’S OR THEIR REPRESENTATIVES’ USE OF, ANY INFORMATION RELATING TO THE BUSINESSES OF PARENT AND ITS SUBSIDIARIES, INCLUDING ANY PROJECTIONS, FORECASTS, BUSINESS PLANS, BUDGETS, COST ESTIMATES OR OTHER MATERIAL MADE AVAILABLE TO CITRIX OR ITS REPRESENTATIVES, WHETHER ORALLY OR IN WRITING, IN CERTAIN “DATA ROOMS,” MANAGEMENT PRESENTATIONS, FUNCTIONAL “BREAK-OUT” DISCUSSIONS, “EXPERT SESSIONS,” DILIGENCE CALLS OR MEETINGS, RESPONSES TO QUESTIONS SUBMITTED ON BEHALF OF CITRIX, OR ITS REPRESENTATIVES OR IN ANY OTHER FORM IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
Section 6.01 Conduct of SpinCo Business Pending the Merger . From the date of this Agreement and until the earlier of the Closing Date and the date on which this Agreement is terminated pursuant to Section 9.01 , except as set forth on Schedule 6.01 of the Citrix Disclosure Letter, except for the Internal Reorganization, the Contribution, the Distribution and the other transactions contemplated or required by this Agreement, the Separation Agreement, the Loan Agreement, the Ancillary Agreements or applicable Law, and except as Parent shall otherwise consent to in writing (such consent not to be unreasonably withheld, conditioned or delayed), (a) Citrix shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to (i) conduct the SpinCo Business in the ordinary course in all material respects; and (ii) preserve intact in all material respects the business organization, assets and technology of the SpinCo Business, including by using commercially reasonable efforts to (x) keep available the services of the SpinCo Employees and (y) preserve the goodwill and current relationships of the SpinCo Business with customers, suppliers and other Persons with which the SpinCo Business has business relations; and (b) Citrix shall not, and shall cause its Subsidiaries not to, to the extent relating to the SpinCo Business and excluding the Excluded Assets and Excluded Liabilities:
(i) (A) issue, sell, pledge or dispose of; (B) grant an Encumbrance on or permit an Encumbrance to exist on; or (C) authorize the issuance, sale, pledge or disposition of, or granting or placing of an Encumbrance on, any shares of any class of capital stock, or other ownership interests, of any of the Transferred Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including any phantom interest) of any of the Transferred Subsidiaries;
(ii) (A) sell, pledge or dispose of; (B) grant an Encumbrance on or permit an Encumbrance to exist on; or (C) authorize the sale, pledge or disposition of, or granting or placing of an Encumbrance on, any material assets of the SpinCo Business, except (1) in the ordinary course of business and consistent with past practice; (2) dispositions of obsolete or worn-out assets that are no longer useful in the operation or conduct of the SpinCo Business; and (3) Encumbrances that are Permitted Encumbrances;
(iii) except as set forth in Section 7.17 , amend or restate the certificate of incorporation or bylaws (or similar organizational documents) of any Transferred Subsidiary;
(iv) adjust, reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any capital stock of a Transferred Subsidiary;
(v) (A) acquire or dispose of (including by merger, consolidation or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division thereof; or (B) make any loans or advances or capital contribution to, or investment in, any Person other than a Transferred Subsidiary, except for travel advances to employees in the ordinary course of business consistent with past practices;
 
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(vi) (A) grant any increase in the base salaries, target bonus opportunity, or other compensation or benefits payable by Citrix or its Affiliates (including SpinCo and its Subsidiaries) to any of the SpinCo Employees; (B) adopt, terminate, accelerate the timing of payments or vesting under, or otherwise materially amend or supplement, any SpinCo Plan; (C) enter into or amend any employment, consulting, change in control, retention, severance or termination agreement with any SpinCo Employee; (D) issue any Citrix Stock Awards that are required under this Agreement to be cancelled in connection with the receipt of a substitute award with respect to shares of Parent Common Stock; (E) terminate the employment (other than for cause) of or hire or promote any individual who is or will upon consummation of the Internal Reorganization be an officer at the vice president level or above of SpinCo or its Subsidiaries; or (F) enter into a SpinCo Employee Representative Agreement; in each case, other than (1) as required by Law; (2) as required by any SpinCo Plan, as in effect on the date hereof; or (3) except with respect to clause (D) hereof, in the ordinary course of business consistent with the past practices of Citrix or its Affiliates (including in the context of new hires or promotions based on job performance or workplace requirements, other than as restricted by clause (E) hereof or Section 6.01(b)(vii)) ;
(vii) hire, transfer internally or otherwise alter the duties and responsibilities of any employee of Citrix and its Affiliates in a manner that would affect whether such employee is or is not classified as a SpinCo Employee, except, in each case, (A) to the extent required by the Employee Matters Agreement or (B) as described on Schedule 6.01(b)(vii)(B) of the Citrix Disclosure Letter;
(viii) change any method of accounting or accounting practice or policy used by Citrix as it relates to the SpinCo Business, other than such changes as are required by GAAP or a Governmental Authority;
(ix) other than in the ordinary course of business and consistent with past practice, (A) make any change (or file any such change) in any method of Tax accounting or any annual Tax accounting period; (B) make, change or rescind any Tax election; (C) settle or compromise any Tax liability or consent to any claim or assessment relating to Taxes; (D) file any amended Tax Return or claim for refund; (E) enter into any closing agreement relating to Taxes; or (F) waive or extend the statute of limitations in respect of Taxes; in each case, to the extent that doing so would reasonably be expected to result in a material incremental cost to Parent, SpinCo or any of their respective Subsidiaries;
(x) pay, discharge or satisfy any material claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the SpinCo Financial Statements or subsequently incurred in the ordinary course of business and consistent with past practice;
(xi) incur, guarantee or assume or otherwise become responsible for any indebtedness for borrowed money other than (A) indebtedness solely between or among Citrix Entities that will be repaid prior to the Distribution; and (B) letters of credit or similar arrangements entered into in the ordinary course of business consistent with past practice;
(xii) commence or settle any Action other than (i) in the ordinary course of business and consistent with past practice or (ii) settlements not involving any material obligations of the Transferred Subsidiaries following the Closing;
(xiii) other than in the ordinary course of business and consistent with past practice, enter into, extend, materially amend, cancel or terminate any SpinCo Material Contract;
(xiv) (A) abandon, disclaim, sell, assign or grant any security interest in, to or under any material SpinCo Intellectual Property, including failing to perform or cause to be performed all
 
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applicable filings, recordings and other acts, or to pay or cause to be paid all required fees and Taxes, to maintain and protect its interest in any material SpinCo Intellectual Property; or (B) grant to any third party any license, or enter into any covenant not to sue, with respect to any material SpinCo Intellectual Property, in each case, except for non-exclusive licenses granted to customers in the ordinary course of business and consistent with past practice and on the applicable Citrix Entity’s standard form of customer Contract without material modification of any provisions relating to any SpinCo Intellectual Property;
(xv) fail to exercise any rights of renewal with respect to any material Transferred Leased Real Property that by its terms would otherwise expire;
(xvi) fail to maintain (with insurance companies substantially as financially responsible as its existing insurers) insurance in at least such amounts and against at least such risks and losses as are consistent in all material respects with Citrix’s past practice with respect to the SpinCo Business;
(xvii) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization or other material reorganization;
(xviii) amend or modify the Internal Reorganization or fail to implement the Internal Reorganization consistent with its Steps Plan (as defined in the Separation Agreement), except in each case as otherwise permitted under the terms of the Separation Agreement; or
(xix) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.
(c) In addition, between the date of this Agreement and the Effective Time, Citrix shall cause each of the Transferred Subsidiaries to (i) prepare and timely file all material Tax Returns that it is required to file; (ii) timely pay all Taxes shown to be due and payable on such Tax Returns; and (iii) promptly notify Parent of any notice of any Action or audit in respect of any material Tax matters related to the Transferred Subsidiaries or the SpinCo Business (or any significant developments with respect to ongoing Actions or audits in respect of such Tax matters).
Section 6.02 Conduct of Parent Business Pending the Merger . From the date of this Agreement and until the earlier of the Closing Date and the date on which this Agreement is terminated pursuant to Section 9.01 , except as set forth on Schedule 6.02 of the Parent Disclosure Letter, as contemplated or required by this Agreement, the Loan Agreement, the Ancillary Agreements or applicable Law, and except as Citrix shall otherwise consent to in writing (such consent not to be unreasonably withheld, conditioned or delayed), (a) Parent shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to (i) conduct its and their businesses in the ordinary course in all material respects; and (ii) preserve intact in all material respects the business organization, assets and technology of Parent and its Subsidiaries, including by using commercially reasonable efforts to (x) keep available the services of Parent’s and its Subsidiaries’ key employees and (y) preserve the goodwill and current relationships of Parent and its Subsidiaries with customers, suppliers and other Persons with which they have business relations; and (b) Parent shall not, and shall cause its Subsidiaries not to:
(i) (A) issue, sell, pledge or dispose of; (B) grant an Encumbrance on or permit an Encumbrance to exist on; or (C) authorize the issuance, sale, pledge or disposition of, or granting or placing of an Encumbrance on, any shares of any class of capital stock, or other ownership interests, of Parent or any of its Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including any phantom interest) of Parent or any of its Subsidiaries, other than, as applicable, (1) any such transaction by a directly or indirectly wholly-owned Subsidiary of Parent which remains a directly or indirectly wholly-owned Subsidiary of Parent after consummation of such transaction; (2) issuance of Parent Stock Awards to employees in the ordinary course of business up to the aggregate amount set forth on Schedule 6.02(b)(i) of the Parent Disclosure Letter; (3) upon the exercise or settlement of, or as otherwise required by, any Parent Stock Awards granted pursuant to the Parent Stock Plans outstanding on the date of this Agreement and in accordance with their terms in effect on the date of this Agreement; or (4) pursuant to the Parent Share Issuance;
 
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(ii) (A) sell, pledge or dispose of; (B) grant an Encumbrance on or permit an Encumbrance to exist on; or (C) authorize the sale, pledge or disposition of, or granting or placing of an Encumbrance on, any material assets of the businesses of Parent and its Subsidiaries, except (1) in the ordinary course of business and consistent with past practice; (2) dispositions of obsolete or worn-out assets that are no longer useful in the operation or conduct of the business of Parent or its Subsidiaries; and (3) Encumbrances that are Permitted Encumbrances;
(iii) amend or restate the certificate of incorporation or bylaws (or similar organizational documents) of Parent or any of its Subsidiaries, except for the Parent Charter Amendment;
(iv) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock except for (A) the Special Dividend ( provided that (x) Parent will advise Citrix at least ten (10) days prior to any anticipated record date and ex-dividend date on Nasdaq for the Parent Common Stock in respect of the Special Dividend and (y) in the event that the Distribution is in the form of an Exchange Offer, the ex-dividend date in the regular way market on Nasdaq for the Parent Common Stock in respect of the Special Dividend shall not be during the averaging period used to determine the final exchange ratio in the Exchange Offer) and (B) dividends or distributions by any directly or indirectly wholly-owned Subsidiary of Parent;
(v) adjust, reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(vi) (A) acquire or dispose of (including by merger, consolidation or acquisition of stock or assets or any other business combination) any corporation, partnership, other business organization or any division, business unit or material assets thereof having a value in excess of $50.0 million individually or in the aggregate ( provided that no such acquisition or disposition, whether alone or in combination, is significant to Parent such that pro forma financial statements would be required to be included in the Parent Registration Statement under Regulation S-X); or (B) make any loans or advances or capital contribution to, or investment in, any Person other than Parent or a Subsidiary of Parent, except for travel advances to employees in the ordinary course of business consistent with past practices;
(vii) (A) grant any increase in the base salaries, target bonus opportunity, or other compensation or benefits payable by Parent or its Subsidiaries to any of its employees; (B) adopt, terminate, accelerate the timing of payments or vesting under, or otherwise materially amend or supplement, any Parent Plans; (C) enter into or amend any employment, consulting, change in control, retention, severance or termination agreement with any Parent Employee; (D) terminate the employment (other than for cause) of or hire or promote any individual who is an officer of Parent or its Subsidiaries at the vice president level or above; (E) hire any other employee of Parent and its Affiliates, except as described on Schedule 6.02(b)(vii)(E) of the Parent Disclosure Letter; or (F) enter into any Parent Employee Representative Agreement, in each case, other than (1) as required by Law; (2) as required by any Parent Plan, as in effect on the date hereof; or (3) in the ordinary course of business consistent with the past practices of Parent or its Subsidiaries (including in the context of new hires or promotions based on job performance or workplace requirements, other than as restricted by clauses (D) and (E) );
(viii) change any method of accounting or accounting practice or policy used by Parent as it relates to the businesses of Parent and its Subsidiaries, other than such changes as are required by GAAP or a Governmental Authority;
(ix) other than in the ordinary course of business and consistent with past practice, (A) make any change (or file any such change) in any method of Tax accounting or any annual Tax accounting period; (B) make, change or rescind any Tax election; (C) settle or compromise any Tax liability or consent to any claim or assessment relating to Taxes; (D) file any amended Tax Return or claim
 
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for refund; (E) enter into any closing agreement relating to Taxes; or (F) waive or extend the statute of limitations in respect of Taxes; in each case, to the extent that doing so would reasonably be expected to result in a material incremental cost to Citrix or any of its Subsidiaries;
(x) pay, discharge or satisfy any material claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the financial statements set forth in the Parent SEC Documents or incurred in the ordinary course of business and consistent with past practice;
(xi) incur, guarantee or assume or otherwise become responsible for any indebtedness for borrowed money other than (A) indebtedness incurred under Parent’s current credit facilities; (B) indebtedness solely between or among Parent and its Subsidiaries; (C) refinancing, replacements, extensions and renewals of existing indebtedness entered into in the ordinary course of business consistent with past practice; and (D) letters of credit or similar arrangements entered into in the ordinary course of business consistent with past practice;
(xii) commence or settle any Action other than in the ordinary course of business and consistent with past practice;
(xiii) other than in the ordinary course of business and consistent with past practice, enter into, extend, materially amend, cancel or terminate any Parent Material Contract;
(xiv) (A) abandon, disclaim, sell, assign or grant any security interest in, to or under any material Parent Intellectual Property, including failing to perform or cause to be performed all applicable filings, recordings and other acts, or to pay or cause to be paid all required fees and Taxes, to maintain and protect its interest in any material Parent Intellectual Property; or (B) grant to any third party any license, or enter into any covenant not to sue, with respect to any material Parent Intellectual Property, in each case, except for non-exclusive licenses granted to customers in the ordinary course of business and consistent with past practice and on Parent’s (or a Parent’s Subsidiary’s) standard form of customer Contract without material modification of any provisions relating to any Parent Intellectual Property;
(xv) fail to exercise any rights of renewal with respect to any material Parent Leased Real Property that by its terms would otherwise expire unless Parent (or, if the lessee is a Subsidiary of Parent, such Subsidiary) determines in good faith that a renewal would not be in the best interests of Parent;
(xvi) fail to maintain (with insurance companies substantially as financially responsible as its existing insurers) insurance in at least such amounts and against at least such risks and losses as are consistent in all material respects with the past practice of Parent and its Subsidiaries; or
(xvii) announce an intention, enter into any formal or informal agreement or otherwise make a commitment, to do any of the foregoing.
(c) In addition, between the date of this Agreement and the Effective Time, Parent shall, and shall cause each of its Subsidiaries to, (i) prepare and timely file all material Tax Returns that it is required to file; (ii) timely pay all Taxes shown to be due and payable on such Tax Returns; and (iii) promptly notify Citrix of any notice of any Action or audit in respect of any material Tax matters (or any significant developments with respect to ongoing Actions or audits in respect of such Tax matters).
 
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ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.01 Registration Statements; Proxy Statement; Schedule TO .
(a) As promptly as reasonably practicable following the date hereof (and in the case of the filing of the Parent Registration Statement, the parties hereto shall use commercially reasonable efforts to achieve the same by no later than September 15, 2016), to the extent such filings are required by applicable Law in connection with the transactions contemplated by this Agreement, (i)   Citrix, SpinCo, Parent and Merger Sub shall jointly prepare, and Parent shall file with the SEC, a proxy statement relating to the Parent Stockholder Approval (the “ Proxy Statement ”) and a registration statement on Form S-4 to register under the Securities Act the Parent Share Issuance (the “ Parent Registration Statement ”), provided that, in the event that the Distribution is accomplished by a One-Step Spin-Off, the Parent Registration Statement may include a proxy statement/prospectus; (ii) Citrix, SpinCo, Parent and Merger Sub shall jointly prepare, and SpinCo shall file with the SEC, a registration statement to register under the Securities Act or the Exchange Act, as applicable, the SpinCo Common Stock to be distributed in the Distribution (the “ SpinCo Registration Statement ” and, together with the Parent Registration Statement, the “ Registration Statements ”); and (iii) if the Distribution is effected in whole or in part as an exchange offer, Citrix shall prepare and file with the SEC, when and as required, a Schedule TO and other filings pursuant to Rule 13e-4 under the Exchange Act (collectively, the “ Schedule   TO ”). Each of Citrix, SpinCo, Parent and Merger Sub shall use its reasonable best efforts to have the Registration Statements filed with the SEC declared effective under the Securities Act or become effective under the Exchange Act, as applicable, as promptly as practicable after such filing, and Parent shall use its reasonable best efforts to cause the Proxy Statement to be mailed to the holders of Parent Common Stock as promptly as practicable following the date on which (i) the Parent Registration Statement is declared effective by the SEC; or (ii) in the event that the Distribution is accomplished by an Exchange Offer, the date on which Parent files with the SEC a definitive proxy statement, following confirmation from the staff of the SEC (whether orally or in writing) that the comment process with respect to the Proxy Statement, if any, has concluded, and, if required by the SEC as a condition to the mailing of the Proxy Statement, the date on which the Parent Registration Statement is declared effective. Each of Parent and Citrix shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under any applicable state securities Laws in connection with, in the case of Parent, the Parent Share Issuance and, in the case of Citrix, the issuance of the SpinCo Common Stock in the Distribution and, if applicable, the exchange of SpinCo Common Stock pursuant to an exchange offer. The parties hereto shall cooperate in preparing and filing with the SEC the Proxy Statement, the Registration Statements, the Schedule TO and any necessary amendments or supplements thereto. Parent and Merger Sub shall furnish all information concerning Parent and the Parent Entities, and Citrix and SpinCo shall furnish all information concerning Citrix, the SpinCo Business and the Transferred Subsidiaries, as may be reasonably requested by the other parties hereto in connection with the preparation, filing and distribution of the Proxy Statement, the Registration Statements, the Schedule TO and any necessary amendments or supplements thereto. None of the Proxy Statement, the Registration Statements, the Schedule   TO nor any amendment or supplement thereto shall be filed or mailed to stockholders without the written consent of all of the parties hereto (such consent not to be unreasonably withheld, conditioned or delayed).
(b) The Proxy Statement shall (i) state that the Parent Board has approved this Agreement and the transactions contemplated hereby, approved and declared advisable the Parent Charter Amendment and approved the Parent Share Issuance; and (ii) include the Parent Recommendation (except to the extent that Parent effects a Change in the Parent Recommendation in accordance with Section 7.03(d) ). The Proxy Statement shall further state that approval of the Parent Charter Amendment and the New Parent Stock Plan are not conditions to the closing of the Merger and the other transactions contemplated hereby, including the Parent Share Issuance.
(c) Parent and Citrix, as applicable, shall advise the other promptly after receiving oral or written notice of (i) the time when a Registration Statement has become effective or any supplement or amendment to the Proxy Statement or a Registration Statement has been filed; (ii) the issuance of any stop order; (iii) the suspension of the qualification for offering or sale in any jurisdiction of the Parent Common Stock issuable in connection with the Merger or the SpinCo Common Stock issuable in connection with the Distribution; or (iv) any oral or written request by the SEC for amendment of the Proxy Statement, a Registration Statement or the Schedule TO or SEC comments thereon or requests by the SEC for additional information. Parent and Citrix shall promptly provide each other with copies of any written communication from the SEC with respect to the Proxy Statement, the
 
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Registration Statements or the Schedule TO and shall cooperate to prepare appropriate responses thereto (and will provide each other with copies of any such responses given to the SEC) and make such modifications to the Proxy Statement, the Registration Statements and the Schedule TO as shall be reasonably appropriate.
(d) If, at any time prior to the Effective Time, any event or circumstance shall be discovered by a party hereto that should be set forth in an amendment or a supplement to a Registration Statement, the Proxy Statement or the Schedule TO so that any such document would not include any misstatement of a material fact or fail to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such party shall promptly inform the other parties hereto and the parties hereto shall cause an appropriate amendment or supplement describing such information to be promptly filed with the SEC and, to the extent required by Law, disseminated to stockholders.
(e) In connection with the filing of the Registration Statements and other SEC filings contemplated hereby, each of Citrix and Parent shall use its reasonable best efforts to (i) cooperate with the other party to prepare pro forma financial statements that comply with the rules and regulations of the SEC to the extent required for such SEC filings, including the requirements of Regulation S-X; and (ii) provide and make reasonably available upon reasonable notice the senior management employees of the other party to discuss the materials prepared and delivered pursuant to this Section 7.01(e) .
(f) To the extent required to be included in the Parent Registration Statement, Citrix shall use its reasonable best efforts to, as promptly as practicable after the end of any fiscal quarter, prepare and furnish to Parent copies of combined financial statements of the SpinCo Business as of and for the periods ending on any fiscal quarterly and annual periods ending after the date of this Agreement and prior to the Closing Date (including the combined financial statements for the corresponding period in the preceding year), in each case together with the notes thereto, and prepared from the books and records of Citrix and its Subsidiaries and in accordance with GAAP, with no exception or qualification thereto, applied on a consistent basis through the periods involved (except as may otherwise be required under GAAP) and the rules and regulations of the SEC, including the requirements of Regulation S-X. In the case of any such combined financial statements of the SpinCo Business for any fiscal year, Citrix shall use its reasonable best efforts to ensure that such financial statements shall be audited and accompanied by a report of the independent auditors for the SpinCo Business. In the case of any such combined financial statements of the SpinCo Business for any quarterly period, Citrix shall use its reasonable best efforts to ensure that such financial statements shall be reviewed by the independent auditors for the SpinCo Business. Citrix will use reasonable best efforts to procure, at its expense, the delivery of the consents of its independent auditors required to be filed with the Registration Statements.
Section 7.02 Parent Stockholders ’ Meeting . Parent shall take all lawful action to call, give notice of, convene and hold a meeting of its stockholders (the “ Parent Stockholders’ Meeting ”) as promptly as practicable following the date on which the SEC clears (whether orally or in writing) the Proxy Statement and, if required by the SEC as a condition to the mailing of the Proxy Statement, the Parent Registration Statement is declared effective, for the purpose of obtaining the Parent Stockholder Approval (and no other matters, except for a proposal to adjourn the meeting to solicit additional proxies to obtain the Required Parent Stockholder Vote, if necessary, and any other proposal required by applicable Law, shall be considered or voted upon at the Parent Stockholders’ Meeting without Citrix’s prior written consent). Parent agrees that the obligation of Parent to call, give notice of, convene and hold the Parent Stockholders’ Meeting shall not be limited or otherwise affected by (a) the commencement, disclosure, announcement or submission to Parent or its stockholders of any Competing Parent Transaction; or (b) any Change in the Parent Recommendation. Subject to Section 7.03(d) , Parent shall solicit from its stockholders proxies in favor of the Parent Stockholder Approval and shall take all other action reasonably necessary or advisable to secure the Parent Stockholder Approval. Parent agrees that it shall not, prior to the termination of this Agreement, submit to a vote of the stockholders of Parent any Competing Parent Transaction or Competing Parent Transaction Agreement (in either case, whether or not a Superior Proposal) prior to the vote of Parent’s stockholders to obtain the Parent Stockholder Approval.
Section 7.03 No Solicitation of Transactions .
(a) Parent agrees that neither it nor any of its Subsidiaries shall, and that it shall cause each of its Representatives not to, directly or indirectly, (i)   solicit, initiate or knowingly encourage (including by way of
 
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furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including any proposal or offer to Parent’s stockholders), with respect to any Competing Parent Transaction; (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Parent Transaction; (iii) agree to, approve, endorse, recommend or consummate any Competing Parent Transaction; (iv) enter into any Competing Parent Transaction Agreement; (v) take any action to approve a third party becoming an “interested stockholder”, or to approve any transaction, for purposes of Section 203 of the DGCL; or (vi) resolve, propose or agree, or authorize any Representative, to do any of the foregoing. Parent acknowledges and agrees that the doing of any of the foregoing by Parent or any of its Subsidiaries or Representatives shall be deemed to be a breach by Parent of this  Section 7.03(a) . Parent shall, and shall cause its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons (other than Citrix and its Affiliates) conducted prior to the execution of this Agreement by Parent or any of its Representatives with respect to any Competing Parent Transaction. Parent shall not, and shall not permit any of its Representatives to, release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it or one of its Affiliates is a party in connection with a Competing Parent Transaction; provided that Parent shall be permitted to grant a waiver of any standstill agreement, in response to a bona fide unsolicited request for such waiver from the counterparty thereto, to permit a confidential proposal for a Competing Parent Transaction to be made to the Parent Board if the Parent Board determines, in its good faith judgment (after consulting with outside legal counsel), that the failure to take such action would be a breach of the Parent Board’s fiduciary duties under applicable Law. Parent shall promptly request each Person (other than Citrix and its Affiliates) that has heretofore executed a confidentiality agreement with Parent in connection with such Person’s consideration of a Competing Parent Transaction (whether by merger, acquisition of stock or assets or otherwise), to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement.
(b) Parent shall promptly (and in any event within twenty-four (24) hours after Parent attains knowledge thereof) notify Citrix, orally and in writing, after the receipt by Parent or any of its Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Parent Transaction, including any request for discussions or negotiations and any request for information relating to Parent or any of its Affiliates in connection therewith or for access to the business, properties, assets, books or records of Parent or any of its Affiliates with respect thereto. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the material terms and conditions (if any) of such proposed Competing Parent Transaction, and Parent shall promptly (and in any event within twenty-four (24) hours after receipt by Parent) provide to Citrix copies of any written materials received by Parent in connection with any of the foregoing. Parent agrees that it shall keep Citrix reasonably informed of the status and material details of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposal, inquiry, offer or request; and (ii) any information requested of or provided by Parent pursuant to  Section 7.03(c) . Parent shall provide Citrix with at least forty-eight (48) hours prior notice of any meeting of the Parent Board at which the Parent Board is reasonably expected to consider any proposal, inquiry, offer or request with respect thereto (or any lesser advance notice otherwise provided to members of the Parent Board in respect of such meeting). Parent agrees that it shall substantially simultaneously provide or make available to Citrix any nonpublic information concerning Parent that may be made available pursuant to  Section 7.03(c)  to any other Person in response to any such proposal, inquiry, offer or request (or any amendment thereto) unless such information has previously been provided or made available by Parent to Citrix.
(c) Notwithstanding anything to the contrary in this  Section 7.03 , at any time prior to the receipt of the Required Parent Stockholder Vote, Parent may furnish information to, and enter into discussions and negotiations with, a Person who has made an unsolicited written, bona fide proposal or offer with respect to a Competing Parent Transaction that did not arise or result from a breach of this  Section 7.03  if, prior to furnishing such information and entering into such discussions, the Parent Board has (i) determined, in its good faith judgment (after consulting with a financial advisor of nationally recognized reputation and outside legal counsel) that such proposal or offer constitutes, or is reasonably likely to lead to, a Superior Proposal; and, after consulting with outside legal counsel, that the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would be a breach of the Parent Board’s fiduciary duties under applicable Law; (ii) provided written notice to Citrix of its intent to furnish information or enter into discussions with such Person prior to taking the first of any such action with respect to any given Person; and (iii) obtained from such Person an
 
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Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with Parent or having the effect of prohibiting Parent from satisfying its obligations under this Agreement) and, immediately upon its execution, delivered to Citrix a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in this  Section 7.03(d) , neither the Parent Board nor any committee thereof shall (i) withdraw, qualify, modify, amend or fail to make, or propose publicly to withdraw, qualify, modify or amend the Parent Recommendation; (ii) make any public statement inconsistent with the Parent Recommendation; or (iii) approve or adopt, or recommend the approval or adoption of, or publicly propose to approve or adopt, any Competing Parent Transaction (any of the actions described in (i), (ii) or (iii), a “ Change in the Parent Recommendation ”). Notwithstanding the foregoing, if at any time prior to the receipt of the Required Parent Stockholder Vote, in response to the receipt of an offer or proposal with respect to a Competing Parent Transaction that did not arise or result from a breach of this  Section 7.03 or in response to an Intervening Event, the Parent Board determines in its good faith judgment (after consulting with outside legal counsel), that the failure by the Parent Board to make a Change in the Parent Recommendation would be a breach of its fiduciary duties under applicable Law and with respect to an offer or proposal, after consulting with a financial advisor of nationally recognized reputation and outside legal counsel, that such offer or proposal constitutes a Superior Proposal, the Parent Board may, with respect to such Superior Proposal or Intervening Event, make a Change in the Parent Recommendation; provided ,  however , that the Parent Board shall not be entitled to exercise its right to make a Change in the Parent Recommendation pursuant to this  Section 7.03(d)  unless:
(i) Parent has provided written notice to Citrix advising Citrix that the Parent Board has received a Superior Proposal or that an Intervening Event has occurred promptly after the Parent Board determines to make a Change in the Parent Recommendation in response to a Superior Proposal or Intervening Event, stating that the Parent Board intends to make a Change in the Parent Recommendation and describing the material terms and conditions of such Superior Proposal or the material facts and circumstances of such Intervening Event; and
(ii) Citrix does not, within five (5) Business Days of receipt of such notice required by Section 7.03(d)(i) (the “ Notice Period ”), make a written offer or proposal to revise the terms of this Agreement (any such offer, a “ Revised Transaction Proposal ”) in a manner that the Parent Board determines in its good faith judgment, after consulting with a financial advisor of nationally recognized reputation and outside legal counsel, to be at least as favorable to Parent’s stockholders as such Superior Proposal or, in the case of an Intervening Event, after consulting with outside legal counsel, permits the Board (consistent with its fiduciary duties under applicable Law) to not make a Change in the Parent Board Recommendation;  provided ,  however , that, during the Notice Period, Parent shall negotiate in good faith with Citrix (to the extent Citrix desires to negotiate) regarding any Revised Transaction Proposal; and  provided ,  further , that any amendment to the terms of such Superior Proposal or any material change to the facts and circumstances of the Intervening Event during the Notice Period shall require a new written notice from Parent describing such amendment or material change and an additional three (3) Business Day Notice Period that satisfies this  Section 7.03(d)(ii) , including with respect to Parent’s obligations to negotiate in good faith with Citrix.
(e) Any disclosure that the Parent Board may be required to make under applicable Law (including to the extent the Parent Board determines in its good faith judgment, after consultation with outside legal counsel, that the failure to make such disclosure would be a breach of its fiduciary duties under applicable Law) with respect to the receipt of a proposal or offer with respect to a Competing Parent Transaction or under Item 1012(a) of Regulation M-A or Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act will not constitute a violation of this  Section 7.03 ;  provided ,  however , that neither the Parent Board nor any committee thereof shall (i) make a Change in the Parent Recommendation in connection with such disclosure unless permitted by  Section 7.03(d) and (ii) any public statement made that relates to a Competing Parent Transaction shall be deemed to be a Change in the Parent Recommendation unless the Parent Board references or otherwise reaffirms the Parent Recommendation in such public statement (it being understood that any “stop, look and listen” communication by or on behalf of Parent pursuant to Rule 14d-9(f) shall not be considered a Change in the Parent Recommendation). Any Change in the Parent Recommendation shall not change the approval of the Parent Board for purposes of causing any state takeover statute or other state Law to be inapplicable to the transactions contemplated by this Agreement.
 
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(f) Citrix agrees that neither it nor any of its Subsidiaries shall, and that it shall cause each of its Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or take any other action to knowingly facilitate, any inquiries or the making of any proposal or offer (including any proposal or offer to Parent’s stockholders), with respect to any Competing SpinCo Transaction; (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing SpinCo Transaction; (iii) agree to, approve, endorse, recommend or consummate any Competing SpinCo Transaction; (iv) enter into any Competing SpinCo Transaction Agreement; or (v) resolve, propose or agree, or authorize any Representative to do any of the foregoing. Citrix acknowledges and agrees that the doing of any of the foregoing by Citrix or any of its Subsidiaries or Representatives shall be deemed to be a breach by Citrix of this  Section 7.03(f) . Citrix shall, and shall cause its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons (other than Parent and its Affiliates) conducted prior to the execution of this Agreement by Citrix or any of its Representatives with respect to any Competing SpinCo Transaction. Citrix shall not, and shall not permit any of its Representatives to, release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it or one of its Affiliates is a party in connection with any Competing SpinCo Transaction. Citrix shall promptly request each Person (other than Parent and its Affiliates) that has heretofore executed a confidentiality agreement with Citrix in connection with such Person’s consideration of any Competing SpinCo Transaction (whether by merger, acquisition of stock or assets or otherwise), to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement. Citrix shall promptly (and in any event within twenty-four (24) hours after Citrix attains knowledge thereof) notify Parent, orally and in writing, after the receipt by Citrix or any of its Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing SpinCo Transaction, including any request for discussions or negotiations and any request for information relating to Citrix or any of its Affiliates with respect to the SpinCo Business, or for access to the business, properties, assets, books or records of Citrix or any of its Affiliates with respect to the SpinCo Business.
Section 7.04 Access to Information .
(a) From the date of this Agreement until the Closing, upon reasonable notice, Citrix shall use its reasonable best efforts to (i) afford Parent and its authorized Representatives reasonable access to the offices, properties and books and records of the SpinCo Business; and (ii) furnish to the authorized Representatives of Parent such additional available information regarding the SpinCo Business (or copies thereof), as Parent may from time to time reasonably request;  provided that (x) any such access or furnishing of information shall be conducted at Parent’s expense, during normal business hours, under the supervision of Citrix’s personnel and in such a manner as not to unreasonably interfere with the normal operations of the SpinCo Business; (y) all requests for access pursuant to this  Section 7.04(a)  shall be made in writing and shall be directed to and coordinated with a person or persons designated by Citrix in writing; and (z) Parent shall not, and shall cause its Representatives not to, contact any of the employees, customers, distributors or suppliers of any Citrix Entity in connection with the transactions contemplated by this Agreement, the Loan Agreement, the Separation Agreement and the Ancillary Agreements, whether in person or by telephone, mail, or other means of communication, without the prior written authorization of Citrix (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary in this Agreement, Citrix shall not be required to provide any access or disclose any information to Parent or its Representatives if such disclosure would reasonably be expected to (A) jeopardize, or result in a loss or waiver of, any attorney-client or other legal privilege; (B) contravene any applicable Law, fiduciary duty or agreement; or (C) result in the loss of protection of any proprietary information or Trade Secrets of any Citrix Entity. When accessing any of Citrix’s properties, Parent shall, and shall cause its Representatives to, comply with all of Citrix’s security requirements for the applicable property; provided that Citrix shall give notice to Parent of the fact that it is withholding such access or information pursuant to clauses (A) , (B) or (C) of this Section 7.04(a) and thereafter Citrix and Parent shall use their respective commercially reasonable efforts to cause such access or information, as applicable, to be provided, or made available, in a manner that would not reasonably be expected to jeopardize such privilege, contravene such applicable Law, fiduciary duty or agreement, or result in any loss of such protection of proprietary information. Notwithstanding anything to the contrary in this Agreement, in no event shall Citrix be required to provide any information relating to any Excluded Assets or Excluded Liabilities.
 
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(b) From the date of this Agreement until the Closing, upon reasonable notice, Parent shall use its reasonable best efforts to (i) afford Citrix and its authorized Representatives reasonable access to the offices, properties and books and records of the businesses of Parent and its Subsidiaries; and (ii) furnish to the authorized Representatives of Citrix such additional available information regarding the businesses of Parent and its Subsidiaries (or copies thereof), as Citrix may from time to time reasonably request; provided that (x) any such access or furnishing of information shall be conducted at Citrix’s expense, during normal business hours, under the supervision of the personnel of Parent or its Subsidiaries and in such a manner as not to unreasonably interfere with the normal operations of the businesses of Parent and its Subsidiaries; (y) all requests for access pursuant to this  Section 7.04(b)  shall be made in writing and shall be directed to and coordinated with a person or persons designated by Parent in writing; and (z) Citrix shall not, and shall cause its Representatives not to, contact any of the employees, customers, distributors or suppliers of any Parent Entity in connection with the transactions contemplated by this Agreement, the Separation Agreement and the Ancillary Agreements, whether in person or by telephone, mail, or other means of communication, without the prior written authorization of Parent (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary in this Agreement, Parent shall not be required to provide any access or disclose any information to Citrix or its Representatives if such disclosure would reasonably be expected to (A) jeopardize, or result in a loss or waiver of, any attorney-client or other legal privilege; (B) contravene any applicable Law, fiduciary duty or agreement; or (C) result in the loss of protection of any proprietary information or Trade Secrets of any Parent Entity; provided that the Parent shall give notice to Citrix of the fact that it is withholding such access or information pursuant to clauses (A) , (B) or (C) of this Section 7.04(b) and thereafter Citrix and Parent shall use their respective commercially reasonable efforts to cause such access or information, as applicable, to be provided, or made available, in a manner that would not reasonably be expected to jeopardize such privilege, contravene such applicable Law, fiduciary duty or agreement, or result in any loss of such protection of proprietary information. When accessing any of the properties of Parent or its Affiliates, Citrix shall, and shall cause its Representatives to, comply with all of Parent’s or its Affiliates’ security requirements for the applicable property.
Section 7.05 Directors’ and Officers’ Indemnification .
(a) Parent shall cause the Transferred Subsidiaries (i) to maintain for a period of not less than six (6) years from the Effective Time provisions in their respective certificate of incorporation and bylaws (or similar organizational documents) concerning the indemnification and exculpation (including provisions relating to expense advancement) of the Transferred Subsidiaries’ respective former and current officers and directors that are no less favorable to those Persons than the provisions of the certificate of incorporation and bylaws of the Transferred Subsidiaries, as applicable, in each case, as of the date hereof and (ii) not to amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law.
(b) Notwithstanding anything contained in this Agreement to the contrary, this Section 7.05 shall survive the consummation of the transactions contemplated hereby and shall be binding, jointly and severally, on all successors and assigns of Parent and the Surviving Corporation and are intended to be for the benefit of, and will be enforceable by, each present and former director and officer of any Transferred Subsidiary and his or her heirs and representatives. In the event that Parent or the Surviving Corporation or any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 7.05 .
Section 7.06 Regulatory and Other Authorizations; Notices and Consents .
(a) Prior to the Effective Time, each party hereto shall, and shall cause its Affiliates to, use reasonable best efforts to (i) promptly obtain all authorizations, consents, orders and approvals of all Governmental Authorities that may be or become necessary or advisable for its execution and delivery of, and the performance of its obligations pursuant to, this Agreement, the Loan Agreement, the Separation Agreement and the Ancillary
 
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Agreements; (ii) cooperate fully with the other parties in promptly seeking to obtain all such authorizations, consents, orders and approvals; and (iii) provide such other information to any Governmental Authority as such Governmental Authority may reasonably request in connection herewith. The applicable party hereto (or its Affiliate) making any notice or filing with any Governmental Authority as required by this Section 7.06 shall pay all applicable filing or notice fees required in connection therewith; provided that Parent or Citrix, as applicable, shall reimburse the other for its portion of all antitrust filing fees such that Parent and Citrix shall bear the cost of such fees evenly.
(b) Each party hereto agrees to, and shall cause its respective Affiliates to, make promptly, and no later than ten (10) Business Days after the date hereof unless mutually agreed otherwise by the parties, its respective filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated by this Agreement, the Separation Agreement and the Ancillary Agreements. Each party further agrees that it will supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the HSR Act. Each party hereto agrees to, and shall cause its respective Affiliates to, make as promptly as practicable its respective filings and notifications, if any, under any other applicable antitrust, competition or trade regulation Law and to supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material that may be requested pursuant to the applicable antitrust, competition or trade regulation Law.
(c) Without limiting the generality of the parties’ undertakings pursuant to  Section 7.06(a)-(b) , and notwithstanding anything in this Agreement to the contrary, Parent shall, and shall cause each of its Affiliates to, use reasonable best efforts to avoid or eliminate each and every impediment under any antitrust, competition or trade regulation Law that may be asserted by any antitrust or competition Governmental Authority or any other party so as to enable the parties hereto to close the transactions contemplated hereby and by the Separation Agreement and the Ancillary Agreements as promptly as practicable, and in any event prior to the Termination Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders or otherwise, the sale, divestiture or disposition of its assets, properties or businesses or of the assets, properties or businesses to be acquired by it pursuant hereto, and the entrance into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of materially delaying or preventing the consummation of the transactions contemplated hereby and by the Separation Agreement and the Ancillary Agreements (“ Antitrust Remedial Actions ”); provided that the effectiveness of such Antitrust Remedial Action shall be contingent on the consummation of the Merger; and provided further that (i) no Antitrust Remedial Actions that require sales, divestitures or dispositions of any assets, properties or businesses shall be required if such assets, properties or businesses account for more than $40.0 million in estimated, or, if applicable, actual revenues for the fiscal year ended December 31, 2016 and (ii) no other Antitrust Remedial Actions shall be required if such Antitrust Remedial Actions would reasonably be expected, individually or in the aggregate, to result in a reduction in annual revenue to Parent and its Subsidiaries (including the Surviving Corporation and the Transferred Subsidiaries) of more than $40.0 million. In addition, Parent shall, and shall cause its Affiliates to, defend through litigation on the merits through a lower court ruling any Action by any party in order to avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that would prevent the Closing prior to the Termination Date. Citrix acknowledges that, subject to the provisions of Section 7.06(d) , Parent shall control any such Action with counsel of its choosing; provided that Citrix shall be allowed to participate in such defense, at its own expense, including to engage counsel of its choosing, and Parent and Citrix agree to cooperate and coordinate fully with each other and use their respective reasonable best efforts in connection therewith, and in furtherance thereof, Parent agrees to keep Citrix reasonably and timely informed of any developments with regard to such Action. Cooperation and coordination shall include prior, good faith consultation with Citrix as to any substantive aspects of litigation strategy and consideration in good faith of Citrix’s views and comments. In furtherance of Parent’s obligations under this  Section 7.06(c) , Citrix shall, and shall cause its Affiliates to, enter into agreements or arrangements reasonably requested by Parent to be entered into by any of them prior to the Closing with respect to any matters contemplated by this Section 7.06(c) ;  provided , however , that (i) this Section 7.06(c) shall not require Citrix or any of its Affiliates to agree to any sale, divestiture, disposition or other arrangement with respect to any businesses or assets other than the SpinCo Business and (ii) the effectiveness of any sale, divestiture or disposition or entry into such other arrangements shall be contingent on the consummation of the Merger.
 
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(d) Each party hereto shall promptly notify the other parties hereto of any communication it or any of its Representatives receives from any Governmental Authority relating to the matters that are the subject of this Agreement and permit the other parties to review in advance any proposed communication by such party to any Governmental Authority. None of the parties hereto shall agree to participate in any meeting with any Governmental Authority in respect of any filings, investigation (including any settlement of an investigation), litigation or other inquiry unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate at such meeting. Each party hereto shall, and shall cause its Representatives to, coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other parties hereto may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, including under the HSR Act. Each party hereto shall, and shall cause its Representatives to, provide each other with copies of all correspondence, filings or communications between them or any of their respective Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement and the Ancillary Agreements;  provided , however , that materials may be redacted (i) as necessary to comply with contractual arrangements or applicable Law; and (ii) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(e) Each party hereto agrees that it shall not, and shall cause its Affiliates not to, enter into any transaction, or any agreement to effect any transaction (including any merger or acquisition) that might reasonably be expected to make it more difficult, or to increase the time required, by more than a de minimis extent, to (i) obtain the expiration or termination of the waiting period under the HSR Act, or any other applicable antitrust, competition or trade regulation Law, applicable to the transactions contemplated by this Agreement, the Loan Agreement, the Separation Agreement and the Ancillary Agreements; (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order that would materially delay or prevent the consummation of the transactions contemplated hereby and by the Loan Agreement, the Separation Agreement and the Ancillary Agreements; or (iii) obtain all authorizations, consents, orders and approvals of Governmental Authorities necessary for the consummation of the transactions contemplated by this Agreement.
(f) Each party hereto shall, and shall cause its Affiliates to, use commercially reasonable efforts to (i) obtain the FCC Consent and (ii) obtain all approvals, authorizations, or consents and submit all notices listed on Schedule 4.05 of the Citrix Disclosure Letter.
Section 7.07 Tax Matters .
(a) This Agreement is intended to constitute a “plan of reorganization” within the meaning of Treasury Regulations sections 1.368-2(g) and 1.368-3 and the parties hereto hereby adopt it as such. From and after the date of this Agreement and until the Effective Time, each party hereto shall use its reasonable best efforts to ensure the Tax-Free Status of the External Transactions, including causing each of the Separation and the Merger to qualify, and will not knowingly take any action, cause or permit any action to be taken, fail to take any action or cause any action to fail to be taken, which action or failure to act could prevent the Tax-Free Status of the External Transactions, including preventing the Separation or the Merger from qualifying, as a “reorganization” within the meaning of Section 368(a) of the Code. Following the Effective Time, none of Citrix, the Surviving Corporation, Parent nor any of their Affiliates shall knowingly take any action, cause or permit any action to be taken, fail to take any action or cause any action to fail to be taken, which action or failure to act could cause either the Separation or the Merger to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code or otherwise prevent the parties from achieving the Tax-Free Status of the External Transactions.
(b) Parent and Citrix shall cooperate and use their respective reasonable best efforts in order for (i) Parent to obtain the opinion of Latham & Watkins LLP (“ Parent Tax Counsel ”), in form and substance reasonably acceptable to Parent, dated as of the Closing Date to the effect that, on the basis of the facts and customary representations and assumptions set forth or referred to in such opinion and the Tax Representation Letters and on the assumption that the conclusion in  clause (ii)(A)  of this  Section 7.07(b)  is correct, for U.S. federal income Tax purposes the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and that each of Parent, Merger Sub and SpinCo will be a party to the reorganization within the meaning of Section 368(b) of the Code (“ Parent Merger Tax Opinion ”); (ii) Citrix to obtain the opinion of Skadden, Arps,
 
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Slate, Meagher & Flom LLP (“ Citrix Tax Counsel ”), in form and substance reasonably acceptable to Citrix, dated as of the Closing Date, on the basis of the facts and customary representations and assumptions set forth or referred to in such opinion and the Tax Representation Letters, as to the Tax-Free Status of the External Transactions, including that for U.S. federal income Tax purposes, (A) (1) the Contribution and Distribution, taken together, will constitute a “reorganization” within the meaning of Section 368(a) of the Code and each of Citrix and SpinCo will be a party to the reorganization within the meaning of Section 368(b) of the Code, (2) the Distribution, as such, will qualify as a distribution of the SpinCo Common Stock to Citrix’s shareholders pursuant to Section 355 of the Code, and as a transaction in which the stock distributed thereby is “qualified property” for purposes of Sections 355(d), 355(e) and 361(c) of the Code, and (3) the Merger will not cause Section 355(e) of the Code to apply to the Distribution (the “ Citrix Separation Tax Opinion ”); and (B) the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and that each of Parent, Merger Sub and SpinCo will be a party to the reorganization within the meaning of Section 368(b)   of the Code (the “ Citrix Merger Tax Opinion ,” and together with the Citrix Separation Tax Opinion, “ Citrix RMT Tax Opinions ”), and (iii) any Tax opinions required to be filed with the SEC in connection with the filing of the Registration Statement to be timely filed.
(c) As a condition precedent to the rendering of the Parent Merger Tax Opinion and the Citrix RMT Tax Opinions, Parent, Citrix and SpinCo, and others, if required, shall execute and deliver to Citrix Tax Counsel and Parent Tax Counsel the Tax Representation Letters as of (i) the Closing Date and (ii) the date for filing any Tax opinion required to be filed with the SEC in connection with the filing of either of the Registration Statements; provided , however , that (x) the foregoing does not require that any Person make a representation that they do not believe to be accurate and (y) each of Citrix and Parent, respectively, shall be entitled to a reasonable amount of time to provide the other Party with written comments to the Tax Representation Letters in support of the Citrix Merger Tax Opinion and the Parent Merger Tax Opinion, respectively.
(d) As of the date hereof, Parent does not know of any reason (i) why it would not be able to deliver the Tax Representation Letters at the applicable times set forth in  Section 7.07(c) ; or (ii) why Parent would not be able to obtain the opinion contemplated by  Section 8.02(b)(i) . As of the date hereof, Citrix and SpinCo do not know of any reason (i) why they would not be able to deliver the Tax Representation Letters at the applicable times set forth in Section 7.07(c) ; or (ii) why Citrix would not be able to obtain the opinion contemplated by Section 8.03(b)(i) .
(e) Citrix (i) as of the date of this Agreement, does not know and has no reason to believe, that any SpinCo Common Stock to be exchanged for Parent Common Stock may not be Qualified SpinCo Common Stock; (ii) will use its reasonable best efforts to prevent any SpinCo Common Stock to be exchanged for Parent Common Stock from not being Qualified SpinCo Common Stock; and (iii) will promptly notify Parent if, before the Effective Time, it knows or has reason to believe that any SpinCo Common Stock to be exchanged for Parent Common Stock may not be Qualified SpinCo Common Stock.
(f) Except as otherwise expressly provided herein, this Agreement shall not govern Tax matters (including any administrative, procedural and related matters thereto), which shall be exclusively governed by the Tax Matters Agreement and the Employee Matters Agreement.
Section 7.08 Control of Other Party ’ s Business . Nothing contained in this Agreement shall give Citrix or SpinCo, directly or indirectly, the right to control or direct any of the operations of Parent prior to the Closing. Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct any of the operations of Citrix, the Transferred Subsidiaries or the SpinCo Business prior to the Closing. Prior to the Closing, each of Citrix, SpinCo, Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its respective operations.
Section 7.09 Listing of Shares of Parent Common Stock . Parent shall use its reasonable best efforts to cause the shares of Parent Common Stock to be issued pursuant to the Merger to be approved for listing on Nasdaq, subject to official notice of issuance, and Citrix shall reasonably cooperate with Parent with respect to such listing.
Section 7.10 Section   16 Matters . Prior to the Effective Time, the parties hereto shall take all steps as may be required to cause any dispositions of SpinCo Common Stock or acquisitions of Parent Common
 
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Stock resulting from the transactions contemplated by this Agreement by each officer or director who is or will be subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to SpinCo or Parent, to be exempt under Rule 16b-3 promulgated under the Exchange Act.
Section 7.11 Confidentiality .
(a) The terms of the Confidentiality Agreement, dated as of November 2015 (the “ Confidentiality Agreement ”), between Citrix and Parent, are hereby incorporated herein by reference and shall continue in full force and effect until the Closing and shall survive the Closing and remain in full force and effect until their expiration in accordance with the terms of the Confidentiality Agreement;  provided ,  however , that, upon the Closing, the confidentiality obligations of Parent contained in the Confidentiality Agreement shall terminate in respect of that portion of the Confidential Information (as defined in the Confidentiality Agreement) exclusively relating to the SpinCo Business. If this Agreement is, for any reason, terminated prior to the Closing, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms.
(b) Nothing provided to Parent or Citrix or their respective Representatives pursuant to Section 7.04  shall in any way amend or diminish the parties’ obligations under the Confidentiality Agreement. Each of Parent and Citrix acknowledges and agrees that any Confidential Information made available to such party or its Representatives pursuant to  Section 7.04  or otherwise by the other party or any of its Representatives shall be subject to the terms and conditions of the Confidentiality Agreement.
Section 7.12 Further Actions .
(a) Except as otherwise expressly provided in this Agreement, the parties hereto shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all appropriate action, to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable under applicable Law (other than with respect to the matters covered in  Section 7.06 ) to execute and deliver the Loan Agreement and the Ancillary Agreements and such other documents and other papers as may be required to carry out the provisions of this Agreement and to consummate and make effective the transactions contemplated by this Agreement. In furtherance of the foregoing, prior to the Closing, Citrix and Parent shall use commercially reasonable efforts to enter into definitive agreements setting forth the terms and conditions of the Commercial Arrangements, such terms and conditions to be on an arms’ length basis and mutually agreeable to the parties. Prior to the Closing, (i) neither Citrix nor SpinCo shall terminate or assign the Separation Agreement, amend any provision of the Separation Agreement or any Exhibit or Schedule thereto or waive compliance with any of the agreements or conditions contained in the Separation Agreement, in each case without the prior written consent of Parent; and (ii) any consent, approval, authorization or similar action to be taken by SpinCo under the Separation Agreement shall be subject to the prior written consent of Parent in accordance with the terms of the Separation Agreement. Prior to the Closing, Citrix shall keep Parent reasonably informed of the status of the Internal Reorganization, including Citrix’s and SpinCo’s progress in obtaining any necessary third-party consents or approvals of Governmental Authorities and shall reasonably consult with Parent regarding the terms of any arrangement established pursuant to Section 2.4 of the Separation Agreement.
(b) Subject to the applicable terms of the Separation Agreement, from time to time after the Closing, without additional consideration, each party hereto shall, and shall cause its Affiliates to, execute and deliver such further instruments and take such other action as may be necessary or is reasonably requested by another party hereto to make effective the transactions contemplated by this Agreement.
Section 7.13 Employee Non-Solicitation; Non-Competition .
(a) Citrix agrees that, from and after the date hereof until the date that is two (2) years after the Closing Date, or, in the case of clause (y) below, one (1) year after the Closing Date, it shall not, and shall cause its Subsidiaries not to, without the prior written consent of Parent, directly or indirectly, (x) solicit for employment any of the SpinCo Employees or (y) hire any of the SpinCo Employees listed on Schedule 7.13(a) ; provided , however , that (i) the placement of any general mass solicitation or advertising that is not targeted at SpinCo Employees shall not be considered a violation of this Section 7.13(a) ; and (ii) this Section 7.13(a) shall not preclude
 
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Citrix or its Subsidiaries from soliciting or hiring any SpinCo Employee whose employment with a Parent Entity (including a Transferred Subsidiary) has been terminated by such Parent Entity; and provided further that nothing in this Section 7.13(a) shall require Citrix or any of its Subsidiaries to take any action or refrain from taking any action if such action or inaction would violate applicable Law. For the avoidance of doubt, this Section 7.13(a) shall not restrict activities between Citrix and the SpinCo Employees prior to the Closing Date.
(b) Parent agrees that, from and after the date hereof until the date that is one (1) year after the Closing Date, or, in the case of clauses (y) and (z) below, two (2) years after the Closing Date, it shall not, and shall cause its Subsidiaries (including the Transferred Subsidiaries) not to, without the prior written consent of Citrix, directly or indirectly, (x) solicit for employment any of the employees of Citrix and its Subsidiaries, (y) solicit for employment any of the Citrix employees listed on Schedule 7.13(b)(1) or (z) hire any of the Citrix employees listed on Schedule 7.13(b)(2) ; provided , however , that (i) the placement of any general mass solicitation or advertising that is not targeted at Citrix employees shall not be considered a violation of this Section 7.13(b) ; and (ii) this  Section 7.13(b)  shall not preclude Parent or its Subsidiaries from soliciting or hiring any Citrix employee whose employment with a Citrix Entity has been terminated by such Citrix Entity; and provided further that nothing in this Section 7.13(b) shall require Parent or any of its Subsidiaries to take any action or refrain from taking any action if such action or inaction would violate applicable Law.
(c) In furtherance of the Merger and the transactions contemplated hereby, Citrix covenants and agrees that, from and after the Closing Date until the date that is three (3) years after the Closing Date, it shall not, and shall cause its Subsidiaries not to, without the prior written consent of Parent, directly or indirectly, engage in any Competitive Business anywhere throughout the world. Notwithstanding the foregoing, nothing herein shall prohibit Citrix or any Citrix Entity from (i) (x) engaging in the businesses conducted by the Citrix Entities (excluding the SpinCo Business) as of the date hereof including, for the avoidance of doubt, all Citrix products and services branded in whole or in part as XenApp, XenDesktop, XenServer, XenMobile, NetScaler, SD-WAN, ShareFile, Citrix Cloud or Octoblu; (y) engaging in the design, development, marketing, sale and support of new technologies, features, products and services to the extent related to any such business (and not any Competitive Business) or any other organic expansion of such business (and not any Competitive Business), through internal innovation or research and development (including, any and all technologies, features, products and services in the Citrix Cloud and internet-of-things initiatives); and (z) engaging in any combination and/or integration, merger, commercializing of currently owned-technologies, acquisition, partnership, license arrangement, joint venture or otherwise to the extent related to any such business (and not any Completive Business), (ii) owning no more than 5% in the aggregate of any class of capital stock or other equity interest of any Person engaged in a Competitive Business, (iii) performing their obligations under this Agreement, the Separation Agreement and the Ancillary Agreements, (iv) (x) utilizing for any purpose the Intellectual Property licensed to Parent and its Subsidiaries by Citrix and its Subsidiaries pursuant and subject to the terms and conditions set forth in the IP License Agreement or (y) utilizing the Intellectual Property licensed to Citrix and its Subsidiaries by Parent and its Subsidiaries pursuant to, and subject to the terms and conditions set forth in, the IP License Agreement, or (v) acquiring a Person which engages in a Competitive Business so long as (x) the total consolidated revenues of such Person from the Competitive Business for the fiscal year ended immediately prior to such acquisition do not exceed 15% of the total consolidated revenues of such Person for such fiscal year, and (y) if such revenues exceed 10% of the total consolidated revenues of such Person for such fiscal year, the Citrix Entities enter into a definitive agreement to divest such Competitive Business so acquired not later than one hundred twenty (120) days after the closing of such acquisition.
Section 7.14 Employee Benefits Matters .
(a) Parent agrees that, for at least one (1) year following the Effective Time, it shall, or shall cause the Surviving Corporation to, except as otherwise required under the Employee Matters Agreement, provide each SpinCo Employee, while such SpinCo Employee remains employed (a “ Continuing SpinCo Employee ”), with the opportunity to participate in the employee benefit plans, programs and policies of Parent and its Subsidiaries in substantially the same manner as similarly-situated employees of Parent and its Subsidiaries. From and after the Effective Time, Parent shall cause the service of each Continuing SpinCo Employee to be recognized for purposes of eligibility to participate, levels of benefits (but not for benefit accruals under any defined benefit pension plan) and vesting under (i) any severance policy or program of Parent, the Surviving Corporation or any of their Affiliates and (ii) for at least one (1) year after the Effective Time, each other compensation, retirement,
 
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vacation, fringe or other welfare benefit plan, program or arrangement of Parent, the Surviving Corporation or any of their Affiliates, but not including any equity compensation plans, programs, agreements or arrangements in which any such employee is or becomes eligible to participate, but solely to the extent service was credited to such employee for such purposes under a comparable employee benefit plan, program or policy of Citrix and its Subsidiaries (each a “ Citrix Plan ”) immediately prior to the Effective Time and solely to the extent such credit would not result in a duplication of benefits.
(b) From and after the Effective Time, with respect to each Parent Plan that provides for dental, medical or vision benefits in which any Continuing SpinCo Employee participates, Parent shall use commercially reasonable efforts to cause each such Parent Plan to (i) waive all limitations as to pre-existing conditions, waiting periods, required physical examinations and exclusions with respect to participation and coverage requirements applicable under such Parent Plan for such employees and their eligible dependents to the same extent that such pre-existing conditions, waiting periods, required physical examinations and exclusions would not have applied or would have been waived under the corresponding Citrix Plan in which such employee was a participant immediately prior to the Effective Time but, with respect to long-term disability and life insurance benefits and coverage, solely to the extent permitted under the terms and conditions of Parent’s applicable insurance contracts in effect as of the relevant time; provided , however , that for purposes of clarity, to the extent such benefit coverage includes eligibility conditions based on periods of employment, Section 7.14(a) shall control; and (ii) provide each Continuing SpinCo Employee and his or her eligible dependents with credit for any co-payments and deductibles paid in the calendar year that, and prior to the date that, such employee commences participation in such Parent Plan in satisfying any applicable co-payment or deductible requirements under such Parent Plan for the applicable calendar year, to the extent that such expenses were recognized for such purposes under the comparable Citrix Plan. Citrix shall as promptly as reasonably practicable provide Parent or its designee with such information as Parent reasonably requests regarding the Citrix Plans and the participation of Continuing SpinCo Employee therein and shall otherwise provide reasonable cooperation and assistance to Parent at Citrix’s expense to the extent reasonably necessary to allow Parent to satisfy its obligations under Sections 7.14(a) and (b) .
(c) From time to time, upon Parent’s reasonable request, prior to the Distribution Effective Time, Citrix shall provide Parent with (i) an updated SpinCo Employee Schedule to reflect changes to the information provided on the SpinCo Employee Schedule, including as result of new hires or employment terminations and (ii) an updated SpinCo Contractor Schedule. Upon Parent’s written notice to Citrix delivered at least five days prior to the Distribution Effective Time, Citrix shall cause the employment of any individuals mutually identified by Citrix and Parent to be transferred to Citrix or one of its Subsidiaries (other than SpinCo and its Subsidiaries) effective prior to the Distribution Effective Time and any such transferred employee shall not be a SpinCo Employee for purposes of this Agreement or any Ancillary Agreement.
(d) The parties acknowledge and agree that all provisions contained in this Section 7.14 are included for the sole benefit of the respective parties to this Agreement and shall not create any right in any other Person, or any right to continued employment with Parent, the Surviving Corporation or any of their Affiliates. Nothing in this Section 7.14 shall be deemed to amend or require Parent, the Surviving Corporation or any of their Affiliates to continue or amend any particular benefit plan before or after the consummation of the transactions contemplated by this Agreement, and any such plan may be amended or terminated in accordance with its terms and applicable Law.
Section 7.15 Takeover Statutes . If any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other form of antitakeover Law shall become applicable to the transactions contemplated hereby, Parent, Merger Sub and their respective boards of directors shall use all reasonable efforts to grant such approvals and take such actions as are reasonably necessary so that the transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to eliminate or minimize the effects of such statute or regulation on the transactions contemplated hereby.
Section 7.16 Defense of Litigation . Parent shall keep Citrix apprised in the defense of any Action brought by stockholders of Parent or in the name of Parent against Parent and/or its directors relating to the transactions contemplated by this Agreement, including the Merger; provided that, prior to the Effective Time, Parent shall not compromise, settle, come to an arrangement regarding or agree to compromise, settle or come to an arrangement regarding any Action arising or resulting from the transactions contemplated by this Agreement or
 
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consent to the same, without the prior written consent of Citrix (not to be unreasonably withheld, conditioned or delayed) to the extent (a) such Action includes Citrix or any of its Subsidiaries, or their directors or officers as named defendants or (b) such compromise, settlement or arrangement would reasonably be expected to have a material adverse effect on the ability of the parties to perform their respective obligations hereunder, or to consummate the transactions contemplated hereby in a timely manner.
Section 7.17 SpinCo Authorized Shares .  Prior to the Distribution, Citrix and SpinCo shall take all such actions necessary to amend and restate SpinCo’s certificate of incorporation, in form reasonably acceptable to Parent, such that the authorized number of shares of SpinCo Common Stock shall exceed the number of Shares contemplated by Section 2.04(f) of this Agreement.
ARTICLE VIII
CONDITIONS TO THE MERGER
Section 8.01 Conditions to the Obligations of Each Party . The respective obligations of the parties hereto to consummate the Merger are subject to the satisfaction or written waiver (where permissible under applicable Law) at or prior to the Effective Time of each of the following conditions:
(a) Internal Reorganization and Separation . The Internal Reorganization and the Separation shall have been consummated in all material respects in accordance with the Separation Agreement.
(b) Registration Statements . Each Registration Statement, to the extent required, shall have been declared effective by the SEC under the Securities Act or have become effective under the Exchange Act, as applicable, and no stop order suspending the effectiveness of either Registration Statement shall have been issued by the SEC and no proceeding for that purpose shall be pending before the SEC.
(c) Listing . The shares of Parent Common Stock to be issued pursuant to the Merger shall have been approved for listing on Nasdaq, subject to official notice of issuance.
(d) Stockholder Approval . The Required Parent Stockholder Vote shall have been obtained.
(e) Competition Law Approvals . Any waiting period (and any extension thereof) under the HSR Act shall have expired or shall have been terminated and any consents, authorizations, orders, approvals, declarations and filings under the antitrust Laws of the jurisdictions identified on Schedule 8.01(e) of the Citrix Disclosure Letter shall have been made or obtained.
(f) Communications Approvals . (i) The FCC Consent shall have been obtained, and (ii) the other consents and approvals of (or filings or registrations with) state public utility commissions or similar state authorities described on Schedule 8.01(f) of the Citrix Disclosure Letter shall have been made or obtained.
(g) No Order . There shall not be in effect any Law or any Governmental Order issued by a Governmental Authority of competent jurisdiction that enjoins or makes illegal the consummation of the Merger, the Internal Reorganization or the Separation.
Section 8.02 Conditions to the Obligations of Parent and Merger Sub . The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or written waiver (where permissible under applicable Law) at or prior to the Effective Time of each of the following additional conditions:
(a) Representations, Warranties and Covenants . (i) The representations and warranties of Citrix contained in this Agreement (A) set forth in Sections 4.01(a) (first two sentences only), 4.01(b) and 4.01(c) , 4.03(a) (first sentence only), 4.03(b) and 4.19 shall be true and correct in all material respects as though such representations and warranties had been made on and as of the Closing Date; (B) set forth in Section 4.02(a) , 4.02(b) and 4.02(c) shall be true and correct as though such representations and warranties had been made on and as of the Closing Date except for de minimis deviations; and (C) otherwise set forth in Article IV (1) that are qualified by a “SpinCo Material Adverse Effect” qualification shall be true and correct in all respects as so qualified as though
 
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such representations and warranties had been made on and as of the Closing Date; and (2) that are not qualified by a “SpinCo Material Adverse Effect” qualification shall be true and correct as though such representations and warranties had been made on and as of the Closing Date, except for such failures to be true and correct as would not have, individually or in the aggregate, a SpinCo Material Adverse Effect (except to the extent such representations and warranties are, by their terms, made as of a specific date, in which case such representations and warranties shall be true and correct in the manner set forth in the foregoing clauses (A) , (B) or (C) , as applicable, as of such date); (ii) the covenants and agreements contained in this Agreement and the Separation Agreement to be complied with by Citrix and SpinCo on or prior to the Closing shall have been complied with in all material respects (except for the covenants set forth in Section 6.01(b)(i) , which shall have been complied with in all respects except for de minimis deviations); and (iii) Parent shall have received a certificate of Citrix signed by a duly authorized representative thereof dated as of the Closing Date certifying the matters set forth in clauses (i) and (ii) above.
(b) Tax Opinions . Parent shall have received (i) the Parent Merger Tax Opinion from Parent Tax Counsel, which opinion shall not have been withdrawn or modified in any material respect, and (ii) copies of the Citrix RMT Tax Opinions.
(c) Separation Documents . Citrix and SpinCo (or a Subsidiary thereof) shall have entered into each applicable Ancillary Agreement and each such agreement shall be in full force and effect, and to the extent applicable, performed the covenants to be performed by such Citrix Entity thereunder prior to the Closing in all material respects.
(d) Financing . Citrix shall have executed and delivered the Loan Agreement to Parent.
(e) FIRPTA Matters . Citrix shall have delivered to Parent a statement described in Treasury Regulations section 1.1445-2(c)(3)(i), dated within thirty (30) days prior to the Closing Date and in a form reasonably acceptable to Parent, certifying that the interests of SpinCo are not U.S. real property interests.
Section 8.03 Conditions to the Obligations of Citrix and SpinCo . The obligations of Citrix and SpinCo to consummate the Merger are subject to the satisfaction or written waiver (where permissible under applicable Law) at or prior to the Effective Time of each of the following additional conditions:
(a) Representations, Warranties and Covenants . (i) The representations and warranties of Parent and Merger Sub contained in this Agreement (A) set forth in Sections 5.01(a) (first two sentences only), 5.01(b) and 5.01(c) and 5.19 shall be true and correct in all material respects as though such representations and warranties had been made on and as of the Closing Date; (B) set forth in Section 5.02(a) and 5.02(b) shall be true and correct as though such representations and warranties had been made on and as of the Closing Date except for de minimis deviations; and (C) otherwise set forth in Article V (1) that are qualified by a “Parent Material Adverse Effect” qualification shall be true and correct in all respects as so qualified as though such representations and warranties had been made on and as of the Closing Date; and (2) that are not qualified by a “Parent Material Adverse Effect” qualification shall be true and correct as though such representations and warranties had been made on and as of the Closing Date, except for such failures to be true and correct as would not have, individually or in the aggregate, a Parent Material Adverse Effect (except to the extent such representations and warranties are, by their terms, made as of a specific date, in which case such representations and warranties shall be true and correct in the manner set forth in the foregoing clauses (A) , (B) or (C) , as applicable, as of such date); (ii) the covenants and agreements contained in this Agreement to be complied with by Parent and Merger Sub on or prior to the Closing shall have been complied with in all material respects (except for the covenants set forth in Section 6.02(b)(i) , which shall have been complied with in all respects except for de minimis deviations); and (iii) Citrix shall have received a certificate of Parent signed by a duly authorized representative thereof dated as of the Closing Date certifying the matters set forth in clauses (i) and (ii) above.
(b) Tax Opinions . Citrix shall have received (i) the Citrix RMT Tax Opinions from Citrix Tax Counsel, which shall not have been withdrawn or modified in any material respect, and (ii) a copy of the Parent Merger Tax Opinion.
(c) Separation Documents . Parent (or a Subsidiary thereof) shall have entered into each applicable Ancillary Agreement and each such agreement shall be in full force and effect, and to the extent applicable, performed the covenants to be performed by it thereunder prior to the Closing in all material respects.
 
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ARTICLE IX
TERMINATION
Section 9.01 Termination . This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Effective Time, as follows:
(a) by either Parent or Citrix, if the Closing shall not have occurred by the date that is twelve (12) months after the date hereof (the “ Initial Termination Date ”); provided that if the conditions set forth in Sections 8.01(e) , 8.01(f) and 8.01(g) shall not have been satisfied or waived by the Termination Date, but all other conditions to Closing (other than those conditions that by their terms are to be satisfied at the Closing) have been satisfied, then either Parent or Citrix may extend the Termination Date to the close of business on the date that is fifteen (15) months after the date hereof (the “ Extended Termination Date ” and, together with the Initial Termination Date, as applicable, the “ Termination Date ”) by giving written notice of such extension to the other party; provided , further , that the right to terminate this Agreement under this Section 9.01(a) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement or the Separation Agreement shall have been the primary cause of the failure of the Closing to occur on or prior to such date;
(b) by either Parent or Citrix, in the event that any Governmental Authority of competent jurisdiction shall have issued a Governmental Order that permanently enjoins the consummation of the Merger and such Governmental Order shall have become final and non-appealable; provided , however , that the right to terminate this Agreement under this Section 9.01(b) shall not be available to any party whose action or failure to fulfill any obligation under this Agreement has been the primary cause of the issuance of such Governmental Order or other action;
(c) by either Parent or Citrix, if at the Parent Stockholders’ Meeting (including any adjournment, continuation or postponement thereof) the Required Parent Stockholder Vote shall not have been obtained;
(d) by Citrix, if a breach of any representation, warranty, covenant or agreement on the part of Parent set forth in this Agreement (including an obligation to consummate the Closing) shall have occurred that would, if occurring or continuing on the Closing Date, cause the conditions set forth in Section 8.01 or Section 8.03(a) not to be satisfied, and such breach is not cured, or is incapable of being cured, prior to the Termination Date; provided that Citrix shall have given at least thirty (30) days’ (or such lesser time remaining prior to the Termination Date) prior written notice to Parent of such breach; provided , further , that Citrix is not then in breach of this Agreement or the Separation Agreement so as to cause any of the conditions set forth in Section 8.01 or Section 8.02 not to be satisfied;
(e) by Citrix, if (i) a Change in the Parent Recommendation has occurred; (ii) Parent shall have failed to include the Parent Recommendation in the Proxy Statement; (iii) Parent shall have failed to convene the Parent Stockholders’ Meeting at least sixty (60) days prior to the Termination Date; or (iv) Parent shall have failed to comply in all material respects with its obligations in Section 7.03 (it being understood, for the avoidance of doubt, that any failure to comply with such covenants that results in a Competing Parent Transaction shall be deemed material); provided that, in the event of a Change in the Parent Recommendation with respect to a Competing Parent Transaction under clause (i) of this Section 9.01(e) , Citrix shall provide written notice to Parent of its decision to terminate this Agreement pursuant to Section 9.01(e)(i) within thirty (30) calendar days after Citrix has been notified by Parent in writing of such Change in the Parent Recommendation, and if Citrix does not provide such notice within such thirty (30) calendar day period, Citrix shall be deemed to have waived the termination right under Section 9.01(e)(i) solely with respect to such Change in the Parent Recommendation (it being understood that Citrix shall retain the right to terminate this Agreement pursuant to any other applicable provision of this Section 9.01 and to receive any payments related thereto under Section 9.03 of this Agreement);
 
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(f) by Parent, if a breach of any representation, warranty, covenant or agreement on the part of Citrix or SpinCo set forth in this Agreement or the Separation Agreement (including an obligation to consummate the Internal Reorganization, the Separation or the Closing) shall have occurred that would, if occurring or continuing on the Closing Date, cause the conditions set forth in Section 8.01 or Section 8.02(a) not to be satisfied, and such breach is not cured, or is incapable of being cured, prior to the Termination Date; provided that Parent shall have given at least thirty (30) days’ (or such lesser time remaining prior to the Termination Date) written notice to Citrix of such breach; provided , further , that Parent is not then in breach of this Agreement so as to cause any of the conditions set forth in Section 8.01 or Section 8.03 not to be satisfied; or
(g) by the written consent of the parties hereto.
Section 9.02 Effect of Termination . In the event of the valid termination of this Agreement pursuant to Section 9.01 , written notice thereof shall be given to the other parties hereto, specifying the provision or provisions hereof pursuant to which such termination shall have been made, and this Agreement shall forthwith become void, and there shall be no liability under this Agreement on the part of any party hereto or their respective Representatives; provided that no such termination shall relieve any party from liability for fraud committed prior to such termination or for any willful and material breach prior to such termination of any of its representations, warranties, covenants or agreements set forth in this Agreement; provided , further , that Section 7.11 , this Section 9.02 , Section 9.03 and Article X shall survive any termination of this Agreement and remain in full force and effect.
Section 9.03 Fees and Expenses .
(a) The parties hereto agree that:
(i) if Citrix terminates this Agreement pursuant to Section 9.01(e) , then, no later than two (2) Business Days after the date of Citrix’s notice of such termination, Parent shall pay to Citrix the Termination Fee in cash in immediately available funds; and
(ii) if (A) Parent or Citrix, as applicable, terminates this Agreement pursuant to Section 9.01(a) , Section 9.01(c) or Section 9.01(d) ; (B) prior to the termination of this Agreement, a Competing Parent Transaction shall have been publicly announced and not publicly withdrawn or otherwise communicated to the Parent Board or management and not withdrawn; and (C) on or prior to the date that is twelve (12) months after the date of such termination, Parent enters into a Competing Parent Transaction Agreement or consummates a Competing Parent Transaction (whether or not the applicable Competing Parent Transaction is the same as the original Competing Parent Transaction publicly announced or communicated), then (x) on the earlier of the date Parent enters into a Competing Parent Transaction Agreement with respect to, or consummates, a Competing Parent Transaction with any Person (or Affiliate thereof) involved in a Competing Parent Transaction publicly announced or communicated prior to the termination of this Agreement or (y) on the date Parent consummates any other Competing Parent Transaction, Parent shall pay to Citrix the Termination Fee in cash in immediately available funds, less the amount of any Expenses reimbursed by Parent pursuant to Section 9.03(b) ; provided that, solely for purposes of this Section 9.03(a)(ii) , the references to “15%” in the definition of Competing Parent Transaction shall be deemed to refer to “50%.”
(b) The parties hereto agree that, if this Agreement shall be terminated pursuant to Section 9.01(c) , then Parent shall reimburse Citrix and SpinCo for all of their Expenses in cash in immediately available funds, up to a maximum of $10.0 million, in the aggregate, not later than two (2) Business Days after submission by Citrix of statements therefor.
(c) Except as expressly set forth in this Agreement, including this Section 9.03 , all Expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party hereto incurring such Expenses, whether or not the Merger or any other transaction contemplated by this Agreement is consummated.
 
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(d) The parties hereto acknowledge that the agreements contained in this Section 9.03 are an integral part of the transactions contemplated by this Agreement. In the event that Parent shall fail to pay the Termination Fee, or Parent shall fail to pay any Expenses, when due, the amount of such payments shall be increased to include the out-of-pocket costs and expenses incurred or accrued by or on behalf of Citrix and SpinCo (including reasonable fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.03 , together with interest on such unpaid Termination Fee or Expenses, commencing on the date that the Termination Fee or such Expenses became due, at a rate of interest equal to the “prime rate” as published in The Wall Street Journal , Eastern Edition, in effect on the date such payment was required to be made through the date of payment (calculated daily on the basis of a year of 365 days and the actual number of days elapsed). Payment of the fees and expenses described in this Section 9.03 shall not be in lieu of any damages incurred in the event of fraud or willful and material breach of this Agreement.
ARTICLE X
GENERAL PROVISIONS
Section 10.01 Non-Survival of Representations, Warranties, Covenants and Agreements . The representations, warranties, covenants and agreements in this Agreement and in any certificate or instrument delivered pursuant hereto shall terminate at the Effective Time or upon the termination of this Agreement pursuant to Section 9.01 , as the case may be, except for those covenants and agreements contained in this Agreement that by their terms are to be performed in whole or in part after the Effective Time (or survive termination of this Agreement, as applicable, pursuant to Section 9.02 hereof).
Section 10.02 Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by a nationally recognized overnight courier service, or by email or facsimile (with a confirmatory copy sent by a nationally recognized overnight courier service) to the respective parties hereto at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this  Section 10.02 ):
 
(a)	if to Citrix and, on or prior to the Closing, to SpinCo:	
Citrix Systems, Inc.
851 West Cypress Creek Road
Fort Lauderdale, FL 33309
Facsimile: (954) 267-3101
Attn: General Counsel
with a copy to (which shall not constitute notice):
Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
Facsimile: (617) 649-1409
Attn:  Stuart M. Cable, Esq.
          Lisa R. Haddad, Esq.
 
(b)	if to Parent, Merger Sub, and, following the Closing, to SpinCo:	
LogMeIn, Inc.
320 Summer Street
Boston, MA 02210
Facsimile: (781) 437-1820
Attn:  Chief Financial Officer
          General Counsel
 
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with a copy to (which shall not constitute notice):
Latham & Watkins LLP
200 Clarendon Street
Boston, MA 02116
Facsimile: (617) 948-6001
Attn:  John H. Chory
          Bradley C. Faris
Section 10.03 Public Announcements . None of the parties to this Agreement shall make, or cause to be made, any press release or public announcement in respect of this Agreement, the Loan Agreement, the Separation Agreement, the Ancillary Agreements or the transactions contemplated hereby and thereby or otherwise communicate with any news media regarding such matters without the prior written consent of the other parties hereto, unless such press release or public announcement is required by Law or applicable stock exchange regulation, in which case the parties to this Agreement shall, to the extent practicable, consult with each other as to the timing and contents of any such press release, public announcement or communication; provided , however , that (a) the prior written consent of the other parties shall not be required hereunder with respect to any press release, public announcement or communication that is substantially similar to a press release, public announcement or communication previously issued with the prior written consent of the other parties and (b) Parent shall not be required to consult with or obtain any consent from the other parties hereto before issuing any press release or making any other public statement with respect to a Change in the Parent Recommendation effected in accordance with Section 7.03 or with respect to its receipt and consideration of any proposal for a Competing Parent Transaction.
Section 10.04 Severability . If any term or other provision (or part thereof) of this Agreement is declared invalid, illegal or incapable of being enforced by any Governmental Authority, all other terms and provisions (or parts thereof) of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any party hereto. Upon such determination that any term or other provision (or part thereof) is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
Section 10.05 Entire Agreement . This Agreement, the Disclosure Letters, the Separation Agreement, the other Ancillary Agreements and the Confidentiality Agreement constitute the entire agreement of the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the parties hereto with respect to the subject matter hereof and thereof.
Section 10.06 Assignment . This Agreement and the rights and obligations hereunder may not be assigned by operation of Law or otherwise without the express written consent of Citrix and Parent (which consent may be granted or withheld in the sole discretion of Citrix or Parent) and any attempted assignment that is not in accordance with this Section 10.06 shall be null and void.
Section 10.07 Amendment . This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, each party hereto that expressly references the Section of this Agreement to be amended; or (b) by a waiver in accordance with Section 10.08 .
Section 10.08 Waiver . Any party to this Agreement may (a) extend the time for the performance of any of the obligations or other acts of the other parties; (b) waive any inaccuracies in the representations and warranties of the other parties contained herein or in any document delivered by the other parties pursuant to this Agreement; or (c) waive compliance with any of the agreements of the other parties or conditions to such obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by any party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder. Any waiver of any term or condition hereof shall not be construed as a waiver of any subsequent breach or as a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement.
 
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Section 10.09 No Third-Party Beneficiaries . This Agreement shall be binding upon and inure solely to the benefit of, and be enforceable by, only the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to, or shall confer upon, any other Person any right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement, other than  Section 7.05  (which is intended to be for the benefit of the Persons covered thereby and may be enforced by such Persons).
Section 10.10 Specific Performance . The parties hereto acknowledge and agree that the parties hereto would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached and that any non-performance or breach of this Agreement by any party hereto could not be adequately compensated by monetary damages alone and that the parties hereto would not have any adequate remedy at law. Accordingly, in addition to any other right or remedy to which any party hereto may be entitled, at law or in equity (including monetary damages), such party shall to the fullest extent permitted by Law be entitled to enforce any provision of this Agreement by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches of any of the provisions of this Agreement, without posting any bond or other undertaking. Without limiting the generality of the foregoing, the parties hereto agree that each party shall be entitled to enforce specifically the other parties’ obligations to consummate the transactions contemplated by this Agreement (including the obligation to consummate the Closing and the Parent Share Issuance, if the conditions set forth in  Article VIII have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing) or waived (where permissible under applicable Law). The parties hereto agree that they will not contest the appropriateness of specific performance as a remedy.
Section 10.11 Governing Law . This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof that might lead to the application of laws other than the Laws of the State of Delaware. All Actions that, directly or indirectly, arise out of or relate to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware;  provided ,  however , that if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any Delaware state court or United States federal court sitting in the State of Delaware. Consistent with the preceding sentence, each of the parties hereto hereby (a) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action brought by any party hereto that, directly or indirectly, arises out of or relates to this Agreement; (b) agrees that service of process in such Action will be validly effected by sending notice in accordance with  Section 10.02 ; (c) irrevocably waives and releases, and agrees not to assert by way of motion, defense, or otherwise, in or with respect to any such Action, any claim that (i) such Action is not subject to the subject matter jurisdiction of at least one of the above-named courts; (ii) its property is exempt or immune from attachment or execution in the State of Delaware; (iii) such Action is brought in an inconvenient forum; (iv) that the venue of such Action is improper; or (v) this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts; and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
Section 10.12 Waiver of Jury Trial . EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LIABILITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS  SECTION 10.12 .
 
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Section 10.13 Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in two or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
Section 10.14 Interpretation . The parties hereto have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.
[ Signature Page Follows ]
 
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IN WITNESS WHEREOF , each of the parties hereto has caused this Agreement to be executed as of the date first written above by its respective officers thereunto duly authorized.

CITRIX SYSTEMS, INC.	
		
By:	 	/s/ David J. Henshall	
	 	Name:	 	David J. Henshall	
	 	Title:	 	Executive Vice President, Chief Operating Officer and Chief Financial Officer	
	
GETGO, INC.	
		
By:	 	/s/ Antonio G. Gomes	
	 	Name:	 	Antonio G. Gomes	
	 	Title:	 	Secretary	
	
LOGMEIN, INC.	
		
By:	 	/s/ William R. Wagner	
	 	Name:	 	William R. Wagner	
	 	Title:	 	President and Chief Executive Officer	
	
LITHIUM MERGER SUB, INC.	
		
By:	 	/s/ William R. Wagner	
	 	Name:	 	William R. Wagner	
	 	Title:	 	President	
 
[Signature Page to Agreement and Plan of Merger]

ANNEX A
Project Gravity
Summary of Revolving Credit Facility Terms
The terms below will be documented in customary form and subject to customary terms for senior unsecured revolving indebtedness. This term sheet is not an offer or acceptance, and no commitment or contract is formed by discussion, negotiation, circulation or delivery of this document. The parties agree and intend that neither party is bound by any terms herein unless and until definitive documentation specifying the terms and conditions under which the parties agree to be bound is subsequently negotiated and executed, and only then after both parties have delivered written, signed acceptance of that contract to the other party.

Borrower:	 	LogMeIn, Inc., a Delaware corporation (the “ Borrower ”).	
		
Lender:	 	Citrix and/or one or more of its subsidiaries (the “ Lender ”).	
		
Facility:	 	A revolving credit facility of USD$25.0 million (the “ Revolving Credit Facility ”) under which borrowings may be made from time to time during the period from the date following the closing date until the business day prior to the second anniversary of the closing date, subject to the conditions set forth herein.	
		
Guarantors:	 	Each direct and indirect subsidiary of the Borrower that is organized under the laws of the United States and is required to be a guarantor from time to time under the Credit Agreement, dated as of February 18, 2015 (as amended, amended and restated, supplemented and otherwise modified from time to time through the closing date, the “ JPM Credit Agreement ”), among the Borrower and LogMeIn Ireland Holding Company Limited, an Irish incorporated limited liability company, as co-borrowers, and JPMorgan Chase Bank, N.A. as Administrative Agent.	
		
Interest Rate:	 	Interest shall be payable on the outstanding principal amount of all loans and other unpaid obligations at a rate per annum equal to one-month LIBOR plus the applicable margin set forth in the following grid.	

Pricing Level	  	Consolidated Total
Leverage Ratio	  	Applicable Margin	 	
1	  	< 1.00:1.00	  	 	2.25	% 	
2	  	³  1.00:1.00 and <
2.00:1.00	  	 	2.50	% 	
3	  	³ 2.00:1.00	  	 	2.75	% 	

	 	Interest shall be payable in cash on the last business day of each calendar month.
 
Notwithstanding the foregoing, if any principal of or interest on any loan or other amount is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to 2.0% plus the rate applicable on outstanding loans.	
		
Upfront Fee:	 	None.	

			
Commitment/Unused Line Fee:	 	None.	
		
Term:	 	24 months, commencing upon the closing of Project Gravity.	
		
Security:	 	None.	
		
Use of Proceeds:	 	The proceeds of advances under the Revolving Credit Facility shall be used for general corporate purposes of the Borrower and its subsidiaries.	
		
Voluntary Prepayments:	 	Voluntary prepayments of borrowings under the Revolving Credit Facility shall be permitted at any time upon five (5) business days’ prior written notice, without premium or penalty in minimum amounts of USD$1.0 million (or if less, the remaining outstanding amount) and with a maximum frequency to be agreed.	
		
Representations and Warranties:	 	The Borrower and its subsidiaries shall make solely the following representations and warranties: organization and powers; authorization and enforceability; governmental approvals and no conflicts (including with the JPM Credit Agreement); financial condition; following the closing date, no material adverse change; property; litigation and environmental matters; compliance with laws and agreements; investment company status; taxes; ERISA; anti-corruption laws and sanctions; subsidiaries; federal regulations; employment matters; and no default.	
		
Affirmative Covenants:	 	The Borrower and its subsidiaries shall be subject solely to the following affirmative and reporting covenants: delivery of financial statements, notice of rating change and other information; notices of material events; existence and conduct of business; payment of obligations; maintenance of properties and insurance; books and records and inspection rights; compliance with laws; use of proceeds; and additional guarantors.	
		
Negative Covenants:	 	The Borrower and its subsidiaries shall be subject to solely the following negative covenants: indebtedness; liens; fundamental changes and conduct of business; investments, loans, advances, guarantees, and acquisitions; swap agreements; restricted payments; transactions with affiliates; restrictive agreements and capital expenditures.	
		
Financial Covenants:	 	The Borrower shall not permit (i) the Consolidated Total Leverage Ratio as of the last day of any four-quarter period to be greater than 3.25:1.00 and (ii) the Consolidated Interest Coverage Ratio as of the last day of any four-quarter period to be less than 2.50:1.00, with such financial covenants and components calculated in a manner consistent with the JPM Credit Agreement.	
		
Events of Default:	 	The Borrower and its subsidiaries shall be subject solely to the following events of default: payment defaults; representations and warranties; failure to perform covenants and agreements; cross-default to subordinated and unsecured material indebtedness and cross-acceleration to other material indebtedness; insolvency and bankruptcy matters; judgments and attachments; ERISA events; change of control; and invalidity of any loan documents.	
		
Closing Conditions:	 	The effectiveness of the Revolving Credit Facility shall be subject solely to the following closing conditions: closing of Project Gravity in	
 
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	 	accordance with the applicable documents; loan documents; lien searches; certified organizational documents, good standings and certificates; officer’s certificate; fees and expenses; financial statements; know-your-customer, etc.; solvency certificate; and governmental and third party approvals.	
		
Conditions to each Extension of Credit:	 	Each advance shall be subject solely to satisfaction of the following conditions: (i) all of the representations and warranties in the Revolving Credit Facility documentation shall be true and correct in all material respects (but in all respects if such representation or warranty is qualified by materiality); (ii) no default or event of default shall exist or result therefrom; and (iii) delivery of a written borrowing notice at least five (5) business days prior to the proposed advance date.
 
Each advance shall be in US dollars in a minimum amount of $3.0 million and in increments of $1.0 million in excess thereof (or such lesser amount consisting of the entire unused commitment). The Lender shall not be required to advance more than 2 loans in any calendar month.	
		
Assignments:	 	The Lender shall be permitted to make assignments of the loans and commitments, subject to the consent of the Borrower, which consents shall not be unreasonably withheld, conditioned or delayed; provided however , that the consent of the Borrower shall not be required (i) in connection with assignments to affiliates of the Lender, or (ii) if an event of default exists.	
		
Indemnification	 	The Borrower and the Guarantors, on a joint and several basis, shall indemnify and hold harmless the Lender, each affiliate of the Lender, and each of their officers, directors, employees, partners, members, controlling persons, agents, advisors and other representatives (each an “ Indemnified Party ”) from and against all losses, liabilities, claims, damages or reasonable expenses arising out of or relating to the Revolving Credit Facility, the Borrower’s use of proceeds thereof or the commitments, including, but not limited to, legal fees and settlement costs (but limited to one counsel for all the Indemnified Parties and, if necessary, a single local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions)), except for such amounts resulting from such Indemnified Party’s bad faith, gross negligence or willful misconduct, as determined in a final judgment by a court of competent jurisdiction.	
		
Expenses:	 	The Borrower shall pay all reasonable and documented costs and expenses (including reasonable legal fees) incurred by the Lender in connection with any amendments, restatements, supplements, consents, waivers, restructurings, refinancings, or other modifications with respect to the Revolving Credit Facility documents (whether or not the transactions contemplated thereby are consummated), or in connection with any modifications to the senior loan documents, and as a point of clarification, the Borrower shall not be required to pay any fees and expenses incurred by the Lender with respect to the initial documentation for the Revolving Credit Facility. The Borrower also shall pay the reasonable and documented fees and expenses (including reasonable and documented legal and accounting fees) of the Lender in	
 
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	 	connection with the administration or enforcement of any of Revolving Credit Facility documents, including in connection with any work-out or restructuring.	
		
Governing Law and Submission to Jurisdiction:	 	New York.	
		
Documentation Principles:	 	The provisions of the credit agreement (including, without limitation, accounting terms, increased costs, taxes, amendments, and survival) for the Revolving Credit Facility shall be based on the JPM Credit Agreement, in each case except as specifically set forth in this term sheet, and shall be modified to reflect the nature of the Revolving Credit Facility as an unsecured facility, to accommodate (giving effect to the below-referenced cushion) as agreed to by Borrower and Lender the increased size of Borrower and its subsidiaries since the initial closing of the JPM Credit Agreement and to make other modifications agreed to by Borrower and Lender. All dollar baskets with respect to negative covenants and events of default will be set back 20% from the applicable dollar baskets in the JPM Credit Agreement.	
 
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ANNEX B
FORM OF
RESTATED CERTIFICATE OF INCORPORATION
OF
GETGO, INC.
FIRST:   The name of the corporation is GETGO, INC. (the “ Corporation ”).
SECOND:   The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street in the City of Wilmington 19801 - 1120, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
THIRD:   The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (“ DGCL ”) or any successor statute.
FOURTH:   The total number of shares of all classes of stock that the Corporation shall have authority to issue is 1,000 shares, all of which are Common Stock, $0.01 par value per share.
The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.
FIFTH:   In furtherance of and not in limitation of powers conferred by statute, it is further provided:
1. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
2. Election of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.
3. The Board of Directors is expressly authorized to adopt, amend, alter or repeal the bylaws of the Corporation.
SIXTH:   Except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.
SEVENTH:   To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of the Corporation (and any other persons to which applicable law permits the

Corporation to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise in excess of the indemnification and advancement otherwise permitted by such applicable law. Any repeal or modification of this provision shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.
EIGHTH:   Subject to such limitations as may be from time to time imposed by other provisions of this Certificate of Incorporation, by the bylaws of the Corporation, by the DGCL or other applicable law, or by any contract or agreement to which the Corporation is or may become a party, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this express reservation.
EXECUTED on [ ● ], 2016.

 	
[ ● ], President	
 
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ANNEX C
FORM OF
RESTATED BY-LAWS
OF
GETGO, INC.

TABLE OF CONTENTS

 	 	 	  	Page No.	 	
		
ARTICLE I. OFFICES	  	 	1	  	
			
Section 1.1	 	Registered Office	  	 	1	  	
Section 1.2	 	Other Offices	  	 	1	  	
		
ARTICLE II. MEETINGS OF STOCKHOLDERS	  	 	1	  	
			
Section 2.1	 	Place of Meetings	  	 	1	  	
Section 2.2	 	Annual Meeting of Stockholders	  	 	1	  	
Section 2.3	 	Quorum; Adjourned Meetings and Notice Thereof	  	 	1	  	
Section 2.4	 	Voting	  	 	1	  	
Section 2.5	 	Proxies	  	 	1	  	
Section 2.6	 	Special Meetings	  	 	2	  	
Section 2.7	 	Notice of Stockholder’s Meetings	  	 	2	  	
Section 2.8	 	Maintenance and Inspection of Stockholder List	  	 	2	  	
Section 2.9	 	Stockholder Action by Written Consent Without a Meeting	  	 	2	  	
		
ARTICLE III. DIRECTORS	  	 	3	  	
			
Section 3.1	 	Number, Election and Tenure	  	 	3	  	
Section 3.2	 	Vacancies	  	 	3	  	
Section 3.3	 	Powers	  	 	3	  	
Section 3.4	 	Directors’ Meetings	  	 	3	  	
Section 3.5	 	Regular Meetings	  	 	3	  	
Section 3.6	 	Special Meetings	  	 	3	  	
Section 3.7	 	Quorum	  	 	4	  	
Section 3.8	 	Action Without Meeting	  	 	4	  	
Section 3.9	 	Telephonic Meetings	  	 	4	  	
Section 3.10	 	Committees of Directors	  	 	4	  	
Section 3.11	 	Minutes of Committee Meetings	  	 	4	  	
Section 3.12	 	Compensation of Directors	  	 	5	  	
Section 3.13	 	Indemnification	  	 	5	  	
		
ARTICLE IV. OFFICERS	  	 	8	  	
			
Section 4.1	 	Officers	  	 	8	  	
Section 4.2	 	Election of Officers	  	 	8	  	
Section 4.3	 	Subordinate Officers	  	 	8	  	
Section 4.4	 	Compensation of Officers	  	 	8	  	
Section 4.5	 	Term of Office; Removal and Vacancies	  	 	8	  	
Section 4.6	 	Chairman of the Board	  	 	8	  	
Section 4.7	 	Chief Executive Officer	  	 	9	  	
Section 4.8	 	President	  	 	9	  	
Section 4.9	 	Treasurer	  	 	9	  	
 
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Section 4.10	 	Secretary	  	 	9	  	
Section 4.11	 	Assistant Secretaries	  	 	9	  	
Section 4.12	 	Vice President	  	 	10	  	
Section 4.13	 	Assistant Treasurer	  	 	10	  	
		
ARTICLE V. CERTIFICATES OF STOCK	  	 	10	  	
			
Section 5.1	 	Certificates	  	 	10	  	
Section 5.2	 	Signatures on Certificates	  	 	10	  	
Section 5.3	 	Statement of Stock Rights, Preferences, Privileges	  	 	10	  	
Section 5.4	 	Lost Certificates	  	 	11	  	
Section 5.5	 	Transfers of Stock	  	 	11	  	
Section 5.6	 	Fixing Record Date	  	 	11	  	
Section 5.7	 	Registered Stockholders	  	 	11	  	
		
ARTICLE VI. GENERAL PROVISIONS	  	 	11	  	
			
Section 6.1	 	Dividends	  	 	11	  	
Section 6.2	 	Payment of Dividends	  	 	11	  	
Section 6.3	 	Checks	  	 	12	  	
Section 6.4	 	Fiscal Year	  	 	12	  	
Section 6.5	 	Corporate Seal	  	 	12	  	
Section 6.6	 	Manner of Giving Notice	  	 	12	  	
Section 6.7	 	Waiver of Notice	  	 	12	  	
Section 6.8	 	Annual Statement	  	 	12	  	
		
ARTICLE VII. AMENDMENTS	  	 	12	  	
			
Section 7.1	 	Amendment by Directors or Stockholders	  	 	12	  	
 
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ARTICLE I.
OFFICES
Section 1.1 Registered Office . The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 1.2 Other Offices . The corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings . Meetings of stockholders shall be held at any place within or without the State of Delaware designated by the Board of Directors. In the absence of any such designation, stockholders’ meetings shall be held at the principal executive office of the corporation.
Section 2.2 Annual Meeting of Stockholders . The annual meeting of stockholders shall be held each year on a date and a time designated by the Board of Directors. At each annual meeting directors shall be elected and any other proper business may be transacted.
Section 2.3 Quorum; Adjourned Meetings and Notice Thereof . A majority of the stock issued and outstanding and entitled to vote at any meeting of stockholders, the holders of which are present in person or represented by proxy, shall constitute a quorum for the transaction of business except as otherwise provided by law, by the Certificate of Incorporation, or by these Bylaws. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum and the votes present may continue to transact business until adjournment. If, however, such quorum shall not be present or represented at any meeting of the stockholders, a majority of the voting stock represented in person or by proxy may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote thereat.
Section 2.4 Voting . When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes, or the Certificate of Incorporation, or these Bylaws, a different vote is required in which case such express provision shall govern and control the decision of such question.
Section 2.5 Proxies . At each meeting of the stockholders, each stockholder having the right to vote may vote in person or may authorize another person or persons to act for him by proxy appointed by an instrument in writing subscribed by such stockholder and bearing

a date not more than three years prior to said meeting, unless said instrument provides for a longer period. All proxies must be filed with the Secretary of the corporation at the beginning of each meeting in order to be counted in any vote at the meeting. Each stockholder shall have one vote for each share of stock having voting power, registered in his name on the books of the corporation on the record date set by the Board of Directors as provided in Article V, Section 5.6 hereof. All elections shall be had and all questions decided by a plurality vote.
Section 2.6 Special Meetings . Special meetings of the stockholders, for any purpose, or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the President and shall be called by the President or the Secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding, and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.7 Notice of Stockholder ’ s Meetings . Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which notice shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. The written notice of any meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the corporation.
Section 2.8 Maintenance and Inspection of Stockholder List . The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.
Section 2.9 Stockholder Action by Written Consent Without a Meeting . Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
 
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ARTICLE III.
DIRECTORS
Section 3.1 Number, Election and Tenure . The number of directors of the corporation shall be determined from time to time by resolution of the Board. Directors shall be elected at the annual meeting of stockholders and each director shall serve until such person’s successor is elected and qualified or until such person’s death, retirement, resignation or removal.
Section 3.2 Vacancies . Vacancies on the Board of Directors by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. The directors so chosen shall hold office until the next annual election of directors and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery of the State of Delaware (the “ Court of Chancery ”) may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office.
Section 3.3 Powers . The property and business of the corporation shall be managed by or under the direction of its Board of Directors. In addition to the powers and authorities by these Bylaws expressly conferred upon them, the Board may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders.
Section 3.4 Directors ’ Meetings . The directors may hold their meetings and have one or more offices, and keep the books of the corporation outside of the State of Delaware.
Section 3.5 Regular Meetings . Regular meetings of the Board of Directors may be held without notice at such time and place as shall from time to time be determined by the Board.
Section 3.6 Special Meetings . Special meetings of the Board of Directors may be called by the President on forty-eight hours’ notice to each director, either personally or by mail, facsimile, telegram or other means of electronic transmission; special meetings shall be called by the President or the Secretary in like manner and on like notice on the written request of two directors unless the Board consists of only one director; in which case special meetings shall be called by the President or Secretary in like manner or on like notice on the written request of the sole director.
 
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Section 3.7 Quorum . At all meetings of the Board of Directors a majority of the authorized number of directors shall be necessary and sufficient to constitute a quorum for the transaction of business, and the vote of a majority of the directors present at any meeting at which there is a quorum, shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute, by the Certificate of Incorporation or by these Bylaws. If a quorum shall not be present at any meeting of the Board of Directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. If only one director is authorized, such sole director shall constitute a quorum.
Section 3.8 Action Without Meeting . Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.
Section 3.9 Telephonic Meetings . Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
Section 3.10 Committees of Directors . The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each such committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the Bylaws of the corporation; and, unless the resolution or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.
Section 3.11 Minutes of Committee Meetings . Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.
 
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Section 3.12 Compensation of Directors . Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.
Section 3.13 Indemnification .
(a) The corporation shall, to the fullest extent permitted by the Delaware General Corporation Law (the “ DGCL ”), as the same exists or may hereafter be amended (but in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment), indemnify any and all persons whom it shall have power to indemnify under the DGCL from and against any and all of the expenses, liabilities or other matters referred to in or covered by the DGCL, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person.
(b) The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
(c) The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation,
 
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partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper.
(d) To the extent that a director, officer, employee or agent of the corporation shall be successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraphs (b) and (c) of this Section 3.13, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith, without the necessity of authorization in the specific case.
(e) Any indemnification under paragraphs (b) and (c) of this Section 3.13 (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs (b) and (c) of this Section 3.13. Such determination shall be made (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (3) by the stockholders.
(f) Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate.
(g) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.
(h) The Board of Directors may authorize, by a vote of a majority of a quorum of the Board of Directors, the corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee
 
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or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under this Section 3.13.
(i) For purposes of this Section 3.13, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Section 3.13 with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.
(j) For purposes of this Section 3.13, references to “other enterprises” shall include any other corporation or any partnership, joint venture, trust, employee benefit plans or other enterprise of which such person is or was serving at the request of the corporation as a director, officer, employee or agent; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this Section 3.13.
(k) For purposes of this Section 3.13, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the corporation or another enterprise, or on information supplied to such person by the officers of the corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the corporation or another enterprise or on information or records given or reports made to the corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the corporation or another enterprise. The provisions of this Section 3.13 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in paragraphs (b) and (c) hereof, as the case may be.
(l) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 3.13 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
(m) The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification
 
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brought under this Section 3.13 or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees).
(n) Any amendment, repeal, or modification of this Section 3.13 shall not adversely affect any right or protection of a person entitled to rights or protection hereunder existing at the time of such amendment, repeal or modification with respect to acts or omissions occurring prior to such amendment, repeal or modification.
ARTICLE IV. 
OFFICERS
Section 4.1 Officers . The officers of this corporation shall be chosen by the Board of Directors and shall include a President, a Secretary and a Treasurer. The corporation may also have at the discretion of the Board of Directors such other officers as are desired, including a Chairman of the Board, a Chief Executive Officer, one or more Vice Presidents, one or more Assistant Secretaries and Assistant Treasurers, and such other officers as may be appointed in accordance with the provisions of Section 4.3 hereof. In the event there are two or more Vice Presidents, then one or more may be designated as Executive Vice President, Senior Vice President, or other similar or dissimilar title. At the time of the election of officers, the directors may by resolution determine the order of their rank. Any number of offices may be held by the same person, unless the Certificate of Incorporation or these Bylaws otherwise provide.
Section 4.2 Election of Officers . The Board of Directors, at its first meeting after each annual meeting of stockholders, shall choose the officers of the corporation.
Section 4.3 Subordinate Officers . The Board of Directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board.
Section 4.4 Compensation of Officers . The salaries of all officers and agents of the corporation shall be fixed by the Board of Directors.
Section 4.5 Term of Office; Removal and Vacancies . The officers of the corporation shall hold office until their successors are chosen and qualify in their stead. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. If the office of any officer or officers becomes vacant for any reason, the vacancy shall be filled by the Board of Directors.
Section 4.6 Chairman of the Board . The Chairman of the Board, if such an officer be appointed, shall, if present, preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors or prescribed by these Bylaws. If there is no President, the Chairman of the Board shall in addition be the Chief Executive Officer of the corporation and shall have the powers and duties prescribed in Section 4.7 of this Article IV.
 
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Section 4.7 Chief Executive Officer . The Chief Executive Officer, if such an officer be appointed, shall have general charge and supervision of the business of the corporation subject to the direction of the Board of Directors, and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to such officer by the Board of Directors.
Section 4.8 President . Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an officer, the President shall be the Chief Executive Officer of the corporation, unless such an officer is elected separately by the Board of Directors, and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and officers of the corporation. He shall preside at all meetings of the stockholders and, in the absence of the Chairman of the Board, or if there be none, at all meetings of the Board of Directors. He shall be an ex-officio member of all committees and shall have the general powers and duties of management usually vested in the office of President and Chief Executive Officer of corporations, and shall have such other powers and duties as may be prescribed by the Board of Directors or these Bylaws.
Section 4.9 Treasurer . The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys, and other valuable effects in the name and to the credit of the corporation, in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the corporation. If required by the Board of Directors, he shall give the corporation a bond, in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors, for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation.
Section 4.10 Secretary . The Secretary shall attend all sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose; and shall perform like duties for the standing committees when required by the Board of Directors. He shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or these Bylaws. He shall keep in safe custody the seal of the corporation, and when authorized by the Board, affix the same to any instrument requiring it, and when so affixed it shall be attested by his signature or by the signature of an Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature.
Section 4.11 Assistant Secretaries . The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors, or if there be no such determination, the Assistant Secretary designated by the Board of Directors, shall, in the absence or disability of the Secretary, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
 
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Section 4.12 Vice President . In the absence or disability of the President, the Vice Presidents in order of their rank as fixed by the Board of Directors, or if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall have such other duties as from time to time may be prescribed for them, respectively, by the Board of Directors.
Section 4.13 Assistant Treasurer . The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors, or if there be no such determination, the Assistant Treasurer designated by the Board of Directors, shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
ARTICLE V.
CERTIFICATES OF STOCK
Section 5.1 Certificates . Every holder of stock of the corporation shall be entitled to have a certificate signed by, or in the name of the corporation by, the Chairman or Vice Chairman of the Board of Directors, or the President or a Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer of the corporation, certifying the number of shares represented by the certificate owned by such stockholder in the corporation. The Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of stock shall be uncertificated shares.
Section 5.2 Signatures on Certificates . Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.
Section 5.3 Statement of Stock Rights, Preferences, Privileges . If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualification, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
 
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Section 5.4 Lost Certificates . The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 5.5 Transfers of Stock . Upon surrender to the corporation, or the transfer agent of the corporation, of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.
Section 5.6 Fixing Record Date . In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders, or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 5.7 Registered Stockholders . The corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any equitable or other claim or interest in such share on the part of any other person, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of the State of Delaware.
ARTICLE VI.
GENERAL PROVISIONS
Section 6.1 Dividends . Dividends upon the capital stock of the corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.
Section 6.2 Payment of Dividends . Before payment of any dividend there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interests of the corporation, and the directors may abolish any such reserve.
 
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Section 6.3 Checks . All checks or demands for money and notes of the corporation shall be signed by such officer or officers as the Board of Directors may from time to time designate.
Section 6.4 Fiscal Year . The fiscal year of the corporation shall be fixed by resolution of the Board of Directors.
Section 6.5 Corporate Seal . The corporate seal, if any, shall have inscribed thereon the name of the corporation, the year of its organization and the words “Corporate Seal, Delaware”. Said seal, if any, may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 6.6 Manner of Giving Notice . Whenever, under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by facsimile, telegram or other means of electronic transmission.
Section 6.7 Waiver of Notice . Whenever any notice is required to be given under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed to be equivalent to notice. Except as otherwise provided in Section 222 of the DGCL, attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
Section 6.8 Annual Statement . The Board of Directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation.
ARTICLE VII. 
AMENDMENTS
Section 7.1 Amendment by Directors or Stockholders . These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the stockholders or by the Board of Directors, when such power is conferred upon the Board of Directors by the Certificate of Incorporation, at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of the stockholders or of the Board of Directors if notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such special meeting. If the power to adopt, amend or repeal Bylaws is conferred upon the Board of Directors by the Certificate of Incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal Bylaws.
*        *        *
 
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ANNEX D
LogMeIn, Inc.
320 Summer Street
Boston, Massachusetts 02210
[            ], 2016
Elliott Associates, L.P.
Elliott International, L.P.
Elliott International Capital Advisors Inc.
40 West 57th Street
New York, NY 10019
Gentlemen:
This letter (this “ Agreement ”) constitutes the agreement between LogMeIn, Inc., a Delaware corporation (the “ Company ”), Elliott Associates, L.P., a Delaware limited partnership (“ Elliott Associates ”), Elliott International, L.P., a Cayman Islands limited partnership (“ Elliott International ”), and Elliott International Capital Advisors Inc., a Delaware corporation (together with Elliott Associates and Elliott International, the “ Investors ”), with respect to the matters set forth below. Capitalized terms used herein and not otherwise defined have the meanings ascribed to them in paragraph 8 below.
1. Effective upon the closing of the transactions contemplated by the Agreement and Plan of Merger (the “ Merger Agreement ”), by and among Citrix Systems, Inc., a Delaware corporation (“ Carbon ”), GetGo, Inc., a Delaware corporation and wholly owned subsidiary of Carbon (“ SpinCo ”), the Company, and Lithium Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“ Merger Sub ”), dated July [    ], 2016, Jesse Cohn shall be appointed as one of the members of the Board of Directors of the Company (the “ Board ”) designated by Carbon pursuant to Section 2.07 of the Merger Agreement (the “ Investor Designee ”). [The Investor Designee shall be appointed as a Class [    ] Director with a term expiring at the Company’s [    ] Annual Meeting of Stockholders.]
2. In connection with the Company’s 2017 Annual Meeting of Stockholders (and any adjournments or postponements thereof) (the “ 2017 Annual Meeting ”), so long as the Investor Designee has been nominated by the Board for re-election as a director or continues to serve as a director in a class whose term will not expire at such meeting, and at each subsequent Annual Meeting of Stockholders of the Company (and any adjournments or postponements thereof) at which the Investor Designee has been nominated by the Board for re-election as a director or continues to serve as a director in a class whose term will not expire at such meeting, the Investors will cause to be present for quorum purposes and vote or cause to be voted all Company common stock beneficially owned by them or their controlling or controlled Affiliates and which they or such controlling or controlled Affiliates are entitled to vote on the record date for the 2017 Annual Meeting or such subsequent Annual Meeting of Stockholders in favor of (A) the election of directors nominated by the Board and (B) otherwise in accordance with the Board’s recommendation on any non-Extraordinary Transaction related proposals; provided, that, notwithstanding anything to the contrary, the obligations of the Investor in this paragraph 2 shall terminate automatically if the Investor Designee does not accept such nomination by the Board for re-election as a director, the Investor Designee resigns from the Board or a Company Event (as defined below) occurs.

3. The parties hereto acknowledge that the Investor Designee, upon election to the Board, will serve as a member of the Board and will be governed by the same protections and obligations regarding confidentiality, conflicts of interest, related party transactions, fiduciary duties, codes of conduct, trading and disclosure policies, director resignation policy, and other governance guidelines and policies of the Company (including, but not limited to, the policies with respect to management being responsible for managing communications with external constituencies) as other directors (collectively, “ Company Policies ”), and shall be required to preserve the confidentiality of Company business and information, including discussions or matters considered in meetings of the Board or Board committees, and shall have the same rights and benefits, including with respect to insurance, indemnification, compensation and fees, as are applicable to all independent directors of the Company. The Company represents and warrants that: (i) all Company Policies currently in effect are publicly available on the Company’s website or described in its proxy statement filed with the Securities and Exchange Commission (the “ SEC ”) on April 8, 2016 or have otherwise been provided to the Investors, and such Company Policies will not be amended prior to the appointment of the Investor Designee and (ii) during the Restricted Period, any changes to the Company Policies, or new Company Policies, will be adopted in good faith and not for the purpose of undermining or conflicting with the arrangements contemplated hereby.
4. The Company will take all action necessary to appoint the Investor Designee as a member of the Operating Committee (as defined in the Merger Agreement) upon the formation of such committee in accordance with the terms of the Merger Agreement.
5. From the date of this Agreement until the Expiration Date or until such earlier time as the restrictions in this paragraph 5 terminate as provided herein (such period, the “ Restricted Period ”), the Investors will not, and will cause their respective Affiliates and their respective principals, directors, general partners, officers, employees, and agents and representatives acting on their behalf (collectively, the “ Restricted   Persons ”) not to, directly or indirectly, absent prior express written invitation or authorization by the Board:
(a) engage in any “solicitation” (as such term is used in the proxy rules of the SEC) of proxies or consents with respect to the election or removal of directors or any other matter or proposal or become a “participant” (as such term is used in the proxy rules of the SEC) in any such solicitation of proxies or consents;
(b) knowingly encourage or advise any other Person or knowingly assist any Person in so encouraging or advising any Person with respect to the giving or withholding of any proxy, consent or other authority to vote or in conducting any type of referendum (other than such encouragement or advice that is consistent with Company management’s recommendation in connection with such matter);
(c) form, join or act in concert with any “group” as defined pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), with respect to any Voting Securities, other than solely with other Affiliates of the Investors with respect to Voting Securities now or hereafter owned by them;
 
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(d) acquire, or offer, seek or agree to acquire, by purchase or otherwise, or direct any third party in the acquisition of, any Voting Securities or assets of the Company, or rights or options to acquire any Voting Securities or assets of the Company, or engage in any swap or hedging transactions or other derivative agreements of any nature with respect to Voting Securities, in each case if such acquisition or transaction would result in the Investors having beneficial ownership (voting power or economic exposure) of more than 9.9% of the Company’s outstanding common stock;
(e) sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, voting rights decoupled from the underlying common stock of the Company held by the Investors to any Third Party;
(f) make or in any way participate, directly or indirectly, in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the Company or any of its subsidiaries or its or their securities or assets (each, an “ Extraordinary Transaction ”) (it being understood that the foregoing shall not restrict the Investors from tendering shares, receiving payment for shares or otherwise participating in any such transaction on the same basis as other stockholders of the Company, or from participating in any such transaction that has been approved by the Board); or make, directly or indirectly, any proposal, either alone or in concert with others, to the Company or the Board that would reasonably be expected to require a public announcement regarding any of the types of matters set forth above in this paragraph;
(g) enter into a voting trust, arrangement or agreement or subject any Voting Securities to any voting trust, arrangement or agreement, in each case other than solely with other Affiliates of the Investors, with respect to Voting Securities now or hereafter owned by them and other than granting proxies in solicitations approved by the Board;
(h) (i) seek, alone or in concert with others, election or appointment to, or representation on, the Board or nominate or propose the nomination of, or recommend the nomination of, any candidate to the Board, except as set forth herein, (ii) seek, alone or in concert with others, the removal of any member of the Board or (iii) conduct a referendum of stockholders;
(i) make or be the proponent of any stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise);
(j) make any request for stock list materials or other books and records of the Company under Section 220 of the Delaware General Corporation Law or other statutory or regulatory provisions providing for shareholder access to books and records;
(k) except as set forth herein, make any public proposal with respect to (i) any change in the number or term of directors or the filling of any vacancies on the Board, (ii) any material change in the capitalization or dividend policy of the Company, (iii) any other material change in the Company’s management, business or corporate structure, (iv) any waiver,
 
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amendment or modification to the Company’s Certificate of Incorporation or Bylaws, or other actions which may impede the acquisition of control of the Company by any person, (v) causing a class of securities of the Company to be delisted from, or to cease to be authorized to be quoted on, any securities exchange or (vi) causing a class of equity securities of the Company to become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act;
(l) institute, solicit, assist or join any litigation, arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) in order to effect or take any of the actions expressly prohibited by this paragraph 5; provided, however, that for the avoidance of doubt the foregoing shall not prevent any Restricted Person from (A) bringing litigation to enforce the provisions of this Agreement, (B) making counterclaims with respect to any proceeding initiated by, or on behalf of, the Company against a Restricted Person, (C) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement or the topics covered in the correspondence between the Company and the Restricted Persons prior to the date hereof, or (D) exercising statutory appraisal rights; provided, further, that the foregoing shall also not prevent the Restricted Persons from responding to or complying with a validly issued legal process;
(m) enter into any negotiations, agreements or understandings with any Third Party to take any action that the Investors are prohibited from taking pursuant to this paragraph 5; or
(n) make any request or submit any proposal to amend or waive the terms of this Agreement, in each case which would reasonably be expected to result in a public announcement of such request or proposal;
provided, that the restrictions in this paragraph 5 shall terminate automatically upon the earliest of (i) as a non-exclusive remedy for any such breach, upon five (5) business days’ prior written notice by the Investors following a material breach of this Agreement by the Company (including, without limitation, a failure to appoint the Investor Designee to the Board in accordance with paragraph 1 or to the Operating Committee in accordance with paragraph 4) if such breach has not been cured within such notice period, provided that the Investors are not in material breach of this Agreement at the time such notice is given, (ii) the announcement by the Company of a definitive agreement with respect to any Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities, (iii) the commencement of any tender or exchange offer (by a person other than the Investors or their Affiliates) which, if consummated, would constitute an Extraordinary Transaction that would result in the acquisition by any person or group of more than 50% of the Voting Securities, where the Company files a Schedule 14D-9 (or any amendment thereto), other than a “stop, look and listen” communication by the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, that does not recommend that the Company’s stockholders reject such tender or exchange offer, (iv) such time as the Company issues a preliminary proxy statement, definitive proxy statement or other proxy materials in connection with the 2017 Annual Meeting that are inconsistent with the terms of this Agreement or (v) the adoption by the Board of any amendment to the Certificate of Incorporation or Bylaws of the Company that would reasonably be expected to substantially impair the ability of a stockholder to submit nominations for election to the Board or stockholder proposals in connection with any future Company Annual Meeting
 
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of Stockholders (any of events described in clauses (i) through (v), a “ Company Event ”). Notwithstanding anything to the contrary in this Agreement, nothing in this paragraph 5 shall prohibit or restrict the Investor Designee from exercising his rights and fiduciary duties as a director of the Company or restrict his discussions solely among other members of the Board and/or management, advisors, representatives or agents of the Company.
6. During the Restricted Period, the Company, the Investors and the Investor Designee shall each refrain from making, and shall cause their respective Affiliates and its and their respective principals, directors, members, general partners, officers and employees not to make or cause to be made any statement or announcement including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on, or otherwise disparages, defames, slanders, impugns or is reasonably likely to damage the reputation of, (a) in the case of statements or announcements by any of the Investors: the Company or any of its Affiliates, subsidiaries or advisors, or any of its or their respective current or former officers, directors or employees (including, without limitation, any statements or announcements regarding the Company’s strategy, operations, performance, products or services), and (b) in the case of statements or announcements by the Company: the Investors and the Investors’ advisors, their respective employees or any person who has served as an employee of the Investors and the Investors’ advisors. The foregoing shall not restrict the ability of any person to comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over the party from whom information is sought.
7. The Company hereby agrees that the Investor Designee may provide confidential information of the Company to the Investors and their Affiliates subject to, and solely in accordance with the terms of, a confidentiality agreement in the form attached hereto as Exhibit A (which the Investors agree to execute and deliver to the Company simultaneously with the Investors’ execution and delivery of this Agreement). The Investors and the Investor Designee hereby acknowledge that they and their Affiliates are aware that United States securities laws may restrict any person who has material, non-public information about a company from purchasing or selling any securities of such company while in possession of such information. Accordingly, the Investors shall, and shall cause their Affiliates to, purchase and sell securities of the Company only in compliance with the Company’s insider trading policy, a copy of which has been provided to the Investors.
8. As used in this Agreement, the term (a) “ Affiliate ” shall have the meaning set forth in Rule 12b-2 promulgated under the Exchange Act and shall include Persons who become Affiliates of any Person subsequent to the date of this Agreement; provided that “Affiliate” shall not include any person that is a publicly held concern and is otherwise an Affiliate solely by reason of the fact that an employee or principal of the Investor serves as a member of the board of directors or similar governing body of such concern; (b) “ beneficially own ”, “ beneficially owned ” and “ beneficial ownership ” shall have the meaning set forth in Rules 13d-3 and 13d-5(b)(l) promulgated under the Exchange Act and shall include any other economic exposure to Company common stock, including through any swap or other derivative transaction, that gives a Person the economic equivalent of ownership of Company common stock, including, without limitation, the notional number of shares subject to derivative agreements in the form of cash-settled swaps; (c) “ business day ” shall mean any day other than a Saturday, Sunday or a day on
 
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which the Federal Reserve Bank of New York is closed; (d) “ Expiration Date ” means the first anniversary of the date of this Agreement; provided that, if the Investor Designee remains a director of the Company as of such anniversary date, then the Expiration Date shall be automatically extended until the earlier of (i) the date that the Board fails to re-nominate the Investor Designee as a director of the Company in connection with an Annual Meeting of Stockholders at which the Investor Designee’s term of office expires or (ii) the date that the Investor Designee resigns as a director of the Company (for the avoidance of doubt, it is understood and agreed that the Board shall have no obligation to re-nominate the Investor Designee as a director of the Company [following the 2017 Annual Meeting] 1 ); (e) “ Person ” shall be interpreted broadly to include, among others, any individual, general or limited partnership, corporation, limited liability or unlimited liability company, joint venture, estate, trust, group, association or other entity of any kind or structure; (f) “ Third Party ” means any Person that is not a party to this Agreement or an Affiliate thereof, a member of the Board, a director or officer of the Company, or legal counsel to any party to this Agreement; and (g) “ Voting Securities ” shall mean the shares of common stock of the Company and any other securities of the Company entitled to vote in the election of directors, or securities convertible into, or exercisable or exchangeable for, such shares or other securities, whether or not subject to the passage of time or other contingencies.
9. Each of the Investors, severally and not jointly, represents and warrants that (a) this Agreement has been duly authorized, executed and delivered by it and is a valid and binding obligation of such Investor, enforceable against it in accordance with its terms; (b) neither it nor any of its Affiliates has or will during the Restricted Period have, any agreement, arrangement or understanding, written or oral, with any member of the Board (other than the Investor Designee) pursuant to which such individual has been or will be compensated for his or her service as a director on, or nominee for election to, the Board; and (c) as of the date of this Agreement, (i) the Investors, together with all of their respective Affiliates, as of the Closing of the Merger (as defined in the Merger Agreement) will collectively beneficially own, an aggregate of [ ● ] shares of Voting Securities and (ii) except as previously disclosed in writing to the Company prior to the execution of this Agreement, none of the Investors nor any of their respective Affiliates, is a party to any swap or hedging transactions or other derivative agreements of any nature with respect to the Voting Securities.
10. The Company represents and warrants that (a) this Agreement has been duly authorized, executed and delivered by it and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms; (b) the execution and delivery of this Agreement does not require the approval of the stockholders of the Company; and (c) the execution and delivery of this Agreement does not and will not violate any law, any order of any court or other agency of government, the Company’s Certificate of Incorporation or Bylaws, each as amended from time to time, or any provision of any agreement or other instrument to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such agreement or other instrument, or result in the creation or imposition of, or give rise to, any material lien, charge, restriction, claim, encumbrance or adverse penalty of any nature whatsoever pursuant to any such indenture, agreement or other instrument.

1  	To confirm to which class the Investor Designee will be designated.	
 
6

11. The Company and each of the Investors each acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by it and that, in the event of any breach or threatened breach hereof, (a) the non-breaching party will be entitled to seek injunctive and other equitable relief, without proof of actual damages; (b) the breaching party will not plead in defense thereto that there would be an adequate remedy at law; and (c) the breaching party agrees to waive any applicable right or requirement that a bond be posted by the non-breaching party. Such remedies will not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.
12. This Agreement (including its exhibits) constitutes the only agreement between the Investors and the Company with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. No party may assign or otherwise transfer either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other party. Any purported transfer requiring consent without such consent shall be void. No amendment, modification, supplement or waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the party affected thereby, and then only in the specific instance and for the specific purpose stated therein. Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
13. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable. The parties further agree to replace such invalid or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the purposes of such invalid or unenforceable provision.
14. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. Each of the Investors and the Company (a) irrevocably and unconditionally consents to the personal jurisdiction and venue of the federal or state courts located in Wilmington, Delaware; (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (c) agrees that it shall not bring any action relating to this Agreement or otherwise in any court other than such courts; and (d) waives any claim of improper venue or any claim that those courts are an inconvenient forum. The parties agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in paragraph 20 or in such other manner as may be permitted by applicable law, shall be valid and sufficient service thereof. Each of the
 
7

parties, after consulting or having had the opportunity to consult with counsel, knowingly, voluntarily and intentionally waives any right that such party may have to a trial by jury in any litigation based upon or arising out of this Agreement or any related instrument or agreement, or any of the transactions contemplated thereby, or any course of conduct, dealing, statements (whether oral or written), or actions of any of them. No party shall seek to consolidate, by counterclaim or otherwise, any action in which a jury trial has been waived with any other action in which a jury trial cannot be or has not been waived.
15. This Agreement is solely for the benefit of the parties and is not enforceable by any other Person.
16. All notices, consents, requests, instructions, approvals and other communications provided for herein, and all legal process in regard hereto, will be in writing and will be deemed validly given, made or served when delivered in person, by electronic mail, by overnight courier or two business days after being sent by registered or certified mail (postage prepaid, return receipt requested) as follows:
If to the Company to:
LogMeIn, Inc.
320 Summer Street
Boston, MA 02210
Facsimile: (781) 437-1820
Attn: Chief Financial Officer
          General Counsel
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
200 Clarendon Street
Boston, MA 02116
Facsimile: (617) 948-6001
Attn: John H. Chory
                 Bradley C. Faris
If to the Investors:
Elliott Associates, L.P.
Elliott International, L.P.
Elliott International Capital Advisors Inc.
40 West 57th Street
New York, NY 10019
Attn:      Jesse Cohn
email:    jcohn@elliottmgmt.com
 
8

with a copy (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Attn:      Richard J. Birns, Esq.
email:    rbirns@gibsondunn.com
At any time, any party may, by notice given in accordance with this paragraph to the other party, provide updated information for notices hereunder.
17. All attorneys’ fees, costs and expenses incurred in connection with this Agreement and all matters related hereto will be paid by the party incurring such fees, costs or expenses.
18. Each of the parties acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties, and any controversy over interpretations of this Agreement shall be decided without regard to events of drafting or preparation.
19. This Agreement may be executed by the parties in separate counterparts (including by fax, jpeg, .gif .bmp and .pdf), each of which when so executed shall be an original, but all such counterparts shall together constitute one and the same instrument.
[Signature page follows]
 
9

Very truly yours,

LOGMEIN, INC.	
		
By:	 	 	
Name:	 		
Title:	 		
Confirmed and Agreed to:

ELLIOTT ASSOCIATES, L.P.
By: Elliott Capital Advisors, L.P.,
its General Partner
By: Braxton Associates, Inc.,
its General Partner	
		
By:	 	 	
Name:	 		
Title:	 		

ELLIOTT INTERNATIONAL, L.P.
By: Elliott International Capital Advisors Inc.,
as Attorney-in-Fact	
		
By:	 	 	
Name:	 		
Title:	 		

ELLIOTT INTERNATIONAL CAPITAL ADVISORS INC.	
		
By:	 	 	
Name:	 		
Title:	 		
[ Signature Page to Letter Agreement ]

Exhibit A
Confidentiality Agreement

PERSONAL AND CONFIDENTIAL
[Date]
Elliott Associates, L.P.
Elliott International, L.P.
Elliott International Capital Advisors Inc.
40 West 57th Street
New York, NY 10019
Ladies and Gentlemen:
This letter agreement shall become effective upon the appointment of the Investor Designee to the Board of Directors (the “ Board ”) of LogMeIn, Inc. (the “ Company ”) pursuant to the other letter agreement, dated as of the date hereof, between the Company and you (the “ Cooperation Agreement ”). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Cooperation Agreement. Subject to the terms of, and in accordance with, this letter agreement, you and, subject to the restrictions in paragraph 1, your Representatives and Affiliates, may receive certain information about the Company and its subsidiaries, divisions and Affiliates from the Investor Designee that is confidential and proprietary and the disclosure of which could harm the Company and its subsidiaries. You understand and agree that disclosure of any such information by the Investor Designee shall be subject in all cases to his fiduciary duties to the Company and its stockholders and the Company Policies. Without limiting the generality of the foregoing, it is understood and agreed that the Investor Designee shall not disclose to you or your Representatives or Affiliates (i) any information regarding the deliberations of the Board or its committees as a whole or of individual members of the Board or its committees or members of the Company’s management (which the parties agree shall not include factual information regarding the Company and its subsidiaries, divisions and Affiliates), (ii) any confidential or proprietary information of any third party in the possession of the Company and its subsidiaries that either (x) is identified as such to the Investor Designee by or on behalf of the Company or (y) as to which it is reasonably apparent that the Company or any of its subsidiaries is obligated by a contractual, legal or fiduciary obligation prohibiting disclosure or (iii) any information that may constitute waiver of the Company’s or any of its subsidiaries’ attorney-client privilege or attorney work-product privilege (both with respect to internal or external legal counsel) that is identified as such to the Investor Designee by or on behalf of the Company.
As a condition of your being furnished such information, you agree to treat any information, whether written or oral, concerning the Company or any of its subsidiaries, divisions or Affiliates that is furnished to you by or on behalf of the Investor Designee (herein collectively referred to as the “ Confidential Information ”) in accordance with the provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “ Confidential Information ” includes, without limitation, all notes, analyses, data or other documents furnished to you or your Affiliates or Representatives or prepared by you or your Affiliates or Representatives to the extent such materials reflect or are based upon, in whole or in part, the Confidential Information. The term “ Confidential Information ” does not include information that (a) is or becomes available to you or the Investor Designee on a nonconfidential basis from a

source other than the Company or its Affiliates or representatives; provided that such source is not known by you or the Investor Designee to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives or Affiliates in violation of this letter agreement, or (c) has been or is independently developed by you or your Representatives or Affiliates without the use of the Confidential Information or in violation of the terms of this letter agreement. For purposes of this letter agreement, the term “ Representatives ” shall include your and your Affiliates’ directors, officers, employees and attorneys.
1. You hereby agree that the Confidential Information will be kept confidential and used solely for the purpose of monitoring and evaluating your investment in the Company; provided, however, that the Confidential Information may be disclosed (i) to your Affiliates and any of your Representatives who need to know such information for the sole purpose of advising you on your investment in the Company, (ii) in accordance with paragraph 3 of this letter agreement, or (iii) as the Company may otherwise consent in writing. All such Affiliates and Representatives shall (A) be informed by you of the confidential nature of the Confidential Information, (B) agree to keep the Confidential Information strictly confidential, and (C) be advised of the terms of this letter agreement. You agree to be responsible for any breaches of any of the provisions of this letter agreement by any of your Affiliates or Representatives as if they were party hereto (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Affiliates and Representatives with respect to such breach).
2. You hereby acknowledge that you, your Affiliates and your Representatives are aware that the Confidential Information may contain material, non-public information about the Company, and that the U.S. securities laws restrict any person who has material, non-public information about a company from purchasing or selling any securities of such company while in possession of such information, and further acknowledge your obligations and those of your Affiliates and Representatives under Section 7 of the Cooperation Agreement.
3. Notwithstanding anything to the contrary provided in this letter agreement, in the event you or any of your Affiliates or Representatives receive a request or are required by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required disclosure, an “ External Demand ”) or otherwise pursuant to applicable law, regulation or the rules of any national securities exchange (as determined based on advice of outside legal counsel) to disclose all or any part of the Confidential Information, agree to, to the extent permitted by applicable law, (a) promptly notify the Company of the existence, terms and circumstances surrounding such External Demand or other requirement, (b) consult with the Company on the advisability of taking legally available steps to resist or narrow such request or disclosure, and (c) in the case of any External Demand, assist the Company, at the Company’s request and expense, in seeking a protective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or not available or that the Company waives compliance with the provisions hereof, (i) you or your Affiliates or Representatives, as the case may be, may disclose only that portion of the Confidential Information which you or your Affiliates or Representatives are advised by
 
2

counsel is legally required to be disclosed and to the extent you or your Affiliates or Representatives are advised by counsel is legally required, and, in the case of any External Demand, you or your Affiliates or Representatives shall, at the Company’s request and expense, exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information, and (ii) you or your Affiliates or Representatives shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous disclosure by you or your Affiliates or Representatives in violation of this letter agreement. Notwithstanding the foregoing, except in the case of an External Demand, you and your Affiliates and Representatives may disclose Confidential Information pursuant to this paragraph 3 if but only if such disclosure requirement does not arise from a breach of paragraph 9 of the Cooperation Agreement. For the avoidance of doubt, it is understood and agreed that there shall be no “applicable law”, “regulation” or “rule” requiring you or your Affiliates or Representatives to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure, you or your Affiliates or Representatives would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with respect to the securities of the Company or you or your Affiliates or Representatives would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.
4. Upon the Company’s demand, you shall either promptly (at your option) (a) destroy the Confidential Information and any copies thereof, or (b) return to the Company all Confidential Information and any copies thereof, and, in either case, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this letter agreement, provided that (i) you and your Affiliates and Representatives shall be permitted to retain Confidential Information to the extent necessary to comply with applicable law or such person’s document retention policies designed to ensure compliance with applicable law and (ii) the foregoing shall not require the deletion of Confidential Information from computer archives maintained in the ordinary course (provided that you and your Affiliates and Representatives shall continue to be bound by the obligations of confidentiality hereunder with respect to such Confidential Information for such period of time as you and such Affiliates or Representatives retain such Confidential Information).
5. You acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this letter agreement by you or your Affiliates or Representatives and that the Company shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its reasonable best efforts to cause its Affiliates to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.
6. You agree that (a) none of the Company or their respective Affiliates or representatives shall have any liability to you or any of your Affiliates or Representatives resulting from the selection, use or content of the Confidential Information by you or your Affiliates or Representatives and (b) none of the Company or their respective Affiliates or representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information. This letter agreement shall not create any
 
3

obligation on the part of the Company or any of its subsidiaries, Affiliates or representatives to provide you or your Affiliates or Representatives with any Confidential Information, nor shall it entitle you or your Affiliates or Representatives (other than the Investor Designee in his capacity as a director of the Company) to participate in any Board or committee meetings. All Confidential Information shall remain the property of the Company and its subsidiaries. Neither you nor any of your Affiliates or Representatives shall by virtue of any disclosure of and/or your or their use of any Confidential Information acquire any rights with respect thereto, all of which rights shall remain exclusively with the Company and its subsidiaries.
7. No failure or delay by any party or any of its representatives in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no modification hereof shall be effective, unless in writing and signed by the parties.
8. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
9. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. The parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of the Chancery Courts in the State of Delaware and the United States District Court for the District of the State of Delaware for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence any action, suit or proceeding related thereto except in such courts.
10. This letter agreement and the Cooperation Agreement (including the exhibits thereto) contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersedes all prior or contemporaneous agreements or understandings, whether written or oral. This letter agreement may be amended only by an agreement in writing executed by the parties hereto.
11. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by telecopier or pdf electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.
12. Except as otherwise set forth herein, this letter agreement shall terminate three (3) years from the date on which the Investor Designee ceases to be a director of the Company; provided that you and your Affiliates shall maintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade secrets for such longer time as such information constitutes a trade secret of the Company or any of its subsidiaries under applicable law; and provided further that any liability for breach of this letter agreement prior to such termination shall survive such termination.
[Remainder of the page intentionally left blank]
 
4

			
Very truly yours,	
	
LOGMEIN, INC.	
		
By:	 	 	
Name:	 		
Title:	 		
	
Confirmed and Agreed to:	
	
ELLIOTT ASSOCIATES, L.P.	
By: Elliott Capital Advisors, L.P.,	
its General Partner	
By: Braxton Associates, Inc.,	
its General Partner	
		
By:	 	 	
Name:	 		
Title:	 		
	
ELLIOTT INTERNATIONAL, L.P.	
By: Elliott International Capital Advisors Inc.,	
as Attorney-in-Fact	
		
By:	 	 	
Name:	 		
Title:	 		
	
ELLIOTT INTERNATIONAL CAPITAL ADVISORS INC.	
		
By:	 	 	
Name:	 		
Title:	 		
 
5

Exhibit 2.2
EXECUTION VERSION
SEPARATION AND DISTRIBUTION AGREEMENT
by and among
CITRIX SYSTEMS, INC.,
GETGO, INC.
and
LOGMEIN, INC.
Dated as of July 26, 2016

TABLE OF CONTENTS

 	 	 	  	Page	 	
	
Article I	  	
	
DEFINITIONS AND INTERPRETATION	  	
			
Section 1.1	 	General	  	 	2	  	
Section 1.2	 	References; Interpretation	  	 	15	  	
	
Article II	  	
	
THE SEPARATION	  	
			
Section 2.1	 	Restructuring; Transfer of Assets; Assumption of Liabilities	  	 	16	  	
Section 2.2	 	Intercompany Accounts and Intercompany Agreements	  	 	18	  	
Section 2.3	 	Limitation of Liability	  	 	19	  	
Section 2.4	 	Specified Consents	  	 	19	  	
Section 2.5	 	Disclaimer of Representations and Warranties	  	 	22	  	
Section 2.6	 	Cash Management	  	 	23	  	
Section 2.7	 	Insurance	  	 	23	  	
Section 2.8	 	Ancillary Agreements	  	 	23	  	
Section 2.9	 	Issuance of SpinCo Common Stock	  	 	24	  	
	
Article III	  	
	
THE DISTRIBUTION	  	
			
Section 3.1	 	Form of Distribution	  	 	24	  	
Section 3.2	 	Manner of Effecting Distribution	  	 	25	  	
Section 3.3	 	Conditions to Distribution	  	 	26	  	
	
Article IV	  	
	
CERTAIN COVENANTS	  	
			
Section 4.1	 	Further Assurances	  	 	26	  	
Section 4.2	 	Removal of Excluded Assets	  	 	26	  	
Section 4.3	 	Citrix Marks	  	 	27	  	
 
i

							
	
Article V	  	
	
INDEMNIFICATION	  	
			
Section 5.1	 	Release of Pre-Distribution Claims	  	 	27	  	
Section 5.2	 	Indemnification by Citrix	  	 	29	  	
Section 5.3	 	Indemnification by SpinCo	  	 	29	  	
Section 5.4	 	Procedures for Indemnification	  	 	29	  	
Section 5.5	 	Indemnification Obligations Net of Insurance Proceeds and Other Amounts	  	 	32	  	
Section 5.6	 	Contribution	  	 	33	  	
Section 5.7	 	Additional Matters; Survival of Indemnities	  	 	34	  	
	
Article VI	  	
	
PRESERVATION OF RECORDS; ACCESS TO INFORMATION; CONFIDENTIALITY; PRIVILEGE	  	
			
Section 6.1	 	Generally	  	 	35	  	
Section 6.2	 	Financial Statements and Accounting	  	 	36	  	
Section 6.3	 	Witness Services	  	 	36	  	
Section 6.4	 	Reimbursement	  	 	37	  	
Section 6.5	 	Retention	  	 	37	  	
Section 6.6	 	Confidentiality	  	 	37	  	
Section 6.7	 	Privilege Matters	  	 	38	  	
Section 6.8	 	Ownership of Information	  	 	40	  	
Section 6.9	 	Other Agreements	  	 	40	  	
	
Article VII	  	
	
DISPUTE RESOLUTION	  	
			
Section 7.1	 	Dispute Resolution Procedures	  	 	40	  	
	
Article VIII	  	
	
MISCELLANEOUS	  	
			
Section 8.1	 	Complete Agreement; Construction	  	 	41	  	
Section 8.2	 	Transaction Agreements	  	 	41	  	
Section 8.3	 	Counterparts	  	 	41	  	
Section 8.4	 	Survival of Agreements	  	 	42	  	
Section 8.5	 	Expenses	  	 	42	  	
Section 8.6	 	Notices	  	 	42	  	
Section 8.7	 	Amendment and Waivers	  	 	43	  	
Section 8.8	 	Termination	  	 	43	  	
Section 8.9	 	Assignment	  	 	43	  	
Section 8.10	 	Successors and Assigns	  	 	43	  	
Section 8.11	 	Payment Terms	  	 	44	  	
Section 8.12	 	Subsidiaries	  	 	44	  	
Section 8.13	 	Third Party Beneficiaries	  	 	44	  	
Section 8.14	 	Exhibits and Schedules	  	 	45	  	
 
ii

							
Section 8.15	 	Governing Law	  	 	45	  	
Section 8.16	 	Waiver of Jury Trial	  	 	45	  	
Section 8.17	 	Specific Performance	  	 	45	  	
Section 8.18	 	Severability	  	 	46	  	
Section 8.19	 	Interpretation	  	 	46	  	
Section 8.20	 	No Duplication; No Double Recovery	  	 	46	  	
Section 8.21	 	No Admission of Liability	  	 	46	  	
List of Exhibits

Exhibit A	  	Internal Reorganization Plan	
Exhibit B	  	Form of IP License Agreement	
Exhibit C	  	Form of Employee Matters Agreement	
Exhibit D	  	Form of Transition Services Agreement	
Exhibit E	  	Forms of Assignment of Intellectual Property	
 
iii

Index of Defined Terms

Defined Term	  	Section	
		
Action	  	1.1(1)	
Affiliate	  	1.1(2)	
Agreement	  	Preamble	
Ancillary Agreement	  	1.1(3)	
Appointed Representative	  	7.1(a)	
Assets	  	1.1(4)	
Assume	  	2.1(b)(iii)	
Board	  	Recitals	
Business Day	  	1.1(5)	
Citrix	  	Preamble	
Citrix Business	  	1.1(6)	
Citrix Claim	  	5.3	
Citrix Common Stock	  	1.1(7)	
Citrix Designees	  	1.1(8)	
Citrix Group	  	1.1(9)	
Citrix Indemnitees	  	1.1(10)	
Citrix Marks	  	1.1(11)	
Claiming Party	  	5.4(b)	
Clean-Up Spin-Off	  	Recitals	
Code	  	1.1(12)	
Confidential Information	  	1.1(13)	
Confidentiality Agreement	  	1.1(14)	
Consents	  	1.1(15)	
Contract	  	1.1(16)	
control	  	1.1(17)	
Conveyance and Assumption Instruments	  	1.1(18)	
Direct Claim	  	5.4(a)(ii)	
Distribution	  	Recitals	
Distribution Date	  	1.1(19)	
Distribution Effective Time	  	1.1(20)	
Employee Matters Agreement	  	1.1(21)	
Exchange Act	  	1.1(22)	
Exchange Offer	  	Recitals	
Excluded Assets	  	1.1(23)	
Excluded Liabilities	  	1.1(24)	
Final Net Adjustment Amount	  	1.1(25)	
Governmental Authority	  	1.1(26)	
Group	  	1.1(27)	
Indemnifiable Losses	  	1.1(28)	
Indemnifying Party	  	1.1(29)	
Indemnitee	  	1.1(30)	
Indemnity Payment	  	5.5(a)	
 
iv

			
Insurance Proceeds	  	1.1(31)	
Intellectual Property	  	1.1(32)	
Intercompany Account	  	1.1(33)	
Intercompany Agreement	  	1.1(34)	
Internal Reorganization	  	1.1(35)	
IP License Agreement	  	1.1(36)	
Law	  	1.1(37)	
Liabilities	  	1.1(38)	
LogMeIn	  	Preamble	
Marks	  	1.1(39)	
Merger	  	Recitals	
Merger Agreement	  	Recitals	
Merger Effective Time	  	1.1(40)	
Merger Partner Sub	  	Recitals	
NASDAQ	  	1.1(41)	
Non-SpinCo Facilities	  	1.1(42)	
One-Step Spin-Off	  	Recitals	
Party	  	Preamble	
Person	  	1.1(43)	
Policies	  	1.1(44)	
Prime Rate	  	1.1(45)	
Privilege	  	6.7(a)	
Privileged Information	  	6.7(a)	
Record Date	  	1.1(46)	
Record Holders	  	1.1(47)	
Registered	  	1.1(48)	
Representatives	  	1.1(49)	
Retained Citrix Information	  	1.1(50)	
Retained SpinCo Information	  	1.1(51)	
SEC	  	1.1(52)	
Securities Act	  	1.1(53)	
Separation	  	Recitals	
Separation Agreement Disputes	  	7.1(b)	
Shared Contract	  	1.1(54)	
Shared Information	  	1.1(55)	
Software	  	1.1(56)	
Specified Claims	  	1.1(24)	
Specified Consent	  	2.4(a)	
SpinCo	  	Preamble	
SpinCo Assets	  	1.1(57)	
SpinCo Business	  	1.1(58)	
SpinCo Claim	  	5.2	
SpinCo Common Stock	  	1.1(59)	
SpinCo Designees	  	1.1(60)	
SpinCo Facilities	  	1.1(61)	
SpinCo Financial Statements	  	1.1(62)	
 
v

			
SpinCo Group	  	1.1(63)	
SpinCo Indebtedness	  	1.1(64)	
SpinCo Indemnitees	  	1.1(65)	
SpinCo Intellectual Property	  	1.1(57)(ii)	
SpinCo Liabilities	  	1.1(66)	
SpinCo Records	  	1.1(57)(vii)	
Steps Plan	  	1.1(67)	
Subsidiary	  	1.1(68)	
Tax	  	1.1(69)	
Tax Authority	  	1.1(70)	
Tax Benefit	  	1.1(71)	
Tax Contest	  	1.1(72)	
Tax Matters Agreement	  	1.1(73)	
Tax Records	  	1.1(74)	
Tax Return	  	1.1(75)	
Third Party	  	1.1(76)	
Third Party Claim	  	5.4(b)	
Third Party Proceeds	  	5.5(a)	
Transaction Agreement	  	1.1(77)	
Transfer	  	2.1(b)(i)	
Transferred Leased Real Property	  	1.1(78)	
Transferred Owned Real Property	  	1.1(79)	
Transition Services Agreement	  	1.1(80)	
 
vi

SEPARATION AND DISTRIBUTION AGREEMENT
This SEPARATION AND DISTRIBUTION AGREEMENT (this “ Agreement ”), dated as of July 26, 2016, is entered into by and among CITRIX SYSTEMS, INC., a Delaware corporation (“ Citrix ”), GETGO, INC., a Delaware corporation and a wholly owned subsidiary of Citrix (“ SpinCo ”), and LOGMEIN, INC., a Delaware corporation (“ LogMeIn ”). “ Party ” or “ Parties ” means Citrix, SpinCo or LogMeIn, individually or collectively, as the case may be. Each capitalized term used and not defined herein has the meaning set forth in Section 1.1 .
W I T N E S S E T H:
WHEREAS, the Board of Directors of Citrix (the “ Board ”) has determined that it is appropriate, desirable and in the best interests of Citrix and its stockholders to separate (the “ Separation ”) the SpinCo Business from the remaining business of Citrix and its Subsidiaries;
WHEREAS, pursuant to the Agreement and Plan of Merger dated of even date herewith (the “ Merger Agreement ”), among Citrix, SpinCo, LogMeIn and Lithium Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of LogMeIn (“ Merger Partner Sub ”), immediately following the Distribution, Merger Partner Sub will merge with and into SpinCo (the “ Merger ”) and, in connection with the Merger, SpinCo Common Stock will be converted into the right to receive shares of common stock of LogMeIn, par value $0.01 per share, on the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, upon the terms and subject to the conditions set forth in this Agreement and to effect the Separation and the Merger, Citrix desires to reorganize the SpinCo Business so that it is conducted through SpinCo and its Subsidiaries;
WHEREAS, in connection with the reorganization of the SpinCo Business, Citrix desires to Transfer, or to cause the other members of the Citrix Group to Transfer, to the members of the SpinCo Group all SpinCo Assets, and to assign all SpinCo Liabilities, and the members of the SpinCo Group desire to receive such SpinCo Assets and Assume such SpinCo Liabilities;
WHEREAS, to implement the Separation, following the reorganization of the SpinCo Business and upon the terms and conditions set forth in this Agreement, the Board has determined to either (a) distribute, without consideration, all of the then outstanding shares of SpinCo Common Stock to Citrix’s stockholders by way of a pro rata dividend (the “ One-Step Spin-Off ”), or (b) consummate an offer to exchange shares of SpinCo Common Stock for currently outstanding shares of Citrix Common Stock (the “ Exchange Offer ”) and, in the event that Citrix’s stockholders subscribe for less than all of the SpinCo Common Stock in the Exchange Offer, distribute, without consideration and pro rata to holders of Citrix Common Stock, any unsubscribed SpinCo Common Stock on the Distribution Date immediately following the consummation of the Exchange Offer so that Citrix may be treated for U.S. federal income Tax purposes as having distributed all of the SpinCo Common Stock to its stockholders (the “ Clean-Up Spin-Off ”);

WHEREAS, the disposition by Citrix of the SpinCo Common Stock to Citrix stockholders, whether by way of the One-Step Spin-Off or the Exchange Offer (followed by any Clean-Up Spin-Off, if necessary), is referred to as the “ Distribution ”;
WHEREAS, it is a condition to the Merger that, prior to the Merger Effective Time, the Internal Reorganization and the Distribution will have been completed;
WHEREAS, Citrix and SpinCo intend that, for U.S. federal income Tax purposes, the Internal Reorganization, the Separation and the Distribution will be treated as contemplated by the Tax Matters Agreement and, accordingly, that the (a) Separation and the Distribution, taken together, qualify as a “reorganization” within the meaning of Section 368(a)(1)(D) of the Code and that each of Citrix and SpinCo will be a “party to the reorganization” within the meaning of Section 368(b) of the Code and (b) the Distribution, as such, qualifies as a distribution of SpinCo Common Stock to Citrix’s stockholders pursuant to Section 355 of the Code; and
WHEREAS, the Parties intend this Agreement to be, and hereby adopt this Agreement as, a “plan of reorganization” within the meaning of Treasury Regulation §§ 1.368-2(g) and 1.368-3;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows:
ARTICLE I 
DEFINITIONS AND INTERPRETATION
Section 1.1 General . As used in this Agreement, the following terms shall have the following meanings:
(1) “ Action ” has the meaning set forth in the Merger Agreement.
(2) “ Affiliate ” has the meaning set forth in the Merger Agreement.
(3) “ Ancillary Agreement ” means each of the Employee Matters Agreement, the IP License Agreement, the Tax Matters Agreement and the Transition Services Agreement.
(4) “ Assets ” means all rights, title and ownership interests in and to all rights, properties, claims, Contracts, businesses or assets (including goodwill), wherever located (including in the possession of vendors or other third parties or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible or intangible, whether accrued, contingent or otherwise, in each case, whether or not recorded or reflected on the books and records or financial
 
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statements of any Person. Except as otherwise specifically set forth herein or in the Tax Matters Agreement, the rights and obligations of the Parties with respect to Taxes shall be governed by the Tax Matters Agreement and, therefore, Taxes (including any Tax items, attributes or rights to receive any Tax Benefit) shall not be treated as Assets governed by this Agreement.
(5) “ Business Day ” has the meaning set forth in the Merger Agreement.
(6) “ Citrix Business ” means (a) those businesses, operations and activities (whether or not such businesses, operations or activities are or have been terminated, divested or discontinued) as conducted at any time prior to the Distribution Effective Time by Citrix or any of its Subsidiaries other than the SpinCo Business, and (b) those entities or businesses acquired or established by or for any member of the Citrix Group after the Distribution Effective Time.
(7) “ Citrix Common Stock ” means the common stock of Citrix, par value $0.001 per share.
(8) “ Citrix Designees ” shall mean any and all entities (including corporations, general or limited partnerships, trusts, joint ventures, unincorporated organizations, limited liability entities or other entities) designated by Citrix and that will be members of the Citrix Group as of immediately prior to the Distribution Effective Time.
(9) “ Citrix Group ” means (a) prior to the Distribution Effective Time, Citrix and each Person that will be a Subsidiary of Citrix immediately following the Distribution Effective Time and (b) from and after the Distribution Effective Time, Citrix and each Person that is then a Subsidiary of Citrix.
(10) “ Citrix Indemnitees ” means Citrix, each other member of the Citrix Group, and all Persons who are or have been stockholders, directors, partners, managers, managing members, officers, agents or employees of any member of the Citrix Group (in each case, in their respective capacities as such) (excluding any stockholder of Citrix), together with their respective heirs, executors, administrators, successors and assigns.
(11) “ Citrix Marks ” means all Marks owned by Citrix or any of its Subsidiaries, but does not include any SpinCo Intellectual Property.
(12) “ Code ” means the Internal Revenue Code of 1986, as amended.
(13) “ Confidential Information ” has the meaning set forth in the Confidentiality Agreement.
 
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(14) “ Confidentiality Agreement ” has the meaning set forth in the Merger Agreement.
(15) “ Consents ” means any consents, waivers, notices, reports or other filings to be obtained from or made, including with respect to any Contract, or any registrations, licenses, permits, authorizations to be obtained from, or approvals from, or notification requirements to, any Third Parties, including any Governmental Authority.
(16) “ Contract ” has the meaning set forth in the Merger Agreement.
(17) “ control ” (including the terms “ controlled by ” and “ under common control with ”) has the meaning set forth in the Merger Agreement.
(18) “ Conveyance and Assumption Instruments ” means, collectively, such instruments of Transfer or other Contracts, including related local asset transfer agreements or intellectual property assignment agreements, and other documents entered into prior to the Distribution Effective Time and as may be necessary to effect the Transfer of Assets and the Assumption of Liabilities in the manner contemplated by this Agreement, or otherwise relating to, arising out of or resulting from the transactions contemplated by this Agreement, in such form or forms as the applicable Parties agree, including, without limitation, the assignment of Intellectual Property in substantially the forms set forth as Exhibit E .
(19) “ Distribution Date ” means the date on which the Distribution occurs.
(20) “ Distribution Effective Time ” means the time established by the Board as the effective time of the Distribution on the Distribution Date.
(21) “ Employee Matters Agreement ” means the Employee Matters Agreement to be entered into prior to the Distribution Effective Time by and among Citrix, SpinCo and LogMeIn in substantially the form set forth as Exhibit C , which may be supplemented by such exhibits or schedules as may be agreed to by the Parties.
(22) “ Exchange Act ” has the meaning set forth in the Merger Agreement.
(23) “ Excluded Assets ” means (a) any and all Assets that are owned, used or held, at or prior to the Distribution Effective Time, by Citrix or any of its Subsidiaries, that are not SpinCo Assets and (b) any and all Assets that are acquired or otherwise become Assets of the Citrix Group after the Distribution Effective Time, including in the case of each of (a) and (b): (v) the
 
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domain Citrixonline.com and any related Apple Developer Accounts associated to Citrixonline.com, (w) subject to the provisions of Section 2.6 , cash and cash equivalents, (x) all Policies binders and claims and rights thereunder and all prepaid insurance premiums (other than any insurance policies acquired prior to the Distribution Effective Time directly by and in the name of SpinCo or a member of the SpinCo Group), (y) any work papers of Citrix’s auditors and any other Tax Records (including accounting records) of any Citrix Group member (which will be addressed in the Tax Matters Agreement) and (z) all other Assets expressly identified in any Ancillary Agreement or any Conveyance and Assumption Instrument as Assets to be retained by any member of the Citrix Group.
(24) “ Excluded Liabilities ” means (a) prior to the Distribution Effective Time, any and all Liabilities of any member of the Citrix Group or the SpinCo Group, and (b) from and after the Distribution Effective Time, any and all Liabilities of each member of the Citrix Group that, in the case of each of (a) and (b), are not SpinCo Liabilities, including (i) all Liabilities to the extent relating to, arising out of, or resulting from any Excluded Assets or the Citrix Business, (ii) except as provided in the following sentence, Liabilities related to SpinCo Indebtedness, (iii) Liabilities to the extent expressly contemplated by any Ancillary Agreement or any Conveyance and Assumption Instrument as Liabilities to be Assumed or discharged by any member of the Citrix Group, (iv) all agreements, obligations and Liabilities of any member of the Citrix Group under any Transaction Agreement and (v) all Liabilities to the extent relating to, arising out of or resulting from claims made by or on behalf of holders of any Citrix securities (including debt securities), in their capacities as such, whether made under any applicable corporate, securities or other Laws, or by or on behalf of any Governmental Authority under any applicable securities Laws (“ Specified Claims ”), except in the case of this clause (v) to the extent relating to, arising out of or resulting from any violation of applicable Laws by LogMeIn. Notwithstanding the foregoing or any other provision herein, “Excluded Liabilities” shall not include any Liabilities (x) related to SpinCo Indebtedness to the extent included in the calculation of the Final Net Adjustment Amount or (y) arising out of or related to the Loan Agreement, and (c) all Liabilities described on Schedule 1.1(24) (c).
(25) “ Final Net Adjustment Amount ” has the meaning set forth in the Merger Agreement.
(26) “ Governmental Authority ” has the meaning set forth in the Merger Agreement.
(27) “ Group ” means (a) with respect to Citrix, the Citrix Group and (b) with respect to SpinCo, the SpinCo Group, as the context requires.
(28) “ Indemnifiable Losses ” means any and all Liabilities, including damages, losses, deficiencies, obligations, penalties, judgments, settlements, claims, payments, fines and other costs and expenses of
 
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any and all Actions and demands, assessments, judgments, settlements and compromises relating thereto and the reasonable costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder; provided , however , that in no event shall “Indemnifiable Losses” include (i) punitive damages, except to the extent awarded by a court of competent jurisdiction or arbitral tribunal in connection with a Third Party Claim or (ii) consequential, special or indirect damages, including loss of future profits, revenue or income, diminution in value or loss of business reputation or opportunity, unless (A) such damages were the reasonably foreseeable result of the action or omission giving rise to such damages or (B) such damages have been awarded by a court of competent jurisdiction or arbitral tribunal in connection with a Third Party Claim.
(29) “ Indemnifying Party ” means, with respect to any Direct Claim or Third Party Claim, the Party which is or may be required pursuant to Article V to make indemnification pursuant such claim.
(30) “ Indemnitee ” means, with respect to any Direct Claim or Third Party Claim, the Citrix Indemnitee or SpinCo Indemnitee, as the case may be, with respect to which such claim is made hereunder.
(31) “ Insurance Proceeds ” means those monies (a) received by an insured from a Third Party insurance carrier or (b) paid by a Third Party insurance carrier on behalf of an insured, in either case net of any applicable deductible or retention.
(32) “ Intellectual Property ” has the meaning set forth in the Merger Agreement.
(33) “ Intercompany Account ” means any receivable, payable or loan between any member of the Citrix Group, on the one hand, and any member of the SpinCo Group, on the other hand, except for any such receivable, payable or loan that expressly arises pursuant to any Transaction Agreement.
(34) “ Intercompany Agreement ” means any Contract between any member of the Citrix Group, on the one hand, and any member of the SpinCo Group, on the other hand.
(35) “ Internal Reorganization ” means the allocation and transfer or assignment of assets and liabilities in accordance with the terms of this Agreement, including by means of the Conveyance and Assumption Instruments, resulting in (a) the SpinCo Group owning and operating the SpinCo Business, and (b) the Citrix Group continuing to own and operate the Citrix Business, in each case, in accordance with the Steps Plan.
(36) “ IP License Agreement ” means the Intellectual Property License Agreement to be entered into prior to the Distribution Effective Time by and among Citrix, SpinCo and LogMeIn in substantially the form set forth as Exhibit B .
 
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(37) “ Law ” has the meaning set forth in the Merger Agreement.
(38) “ Liabilities ” means any and all indebtedness, liabilities, costs, expenses, interest and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, known or unknown, reserved or unreserved, or determined or determinable, including those arising under any Law, Action, whether asserted or unasserted, or order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority and those arising under any Contract or any fines, damages or equitable relief which may be imposed and including all costs and expenses related thereto. Except as otherwise specifically set forth herein or in the Tax Matters Agreement, the rights and obligations of the Parties with respect to Taxes shall be governed by the Tax Matters Agreement and, therefore, Taxes shall not be treated as Liabilities governed by this Agreement.
(39) “ Marks ” has the meaning set forth in the Merger Agreement.
(40) “ Merger Effective Time ” means the effective time of the Merger in accordance with the terms and conditions set forth in the Merger Agreement.
(41) “ NASDAQ ” means the NASDAQ Stock Market LLC.
(42) “ Non-SpinCo Facilities ” means any and all real property owned or leased by Citrix or any of its Subsidiaries that does not constitute SpinCo Facilities.
(43) “ Person ” has the meaning set forth in the Merger Agreement.
(44) “ Policies ” means insurance policies and insurance contracts of any kind (other than life and benefits policies or contracts), including primary, excess and umbrella policies, commercial general liability policies, fiduciary liability, directors and officers liability, automobile, aircraft, property and casualty, workers’ compensation and employee dishonesty insurance policies and bonds, together with the rights, benefits and privileges thereunder.
(45) “ Prime Rate ” mean means the “prime rate” as published in The Wall Street Journal , Eastern Edition.
(46) “ Record Date ” means the time and date to be determined by the Board as the record date for determining the holders of shares of Citrix Common Stock entitled to receive shares of SpinCo Common Stock in the Distribution, to the extent the Distribution is effected through a One-Step Spin-Off, or in connection with any Clean-Up Spin-Off.
 
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(47) “ Record Holders ” means holders of record of Citrix Common Stock on the Record Date.
(48) “ Registered ” means issued by, registered or filed with, renewed by or the subject of a pending application before any Governmental Authority or Internet domain name registrar.
(49) “ Representatives ” has the meaning set forth in the Merger Agreement.
(50) “ Retained Citrix Information ” means, to the extent in the possession of SpinCo or any member of the SpinCo Group and not delivered to Citrix in accordance with the terms of this Agreement, (i) all business records to the extent related to the Citrix Business, including the corporate or limited liability company minute books and related stock records of the members of the Citrix Group, information and records used to demonstrate compliance with applicable Law and any other compliance records related to the Citrix Business, (ii) all financial and property Tax Records of the members of the Citrix Group and (iii) all other books, records, ledgers, files, documents, correspondence, lists, plats, drawings, photographs, product literature, equipment test records, advertising and promotional materials, distribution lists, customer lists, supplier lists, studies, reports, operating, production and other manuals, manufacturing and quality control records and procedures, research and development files, accounting and business books, records, files, documentation and materials, including all books and records related to the registered Intellectual Property of Citrix, in all cases whether in paper, microfilm, microfiche, computer tape or disc, magnetic tape or any other form, in each case, to the extent related to the operation of the Citrix Business prior to the Distribution Effective Time.
(51) “ Retained SpinCo Information ” means, to the extent in the possession of Citrix or any member of the Citrix Group and not delivered to SpinCo in accordance with the terms of this Agreement, (i) all business records to the extent related to the SpinCo Business, including the corporate or limited liability company minute books and related stock records of the members of the SpinCo Group, information and records used to demonstrate compliance with applicable Law and any other compliance records related to the SpinCo Business, (ii) all financial and property Tax Records of the members of the SpinCo Group and (iii) all other books, records, ledgers, files, documents, correspondence, lists, plats, drawings, photographs, product literature, equipment test records, advertising and promotional materials, distribution lists, customer lists, supplier lists, studies, reports, operating, production and other manuals, manufacturing and quality control records and procedures, research and development files, accounting and business books, records, files, documentation and materials, including all books and records related to the Registered SpinCo Intellectual Property, in all cases whether in paper, microfilm, microfiche, computer tape or disc, magnetic tape or any other form, in each case, to the extent related to the operation of the SpinCo Business prior to the Distribution Effective Time.
 
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(52) “ SEC ” has the meaning set forth in the Merger Agreement.
(53) “ Securities Act ” has the meaning set forth in the Merger Agreement.
(54) “ Shared Contract ” means any Contract entered into prior to the Distribution Effective Time to which Citrix or any of its Subsidiaries is a party that relates to both (i) the SpinCo Business and (ii) the Citrix Business.
(55) “ Shared Information ” means (a) all information provided by any member of the SpinCo Group to a member of the Citrix Group prior to the Distribution Effective Time, and (b) any information in the possession or under the control of either Group that relates to the operation of the SpinCo Business prior to the Distribution Effective Time and that a member of the other Group reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting Party (including under applicable securities and Tax Laws) by a Governmental Authority having jurisdiction over the requesting Party, (ii) for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation or other similar requirements, in each case other than claims or allegations that one Party to this Agreement has against the other, (iii) subject to the foregoing clause (ii) above, to comply with its obligations under any Transaction Agreement, or (iv) to the extent such information and cooperation is necessary to comply with such reporting, filing and disclosure obligations, for the preparation of financial statements or completing an audit, and as reasonably necessary to conduct the ongoing businesses of Citrix or SpinCo, as the case may be.
(56) “ Software ” means any computer programs (whether in source code, object code or other form), algorithms, databases, compilations and data technology supporting the foregoing, and all documentation, including user manuals and training materials, related to any of the foregoing.
(57) “ SpinCo Assets ” means, in each case to the extent existing and owned or held immediately prior to the Distribution Effective Time by Citrix or any of its Subsidiaries, and subject to the last paragraph of this Section 1.1(57) , all right, title and interest of Citrix or any of its Subsidiaries in, to and under the following Assets, but in each case excluding the Excluded Assets:
(i) all interests in the capital stock of, or any other equity interests in, the Subsidiaries of Citrix set forth on Schedule 1.1(57)(i) , that are contemplated to be owned (directly or indirectly) by SpinCo immediately prior to the Distribution Effective Time in accordance with the Steps Plan;
 
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(ii) all Intellectual Property that is exclusively related to, exclusively used in or exclusively held for use in the SpinCo Business, including the Registered SpinCo Intellectual Property (as defined in the Merger Agreement) identified on Schedule 1.1(57)(ii) (including all goodwill associated therewith, all remedies against infringements thereof, and all claims, causes of action, rights of recovery and rights of set-off of any kind, all damages and payments for past, present and future infringement or misappropriation of Intellectual Property, and the right to sue and recover for past, present and future infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to such Intellectual Property) (the “ SpinCo Intellectual Property ”);
(iii) (A) all Contracts to which any member of the SpinCo Group or the Citrix Group is a party or by which it or any such member’s Assets is bound, in each case, as of immediately prior to the Distribution Effective Time that is exclusively related to the SpinCo Business and any rights or claims arising thereunder, including the Contracts listed on Schedule 1.1(57)(iii) and (B) subject to Section 2.4 , the Contracts for the benefit of the SpinCo Group into which the Shared Contracts are separated;
(iv) all Transferred Leased Real Property and Transferred Owned Real Property;
(v) all rights, claims, credits, causes of action or rights of set-off against Persons other than members of the Citrix Group to the extent relating to the SpinCo Business or the SpinCo Assets, including unliquidated rights under Third Party manufacturers’ and vendors’ warranties;
(vi) all transferable licenses, permits, registrations, approvals and authorizations of any member of the SpinCo Group or the Citrix Group which relate primarily to the SpinCo Business;
(vii) to the extent in the possession of any member of the Citrix Group or the SpinCo Group, (A) all business records to the extent primarily related to the SpinCo Business, including the corporate or limited liability company minute books and related stock records of the members of the SpinCo Group, information and records used to demonstrate compliance with applicable Law and any other compliance records related to the SpinCo Business; (B) all of the separate financial and property Tax Records of the members of the SpinCo Group that do not form part of the general ledger of any member of the Citrix Group; and (C) all other books, records, ledgers, files, documents, correspondence, lists, plats, drawings, photographs, product literature, equipment test records, advertising and promotional materials, distribution lists, customer lists, supplier lists, studies, reports, operating, production and other manuals, manufacturing and quality control records and procedures, research and development files, accounting and business books, records, files, documentation and materials, including all books
 
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and records related to the Registered Intellectual Property, in all cases whether in paper, microfilm, microfiche, computer tape or disc, magnetic tape or any other form, in each case, to the extent primarily related to the SpinCo Business; and (D) any other Asset expressly identified in any other Transaction Agreement as a “SpinCo Record” (collectively, the “ SpinCo Records ”); provided , however , that: (x) Citrix shall be entitled to retain copies of any and all SpinCo Records, which shall be deemed the Confidential Information of SpinCo and subject to the provisions of Section 6.6 ; (y) Citrix shall not be required to deliver to SpinCo any materials described in clauses (A), (B) and (C) that are not reasonably practicable to identify and extract, but shall provide access to such materials in accordance with Section 6.1(a) ; provided , however , that such retained materials shall be deemed Confidential Information of SpinCo and subject to the provisions of Section 6.6 ; and (z) Citrix shall be entitled to redact any portion of the SpinCo Records to the extent related to any matter other than the SpinCo Business;
(viii) all accounts receivable to the extent relating to the operation of the SpinCo Business;
(ix) all Assets expressly identified in any Ancillary Agreement or any Conveyance and Assumption Instrument as Assets to be acquired by any member of the SpinCo Group;
(x) all tangible equipment (including information technology equipment and machinery), infrastructure, wires, inventory, supplies and other tangible property that is owned, leased or licensed by Citrix or any of its Subsidiaries and primarily related to the SpinCo Business, including the information technology and computer hardware and equipment described on Schedule 1.1(57)(x) ;
(xi) all other Assets not expressly covered in clauses (i) through (xi) of this Section 1.1(57) that are primarily related to, used in or held for use in the SpinCo Business, including those Assets identified on Schedule 1.1(57)(xi) ; and
(xii) all other Assets not expressly covered in clauses (i) through (xii) of this definition of SpinCo Assets that are owned, in whole or in part, by any member of the SpinCo Group, but not owned in part by any member of the Citrix Group immediately prior to the Distribution Date (after giving effect to the Internal Reorganization).
Notwithstanding the foregoing or anything else to the contrary herein, “SpinCo Assets” shall not include any rights or interests in or to any (A) Intellectual Property except to the extent set forth in clause (ii) of this Section 1.1(57) ; (B) Contracts except to the extent set forth in clause (iii) of this Section 1.1(57) and in Section 2.4 ; (C) real property except to the extent set forth in clause (iv) of this Section 1.1(57) ; (D) books, records, ledgers, files or other business records of a nature described in clause (vii) of this Section 1.1(57) except to the extent set forth in such clause (vii); (E) information technology and computer hardware or equipment
 
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except to the extent set forth in clause (xi) of this Section 1.1(57) ; or (F) Citrix’s company-wide SAP systems, enterprise resource planning systems and electronic communication systems, and, except for rights of the SpinCo Group with respect to Shared Contracts in accordance with Section 2.4 , Citrix’s company-wide systems listed on Schedule 1.1(57)(y) .
(58) “ SpinCo Business ” means the business of Citrix and its Subsidiaries designing, developing, marketing, sale and support of prior versions, current versions and versions under development of the GoToMeeting®, GoToWebinar®, GoToTraining®, OpenVoice®, Grasshopper®, GoToMyPC®, GoToAssist®, GoToAssist Corporate® and Netviewer® products, including the operations and activities of any member of the SpinCo Group conducted prior to the Distribution Effective Time relating to the foregoing, but excluding those businesses set forth on Schedule 1.1(58) .
(59) “ SpinCo Common Stock ” means the common stock of SpinCo, par value $0.01 per share.
(60) “ SpinCo Designees ” means any and all entities (including corporations, general or limited partnerships, trusts, joint ventures, unincorporated organizations, limited liability entities or other entities) designated by SpinCo and that will be members of the SpinCo Group as of immediately prior to the Distribution Effective Time.
(61) “ SpinCo Facilities ” means any and all real property owned or leased by Citrix or any of its Subsidiaries prior to the Distribution Effective Time that is allocated to any member of the SpinCo Group pursuant to this Agreement, including any Transferred Leased Real Property and Transferred Owned Real Property.
(62) “ SpinCo Financial Statements ” has the meaning set forth in the Merger Agreement.
(63) “ SpinCo Group ” means (a) prior to the Distribution Effective Time, SpinCo and each Person that will be a Subsidiary of SpinCo immediately following the Distribution Effective Time and (b) on and after the Distribution Effective Time, SpinCo and each Person that is a Subsidiary of SpinCo.
(64) “ SpinCo Indebtedness ” has the meaning set forth in the Merger Agreement.
(65) “ SpinCo Indemnitees ” means SpinCo, each other member of the SpinCo Group and each of their respective successors and assigns, and all Persons who are or have been stockholders, directors, partners, managers, managing members, officers, agents or employees of any member of the SpinCo Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns.
 
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(66) “ SpinCo Liabilities ” means each of the following Liabilities, whether or not reflected or reserved against in the SpinCo Financial Statements and whether presently in existence or arising after the date of this Agreement, but in each case excluding the Excluded Liabilities:
(i) (A) all trade and other accounts payable to the extent related to the SpinCo Business and (B) all Liabilities set forth on, or reflected or referred to in, the SpinCo Financial Statements (including the notes thereto);
(ii) any and all Liabilities arising out of or related to the Loan Agreement or that are expressly contemplated by any Ancillary Agreement or any Conveyance and Assumption Instrument as Liabilities to be Assumed or retired by any member of the SpinCo Group;
(iii) any and all Liabilities relating to, arising out of or resulting from Specified Claims to the extent relating to, arising out of or resulting from any violation of applicable Laws by LogMeIn;
(iv) any and all Liabilities to the extent relating to, arising out of or resulting from the conduct of the SpinCo Business, as conducted at any time prior to, on or after the Distribution Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any directors, officers, partners, managers, employees or agents of any member of the SpinCo Group in the conduct of the SpinCo Business (whether or not such act or failure to act is or was within such Person’s authority));
(v) any and all Liabilities to the extent relating to, arising out of or resulting from the conduct of any business by any member of the SpinCo Group at any time on or after the Distribution Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any directors, officers, partners, managers, employees or agents of any member of the SpinCo Group (whether or not such act or failure to act is or was within such Person’s authority));
(vi) any and all Liabilities to the extent relating to, arising out of or resulting from any SpinCo Asset, whether arising before, on or after the Distribution Date;
(vii) any and all Liabilities to the extent relating to, arising out of or resulting from any warranty or similar obligation entered into, created or incurred in the course of the SpinCo Business with respect to its products or services, whether prior to, at or after the Distribution Date;
(viii) any and all Liabilities related to SpinCo Indebtedness to the extent included in the calculation of the Final Net Adjustment Amount;
(ix) any and all Liabilities described on Schedule 1.1(66)(ix) ; and
(x) all Liabilities arising directly or indirectly from Actions to the extent relating to the SpinCo Assets, the SpinCo Business or any SpinCo Liability, including in respect of any alleged tort, breach of Contract, violation or noncompliance with Law or any licenses, permits, registrations, approvals and authorizations, whether arising prior to, on or after the Distribution Date, including such Actions listed on Schedule 1.1(66)(x) .
 
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For the avoidance of doubt, to the extent the Final Net Adjustment Amount as finally determined in accordance with Section 3.05 of the Merger Agreement reflects SpinCo Current Liabilities (as defined in the Merger Agreement) allocated to SpinCo, such Liabilities shall be “SpinCo Liabilities” hereunder.
(67) “ Steps Plan ” means the steps plan as set forth in Exhibit A or as amended, supplemented or modified by mutual agreement of the Parties; provided that (i) each of the Parties shall consider any amendments, supplements or modifications proposed by the other Parties in good faith and (ii) Citrix shall be permitted to amend, supplement or modify the Steps Plan with LogMeIn’s written consent (such consent not to be unreasonably withheld, conditioned or delayed) (it being understood that LogMeIn, in making its determination, may take into account any adverse effect on LogMeIn or the SpinCo Business of the proposed amendment, supplement or modification); provided , that LogMeIn shall be deemed to have given its consent to any such amendment, supplement or modification if, within ten (10) Business Days following the provision by Citrix of notice thereof, LogMeIn has not delivered comments or otherwise responded to Citrix with respect thereto.
(68) “ Subsidiary ” has the meaning set forth in the Merger Agreement.
(69) “ Tax ” or “ Taxes ” has the meaning set forth in the Tax Matters Agreement.
(70) “ Tax Authority ” has the meaning set forth in the Tax Matters Agreement.
(71) “ Tax Benefit ” has the meaning set forth in the Tax Matters Agreement.
(72) “ Tax Contest ” has the meaning set forth in the Tax Matters Agreement.
(73) “ Tax Matters Agreement ” means the Tax Matters Agreement entered into on the date of this Agreement by and among Citrix, SpinCo and LogMeIn.
(74) “ Tax Records ” has the meaning set forth in the Tax Matters Agreement.
 
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(75) “ Tax Return ” has the meaning set forth in the Tax Matters Agreement.
(76) “ Third Party ” means any Person other than the Parties or any of their respective Subsidiaries.
(77) “ Transaction Agreement ” means each of this Agreement, the Merger Agreement, the Ancillary Agreements and all Conveyance and Assumption Instruments.
(78) “ Transferred Leased Real Property ” means the real property leased by Citrix or any of its Subsidiaries as tenant scheduled pursuant to Section 4.12(a) of the Merger Agreement, together with all fixtures and improvements thereon.
(79) “ Transferred Owned Real Property ” means the real property owned or purported to be owned by Citrix or any of its Subsidiaries scheduled pursuant to Section 4.12(b) of the Merger Agreement, together with all fixtures and improvements thereon.
(80) “ Transition Services Agreement ” means the Transition Services Agreement to be entered into prior to the Distribution Effective Time by and among Citrix, SpinCo and LogMeIn, substantially in the form set forth in Exhibit D .
Section 1.2 References; Interpretation . In this Agreement, except to the extent otherwise provided or that the context otherwise requires:
(a) when a reference is made in this Agreement to Article, Section, Exhibit and Schedule such reference is to an Article and Section of, and Exhibit and Schedule to, this Agreement;
(b) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;
(c) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”;
(d) the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;
(e) all terms defined in this Agreement have the defined meanings when used in any certificate or other document delivered or made available pursuant hereto, unless otherwise defined therein;
(f) references to “day” or “days” are to calendar days;
 
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(g) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms;
(h) references to a Person are also to its successors and permitted assigns;
(i) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day;
(j) references to sums of money are expressed in lawful currency of the United States of America, and “$” refers to U.S. dollars;
(k) references to any “statute” or “regulation” are to such statute or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, include any rules and regulations promulgated under such statute) and to any “section of any statute or regulation” include any successor to such section;
(l) the word “or” shall not be exclusive;
(m) reference in this Agreement to any time shall be to Eastern time unless otherwise expressly provided herein; and
(n) references in this Agreement to “Citrix” shall also be deemed to refer to the applicable member of the Citrix Group, references to “SpinCo” shall also be deemed to refer to the applicable member of the SpinCo Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by Citrix or SpinCo shall be deemed to require Citrix or SpinCo, as the case may be, to cause the applicable members of the Citrix Group or the SpinCo Group, respectively, to take, or refrain from taking, any such action.
ARTICLE II 
THE SEPARATION
Section 2.1 Restructuring; Transfer of Assets; Assumption of Liabilities .
(a) Internal Reorganization . At or prior to the Distribution Effective Time, to the extent not already completed, each of Citrix and SpinCo shall, and shall cause their respective Subsidiaries to, take such steps (which may include transfers of shares or other equity interests, formation of new entities or declarations of dividends) as may be required to effect the Internal Reorganization in accordance with the Steps Plan and the terms of this Agreement.
 
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(b) Transfer of Assets and Assumption of Liabilities . Except as otherwise expressly provided in this Agreement or in any Ancillary Agreement, and except to the extent previously effected pursuant to the Internal Reorganization, upon the terms and subject to the conditions set forth in this Agreement, effective as of immediately prior to the Distribution Effective Time:
(i) Citrix shall, and shall cause the applicable members of the Citrix Group to, contribute, assign, transfer, convey and deliver (“ Transfer ”) to SpinCo or the applicable SpinCo Designees, and SpinCo or such SpinCo Designees shall accept from Citrix and the applicable members of the Citrix Group, all of Citrix’s and each such Citrix Group member’s respective right, title and interest in and to all SpinCo Assets held by Citrix or a member of the Citrix Group (it being understood that if any SpinCo Asset shall be held by a Person all of the outstanding equity of which is included in the SpinCo Assets to be Transferred pursuant to this Section 2.1(b)(i) , such SpinCo Asset may be considered to be so Transferred to SpinCo or the applicable SpinCo Designee as a result of the Transfer of all of the equity interests in such Person from Citrix or the applicable member(s) of the Citrix Group to SpinCo or the applicable SpinCo Designee).
(ii) SpinCo shall, and shall cause the applicable members of the SpinCo Group to, Transfer to Citrix or the applicable Citrix Designees, and Citrix or such Citrix Designees shall accept from SpinCo and the applicable members of the SpinCo Group, all of SpinCo’s and such SpinCo Group member’s respective right, title and interest in and to all Excluded Assets held by SpinCo or a member of the SpinCo Group (it being understood that if any Excluded Asset shall be held by a Person all of the outstanding equity of which is included in the Excluded Assets to be Transferred pursuant to this Section 2.1(b)(ii) , such Excluded Asset may be considered to be so Transferred to Citrix as a result of the Transfer of all of the equity interests in such Person from SpinCo or the applicable member(s) of the SpinCo Group to Citrix or the applicable Citrix Designee).
(iii) Assumption of Liabilities . (A) Citrix shall, or shall cause another member of the Citrix Group to, Transfer to SpinCo or the applicable SpinCo Designees, and SpinCo shall, or shall cause another member of the SpinCo Group to, accept, assume (or, as applicable, retain) and perform, discharge and fulfill, in accordance with their respective terms (“ Assume ”), all of the SpinCo Liabilities and (B) SpinCo shall, or shall cause another member of the SpinCo Group to, Transfer to Citrix or the applicable Citrix Designees, and Citrix shall, or shall cause another member of the Citrix Group to, Assume all of the Excluded Liabilities, in each case regardless of (1) when or where such Liabilities arose or arise, (2) where or against whom such Liabilities are asserted or determined, (3) whether such Liabilities arise from or are alleged to arise from negligence, gross negligence, recklessness, violation of Law, willful misconduct, bad faith, fraud or misrepresentation by any member of the Citrix Group or the SpinCo Group, as the case may be, or any of their past or present respective directors, officers, employees, or agents, (4) which Person is named in any Action associated with any Liability and (5) whether the facts on which such Liabilities are based occurred prior to, on or after the date hereof.
 
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(c) In the event that at any time or from time to time (whether prior to, at or after the Distribution Effective Time), any member of the Citrix Group or the SpinCo Group is the owner of, receives or otherwise comes to possess any Asset (including the receipt of payments made pursuant to Contracts and proceeds from accounts receivable) or Liability that is allocated to any Person that is a member of the other Group pursuant to this Agreement or any Ancillary Agreement (except in the case of any acquisition of Assets from the other Party for value subsequent to the Distribution Effective Time), such member of the Citrix Group or the SpinCo Group, as applicable, shall promptly Transfer, or cause to be Transferred, such Asset or Liability to the Person so entitled thereto; provided , however , that the provisions of this Section 2.1(c) are not intended to, and shall not, be deemed to constitute an authorization by any Party to permit the others to accept service of process on its behalf, and no Party is or shall be deemed to be the agent of any other Party for service of process purposes. Prior to any such Transfer, such Asset or Liability shall be held in accordance with Section 2.4(c) .
(d) In furtherance of the Separation (including the Internal Reorganization), subject to the provisions of Section 2.4 , Citrix shall, and shall cause the applicable members of the Citrix Group and the applicable members of the SpinCo Group to, execute and deliver prior to the Distribution Effective Time all Conveyance and Assumption Instruments as may be necessary to effect the Internal Reorganization and the Transfers of the SpinCo Assets, the SpinCo Liabilities, the Excluded Assets and the Excluded Liabilities, as applicable, in accordance with the terms of this Agreement. The Parties agree that each Conveyance and Assumption Instrument shall be in a form consistent with the terms and conditions of this Agreement or the applicable Ancillary Agreement(s) with such provisions as are required by applicable Law in the jurisdiction in which the relevant Assets or Liabilities are located.
(e) Citrix hereby waives compliance by itself and each and every member of the Citrix Group with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the Transfer or sale of any or all of the Excluded Assets to Citrix or any member of the Citrix Group.
(f) SpinCo hereby waives compliance by itself and each and every member of the SpinCo Group with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the Transfer or sale of any or all of the SpinCo Assets to SpinCo or any member of the SpinCo Group.
(g) For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, nothing in this Agreement is intended to supersede or otherwise alter the allocation of cash and cash equivalents and working capital to the SpinCo Group pursuant to and in accordance with Section 3.05 of the Merger Agreement.
Section 2.2 Intercompany Accounts and Intercompany Agreements .
(a) Each Intercompany Account shall be satisfied, settled or otherwise terminated by the relevant members of the Citrix Group and the SpinCo Group no later than the Distribution Effective Time with no further liability of any member of either the SpinCo Group or the Citrix Group with respect thereto by (i) one or a related series of distributions of or contributions to capital, (ii) payment by the relevant obligor to the relevant obligee or (iii) dividends or a combination of the foregoing, in each case as determined by Citrix.
(b) Except as contemplated by the Transaction Agreements or the Steps Plan or as set forth on Schedule  2.2(b) , each Intercompany Agreement and all rights and obligations of the members of the SpinCo Group with respect thereto shall be terminated at or prior to the Distribution Effective Time, with no further Liability of any member of the SpinCo Group with respect thereto.
 
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Section 2.3 Limitation of Liability . Except as provided in this Section 2.3 and in Article V , neither Citrix nor SpinCo nor any member of their respective Groups shall have any Liability to the other or any member of its Group based upon, arising out of or resulting from any agreement, arrangement, course of dealing or understanding existing on or prior to the Distribution Effective Time other than pursuant to (i) any Transaction Agreement or (ii) any other Contract entered into in connection herewith or in order to consummate the transactions contemplated by the Transaction Agreements, and any such Liability, whether or not in writing, that is not reflected in any Transaction Agreement or other agreement entered into in connection with the transactions contemplated by the Transaction Agreements or in order to consummate the transactions contemplated by the Transaction Agreements, is hereby irrevocably cancelled, released and waived effective as of the Distribution Effective Time. No such terminated agreement, arrangement, course of dealing or understanding (including any provision thereof that purports to survive termination) shall be of any further force or effect after the Distribution Effective Time.
Section 2.4 Specified Consents .
(a) The Parties shall, as promptly as practicable after the date hereof and for a period of twelve (12) months following the Distribution Date, cooperate with each other and use their respective reasonable best efforts to obtain: (i) the Transfer or reissuance to SpinCo or a member of the SpinCo Group of all licenses, permits, registrations, approvals and authorizations of any member of the SpinCo Group or the Citrix Group issued or granted by any Governmental Authority prior to the Distribution Effective Time to the extent required to operate the SpinCo Business following the Distribution Date in the same manner as currently conducted by Citrix and its Subsidiaries; (ii) all Consents of any landlord under any Transferred Leased Real Property required to consummate the Separation or the Distribution; and (iii) Consents from the Third Parties identified on Schedule 2.4(a) and such other material Consents as may be reasonably requested by LogMeIn after the date hereof, provided , in the case of any such Consent requested by LogMeIn, that (A) such Consent is required to be obtained in connection with the Separation or the Merger, and (B) the failure to obtain such Consent would result in the loss of a monetary benefit by SpinCo or would otherwise adversely affect the SpinCo Business following the Distribution (each, a “ Specified Consent ”); provided further , that no Party nor any of their respective Subsidiaries shall be required to make any payment, incur any Liability or offer or grant any accommodation (financial or otherwise) to any Third Party, in each case, that is not otherwise required to be made by the applicable Party or any of its Subsidiaries pursuant to the terms of any existing Contract (including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees), to obtain any such Consent. For the avoidance of doubt, the required efforts
 
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and responsibilities of the Parties to seek the regulatory approvals or clearances contemplated by antitrust, competition or trade regulation filings, Section 7.06(f) of the Merger Agreement and Parent Stockholder Approval shall be governed by the Merger Agreement.
(b) If and to the extent that any Specified Consent with respect to any SpinCo Asset, SpinCo Liability, Excluded Asset or Excluded Liability has not been obtained prior to the Distribution Effective Time, then notwithstanding any other provision hereof, the Transfer to the SpinCo Group of any such SpinCo Asset or SpinCo Liability, or to the Citrix Group of any such Excluded Asset or Excluded Liability, shall, unless the Parties shall mutually otherwise determine, be automatically deemed deferred, and any such purported Transfer or Assumption shall be null and void until such time as all legal impediments are removed or such Consent has been obtained or made. Notwithstanding the foregoing, any such Asset or Liability shall continue to constitute a SpinCo Asset, a SpinCo Liability, an Excluded Asset or an Excluded Liability, as applicable, and be subject to Section 2.4(c) . If and when the legal or contractual impediments the presence of which caused the deferral of Transfer of any Asset or Liability pursuant to this Section 2.4(b) are removed or any Consents the absence of which caused the deferral of Transfer of any Asset or Liability pursuant to this Section 2.4(b) are obtained, the Transfer of the applicable Asset or Liability shall be effected promptly without further consideration in accordance with the terms of this Agreement or the applicable Ancillary Agreement(s) and shall, to the extent possible without the imposition of any undue cost on any Party and to the fullest extent permitted by Law, be deemed to have become effective as of the Distribution Effective Time. The obligations set forth in this Section 2.4(b) shall terminate on the twelve (12) month anniversary of the Distribution Date or, if earlier with respect to any Contract, upon the expiration of the term of the Contract (without any obligation to renew or extend).
(c) If the Transfer of any Asset or Liability intended to be Transferred is not consummated prior to or at the Distribution Effective Time as a result of the provisions of Section 2.4(b) or for any other reason (including any misallocated transfers subject to Section 2.1(c) ), then, insofar as reasonably possible (taking into account any applicable restrictions or considerations, in each case relating to the contemplated Tax treatment of the transactions contemplated hereby) and to the extent permitted by applicable Law, the Person retaining such Asset or Liability, as the case may be, (i) shall thereafter hold such Asset or Liability, as the case may be, in trust for the use and benefit and burden of the Person entitled thereto (and at such Person’s sole expense) until the consummation of the Transfer thereof (or as otherwise determined by the Parties); and (ii) with respect to any deferred Assets or Liabilities, use reasonable best efforts to develop and implement mutually acceptable arrangements to place the Person entitled to receive such Asset or Liability, insofar as reasonably possible, in substantially the same position as if such Asset or Liability had been Transferred as contemplated hereby and so that all the benefits and burdens relating to such Asset or Liability, including possession, use, risk of loss, potential for gain, dominion, ability to enforce the rights under or with respect to and control and command over such Asset or Liability, are to inure from and after the Distribution Effective Time to the applicable member or members of the Citrix Group or the SpinCo Group entitled to the receipt of such Asset or required to Assume such Liability. In furtherance of the foregoing, the Parties agree that to the fullest extent permitted by Law, (x) as of the Distribution Effective Time, each applicable member of Citrix Group and the SpinCo Group shall be deemed to have acquired complete and sole beneficial ownership over all of the Assets, together with all
 
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rights, powers and privileges incident thereto, and shall be deemed to have Assumed in accordance with the terms of this Agreement all of the Liabilities, and all duties, obligations and responsibilities incident thereto, which such Person is entitled to acquire or required to Assume pursuant to the terms of this Agreement and (y) each of Citrix and SpinCo shall, and shall cause the members of its respective Group to, (A) treat for all Tax purposes the deferred Assets as Assets having been Transferred to and owned by the Person entitled to such Assets not later than the Distribution Effective Time, (B) treat for all Tax purposes the deferred Liabilities as having been Assumed by the Person intended to be subject to such Liabilities not later than the Distribution Effective Time, and (C) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable Tax Law or good faith resolution of a Tax Contest). The obligations set forth in this Section 2.4(c) shall terminate on the twelve (12) month anniversary of the Distribution Date or, if earlier with respect to any Contract, upon the expiration of the term of the Contract (without any obligation to renew or extend). Any Person retaining an Asset or a Liability due to the deferral of the Transfer of such Asset or Liability, as the case may be, shall not be required, in connection with the foregoing, to make any payments, incur any Liability or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in any underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Third Party, except to the extent that the Person entitled to the Asset or responsible for the Liability, as applicable, agrees to reimburse and make whole the Person retaining an Asset or a Liability, to such Person’s reasonable satisfaction, for any payment or other accommodation made by the Person retaining an Asset or a Liability at the request of the Person entitled to the Asset or responsible for the Liability. Notwithstanding the foregoing in this Section 2.4(c) , each of Citrix and SpinCo agrees that in the event that any Third Party requests that the Party holding such Asset or Liability make a payment or offer or grant an accommodation to obtain a Consent and the other Party provides notice in writing to the Party holding such Asset or Liability that such other Party does not agree to reimburse or make whole the Party holding such Asset or Liability in connection therewith, the other Party shall not be entitled to the benefits of the provisions in, and the Party holding such Asset or Liability will not be obligated to take any efforts under, this Section 2.4(c) in respect of any SpinCo Asset, SpinCo Liability, Excluded Asset or Excluded Liability, as the case may be, which Transfer is subject to such Consent.
(d) The Parties shall use commercially reasonable efforts to separate the Shared Contracts into separate Contracts effective as of the Distribution Effective Time so that from and after such time, the SpinCo Group will be entitled to rights and benefits and shall Assume the related portion of Liabilities with respect to each Shared Contract to the extent related to the SpinCo Business and the Citrix Group will have the rights and benefits and shall Assume the related portion of Liabilities with respect to each Shared Contract to the extent related to the Citrix Business. Upon such separation of a Shared Contract, the separated Contract will be a SpinCo Asset or an Excluded Asset, as applicable. If the counterparty to any Shared Contract that is entitled under the terms of such Shared Contract to Consent to the separation of such Shared Contract has not provided such Consent, the terms of Section 2.4(c) shall apply to such Contract mutatis mutandis . For the avoidance of doubt, Citrix shall not be required to seek or obtain any Consent with respect to a Shared Contract (i) that is not a Specified Consent, and (ii) unless receipt of such Consent would be necessary for the SpinCo Group to have rights and benefits under such Shared Contract; provided further , that if and when any Consent with respect
 
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to a Shared Contract is obtained in accordance with this Section 2.4(d) , such Shared Contract will be separated in accordance with this Section 2.4(d) . The obligations set forth in this Section 2.4(d) shall terminate on the twelve (12) month anniversary of the Distribution Date or, if earlier with respect to any Shared Contract, upon the expiration of the term of the Shared Contract (without any obligation to renew or extend).
Section 2.5 Disclaimer of Representations and Warranties .
(a) EACH OF CITRIX (ON BEHALF OF ITSELF AND EACH MEMBER OF THE CITRIX GROUP) AND SPINCO (ON BEHALF OF ITSELF AND EACH MEMBER OF THE SPINCO GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, IN THE MERGER AGREEMENT OR ANY OTHER TRANSACTION AGREEMENT, AND EXCEPT IN THE CASE OF FRAUD WITH RESPECT TO THE MATTERS SPECIFICALLY ADDRESSED IN ARTICLE IV OR ARTICLE V OF THE MERGER AGREEMENT OR IN THIS AGREEMENT OR THE ANCILLARY AGREEMENTS, NO PARTY TO ANY SUCH AGREEMENT IS REPRESENTING OR WARRANTING IN ANY WAY, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, AS TO THE CONDITION OR THE VALUE OF ANY ASSETS OR BUSINESSES OR THE AMOUNT OF ANY LIABILITIES TRANSFERRED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS TO THE FREEDOM FROM ANY SECURITY INTERESTS OF ANY ASSETS OR LIABILITIES, AS TO NONINFRINGEMENT, VALIDITY OR ENFORCEABILITY CONCERNING ANY ASSETS, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR OTHER ASSET, INCLUDING ACCOUNTS RECEIVABLE, OR AS TO THE LEGAL SUFFICIENCY OF ANY CONTRIBUTION, ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER OR UNDER ANY TRANSACTION AGREEMENT TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF. EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN, THE MERGER AGREEMENT OR IN ANY OTHER TRANSACTION AGREEMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS IS, WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, BY MEANS OF A QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE) AND THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST AND (II) ANY NECESSARY CONSENTS ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.
(b) Each of Citrix (on behalf of itself and each member of the Citrix Group) and SpinCo (on behalf of itself and each member of the SpinCo Group) further understands and agrees that if the disclaimer of express or implied representations and warranties contained in Section 2.5(a) is held unenforceable or is unavailable for any reason under the Laws of any jurisdiction outside the United States or if, under the Laws of a jurisdiction outside the United States, both Citrix or any member of the Citrix Group, on the one hand, and SpinCo or any member of the SpinCo Group, on the other hand, are jointly or severally liable for any
 
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Excluded Liability or any SpinCo Liability, then the Parties intend that, notwithstanding any provision to the contrary under the Laws of such non-U.S. jurisdictions, the provisions of the Transaction Agreements (including the disclaimer of all representations and warranties, allocation of Liabilities among the Parties and their respective Subsidiaries, releases, indemnification and contribution of Liabilities) shall to the fullest extent permitted by Law prevail for any and all purposes among the Parties and their respective Subsidiaries.
Section 2.6 Cash Management . From the date of this Agreement until the Distribution, Citrix and its Subsidiaries shall be entitled to use, retain or otherwise dispose of all cash generated by the SpinCo Business and the SpinCo Assets or otherwise held by any member of the SpinCo Group. Subject to Section 3.05 of the Merger Agreement, all cash and cash equivalents held by any member of the SpinCo Group as of the Distribution Effective Time shall be a SpinCo Asset and all cash and cash equivalents held by any member of the Citrix Group as of the Distribution Effective Time shall be an Excluded Asset.
Section 2.7 Insurance . SpinCo acknowledges and agrees that, from and after the Distribution Effective Time, neither SpinCo nor any member of the SpinCo Group shall have any rights to or under any Policies of Citrix, other than (i) any insurance Policies acquired prior to the Distribution Effective Time directly by and in the name of SpinCo or a member of the SpinCo Group, (ii) as expressly provided in Section 5.5 or (iii) insurance Policies providing coverage on an occurrence basis, including defense and indemnity benefits attributable to or arising from or under such Policies (such policies or programs, the “ Pre-Closing Policies ”). Citrix, on behalf of itself and each member of the Citrix Group agrees that with respect to acts, omissions, events or circumstances relating to the SpinCo Business that occurred prior to the Effective Time and that are covered by Pre-Closing Policies under which the SpinCo Business was insured prior to the Effective Time, SpinCo and the members of the SpinCo Group may make claims under such Pre-Closing Policies subject to the terms and conditions of such Pre-Closing Policies and this Agreement; provided that the applicable member of the SpinCo group shall notify Citrix in writing of all such covered claims and shall be responsible for the amount of any deductibles, retentions, premium increases and other out-of-pocket costs and expenses incurred in connection with such claims and any uninsured or uncollectible amounts related to such claims. For the avoidance of doubt, except with respect to the Pre-Closing Policies, SpinCo acknowledges and agrees that, from and after the Distribution Effective Time the SpinCo Group and not any member of the Citrix Group shall be responsible for establishing any and all insurance programs required to comply with the SpinCo Group’s contractual obligations and such other Policies required by Law or as necessary or appropriate to operate the SpinCo Business, including with respect to general liability, workers’ compensation, directors’ and officers’ liability and fiduciary liability.
Section 2.8 Ancillary Agreements . In furtherance of the Separation, at or prior to the Distribution Effective Time each Party agrees that, from the date hereof through the Distribution Effective Time, it shall cooperate fully and negotiate in good faith with the other Parties in finalizing the schedules to and services to be provided under the Transition Services Agreement. Each of Citrix, SpinCo and LogMeIn shall deliver executed copies of the Transition Services Agreement, the Employee Matters Agreement and the IP License Agreement to the other Parties and use their reasonable best efforts to take, or cause to be taken, all appropriate action, to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all
 
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things necessary, proper or advisable under applicable Law to execute and deliver such other documents and other papers as may be required to carry out the provisions of this Agreement and to consummate and make effective the transactions contemplated by this Agreement, in each case, prior to the Distribution Effective Time. The Appendices to the Employee Matters Agreement set forth the additional and/or different agreements of the parties thereto with respect to compensation, benefits, employees, and related matters outside of the United States. From and after the date hereof, the Parties agree to reasonably cooperate to effect the provisions of the Employee Matters Agreement with respect to employees and employee-related matters outside of the United States. Prior to the Distribution Effective Time, Citrix shall complete such schedules in good faith, and otherwise consistent with the principles of the Employee Matters Agreement, subject to the approval of LogMeIn, which approval shall not be unreasonably withheld. To the extent required by applicable Law, SpinCo, a member of the SpinCo Group or LogMeIn, as appropriate, shall become a party to the applicable collective bargaining, works council, or similar arrangements with respect to SpinCo Employees outside the United States and shall comply with obligations thereunder from and after the Distribution Effective Time. Prior to the Distribution Effective Time, the Parties shall use their respective commercially reasonable efforts to engage in separation and integration planning with respect to the SpinCo Business; provided that no Party shall be required to take any such actions to the extent they would reasonably be expected to (A) jeopardize, or result in the loss or waiver of, any attorney-client or other legal privilege, (B) contravene any applicable Law, fiduciary duty or Third Party Contract or (C) result in the loss of protection of any proprietary information or Trade Secrets (as defined in the Merger Agreement) of such Party.
Section 2.9 Issuance of SpinCo Common Stock . On or before the Distribution Date, in connection with the Transfer of the SpinCo Assets and the Assumption of the SpinCo Liabilities as provided in this Agreement, SpinCo will issue and deliver to Citrix a number of shares of SpinCo Common Stock in book-entry form in an amount determined pursuant to Section 2.04(f) of the Merger Agreement.
ARTICLE III
THE DISTRIBUTION
Section 3.1 Form of Distribution .
(a) Citrix shall elect, in its sole discretion, to effect the Distribution in the form of either (i) the One-Step Spin-Off or (ii) the Exchange Offer, including any Clean-Up Spin-Off; provided , that Citrix shall make such election and notify Parent of its determination no later than August 31, 2016.
(b) If Citrix elects to effect the Distribution in the form of the One-Step Spin-Off, the Board of Directors of Citrix (or a committee of the Board of Directors of Citrix acting pursuant to delegated authority), in accordance with all applicable Laws and the rules and regulations of NASDAQ, shall set the Record Date and the Distribution Date, and Citrix shall establish appropriate procedures in connection with the Distribution, and shall declare, pay and otherwise effectuate the Distribution, in accordance with all applicable Laws and the rules and regulations of NASDAQ. In connection with the One-Step Spin-Off, all shares of SpinCo
 
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Common Stock held by Citrix as of immediately prior to the Distribution Effective Time will be distributed to Record Holders in the manner determined by Citrix and in accordance with Section 3.2 .
(c) If Citrix elects to effect the Distribution in the form of the Exchange Offer, subject to the terms and conditions of the Merger Agreement, Citrix shall determine the terms and conditions of the Exchange Offer, including the number of shares of SpinCo Common Stock that will be offered for each validly tendered share of Citrix Common Stock, the period during which the Exchange Offer will remain open, the procedures for the tender and exchange of shares and all other terms and conditions of the Exchange Offer, which terms and conditions shall comply with all applicable Laws and the rules and regulations of NASDAQ. In the event Citrix’s stockholders subscribe for less than all of the SpinCo Common Stock in the Exchange Offer, Citrix shall consummate the Clean-Up Spin-Off on the Distribution Date immediately following consummation of the Exchange Offer, and the Record Date for the Clean-Up Spin-Off shall be set as of such date in the same manner as provided in Section 3.1(b) . The terms and conditions of any Clean-Up Spin-Off shall be as determined by Citrix (provided that any shares of SpinCo Common Stock that are not subscribed for in the Exchange Offer must be distributed to Citrix’s stockholders in the Clean-Up Spin-Off) and shall comply with all applicable Laws and the rules and regulations of NASDAQ.
Section 3.2 Manner of Effecting Distribution .
(a) If the Distribution is effected by means of the One-Step Spin-Off, subject to the terms and conditions thereof, each Record Holder shall be entitled to receive a number of shares of SpinCo Common Stock equal to the number of shares of SpinCo Common Stock held by Citrix as of immediately prior to the Distribution Effective Time, multiplied by a fraction, the numerator of which is the number of shares of Citrix Common Stock held by the Record Holder on the Record Date and the denominator of which is the total number of shares of Citrix Common Stock outstanding on the Record Date (excluding treasury shares held by Citrix).
(b) If the Distribution is effected by means of the Exchange Offer, subject to the terms and conditions established pursuant to Section 3.1(c) , each Citrix stockholder may elect in the Exchange Offer to exchange a number of shares of Citrix Common Stock held by such Citrix stockholder for shares of SpinCo Common Stock at such exchange ratio and subject to such other terms and conditions as may be determined by Citrix and set forth in the registration statement to register under the Securities Act or the Exchange Act, as applicable, the SpinCo Common Stock to be distributed in the Distribution. The terms and conditions of any Clean-Up Spin-Off shall be as determined by Citrix, subject to the provisions of Section 3.2(a) , mutatis mutandis , and in compliance with all applicable Laws and the rules and regulations of NASDAQ .
(c) No Party, nor any of its Affiliates, shall be liable to any Person in respect of any shares of SpinCo Common Stock, or distributions in respect thereof, that are delivered to a public official in accordance with the provisions of any applicable escheat, abandoned property or similar applicable Law.
 
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Section 3.3 Conditions to Distribution . The obligation of Citrix to consummate the Distribution is subject to the prior or simultaneous satisfaction or, to the extent permitted by applicable Law, waiver in accordance with the Merger Agreement of each of the conditions to the obligation of the parties to the Merger Agreement to consummate the Merger and effect the other transactions contemplated by the Merger Agreement (other than those conditions that by their nature are to be satisfied contemporaneously with or immediately following the Distribution). Notwithstanding anything in this Agreement to the contrary, the Parties agree that the Distribution Effective Time shall occur on the same date as the Closing (as defined in the Merger Agreement), as determined in accordance with the applicable terms and conditions of the Merger Agreement.
ARTICLE IV
CERTAIN COVENANTS
Section 4.1 Further Assurances . Subject to the terms and conditions of this Agreement, each Party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other Parties in doing or causing to be done, all things necessary, proper or advisable under applicable Laws to consummate the transactions contemplated hereby as soon as practicable after the date hereof and as may be otherwise required to consummate and make effective the transactions contemplated by this Agreement.
Section 4.2 Removal of Excluded Assets .
(a) Except as may be otherwise provided in the Transition Services Agreement, or otherwise agreed to by the Parties, all tangible SpinCo Assets that are located at any Non-SpinCo Facilities shall be delivered by the applicable member of the Citrix Group, prior to the Distribution Effective Time or as promptly thereafter as practicable, to the applicable SpinCo Facility, at Citrix’s expense. Citrix shall deliver any SpinCo Assets that remain at any Non-SpinCo Facilities in connection with the performance of services under the Transition Services Agreement to the applicable SpinCo Facility as promptly as practicable after the termination of such service pursuant to the same terms and conditions stated in the immediately preceding sentence.
(b) Except as may be otherwise provided in the Transition Services Agreement or otherwise agreed to by the Parties, all tangible Excluded Assets that are located at any SpinCo Facilities shall be moved as promptly as practicable after the Distribution Effective Time from such facilities, at Citrix’s expense and, following the Distribution Effective Time, in a manner so as not to unreasonably interfere with the operations of any member of the SpinCo Group and to not cause damage to such SpinCo Facility, and such member of the SpinCo Group shall provide reasonable access to such SpinCo Facility to effectuate such movement. Citrix shall remove any Excluded Assets that remain at any such SpinCo Facilities in connection with the performance of services under the Transition Services Agreement as promptly as practicable after the termination of such service pursuant to the same terms and conditions stated in the immediately preceding sentence.
(c) Except as may be otherwise provided in the Transition Services Agreement, the IP License Agreement or otherwise agreed to by the Parties in writing, all Software and other data, in each case, other than SpinCo Assets shall be deleted or otherwise removed prior to the Distribution Effective Time from any of the information technology and computer hardware and equipment described on Schedule 1.1(57)(x) .
 
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Section 4.3 Citrix Marks . SpinCo agrees that, except as set forth in this Section 4.3 and in the IP License Agreement, after the Distribution Effective Time, the SpinCo Group will have, no right, title, interest, license or any other right whatsoever in the Citrix Marks and that no member of the Citrix Group have assigned such right, title, interest, license or other right to SpinCo or the SpinCo Group. For a period of six (6) months following the Distribution Date, the SpinCo Group Entities shall have the right to continue to use the marketing and promotional materials, invoices, business cards, schedules, displays, signs, stationery, technical guidelines, product manuals, packing materials and other supplies and similar materials, that were previously created and included in the SpinCo Assets and that incorporate the Citrix Marks, in the manner such materials were used in the SpinCo Business prior to the Distribution Date.
ARTICLE V
INDEMNIFICATION
Section 5.1 Release of Pre-Distribution Claims .
(a) Except as provided in Section 5.1(b) , effective as of the Distribution Effective Time:
(i) Citrix, for itself and each member of the Citrix Group and, to the extent permitted by Law, all Persons who at any time prior to the Distribution Effective Time were directors, officers, partners, managers, agents or employees of any member of the Citrix Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, does hereby remise, release and forever discharge the SpinCo Indemnitees from any and all Liabilities, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, in each case, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Distribution Effective Time, including in connection with the Separation and the Distribution and any of the other transactions contemplated hereunder and under the Transaction Agreements. Without limitation, the foregoing release includes a release of any rights and benefits with respect to such Liabilities that Citrix and each member of the Citrix Group, and their respective successor and assigns, now has or in the future may have conferred upon them by virtue of any statute or common law principle which provides that a general release does not extend to claims which a party does not know or suspect to exist in its favor at the time of executing the release, if knowledge of such claims would have materially affected such party’s settlement with the obligor. In this connection, Citrix hereby
 
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acknowledges that it is aware that factual matters now unknown to it may have given or may hereafter give rise to Liabilities that are presently unknown, unanticipated and unsuspected, and it further agrees that this release has been negotiated and agreed upon in light of that awareness and it nevertheless hereby intends to release the SpinCo Indemnitees from the Liabilities described in the first sentence of this Section 5.1(a)(i) .
(ii) SpinCo, for itself and each member of the SpinCo Group and, to the extent permitted by Law, all Persons who at any time prior to the Distribution Effective Time were directors, officers, partners, managers, agents or employees of any member of the SpinCo Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, does hereby remise, release and forever discharge the Citrix Indemnitees from any and all Liabilities, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, in each case, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Distribution Effective Time, including in connection with the Separation and the Distribution and any of the other transactions contemplated hereunder and under the Transaction Agreements. Without limitation, the foregoing release includes a release of any rights and benefits with respect to such Liabilities that SpinCo and each member of the SpinCo Group, and their respective successor and assigns, now has or in the future may have conferred upon them by virtue of any statute or common law principle which provides that a general release does not extend to claims which a party does not know or suspect to exist in its favor at the time of executing the release, if knowledge of such claims would have materially affected such party’s settlement with the obligor. In this connection, SpinCo hereby acknowledges that it is aware that factual matters now unknown to it may have given or may hereafter give rise to Liabilities that are presently unknown, unanticipated and unsuspected, and it further agrees that this release has been negotiated and agreed upon in light of that awareness and it nevertheless hereby intends to release the Citrix Indemnitees from the Liabilities described in the first sentence of this Section 5.1(a)(ii) .
(b) Nothing contained in Section 5.1(a) shall: (i) limit or otherwise affect any Person’s rights or obligations pursuant to or contemplated by, or ability to enforce, any Transaction Agreement, in each case in accordance with its terms, including (A) the obligation of SpinCo to Assume and satisfy the SpinCo Liabilities, (B) the obligation of Citrix to Assume and satisfy the Excluded Liabilities, (C) the obligations of Citrix and its applicable Affiliates to Transfer the SpinCo Assets in accordance with this Agreement, (D) the obligations of SpinCo and its applicable Affiliates to Transfer the Excluded Assets in accordance with this Agreement or (E) the obligations of Citrix and SpinCo to perform their respective obligations and indemnify each other under this Agreement, including pursuant to this Article V , the Merger Agreement and the other Transaction Agreements; (ii) apply to any Liability the release of which would result in the release of any Person other than a Person expressly released pursuant to Section 5.1(a) ; (iii) release any Person from, or waive any rights under, any Liability provided in
 
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or resulting from any Contract to which any member of the SpinCo Group, on the one hand, and any Citrix Group, on the other hand, is a party, that does not terminate as of the Distribution Date in accordance with Section 2.3 or (iv) release any SpinCo Employee (as defined in the Merger Agreement) or SpinCo Contractor (as defined in the Merger Agreement) from any Contract with any member of the Citrix Group to the extent related to any Excluded Asset.
(c) Following the Distribution Effective Time, Citrix shall not, and shall cause each other member of the Citrix Group not to, make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution, recovery or any indemnification, against LogMeIn, SpinCo or any of their respective Affiliates, or any other Person released with respect to any Liabilities released pursuant to Section 5.1(a)(i) . Following the Distribution Effective Time, neither LogMeIn nor SpinCo shall, and shall cause each of their respective controlled Affiliates not to, make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution, recovery or any indemnification, against Citrix or any of its Affiliates, or any other Person released with respect to any Liabilities released pursuant to Section 5.1(a)(ii) .
Section 5.2 Indemnification by Citrix . Without limiting the indemnity provisions of any other Ancillary Agreements, from and after the Distribution Effective Time, Citrix shall and shall cause the other members of the Citrix Group, on a joint and several basis, to indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the SpinCo Indemnitees from and against, and shall reimburse such SpinCo Indemnitees with respect to, any and all Indemnifiable Losses of the SpinCo Indemnitees to the extent arising out of, resulting from or related to (without duplication): (a) the Excluded Liabilities, including the failure of any member of the Citrix Group to Assume any such Excluded Liabilities, and (b) any breach by Citrix or any other member of the Citrix Group of any obligations to be performed by such Persons pursuant to this Agreement subsequent to the Distribution Effective Time, in which case any such indemnification claims shall be made hereunder (each, a “ SpinCo Claim ”).
Section 5.3 Indemnification by SpinCo . Without limiting the indemnity provisions of any other Ancillary Agreements, from and after the Distribution Effective Time, SpinCo shall, and LogMeIn shall cause SpinCo and each of the other members of the SpinCo Group, on a joint and several basis, to indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the Citrix Indemnitees from and against, and shall reimburse such Citrix Indemnitees with respect to, any and all Indemnifiable Losses of the Citrix Indemnitees to the extent arising out of, resulting from or related to (without duplication): (a) the SpinCo Liabilities, including the failure of any member of the SpinCo Group to Assume any such SpinCo Liabilities, and (b) any breach by SpinCo or any other member of the SpinCo Group of any obligations to be performed by such Persons pursuant to this Agreement subsequent to the Distribution Effective Time, in which case any such indemnification claims shall be made hereunder (each, a “ Citrix Claim ”).
Section 5.4 Procedures for Indemnification .
(a) Direct Claims . Other than with respect to Third Party Claims, which shall be governed by Section 5.4(b) :
(i) if a SpinCo Indemnitee has made a determination that it is or may be entitled to indemnification in respect of any SpinCo Claim, the SpinCo Indemnitee shall so notify Citrix as promptly as reasonably possible after becoming aware of the existence of such SpinCo Claim; and
(ii) if a Citrix Indemnitee has made a determination that it is or may be entitled to indemnification in respect of any Citrix Claim, the Citrix Indemnitee shall so notify SpinCo as promptly as reasonably possible after becoming aware of the existence of such Citrix Claim (any such claim made pursuant to Section 5.4(a)(i) or this Section 5.4(a)(ii) , a “ Direct Claim ”).
 
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Each such notice shall be in writing and shall describe in reasonable detail the basis for the claim for indemnification hereunder and set forth, to the extent known, the estimated amount of Indemnifiable Losses for which indemnification may be sought hereunder relating to such claim and, to the extent practicable, the method of computation thereof; provided , however , that the failure to provide (or delay in providing) such written notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure or delay.
(b) Third Party Claims . If an Indemnitee receives notice or otherwise learns of the assertion by any Third Party of any claim or demand or of the commencement by any Third Party of any Action as to which an Indemnifying Party may be obligated to provide indemnification pursuant to this Agreement (a “ Third Party Claim ”), Citrix (on behalf of the Citrix Indemnitees) or SpinCo (on behalf of the SpinCo Indemnitees), as applicable (such claimant, the “ Claiming Party ”), shall notify the Indemnifying Party of the Third Party Claim in writing and in reasonable detail describing the basis for any claim for indemnification hereunder and including copies of all notices and documents received by the Claiming Party (and any or all of its Indemnitees) from Third Parties relating to the Third Party Claim (subject to any bona fide claims of attorney-client privilege) promptly (and in any event with twenty (20) days after receipt by such Indemnitee of written notice of the Third Party Claim); provided , however , that the failure to provide notice of any such Third Party Claim pursuant to this sentence shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure. Thereafter, the Claiming Party shall deliver to the Indemnifying Party, promptly (and in any event within five (5) Business Days) after the receipt thereof by the Claiming Party (or any of its Indemnitees), copies of any and all additional written notices and documents (including court papers) received by the Claiming Party (or any of its Indemnitees) from Third Parties relating to the Third Party Claim, subject to any bona fide claims of attorney-client privilege.
(c) Subject to the provisions of this Section 5.4(c) , the Indemnifying Party has the right, exercisable by written notice to the Claiming Party within thirty (30) days after receipt of notice from the Claiming Party pursuant to Section 5.4(b) , to assume and conduct the defense (including settlement) of such Third Party Claim in accordance with the limits set forth in this Agreement with counsel selected by the Indemnifying Party and reasonably acceptable to the applicable Indemnitees. If the Indemnifying Party does not assume the defense
 
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of a Third Party Claim in accordance with this Section 5.4(c) , the Indemnitee may defend the Third Party Claim. If the Indemnifying Party has assumed the defense of a Third Party Claim as provided in this Section 5.4(c) , the Indemnifying Party shall not be liable for any legal expenses subsequently incurred by the Indemnitee in connection with the defense of the Third Party Claim; provided , however , that if (w) in the reasonable judgment of the Indemnitee, after consultation with outside counsel, there exists a conflict of interest between the Indemnifying Party and the applicable Indemnitee(s) in the defense of such Third Party Claim by the Indemnifying Party, (x) the party making such Third Party Claim is a Governmental Authority with regulatory or other authority over the Indemnitee or any of its material assets, (y) the Third Party Claim seeks injunctive or other nonmonetary relief that, if granted, would reasonably be expected to have a material and adverse effect on the Indemnitee’s business or (z) the Indemnifying Party fails to take reasonable steps necessary to defend diligently such Third Party Claim, the Indemnitee may assume its own defense, and the Indemnifying Party shall be liable for all reasonable costs or expenses paid or incurred in connection with such defense. The Indemnifying Party or the Indemnitee, as the case may be, has the right to participate in (but, subject to the prior sentence, not control), at its own expense, the defense of any Third Party Claim that the other Person is defending as provided in this Agreement. The Indemnifying Party, if it has assumed the defense of any Third Party Claim as provided in this Agreement, may not, without the prior written consent of the Indemnitee, consent to a settlement or compromise of, or the entry of any judgment arising from, any such Third Party Claim that (I) does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnitee of a complete release from all liability in respect of such Third Party Claim, (II) provides for injunctive or other nonmonetary relief affecting the Indemnitee or any of its Affiliates, or for monetary relief with respect to which the Indemnitee and its Affiliates are not entitled to indemnification under this Agreement, or (III) in the reasonable opinion of the Indemnitee, would otherwise materially and adversely affect the Indemnitee or any of its Affiliates. The Indemnitee may consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Party Claim, the defense of which has not been assumed by the Indemnifying Party, only with the prior written consent of the Indemnifying Party, not to be unreasonably withheld, conditioned or delayed.
(d) The Claiming Party and the Indemnifying Party shall (and the Claiming Party shall cause the applicable Indemnitee(s) to) make reasonably available to each other and their respective agents and representatives all relevant information available to them that are necessary or appropriate for the defense of any Third Party Claim, subject to any bona fide claims of attorney-client privilege, and each of the Indemnifying Party and the Claiming Party shall use its reasonable efforts to assist, and to cause the employees and counsel of such party to assist, in the defense of such Third Party Claim. If a Party asserts its right to participate in the defense of any Third Party Claim, the Party controlling the defense and investigation of such Third Party Claim shall act in good faith and reasonably consult and cooperate with the Indemnitee or the Indemnifying Party, as the case may be, in connection with any appearances, briefs, arguments and proposals made or submitted by or on behalf of any party in connection with the Third Party Claim (including considering in good faith all reasonable additions, deletions or changes suggested by the Indemnitee or the Indemnifying Party, as the case may be, in connection any filings made with any Governmental Authority or proposals to the Third Party claimant in connection therewith).
 
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(e) With respect to any Third Party Claim that implicates both Parties in any material respect due to the allocation of Liabilities, responsibilities for management of defense and related indemnities pursuant to this Agreement or any of the Transaction Agreements, the Parties agree to use commercially reasonable efforts to cooperate fully and maintain a joint defense (in a manner that, to the extent reasonably practicable, will preserve for all Parties any Privilege with respect thereto).
(f) Notwithstanding anything to the contrary set forth in this Section 5.4 , Citrix may elect to have exclusive authority and control over the investigation, prosecution, defense and appeal of any Specified Claim regardless of whether the Specified Claim constitutes a SpinCo Liability. To the extent SpinCo or any of its Affiliates is named as a target or defendant in any Specified Claim, SpinCo shall provide prompt notice to Citrix of such Specified Claim. To the extent SpinCo may be obligated to provide indemnification pursuant to this Agreement or SpinCo or any of its Affiliates is named as a target or defendant with respect to any Specified Claim, (i) Citrix shall consult with SpinCo on a regular basis with respect to strategy and developments with respect to such Specified Claim, (ii) SpinCo shall have the right to participate in (but not control) the defense of the Specified Claim and (iii) Citrix must obtain the written consent of SpinCo, such consent not to be unreasonably withheld, conditioned or delayed, to settle or compromise or consent to the entry of judgment with respect to such Specified Claim if such settlement, consent or judgment would (i) provide for injunctive or other nonmonetary relief against SpinCo or any of its Affiliates, or for monetary relief with respect to which the SpinCo and its Affiliate are not entitled to indemnification under this Agreement, or (ii) in the reasonable opinion of SpinCo, otherwise adversely affect SpinCo or any of its Affiliates. After any such compromise, settlement, consent to entry of judgment or entry of judgment with respect to any such Specified Claim, Citrix and SpinCo shall agree upon a reasonable allocation to SpinCo and SpinCo shall be responsible for or receive, as the case may be, SpinCo’s proportionate share of any such compromise, settlement, consent or judgment attributable to the SpinCo Business, the SpinCo Assets or the SpinCo Liabilities, including its proportionate share of the reasonable costs and expenses associated with defending same.
(g) The provisions of this Section 5.4 (other than this Section 5.4(g) ) and Section 5.7 (other than Section 5.7(g) ) shall not apply to Taxes (Taxes being governed by the Tax Matters Agreement).
Section 5.5 Indemnification Obligations Net of Insurance Proceeds and Other Amounts .
(a) Any recovery by any Party (including any of its Indemnitees) for any Indemnifiable Loss subject to indemnification pursuant to this Article V shall be calculated (i) net of Insurance Proceeds actually received by such Party (or any of its Indemnitees) with respect to any Indemnifiable Loss and (ii) net of any proceeds actually received by such Party (or any of its Indemnitees) from any Third Party with respect to any such Liability corresponding to the Indemnifiable Loss (“ Third Party Proceeds ”), in the case of (i) and (ii) net of the costs of collection thereof and any increase in premium attributable thereto under applicable Third Party Policies. Accordingly, the amount which any Indemnifying Party is required to pay pursuant to this Article V to any Indemnitee pursuant to this Article V shall be reduced by any Insurance Proceeds or Third Party Proceeds theretofore
 
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actually recovered by or on behalf of the Indemnitee corresponding to the related Indemnifiable Loss. If an Indemnitee receives a payment required by this Agreement from an Indemnifying Party corresponding to any Indemnifiable Loss (an “ Indemnity Payment ”) and subsequently receives Insurance Proceeds or Third Party Proceeds, then the Indemnitee shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if the Insurance Proceeds or Third Party Proceeds had been received, realized or recovered before the Indemnity Payment was made.
(b) Insurers and Other Third Parties Not Relieved . The Parties hereby agree that an insurer or other Third Party that would otherwise be obligated to pay any amount shall not be relieved of the responsibility with respect thereto or have any subrogation rights with respect thereto by virtue of any provision contained in this Agreement or any Transaction Agreement, and that no insurer or any other Third Party shall be entitled to a “windfall” (e.g., a benefit they would not otherwise be entitled to receive, or the reduction or elimination of an insurance coverage obligation that they would otherwise have, in the absence of the indemnification or release provisions) by virtue of any provision contained in this Agreement or any Transaction Agreement. Each Party shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to collect or recover, or allow the Indemnifying Party to collect or recover, or cooperate with each other in collecting or recovering, any Insurance Proceeds that may be collectible or recoverable respecting the Liabilities for which indemnification may be available under this Article V . Notwithstanding the foregoing, an Indemnifying Party may not delay making any Indemnity Payment required under the terms of this Agreement, or otherwise satisfying any indemnification obligation, pending the outcome of any Actions to collect or recover Insurance Proceeds, and an Indemnitee need not attempt to collect any Insurance Proceeds prior to making a claim for indemnification or receiving any Indemnity Payment otherwise owed to it under this Agreement or any Transaction Agreement.
Section 5.6 Contribution . If the indemnification provided for in this Article V is unavailable for any reason to an Indemnitee (other than failure to provide notice with respect to any Third Party Claims in accordance with Section 5.4(b) ) in respect of any Indemnifiable Loss, then the Indemnifying Party shall, in accordance with this Section 5.6 , contribute to the Indemnifiable Losses incurred, paid or payable by such Indemnitee as a result of such Indemnifiable Loss in such proportion as is appropriate to reflect the relative fault of SpinCo and each other member of the SpinCo Group, on the one hand, and Citrix and each other member of the Citrix Group, on the other hand, in connection with the circumstances which resulted in such Indemnifiable Loss. Solely for purposes of determining relative fault pursuant to this Section 5.6 : (i) any fault associated with the conduct of the Citrix Business prior to the Distribution Effective Time shall be deemed to be allocated to Citrix and the other members of the Citrix Group, and no such fault shall be deemed to be the fault of SpinCo or any other member of the SpinCo Group; and (ii) any fault associated with the conduct of the SpinCo Business prior to the Distribution Effective Time shall be deemed to be the fault of SpinCo and the other members of the SpinCo Group, and no such fault shall be deemed to be the fault of Citrix or any other member of the Citrix Group.
 
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Section 5.7 Additional Matters; Survival of Indemnities .
(a) The agreements contained in this Article V shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnitee; and (ii) the knowledge by the Indemnitee of Indemnifiable Losses for which it might be entitled to payment hereunder. The agreements contained in this Article V shall survive the Distribution.
(b) The rights and obligations of each Party and their respective Indemnitees under this Article V shall survive (i) the sale or other Transfer by any Party or its respective Subsidiaries of any Assets or businesses or the assignment by it of any Liabilities and (ii) any merger, consolidation, business combination, sale of all or substantially all of the Assets, restructuring, recapitalization, reorganization or similar transaction involving either Party or any of its Subsidiaries.
(c) The Parties intend and hereby agree that this Article V sets forth the exclusive remedy of the Parties and the parties to the Conveyance and Assumption Instruments, as applicable, following the Distribution Effective Time for any Liabilities arising out of any breach of the covenants or agreements contained in this Agreement (including with respect to Indemnifiable Losses arising out of, resulting from or related to Excluded Liabilities or SpinCo Liabilities, as the case may be) or any Conveyance and Assumption Instrument, except that nothing contained in this Section 5.7(c) shall impair any right of any Person (a) to specific performance under this Agreement or (b) to equitable relief as provided in Section 8.17 or in any other Transaction Agreement. In furtherance of the foregoing, each Party hereby waives, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action it may have against the other Parties in connection herewith or any Conveyance and Assumption Instrument or arising under or based upon any Law other than the right to seek indemnity pursuant to this Article V and the right to seek the relief described in clauses (a) or (b) of the preceding sentence. Each Party shall cause its Representatives to comply with this Section 5.7(c) .
(d) Any amounts payable pursuant to this Article V shall be paid without duplication, and in no event shall any party be indemnified or receive contribution under different provisions of any Transaction Agreement for the same Liabilities (including to the extent specifically included in the calculation of the Final Net Adjustment Amount).
(e) Any amount to be paid or reimbursed by an Indemnifying Party (or a member of such Party’s Group) to an Indemnitee pursuant to this Article V shall be paid in accordance with the procedures set forth in Section 8.11 .
(f) From and after the Distribution Effective Time, with respect to any Action where Citrix or SpinCo (or any member of such other Party’s Group) is a defendant, when and if requested by such Party, the other Party shall use commercially reasonable efforts to petition the applicable court or tribunal to remove the requesting Party as a defendant to the extent that such Action relates solely to Assets or Liabilities that the other Party (or any member of such other Party’s Group) has been allocated pursuant to Article II , and the other Party shall cooperate and assist in any required communication with any plaintiff or other related Third Party.
 
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(g) The Parties shall report for all Tax purposes any amounts payable pursuant to this Article V in accordance with Section 12.01 of the Tax Matters Agreement.
(h) No Party hereto shall have any right to set off any losses (including Indemnifiable Losses) under this Article V against any payments to be made by such Party pursuant to this Agreement or any other agreement between the Parties, including the Merger Agreement or any of the Ancillary Agreements.
(i) Notwithstanding anything herein to the contrary, nothing in this Article V is intended to provide any rights of indemnification in respect of any other Transaction Agreement.
ARTICLE VI
PRESERVATION OF RECORDS; ACCESS TO INFORMATION; CONFIDENTIALITY; PRIVILEGE
Section 6.1 Generally .
(a) Other than in circumstances in which indemnification is sought pursuant to Article V (in which event the provisions of Article V shall govern) or for matters related to provision of Tax Records (in which event the provisions of the Tax Matters Agreement shall govern), and subject to appropriate restrictions for Privileged Information or Confidential Information, from and after the Distribution Effective Time and until the later of (x) the sixth anniversary of the Distribution Effective Time and (y) the expiration of the relevant statute of limitations period, if applicable, and subject to compliance with the terms of the Transaction Agreements, upon the prior written reasonable request (i) by Citrix or SpinCo for Shared Information or (ii) by (A) SpinCo for Retained SpinCo Information or (B) Citrix for Retained Citrix Information, the applicable Party shall use commercially reasonable efforts to provide, as soon as reasonably practicable following the receipt of such request, appropriate access or, to the extent such information is reasonably practicable to identify and extract, copies of such information in the possession or control of such applicable Party, but only to the extent are not already in the possession or control of the requesting Party or any of its Affiliates; provided , that in connection with the provision of information under this Section 6.1(a) , Citrix shall be entitled to redact any portion of the Retained SpinCo Information to the extent related to any matter other than the SpinCo Business, and SpinCo shall be entitled to redact any portion of the Retained Citrix Information to the extent related to any matter other than the Citrix Business; provided further , that in the event that any Shared Information, Retained SpinCo Information or Retained Citrix Information, as the case may be, constitutes Privileged Information, the Parties shall use commercially reasonable efforts to provide such access to such information in a manner that would not reasonably be expected to violate any such privilege. Each of Citrix and SpinCo agree to make their respective personnel available during regular business hours to discuss the information exchanged pursuant to this Article VI .
(b) Each of Citrix and SpinCo shall inform their respective Representatives who have or have access to the other Party’s Confidential Information or other information provided pursuant to this Article VI of their obligation to hold such information confidential in accordance with the provisions of this Agreement.
 
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(c) Nothing in this Article VI shall require any Party to violate any agreement with any Third Party regarding the confidentiality of confidential and proprietary information relating to that Third Party or its business; provided , however , that in the event that a Party would be required under this Section 6.1 to disclose any such information, such Party shall use commercially reasonable efforts to seek to obtain such Third Party’s written consent to the disclosure of such information and to otherwise disclose any such information in a manner that would not reasonably be expected to violate such agreement.
(d) Neither Citrix nor SpinCo will have any Liability to the other Party in the event that any information exchanged or provided pursuant to this Agreement that is an estimate or forecast, or that is based on an estimate or forecast, is found to be inaccurate in the absence of willful misconduct by the providing Person.
Section 6.2 Financial Statements and Accounting . Without limitation of Section 6.1, from the Distribution Effective Time until the completion of each Party’s audit for the fiscal year ending December 31, 2017 (and for a reasonable period of time afterwards as required by Law for Citrix to prepare consolidated financial statements or complete a financial statement audit for any period during which the financial results of the SpinCo Group were consolidated with those of Citrix), each of Citrix and SpinCo agrees to provide reasonable assistance and, subject to Section 6.6, reasonable access to its properties, books and records, other information and personnel, and to use its commercially reasonable efforts to cooperate with the other Party’s requests, in each case to enable (i) such other Party to meet its timetable for dissemination of its earnings releases, financial statements and management’s assessment of the effectiveness of its disclosure controls and procedures and its internal control over financial reporting in accordance with Items 307 and 308, respectively, of Regulation S-K, (ii) such other Party’s accountants to timely complete their review of the quarterly financial statements and audit of the annual financial statements of such other Party, including, to the extent applicable to such Party, its auditor’s audit of its internal control over financial reporting and management’s assessment thereof in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 and the SEC’s and Public Company Accounting Oversight Board’s rules and auditing standards thereunder and (iii) such other Party to respond to any written request or official comment from a Governmental Authority, including in connection with responding to a comment letter from the SEC; provided , that in connection with this clause (iii), each Party shall provide reasonable access on the terms set forth in this Section 6.2 for a period of three years following the Distribution Date.
Section 6.3 Witness Services . At all times from and after the Distribution Effective Time, each of Citrix and SpinCo shall use its commercially reasonable efforts to make available to the other Party, upon reasonable written request, its and its Subsidiaries’ officers, directors, employees and agents (taking into account the business demands of such individuals) as witnesses to the extent that (i) such Persons may reasonably be required to testify in connection with the prosecution or defense of any Action in which the requesting Party may from time to time be involved (except for claims, demands or Actions in which one or more members of one Group is adverse to one or more members of the other Group) and (ii) there is
 
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no conflict in the Action between the requesting Party and the other Party. A Party providing a witness to the other Party under this Section 6.3 shall be entitled to receive from the recipient of such witness services, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other out-of-pocket expenses (which shall not include the costs of salaries and benefits of employees who are witnesses or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service as witnesses), as may be reasonably incurred and properly paid under applicable Law.
Section 6.4 Reimbursement . Except as otherwise set forth in the Merger Agreement or any Ancillary Agreement, the Party requesting information or services pursuant to this Article VI agrees to reimburse the other Party for the reasonable out-of-pocket costs, if any, actually incurred in connection with delivering such information or services, to the extent that such costs are incurred for the benefit of the requesting Party.
Section 6.5 Retention . Each Party agrees to use its commercially reasonable efforts to retain all information that relates to the operations of the SpinCo Business in its respective possession or control at the Distribution Effective Time in accordance with the policies of Citrix or LogMeIn, as applicable, as in effect on the Distribution Date or such other policies as may be adopted by either Party in good faith thereafter ( provided , that each Party shall notify the other Party of any such change). No Party shall destroy, or permit any of its Subsidiaries to destroy, any information which the other Parties may have the right to obtain pursuant to this Agreement prior to the end of the retention period set forth in such Party’s retention policies without first using its commercially reasonable efforts to notify the other Parties of the proposed destruction and giving the other Parties the opportunity to take possession or make copies of such Information prior to such destruction. Notwithstanding the foregoing, the Tax Matters Agreement will govern the retention of Tax Returns, schedules and work papers and all material records or other documents relating thereto.
Section 6.6 Confidentiality .
(a) From and after the Distribution Effective Time, Citrix shall not, and shall cause each member of the Citrix Group and its and their respective Representatives not to, directly or indirectly, without the prior written consent of SpinCo, disclose to any Third Party (other than to each other and their respective Representatives who need to know the information and who are advised of the confidential nature of such information) any Confidential Information related to the SpinCo Business; provided , that the foregoing restrictions shall not (i) apply to any information generally available to the public (other than as a result of disclosure in violation of this Section 6.6(a) ) or (ii) prohibit disclosure required by applicable Law so long as, to the extent legally permissible, Citrix or such member of the Citrix Group provides SpinCo with reasonable prior notice of such disclosure and a reasonable opportunity to contest such disclosure at SpinCo’s sole expense. From and after the Distribution Effective Time, Citrix shall, and shall cause each member of the Citrix Group and its and their respective Representatives to, use such Confidential Information related to the SpinCo Business only in connection with the purpose for which such Confidential Information was retained by Citrix or such member of the Citrix Group in accordance with this Agreement, and for no other reason (and only for so long as such purpose continues to be applicable to Citrix or such member of the Citrix Group).
 
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(b) From and after the Distribution Effective Time, LogMeIn shall not, and LogMeIn shall cause its Subsidiaries, including SpinCo and each other member of the SpinCo Group, and its and their respective Representatives not to, directly or indirectly, without the prior written consent of Citrix, disclose to any Third Party (other than to each other and their respective Representatives who need to know the information and who are advised of the confidential nature of such information) any Confidential Information related to the Citrix Business; provided , that the foregoing restrictions shall not (i) apply to any information generally available to the public (other than as a result of disclosure in violation of this Section 6.6(b) ) or (ii) prohibit disclosure required by applicable Law so long as, to the extent legally permissible, SpinCo or such member of the SpinCo Group provides Citrix with reasonable prior notice of such disclosure and a reasonable opportunity to contest such disclosure at Citrix’s sole expense. From and after the Distribution Effective Time, LogMeIn and SpinCo shall, and LogMeIn shall cause its Subsidiaries, including SpinCo and each other member of the SpinCo Group, and its and their respective Representatives to, use such Confidential Information related to the Citrix Business only in connection with the purpose for which such Confidential Information was retained by SpinCo or such member of the SpinCo Group in accordance with this Agreement, and for no other reason (and only for so long as such purpose continues to be applicable to SpinCo or such member of the SpinCo Group).
(c) For the avoidance of doubt and notwithstanding any other provision of this Section 6.6 , (i) the sharing of Privileged Information shall be governed solely by Section 6.7 , and (ii) information that is subject to any confidentiality provision or other disclosure restriction in any Ancillary Agreement shall be governed by the terms of such Ancillary Agreement.
Section 6.7 Privilege Matters .
(a) Pre-Distribution Services . The Parties recognize that legal and other professional services that have been and will be provided prior to the Distribution Effective Time have been and will be rendered for the collective benefit of each of the members of the Citrix Group and the SpinCo Group, and that each of the members of the Citrix Group and the SpinCo Group and to the fullest extent permitted by Law should be deemed to be the client with respect to such pre-Distribution services for the purposes of asserting all privileges, immunities or other protections from disclosure which may be asserted under applicable Law, including attorney-client privilege, business strategy privilege, joint defense privilege, common interest privilege and protection under the work-product doctrine (“ Privilege ”). To the fullest extent permitted by Law, Citrix and SpinCo shall have a shared Privilege with respect to all information subject to Privilege (“ Privileged Information ”) which relates to such pre-Distribution services. For the avoidance of doubt, Privileged Information within the scope of this Section 6.7(a) includes, but is not limited to, services rendered by legal counsel retained or employed by any Citrix or SpinCo (or any member of such Party’s respective Group), including outside counsel and in-house counsel.
(b) Post-Distribution Services . The Parties recognize that legal and other professional services will be provided following the Distribution Effective Time to each of Citrix and SpinCo. The Parties further recognize that certain of such post-Distribution services will be rendered solely for the benefit of Citrix or SpinCo, as the case may be, while other such
 
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post-Distribution services may be rendered with respect to claims, proceedings, litigation, disputes, or other matters which involve both Citrix and SpinCo. To the fullest extent permitted by Law, with respect to such post- Distribution services and related Privileged Information, the Parties agree as follows:
(i) All Privileged Information relating to any claims, proceedings, litigation, disputes or other matters which involve both Citrix and SpinCo shall be subject to a shared Privilege among the Parties involved in the claims, proceedings, litigation, disputes or other matters at issue; and
(ii) Except as otherwise provided in Section 6.7(b)(i) , Privileged Information relating to post-Distribution services provided solely to one of Citrix or SpinCo shall not be deemed shared between the Parties; provided , that the foregoing shall not be construed or interpreted to restrict the right or authority of the Parties (x) to enter into any further agreement, not otherwise inconsistent with the terms of this Agreement, concerning the sharing of Privileged Information or (y) otherwise to share Privileged Information without waiving any Privilege which could be asserted under applicable Law.
(c) The Parties agree as follows regarding all Privileged Information with respect to which the Parties shall have a shared Privilege under Section 6.7(a) or (b) :
(i) Subject to Section 6.7(c)(iii) and (iv) , neither Citrix nor SpinCo may waive, or allege or purport to waive, any Privilege which could be asserted under any applicable Law, and in which the other Party has a shared Privilege, without the written consent of the other Party;
(ii) If a dispute arises between or among the Parties or their respective Subsidiaries regarding whether a Privilege should be waived to protect or advance the interest of any Party, each Party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other Party and each of Citrix and SpinCo specifically agrees that it shall not withhold consent to waive for any purpose except to protect its own legitimate interests;
(iii) If, within fifteen (15) days of receipt by the requesting Party of written objection, the Parties have not succeeded in negotiating a resolution to any dispute regarding whether a Privilege should be waived, and the requesting Party determines that a Privilege should nonetheless be waived to protect or advance its interest, the requesting Party shall provide the objecting Party fifteen (15) days’ written notice prior to effecting such waiver. Each Party specifically agrees that failure within fifteen (15) days of receipt of such notice to commence proceedings in accordance with Article VIII to enjoin such waiver under applicable Law shall be deemed full and effective consent to such waiver, and the Parties agree that any such Privilege shall not be waived by either party under the final determination of such dispute in accordance with Article VIII ; and
(iv) In the event of any litigation or dispute between the Parties, or any members of their respective Groups, either Citrix or SpinCo may waive a Privilege in which the other Party or member of such Group has a shared Privilege, without obtaining the consent of the other Party; provided , that such waiver of a shared Privilege shall to the fullest extent permitted by Law be effective only as to the use of Privileged Information with respect to the litigation or dispute between the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared Privilege with respect to third parties.
 
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(d) The transfer of all information pursuant to this Agreement is made in reliance on the agreement of Citrix or SpinCo as set forth in Section 6.6 and this Section 6.7(d) , to maintain the confidentiality of Privileged Information and to assert and maintain any applicable Privilege. The access to Information being granted pursuant to Section 6.1 and Section 6.2 , the agreement to provide witnesses and individuals pursuant to Section 6.3 , the furnishing of notices and documents and other cooperative efforts contemplated by Section 5.4 and the transfer of Privileged Information between the Parties and their respective Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise.
Section 6.8 Ownership of Information . Any Information owned by one Party or any of its Subsidiaries that is provided to a requesting Party pursuant to this Article VI shall be deemed to remain the property of the providing Party. Unless expressly set forth herein, nothing contained in this Agreement shall be construed as granting a license or other rights to any Party with respect to any such Information, whether by implication, estoppel or otherwise.
Section 6.9 Other Agreements . The rights and obligations granted under this Article VI are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information set forth in any Transaction Agreement.
ARTICLE VII
DISPUTE RESOLUTION
Section 7.1 Dispute Resolution Procedures .
(a) Each Party shall appoint a representative who shall be responsible for administering this dispute resolution provision (the “ Appointed Representative ”). The Appointed Representative shall have the authority to resolve any such disputes.
(b) Except as otherwise provided in this Agreement or in any Ancillary Agreement, in the event of a controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity, termination or breach of this Agreement or any Ancillary Agreement or otherwise arising out of, or in any way related to, this Agreement or any Ancillary Agreement or the transactions contemplated hereby or thereby
 
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(collectively, the “ Separation Agreement Disputes ”), the Appointed Representatives shall negotiate in good faith for a reasonable period of time to settle such Separation Agreement Dispute; provided , however , that: (i) such reasonable period shall not, unless otherwise agreed to by the relevant Parties in writing, exceed twenty (20) days from the time of receipt by a Party of written notice of such Separation Agreement Dispute; and (ii) the relevant employees from both Parties with knowledge and interest in the dispute shall first have tried to resolve the differences between the Parties. Nothing said or disclosed, nor any document produced, in the course of any negotiations, conferences and discussions in connection with efforts to settle an Separation Agreement Dispute that is not otherwise independently discoverable shall be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Complete Agreement; Construction . This Agreement, the Disclosure Letters (as defined in the Merger Agreement), the other Transaction Agreements, the Conveyance and Assumption Instruments and the Confidentiality Agreement constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof and thereof. If there is a conflict between any provision of this Agreement and a provision in any of the other Transaction Agreements (other than the Merger Agreement), the provision of this Agreement shall control unless (i) with respect to any Ancillary Agreement other than the Tax Matters Agreement, as specifically provided otherwise in this Agreement or in such other Ancillary Agreement, (ii) with respect to the Tax Matters Agreement, the provision relates to matters addressed by the Tax Matters Agreement, in which case the Tax Matters Agreement shall control or (iii) with respect to the Employee Matters Agreement, the provision relates to matters addressed by the Employee Matters Agreement, in which case the Employee Matters Agreement shall control. If there is a conflict between any provision of this Agreement and a provision in the Merger Agreement, the provision of the Merger Agreement shall control. Neither this Agreement nor any Ancillary Agreement shall govern Tax matters (including any administrative, procedural, and related matters thereto, “ Tax Matters ”), except to the extent expressly provided herein (in Section 2.4(c) , Section 5.4(g) , Section 5.7(g) , Section 6.1(a) or Section 6.5 ) or therein. Tax Matters shall be exclusively governed by the Tax Matters Agreement.
Section 8.2 Transaction Agreements . Except as expressly set forth herein, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Merger Agreement or the Ancillary Agreements.
Section 8.3 Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
 
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Section 8.4 Survival of Agreements . Except as otherwise contemplated by this Agreement or any Transaction Agreement, all covenants and agreements of the Parties contained in this Agreement and each Transaction Agreement shall survive the Distribution Effective Time and remain in full force and effect in accordance with their applicable terms.
Section 8.5 Expenses . Except as otherwise provided in this Agreement, including Section 2.4 and Article V , or any other Transaction Agreement, each party hereto shall be responsible for the fees and expenses of the Parties as provided in Section 9.03 of the Merger Agreement.
Section 8.6 Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by a nationally recognized overnight courier service, or by facsimile or email (with a confirmatory copy sent by a nationally recognized overnight courier service) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 8.6 ):
If to Citrix, or to SpinCo prior to the Distribution Effective Time:

Citrix Systems, Inc.	
851 West Cypress Creek Road	
Fort Lauderdale, FL 33309	
Facsimile:	  	(954) 267-3101	
Attention:	  	General Counsel	

with a copy (which shall not constitute notice) to:	

Skadden, Arps, Slate, Meagher & Flom LLP	
500 Boylston Street, 23rd Floor	
Boston, MA 02116	
Facsimile:	  	(617) 573-4822	
Attention:	  	Margaret A. Brown	

If to LogMeIn, or to SpinCo after the Distribution Effective Time:	

LogMeIn, Inc.	
320 Summer Street	
Boston, MA 02210	
Facsimile:	  	(781) 437-1820	
Attention:	  	Chief Financial Officer	
	  	General Counsel	
 
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with a copy (which shall not constitute notice) to:	

Latham & Watkins LLP	
200 Clarendon Street	
Boston, MA 02116	
Facsimile:	  	(617) 948-6001	
Attention:	  	John H. Chory	
	  	Bradley C. Faris	
Any notice to Citrix shall be deemed notice to all members of the Citrix Group, and any notice to SpinCo shall be deemed notice to all members of the SpinCo Group.
Section 8.7 Amendment and Waivers .
(a) This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, each Party that expressly references the Section of this Agreement to be amended; or (b) by a waiver in accordance with Section 8.7(b) .
(b) Any Party may (a) extend the time for the performance of any of the obligations or other acts of the other Parties; (b) waive any inaccuracies in the representations and warranties of the other parties contained herein or in any document delivered by the other Parties pursuant to this Agreement; or (c) waive compliance with any of the agreements of the other Parties or conditions to such obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by any party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder. Any waiver of any term or condition hereof shall not be construed as a waiver of any subsequent breach or as a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement.
Section 8.8 Termination . This Agreement shall terminate without further action at any time before the Distribution Effective Time upon termination of the Merger Agreement. If terminated, no party hereto shall have any Liability of any kind to the other parties or any other Person on account of this Agreement, except as provided in the Merger Agreement.
Section 8.9 Assignment . This Agreement and the rights and obligations hereunder may not be assigned by any Party by operation of Law or otherwise without the express written consent of the other Parties (which consent may be granted or withheld in the sole discretion of the other Parties). Any attempted assignment that is not in accordance with this  Section 8.9  shall be null and void.
Section 8.10 Successors and Assigns . The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted assigns.
 
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Section 8.11 Payment Terms .
(a) Except as otherwise expressly provided to the contrary in this Agreement or in any Transaction Agreement, any amount to be paid or reimbursed by a Party (where applicable, or a member of such Party’s Group) to another Party (where applicable, or a member of such other Party’s Group) under this Agreement shall be paid or reimbursed hereunder within sixty (60) days after presentation of an invoice or a written demand therefor, in either case setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.
(b) Except as set forth in Article V or as expressly provided to the contrary in this Agreement or in any Transaction Agreement, any amount not paid when due pursuant to this Agreement (and any amount billed or otherwise invoiced or demanded and properly payable that is not paid within sixty (60) days of such bill, invoice or other demand) shall bear interest at a rate per annum equal to the Prime Rate, from time to time in effect, plus two percent (2%), calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment.
(c) Without the consent of the party receiving any payment under this Agreement specifying otherwise, all payments to be made by either Citrix or SpinCo under this Agreement shall be made in U.S. dollars. Except as expressly provided herein, any amount which is not expressed in U.S. dollars shall be converted into U.S. dollars by using the exchange rate published on Bloomberg at 5:00 pm, Eastern time, on the day before the relevant date, or in The Wall Street Journal , Eastern Edition, on such date if not so published on Bloomberg. Except as expressly provided herein, in the event that any Indemnity Payment required to be made hereunder or under any Transaction Agreement may be denominated in a currency other than U.S. dollars, the amount of such payment shall be converted into U.S. dollars on the date in which notice of the claim is given to the Indemnifying Party.
Section 8.12 Subsidiaries . Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any Person that becomes a Subsidiary of such Party at or after the Distribution Effective Time, in each case to the extent such Subsidiary remains a Subsidiary of the applicable Party.
Section 8.13 Third Party Beneficiaries . Except (i) as provided in Article V relating to Indemnitees and for the releases under Section 5.1 of any Person as provided therein and (ii) as specifically provided in any Transaction Agreement, this Agreement shall be binding upon and inure solely to the benefit of, and be enforceable by, only the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to, or shall confer upon, any other Person any right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.
 
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Section 8.14 Exhibits and Schedules . The Exhibits and Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein. Subject to the prior written consent of the other Parties, each Party shall be entitled to update the Schedules from and after the date hereof until the Distribution Effective Time.
Section 8.15 Governing Law . This Agreement and any Separation Agreement Dispute shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof that might lead to the application of Laws other than the Laws of the State of Delaware. All Actions that, directly or indirectly, arise out of or relate to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware; provided , however , that if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any Delaware state court or United States federal court sitting in the State of Delaware. Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action brought by any party hereto that, directly or indirectly, arises out of or relates to this Agreement; (b) agrees that service of process in such Action will be validly effected by sending notice in accordance with Section 8.6 ; (c) irrevocably waives and releases, and agrees not to assert by way of motion, defense, or otherwise, in or with respect to any such Action, any claim that (i) such Action is not subject to the subject matter jurisdiction of at least one of the above-named courts; (ii) its property is exempt or immune from attachment or execution in the State of Delaware; (iii) such Action is brought in an inconvenient forum; (iv) that the venue of such Action is improper; or (v) this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts; and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
Section 8.16 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LIABILITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION  8.16 .
Section 8.17 Specific Performance . The Parties acknowledge and agree that the Parties would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached and that any non-performance or breach of this Agreement by any Party could not be adequately compensated by monetary damages alone and that the Parties would not have any adequate remedy at
 
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law. Accordingly, in addition to any other right or remedy to which any Party may be entitled, at law or in equity (including monetary damages), such Party shall be entitled to enforce any provision of this Agreement by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without posting any bond or other undertaking. For the avoidance of doubt, LogMeIn shall, during the term of this Agreement, have the right to enforce specifically the obligations of Citrix and SpinCo set forth herein. The Parties agree that they will not contest the appropriateness of specific performance as a remedy.
Section 8.18 Severability . If any term or other provision (or part thereof) of this Agreement is declared invalid, illegal or incapable of being enforced by any Governmental Authority, all other terms and provisions (or parts thereof) of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision (or part thereof) is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
Section 8.19 Interpretation . The Parties have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.
Section 8.20 No Duplication; No Double Recovery . Nothing in this Agreement or any Transaction Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances (including with respect to the rights, entitlements, obligations and recoveries that may arise out of one or more of Section 5.2 , Section 5.3 and Section 5.4 ).
Section 8.21 No Admission of Liability . The allocation of Assets and Liabilities herein (including on the Schedules hereto) is solely for the purpose of allocating such Assets and Liabilities between Citrix and SpinCo and is not intended as an admission of liability or responsibility for any alleged Liabilities vis-à-vis any Third Party, including with respect to the Liabilities of any non-wholly owned subsidiary of Citrix or SpinCo.
[ Signature Page Follows ]
 
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

CITRIX SYSTEMS, INC.	
		
By:	 	/s/ David J. Henshall	
	 	Name:	 	David J. Henshall	
	 	Title:	 	Executive Vice President, Chief	
	 		 	Operating Officer and Chief Financial Officer	
	
GETGO, INC.	
		
By:	 	/s/ Antonio G. Gomes	
	 	Name:	 	Antonio G. Gomes	
	 	Title:	 	Secretary	
	
LOGMEIN, INC.	
		
By:	 	/s/ William R. Wagner	
	 	Name:	 	William R. Wagner	
	 	Title:	 	President and Chief Executive Officer	
Signature Page to Separation and Distribution Agreement

EXHIBIT B
FORM OF
INTELLECTUAL PROPERTY LICENSE AGREEMENT
by and among
CITRIX SYSTEMS, INC.,
GETGO, INC.
and
LOGMEIN, INC.
Dated as of [●], 2016

EXHIBIT B
FORM OF
INTELLECTUAL PROPERTY LICENSE AGREEMENT
This INTELLECTUAL PROPERTY LICENSE AGREEMENT (this “ Agreement ”), dated as of [●], 2016, is entered into by and among CITRIX SYSTEMS, INC., a Delaware Corporation (“ Citrix ”), GETGO, INC. (“ SpinCo ”), a Delaware Corporation, and LOGMEIN, INC., a Delaware corporation (“ LogMeIn ”). “ Party ” or “ Parties ” means Citrix, SpinCo or LogMeIn, individually or collectively, as the case may be.
W I T N E S S E T H:
WHEREAS, the Board of Directors of Citrix has determined that it is appropriate, desirable and in the best interests of Citrix and its stockholders to separate the SpinCo Business from the remaining business of Citrix and its Subsidiaries;
WHEREAS, in furtherance of the Separation, Citrix, SpinCo and LogMeIn have entered into a Separation and Distribution Agreement, dated as of July 26, 2016 (the “ Separation Agreement ”), that, together with this Agreement and certain other ancillary agreements, govern the terms and conditions of the Separation;
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of July 26, 2016 (the “ Merger Agreement ”), among Citrix, SpinCo, LogMeIn and Lithium Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of LogMeIn (“ Merger Sub ”), immediately following the Distribution under the Separation Agreement, Merger Sub will merge with and into SpinCo and, in connection with the Merger, SpinCo Common Stock will be converted into shares of common stock of LogMeIn, par value $0.01 per share, on the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, as of the Effective Time, Citrix owns certain Intellectual Property that is used in the SpinCo Business, and Citrix wishes to grant to SpinCo a license to such Intellectual Property to continue using the same in the SpinCo Business, on the terms and conditions hereof; and
WHEREAS, as of the Effective Time, SpinCo wishes to grant to Citrix a license to the SpinCo Licensed IP, including Patents included in the Transferred IP, in each case in accordance with and subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions .
(a) Certain capitalized terms used herein shall have the meanings set forth in Schedule A hereto.
 
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(b) Unless otherwise defined herein, all capitalized terms used herein shall have the same meanings as in the Merger Agreement or Separation Agreement (as applicable).
Section 1.2 References; Interpretation . In this Agreement, except to the extent otherwise provided or that the context otherwise requires: (a) when a reference is made in this Agreement to Article, Section, Exhibit and Schedule such reference is to an Article and Section of, and Exhibit and Schedule to, this Agreement; (b) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement; (c) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”; (d) the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) all terms defined in this Agreement have the defined meanings when used in any certificate or other document delivered or made available pursuant hereto, unless otherwise defined therein; (f) references to “day” or “days” are to calendar days; (g) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms; (h) references to a Person are also to its successors and permitted assigns; (i) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day; (j) references to sums of money are expressed in lawful currency of the United States of America, and “$” refers to U.S. dollars; (k) references to any “statute” or “regulation” are to such statute or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, include any rules and regulations promulgated under such statute) and to any “section of any statute or regulation” include any successor to such section; (l) the word “or” shall not be exclusive; (m) reference in this Agreement to any time shall be to Eastern time unless otherwise expressly provided herein; and (n) references in this Agreement to “Citrix” shall also be deemed to refer to the applicable member of the Citrix Group, references to “SpinCo” shall also be deemed to refer to the applicable member of the SpinCo Group and, in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by Citrix or SpinCo shall be deemed to require Citrix or SpinCo, as the case may be, to cause the applicable members of the Citrix Group or the SpinCo Group, respectively, to take, or refrain from taking, any such action.
ARTICLE II
INTELLECTUAL PROPERTY LICENSES
Section 2.1 License to SpinCo of Citrix Licensed IP .
(a) ShareConnect . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, Citrix hereby grants, on behalf of itself and its Subsidiaries, to SpinCo and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-
 
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free and fully paid-up, non-exclusive license in, to and under ShareConnect, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule B hereto, in each case as and to the extent owned by any member of the Citrix Group as of the Effective Time, and Necessary Claims of any Patents that cover any Improvements made by Citrix or its Affiliates to ShareConnect to the extent owned by Citrix or any of its Affiliates, in each case solely to use, make, have made, sell, have sold, import, reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with GoToMyPC, as GoToMyPC exists as of the Effective Time and including extensions, upgrades and evolutions thereof.
(b) Patents and Other Intellectual Property .
(i) Patent License . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, Citrix hereby grants on behalf of itself and its Subsidiaries, to SpinCo and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under any and all, (A) Patents owned by any member of the Citrix Group as of the Effective Time having one or more Necessary Claims that would be infringed by the products and services of the SpinCo Business as of the Effective Time, (B) Patents that cover any Improvements made by Citrix or its Affiliates to the SpinCo Licensed IP, in each case to the extent owned by Citrix or any of its Affiliates, and (C) national or international counterparts to, including any divisionals, continuations, continuations-in-part, reissues, reexaminations, substitutions and extensions of, any of the Patents described in the foregoing clauses (A) or (B), in each case solely in connection with the products or services of SpinCo and its Subsidiaries and extensions, upgrades and evolutions thereof and solely to the extent that the foregoing would infringe a Necessary Claim, and including the rights to use, develop, make, have made, sell, have sold, offer for sale and import any such products or services. As used in this Agreement, “ Necessary Claims ” of a Patent licensed under this Agreement means any one or more Valid Claims of such Patent which, in the absence of such license, would be infringed by the activities permitted under such license.
(ii) License to Omitted Intellectual Property . Without limiting the foregoing clause (i), subject to the terms and conditions of this Agreement, effective as of the Effective Time, solely with respect to any (A) Intellectual Property (other than Marks) owned by any member of the Citrix Group as of the Effective Time which was required to be assigned and transferred to SpinCo and its Subsidiaries but, which in violation thereof, was not so assigned and transferred, or (B) Intellectual Property (other than Marks) which was used in the SpinCo Business as of the Effective Time and not licensed to SpinCo and its Subsidiaries pursuant to this Agreement or otherwise provided to them pursuant to any other Ancillary Agreement, effective automatically and immediately prior
 
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to the earlier of such time as (1) either Citrix or SpinCo becomes aware of and notifies the other Party in writing of such Intellectual Property, or (2) any such Intellectual Property is assigned or transferred to any Person that is not a member of the Citrix Group, or upon any change of control or other one or more events or transactions by which any member of the Citrix Group that owns such Intellectual Property ceases to become a member of the Citrix Group, or otherwise upon such time as any such Intellectual Property, including the right to assert any claim of infringement or other violation thereof, ceases to be exclusively owned and controlled by any member of the Citrix Group, and unless such Intellectual Property is both described under clause (A) above and clause (1) above applies, in which case SpinCo’s rights to such Intellectual Property are governed by the Separation Agreement, on an item of such Intellectual Property-by-item of such Intellectual Property basis, Citrix hereby grants on behalf of itself and its Subsidiaries, to SpinCo and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under such Intellectual Property in connection with the SpinCo Business, including the products and services of the SpinCo Business as of the Effective Time together with extensions, upgrades and evolutions thereof, including the rights to make, have made, use, sell, have sold, offer for sale, and import any such products or services, and reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit such Intellectual Property in connection with the foregoing. Citrix and SpinCo shall each use commercially reasonable efforts to provide the other with written notice following its discovery of any such omitted Intellectual Property licensed under this clause (ii).
(c) Definition of Citrix Licensed IP . As used herein:
(i) “ Citrix Licensed IP ” means, collectively, (A) ShareConnect, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule B hereto, (B) the Citrix Licensed Patents; and (C) any and all other Intellectual Property licensed to SpinCo pursuant to Section 2.1(b) .
(ii) “ Citrix Licensed Patents ” means the Patents that are licensed to SpinCo pursuant to Section 2.1(a) or Section 2.1(b) above, including as set forth in Schedule B hereto.
(iii) “ ShareConnect ” means the Software known as “ShareConnect” as of the Effective Time, in object code and source code.
 
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Section 2.2 License to Citrix of SpinCo Licensed IP .
(a) GoToMyPC . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under GoToMyPC, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule C hereto, in each case as and to the extent owned by any member of the SpinCo Group as of the Effective Time, and Necessary Claims of any Patents that cover any Improvements made by SpinCo or its Affiliates to GoToMyPC to the extent owned by SpinCo or any of its Affiliates, in each case solely to use, make, have made, sell, have sold, import, reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with ShareConnect, as ShareConnect exists as of the Effective Time and including extensions, upgrades and evolutions thereof. Citrix hereby agrees that, for three (3) years following the Effective Time, Citrix and its Subsidiaries shall not sell, license, distribute, commercialize or otherwise make commercially available (including for no fees or other consideration) ShareConnect as a stand-alone product or service.
(b) Unicast . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under Unicast, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule C hereto, in each case as and to the extent owned by any member of the SpinCo Group as of the Effective Time, and Necessary Claims of any Patents that cover any Improvements made by SpinCo or its Affiliates to Unicast to the extent owned by SpinCo or any of its Affiliates, in each case to use, make, have made, sell, have sold, import, reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with the products or services of Citrix and its Subsidiaries and extensions, upgrades and evolutions thereof, but not as a stand-alone product or service.
(c) Screencast . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under Screencast, together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule C hereto, in each case as and to the extent owned by any member of the SpinCo Group as of the Effective Time, and Necessary Claims of any Patents that cover any Improvements made by SpinCo or its Affiliates to Screencast to the extent owned by SpinCo or any of its Affiliates, in each case to use, make, have made, sell, have sold, import, reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute
 
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copies, publicly perform, or publicly display and otherwise exploit the same in connection with the products or services of Citrix and its Subsidiaries and extensions, upgrades and evolutions thereof, but not as a stand-alone product or service.
(d) Concierge . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under Concierge, , together with any Intellectual Property (other than Marks) therein and related thereto, including as set forth in Schedule C hereto, in each case as and to the extent owned by any member of the SpinCo Group as of the Effective Time, and Necessary Claims of any Patents that cover any Improvements made by SpinCo or its Affiliates to Concierge to the extent owned by SpinCo or any of its Affiliates, in each case to use, make, have made, sell, have sold, import, reproduce, make Improvements of (including the right to use and modify source code), prepare derivative works from, distribute copies, publicly perform, or publicly display and otherwise exploit the same in connection with the products or services of Citrix and its Subsidiaries and extensions, upgrades and evolutions thereof, but not as a stand-alone product or service.
(e) Patent License . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under any and all, (a) Patents owned by any member of the SpinCo Group as of the Effective Time, including all Patents included in the Transferred IP and any Patents filed in SpinCo’s name through the Effective Time, (b) Patents that cover any Improvements made by SpinCo or its Affiliates to the Citrix Licensed IP, in each case to the extent owned by SpinCo or any of its Affiliates, and (c) national or international counterparts to, including any divisionals, continuations, continuations-in-part, reissues, reexaminations, substitutions and extensions of, any of the Patents described in the foregoing clauses (a) or (b), in each case solely in connection with the products or services of Citrix or its Subsidiaries and extensions, upgrades and evolutions thereof, and solely to the extent that the foregoing would infringe a Necessary Claim, and including the rights to make, have made, use, develop, sell, have sold, offer for sale, and import any such products or services.
(f) Restriction . Starting on the Effective Time and immediately and automatically terminating with respect to any item of SpinCo Licensed IP as of such time as any such item of SpinCo Licensed IP is assigned or transferred to any Person that is not a member of the SpinCo Group, or upon any change of control or other one or more events or transactions by which any member of the SpinCo Group that owns such item of SpinCo Licensed IP ceases to become a member of the SpinCo Group, or otherwise upon such time as any such item of SpinCo Licensed IP, including the right to assert any claim of infringement or other violation thereof, ceases to be exclusively owned and controlled by any member of the SpinCo Group, on an item of SpinCo Licensed IP by item of SpinCo Licensed IP basis, Citrix agrees on behalf of itself and its Subsidiaries that the license granted with respect to such SpinCo Licensed IP shall not extend to any activities expressly prohibited under, and subject to any exceptions or restrictions (other than, for clarity, the three (3) year time limitation) set forth in, Section 7.13(c) of the Merger Agreement.
 
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(g) SpinCo Codec . Subject to the terms and conditions of this Agreement, effective as of the Effective Time, SpinCo hereby grants on behalf of itself and its Subsidiaries, to Citrix and its Subsidiaries a limited, worldwide, non-transferable and non-assignable (except as expressly permitted in Section 8.6 ), non-sublicensable (except as expressly permitted in Section 2.3 ), perpetual and irrevocable (except as set forth in Section 7.2 ), royalty-free and fully paid-up, non-exclusive license in, to and under the SpinCo Codec to use the same in connection with the products and services of Citrix into which such SpinCo Codec is incorporated as of the Effective Time, as such products and services exist as of the Effective Time and including extensions, upgrades and evolutions thereof, including the right to make Improvements to such SpinCo Codec. SpinCo shall use commercially reasonable efforts to negotiate a separate written agreement with Citrix to assist Citrix with bug fixes, troubleshooting and other technical support as may be reasonably requested by Citrix from time to time, at a rate to be negotiated in good faith and agreed upon by the Parties.
(h) Definitions of SpinCo Licensed IP . As used herein:
(i) “ Concierge ” means the Software known as Concierge as of the Effective Time, in object code and source code.
(ii) “ GoToMyPC ” means the Software known as “GoToMyPC” as of the Effective Time, in object code and source code.
(iii) “ Screencast ” means the Software known as Screencast as of the Effective Time, in object code and source code.
(iv) “SpinCo Codec ” means any and all Intellectual Property (other than Marks) owned by any member of the SpinCo Group as of the Effective Time in and related to the SpinCo Codec described in Schedule D hereto.
(v) “ SpinCo Licensed IP ” means, collectively, (A) the SpinCo Licensed Patents, (B) the SpinCo Codec, and (C) any and all Intellectual Property (other than Marks) licensed by SpinCo pursuant to Section 2.2(a)-(d) , in each case as and to the extent owned by any member of the SpinCo Group as of the Effective Time.
(vi) “ SpinCo Licensed Patents ” means the Patents that are licensed to Citrix pursuant to Sections 2.2(a) through Section 2.2(e) above, including as set forth in Schedule C hereto.
(vii) “ Unicast ” means the Software known as Unicast as of the Effective Time, in object code and source code.
 
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Section 2.3 Sublicenses . A Licensee may not sublicense any of its rights under the licenses granted to it pursuant to this Agreement except to (a) Affiliates of such Licensee, or (b) other Persons providing services for the benefit of Licensee in connection with the businesses, products and services of Licensee that are covered by the licenses granted herein (each such other Person, a “ Third Party Sublicensee ” and, together with the Affiliates described in clause (a), a “ Sublicensee ”). Each permitted sublicense to a Third Party Sublicensee shall be granted pursuant to a written agreement which at all times (i) is subject to, and consistent with, the terms and conditions of this Agreement, and (ii) includes provisions regarding confidentiality, ownership and use restrictions of the Licensed IP licensed to such Licensee at least as protective of Licensor as the provisions of this Agreement. In addition, without limiting the foregoing, Licensee shall have the right to grant distribution and resale rights to distributors, in each case solely to the extent necessary in connection with the distribution and resale of products and services within the scope of the applicable license granted to such Licensee (collectively, “ Distributors ”), in each case pursuant to a written agreement which at all times (A) is subject to, and consistent with, the terms and conditions of this Agreement, and (B) includes provisions regarding confidentiality, ownership and use restrictions of the Licensed IP at least as protective of Licensor as the provisions of this Agreement. Without limiting the foregoing, Licensee shall have the right to grant customer and end-user rights in connection with such customer’s and end-user’s use of products and services in accordance with this Agreement. For clarity, granting a sublicense, or distribution and resale rights, shall not relieve Licensee of any obligations hereunder and Licensee shall cause all of its Sublicensees to comply, and shall be jointly and severally responsible and liable hereunder for all Sublicensees’ and Distributors’ compliance, with all terms and conditions hereof applicable to Licensee, including the use restrictions and confidentiality obligations, and all terms and conditions of such sublicense.
Section 2.4 Confidentiality of Proprietary Materials .
(a) Notwithstanding anything to the contrary herein, each Licensee shall, and shall cause its Affiliates and permitted Sublicensees and Distributors to, at all times hold in strict confidence and not disclose, divulge or release in any manner or to any Person, or use except solely as and to the extent expressly permitted hereunder and at all times strictly in accordance with all terms and conditions hereof, any Software source code and associated documentation constituting, embodying or included in the Citrix Licensed IP or SpinCo Licensed IP licensed to such Licensee (collectively, the “ Proprietary Materials ”). Licensee shall protect and maintain the confidentiality of all Proprietary Materials using the same degree of care as it uses with respect to its own most sensitive confidential trade secrets and at all times with no less than the highest industry standards of confidentiality and information security.
(b) Licensee shall not disclose any Proprietary Materials except solely to such of its Sublicensees, Distributors, employees and contractors and customers who are bound by written confidentiality agreements no less protective than the terms of this Agreement and who strictly need to know such information for the purpose of exercising Licensee’s rights in accordance with this Agreement, and solely to the extent that they need to know the same for such purpose. Without limiting the foregoing, Licensee shall at all times restrict access to the Proprietary Materials only to such of its employees and contractors with clearance levels at least sufficient to be granted access to the most sensitive source code of Licensee, and to customers pursuant to source code escrow agreements with reputable source code escrow agents, and
 
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Licensee shall at all times use commercially reasonable efforts to track and maintain accurate records of each such employee, including the identity, title and current clearance level thereof.
(c) Licensee shall immediately notify Licensor upon Licensee becoming aware of any misuse of or unauthorized access to or disclosure of any Proprietary Materials, and Licensee shall fully cooperate with Licensor and comply with all requests of Licensor in connection therewith, without limiting any other rights of Licensor or obligations of Licensee hereunder.
(d) Licensee shall be released from the foregoing obligations with respect to a specific item of Proprietary Materials only if and at such time as Licensor notifies Licensee in writing that such item is no longer proprietary or confidential material of Licensor or has become publicly available through no fault of Licensee.
(e) In the event that Licensee is compelled by order of an applicable Governmental Authority to disclose Proprietary Materials, Licensee shall promptly notify Licensor thereof and reasonably cooperate with and assist Licensor to obtain a protective order or otherwise limit such disclosure, and only if Licensee remains so compelled notwithstanding such efforts shall Licensee have the right to disclose to such Governmental Authority such specific items of Proprietary Materials solely to the extent so compelled, provided that Licensee shall use commercially reasonable efforts to obtain confidential treatment of any such disclosed information. Notwithstanding any such disclosure, Licensee shall remain obligated under this Section 2.4 with respect to all Proprietary Materials.
(f) Licensee agrees that irreparable damage may occur in the event that the provisions of this Section 2.4 are not performed in accordance with their specific terms. Accordingly, it is hereby agreed that Licensor shall have the right to seek specific performance, and injunctive or other equitable relief in accordance with Section 7.2 , in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative.
(g) Without limiting Licensee’s obligations under this Section 2.4 or under Section 6.6 of the Separation Agreement and Section 7.11(a) of the Merger Agreement, Licensee acknowledges and agrees that all information other than the Proprietary Materials constituting the Citrix Licensed IP or SpinCo Licensed IP licensed to Licensee that is confidential and proprietary to the Licensor (collectively, “ Confidential Information ”) shall be maintained by Licensee in confidence, using the same degree of care to protect and maintain the confidentiality of such Confidential Information that Licensee uses with respect to its own information of a similar nature and at all times with no less than a reasonable degree of care. Except as authorized in writing by Licensor, Licensee shall not disclose or permit to be disclosed any Confidential Information to any Person, (a) except as may be reasonably required in connection with the exercise of Licensee’s rights or licenses in accordance with this Agreement, and (b) except to Licensee’s Sublicensees, Distributors, employees, contractors and customers who are informed by Licensee of the confidential nature of the Confidential Information and are obligated to maintain its confidential nature. Confidential Information does not include any information that (i) is in or becomes part of the public domain through no fault of Licensee, (ii) is obtained by Licensee without obligations of confidentiality from a Third Party having the legal
 
9

right to use and disclose such information, or (iii) is independently developed by Licensee without use of or reference to such information. Without limiting the foregoing, Licensee may disclose Confidential Information to the extent required by any Governmental Authority, provided that Licensee shall notify Licensor of any such requirement and reasonably cooperate with Licensor’s efforts to obtain a protective order or otherwise limit such required disclosure.
(h) The provisions of this Section 2.4 shall survive any expiration or termination of this Agreement in perpetuity.
Section 2.5 No Disclosure Obligations . Notwithstanding anything to the contrary herein and without limitation to any obligations under the Merger Agreement and the Separation Agreement, neither Licensor shall have any obligation hereunder to provide to the Licensee any tangible or intangible embodiments of or other materials relating to any Licensed IP of such Licensor or its Affiliates.
Section 2.6 Reservation of Rights . Each Party reserves its and its Affiliates’ rights in and to all Intellectual Property that is not expressly licensed hereunder. Without limiting the foregoing, this Agreement and the licenses and rights granted herein do not, and shall not be construed to, confer any rights upon any other Party, its Affiliates, or its Sublicensees or Distributors by implication, estoppel, or otherwise as to any of the other Parties’ or their respective Affiliates’ Intellectual Property, except as otherwise expressly set forth herein.
Section 2.7 Third Party Rights . Notwithstanding anything to the contrary herein, the licenses granted under Section 2.1 and Section 2.2 are subject to any rights of or obligations owed to any Third Parties with respect to the applicable Licensed IP pursuant to agreements existing as of the Effective Time between the applicable Licensor or its Affiliates and such Third Parties.
ARTICLE III 
INTELLECTUAL PROPERTY OWNERSHIP
Section 3.1 Ownership . As between the Parties, Licensee acknowledges and agrees that (a) Licensor owns the Licensed IP, (b) neither Licensee, nor its Affiliates or its Sublicensees, will acquire any rights in the Licensed IP, except for the licenses and sublicenses granted pursuant to Section 2.1 and Section 2.2 , and (c) Licensee shall not, and shall cause its Affiliates and its Sublicensees to not, represent that they have an ownership interest in any of the Licensed IP. For the avoidance of doubt, and subject to and without limiting any provision in the Separation Agreement, (i) Citrix acknowledges SpinCo’s exclusive ownership of GoToMyPC (including any GoToMyPC Software from which ShareConnect was derived or based or which is embedded or incorporated in ShareConnect), and (ii) SpinCo acknowledges Citrix’s exclusive ownership of ShareConnect (subject to SpinCo’s rights in any GoToMyPC code incorporated or embedded in Share Connect and licensed to Citrix and its Subsidiaries pursuant to this Agreement).
 
10

Section 3.2 Assignment . To the extent that a Party (the “ Assigning Party ”), its Affiliates, or its Sublicensees are assigned or otherwise obtain ownership of any right, title, or interest in or to any Intellectual Property in contravention of Section 3.1, such Assigning Party hereby assigns, and shall cause its Affiliates and Sublicensees to assign, to the applicable other Party all such right, title, and interest. Upon such other Party’s request, the Assigning Party shall, at its own cost and expense, take all reasonable actions, including executing all assignments and other documents, necessary to perfect or record such other Party’s right, title, and interest in and to such Intellectual Property.
Section 3.3 Improvements . As between Citrix and SpinCo, each Party shall own all improvements, modifications and derivative works (“ Improvements ”) made by or on behalf of such Party to the Licensed IP of the other Party; provided, that, with respect to Licensee, such Improvements shall not include, and shall be subject to the provisions of this Agreement as they concern, the Licensed IP to which such Improvements are made .
ARTICLE IV 
PROSECUTION AND MAINTENANCE
Section 4.1 Responsibility . As between the Parties, Licensor shall be solely responsible for (without any obligation with respect to, subject to Section 4.2 ) filing, prosecuting, and maintaining all Licensed Patents owned by such Licensor, at its sole cost and expense.
Section 4.2 Failure to Prosecute or Maintain . In the event that SpinCo decides to forego prosecution or maintenance of any SpinCo Licensed Patent specifically set forth in Schedule C , or Citrix decides to forego prosecution or maintenance of any Citrix Licensed Patent specifically set forth in Schedule B , each of SpinCo or Citrix, as Licensor, shall notify Licensee thereof at least sixty (60) days prior to the deadline for taking a necessary step to continue to prosecute or maintain the applicable Licensed Patent. Upon receipt of such notice, Licensee will have the option of assuming responsibility for such prosecution and maintenance at its sole expense. If Licensee elects to assume responsibility for prosecution and maintenance pursuant to this Section 4.2 , Licensee shall notify Licensor thereof at least ten (10) days prior to the final deadline, and, if Licensor notifies Licensee within five (5) days following such notice from Licensee that Licensor will not continue such prosecution or maintenance, Licensor shall assign, and hereby does irrevocably assign, its entire right, title, and interest in such Patent to Licensee, and as of such assignment such Patent shall cease to be a Licensed Patent of such Licensor hereunder; provided , that , such Patent shall thereafter be deemed a Licensed Patent of the assignee Party hereunder and licensed to the assigning Party in accordance with Section 2.1 and Section 2.2 (and with such scope and additional terms and conditions as the Parties may mutually agree upon in writing).
Section 4.3 No Additional Obligations . This Agreement shall not obligate any Party to maintain, register, prosecute, pay for, enforce, or otherwise manage any Intellectual Property except as expressly set forth herein.
 
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ARTICLE V 
ENFORCEMENT
Section 5.1 Defense and Enforcement . Licensor shall have the sole initial right, but not the obligation, to elect to bring an Action or enter into settlement discussions regarding (a) any Third Party activities that constitute, or would reasonably be expected to constitute, an infringement, misappropriation, or other violation of any Licensed IP of such Licensor (“ Third Party Infringement ”) or (b) any Third Party allegations of invalidity or unenforceability of any Licensed IP of such Licensor (“ Invalidity Allegations ”), in each case at Licensor’s sole cost and expense. The applicable Licensor (the “ Enforcing Party ”) shall control such Action or settlement discussions (as applicable).
Section 5.2 Cooperation . If the Enforcing Party brings an Action or enters into settlement discussions in accordance with Section 5.1 , the applicable Licensee shall join as a party to such Action or proceeding upon the Enforcing Party’s reasonable request and at the Enforcing Party’s cost and expense solely to the extent necessary for standing purposes. Under such circumstances, such Licensee shall have the right to be represented by counsel (which shall act in an advisory capacity only, except for matters solely directed to such Licensee) of its own choice in any such Action or proceeding at its own cost and expense.
Section 5.3 Costs, Expenses, and Damages . Any and all amounts recovered by the Enforcing Party in any Action regarding a Third Party Infringement or Invalidity Allegation or settlement thereof shall, unless otherwise agreed, including in an agreement in connection with obtaining consent to settlement, be allocated first to reimbursing the Enforcing Party’s costs and expenses incurred in connection therewith (including any costs and expenses that the Enforcing Party must reimburse to the applicable Licensee), then to reimbursing such Licensee’s costs and expenses to the extent provided in this Article V , and any remaining amounts shall be retained by the Enforcing Party.
ARTICLE VI 
DISCLAIMERS; LIMITATIONS ON LIABILITY
Section 6.1 Disclaimer of Warranties . EACH OF CITRIX AND SPINCO UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN AND THE MERGER AGREEMENT, NO PARTY TO THIS AGREEMENT IS REPRESENTING OR WARRANTING IN ANY WAY, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, AS TO THE LICENSED IP, INCLUDING ANY IMPLIED WARRANTIES, AS TO ANY CONSENTS REQUIRED IN CONNECTION HEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OF, AS TO NONINFRINGEMENT, VALIDITY OR ENFORCEABILITY OR ANY OTHER MATTER CONCERNING, ANY OF THE LICENSED IP OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR LICENSED IP. EACH OF CITRIX AND SPINCO UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THE MERGER AGREEMENT, ALL LICENSED IP IS BEING PROVIDED ON AN “AS IS, WHERE IS” BASIS AND LICENSEE SHALL BEAR THE ECONOMIC AND LEGAL RISKS ASSOCIATED THEREWITH.
 
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Section 6.2 Compliance with Laws and Regulations . Each Party hereto shall be responsible for its own compliance with any and all Laws applicable to its performance under this Agreement. FOR THE AVOIDANCE OF DOUBT AND NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EACH PARTY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED OBLIGATION OR WARRANTY WITH RESPECT TO THE LICENSED IP THAT COULD BE CONSTRUED TO REQUIRE LICENSOR TO PROVIDE LICENSED IP HEREUNDER IN SUCH A MANNER TO ALLOW A LICENSEE TO ITSELF COMPLY WITH ANY LAW APPLICABLE TO THE ACTIONS OR FUNCTIONS OF SUCH LICENSEE.
Section 6.3 Limitation on Liability . EXCEPT FOR A PARTY’S (A) BREACH OF ITS OBLIGATIONS UNDER SECTION 2.4 , OR (B) INFRINGEMENT OR MISAPPROPRIATION OF ANY OTHER PARTY’S INTELLECTUAL PROPERTY (INCLUDING IN THE CASE OF CITRIX A BREACH OF SECTION 2.2(f) ), NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY.
ARTICLE VII 
TERM
Section 7.1 Term . The term of this Agreement shall (a) with respect to each Patent that is included in the Licensed IP, expire at such time no Valid Claim licensed to the applicable Licensee hereunder remains in such Patent, (b) with respect to all Copyrights that are licensed hereunder, expire upon expiration or entry into the public domain of such Copyright and (c) with respect to all other Intellectual Property that is licensed or sublicensed hereunder, be perpetual.
Section 7.2 No Termination; Specific Performance . Notwithstanding anything to the contrary herein, (i) this Agreement may not be terminated unless agreed to in writing by the Parties, and (ii) all rights and licenses granted to Licensee hereunder shall be perpetual and irrevocable and not subject to termination under any circumstances unless agreed to in writing by the Parties. The Parties acknowledge and agree that the Parties would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached and that any non-performance or breach of this Agreement by any Party could not be adequately compensated by monetary damages alone and that the Parties would not have any adequate remedy at law. Accordingly, in addition to any other right or remedy to which any Party may be entitled, at law or in equity (including monetary damages), such party shall be entitled to enforce any provision of this Agreement by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without posting any bond or other undertaking. The Parties agree that they will not contest the appropriateness of specific performance as a remedy.
 
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Section 7.3 Effect of Expiration and Termination; Accrued Rights; Survival .
(a) Accrued Rights . Upon the earlier of expiration or termination of this Agreement, in part or in its entirety, all licenses and rights granted to Licensee with respect to the Intellectual Property to which such expiration or termination relates shall immediately cease. Expiration and termination of this Agreement, in part or in its entirety, shall be without prejudice to any rights which shall have accrued to the benefit of any Party prior to such expiration and termination (as applicable). Any sublicenses granted by Licensee to any customer or end user prior to the effective date of any expiration or termination of this Agreement shall survive such expiration or termination in accordance with their respective terms.
(b) Surviving Obligations . Expiration and termination of this Agreement, in part or in its entirety, shall not terminate Licensee’s obligation to pay all amounts for which Licensee is obligated to reimburse Licensor hereunder that have accrued prior to the effective date of such expiration or termination (as applicable). The rights and obligations of the Parties pursuant to the following sections of this Agreement shall survive any expiration or termination of this Agreement: Article I , Article II , Article III , Article VI (except with respect to the first sentence of Section 6.2 ), Article VII and Article VIII .
(c) Effect of Licensor Bankruptcy . All rights and licenses granted by Licensor under this Agreement are and shall be deemed to be rights and licenses to “intellectual property”, and all Licensed IP is and shall be deemed to be “embodiments” of “intellectual property”, in each case, as such terms are used in and interpreted under Section 365(n) of the United States Bankruptcy Code. Licensee shall have all rights, elections and protections under the United States Bankruptcy Code and all other applicable bankruptcy, insolvency and similar laws with respect to this Agreement and the subject matter hereof. Without limiting the generality of the foregoing, Licensor acknowledges and agrees that, if Licensor becomes subject to any bankruptcy or similar proceeding, subject to Licensee’s rights of election under Section 365(n), all rights, licenses and privileges granted to Licensee under this Agreement will continue subject to the respective terms and conditions hereof, and will not be affected, even by Licensor’s rejection of this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Complete Agreement; Construction . This Agreement, including the Exhibits and Schedules, and the Merger Agreement, Separation Agreement and Ancillary Agreements constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof and thereof. In the event of any inconsistency between this Agreement and any Schedule hereto, the Schedule shall prevail. If there is a conflict between any provision of this Agreement and a provision in any of the Merger Agreement or Separation Agreement, this Agreement shall control.
 
14

Section 8.2 Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
Section 8.3 Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by a nationally recognized overnight courier service, or by facsimile or email (with a confirmatory copy sent by a nationally recognized overnight courier service) to the respective Parties at the following addresses (or at such other address for a Party) as shall be specified in a notice given in accordance with this Section 8.3 ):
If to Citrix:
Citrix Systems, Inc.
851 West Cypress Creek Road
Fort Lauderdale, FL 33309
Facsimile: (954) 267-3101
Attn: General Counsel
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
500 Boylston Street, 23rd Floor
Boston, MA 02116
Facsimile:        (617) 573-4822
Attention:         Margaret A. Brown
If to LogMeIn, or to SpinCo:
LOGMEIN, INC.
320 Summer Street
Boston, MA 02210
Facsimile: (781) 437-1820
Attention:        Chief Financial Officer
                         General Counsel
 
15

with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
John Hancock Tower
200 Clarendon Street
Boston, MA 02116
Facsimile: (617) 948-6001
Attention:         John H. Chory
                          Bradley C. Faris
Any notice to Citrix shall be deemed notice to all members of the Citrix Group, and any notice to SpinCo shall be deemed notice to all members of the SpinCo Group.
Section 8.4 Amendment and Waivers .
(a) This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, each Party that expressly references the Section of this Agreement to be amended; or (b) by a waiver in accordance with Section 8.4(b).
(b) Any Party may (a) extend the time for the performance of any of the obligations or other acts of the other Parties; (b) waive any inaccuracies in the representations and warranties of the other parties contained herein or in any document delivered by the other Parties pursuant to this Agreement; or (c) waive compliance with any of the agreements of the other Parties or conditions to such obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by any party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder. Any waiver of any term or condition hereof shall not be construed as a waiver of any subsequent breach or as a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement.
Section 8.5 Assignment . This Agreement and the rights and obligations hereunder may not be assigned by any Party by operation of Law or otherwise without the express written consent of the other Parties (which consent may be granted or withheld in the sole discretion of the other Parties). Any attempted assignment that is not in accordance with this  Section 8.5  shall be null and void. Notwithstanding the foregoing in this Section 8.5 , Citrix or SpinCo may assign its rights or delegate its duties under this Agreement (i) to a member of its Group (for so long as such member remains a member of such Group) or (ii) in connection with any change of control, merger, acquisition, or sale of all or substantially all of the assets, stock or business of the assigning Party to which this Agreement relates; provided that the member or other assignee agrees in writing to be bound by the terms and conditions contained in this Agreement.
Section 8.6 Successors and Assigns . The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted assigns.
 
16

Section 8.7 Subsidiaries . Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any entity that becomes a Subsidiary of such Party at or after the Effective Time, in each case to the extent such Subsidiary remains a Subsidiary of the applicable Party.
Section 8.8 Third Party Beneficiaries . This Agreement shall be binding upon and inure solely to the benefit of, and be enforceable by, only the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to, or shall confer upon, any other Person any right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.
Section 8.9 Exhibits and Schedules . The Exhibits and Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.
Section 8.10 Dispute Resolution . Any and all Disputes arising hereunder shall be resolved through the procedures provided in Article VII of the Separation Agreement.
Section 8.11 Governing Law . This Agreement and any Dispute shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof that might lead to the application of Laws other than the Laws of the State of Delaware. All Actions that, directly or indirectly, arise out of or relate to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware;  provided ,  however , that if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any Delaware state court or United States federal court sitting in the State of Delaware. Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action brought by any party hereto that, directly or indirectly, arises out of or relates to this Agreement; (b) agrees that service of process in such Action will be validly effected by sending notice in accordance with  Section 8.3 ; (c) irrevocably waives and releases, and agrees not to assert by way of motion, defense, or otherwise, in or with respect to any such Action, any claim that (i) such Action is not subject to the subject matter jurisdiction of at least one of the above-named courts; (ii) its property is exempt or immune from attachment or execution in the State of Delaware; (iii) such Action is brought in an inconvenient forum; (iv) that the venue of such Action is improper; or (v) this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts; and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
Section 8.12 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LIABILITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS
 
17

REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS  SECTION 8.12 .
Section 8.13 Severability . If any term or other provision (or part thereof) of this Agreement is declared invalid, illegal or incapable of being enforced by any Governmental Authority, all other terms and provisions (or parts thereof) of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision (or part thereof) is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
Section 8.14 Interpretation . The Parties have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.
[Signature Page Follows]
 
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

Citrix	 		
		
By:	 	 	
Name:	 		
Title:	 		
		
SpinCo	 		
		
By:	 	 	
Name:	 		
Title:	 		
		
LogMeIn	 		
		
By:	 	 	
Name:	 		
Title:	 		
 
19

EXHIBIT C
FORM OF
EMPLOYEE MATTERS AGREEMENT
by and among
CITRIX SYSTEMS, INC.,
GETGO, INC.
and
LOGMEIN, INC.
Dated as of [●], 2016

TABLE OF CONTENTS

 	 	 	  	PAGE	 	
	
ARTICLE I	  	
	
DEFINITIONS	  	
			
Section 1.1	 	General	  	 	1	  	
	
ARTICLE II	  	
	
TRANSFER OF SPINCO EMPLOYEES; GENERAL PRINCIPLES	  	
			
Section 2.1	 	Transfer of Employment to SpinCo of SpinCo Employees; SpinCo LTD Employees; Post-Effective Time Transfers; SpinCo Contractors	  	 	3	  	
Section 2.2	 	Assumption and Retention of Liabilities	  	 	5	  	
Section 2.3	 	SpinCo Participation in the Citrix Plans	  	 	5	  	
Section 2.4	 	Sponsorship of the SpinCo Plans	  	 	6	  	
Section 2.5	 	Coordination with Merger Agreement	  	 	6	  	
Section 2.6	 	Reimbursements	  	 	6	  	
Section 2.7	 	Labor Relations	  	 	6	  	
	
ARTICLE III	  	
	
DEFINED CONTRIBUTION AND NON-QUALIFIED DEFERRED COMPENSATION PLANS	  	
			
Section 3.1	 	401(k) Plan	  	 	6	  	
	
ARTICLE IV	  	
	
HEALTH AND WELFARE PLANS; PAYROLL; COBRA AND VACATION	  	
			
Section 4.1	 	Cessation of Participation in Citrix Health and Welfare Plans	  	 	7	  	
Section 4.2	 	Allocation of Health and Welfare Plan Liabilities	  	 	7	  	
Section 4.3	 	Flexible Spending Plan Treatment	  	 	7	  	
Section 4.4	 	Workers’ Compensation Liabilities	  	 	8	  	
Section 4.5	 	COBRA and HIPAA	  	 	8	  	
Section 4.6	 	Vacation and Paid Time Off	  	 	8	  	
Section 4.7	 	Payroll	  	 	8	  	
	
ARTICLE V	  	
	
INCENTIVE COMPENSATION AND EQUITY COMPENSATION	  	
			
Section 5.1	 	Incentive Plans	  	 	9	  	

							
Section 5.2	 	Awards under the Citrix Equity-Based Plans	  	 	9	  	
Section 5.3	 	Citrix ESPP	  	 	9	  	
	
ARTICLE VI	  	
	
NON-U.S. EMPLOYEES	  	
			
Section 6.1	 	Special Provisions for Employees Outside of the United States	  	 	9	  	
	
ARTICLE VII	  	
	
GENERAL AND ADMINISTRATIVE	  	
			
Section 7.1	 	Sharing of Participant Information	  	 	10	  	
Section 7.2	 	No Third Party Beneficiaries	  	 	10	  	
Section 7.3	 	Audit Rights with Respect to Information Provided	  	 	10	  	
Section 7.4	 	Fiduciary Matters	  	 	11	  	
Section 7.5	 	Consent of Third Parties	  	 	11	  	
Section 7.6	 	Taxes	  	 	11	  	
Section 7.7	 	Sponsored Employees	  	 	11	  	
	
ARTICLE VIII	  	
	
DISPUTE RESOLUTION	  	
Section 8.1	 	General	  	 	12	  	
	
ARTICLE IX	  	
	
MISCELLANEOUS	  	
			
Section 9.1	 	Complete Agreement; Construction	  	 	12	  	
Section 9.2	 	Transaction Agreements	  	 	12	  	
Section 9.3	 	Counterparts	  	 	12	  	
Section 9.4	 	Survival of Agreements	  	 	13	  	
Section 9.5	 	Expenses	  	 	13	  	
Section 9.6	 	Notices	  	 	13	  	
Section 9.7	 	Amendment and Waivers.	  	 	14	  	
Section 9.8	 	Termination	  	 	14	  	
Section 9.9	 	Assignment	  	 	14	  	
Section 9.10	 	Successors and Assigns	  	 	14	  	
Section 9.11	 	Payment Terms	  	 	14	  	
Section 9.12	 	Subsidiaries	  	 	15	  	
Section 9.13	 	Exhibits and Schedules	  	 	15	  	
Section 9.14	 	Governing Law	  	 	15	  	
Section 9.15	 	Waiver of Jury Trial	  	 	16	  	
Section 9.16	 	Specific Performance	  	 	16	  	

							
Section 9.17	 	Severability	  	 	16	  	
Section 9.18	 	Interpretation	  	 	17	  	
Section 9.19	 	No Duplication; No Double Recovery	  	 	17	  	
Section 9.20	 	No Admission of Liability	  	 	17	  	

EMPLOYEE MATTERS AGREEMENT
This EMPLOYEE MATTERS AGREEMENT (this “ Agreement ”), dated as of [●], 2016, is entered into by and among CITRIX SYSTEMS, INC., a Delaware corporation (“ Citrix ”), GETGO, INC., a Delaware corporation and a wholly owned subsidiary of Citrix (“ SpinCo ”), and LOGMEIN, INC., a Delaware corporation (“ LogMeIn ”). “Party” or “Parties” means Citrix, SpinCo or LogMeIn, individually or collectively, as the case may be. Capitalized terms used and not defined herein shall have the meaning set forth in the Separation and Distribution Agreement between the Parties, dated as of July 26, 2016 (the “ Separation Agreement ”).
WHEREAS, as contemplated by the Separation Agreement, Citrix, SpinCo and LogMeIn desire to enter into this Agreement to provide for the allocation of assets, Liabilities, and responsibilities with respect to certain matters relating to employees (including employee compensation and benefit plans and programs) between them.
NOW, THEREFORE, the Parties, intending to be legally bound, agree as follows:
 
ARTICLE I
DEFINITIONS
Section 1.1 General. For purposes of this Agreement the following terms shall have the meaning ascribed to them in this Article I.
1.1 “ Citrix Defined Contribution Plan ” means the Citrix 401(k) Plan.
1.2 “ Citrix Employee ” means any individual who, as of the Distribution Effective Time, is either actively employed by, or then on a leave of absence from, Citrix or a Citrix Group member (including maternity, paternity, family, sick, short-term or long-term disability leave, qualified military service under the Uniformed Services Employment and Reemployment Rights Act of 1994, and leave under the Family Medical Leave Act and other approved leaves), but does not include any SpinCo Employee (other than the SpinCo LTD Employees).
1.3 “ Citrix Equity-Based Plans ” means the Citrix Amended and Restated 2005 Equity Incentive Plan and the Citrix 2014 Equity Incentive Plan.
1.4 “ Citrix ESPP ” means the Citrix 2015 Employee Stock Purchase Plan.
1.5 “ Citrix FSAs ” has the meaning set forth in Section 4.3 .
1.6 “ Citrix Health and Welfare Plans ” means the health and welfare plans, sponsored and maintained by Citrix or any Citrix Group member immediately prior to the Distribution Effective Time, which provide group health, life, dental, accidental death and dismemberment, health care reimbursements, dependent care assistance and disability benefits. The term Citrix Health and Welfare Plan does not include any SpinCo Plan.

1.7 “ Citrix Participant ” means any individual who is a Citrix Employee or a former Citrix Employee, and any beneficiary, dependent, or alternate payee of such individual, as the context requires.
1.8 “ Citrix Plan ” means any plan, policy, program, payroll practice, on-going arrangement, contract, trust, insurance policy, or other agreement or funding vehicle (including a Citrix Health and Welfare Plan) for which the eligible classes of participants include employees or former employees of Citrix or a Citrix Group member (which may include employees of SpinCo Group members prior to the Distribution Effective Time). The term Citrix Plan does not include any SpinCo Plans.
1.9 “ COBRA ” means the continuation coverage requirements for “group health plans” under Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and as codified in Code Section 4980B and ERISA Sections 601 through 608.
1.10 “ Code ” means the Internal Revenue Code of 1986, as amended, or any successor federal income tax law. Reference to a specific Code provision also includes any proposed, temporary, or final regulation in force under that provision.
1.11 “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended. Reference to a specific provision of ERISA also includes any proposed, temporary, or final regulation in force under that provision.
1.12 “ HIPAA ” means the health insurance portability and accountability requirements for “group health plans” under the Health Insurance Portability and Accountability Act of 1996, as amended.
1.13 “ LogMeIn 401(k) Plan ” means the tax-qualified 401(k) defined contribution savings plan to be established or designated by LogMeIn or a LogMeIn Subsidiary prior to the Distribution Effective Time.
1.14 “ LogMeIn Health and Welfare Plans ” means the health and welfare plans, sponsored and maintained by LogMeIn or a LogMeIn Subsidiary from time to time, which provide group health, life, dental, accidental death and dismemberment, health care reimbursements, dependent care assistance and disability benefits.
1.15 “ LogMeIn Plan ” means any plan, policy, program, payroll practice, on-going arrangement, contract, trust, insurance policy, or other agreement or funding vehicle (including a LogMeIn Health and Welfare Plan) for which the eligible classes of participants include employees or former employees of LogMeIn (which may include employees of SpinCo Group members as of the day following the date of the Distribution Effective Time).
1.16 “ SpinCo Contractor ” has the meaning set forth in the Merger Agreement.
1.17 “ SpinCo Employee ” has the meaning set forth in the Merger Agreement.
1.18 “ SpinCo FSAs ” has the meaning set forth in Section 4.3 .
 
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1.19 “ SpinCo LTD Employees ” means the SpinCo Employees who are receiving long term disability benefits under a Citrix Plan at the Distribution Effective Time or are on short term disability leave at the Distribution Effective Time.
1.20 “ SpinCo Participant ” means any individual who is a SpinCo Employee, and any beneficiary, dependent, or alternate payee of such individual, as the context requires.
1.21 “ SpinCo Plan ” means any benefit or compensation plan, policy, program, payroll practice, on-going arrangement, contract, trust, insurance policy, or other agreement or funding vehicle for the benefit of individual service providers (i) that is sponsored or maintained by a Transferred Subsidiary or (ii) for which Liabilities transfer to SpinCo or any SpinCo Group member under applicable Law as a result of the transactions contemplated by the Transaction Agreements.
1.22 “ Sponsored Employee ” means a SpinCo Employee working on a visa or work permit sponsored by Citrix or a Citrix Group member as of immediately prior to the Distribution Effective Time.
ARTICLE II
TRANSFER OF SPINCO EMPLOYEES; GENERAL PRINCIPLES
Section 2.1 Transfer of Employment to SpinCo of SpinCo Employees; SpinCo LTD Employees; Post-Effective Time Transfers; SpinCo Contractors .
(a) Section 4.14(a) of the Citrix Disclosure Letter, as updated from time to time prior to the Distribution Effective Time in accordance with the Merger Agreement, identifies each individual who is a SpinCo Employee and, Citrix and SpinCo have caused the employment of each SpinCo Employee to be transferred, pursuant to the Internal Reorganization, to a SpinCo Group member in the applicable jurisdiction.
(b) Citrix shall, or shall cause a Citrix Group member to, employ or retain the employment of each SpinCo LTD Employee until such SpinCo LTD Employee returns to active work or ceases to have a right to reemployment under the applicable Citrix Health and Welfare Plan. SpinCo shall, or cause a SpinCo Group member to, offer (upon substantially comparable terms and conditions of employment) employment to each SpinCo LTD Employee when such SpinCo LTD Employee returns to work within the later of (i) the time period prescribed under applicable Law, (ii) the applicable leave policy governing such employee at the time the disability commenced or (iii) six (6) months, and shall hire each SpinCo LTD Employee who accepts such offer of employment and arrives to work for a SpinCo Group member. SpinCo or a SpinCo Group member, as the case may be, shall indemnify each Citrix Group member against any Liability with respect to a failure by SpinCo or a SpinCo Group member to (i) offer to hire such SpinCo LTD Employee or (ii) hire such SpinCo LTD Employee who accepts an offer of employment by SpinCo or a SpinCo Group member and arrives to work in accordance with this Section 2.1(b). To the extent that a SpinCo LTD Employee in the United States is on short-term disability leave as of the Distribution Effective
 
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Time and subsequently becomes entitled to long-term disability benefits as a result of such disability (without having returned to work), such long-term disability benefits will be provided under the applicable Citrix Plan. Periodically following the Distribution Effective Time, Citrix shall calculate the cost of the compensation, benefits and other employment-related costs actually incurred by Citrix Group members in employing such SpinCo LTD Employees following the Distribution Effective Time (other than severance or other termination benefits and the costs of providing disability insurance coverage) and shall provide SpinCo with notice and reasonable documentation of such amount following SpinCo’s receipt of such notice, SpinCo shall reimburse such amount to Citrix. SpinCo LTD Employees shall be considered Citrix Employees unless and until either (a) their employment is terminated by the applicable Citrix Group member or (b) they return to active work and are hired by SpinCo or a SpinCo Group member pursuant to this Section 2.1(b).
(c) In the event that either Party reasonably determines following the Distribution Effective Time that any individual employed outside the United States who is not a SpinCo Employee has inadvertently become employed by a member of the SpinCo Group (due to the operation of transfer of undertakings or similar law or regulation), the Parties shall cooperate and take such actions as may be reasonably necessary in order to cause the employment of such individuals to be promptly transferred to a member of the Citrix Group, and Citrix shall reimburse the members of the SpinCo Group for all compensation, benefits and other employment-related costs incurred by SpinCo Group members in employing such individuals.
(d) To the extent contractual or legal severance or other termination benefit becomes payable as a result of the transfers of employment described in Sections 2.1(a) , (b)  or (c) , Citrix shall be responsible for the payment of such severance or termination benefit. LogMeIn shall be responsible for the payment of any severance or termination benefit incurred as a result of other employment terminations, transfers or other actions with respect to SpinCo Employees which are not undertaken in connection with the Internal Reorganization but which are either (1) undertaken by Citrix at the request of LogMeIn or (2) occurring upon or following the Distribution Effective Time.
(e) With respect to any employment agreements with SpinCo Employees that are not with SpinCo or a SpinCo Group member or which do not transfer to a SpinCo Group member by operation of applicable Law, the Parties shall use reasonable best efforts to assign the applicable Contract to a member of the SpinCo Group in the applicable jurisdiction (or such other SpinCo Group member as is designated by LogMeIn) and SpinCo shall, or shall cause a member of the SpinCo Group to, assume and perform such employment agreements. Prior to the Distribution Effective Time, Citrix shall use reasonable best efforts to cause each SpinCo Employee to enter into a new confidentiality, assignment and restrictive covenant agreement comparable to their current such agreements but with respect to the SpinCo Business, the beneficiary of which shall be SpinCo or a SpinCo Group member. To the extent that any SpinCo Employee does not enter into such a new confidentiality, assignment and restrictive covenant agreement, Citrix shall cause all rights and benefits of Citrix and any Citrix Group member under any confidentiality, assignment and restrictive covenant agreement with such SpinCo Employee to be assigned to the SpinCo or a SpinCo Group member, but only to the extent such rights and benefits relate to the SpinCo Business.
(f) With respect to any independent contractor agreements with SpinCo Contractors that are not with SpinCo or a SpinCo Group member, the Parties shall use reasonable best efforts to assign the applicable Contract to a member of the SpinCo Group in the applicable jurisdiction (or such other SpinCo Group member as is designated by LogMeIn) and SpinCo shall,
 
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or shall cause a member of the SpinCo Group to, assume and perform such independent contractor agreements. Prior to the Distribution Effective Time, Citrix shall cause all rights and benefits of Citrix and any Citrix Group member under any confidentiality, assignment and restrictive covenant agreement with a SpinCo Contractor to be assigned to SpinCo or a SpinCo Group member, but only to the extent such rights and benefits relate to the SpinCo Business. To the extent that any SpinCo Contractor is not party to any confidentiality, assignment and restrictive covenant agreement with Citrix or any Citrix Group member, Citrix shall use reasonable best efforts to cause each such SpinCo Contractor to enter into a confidentiality, assignment and restrictive covenant agreement, the beneficiary of which shall be SpinCo or a SpinCo Group member.
(g) LogMeIn, SpinCo Group and SpinCo shall, or shall cause a member of the SpinCo Group to, provide each SpinCo Employee who incurs a termination of employment during the twelve (12) month period following the Distribution Effective Time with severance payments and severance benefits that are the same as the severance payments and severance benefits provided to similarly situated employees of LogMeIn under the LogMeIn Plans.
Section 2.2 Assumption and Retention of Liabilities. Citrix and SpinCo agree that (A) employment-related Liabilities not otherwise allocated herein and associated with (1) Citrix Participants and (2) SpinCo Participants (to the extent incurred prior to or on the date of the Distribution Effective Time and not incurred under a SpinCo Plan) are to be retained or assumed by Citrix or a Citrix Group member and (B) employment-related Liabilities not otherwise allocated herein and that are (1) associated with SpinCo Participants and incurred following the date of the Distribution Effective Time or (2) are incurred under a SpinCo Plan (for the avoidance of doubt, excluding any such Liabilities associated with individuals who are not current SpinCo Employees or SpinCo LTD Employees as of Distribution Effective Time) are to be assumed by SpinCo or a SpinCo Group member, in each case, except as specifically set forth herein. For purposes of this Agreement, the following claims and liabilities shall be deemed to be incurred as follows: (x) medical, vision, dental and/or prescription drug benefits (excluding hospital expenses), upon provision of the services, materials or supplies comprising any such benefits, (y) hospital expenses upon the date of admission and (z) short-term and long-term disability, life, accidental death and dismemberment and business travel accident insurance benefits, upon the death, illness, injury or accident giving rise to such benefits.
Section 2.3 SpinCo Participation in the Citrix Plans; Citrix Participation in SpinCo Plans . Effective as of the day following the Distribution Effective Time, SpinCo and each SpinCo Group member shall cease to be participating companies in each Citrix Plan, and Citrix and SpinCo shall take all necessary action before the Distribution Effective Time to effectuate such cessation as a participating company. To the extent the terms of a Citrix Plan (or the terms of any service provider with respect to a Citrix Plan) provide for continued coverage for a period of time following the Distribution Effective Time, such continued coverage shall not violate this Section 2.3. Effective as of the Distribution Effective Time, Citrix shall cause all employees and other individual services providers of Citrix who are not SpinCo Employees to cease participating in, and to have no further rights under, the SpinCo Plans. In the event of any conflict between the provisions of this Section 2.3 and those of the Separation Agreement or any other Transaction Agreement, the provisions of this Section 2.3 shall govern.
 
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Section 2.4 Sponsorship of the SpinCo Plans; Transfer of SpinCo Plan Assets . As of the Distribution Effective Time, Citrix and SpinCo shall have taken such actions (if any) as are required to cause (a) LogMeIn, SpinCo or a SpinCo Group member to assume sole sponsorship of, and all Liabilities with respect to, each SpinCo Plan and (b) all assets of any SpinCo Plan to be transferred to LogMeIn or a SpinCo Group member in the applicable jurisdiction.
Section 2.5 Coordination with Merger Agreement . The provisions of this Agreement shall not be deemed to modify the obligations of the Parties set forth in the Merger Agreement with respect to labor, employment, compensation, and related matters, including, without limitation, those set forth in Section 3.04 and Section 7.14 thereof.
Section 2.6 Reimbursements . From time to time after the Distribution Effective Time, the Parties shall promptly reimburse one another, upon reasonable request of the Party requesting reimbursement and the presentation by such Party of such substantiating documentation as the other Party shall reasonably request, for the cost of any Liabilities satisfied or assumed by the Party requesting reimbursement or its Affiliates that are made, pursuant to this Agreement, the responsibility of the other Party or any of its Affiliates.
Section 2.7 Labor Relations . To the extent required by applicable Law or any agreement with a labor union, works council, or similar employee organization representing any SpinCo Employee, the Parties shall cooperate to provide notice, engage in consultation, and take any similar action which may be required on its part in connection with the Distribution. Notwithstanding the foregoing, Citrix shall, and shall cause any Citrix Group member to, comply in all material respects with all applicable Laws and the terms of any agreement with a labor union, works council or similar employee organization representing any SpinCo Employee, including all notification and/or consultation requirements, necessary in connection with the Distribution with respect to SpinCo Employees in accordance with applicable Law.
ARTICLE III
DEFINED CONTRIBUTION AND NON-QUALIFIED DEFERRED COMPENSATION PLANS
Section 3.1 401(k) Plan . Citrix shall cause each SpinCo Employee to become fully vested as of the Distribution Effective Time in the SpinCo Employee’s account under the Citrix Defined Contribution Plan, including with respect to any employer contributions to such plan for the period occurring prior to the Distribution Effective Time (which such contributions Citrix shall cause to be made as soon as reasonably practicable following the Distribution Effective Time). Citrix shall (i) cause the Citrix Defined Contribution Plan to permit, if elected by a SpinCo Employee, the rollover of such SpinCo Employee’s account balance (including loans), to the LogMeIn 401(k) Plan, to extent permitted by law, and (ii) to the extent any SpinCo Employee has a loan outstanding as of the Distribution Effective Time under the Citrix Defined Contribution Plan, cause such loan to remain outstanding (and not go into default) until the first to occur of the end of the first full calendar quarter following the Distribution Effective Time or the earlier rollover of the SpinCo Employee’s account balance and loan note to the LogMeIn 401(k) Plan.
 
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ARTICLE IV
HEALTH AND WELFARE PLANS; PAYROLL; COBRA AND VACATION
Section 4.1 Cessation of Participation in Citrix Health and Welfare Plans . As of the day following the date of the Distribution Effective Time, SpinCo Employees shall cease to participate in the Citrix Health and Welfare Plans (subject to the last sentence of Section 2.3 ). LogMeIn shall cause SpinCo Participants who participate in Citrix Health and Welfare Plans immediately before the Distribution Effective Time to be automatically enrolled or offered participation, as of the Distribution Effective Time, in LogMeIn Health and Welfare Plans corresponding to the Citrix Health and Welfare Plans in which the SpinCo Participants participated immediately before the Distribution Effective Time or in which similarly situated employees of LogMeIn participate; provided , that for SpinCo Employees employed primarily in (or, in the case of any expatriate SpinCo Employee, whose home country is) the United States, or as may be required under applicable Law for SpinCo Employees employed primarily outside of the United States, such LogMeIn Health and Welfare Plans shall be substantially similar to the Citrix Health and Welfare Plans in which such SpinCo Participants participated immediately prior to the Distribution Effective Time.
Section 4.2 Allocation of Health and Welfare Plan Liabilities . All outstanding Liabilities relating to, arising out of, or resulting from health and welfare coverage or claims incurred by or on behalf of SpinCo Participants under the Citrix Health and Welfare Plans on or before date of the Distribution Effective Time shall be retained by Citrix.
Section 4.3 Flexible Spending Plan Treatment . Prior to the Distribution Effective Time, LogMeIn shall establish or designate a dependent care spending account and a medical care spending account (the “ LogMeIn FSAs ”). The Parties shall take all steps reasonably necessary or appropriate so that the account balances (positive or negative) under the Citrix FSAs of each SpinCo Employee who has elected to participate therein in the year in which the Distribution Effective Time occurs shall be transferred on, or as soon as practicable after, the Distribution Effective Time from the Citrix FSAs to the corresponding LogMeIn FSAs. The LogMeIn FSAs shall assume responsibility as of the Distribution Effective Time for all outstanding dependent care and medical care claims under the Citrix FSAs of each SpinCo Employee for the year in which the Distribution Effective Time occurs and shall assume the rights of and agree to perform the obligations of the analogous Citrix FSA from and after the day following the date of the Distribution Effective Time. The Parties shall cooperate to provide that the contribution elections of each such SpinCo Employee as in effect immediately before the Distribution Effective Time remain in effect under the LogMeIn FSAs following the Distribution Effective Time. As soon as practicable after the Distribution Effective Time, Citrix shall transfer to SpinCo an amount equal to the total contributions made to the Citrix FSAs by SpinCo Employees in respect of the plan year in which the Distribution Effective Time occurs, reduced by an amount equal to the total claims already paid to SpinCo in respect of such plan year. From and after the Distribution Effective Time, Citrix shall (subject to applicable Law) provide SpinCo with such information such entity may reasonably request to enable it to verify any claims information pertaining to a Citrix FSA.
 
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Section 4.4 Workers’ Compensation Liabilities . All workers’ compensation Liabilities relating to, arising out of, or resulting from any claim by SpinCo Employees that result from an accident or from an occupational disease which is incurred before or on the date of the Distribution Effective Time shall be retained by Citrix. SpinCo and each SpinCo Group member shall be solely responsible for all workers’ compensation Liabilities relating to, arising out of, or resulting from any claim by a SpinCo Employee that results from an accident or from an occupational disease which is incurred after the date of the Distribution Effective Time. A claim for workers compensation benefits shall be deemed to be incurred when the event giving rise to the claim (the “ Workers Compensation Event ”) occurs. If the Workers Compensation Event occurs over a period both preceding and following the date of the Distribution Effective Time, the claim shall be, to the extent not covered by insurance, the joint responsibility of LogMeIn and Citrix (allocated as appropriate between LogMeIn and Citrix based upon the relative periods of time that the Workers Compensation Event transpired preceding and following the Distribution Effective Time). The Parties shall cooperate with respect to any notification to appropriate governmental agencies of the disposition and the issuance of new, or the transfer of existing, workers’ compensation insurance policies and contracts governing the handling of claims.
Section 4.5 COBRA and HIPAA . Citrix or the applicable Citrix Group member shall remain responsible for all Liabilities incurred pursuant to COBRA and for administering compliance with the health care continuation requirements of COBRA, the certificate of creditable coverage requirements of HIPAA, and the corresponding provisions of the Citrix Health and Welfare Plans with respect to COBRA qualifying events occurring on or before the date of the Distribution Effective Time. SpinCo, LogMeIn or an applicable Affiliate shall be responsible for all Liabilities incurred pursuant to COBRA and for administering compliance with the health care continuation requirements of COBRA, the certificate of creditable coverage requirements of HIPAA, and the corresponding provisions of the SpinCo Health and Welfare Plans with respect to SpinCo Participants who incur a COBRA qualifying event at any time after the date of the Distribution Effective Time.
Section 4.6 Vacation and Paid Time Off . As of the Distribution Effective Time, the applicable SpinCo Group member shall credit each SpinCo Employee with the unused vacation days and personal and sickness days that such individual has accrued immediately prior to the Distribution Effective Time, to the extent included as a SpinCo Current Liability in SpinCo Working Capital (as such terms are defined in the Merger Agreement), in accordance with the vacation and personnel policies applicable to such employee immediately prior to the Distribution Effective Time (unless such vacation and paid time off is required under applicable Law to be paid out to the SpinCo Employee in connection with the Distribution and the transactions contemplated hereby, in which case such payment shall be made by Citrix as of or prior to the Distribution Effective Time).
Section 4.7 Payroll . On the applicable Citrix Group member’s first ordinary payroll date occurring on or after the Distribution Effective Time, Citrix shall cause to be paid to all SpinCo Employees all unpaid wages and other compensation earned or accrued through the Distribution Effective Time, including the amounts required to be paid under Sections 5.1 through 5.3 .
 
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ARTICLE V
INCENTIVE COMPENSATION AND EQUITY COMPENSATION
Section 5.1 Incentive Plans . At the Distribution Effective Time, the participation by each SpinCo Employee in any cash bonus plan of Citrix or a Citrix Group Member shall end, and Citrix shall pay to each such SpinCo Employee a prorated cash bonus under any cash bonus plan of Citrix or a Citrix Group Member, as determined in good faith by Citrix in a manner consistent with past practices and based on the target level of performance (without regard to any requirement for continued employment following the Distribution Effective Time). The participation by any SpinCo Employee in a sales plan of Citrix or a Citrix Group Member shall end as of the Distribution Effective Time, and Citrix shall pay to each such SpinCo Employee the applicable commission under such sales plan for any transactions that have closed prior to the Distribution Effective Time, provided and only to the extent that such SpinCo Employee would have been entitled to receive such commission pursuant to the terms of such sales plan if the Distribution Effective Time had not occurred.
Section 5.2 Awards under the Citrix Equity-Based Plans . Awards outstanding under the Citrix Equity-Based Plans and held by SpinCo Employees as of the Distribution Effective Time shall be treated in the manner set forth in Section 3.04 of the Merger Agreement.
Section 5.3 Citrix ESPP . As of the Distribution Effective Time, the participation of SpinCo Employees in the Citrix ESPP shall terminate and the SpinCo Employees shall receive a lump sum payment from Citrix in respect of their payroll deductions not previously used to purchase Citrix Common Stock in accordance with the terms of the Citrix ESPP.
ARTICLE VI
NON-U.S. EMPLOYEES
Section 6.1 Special Provisions for Employees Outside of the United States . The Appendices to this Agreement set forth the additional and/or different agreements of the Parties with respect to compensation, benefits, employees, and related matters outside of the United States. From and after the date hereof, the Parties agree to reasonably cooperate to effect the provisions of this Agreement with respect to employees and employee-related matters outside of the United States. Prior to the Distribution Effective Time, Citrix shall complete such schedules in good faith, and otherwise consistent with the principles of this Agreement subject to the approval of LogMeIn, which approval shall not be unreasonably withheld. To the extent required by applicable Law, SpinCo, a member of the SpinCo Group or LogMeIn, as appropriate, shall become a party to the applicable collective bargaining, works council, or similar arrangements with respect to SpinCo Employees outside the United States and shall comply with obligations thereunder from and after the Distribution Effective Time.
 
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ARTICLE VII
GENERAL AND ADMINISTRATIVE
Section 7.1 Sharing of Participant Information . To the maximum extent permitted under applicable Law, Citrix and SpinCo shall share, and shall cause each member of its respective Group to reasonably cooperate with the other Party hereto to (i) share, with each other and their respective agents and vendors all participant information reasonably necessary for the efficient and accurate administration of each of the Citrix Plans and the SpinCo Plans, (ii) facilitate the transactions and activities contemplated by this Agreement and (iii) resolve any and all employment-related claims regarding SpinCo Employees. SpinCo and its respective authorized agents shall, subject to applicable laws on confidentiality, be given reasonable and timely access to, and may make copies of, all information relating to the subjects of this Agreement in the custody of the Citrix Group, to the extent reasonably necessary for such administration. Citrix Group members shall be entitled to retain copies of all SpinCo Records relating to the subjects of this Agreement in the custody of the Citrix Group, subject to the terms of the Separation Agreement and applicable Law.
Section 7.2 No Third Party Beneficiaries . No provision of this Agreement or the Separation Agreement shall be construed to create any right, or accelerate entitlement, to any compensation or benefit whatsoever on the part of any future, present, or former employee of Citrix, a Citrix Group member, SpinCo, or a SpinCo Group member under this Agreement, the Separation Agreement, any Citrix Plan or SpinCo Plan or otherwise. Except as expressly provided in this Agreement, nothing in this Agreement shall preclude SpinCo or any SpinCo Group member, at any time after the Distribution Effective Time, from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any SpinCo Plan, any benefit under any SpinCo Plan or any trust, insurance policy, or funding vehicle related to any SpinCo Plan (in each case in accordance with the terms of the applicable arrangement); except as expressly provided in this Agreement, nothing in this Agreement shall preclude Citrix or any Citrix Group member, at any time after the Distribution Effective Time, from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any Citrix Plan, any benefit under any Citrix Plan or any trust, insurance policy, or funding vehicle related to any Citrix Plan (in each case in accordance with the terms of the applicable arrangement); and except as expressly provided in this Agreement, nothing in this Agreement shall preclude LogMeIn from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any LogMeIn Plan, any benefit under any LogMeIn Plan or any trust, insurance policy, or funding vehicle related to any LogMeIn Plan (in each case in accordance with the terms of the applicable arrangement).
Section 7.3 Audit Rights with Respect to Information Provided . Each of Citrix and SpinCo, and their duly authorized representatives, shall have the right to conduct reasonable audits with respect to all information provided to it by the other Party pursuant to this Agreement. The Parties shall cooperate to determine the procedures and guidelines for conducting audits under this Section 7.3 , which shall require reasonable advance notice by the auditing Party. The auditing Party shall have the right to make copies of any records at its expense, subject to applicable Law.
 
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Section 7.4 Fiduciary Matters . Citrix and SpinCo each acknowledge that actions required to be taken pursuant to this Agreement may be subject to fiduciary duties or standards of conduct under ERISA or other applicable Law, and no Party shall be deemed to be in violation of this Agreement if it fails to comply with any provisions hereof based upon its good faith determination (as supported by advice from counsel experienced in such matters) that to do so would violate such a fiduciary duty or standard. Each Party shall be responsible for taking such actions as are deemed necessary and appropriate to comply with its own fiduciary responsibilities and shall fully release and indemnify the other Party for any Liabilities caused by the failure to satisfy any such responsibility.
Section 7.5 Consent of Third Parties . If any provision of this Agreement is dependent on the consent of any third party (such as a vendor or Governmental Authority), Citrix and SpinCo shall use commercially reasonable efforts to obtain such consent, and if such consent is not obtained, to implement the applicable provisions of this Agreement to the full extent practicable. If any provision of this Agreement cannot be implemented due to the failure of such third party to consent, Citrix and SpinCo shall negotiate in good faith to implement the provision in a mutually satisfactory manner. The phrase “commercially reasonable efforts” as used herein shall not be construed to require the incurrence of any non-routine or unreasonable expense or liability or the waiver of any right.
Section 7.6 Taxes . Citrix shall cause to be timely withheld and remitted to the applicable Governmental Authority all Taxes (including employer payroll Taxes) required to be withheld or remitted in respect of any compensation paid by any Citrix Group member to a SpinCo Employee on or after the date of the Distribution Effective Time (“ Citrix Post-Closing Compensation ”). Citrix shall reimburse SpinCo (or its designee) for any Taxes any SpinCo Group member is required to pay or withhold with respect to any Citrix Post-Closing Compensation, following receipt by Citrix of SpinCo’s request for such payment and evidence reasonably satisfactory to Citrix of the payment of such Taxes by a SpinCo Group Member. In the event of any conflict between the provisions of this Section 7.6 and those of the Tax Matters Agreement, the provisions of this Section 7.6 shall govern.
Section 7.7 Sponsored Employees . The Parties shall, and shall cause their respective members, to cooperate in good faith with each other and the applicable Governmental Authorities with respect to the process of obtaining work authorization for each Sponsored Employee to work with SpinCo or a SpinCo Group member, including but not limited to, petitioning the applicable Governmental Authorities for the transfer of each Sponsored Employee’s (as well as any spouse or dependent thereof, as applicable) visa or work permit, or the grant of a new visa or work permit, to SpinCo or any SpinCo Group member. Citrix agrees to promptly pay all costs and expenses related to the obtainment of work authorization of such Sponsored Employee (as well as any spouse or dependent thereof, as applicable) that are incurred in connection with the Internal Reorganization. LogMeIn agrees to promptly pay such costs and expenses that are otherwise incurred in connection with the Separation, Distribution or Merger. In the event that it is not legally permissible for a Sponsored Employee to continue work with SpinCo, or a SpinCo Group member, as applicable, following the Distribution Effective Time, such Sponsored Employee shall be treated as a SpinCo LTD Employee hereunder and the parties shall reasonably cooperate to provide for the services of such Sponsored Employee to be made available exclusively to the SpinCo Group under an employee secondment or similar arrangement under which a SpinCo
 
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Group member shall be responsible for the actual costs incurred by the Citrix Group for such individual’s compensation and benefits during the period of such secondment or similar arrangement (except to the extent such costs are otherwise allocated to a Citrix Group member hereunder) until the applicable visa or work permit is obtained (for the avoidance of doubt, and pursuant Section 2.1(b) such period shall not last longer than six (6) months); provided , however , that the Parties shall continue to use their commercially reasonable efforts to obtain the applicable visa or work permit.
ARTICLE VIII
DISPUTE RESOLUTION
Section 8.1 General . The provisions of Article VII of the Separation Agreement shall apply, mutatis mutandis, to all disputes, controversies, or claims (whether arising in contract, tort, or otherwise) that may arise out of or relate to, or arise under or in connection with, this Agreement or the transactions contemplated hereby.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Complete Agreement; Construction . This Agreement, together with the Separation Agreement and the other Transaction Agreements, constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof and thereof. If there is a conflict between any provision of this Agreement and a provision in any of the other Transaction Agreements (other than Section 3.04 and Section 7.14 of the Merger Agreement), the provision of this Agreement shall control unless (i) with respect to any Ancillary Agreement other than the Tax Matters Agreement, as specifically provided otherwise in this Agreement or in such other Ancillary Agreement, or (ii) with respect to the Tax Matters Agreement, the provision relates to matters addressed by the Tax Matters Agreement, in which case the Tax Matters Agreement shall control except to the extent expressly provided in Section 7.6 . If there is a conflict between any provision of this Agreement and a provision in Sections 3.04 or 7.14 of the Merger Agreement, the provision of the Merger Agreement shall control. Neither this Agreement nor any Ancillary Agreement shall govern Tax matters (including any administrative, procedural, and related matters thereto, “ Tax Matters ”), except to the extent expressly provided herein (in Section 7.6 ) or therein.
Section 9.2 Transaction Agreements . Except as expressly set forth herein, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Merger Agreement or the Ancillary Agreements.
Section 9.3 Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
 
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Section 9.4 Survival of Agreements . Except as otherwise contemplated by this Agreement or any Transaction Agreement, all covenants and agreements of the Parties contained in this Agreement and each Transaction Agreement shall survive the Distribution Effective Time and remain in full force and effect in accordance with their applicable terms.
Section 9.5 Expenses . Except as otherwise provided in this Agreement, the Separation Agreement, or any other Transaction Agreement, each party hereto shall be responsible for the fees and expenses of the Parties as provided in Section 9.03 of the Merger Agreement.
Section 9.6 Notices . All notices, requests, claims, demands, and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by a nationally recognized overnight courier service, or by facsimile or email (with a confirmatory copy sent by a nationally recognized overnight courier service) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this  Section 9.6 ):
If to Citrix, or to SpinCo prior to the Distribution Effective Time:
CITRIX SYSTEMS, INC.
851 West Cypress Creek Road
Fort Lauderdale, FL 33309
Facsimile:        (954) 267-3101
Attention:        General Counsel
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
500 Boylston Street, 23rd Floor
Boston, MA 02116
Facsimile:        (617) 573-4822
Attention:        Margaret A. Brown
If to LogMeIn, or to SpinCo after the Distribution Effective Time:
LOGMEIN, INC.
320 Summer Street
Boston, MA 02210
Facsimile:        (781) 437-1820
Attention:        Chief Financial Officer
        General Counsel
 
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with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
200 Clarendon Street
Boston, MA 02116
Facsimile:        (617) 948-6001
Attention:        John H. Chory
    Bradley C. Faris
Any notice to Citrix shall be deemed notice to all members of the Citrix Group, and any notice to SpinCo shall be deemed notice to all members of the SpinCo Group.
Section 9.7 Amendment and Waivers .
(a) This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, each Party that expressly references the Section of this Agreement to be amended; or (b) by a waiver in accordance with Section 9.7(b) .
(b) Any Party may (a) extend the time for the performance of any of the obligations or other acts of the other Parties; (b) waive any inaccuracies in the representations and warranties of the other parties contained herein or in any document delivered by the other Parties pursuant to this Agreement; or (c) waive compliance with any of the agreements of the other Parties or conditions to such obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by any party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder. Any waiver of any term or condition hereof shall not be construed as a waiver of any subsequent breach or as a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement.
Section 9.8 Termination . This Agreement shall terminate without further action at any time before the Distribution Effective Time upon termination of the Merger Agreement. If terminated, no party hereto shall have any Liability of any kind to the other parties or any other Person on account of this Agreement, except as provided in the Merger Agreement.
Section 9.9 Assignment . This Agreement and the rights and obligations hereunder may not be assigned by any Party by operation of Law or otherwise without the express written consent of the other Parties (which consent may be granted or withheld in the sole discretion of the other Parties). Any attempted assignment that is not in accordance with this  Section 9.9  shall be null and void.
Section 9.10 Successors and Assigns . The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of, and be enforceable by (and against) the Parties and their respective successors and permitted assigns.
Section 9.11 Payment Terms .
(a) Except as otherwise expressly provided to the contrary in this Agreement or in any Transaction Agreement, any amount to be paid or reimbursed by a Party (where applicable, or a member of such Party’s Group) to the other Party (where applicable, or a member of such other Party’s Group) under this Agreement shall be paid or reimbursed hereunder within sixty (60)
 
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days after presentation of an invoice or a written demand therefor, in either case setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.
(b) Except as set forth in Article V of the Separation Agreement or as expressly provided to the contrary in this Agreement or in any Transaction Agreement, any amount not paid when due pursuant to this Agreement (and any amount billed or otherwise invoiced or demanded and properly payable that is not paid within sixty (60) days of such bill, invoice, or other demand) shall bear interest at a rate per annum equal to the Prime Rate, from time to time in effect, plus two percent (2%), calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment.
(c) Without the consent of the party receiving any payment under this Agreement specifying otherwise, all payments to be made by either Citrix or SpinCo under this Agreement shall be made in U.S. dollars. Except as expressly provided herein, any amount which is not expressed in U.S. dollars shall be converted into U.S. dollars by using the exchange rate published on Bloomberg at 5:00 pm, Eastern time, on the day before the relevant date, or in The Wall Street Journal , Eastern Edition, on such date if not so published on Bloomberg. Except as expressly provided herein, in the event that any Indemnity Payment required to be made hereunder or under any Transaction Agreement may be denominated in a currency other than U.S. dollars, the amount of such payment shall be converted into U.S. dollars on the date in which notice of the claim is given to the Indemnifying Party.
Section 9.12 Subsidiaries . Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any Person that becomes a Subsidiary of such Party at or after the Distribution Effective Time, in each case to the extent such Subsidiary remains a Subsidiary of the applicable Party.
Section 9.13 Exhibits and Schedules . The Exhibits and Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein. Subject to the prior written consent of the other Parties, each Party shall be entitled to update the Schedules from and after the date hereof until the Distribution Effective Time.
Section 9.14 Governing Law . This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof that might lead to the application of Laws other than the Laws of the State of Delaware. All Actions that, directly or indirectly, arise out of or relate to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware;  provided ,  however , that if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any Delaware state court or United States federal court sitting in the State of Delaware. Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action brought by any party hereto that, directly or indirectly, arises out of or relates to this Agreement; (b) agrees that service of process in such Action will be validly effected by sending notice in accordance with  Section 9.6 ; (c) irrevocably waives and releases, and agrees not to assert by way of motion, defense, or otherwise, in or with
 
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respect to any such Action, any claim that (i) such Action is not subject to the subject matter jurisdiction of at least one of the above-named courts; (ii) its property is exempt or immune from attachment or execution in the State of Delaware; (iii) such Action is brought in an inconvenient forum; (iv) that the venue of such Action is improper; or (v) this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts; and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
Section 9.15 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LIABILITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS  SECTION 9.15 .
Section 9.16 Specific Performance . The Parties acknowledge and agree that the Parties would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached and that any non-performance or breach of this Agreement by any Party could not be adequately compensated by monetary damages alone and that the Parties would not have any adequate remedy at law. Accordingly, in addition to any other right or remedy to which any Party may be entitled, at law or in equity (including monetary damages), such Party shall be entitled to enforce any provision of this Agreement by a decree of specific performance and to temporary, preliminary, and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without posting any bond or other undertaking. For the avoidance of doubt, LogMeIn shall, during the term of this Agreement, have the right to enforce specifically the obligations of Citrix and SpinCo set forth herein. The Parties agree that they will not contest the appropriateness of specific performance as a remedy.
Section 9.17 Severability . If any term or other provision (or part thereof) of this Agreement is declared invalid, illegal or incapable of being enforced by any Governmental Authority, all other terms and provisions (or parts thereof) of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision (or part thereof) is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
 
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Section 9.18 Interpretation . The Parties have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.
Section 9.19 No Duplication; No Double Recovery . Nothing in this Agreement or any Transaction Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation, or recovery with respect to any matter arising out of the same facts and circumstances.
Section 9.20 No Admission of Liability . The allocation of Assets and Liabilities herein (including on the Schedules hereto) is solely for the purpose of allocating such Assets and Liabilities between Citrix and SpinCo and is not intended as an admission of liability or responsibility for any alleged Liabilities vis-à-vis any Third Party, including with respect to the Liabilities of any non-wholly owned subsidiary of Citrix or SpinCo.
[ Signature Page Follows ]
 
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

CITRIX SYSTEMS, INC.	
		
By:	 	 	
Name:	 	David J. Henshall	
Title:	 	Executive Vice President, Chief Operating Officer and Chief Financial Officer	
	
GETGO, INC.	
		
By:	 	 	
Name:	 	Antonio G. Gomes	
Title:	 	Secretary	
	
LOGMEIN, INC.	
		
By:	 	 	
Name:	 	William R. Wagner	
Title:	 	President and Chief Executive Officer	

EXHIBIT D
FORM OF TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (this “ Agreement ”) is effective as of immediately prior to the Distribution Effective Time (the “ Effective Date ”), by and between Citrix Systems, Inc., a Delaware corporation (“ Citrix ”), and GetGo, Inc., a Delaware corporation (“ SpinCo ”). “ Party ” or “ Parties ” means Citrix or SpinCo, individually or collectively, as the case may be. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Separation Agreement (as defined below).
RECITALS
WHEREAS, Citrix, SpinCo and LogMeIn, Inc., a Delaware corporation (“ LogMeIn ”), have entered into a Separation Agreement, dated as of July 26 (as amended, modified or supplemented from time to time in accordance with its terms, the “ Separation Agreement ”), pursuant to which Citrix has agreed to separate (the “ Separation ”) the SpinCo Business from the remaining business of Citrix and its Subsidiaries;
WHEREAS, pursuant to the Separation Agreement, Citrix has agreed to Transfer, or to cause the other members of its Group to Transfer, to the members of the SpinCo Group certain of the Assets owned or held by Citrix and the other members of its Group to conduct the SpinCo Business, and to assign certain Liabilities associated with the SpinCo Business to the SpinCo Group, and the members of the SpinCo Group have agreed to accept such Assets and Assume such Liabilities;
WHEREAS, to implement the Separation, following the reorganization of the SpinCo Business and upon the terms and conditions set forth in the Separation Agreement, Citrix has agreed to distribute all of the shares of SpinCo Common Stock to Citrix stockholders, whether by way of the One-Step Spin-Off or the Exchange Offer (followed by any Clean-Up Spin-Off, if necessary) (the “ Distribution ”);
WHEREAS, Citrix, SpinCo, LogMeIn and Lithium Merger Sub, Inc., a Delaware corporation and wholly owned Subsidiary of LogMeIn (“ Merger Partner Sub ”), have entered into an Agreement and Plan of Merger, dated as of July 26 (as amended, modified or supplemented from time to time in accordance with its terms, the “ Merger Agreement ”), pursuant to which, immediately following the Distribution, Merger Partner Sub shall merge with and into SpinCo (the “ Merger ”) and, in connection with the Merger, SpinCo Common Stock shall be converted into the right to receive shares of common stock of LogMeIn, par value $0.01 per share, on the terms and subject to the conditions set forth in the Merger Agreement; and
WHEREAS, in connection with the transactions contemplated by the Separation Agreement and the Merger Agreement, the Parties desire that Citrix provide certain services to SpinCo, and SpinCo provide certain services to Citrix, in each case on the terms and conditions set forth herein (in any instance, the Party providing services hereunder being referred to as the “ Service Provider ” and the Party receiving services hereunder being referred to as the “ Service Recipient ”);

NOW, THEREFORE, in consideration of the foregoing and the respective warranties, covenants and agreements hereinafter set forth, and intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions . Each of the following terms is defined in the Section set forth opposite such term:

Term	  	Section	
Additional Services	  	Section 2.1.3	
Agreement	  	Preamble	
Citrix	  	Preamble	
Damages	  	Section 9.4.1	
Dispute	  	Section 4.4	
Distribution	  	Recitals	
Effective Date	  	Preamble	
Expenses	  	Section 6.2	
Fees	  	Section 6.1	
Force Majeure Event	  	Section 7.1	
Indemnified Party	  	Section 9.4.3	
Indemnifying Party	  	Section 9.4.3	
Joint Transition Steering Committee	  	Section 4.3	
LogMeIn	  	Recitals	
Merger	  	Recitals	
Merger Agreement	  	Recitals	
Merger Partner Sub	  	Recitals	
New Data	  	Section 5.2	
Other Intellectual Property	  	Section 3.5	
Party or Parties	  	Preamble	
Required Consents	  	Section 3.4	
Security Regulations	  	Section 5.3.1	
Separation	  	Recitals	
Separation Agreement	  	Recitals	
Service Commencement Date	  	Section 8.1.1	
Service Leads	  	Section 4.1	
Service Performance Period	  	Section 8.1.1	
Service Provider	  	Recitals	
Service Recipient	  	Recitals	
Service Taxes	  	Section 6.5	
Service Termination Date	  	Section 8.1.1	
Services	  	Section 2.1.4	
Services Schedules	  	Section 2.1.2	
 
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SpinCo	  	Preamble	
Subcontractors	  	Section 2.9	
Systems	  	Section 5.3.1	
Tax Matters	  	Section 10.5	
Third Party Intellectual Property	  	Section 3.5	
Transition Leads	  	Section 4.2	
Transition Services	  	Section 2.1.2	
References in this Agreement to “Citrix” shall also be deemed to refer to applicable members of the Citrix Group, references to “SpinCo” shall also be deemed to refer to applicable members of the SpinCo Group, and in connection therewith, any references to actions or omissions to be taken, or refrained from being taken, as the case may be, by Citrix or SpinCo shall be deemed to require, Citrix or SpinCo, as the case may be, to cause the applicable members of the Citrix Group or the SpinCo Group, respectively, to take or refrain from taking any such action.
ARTICLE 2
PROVISION OF THE SERVICES
2.1 Description of the Services . The Service Provider shall provide, or cause to be provided, Transition Services (as defined below) and Additional Services (as defined below) in support of the SpinCo Business or the Citrix Business, as applicable. The Service Recipient shall use its commercially reasonable efforts to provide such assistance and resources as are required to receive the Services from the Service Provider, including without limitation the purchase of any software and hardware assets required to receive the Services, in accordance with the terms and conditions of this Agreement, provided that the Parties shall bear equally the costs and expenses incurred in connection with acquiring any such assets. The Service Provider shall be relieved of its obligations hereunder to the extent that (a) the Service Recipient fails to provide the assistance or resources referred to in the previous sentence, (b) such failure renders performance by the Service Provider of its obligations hereunder unlawful or (in the Service Provider’s reasonable determination) impracticable and (c) such failure (i) if reasonably capable of being cured, is not cured by the Service Recipient within thirty (30) days following written notice to the Service Recipient by the Service Provider of any such purported failure (it being understood and agreed that the Service Provider shall be relieved of its obligations hereunder during any such cure period), or (ii) is not reasonably capable of being cured. Notwithstanding any provision herein to the contrary, no Services provided under this Agreement shall include, or shall be construed as constituting, accounting, legal or Tax advice or shall create any fiduciary obligations on the part of the Service Provider or any of its Affiliates to any Person, including to the Service Recipient or any of its Affiliates, or to any plan trustee or any customer of any of them.
2.1.1 Recent Historical Practice . As used herein, “ Recent Historical Practice ” shall mean the performance of services for the SpinCo Business or Citrix Business, as applicable, of the nature and at the level, volume and frequency of such services or similar services, in each case during the twelve (12) months immediately prior to the date hereof, taking into account, where applicable, any inherent and material differences resulting from the Service Provider providing services outside of its organization.
 
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2.1.2 Transition Services . The Service Provider or its designee shall provide the services (“ Transition Services ”) specified in Schedule I (with respect to Services to be provided by Citrix to SpinCo) or Schedule II (with respect to Services to be provided by SpinCo to Citrix) (such schedules, the “ Services Schedules ”), as applicable, in accordance with the terms and conditions for such Transition Services set forth in the applicable Services Schedule or as otherwise set forth in this Agreement.
2.1.3 Additional Services . The Service Recipient may request additional services to the extent such services reasonably relate to the transition of the SpinCo Business to SpinCo or the separation of the SpinCo Business from Citrix, as applicable (“ Additional Services ”); provided , however , that Additional Services shall be limited solely to services that were performed pursuant to Recent Historical Practice and that are reasonably necessary for the conduct of the SpinCo Business or the Citrix Business, as applicable, after the Distribution Effective Time, unless otherwise expressly agreed to by the Service Provider. Upon receipt of any such request, (a) if receipt of such request occurs within ninety (90) days after the date hereof, the Service Provider shall use its commercially reasonable efforts to provide any such Additional Services, and (b) if receipt of such request occurs more than ninety (90) days after the date hereof, the Service Provider shall determine in its sole discretion whether to provide such Additional Services. If the Service Provider provides such Additional Services in accordance with the preceding sentence, the Parties shall: (x) negotiate in good faith the terms of the provision of such Additional Services, including the Fees for such Additional Services and the duration of such Additional Services, provided that the Fees shall, during the first six (6) months after the Effective Date, be equal to the Service Provider’s actual direct cost to provide the Additional Services, plus five percent (5%), and thereafter shall be equal to the Service Provider’s actual direct cost to provide the Additional Services, plus ten percent (10%); and (y) document the terms of such Additional Services in an addendum to the applicable Services Schedule.
2.1.4 Scope of Services . For the avoidance of doubt, when used in this Agreement, reference to “ Services ” as between a given Service Provider and Service Recipient shall include all of the services set forth on the applicable Services Schedule (including in any addenda thereto). All of the Services shall be for the sole use and benefit of the Service Recipient.
2.2 Performance Standards . The Service Provider shall perform the Services in a commercially reasonable manner (including as to timing, efficiency and workmanship) and in accordance with the standards, specifications and service levels and the acceptance criteria, if any, set forth in the applicable Services Schedule. Without limiting the generality of the foregoing, the Services shall be provided at the same general level of service, with the same degree of care, with response times and in a manner as would reasonably and ordinarily be expected from a Person complying with applicable Law engaged in the same type of undertaking under the same or similar circumstances and conditions, unless a higher standard for any particular Service is required by the applicable Services Schedule. The Service Recipient acknowledges and agrees that in rendering Services hereunder, the Service Provider may be using and relying upon, without any independent investigation or verification thereof, information that is or will be furnished to the Service Provider by or on behalf of the Service Recipient, and the Service Provider will not in any respect be responsible for the accuracy or
 
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completeness of any of the foregoing kinds of information, except as otherwise set forth in the Services Schedules. To the extent the Service Recipient shall provide any instruction with respect to the performance of a particular Service in writing to the Service Provider, the Service Provider shall be entitled to rely on such written instruction without liability hereunder to the extent directly arising or resulting from its performance of such Service in accordance with such instruction, except in the case of the Service Provider’s (or its Subcontractors’) gross negligence, fraud or willful misconduct.
2.3 Expansion of Services; Service Conflicts . Except as expressly provided herein, the Service Provider shall not be required to provide any Service (a) to the extent such Service was not provided in support of the SpinCo Business or the Citrix Business, as applicable, pursuant to Recent Historical Practice, or (b) at a level, volume or frequency greater than the level, volume or frequency of such Service as used by the SpinCo Business or the Citrix Business, as applicable, pursuant to Recent Historical Practice. If the Service Recipient requests that any Service be provided at a greater level, volume or frequency than the level, volume or frequency of such Service (or analogous services) as used by the SpinCo Business or the Citrix Business, as applicable, pursuant to Recent Historical Practice, and such requested greater level, volume or frequency results from the Service Recipient’s operation of its business in the ordinary course and not from any acquisition, purchase, merger or other business combination by the Service Recipient, then the Service Provider shall use commercially reasonable efforts to provide such Service at such greater level, volume or frequency, except (i) to the extent that the Service Provider does not have adequate resources to provide such Service at such greater level, volume or frequency or (ii) if the provision of such Service at such greater level, volume or frequency would, in the Service Provider’s reasonable determination, unduly burden or disrupt the operation of the Service Provider’s business. The Fees for any Service shall be adjusted upward solely to the extent of the amount that the Service Provider’s actual direct cost of providing such Service at any greater level, volume or frequency increases. If there is a conflict between the immediate needs of Parties as to the use of or access to a particular Service, which conflict cannot reasonably be avoided, the Service Provider shall, in its reasonable discretion, establish reasonable priorities as between the Parties, provided that such priorities do not unduly burden or disrupt the operation of the Service Recipient’s business. The Service Provider shall provide notice to the Service Recipient as promptly as reasonably practicable prior to the establishment of such priorities.
2.4 Temporary Suspension; Modification or Termination of Services . The Service Provider shall have the right from time to time to shut down or temporarily suspend the operation of any systems or facilities necessary for the provision of any Service for modification, upgrade, maintenance or replacement or for legal, compliance or security purposes, whenever in its reasonable judgment such action is necessary, and shall be relieved of its obligations to provide Services during such shut-down or suspension. The Service Provider shall provide advance notice of any such scheduled shut-downs or suspensions and use reasonable efforts to provide advance notice of any other shut-down or suspension, and shall use commercially reasonable efforts to minimize disruption to the operation of the SpinCo Business or the Citrix Business, as applicable, in connection with any such shut-down or suspension.
 
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2.5 Significant Service or System Changes . The Service Provider shall have the right, at its expense, to upgrade or replace its systems through which Services are provided to the Service Recipient as part of any upgrade or replacement made generally to the Service Provider’s shared systems. The Service Provider shall notify the Service Recipient in writing reasonably in advance of any such upgrade or replacement (other than routine software upgrades). In the event the Service Provider determines to upgrade or replace any of its systems through which Services are provided to the Service Recipient hereunder, then, any additional or incremental costs or expenses shall be borne by the Service Provider, including costs and expenses to the extent incurred in connection with such upgrade or replacement as a result of the need to purchase additional capacity to accommodate the SpinCo Business or the Citrix Business, as applicable, incremental license or similar fees required to be paid to Third Parties or installation of security hardware and software items necessary to enable the Service Provider to use such systems to provide Services to the Service Recipient hereunder.
2.6 Compliance with Laws . The Service Provider shall not be required to provide Services which violate any applicable Laws in connection with its performance of the Services.
2.7 Acknowledgment and Agreement . The Service Recipient acknowledges that the Services provided hereunder are transitional in nature and are furnished by the Service Provider solely in connection with the transactions contemplated by the Separation Agreement and the Merger Agreement. The Service Recipient acknowledges that the Service Provider is not in the business of providing the Services to Third Parties and that neither Party has any long-term interest in the Service Provider continuing the provision of any or all of the Services. The Service Recipient shall: (a) promptly (and in any event within sixty (60) days) following the Effective Date, provide to the Service Provider a plan and timeline, in form and detail reasonably satisfactory to the Service Provider, for the migration to the Service Recipient or Third Party suppliers of each of the Services, and (b) as promptly as practicable after the Effective Date, migrate the provision of each Service from the Service Provider to the Service Recipient or a Third Party supplier. Nothing in this Section   2.7 shall be deemed to extend any Service Termination Date in any manner.
2.8 Limitations on Services . The Service Recipient acknowledges that the Service Provider is agreeing to provide Services in order to facilitate the Service Recipient’s operation of the SpinCo Business or the Citrix Business, as applicable, as described in the Separation Agreement and the Merger Agreement and as otherwise provided herein. The Service Provider shall not be required to expand its facilities or maintain the employment of any specific Persons in order to provide the Services to the Service Recipient, and except as otherwise provided in this Agreement, the Service Provider shall not be required to incur any capital expenditures or employ additional personnel in order to provide the Services to the Service Recipient.
2.9 Subcontractors . The Service Provider may use contractors, subcontractors, vendors or other Third Parties (collectively, “ Subcontractors ”) to provide some or all of the Services, provided that the Service Provider (a) shall use reasonable care in selecting any such Subcontractors to perform Services hereunder, (b) shall not be relieved of its obligations under this Agreement as a result of the use of any Subcontractors, (c) shall remain liable and responsible for the acts and omissions of its Subcontractors in providing, or failing to provide, the Services under this Agreement, (d) shall specify in the Services Schedules which Services will be subcontracted and (e) shall comply with the terms and conditions of Schedule 2.9 attached hereto.
 
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2.10      Supervision and Compensation of Personnel . Except as otherwise expressly provided herein, the Service Provider shall, and shall cause its Affiliates to, select, employ, supervise and direct all of its personnel providing the Services hereunder and shall be solely responsible for the payment of all wages, bonuses, commissions, benefits (including employee benefit plans, programs and arrangements) and any other direct and indirect compensation for its personnel assigned to perform the Services under this Agreement, including worker’s compensation insurance, employment taxes and other employer liabilities relating to such personnel as required by Law to be provided or otherwise provided by the Service Provider and its Affiliates. The Service Provider shall, and shall cause its Affiliates to, be independent contractors with respect to the Service Recipient in connection with the performance of the Services hereunder and none of the Service Provider’s or its Affiliates’ employees performing services in connection therewith shall be deemed employees of the Service Recipient.
ARTICLE 3
MANAGEMENT AND CONTROL; CONSENTS
3.1 Cooperation; Access . Each Party agrees to use commercially reasonable efforts to cooperate with the other in connection with the provision and receipt of Services hereunder. The Service Recipient hereby grants to the Service Provider, at all times during the term of this Agreement, the right to ingress and egress from the premises occupied by the Service Recipient subject to such restrictions as the Service Recipient may reasonably require (including written non-disclosure agreements, restricted access for only designated areas and other requirements, with individuals who shall enter such premises), for reasonable purposes and solely to the extent necessary to the delivery of the Services hereunder or the exercise of any right under this Agreement or the performance of any obligations required by this Agreement. Except as expressly provided herein, the Service Provider shall not be required to grant the Service Recipient access to any proprietary information of the Service Provider or any of its Affiliates pursuant to this Agreement.
3.3 Certain Service Recipient Obligations .
3.3.1 Policies and Procedures; Use of Services . The Service Recipient shall, and shall cause its Affiliates to, adhere to applicable Service Provider policies and procedures relevant to the Services provided or made available to the Service Recipient or that the Service Recipient has in its possession.
3.3.2 Limited Use of Services . The Service Recipient shall use the Services only in connection with (a) the conduct of the SpinCo Business or the Citrix Business, as applicable, in the ordinary course (together with natural extensions and growth of the SpinCo Business or the Citrix Business, as applicable, during the term of this Agreement), (b) the separation of the SpinCo Business from the Citrix Business, (c) the separation of the Service Recipient from the Service Provider’s shared IT systems and (d) the integration of the Service Recipient’s Group into the shared IT systems of the Service Recipient and its Affiliates. Except
 
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as otherwise provided in Section 10.13 (Assignment), the Service Recipient shall not resell, assign or subcontract any of the Services to any Third Party and shall permit the use of the Services by a Third Party solely in connection with operation of the SpinCo Business or the Citrix Business, as applicable, in accordance with this Agreement.
3.3.3 Limited License . The Parties hereby acknowledge and agree that certain Third Party licenses or other agreements, software or hardware required for use by the Service Provider, its Affiliates and designated Third Party providers in providing Services to the Service Recipient under this Agreement may be Assets of the Service Recipient pursuant to the Separation Agreement. The Service Recipient hereby grants and licenses to the Service Provider, its applicable Affiliates and any applicable designated Third Party providers the right to possess, access and use such licenses or other agreements, software or hardware solely to the extent necessary for rendering Services under and in accordance with this Agreement.
3.4 Required Consents . Notwithstanding anything to the contrary herein, this Agreement shall not constitute any agreement to provide any Service to the extent the provisions of such Service in accordance with this Agreement would require any consent, waiver, permit, license or sublicense of any Third Party (collectively, “ Required Consents ”) unless and until such Required Consents shall have been obtained. With respect to any Required Consents not obtained prior to the date of this Agreement, from and after the date hereof, the Service Provider shall use commercially reasonable efforts to obtain such Required Consents, and the Service Recipient shall provide such cooperation as may be reasonably requested by the Service Provider in connection with its efforts to obtain any such Required Consents; provided , that the Parties shall bear equally any costs and expenses incurred in connection with seeking or obtaining any Required Consents.
3.5 Intellectual Property . In connection with the performance of the Services hereunder, either Party may have access to or use of certain Intellectual Property disclosed or licensed by Third Parties to the other Party or its Affiliates that is not Licensed IP (as defined in the IP License Agreement) (“ Third Party Intellectual Property ”), as well as certain Intellectual Property owned by the other Party that is not Licensed IP (“ Other Intellectual Property ”). To the extent necessary or appropriate to protect any such Third Party Intellectual Property or Other Intellectual Property, the Service Recipient shall enter into non-disclosure agreements with Third Parties or take other reasonable actions (at the Service Provider’s expense) with respect to such Third Party Intellectual Property or Other Intellectual Property as may be reasonably requested by the Service Provider (with respect to the Other Intellectual Property) or such Third Parties (with respect to the Third Party Intellectual Property) from time to time. The Service Provider hereby grants, on behalf of itself and its Affiliates, to the Service Recipient a license to access and use such Third Party Intellectual Property and Other Intellectual Property solely to the extent reasonably necessary in connection with receiving and fully utilizing the Services under and in accordance with this Agreement. Other than as permitted by this Agreement, the Service Recipient shall not have any rights in or to any such Third Party Intellectual Property or Other Intellectual Property as a result of any such access or use. The Service Recipient shall comply in all respects with the terms and conditions of any agreement between any Third Parties and the Service Provider or its Affiliates, as the case may be, to the extent such agreements have been provided to the Service Recipient, with respect to any Third Party Intellectual Property disclosed to or used by the Service Recipient as if the
 
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Service Recipient were a direct party to such arrangements (other than with respect to any payment terms thereunder), including any obligations with respect to confidentiality and restrictions on use of Third Party Intellectual Property. Without limiting the foregoing, it is acknowledged and agreed that the Service Recipient shall not have any rights in or access to, and the Service Provider shall ensure that no copies are provided to the Service Recipient or any of its Affiliates of, any source code with respect to any Third Party Intellectual Property or Other Intellectual Property. The Service Recipient shall not, through reverse engineering or any other means, attempt to access any such source code and shall use the Third Party Intellectual Property and the Other Intellectual Property only for its intended use hereunder. In the event of a conflict between this Section 3.5 and the IP License Agreement, the provisions of the IP License Agreement shall prevail.
ARTICLE 4
GOVERNANCE
4.1 Service Leads . The initial points of contact for the Service Provider and the Service Recipient with respect to day-to-day matters regarding the provision of a particular Service, including attempting to resolve any issues that may arise in connection with the provision of such Service, shall be the functional team leaders designated on the applicable Services Schedule with respect to such Service (collectively, the “ Service Leads ”). The Service Leads shall have the authority to address such daily operational matters and resolve such issues related to the applicable Service; provided , that issues regarding any Service that cannot be resolved by the applicable Service Leads shall be elevated as provided in this ARTICLE 4 .
4.2 Transition Leads . Each Party shall designate and identify to the other Party one or two individuals to coordinate all matters relating to the provision or receipt of Services and the operation of this Agreement generally (collectively, the “ Transition Leads ”). The Transition Leads shall be the principal points of contact between the Parties (a) for all matters that the Service Leads are not able to resolve after using good faith efforts to do so and (b) for all matters relating to the provision or receipt of Services generally or otherwise relating to this Agreement (including requests for transition support, communications with regard to issues surrounding the provision of Services, disagreements between the Parties relating to the provision or receipt of Services and invoice disputes). The Transition Leads shall meet (by teleconference if mutually agreed) on a mutually agreed basis to review the provision of the Services and the operation of this Agreement, including to address, without limitation, the Service Provider’s compliance with the performance standards set forth in Section 2.2 and the adequacy of the resources and the qualifications of the personnel (including any Subcontractors) used by the Service Provider in providing the Services. The Transition Leads shall be responsible for the oversight and coordination of the provision or receipt of Services, and each shall have the appropriate decision-making authority for their respective Party with respect to the provision and receipt of Services. A Transition Lead may also delegate specific aspects of a Transition Lead’s responsibilities to one or more persons upon written notice to the other Party’s Transition Leads. A Transition Lead and his or her delegates may be replaced at any time and for any reason by the Party that initially appointed such Transition Lead, and such Party or the newly appointed Transition Lead or delegate shall notify the other Party of such replacement and appointment.
 
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4.3 Steering Committee . The Transition Leads shall negotiate in good faith and attempt to resolve any disputes regarding the matters identified in Section 4.2 . In the event of a failure of the Transition Leads to resolve a dispute under this Agreement within thirty (30) days, either Party may refer such dispute to a committee charged with the responsibility for general oversight of matters under this Agreement (the “ Joint Transition Steering Committee ”). If the issue cannot be resolved by the Joint Transition Steering Committee within thirty (30) days of the submission of such matter to the Joint Transition Steering Committee, either Party may seek resolution of such dispute in accordance with Section 4.4 . The Joint Transition Steering Committee shall be composed of a minimum of three (3) representatives of each Party (including at least one Transition Lead representing each Party). Each Party’s representatives on the Joint Transition Steering Committee shall have appropriate decision-making authority from the Party appointing them and shall be reasonably informed of matters under this Agreement. The Joint Transition Steering Committee shall meet (by teleconference if mutually agreed) on a mutually agreed basis to (a) review and attempt to resolve disputes in accordance with this Section 4.3 and (b) review and discuss matters relating to the provision of the Services and the operation of this Agreement that are referred to it by the Transition Leads.
4.4 Dispute Resolution . Prior to initiating any legal action in accordance with the terms of this Agreement, any dispute, controversy or claim arising out of, relating to or in connection with the Services of this Agreement (a “ Dispute ”) that cannot be resolved by the applicable Service Leads after a reasonable period of time (taking into consideration the nature of the Dispute) shall be submitted first to the Transition Leads and, if applicable, the Joint Transition Steering Committee for resolution in accordance with Sections 4.2 and 4.3 . In the event the Joint Transition Steering Committee fails to resolve a Dispute in accordance with Section 4.3 , then either Party may bring an action at law or in equity in accordance with Section 10.6 .
ARTICLE 5
COMPUTER HARDWARE, SOFTWARE AND DATA SECURITY
5.1 Access to Computer Software . The Service Provider, in its sole discretion, may limit access to and the right to use software in connection with the Services solely to those employees of the Service Recipient who need such access and right to use in connection with the provision of the Services. Citrix, in its capacity as the Service Provider, shall also grant access to and the right to use software in connection with the Services to employees of LogMeIn who need such access, provided that SpinCo shall be responsible for any breaches of this ARTICLE 5 by any employee of LogMeIn.
5.2 Data . The Service Provider is authorized to have access to and make use of all data provided by the Service Recipient or created by the Service Provider solely on behalf of the Service Recipient after the Effective Date (“ New Data ”), as necessary and appropriate for the performance by the Service Provider of its obligations under this Agreement. The Service Provider may not use any New Data for any purpose other than providing the Services.
 
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5.3 System Security .
5.3.1 Security Policy . The Service Recipient shall comply with all of the Service Provider’s system security policies, procedures and requirements relating to the Service Provider’s computer systems or software (“ Systems ”) which have been provided in writing to the Service Recipient (collectively, “ Security Regulations ”), and shall not tamper with, compromise or circumvent any security or audit measures employed by the Service Provider. The Service Recipient shall access and use only those Systems of the Service Provider for which the Service Recipient has been expressly granted the right to access and use.
5.3.2 Personnel Access .  The Service Recipient shall limit access to the Systems to those personnel who are specifically authorized to have such access, and to prevent unauthorized access, use, destruction, alteration or loss of information contained therein. The Service Recipient shall notify its own personnel of the restrictions set forth in this Section   5.3.2 and of the Security Regulations.
5.3.3 Unauthorized Access . If, at any time, the Service Recipient determines that any of its personnel have sought to circumvent, or have circumvented, the Security Regulations, that any unauthorized personnel have accessed the Systems or that any of its personnel have engaged in activities that may lead to the unauthorized access, use, destruction, alteration or loss of data, information or software, the Service Recipient shall promptly terminate such personnel’s access to the Systems and promptly notify the Service Provider. In addition, the Service Provider shall have the right to deny personnel of the Service Recipient access to its Systems upon notice to the Service Recipient (with such notice given, in any event, within one business day of such termination) in the event that the Service Provider reasonably believes that such personnel have engaged in any of the activities set forth above in this Section   5.3.3 or otherwise pose a security concern. Each Party shall reasonably cooperate with the other Party in investigating any apparent unauthorized access to the Systems.
ARTICLE 6
FEES AND PAYMENT
6.1 Fees . The fees for each of the Services (the “ Fees ”) are as set forth in the Services Schedules and shall, during the first six (6) months after the Effective Date, be equal to the Service Provider’s actual direct cost to provide the Services, plus five percent (5%), and thereafter shall be equal to the Service Provider’s actual direct cost to provide the Services, plus ten percent (10%). All Fees are exclusive of any applicable Service Taxes (as defined below) (which shall be paid by the Service Recipient in accordance with Section   6.5 ). Either Party, in its capacity as the Service Recipient, may apply an offset against Fees solely for monies owed by the other Party pursuant to this Agreement.
6.2 Expenses . Unless otherwise expressly set forth on the applicable Services Schedule, the Fees are exclusive of expenses related to travel (including long-distance and local transportation, accommodation and meal expenses and other incidental expenses) by the Service Provider’s personnel or any Subcontractor in connection with performing the Services. All of the costs and expenses described in this Section 6.2 (“ Expenses ”) shall be charged by the
 
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Service Provider to the Service Recipient on a straight pass-through basis. For the avoidance of doubt, the Expenses described in this Section 6.2 shall be consistent with the Service Provider’s general approach with respect to such types of costs and expenses; provided , that with respect to any Service, the Service Recipient’s prior written approval shall be required to the extent that Expenses exceed fifteen percent (15%) of the Fees paid and payable to the Service Provider for such Service in any month.
6.3 Payment and Invoices . The Service Provider shall invoice the Service Recipient for all Fees and Expenses, in each case in arrears on a monthly basis. The Service Provider shall include with each invoice a reasonably detailed description of the Services performed, the Fees and Expenses charged, any Service Taxes collected, and available reasonable supporting documentation with respect to the foregoing including copies of any invoices of Subcontractors with respect to the Services performed. The Service Recipient shall pay each undisputed invoice within the United States and in immediately available funds, in each case within forty five (45) days after receipt. Any payments owing to the Service Provider pursuant to this Agreement that are not paid within forty five (45) days after receipt of the applicable invoice shall bear interest at the rate of five percent (5%) per annum (or such lesser amount as shall be the maximum amount permitted by Law) from the due date until paid; provided , that the Service Recipient shall not be in default of this Agreement for failing to pay all or any portion of an invoice within forty five (45) days of receipt of such invoice if the Service Recipient reasonably disputes the unpaid portion of such invoice in accordance with Section 6.4 .
6.4 Billing Disputes . In the event that the Service Recipient disputes any invoice, the Service Recipient shall provide written notice of such dispute and the basis therefor to the Service Provider and pay the undisputed portion, if any, as provided in Section 6.3 . If there is a disputed amount, the Parties shall, in good faith, seek to resolve such dispute in accordance with the dispute resolution procedure set forth in Section 4.4 . The Service Recipient shall pay the Service Provider the unpaid portion then owed under any invoice promptly upon resolution of the dispute or completion of the dispute resolution procedures provided for herein.
6.5 Service Taxes; Withholding.
6.5.1 In addition to the amounts described in Section 6.1 , the Service Recipient shall pay, and hold the Service Provider harmless against, any sales, use, value added, transfer, service, service use, and other similar Taxes, which for the avoidance of doubt, shall not include any income, franchise or similar Taxes (“ Service Taxes ”) applicable to the provision of the Services. The Service Provider shall, or shall cause its Affiliates to, collect from the Service Recipient and remit any such Service Taxes to the extent required to do so by applicable Law.
6.5.2 The Service Provider shall cooperate with the Service Recipient and take any reasonably requested action in order to minimize any Service Taxes imposed on the sale of the Services provided by the Service Provider, including timely providing resale or other applicable Tax exemption certificates or other documentation necessary to support Tax exemptions. If the Service Provider (or any of its Affiliates) receives a refund of Service Taxes paid by the Service Recipient, it shall remit to the Service Recipient, within 30 days, the amount of such refund net of any Taxes incurred by the Service Provider (or any of its Affiliates) in connection with such refund. Each Party agrees to provide the other Party such information and
 
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data as reasonably requested from time to time, and to fully cooperate with the other Party, in connection with (a) the reporting of any Service Taxes payable pursuant to this Agreement, (b) any audit relating to any such Service Taxes, or (c) any assessment, refund, claim or proceeding relating to any such Service Taxes.
6.5.3 The Service Recipient or any applicable Affiliate of the Service Recipient, as the case may be, shall be entitled to deduct and withhold from any payment otherwise payable pursuant to this Agreement such amounts as are required to be deducted and withheld with respect to such payment under applicable Law, and such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made; provided , however , that the Service Recipient shall reasonably cooperate with the Service Provider in obtaining any available exemption from or reduction of such withholding. The Service Recipient shall provide the Service Provider with reasonable evidence of payment to, or receipts from, the relevant Governmental Authority, if available, evidencing the payment of such Taxes.
6.6 Audits . During the Service Performance Period and for a period of six (6) months thereafter, the Service Provider shall keep and maintain materially complete and accurate records of any costs that it is entitled to charge to the Service Recipient hereunder, and shall allow, at the Service Recipient’s sole expense, a mutually agreed independent auditor, during business hours and no more than once, to inspect and make extracts or copies of such records solely for the purpose of ascertaining the correctness of such statements. If any such examination and audit shall disclose any overcharges or overpayment of ten per cent (10%) or more, the Service Provider shall (a) promptly refund to the Service Recipient the amount of any such overcharges or overpayment, and (b) pay the costs of such audit.
ARTICLE 7
FORCE MAJEURE
7.1 Force Majeure . Provided the Service Provider has in place commercially reasonable disaster recovery and business continuity measures intended to mitigate the effects of any of the following events, the Service Provider shall be excused from performing any Services in the event that war (whether declared or not), fire, explosion, earthquake, storm, flood, strike, riot, act of governmental authority, act of God, act of terror or sabotage, technology disruption to the extent beyond the reasonable control of the Service Provider or other contingency beyond the reasonable control of the Service Provider, or any failure of a Third Party to provide services necessary for the performance of the Services to the extent not caused by the Service Provider (each, a “ Force Majeure Event ”), causes cessation or interruption of the Service Provider’s performance of such Services, for the duration of such Force Majeure Event. If the Service Provider is unable to provide any Services as a result of a Force Majeure Event: (a) the Service Provider shall promptly notify the Service Recipient and describe in reasonable detail the circumstances causing the inability to perform; (b) the Service Provider shall use commercially reasonable efforts to resume performance of its obligations hereunder with minimal delay; and (c) the Service Recipient shall be free to acquire such Services from an alternative source, at the Service Recipient’s sole cost and expense, and without liability to the Service Provider, for the period and to the extent reasonably necessitated by such non-performance. For the avoidance of doubt, the Service Recipient shall not be obligated to pay the Service Provider for Services with respect to the period during which such Services are not provided due to a Force Majeure Event.
 
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ARTICLE 8
TERM AND TERMINATION
8.1    Term .
8.1.1 Term of Services . The Service Provider shall provide each of the Services beginning on the “ Service Commencement Date ” for such Service set forth in the Services Schedule and continuing until the “ Service Termination Date ” for such Service set forth in the Services Schedule, unless extended or sooner terminated in accordance with the provisions of this Agreement. The period commencing on the first to occur of the Service Commencement Dates and ending on the last to expire or terminate of the Service Termination Dates is hereinafter referred to as the “ Service Performance Period .”
8.1.2 Extension of Service Termination Date . The Service Recipient may request an extension of the Service Termination Date applicable to any Service by delivering a written request to the Service Provider not less than sixty (60) days prior to the applicable Service Termination Date; provided , however , that a Service Termination Date may only be extended pursuant to this Section 8.1.2 (a) if such extension would not result in any Liabilities payable by, attributable to or the responsibility of the Service Provider or (b) in the event such extension would result in Liabilities payable by, attributable to or the responsibility of the Service Provider, the Service Recipient shall have expressly agreed in writing to fully reimburse and indemnify the Service Provider with respect to such Liabilities. The Service Provider shall consider in good faith any request for the extension of a Service Termination Date pursuant to this Section 8.1.2 . If the Service Provider agrees, in its sole discretion, to such extension, the Parties shall (x) negotiate the terms of such extension, including the revised Service Termination Date, and (y) document the terms of such extension in an amendment to the applicable Services Schedule, and the Fees payable by the Service Recipient in respect of the applicable Service through such revised Service Termination Date shall be one hundred ten percent (110%) of the amount of the Fees payable in respect of the applicable Service during the period immediately preceding such extension
8.2 Termination .
8.2.1 Early Termination of Services . The Service Recipient may terminate any Service, in whole or in part, prior to the applicable Service Termination Date by delivering to the Service Provider advance written notice of such termination no later than thirty (30) days prior to the applicable Service Termination Date (unless the terms set forth in the applicable Services Schedule designate a longer advance notice period for termination of such Service, in which case the Service Recipient shall provide written notice in accordance with such terms). In the event of any such termination of any Service, in whole or in part, the Fees payable by the Service Recipient for such Service will be reduced to reflect the terminated Service or the portion thereof that is terminated, as the case may be. Notwithstanding the foregoing, no termination of any Service shall relieve the Service Recipient of any of its obligations hereunder to pay the Service Provider all applicable Fees and Expenses incurred prior to such termination.
 
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8.2.2 Termination for Breach . If either Party materially breaches any of its obligations under this Agreement and does not cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching Party, then the non-breaching Party may, at its option, terminate all, but not less than all, of the Services in the affected line of Services, or all Services in their entirety, by providing written notice of termination to the breaching Party, which termination shall be effective immediately or as of such later date as may be specified in the notice of termination.
8.2.3 Bankruptcy Termination . This Agreement may be terminated by either Party upon not less than thirty (30) days’ prior written notice if the other Party is declared insolvent or bankrupt, or makes an assignment for the benefit of creditors, or a receiver is appointed or any proceeding is demanded by, for or against the other under any provision of the federal bankruptcy Laws. Any termination of this Agreement pursuant to this Section 8.2.3 shall be without prejudice to any rights or obligations of the Parties accruing prior to such termination, including the right to payment of unpaid amounts owing for Services performed prior to termination.
8.2.4 General Termination . If not earlier terminated, this Agreement shall terminate on the expiration or termination of the last Service performed hereunder, and thereafter all rights and obligations hereunder shall be terminated, except for the payment by the Service Recipient of any Fees, Expenses and other costs due and payable hereunder, and except as otherwise provided in Section   10.3 .
8.3 Obligations on Termination . Notwithstanding anything herein to the contrary, in connection with the termination of any Service or Services in accordance with this Section 8.3 , (a) the Fees payable by the Service Recipient for such Service(s) will be reduced to reflect the terminated Service(s) or the portion thereof that is terminated, as the case may be; and (b) the Service Recipient shall pay to the Service Provider, within thirty (30) days following such termination, all Fees and Expenses payable pursuant to ARTICLE 6 through the date of such termination. In the event any Service is terminated prior to the applicable Service Termination Date, the Service Recipient shall be liable to the Service Provider for actual non-cancellable costs incurred by the Service Provider resulting from such termination, including any cancellation or similar costs payable to Third Parties by the Service Provider.
ARTICLE 9
LIMITATION ON LIABILITY; INDEMNIFICATION
9.1 Warranty Disclaimer . EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR ANY WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE), WITH RESPECT TO THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT.
 
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9.2 Cap on Direct Damages . Except for a Party’s breach of its confidentiality obligations or such Party’s fraud, gross negligence or intentional misconduct, under no circumstances shall the aggregate liability of such Party, its Affiliates and any of their respective representatives under this Agreement exceed the amount of fees paid and payable to it as Service Provider by the other Party as Service Recipient under the Agreement during the six (6) month period following the Effective Date.
9.3 Exclusion of Damages . EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR SUCH PARTY’S FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, SUCH PARTY SHALL NOT HAVE ANY OBLIGATION OR LIABILITY TO THE OTHER WITH RESPECT TO THE MATTERS CONTEMPLATED BY THIS AGREEMENT, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE) OR OTHERWISE, AT LAW OR IN EQUITY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS, DAMAGES CALCULATED ON MULTIPLES OF EARNINGS OR OPPORTUNITY COSTS, WHETHER FORESEEABLE OR NOT, WHICH IN ANY WAY ARISE OUT OF, RELATE TO OR ARE A CONSEQUENCE OF THE PERFORMANCE OR NONPERFORMANCE BY THE SERVICE PROVIDER, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES (OR ANY SUBCONTRACTOR PROVIDING THE APPLICABLE SERVICES UNDER THIS AGREEMENT) OR THE PROVISION OF, OR FAILURE TO PROVIDE, ANY SERVICES UNDER THIS AGREEMENT, INCLUDING FOR LOSS OF PROFITS, BUSINESS INTERRUPTIONS OR CLAIMS OF CUSTOMERS. EACH PARTY HEREBY WAIVES ON BEHALF OF ITSELF, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES ANY CLAIM FOR SUCH DAMAGES.
9.4 Indemnification .
9.4.1 By Service Provider . Without limiting the rights of the Service Recipient under any other Transaction Agreement, the Service Provider shall indemnify and hold harmless the Service Recipient, its Affiliates and their respective officers, directors, partners, principals, employees and agents (together with their respective successors and permitted assigns) from and against any and all assessments, losses, damages, costs, expenses, liabilities, judgments, awards, fines, sanctions, penalties, charges and amounts paid in settlement, including reasonable costs, fees and expenses of attorneys, accountants and other agents or representatives of any of them (collectively, “ Damages ”) arising or resulting from the fraud, gross negligence or willful misconduct of the Service Provider or its Affiliates in connection with the performance of their obligations under this Agreement.
9.4.2 By Service Recipient . Without limiting the rights of the Service Provider under any other Transaction Agreement, the Service Recipient shall indemnify and hold harmless the Service Provider, its Affiliates and their respective officers, directors, partners, principals, employees and agents (together with their respective successors and permitted assigns) from and against any and all Damages arising or resulting from the fraud, gross negligence or willful misconduct of the Service Recipient in connection with the performance of its obligations under this Agreement.
 
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9.4.3 Procedure . A Party entitled to indemnification pursuant to this Section 9.4 (the “ Indemnified Party ”) shall notify the other Party (the “ Indemnifying Party ”) in writing of any claim, action or demand (a “ Claim ”) for which the Indemnified Party intends to seek indemnification under this ARTICLE 9 . If the Indemnifying Party fails to assume the defense of such Claim within thirty (30) days after notice of any such Claim, or such shorter period as is reasonably required under the circumstances, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk, and at the expense, of the Indemnifying Party, subject to the right of the Indemnifying Party to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. Notice of any Claim shall be given promptly after the Indemnified Party becomes aware of the Claim, but no delay in giving such notice shall affect the Indemnified Party’s right to indemnification hereunder except to the extent that the Indemnifying Party’s ability to defend or settle such Claim is actually prejudiced by such delay. Notice of a Claim shall be accompanied by all information reasonably available to the Indemnified Party relevant to the investigation, assessment, defense and settlement of such Claim. The Indemnified Party shall, at the request and expense of the Indemnifying Party, take such actions as the Indemnifying Party may reasonably request in connection with the investigation, assessment, defense and settlement of any Claim.
9.4.4 For the avoidance of doubt, nothing in this ARTICLE 9 shall be deemed to eliminate or limit, in any respect, the Service Recipient’s obligations hereunder to make payment for any Fees, Expenses or other costs.
ARTICLE 10
GENERAL
10.1 Confidential Information . The rights and obligations under this Agreement are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information set forth in the Separation Agreement; provided , however , that to the extent any Confidential Information concerning or belonging to the Service Recipient or its Affiliates is disclosed to any member of the Service Provider’s Group in connection with providing Services under this Agreement, then such Confidential Information shall be used by the applicable member of the Service Provider’s Group only in connection with the provision of such services.
10.2 Relationship of the Parties . The Service Provider, in performance of its obligations under this Agreement, is acting as an independent contractor to the Service Recipient, and not as a partner, joint venture or agent, nor do the Parties intend to create by this Agreement an employer-employee relationship as between the Service Provider and the Service Recipient. Each of the Parties retains control over its respective personnel (including, as between the Parties, the exclusive right to select, hire, utilize and discharge its employees), and the employees of the Service Provider shall not be considered employees of the Service Recipient nor shall the employees of the Service Recipient be considered employees of the
 
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Service Provider. For the avoidance of doubt, nothing in this Agreement shall, and the provision of Services by the Service Provider pursuant to this Agreement shall not, (a) restrict the Service Provider’s ability to make any changes in its personnel, including its ability to terminate the employment of or reassign any Person providing any Service to the Service Recipient under this Agreement or (b) modify, terminate or otherwise affect the status of any Person employed by the Service Provider as an at-will employee, who shall remain an at-will employee of the Service Provider. Neither Party shall be bound by any representation, act or omission of the other Party. Neither Party has any right, power or authority to create any obligation, express or implied, on behalf of the other Party.
10.3 Survival . The provisions of Section 1.1 , Section 3.5 , ARTICLE 6 , SECTION 8.3 , ARTICLE 9 and this ARTICLE 10 shall survive termination or expiration of the Service Performance Period and remain in full force and effect in accordance with their applicable terms.
10.4 Schedules . The Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.
10.5 Complete Agreement; Construction . This Agreement, the Disclosure Letters (as defined in the Merger Agreement), the other Transaction Agreements and the Confidentiality Agreement constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof and thereof. If there is a conflict between any provision of this Agreement and a provision in any of the other Transaction Agreements (other than the Separation Agreement or the Merger Agreement), the provision of this Agreement shall control unless (i) with respect to any Ancillary Agreement other than the Tax Matters Agreement, as specifically provided otherwise in this Agreement or in such other Ancillary Agreement, (ii) with respect to the Tax Matters Agreement, the provision relates to matters addressed by the Tax Matters Agreement, in which case the Tax Matters Agreement shall control, or (iii) with respect to the Employee Matters Agreement, the provision relates to matters addressed by the Employee Matters Agreement, in which case the Employee Matters Agreement shall control. If there is a conflict between any provision of this Agreement and a provision in the Separation Agreement, the provision in the Separation Agreement shall control, and if there is a conflict between any provision of this Agreement and a provision in the Merger Agreement, the provision of the Merger Agreement shall control. Neither this Agreement nor any Ancillary Agreement shall govern Tax matters (including any administrative, procedural, and related matters thereto, “ Tax Matters ”), except to the extent expressly provided herein or therein. Tax Matters shall be exclusively governed by the Tax Matters Agreement.
10.6 Governing Law . This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof that might lead to the application of Laws other than the Laws of the State of Delaware. All Actions that, directly or indirectly, arise out of or relate to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware; provided , however , that if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any Delaware state court or United States federal court sitting in the State of Delaware. Consistent with the preceding sentence, each of the Parties
 
18

hereby (a) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action brought by any party hereto that, directly or indirectly, arises out of or relates to this Agreement; (b) agrees that service of process in such Action will be validly effected by sending notice in accordance with Section 10.9 ; (c) irrevocably waives and releases, and agrees not to assert by way of motion, defense, or otherwise, in or with respect to any such Action, any claim that (i) such Action is not subject to the subject matter jurisdiction of at least one of the above-named courts; (ii) its property is exempt or immune from attachment or execution in the State of Delaware; (iii) such Action is brought in an inconvenient forum; (iv) that the venue of such Action is improper; or (v) this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts; and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
10.7 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LIABILITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS  SECTION 10.7.
10.8 Headings .  The section headings hereof are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement.
10.9 Notices.   All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by a nationally recognized overnight courier service, or by facsimile or email (with a confirmatory copy sent by a nationally recognized overnight courier service) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this  Section 10.9 ):
If to Citrix:
Citrix Systems, Inc.
851 West Cypress Creek Road
Fort Lauderdale, FL 33309
Facsimile: (954) 267-3101
Attention: General Counsel
with a copy (which shall not constitute notice) to:
 
19

Skadden, Arps, Slate, Meagher & Flom LLP
500 Boylston Street, 23rd Floor
Boston, MA 02116
Facsimile: (617) 573-4822
Attention: Margaret A. Brown
If to SpinCo:
LogMeIn, Inc.
320 Summer Street
Boston, MA 02210
Facsimile: (781) 437-1820
Attention: Chief Financial Officer
General Counsel
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
200 Clarendon Street
Boston, MA 02116
Facsimile: (617) 948-6001
Attention: John H. Chory
Bradley C. Faris
Any notice to Citrix shall be deemed notice to all members of the Citrix Group, and any notice to SpinCo shall be deemed notice to all members of the SpinCo Group.
10.10 Severability.  If any term or other provision (or part thereof) of this Agreement is declared invalid, illegal or incapable of being enforced by any Governmental Authority, all other terms and provisions (or parts thereof) of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision (or part thereof) is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
10.11 Successors and Assigns.  The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted assigns.
10.12    Third Party Beneficiaries.  Except (i) as provided in ARTICLE 9 relating to Indemnified Parties and (ii) as specifically provided in any Transaction Agreement, this Agreement shall be binding upon and inure solely to the benefit of, and be enforceable by, only the Parties and their respective successors and permitted assigns, and nothing herein,
express or implied, is intended to, or shall, confer upon any other Person any right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.
 
20

10.13 Assignment . This Agreement and the rights and obligations hereunder may not be assigned by any Party by operation of Law or otherwise without the express written consent of the other Parties (which consent may be granted or withheld in the sole discretion of the other Parties). Any attempted assignment that is not in accordance with this  Section   10.13  shall be null and void.
10.14 Amendment and Waivers .
10.14.1 This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, each Party that expressly references the Section of this Agreement to be amended; or (b) by a waiver in accordance with  Section 10.14.2 .
10.14.2 Any Party may (a) extend the time for the performance of any of the obligations or other acts of the other Party; (b) waive any inaccuracies in the representations and warranties of the other Party contained herein or in any document delivered by the other Party pursuant to this Agreement; or (c) waive compliance with any of the agreements of the other Party or conditions to such obligations contained herein. Any such waiver shall be valid only if set forth in an instrument in writing signed by the Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by any Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder. Any waiver of any term or condition hereof shall not be construed as a waiver of any subsequent breach or as a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement.
10.15 Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
1 0.16 Non-Recourse . No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or representative of either Party or their respective Affiliates shall have any liability for any obligations or liabilities of such Party under this Agreement or for any claims based on, in respect of, or by reason of, the transactions contemplated by this Agreement.
10.17 Effect if Distribution Does Not Occur . If the Distribution does not occur, then all actions and events that are, under this Agreement, to be taken or occur shall not be taken or occur except to the extent specifically agreed by the Parties.
[ Signature Page Follows ]
 
21

IN WITNESS WHEREOF , each of the Parties hereto has caused this Agreement to be executed by an authorized representative as of the Effective Date.

CITRIX SYSTEMS, INC.	
		
By:	 	 	
	 	Name:	 	David J. Henshall	
	 	Title:	 	Executive Vice President, Chief Operating Officer and Chief Financial Officer	
	
GETGO, INC.	
		
By:	 	 	
	 	Name:	 	Antonio G. Gomes	
	 	Title:	 	Secretary	
 
22

EXHIBIT E
FORM OF
OMNIBUS INTELLECTUAL PROPERTY ASSIGNMENT
This OMNIBUS INTELLECTUAL PROPERTY ASSIGNMENT (this “ Assignment ”), dated as of [•], 2016 (the “ Assignment Effective Date ”), is entered into by and between CITRIX SYSTEMS, INC. (“ Citrix ”), a Delaware corporation (“ Assignor ”), and GETGO, INC. (“ SpinCo ”), a Delaware corporation (“ Assignee ”), (each a “ Party ” and collectively, the “ Parties ”). Certain capitalized terms used herein shall have the meanings set forth in Schedule A hereto.
WHEREAS, the Board of Directors of Citrix has determined that it is appropriate, desirable and in the best interests of Citrix and its stockholders to separate (the “ Separation ”) the SpinCo Business from the remaining business of Citrix and its Subsidiaries;
WHEREAS, in furtherance of the Separation, Citrix, SpinCo and LogMeIn, Inc., a Delaware corporation (“ LogMeIn ”) have entered into a Separation and Distribution Agreement, dated as of July 26, 2016 (the “ Separation Agreement ”), that, together with an Intellectual Property License Agreement (the “ IP License Agreement ”) and certain other ancillary agreements, govern the terms and conditions of the Separation;
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of July 26, 2016 (the “ Merger Agreement ”), among Citrix, SpinCo, LogMeIn and Lithium Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of LogMeIn (“ Merger Partner Sub ”), immediately following the Distribution under the Separation Agreement, Merger Partner Sub will merge with and into SpinCo (the “ Merger ”) and, in connection with the Merger, SpinCo Common Stock will be converted into shares of common stock of LogMeIn, par value $0.01 per share, on the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, upon the terms and subject to the conditions set forth in the Separation Agreement and to effect the Separation and the Merger, Citrix desires to reorganize the SpinCo Business so that it is conducted through SpinCo and its Subsidiaries;
WHEREAS, in connection with the reorganization of the SpinCo Business, Assignor desires to assign, transfer and convey to Assignee all of Assignor’s right, title, and interest in and to the SpinCo Intellectual Property (as defined in the Separation Agreement), including the Assigned Patents, Assigned Marks, Assigned Copyrights and Assigned Unregistered Intellectual Property, on the terms and conditions hereof;
WHEREAS, Assignee will grant a license to Assignor under certain of the Assigned IP (other than the Assigned Marks), on the terms and conditions of the IP License Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Assignment, the Parties hereby agree as follows:
1. Conveyance . As of the Assignment Effective Date, Assignor, on behalf of itself and such of its Affiliates identified in Section 2 below as the owner of the applicable Assigned IP, does hereby assign, transfer and convey to Assignee, and Assignee does hereby accept from Assignor or such of its Affiliates, all of Assignor’s or such of its Affiliates’ right, title and interest in and to the Assigned IP, in each case together with all rights and remedies against past, present, and future infringement or other violation thereof.
 
1

2. Definitions . As used herein:
 
 	(a)	“ Assigned Patents ” means the Patents set forth on Schedule B hereto and owned as of the Assignment Effective Date by Assignor (or such of its Affiliates identified on Schedule   B hereto as the assignor with respect to such Patents) that are included in the SpinCo Intellectual Property.	
 
 	(b)	“ Assigned Marks ” means the Marks set forth on Schedule C hereto and owned as of the Assignment Effective Date by Assignor (or such of its Affiliates identified on Schedule C hereto as the assignor with respect to such Marks) that are included in the SpinCo Intellectual Property and subject to a registration or application.	
 
 	(c)	“ Assigned Copyrights ” means the Copyrights set forth on Schedule D hereto and owned as of the Assignment Effective Date by Assignor (or such of its Affiliates identified on Schedule   D hereto as the assignor with respect to such Copyrights) that are included in the SpinCo Intellectual Property and subject to a registration or application.	
 
 	(d)	“ Assigned Unregistered Intellectual Property ” means the Assigned Unregistered Copyrights, Assigned Unregistered Marks and Assigned Trade Secrets, collectively.	
 
 	(i)	“ Assigned Unregistered Copyrights ” means the Copyrights owned as of the Assignment Effective Date by Assignor (or such of its Affiliates identified on Schedule E hereto as an assignor with respect to such Copyrights) that are included in the SpinCo Intellectual Property and that are not subject to a registration or application, including Unicast, Screencast, Concierge and the SpinCo Codec, as each of those terms are defined in the IP License Agreement.	
 
 	(ii)	“ Assigned Unregistered Marks ” means the Marks owned as of the Assignment Effective Date by Assignor (or such of its Affiliates identified on Schedule E hereto as an assignor with respect to such Marks) that are included in the SpinCo Intellectual Property and that are not subject to a registration or application.	
 
 	(iii)	“ Assigned Trade Secrets ” means the Trade Secrets owned as of the Assignment Effective Date by Assignor (or such of its Affiliates identified on Schedule E hereto as an assignor with respect to such Trade Secrets) that are included in the SpinCo Intellectual Property.	
 
2

 	(e)	“ Assigned IP ” means the Assigned Patents, Assigned Marks, Assigned Copyrights, Assigned Unregistered Intellectual Property and any other SpinCo Intellectual Property (other than, for clarity and subject to Section 2.1(c) of the Separation Agreement, any Patents, Marks or Copyrights that are subject to a registration or application).	
3. Recordation . The Parties agree to reasonably cooperate with each other with respect to preparing instruments to record Assignee as the owner of the registrations and applications for Assigned IP, including entering into individual short-form assignment agreements in substantially the same form attached hereto as Exhibit A , in the United States Patent and Trademark Office, the U.S. Copyright Office or such other applicable foreign Governmental Authority or registrar (each, an “ Instrument ”), and Assignee shall have the right to record such Instrument with the applicable Governmental Authority or registrar, in each case at Assignee’s sole cost and expense. Notwithstanding anything to the contrary in any such Instrument, to the extent of any conflict or inconsistency between this Assignment and such Instrument, this Assignment shall control. For clarity and without limiting the foregoing, any such Instrument may or may not refer to this Assignment, the Separation Agreement or the IP License Agreement or include disclaimers, limitations or exceptions with respect to the Assigned IP or the assignments thereof, and may be dated as of, before or after the Assignment Effective Date, and notwithstanding the applicable date or any such references or inclusions, or the absence thereof, the applicable terms and conditions of the Separation Agreement, IP License Agreement and this Assignment shall apply to each such Instrument and all Assigned IP thereunder.
4. Disclaimer of Representations and Warranties . EACH OF ASSIGNOR AND ASSIGNEE UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THE MERGER AGREEMENT OR THE SEPARATION AGREEMENT OR ANY OTHER TRANSACTION AGREEMENT, AND EXCEPT IN THE CASE OF FRAUD WITH RESPECT TO THE MATTERS SPECIFICALLY ADDRESSED IN ARTICLE IV OR ARTICLE V OF THE MERGER AGREEMENT OR IN THE SEPARATION AGREEMENT OR THE ANCILLARY AGREEMENTS, ASSIGNOR IS NOT REPRESENTING OR WARRANTING IN ANY WAY, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ASSIGNED IP OR THE AMOUNT OF ANY LIABILITIES TRANSFERRED OR ASSUMED AS CONTEMPLATED HEREBY, AS TO ANY CONSENTS REQUIRED IN CONNECTION HEREWITH, AS TO THE VALUE OF, AS TO THE FREEDOM FROM ANY SECURITY INTERESTS OF, AS TO NONINFRINGEMENT, VALIDITY OR ENFORCEABILITY CONCERNING, ANY OF THE ASSIGNED IP, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR ASSIGNED IP, OR AS TO THE LEGAL SUFFICIENCY OF ANY CONTRIBUTION, ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSIGNED IP OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF. EXCEPT AS MAY EXPRESSLY BE SET FORTH IN THE MERGER AGREEMENT OR THE SEPARATION AGREEMENT, ALL ASSIGNED IP IS BEING TRANSFERRED ON AN “AS IS, WHERE IS” BASIS AND ASSIGNEE SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE ASSIGNEE GOOD TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST AND (II) ANY NECESSARY CONSENTS ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.
 
3

5. No Conflict . The Parties acknowledge and agree that this Assignment and each Instrument shall be subject to and governed by the provisions of the Separation Agreement. Nothing contained in this Assignment or any Instrument is intended to, shall or shall be deemed to modify, alter, amend, expand upon or otherwise change any of the rights, remedies or obligations of Citrix and SpinCo to be provided under the Separation Agreement or the IP License Agreement.
6. Amendment and Waivers
 
 	(a)	This Assignment may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, each Party that expressly references the Section of this Assignment to be amended; or (b) by a waiver in accordance with Section 6(b) .	
 
 	(b)	Any Party may (a) extend the time for the performance of any of the obligations or other acts of the other Party; (b) waive any inaccuracies in the representations and warranties of the other Party contained herein or in any document delivered by the other Party pursuant to this Assignment; or (c) waive compliance with any of the agreements of the other Party or conditions to such obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by any Party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder. Any waiver of any term or condition hereof shall not be construed as a waiver of any subsequent breach or as a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Assignment.	
7. Successors and Assigns . The provisions of this Assignment and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted assigns.
8. Counterparts . This Assignment may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
9. Titles and Headings . Titles and headings for this Assignment are for reference purposes only and do not affect in any way the meaning or interpretation of this Assignment.
 
4

10. Exhibits and Schedules . The Exhibits and Schedules shall be construed with and as an integral part of this Assignment to the same extent as if the same had been set forth verbatim herein.
11. Severability . If any term or other provision (or part thereof) of this Assignment is declared invalid, illegal or incapable of being enforced by any Governmental Authority, all other terms and provisions (or parts thereof) of this Assignment shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Assignment is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision (or part thereof) is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Assignment so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Assignment are consummated as originally contemplated to the greatest extent possible.
12. Interpretation . The Parties have participated jointly in the negotiation and drafting of this Assignment. This Assignment shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.
13. Governing Law . This Assignment and any dispute shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof that might lead to the application of Laws other than the Laws of the State of Delaware. All Actions that, directly or indirectly, arise out of or relate to this Assignment shall be heard and determined exclusively in the Court of Chancery of the State of Delaware;  provided ,  however , that if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any Delaware state court or United States federal court sitting in the State of Delaware. Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action brought by any party hereto that, directly or indirectly, arises out of or relates to this Assignment; (b) agrees that service of process in such Action will be validly effected by sending notice in accordance with Section 8.6 of the Separation Agreement; (c) irrevocably waives and releases, and agrees not to assert by way of motion, defense, or otherwise, in or with respect to any such action, any claim that (i) such Action is not subject to the subject matter jurisdiction of at least one of the above-named courts; (ii) its property is exempt or immune from attachment or execution in the State of Delaware; (iii) such Action is brought in an inconvenient forum; (iv) that the venue of such Action is improper; or (v) this Assignment or the transactions contemplated by this Assignment may not be enforced in or by any of the above-named courts; and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
[Signature Page Follows]

5

IN WITNESS WHEREOF, the Parties have caused this Assignment to be duly executed as of the day and year first above written.

ASSIGNOR:	
	
CITRIX	
		
By:	 	 	
Name:	 		
Title:	 		
	
Acknowledged and Accepted:	
	
ASSIGNEE:	
	
SPINCO	
		
By:	 	 	
Name:	 		
Title:	 		
THE [STATE/COMMONWEALTH/COUNTRY] OF [                ]
County of                      
This instrument was executed before me on this      day of             ,     , by             , the     (title) of Citrix, a Delaware corporation, on behalf of said corporation.

 	
Notary Public in and for	
The [State/Commonwealth] of [            ]	

Printed or Typed Name of Notary	
	
My commission expires                     	

SCHEDULE A
CERTAIN DEFINITIONS
“ Action ” has the meaning set forth in the Merger Agreement.
“ Affiliate ” has the meaning set forth in the Merger Agreement.
“ Copyrights ” has the meaning set forth in the Merger Agreement.
“ Distribution ” has the meaning set forth in the Separation Agreement.
“ Governmental Authority ” has the meaning set forth in the Merger Agreement.
“ Intellectual Property ” has the meaning set forth in the Merger Agreement.
“ Law ” has the meaning set forth in the Merger Agreement.
“ Marks ” has the meaning set forth in the Merger Agreement.
“ Patents ” has the meaning set forth in the Merger Agreement.
“ SpinCo Business ” has the meaning set forth in the Separation Agreement.
“ SpinCo Common Stock ” has the meaning set forth in the Separation Agreement.
“ Trade Secrets ” has the meaning set forth in the Merger Agreement.

SCHEDULE B
ASSIGNED PATENTS
[TO COME]

SCHEDULE C
ASSIGNED MARKS
[TO COME]

SCHEDULE D
ASSIGNED COPYRIGHTS
[TO COME]

SCHEDULE E
ASSIGNOR AFFILIATES HOLDING ASSIGNED UNREGISTERED INTELLECTUAL PROPERTY
[TO COME]

EXHIBIT A
FORM OF INDIVIDUAL ASSIGNMENT AGREEMENTS
[TO COME]

Exhibit 2.3
EXECUTION VERSION
TAX MATTERS AGREEMENT
between
Citrix Systems, Inc.,
on behalf of itself
and the members
of the Citrix Group
and
GetGo, Inc.,
on behalf of itself
and the members
of the SpinCo Group
and
LogMeIn, Inc.,
on behalf of itself
and the members
of the LogMeIn Group
Dated as of July 26, 2016

TABLE OF CONTENTS

 	  	Page	 	
		
Section 1.      Definition of Terms	  	 	1	  	
		
Section 2.      Allocation of Tax Liabilities and Tax-Related Losses	  	 	11	  	
Section 2.01     General Rule	  	 	11	  	
Section 2.02     General Allocation Principles	  	 	12	  	
Section 2.03     Allocation Conventions	  	 	13	  	
Section 2.04     Transfer Taxes	  	 	13	  	
		
Section 3.      Preparation and Filing of Tax Returns	  	 	14	  	
Section 3.01     Joint Returns	  	 	14	  	
Section 3.02     SpinCo Separate Tax Returns	  	 	14	  	
Section 3.03     Tax Returns for Transfer Taxes	  	 	14	  	
Section 3.04     Tax Reporting Practices	  	 	14	  	
Section 3.05     Protective Section 336(e) Election	  	 	16	  	
Section 3.06     Consolidated or Combined Tax Returns	  	 	17	  	
Section 3.07     SpinCo Carrybacks and Claims for Refund	  	 	17	  	
Section 3.08     Apportionment of Tax Attributes	  	 	18	  	
Section 3.09     Citrix Equity Awards	  	 	18	  	
		
Section 4.      Tax Payments	  	 	19	  	
Section 4.01     Taxes Shown on Returns	  	 	19	  	
Section 4.02     Adjustments Resulting in Underpayments	  	 	19	  	
Section 4.03     Indemnification Payments	  	 	19	  	
		
Section 5.      Tax Refunds	  	 	20	  	
		
Section 6.      Tax-Free Status	  	 	20	  	
Section 6.01     Representations and Warranties	  	 	20	  	
Section 6.02     Restrictions on Members of the SpinCo and LogMeIn Groups	  	 	21	  	
Section 6.03     Restrictions on Citrix	  	 	23	  	
Section 6.04     Procedures Regarding Opinions and Rulings	  	 	23	  	
Section 6.05     Liability for Distribution Taxes and Tax-Related Losses	  	 	24	  	
		
Section 7.      Assistance and Cooperation	  	 	25	  	
Section 7.01     Assistance and Cooperation	  	 	25	  	
Section 7.02     Tax Return Information	  	 	26	  	
Section 7.03     Reliance by Citrix	  	 	26	  	
Section 7.04     Reliance by the LogMeIn Parties	  	 	26	  	
Section 7.05     Internal Transactions	  	 	27	  	
		
Section 8.      Tax Records	  	 	27	  	
Section 8.01     Retention of Tax Records	  	 	27	  	
Section 8.02     Access to Tax Records	  	 	27	  	
Section 8.03     Preservation of Privilege	  	 	28	  	
		
Section 9.      Tax Contests	  	 	28	  	
Section 9.01     Notice	  	 	28	  	
Section 9.02     Control of Tax Contests	  	 	28	  	
 
i

					
Section 10.      Effective Date	  	 	30	  	
		
Section 11.      Survival of Obligations	  	 	30	  	
		
Section 12.      Tax Treatment of Payments	  	 	30	  	
Section 12.01     General Rule	  	 	30	  	
Section 12.02     Interest	  	 	31	  	
		
Section 13.      Dispute Resolution	  	 	31	  	
		
Section 14.      General Provisions	  	 	31	  	
Section 14.01     Complete Agreement; Construction	  	 	31	  	
Section 14.02     Other Agreements	  	 	31	  	
Section 14.03     Counterparts	  	 	31	  	
Section 14.04     Survival of Agreement	  	 	32	  	
Section 14.05     Expenses	  	 	32	  	
Section 14.06     Notices	  	 	32	  	
Section 14.07     Amendment and Waivers	  	 	33	  	
Section 14.08     Termination	  	 	33	  	
Section 14.09     Assignment	  	 	33	  	
Section 14.10     Successors and Assigns	  	 	33	  	
Section 14.11     Payment Terms	  	 	34	  	
Section 14.12     Subsidiaries	  	 	34	  	
Section 14.13     Third Party Beneficiaries	  	 	34	  	
Section 14.14     Governing Law	  	 	34	  	
Section 14.15     Waiver of Jury Trial	  	 	35	  	
Section 14.16     Specific Performance	  	 	35	  	
Section 14.17     Severability	  	 	35	  	
Section 14.18     Interpretation	  	 	36	  	
Section 14.19     No Duplication; No Double Recovery	  	 	36	  	
Section 14.20     No Admission of Liability	  	 	36	  	
 
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TAX MATTERS AGREEMENT
This TAX MATTERS AGREEMENT (this “ Agreement ”) is entered into as of July 26, 2016, by and among Citrix Systems, Inc. (“ Citrix ”), a Delaware corporation, on behalf of itself and the members of the Citrix Group, GetGo, Inc. (“ SpinCo ”), a Delaware corporation, on behalf of itself and the members of the SpinCo Group, and LogMeIn, Inc. (“ RMT Parent ”), a Delaware corporation, on behalf of itself and the members of the LogMeIn Group (Citrix, SpinCo, and RMT Parent are sometimes collectively referred to herein as the “ Parties ” and, as the context requires, individually referred to herein as a “ Party ”).
RECITALS
WHEREAS, Citrix, acting together with its Subsidiaries, currently conducts the Citrix Business and the SpinCo Business;
WHEREAS, Citrix and SpinCo have entered into a Separation Agreement, dated as of the date hereof (the “ Separation Agreement ”) and Citrix, SpinCo, RMT Parent and Lithium Merger Sub, Inc. (“ Merger Sub ”) have entered into a Merger Agreement, dated as of the date hereof (the “ Merger Agreement ”) pursuant to which the Internal Reorganization, the Contribution, the Distribution, the Merger and other related transactions will be consummated;
WHEREAS, it is the intention of the Parties that the Internal Transactions, the Contribution, the Distribution, and the Merger will qualify for the Tax-Free Status;
WHEREAS, pursuant to the Tax Laws of various jurisdictions, certain members of the SpinCo Group presently file certain Tax Returns on an affiliated, consolidated, combined, unitary, fiscal unity or other group basis (including as permitted by Section 1501 of the Internal Revenue Code of 1986, as amended (the “ Code ”)) with certain members of the Citrix Group; and
WHEREAS, Citrix, SpinCo, and RMT Parent desire to set forth their agreement on the rights and obligations of Citrix, SpinCo, RMT Parent and the members of the Citrix Group, the SpinCo Group, and the LogMeIn Group respectively, with respect to (A) the administration and allocation of federal, state, local, and foreign Taxes incurred in Tax Periods beginning prior to the Distribution Date, (B) Taxes resulting from the Distribution and transactions effected in connection with the Distribution, and (C) various other Tax matters;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained in this Agreement, the Parties hereby agree as follows:
Section 1. Definition of Terms . For purposes of this Agreement (including the recitals hereof), the following terms have the following meanings, and capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Separation Agreement:
“ Action ” means any demand, action, claim, suit, countersuit, arbitration, inquiry, subpoena, case, litigation, proceeding or investigation (whether civil, criminal, administrative or investigative) by or before any court or grand jury, any Governmental Authority or any arbitration or mediation tribunal.

“ Active Trade or Business ” means (i) with respect to the SpinCo SAG, the active conduct (as defined in Section 355(b)(2) of the Code and the Treasury Regulations thereunder) of the SpinCo Business as conducted immediately prior to the Distribution by the SpinCo SAG, or (ii) with respect to the Foreign SpinCo SAG, the active conduct (as defined in Section 355(b)(2) of the Code and the Treasury Regulations thereunder) of the SpinCo Business relating to the Foreign SpinCo SAG as conducted immediately prior to the First Internal Distribution and Second Internal Distribution by the Foreign SpinCo SAG.
“ Adjusted Grossed-Up Basis ” has the meaning set forth in Section 3.05(b) of this Agreement.
“ Adjustment Request ” means any formal or informal claim or request filed with any Tax Authority, or with any administrative agency or court, for the adjustment, refund, or credit of Taxes, including (i) any amended Tax Return claiming adjustment to the Taxes as reported on the Tax Return or, if applicable, as previously adjusted, (ii) any claim for equitable recoupment or other offset, and (iii) any claim for refund or credit of Taxes previously paid.
“ Affiliate ” has the meaning set forth in the Merger Agreement.
“ Agreement ” means this Tax Matters Agreement.
“ Aggregate Deemed Asset Disposition Price ” has the meaning set forth in Section 3.05(b) of this Agreement.
“ Ancillary Agreement ” has the meaning set forth in the Separation Agreement; provided, however, that for purposes of this Agreement, this Agreement shall not constitute an Ancillary Agreement.
“ Business Day ” has the meaning set forth in the Merger Agreement.
“ Capital Stock ” means all classes or series of capital stock of a corporation, including (i) common stock, (ii) all options, warrants and other rights to acquire such capital stock and (iii) all instruments properly treated as stock in such corporation for U.S. federal Income Tax purposes.
“ Citrix ” has the meaning set forth in the preamble to this Agreement.
“ Citrix Affiliated Group ” means the affiliated group (as that term is defined in Section 1504(a) of the Code and the Treasury Regulations thereunder) of which Citrix is the common parent.
“ Citrix Business ” has the meaning set forth in the Separation Agreement.
“ Citrix Common Stock ” has the meaning set forth in the Separation Agreement.
 
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“ Citrix Equity Awards ” means options, stock appreciation rights, restricted stock, stock units or other compensatory rights with respect to Citrix Common Stock that are granted by Citrix on or before the Distribution Date in connection with employee, independent contractor or director compensation or other employee benefits; provided, however, that options, stock appreciation rights, restricted stock, stock units or other rights with respect to SpinCo Common Stock or RMT Parent Common Stock issued in respect of any of the foregoing by reason of the Distribution, the Merger, or any subsequent transaction shall not be treated as Citrix Equity Awards.
“ Citrix Federal Consolidated Income Tax Return ” means any United States federal Income Tax Return for the Citrix Affiliated Group.
“ Citrix Group ” has the meaning set forth in the Separation Agreement.
“ Citrix Separate Return ” means any Tax Return of or including any member of the Citrix Group (including any consolidated, combined or unitary return) that does not include any member of the SpinCo Group.
“ Closing of the Books Method ” means the apportionment of items between portions of a Tax Period based on a closing of the books and records on the close of the Distribution Date (in the event that the Distribution Date is not the last day of the Tax Period, as if the Distribution Date were the last day of the Tax Period), subject to adjustment for items accrued on the Distribution Date that are properly allocable to the Tax Period following the Distribution, as jointly determined by Citrix and RMT Parent; provided that any items not susceptible to such apportionment shall be apportioned on the basis of elapsed days during the relevant portion of the Tax Period.
“ Code ” has the meaning set forth in the recitals to this Agreement.
“ Contribution ” means the contribution (as part of the Separation) by Citrix of all of its ownership interests in the SpinCo Assets to SpinCo in exchange for additional SpinCo Common Stock and SpinCo’s assumption of the SpinCo Liabilities.
“ Controlling Party ” has the meaning set forth in Section 9.02(d) of this Agreement.
“ Dispute ” has the meaning set forth in the Separation Agreement with respect to “Separation Agreement Dispute.”
“ Distribution ” has the meaning set forth in the Separation Agreement.
“ Distribution Date ” has the meaning set forth in the Separation Agreement.
“ Distribution Effective Time ” has the meaning set forth in the Separation Agreement.
“ Distribution Taxes ” means any and all Taxes incurred as a result of the failure of the Tax-Free Status of the Internal Transactions, the Contribution or the Distribution, including any Taxes imposed under Section 355(e) of the Code and the Treasury Regulations thereunder (or any similar provision of state, local or foreign Tax Law).
 
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“ Fifty-Percent or Greater Interest ” has the meaning ascribed to such term for purposes of Sections 355(d) and (e) of the Code.
“ Final Allocation ” has the meaning set forth in Section 3.08(b) of this Agreement.
“ Final Determination ” means the final resolution of liability for any Tax, which resolution may be for a specific issue or adjustment or for any Tax Period, (i) by IRS Form 870 or 870-AD (or any successor forms thereto), on the date of acceptance by or on behalf of the taxpayer, or by a comparable form under the laws of a state, local, or foreign taxing jurisdiction, except that a Form 870 or 870-AD or comparable form shall not constitute a Final Determination to the extent that it reserves (whether by its terms or by operation of law) the right of the taxpayer to file a claim for refund or the right of the Tax Authority to assert a further deficiency in respect of such issue or adjustment or for such Tax Period (as the case may be); (ii) by a decision, judgment, decree, or other order by a court of competent jurisdiction, which has become final and unappealable; (iii) by a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the laws of a state, local, or foreign taxing jurisdiction; (iv) by any allowance of a refund or credit in respect of an overpayment of a Tax, but only after the expiration of all periods during which such refund may be recovered (including by way of offset) by the jurisdiction imposing such Tax; (v) by a final settlement resulting from a treaty-based competent authority determination; or (vi) by any other final disposition, including by reason of the expiration of the applicable statute of limitations, the execution of a pre-filing agreement with the IRS or other Tax Authority, or by mutual agreement of the Parties.
“ First Internal Distributing ” means Citrix Finance Cayman LP, a Cayman Islands limited partnership.
“ First Internal Distribution ” means the distribution of Foreign SpinCo common stock to First Internal Distributing’s shareholders as set forth in the Steps Plan.
“ Foreign SpinCo ” means either (i) Carbon Software Technologies Holdings Limited, an Irish company limited by shares, or (ii) such other entity as may be designated by Citrix on or before August 15, 2016 in accordance with the procedures outlined in Section 1.1(67) of the Separation Agreement for amending or modifying the Steps Plan.
“ Foreign SpinCo SAG ” means the separate affiliated group of Foreign SpinCo, within the meaning of Section 355(b)(3)(B) of the Code.
“ Governmental Authority ” has the meaning set forth in the Merger Agreement.
“ Group ” means (a) with respect to Citrix, the Citrix Group, (b) with respect to SpinCo, the SpinCo Group, and (c) with respect to RMT Parent, the LogMeIn Group, as the context requires.
“ Income Tax ” means all U.S. federal, state, local and foreign income, franchise or similar Taxes imposed on (or measured by) net income or net profits, and any interest, penalties, additions to Tax or additional amounts in respect of the foregoing.
 
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“ Internal Contribution ” means the election of Foreign SpinCo to be treated as a corporation for U.S. federal income tax purposes, as set forth in the Steps Plan.
“ Internal Reorganization ” has the meaning set forth in the Separation Agreement.
“ Internal Transactions ” means, collectively, the Internal Contribution, the First Internal Distribution and the Second Internal Distribution.
“ IRS ” means the U.S. Internal Revenue Service or any successor agency.
“ Joint Return ” means any Tax Return that actually includes, by election or otherwise, one or more members of the Citrix Group together with one or more members of the SpinCo Group.
“ Law ” has the meaning set forth in the Merger Agreement.
“ LogMeIn Group ” means RMT Parent and its Subsidiaries immediately prior to the Merger Effective Time and, after the Merger Effective Time, also includes the entities comprising the SpinCo Group, including any predecessors or successors thereto (other than those entities comprising the Citrix Group).
“ LogMeIn Parties ” means either or both of RMT Parent and SpinCo, as the context requires.
“ Notified Action ” shall have the meaning set forth in Section 6.04(a) of this Agreement.
“ Merger ” has the meaning set forth in the Separation Agreement.
“ Merger Agreement ” has the meaning set forth in the recitals to this Agreement.
“ Merger Effective Time ” has the meaning set forth in the Separation Agreement.
“ Merger Sub ” has the meaning set forth in the recitals to this Agreement.
“ Non-Controlling Party ” has the meaning set forth in Section 9.02(d) of this Agreement.
“ Parties ” and “ Party ” have the meaning set forth in the preamble to this Agreement.
“ Past Practices ” has the meaning set forth in Section 3.04(a) of this Agreement.
“ Payor ” has the meaning set forth in Section 4.03(a) of this Agreement.
“ Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a Governmental Authority or any department, agency or political subdivision thereof, without regard to whether any entity is treated as disregarded for U.S. federal Income Tax purposes.
 
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“ Post-Distribution Period ” means any Tax Period beginning after the Distribution Date and, in the case of any Straddle Period, the portion of such Tax Period beginning on the day after the Distribution Date.
“ Pre-Distribution Period ” means any Tax Period ending on or before the Distribution Date and, in the case of any Straddle Period, the portion of such Straddle Period ending on the Distribution Date.
“ Prime Rate ” has the meaning set forth in the Separation Agreement.
“ Prior Group ” means any group that filed or was required to file (or will file or be required to file) a Tax Return, for a Tax Period or portion thereof ending at the close of the Distribution Date, on an affiliated, consolidated, combined, unitary, fiscal unity or other group basis (including as permitted by Section 1501 of the Code) that includes at least one member of the SpinCo Group.
“ Privilege ” means any privilege that may be asserted under applicable law, including, any privilege arising under or relating to the attorney-client relationship (including the attorney-client and work product privileges), the accountant-client privilege and any privilege relating to internal evaluation processes.
“ Proposed Acquisition Transaction ” means a transaction or series of transactions (or any agreement, understanding or arrangement, within the meaning of Section 355(e) of the Code and Treasury Regulations § 1.355-7, or any other regulations promulgated thereunder, to enter into a transaction or series of transactions), whether such transaction is supported by RMT Parent management or shareholders, is a hostile acquisition, or otherwise, as a result of which any Person or any group of related Persons would (directly or indirectly) acquire, or have the right to acquire, a number of shares of Capital Stock in SpinCo or RMT Parent that would, when combined with any other changes in ownership of Capital Stock in SpinCo or RMT Parent pertinent for purposes of Section 355(e) of the Code (including the Merger), comprise fifty percent (50%) or more of (i) the value of all outstanding shares of stock of SpinCo or RMT Parent, as applicable, as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series, or (ii) the total combined voting power of all outstanding shares of voting stock of SpinCo or RMT Parent, as applicable, as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series. Notwithstanding the foregoing, a Proposed Acquisition Transaction shall not include (i) the adoption by SpinCo or RMT Parent of a shareholder rights plan, (ii) issuances by SpinCo or RMT Parent that satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulations § 1.355-7(d), including such issuances net of exercise price and/or tax withholding ( provided , however , that any sale of such stock in connection with a net exercise or tax withholding is not exempt under this clause (ii) unless it satisfies the requirements of Safe Harbor VII of Treasury Regulations § 1.355-7(d)), or (iii) acquisitions that satisfy Safe Harbor VII of Treasury Regulations § 1.355-7(d), or (iv) Specified Repurchases or Redemptions. For purposes of determining whether a transaction constitutes an indirect acquisition, any recapitalization resulting in a shift of voting power or any redemption of shares of stock shall be treated as an indirect acquisition of shares of stock by the non-exchanging shareholders. This
 
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definition and the application thereof is intended to monitor compliance with Section 355(e) of the Code and shall be interpreted accordingly. Any clarification of, or change in, the statute or regulations promulgated under Section 355(e) of the Code shall be incorporated in this definition and its interpretation.
“ Proposed Allocation ” shall have the meaning set forth in Section 3.08(b) .
“ Protective Section 336(e) Election ” has the meaning set forth in Section 3.05(a) of this Agreement.
“ Representation Letters ” means the statements of facts and representations, officer’s certificates, representation letters and any other materials delivered or deliverable by Citrix, SpinCo, and RMT Parent, and any of their respective Affiliates or representatives, in connection with the rendering by Tax Advisors of the Tax Opinions.
“ Required Party ” has the meaning set forth in Section 4.03(a) of this Agreement.
“ Responsible Party ” means, with respect to any Tax Return, the Party having responsibility for preparing and filing such Tax Return under this Agreement.
“ Retention Date ” has the meaning set forth in Section 8.01 of this Agreement.
“ RMT Parent ” has the meaning set forth in the preamble to this Agreement.
“ RMT Parent Common Stock ” has the meaning given the term “Parent Common Stock” in the Merger Agreement.
“ RMT Parent Representation Letters ” has the meaning set forth in Section 6.01(b) of this Agreement.
“ Ruling ” has the meaning set forth in Section 6.02(b) of this Agreement.
“ Second Internal Distributing ” means Peninsula Investment Corp., a Delaware corporation.
“ Second Internal Distribution ” means the distribution of Foreign SpinCo common stock to Citrix as set forth in the Steps Plan.
“ Section 336(e) Allocation Statement ” has the meaning set forth in Section 3.05(b) of this Agreement.
“ Section 336(e) Tax Benefit Percentage ” means, with respect to any Distribution Taxes and Tax-Related Losses, the percentage equal to one hundred percent (100%) minus the percentage of such Distribution Taxes and Tax-Related Losses for which Citrix is entitled to indemnification under this Agreement.
“ Separation ” has the meaning set forth in the Separation Agreement.
“ Separation Agreement ” has the meaning set forth in the recitals to this Agreement.
 
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“ Specified Repurchases or Redemptions ” means repurchases or redemptions by RMT Parent that satisfy the following criteria: (i) the repurchase or redemption is motivated by a non-tax business purpose, (ii) the stock to be repurchased or redeemed is widely held, (iii) the repurchase or redemption is made in the open market, (iv) the repurchase or redemption is not motivated to any extent by a desire to increase or decrease the ownership percentage of any particular shareholder or group of shareholders, and (v) RMT Parent will not know the identity of any shareholder from which its stock is redeemed or repurchased; provided that, no repurchase or redemption will be considered a Specified Repurchase or Redemption if at the time of the repurchase or redemption any shareholder of RMT Parent was either (A) a controlling shareholder (within the meaning of Treasury Regulations Section 1.355-7(h)(3)), (B) a ten-percent shareholder (within the meaning of Treasury Regulations Section 1.355-7(h)(14)) or (C) a member of a controlled group of corporations within the meaning of Section 1563 of the Code of which RMT Parent is a member.
“ SpinCo ” has the meaning provided in the preamble to this Agreement.
“ SpinCo Assets ” has the meaning set forth in the Separation Agreement.
“ SpinCo Business ” means the business specified on Schedule I.
“ SpinCo Carryback ” means any net operating loss, net capital loss, excess Tax credit, or other similar Tax item of any member of the SpinCo Group which may or must be carried from one Tax Period to another prior Tax Period under the Code or other applicable Tax Law.
“SpinCo Common Stock” has the meaning set forth in the Separation Agreement.
“ SpinCo Entity ” means an entity which will be a member of the SpinCo Group immediately after the Distribution.
“ SpinCo Group ” has the meaning set forth in the Separation Agreement.
“ SpinCo Liabilities ” has the meaning set forth in the Separation Agreement.
“ SpinCo SAG ” means the separate affiliated group of SpinCo, within the meaning of Section 355(b)(3)(B) of the Code.
“ SpinCo Separate Return ” means any Tax Return of or including any member of the SpinCo Group (including any consolidated, combined or unitary return) that does not include any member of the Citrix Group.
“ SpinCo Representation Letters ” has the meaning set forth in Section 6.01(a) of this Agreement.
“ Steps Plan ” has the meaning set forth in the Separation Agreement.
“ Straddle Period ” means any Tax Period that begins before and ends after the Distribution Date.
 
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“ Subsidiary ” has the meaning set forth in the Merger Agreement.
“ Substantial Authority ” has the meaning set forth in Section 3.04(a) of this Agreement.
“ Tax ” or “ Taxes ” means any income, gross income, gross receipts, profits, capital stock, franchise, withholding, payroll, social security, workers compensation, unemployment, disability, property, ad valorem, value added, stamp, excise, severance, occupation, service, sales, use, license, lease, transfer, import, export, escheat, alternative minimum, universal service fund, estimated or other tax (including any fee, assessment, or other charge in the nature of or in lieu of any tax), imposed by any Governmental Authority or political subdivision thereof, and any interest, penalty, additions to tax or additional amounts in respect of the foregoing.
“ Tax Advisor ” means a Tax counsel or accountant, in each case of recognized national standing.
“ Tax Attribute ” means a net operating loss, net capital loss, unused investment credit, unused foreign Tax credit (including credits of a foreign company under Section 902 of the Code), excess charitable contribution, general business credit, research and development credit, earnings and profits, basis, or any other Tax Item that could reduce a Tax or create a Tax Benefit.
“ Tax Authority ” means, with respect to any Tax, the Governmental Authority or political subdivision thereof that imposes such Tax, and the agency (if any) charged with the collection of such Tax for such entity or subdivision.
“ Tax Benefit ” means any refund, credit, or other item that causes reduction in otherwise required liability for Taxes.
“ Tax Contest ” means an audit, review, examination, contest, litigation, investigation or any other administrative or judicial proceeding with the purpose or effect of redetermining Taxes (including any administrative or judicial review of any claim for refund).
“ Tax-Free Status ” means the qualification of (i) the Contribution and the Distribution, taken together, as a reorganization described in Section 368(a)(1)(D) of the Code and of each of Citrix and SpinCo as a “party to a reorganization” within the meaning of Section 368(b) of the Code, (ii) the Distribution, as such, as a distribution of the SpinCo Common Stock to Citrix’s shareholders pursuant to Section 355 of the Code, and as a transaction in which the stock distributed thereby is “qualified property” for purposes of Sections 355(d), 355(e) and 361(c) of the Code, (iii) the Merger as not causing Section 355(e) of the Code to apply to the Distribution, (iv) the Merger as a “reorganization” within the meaning of Section 368(a) of the Code and of each of RMT Parent, Merger Sub and SpinCo as a “party to a reorganization” within the meaning of Section 368(b) of the Code, (v) the Internal Contribution and the First Internal Distribution, taken together, as a reorganization described in Section 368(a)(1)(D) of the Code and of each of First Internal Distributing and Foreign SpinCo as a “party to a reorganization” within the meaning of Section 368(b) of the Code, (vi) the First Internal Distribution, as such, as a distribution of the Foreign SpinCo common stock to First Internal Distributing’s shareholders pursuant to Section 355 of the Code, and (vii) the Second Internal Distribution, as such, as a distribution of the Foreign SpinCo common stock to Second Internal Distributing’s shareholders pursuant to Section 355 of the Code; provided , however , that the foregoing clauses (v) through
 
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(vii) shall apply and be included in the definition of Tax-Free Status only if Citrix has received a Tax Opinion at a comfort level of “more likely than not” or higher with respect to each such qualification. Such term does not include, in the case of the Citrix Group or the SpinCo Group, any intercompany items or excess loss accounts taken into account pursuant to the Treasury Regulations promulgated pursuant to Section 1502 of the Code.
“ Tax Item ” means, with respect to any Income Tax, any item of income, gain, loss, deduction, or credit.
“ Tax Law ” means the Law of any Governmental Authority or political subdivision thereof relating to any Tax.
“ Tax Materials ” has the meaning set forth in Section 6.01(c) of this Agreement.
“ Tax Opinions ” means any opinions of Tax Advisors deliverable to Citrix, SpinCo or RMT Parent in connection with the Internal Transactions, the Contribution, the Distribution or the Merger.
“ Tax Period ” means, with respect to any Tax, the period for which the Tax is reported as provided under the Code or other applicable Tax Law.
“ Tax Records ” means any (i) Tax Returns, (ii) Tax Return workpapers, (iii) documentation relating to any Tax Contests, and (iv) any other books of account or records (whether or not in written, electronic or other tangible or intangible forms and whether or not stored on electronic or any other medium) required to be maintained under the Code or other applicable Tax Laws or under any record retention agreement with any Tax Authority, in each case filed with respect to or otherwise relating to Taxes.
“ Tax-Related Losses ” means, with respect to Taxes resulting from the failure of the Internal Transactions, the Contribution and the Distribution to have Tax-Free Status, (i) all accounting, legal and other professional fees, and court costs incurred in connection with such Taxes, as well as any other out-of-pocket costs incurred in connection with such Taxes; and (ii) all costs, expenses and damages associated with shareholder litigation or controversies and any amount paid by Citrix (or any Citrix Affiliate) or the LogMeIn Parties (or any of their respective Affiliates) in respect of the liability of shareholders, whether paid to shareholders or to the IRS or any other Tax Authority.
“ Tax Return ” or “ Return ” means any report of Taxes due, any claim for refund of Taxes paid, any information return with respect to Taxes, or any other similar report, statement, declaration, or document required to be filed under the Code or other Tax Law with respect to Taxes, including any attachments, exhibits, or other materials submitted with any of the foregoing, and including any amendments or supplements to any of the foregoing.
“ Third Party ” means any Person other than the Parties or any of their respective Subsidiaries.
“ Transfer Taxes ” means all sales, use, transfer, real property transfer, intangible, recordation, registration, documentary, stamp or similar Taxes imposed in connection with the Internal Reorganization, the Contribution, or the Distribution (excluding in each case, for the avoidance of doubt, any Income Taxes).
 
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“ Treasury Regulations ” means the regulations promulgated from time to time under the Code as in effect for the relevant Tax Period.
“ Unqualified Tax Opinion ” means an unqualified “will” opinion of a Tax Advisor, which Tax Advisor is reasonably acceptable to Citrix, on which Citrix may rely to the effect that a transaction will not adversely affect the Tax-Free Status. Any such opinion to the effect that a transaction will not affect the Tax-Free Status must assume that the Internal Transactions, the Contribution, the Distribution and the Merger would have qualified for Tax-Free Status if the transaction in question did not occur.
Section 2. Allocation of Tax Liabilities and Tax-Related Losses.
Section 2.01 General Rule .
(a) Citrix Liability . Except with respect to Taxes and Tax-Related Losses described in Section 2.01(b) , Citrix shall be liable for, and shall indemnify and hold harmless the SpinCo Group and the LogMeIn Group from and against any liability for:
(i) Taxes which are allocated to Citrix under this Section 2 ;
(ii) any Tax resulting from a breach of any of Citrix’s covenants in this Agreement, the Separation Agreement, the Merger Agreement or any Ancillary Agreement;
(iii) Distribution Taxes and Tax-Related Losses that are not allocated to the LogMeIn Parties pursuant to Section 6.05 ;
(iv) Taxes (other than Distribution Taxes) for any Pre-Distribution Period resulting from, attributable to or arising in connection with the Internal Reorganization;
(v) Taxes resulting from any (A) gain recognized under Treasury Regulations § 1.1502-19(b) in connection with an excess loss account with respect to the stock of SpinCo or any member of the SpinCo Group at the time of the Distribution, (B) net deferred gains taken into account under Treasury Regulations § 1.1502-13(d) associated with deferred intercompany transactions between a SpinCo Group member and a Citrix Group member, and (C) gains described in clause (A) or (B) that are imposed under similar state, local or foreign Law;
(vi) Taxes imposed on SpinCo or any member of the SpinCo Group pursuant to the provisions of Treasury Regulations § 1.1502-6 (or similar provisions of state, local, or foreign Tax Law) as a result of any such member being or having been a member of a Prior Group; and
(vii) any Taxes resulting from a member of the LogMeIn Group recognizing additional income under Section 951 of the Code in connection with a non-ordinary course transaction undertaken by either (A) SpinCo or a member of the SpinCo Group prior to the Distribution Effective Time, or (B) Citrix or a member of the Citrix Group at any time.
 
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(b) SpinCo and RMT Parent Liability . The LogMeIn Parties shall be liable for, and shall jointly and severally indemnify and hold harmless the Citrix Group from and against any liability for:
(i) Taxes which are allocated to SpinCo or to RMT Parent under this Section 2 ;
(ii) any Tax resulting from a breach of any of the LogMeIn Parties’ covenants in this Agreement, the Separation Agreement, the Merger Agreement or any Ancillary Agreement;
(iii) any Distribution Taxes and Tax-Related Losses which are allocated to the LogMeIn Parties under Section 6.05 ; and
(iv) any Taxes resulting from a member of the Citrix Group recognizing additional income under Section 951 of the Code in connection with a non-ordinary course transaction undertaken by either or both of the LogMeIn Parties or any other member of the LogMeIn Group following the Distribution Effective Time.
Section 2.02 General Allocation Principles . Except as otherwise provided in this Section 2 or in Section 6.05 , all Taxes shall be allocated as follows:
(a) Allocation of Taxes for Joint Returns . Citrix shall be responsible for all Taxes reported, or required to be reported, on any Joint Return that any member of the Citrix Group files or is required to file under the Code or other applicable Tax Law; provided, however, that to the extent any such Joint Return includes any Tax Item attributable to any member of the SpinCo Group or to the SpinCo Business for any Post-Distribution Period, SpinCo shall be responsible for all Taxes attributable to such Tax Items, computed in a manner reasonably agreed by Citrix and RMT Parent.
(b) Allocation of Taxes for Separate Returns .
(i) Citrix shall be responsible for all Taxes reported, or required to be reported, on (x) a Citrix Separate Return or (y) a SpinCo Separate Return with respect to a Pre-Distribution Period, in each case including any increase in such Tax as a result of a Final Determination.
(ii) SpinCo shall be responsible for all Taxes reported, or required to be reported, on a SpinCo Separate Return with respect to a Post-Distribution Period, including any increase in such Tax as a result of a Final Determination.
 
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(c) Taxes Not Reported on Returns .
(i) Citrix shall be responsible for any Tax attributable to any member of the Citrix Group or to the Citrix Business that is not required to be reported on a Tax Return.
(ii) Any Tax attributable to any member of the SpinCo Group or to the SpinCo Business that is not required to be reported on a Tax Return shall be allocated (x) to Citrix, if with respect to a Pre-Distribution Period, and (y) to SpinCo, if with respect to a Post-Distribution Period.
Section 2.03 Allocation Conventions .
(a) All Taxes allocated pursuant to Section 2.02 shall be allocated in accordance with the Closing of the Books Method; provided, however, that if applicable Tax Law does not permit a SpinCo Group member to close its Tax Period on the Distribution Date, the Tax attributable to the operations of the members of the SpinCo Group for any Pre-Distribution Period shall be the Tax computed using the Closing of the Books Method; provided further, that any and all Taxes reported, or required to be reported, on a SpinCo Separate Return, or a Tax Return of a member of the LogMeIn Group to the extent attributable to a member of the SpinCo Group, under Section 951(a) of the Code that, in either case, are attributable to items recognized for a Pre-Distribution Period (determined as though the Tax Period of each controlled foreign corporation (within the meaning of Section 957(a) of the Code) giving rise to such items ended on the Distribution Date) shall be allocated to Citrix, and that any such Taxes that, in either case, are attributable to items recognized for a Post-Distribution Period (determined as though the Tax Period of each controlled foreign corporation (within the meaning of Section 957(a) of the Code) giving rise to such items ended on the Distribution Date) shall be allocated to SpinCo;
(b) Any Tax Item of SpinCo, RMT Parent, or any member of their respective Groups arising from a transaction engaged in outside of the ordinary course of business on the Distribution Date after the Distribution Effective Time shall be properly allocable to SpinCo and any such transaction by or with respect to SpinCo, RMT Parent, or any member of their respective Groups occurring after the Distribution Effective Time (including the Merger) shall be treated for all Tax purposes (to the extent permitted by applicable Tax Law) as occurring at the beginning of the day following the Distribution Date in accordance with the principles of Treasury Regulation § 1.1502-76(b).
Section 2.04 Transfer Taxes . Any Transfer Taxes attributable to the Internal Reorganization or the Contribution, including, for the avoidance of doubt, any such Taxes that are triggered as a result of the Distribution, shall be allocated solely to Citrix. RMT Parent and Citrix shall each be responsible for fifty percent (50%) of any Transfer Taxes not allocated to Citrix pursuant to the preceding sentence.
 
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Section 3. Preparation and Filing of Tax Returns .
Section 3.01 Joint Returns .
(a) Citrix shall prepare and file, or to cause to be prepared and filed, all Joint Returns, and each member of the SpinCo Group to which any such Joint Return relates shall execute and file such consents, elections and other documents as Citrix may determine, after consulting with RMT Parent in good faith, are required or appropriate, or otherwise requested by Citrix (unless such an election would be binding on any member of the LogMeIn Group for any Tax Period beginning on or after the Distribution) in connection with the filing of such Joint Return.
(b) The Parties and their respective Affiliates shall elect to close the Tax Period of each SpinCo Group member on the Distribution Date, to the extent permitted by applicable Tax Law.
Section 3.02 SpinCo Separate Tax Returns
(a) Tax Returns to be Prepared by Citrix. Citrix shall prepare (or cause to be prepared) and, to the extent permitted by applicable Tax Law, file (or cause to be filed) all SpinCo Separate Returns that relate solely to any Pre-Distribution Period (which, for the avoidance of doubt, does not include any Straddle Period); provided, however, that with respect to any such Tax Return that is prepared by Citrix but required to be filed by a member of the LogMeIn Group under applicable Tax Law, Citrix shall provide such Tax Returns to RMT Parent at least 5 (five) Business Days prior to the due date for filing such Tax Returns (taking into account any applicable extension periods) with the amount of any Taxes shown as due thereon, and RMT Parent shall execute and file (or cause to be executed and filed) such Tax Returns.
(b) Tax Returns to be Prepared by RMT Parent. RMT Parent shall prepare and file (or cause to be prepared and filed) all SpinCo Separate Returns that are not described in Section 3.02(a) .
Section 3.03 Tax Returns for Transfer Taxes . Notwithstanding Section 3.01 and Section 3.02 , Tax Returns relating to Transfer Taxes shall be prepared and filed when due (including extensions) by the Person obligated to file such Tax Returns under applicable Tax Law. The Parties shall provide, and shall cause their Affiliates to provide, assistance and cooperation to one another in accordance with Section 7 with respect to the preparation and filing of Tax Returns, including providing information required to be provided in Section 7 .
Section 3.04 Tax Reporting Practices .
(a) General Rule . Except as provided in Section 3.04(b) , Citrix shall prepare any Tax Return which it has the obligation and right to prepare and file, or cause to be prepared and filed, under this Section 3 in accordance with past practices, permissible accounting methods, elections or conventions (“ Past Practices ”) used by the members of the Citrix Group and the members of the SpinCo Group prior to the Distribution Date with respect to such Tax Return, and to the extent any items, methods or positions are not covered by Past Practices, then Citrix shall prepare such Tax Return in accordance with reasonable Tax accounting practices selected by Citrix. With respect to any Straddle Period Tax Return that RMT Parent has the obligation and right to prepare, or cause to be prepared, under this Section 3 , such Tax Return shall be prepared in accordance with Past Practices used by the members of the Citrix Group and the members of the SpinCo Group prior to the Distribution Date with respect to such Tax Return (unless the
 
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Parties jointly determine that there is not at least “substantial authority,” within the meaning of Section 6662(d)(2)(B)(i) of the Code (or any corresponding or similar provision of state, local or foreign Law) (“ Substantial Authority ”), for the use of such Past Practices); provided, however, that, to the extent any items, methods or positions are not covered by Past Practices (or in the event the Parties jointly determine that there is not Substantial Authority for the use of such Past Practices), such Tax Return shall be prepared in accordance with reasonable Tax accounting practices selected by RMT Parent.
(b) Consistency with Tax-Free Status.
(i) The Parties shall report the Internal Reorganization in the manner determined by Citrix; provided  that Citrix communicates its treatment of the Internal Reorganization to RMT Parent, determined after considering in good faith any reasonable comments received in writing from RMT Parent relating thereto, no fewer than thirty (30) days prior to the due date (taking into account any applicable extensions) for filing an applicable Tax Return that reflects the Internal Reorganization; provided further that the Parties shall report the Internal Transactions consistent with the treatment thereof in a Tax Opinion if such Tax Opinion is at a comfort level of “more likely than not” or higher, in each case unless, and then only to the extent, an alternative position is required pursuant to a Final Determination.
(ii) The Parties shall report the Contribution, the Distribution and the Merger consistent with the treatment thereof in the Tax Opinions, taking into account the jurisdiction in which such Tax Returns are filed, unless, and then only to the extent, an alternative position is required pursuant to a Final Determination.
(c) SpinCo Separate Returns and Joint Returns.
(i) With respect to any SpinCo Separate Return or Joint Return for which Citrix is responsible for preparing pursuant to this Agreement, to the extent that the positions taken on such Tax Return would reasonably be expected to materially adversely affect the Tax position of any member of the LogMeIn Group, Citrix shall submit a draft of the portion of such Tax Return that relates solely to the business of any SpinCo Group member to RMT Parent at least thirty (30) days prior to the due date for the filing of such Tax Return (taking into account any applicable extensions), and RMT Parent shall have the right to review such portion of such Tax Return, and to submit to Citrix any reasonable changes to such portion of such Tax Return no later than fifteen (15) days prior to the due date for the filing of such Tax Return; provided , however , that nothing herein shall prevent Citrix from timely filing (or causing to be timely filed) such Tax Return. The Parties agree to consult and to attempt to resolve in good faith any issues arising as a result of the review of any such Tax Return.
(ii) With respect to any SpinCo Separate Return for a Straddle Period, that RMT Parent is responsible for preparing pursuant to this Agreement, RMT Parent shall submit a draft of such Tax Return to Citrix at least thirty (30) days
 
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prior to the due date for the filing of such Tax Return (taking into account any applicable extensions), and Citrix shall have the right to review such Tax Return, and to submit to RMT Parent any reasonable changes to such Tax Return no later than fifteen (15) days prior to the due date for the filing of such Tax Return; provided , however , that nothing herein shall prevent RMT Parent from timely filing (or causing to be timely filed) such Tax Return. The Parties agree to consult and to attempt to resolve in good faith any issues arising as a result of the review of any such Tax Return.
Section 3.05 Protective Section 336(e) Election.
(a) The Parties hereby agree to make a timely protective election under Section 336(e) of the Code and Treasury Regulations § 1.336-2(j) (and any similar provision of applicable state or local Tax Law) for each member of the SpinCo Group that is a domestic corporation for U.S. federal Income Tax purposes with respect to the Distribution (the “ Protective Section 336(e) Election ”) in accordance with Treasury Regulations § 1.336-2(h). For the avoidance of doubt, (i) this Section 3.05(a) is intended to constitute a written, binding agreement to make the Protective Section 336(e) Election within the meaning of Treasury Regulations § 1.336-2(h)(1)(i), and (ii) it is intended that the Protective Section 336(e) Election will have no effect unless, pursuant to a Final Determination, the Distribution is treated as a “qualified stock disposition” within the meaning of Treasury Regulations § 1.336-1(b)(6).
(b) Cooperation and Reporting . Citrix and the LogMeIn Parties shall cooperate in making the Protective Section 336(e) Election, including filing any statements, amending any Tax Returns or undertaking such other actions reasonably necessary to carry out the Protective Section 336(e) Election. Citrix and RMT Parent shall jointly determine the “ Aggregate Deemed Asset Disposition Price ” and the “ Adjusted Grossed-Up Basis ” (each as defined under applicable Treasury Regulations) and the allocation of such Aggregate Deemed Asset Disposition Price and Adjusted Grossed-Up Basis among the disposition date assets of SpinCo and its Subsidiaries, each in accordance with the applicable provisions of Section 336(e) of the Code and applicable Treasury Regulations (the “ Section 336(e) Allocation Statement ”). To the extent the Protective Section 336(e) Election becomes effective, each Party agrees not to take any position (and to cause each of its Affiliates not to take any position) that is inconsistent with the Protective Section 336(e) Election, including the Section 336(e) Allocation Statement, on any Tax Return, in connection with any Tax Contest or for any other Tax purposes (in each case, excluding any position taken for financial accounting purposes), except as may be required by a Final Determination.
(c) Tax Benefit Payment by RMT Parent . In the event that the Contribution and/or the Distribution fail to qualify for Tax-Free Status and Citrix is not entitled to indemnification for one hundred percent (100%) of any Distribution Taxes and Tax-Related Losses arising from such failure, Citrix shall be entitled to quarterly payments from RMT Parent equal to the Section 336(e) Tax Benefit Percentage of the actual Tax savings if, as and when realized by the LogMeIn Group arising from the step up in Tax basis (including, for the avoidance of doubt, any such step up attributable to payments made pursuant to this Section 3.05(c) ) resulting from the Protective Section 336(e) Election, determined on a “with and without” basis (treating any deductions or amortization attributable to the step up in Tax basis resulting from the Protective 336(e) Election,
 
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or any other recovery of such step up, as the last items claimed for any taxable year, including after the utilization of any available net operating loss carryforwards); provided , however , that such payments: (i) shall be reduced by all reasonable costs incurred by any member of the LogMeIn Group to amend any Tax Returns or other governmental filings related to such Protective Section 336(e) Election; and (ii) shall not exceed the lesser of (A) the amount of any Distribution Taxes and Tax-Related Losses incurred by Citrix (not taking into account this Section 3.05(c) ) as a result of such failure for which Citrix is not entitled to indemnification under this Agreement and (B) the amount of any Distribution Taxes and Tax-Related Losses that Citrix would have incurred for which Citrix would not have been entitled to indemnification under this Agreement if this Section 3.05 had not existed and no Protective Section 336(e) Election had been made.
Section 3.06 Consolidated or Combined Tax Returns . SpinCo will elect and join, and will cause its respective Affiliates to elect and join, in filing any Joint Returns that Citrix determines are required to be filed or that Citrix elects to file, in each case pursuant to Section 3.01(a) and subject to the limitations therein.
Section 3.07 SpinCo Carrybacks and Claims for Refund .
(a) The LogMeIn Parties hereby agree that, unless Citrix consents in writing (which consent may not be unreasonably withheld, conditioned, or delayed) or as required by Law, (i) no SpinCo Entity (nor its successors) shall file any Adjustment Request with respect to any Tax Return for a Pre-Distribution Period or Straddle Period and (ii) any available elections to waive the right to claim in any Pre-Distribution Period with respect to any Tax Return any SpinCo Carryback arising in a Post-Distribution Period shall be made, and no affirmative election shall be made to claim any such SpinCo Carryback. In the event that SpinCo (or the appropriate member of the SpinCo Group) is prohibited by applicable Law from waiving or otherwise forgoing a SpinCo Carryback or Citrix consents to a SpinCo Carryback (which consent may not be unreasonably withheld, conditioned, or delayed), Citrix shall cooperate with SpinCo, at SpinCo’s expense, in seeking from the appropriate Tax Authority such Tax Benefit as reasonably would result from such SpinCo Carryback, to the extent that such Tax Benefit is directly attributable to such SpinCo Carryback, and shall pay over to SpinCo the amount of such Tax Benefit within ten (10) days after such Tax Benefit is recognized; provided , however , that SpinCo shall indemnify and hold the members of the Citrix Group harmless from and against any and all collateral Tax consequences resulting from or caused by any such SpinCo Carryback, including, without limitation, the loss or postponement of any benefit from the use of Tax Attributes generated by a member of the Citrix Group if (i) such Tax Attributes expire unused, but would have been utilized but for such SpinCo Carryback, or (ii) the use of such Tax Attributes is postponed to a later Tax Period than the Tax Period in which such Tax Attributes would have been used but for such SpinCo Carryback.
(b) Citrix hereby agrees that, unless RMT Parent consents in writing (which consent may not be unreasonably withheld, conditioned, or delayed) or as required by Law, no member of the Citrix Group shall file any Adjustment Request with respect to any Tax Return for a SpinCo Entity if the result could reasonably be expected to change the Tax liability of any member of the LogMeIn Group for any Tax Period.
 
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Section 3.08 Apportionment of Tax Attributes .
(a) Tax Attributes arising in a Pre-Distribution Period will be allocated to (and the benefits and burdens of such Tax Attributes will inure to) the members of the Citrix Group and the members of the SpinCo Group in accordance with the Code, Treasury Regulations, and any other applicable Tax Law, and, in the absence of controlling legal authority or unless otherwise provided under this Agreement, Tax Attributes shall be allocated to the legal entity that created such Tax Attributes.
(b) On or before the first anniversary of the Distribution Date, Citrix shall deliver to RMT Parent its determination in writing of the portion, if any, of any earnings and profits, Tax Attributes, overall foreign loss or other affiliated, consolidated, combined, unitary, fiscal unity or other group basis Tax Attribute which is allocated or apportioned to the members of the SpinCo Group under applicable Tax Law and this Agreement (“ Proposed Allocation ”). RMT Parent shall have sixty (60) days to review the Proposed Allocation and provide Citrix any comments with respect thereto. If RMT Parent either provides no comments or provides comments to which Citrix agrees in writing, such resulting determination will become final (“ Final Allocation ”). If RMT Parent provides comments to the Proposed Allocation and Citrix does not agree, the Final Allocation will be determined in accordance with Section 13 . All members of the Citrix Group and LogMeIn Group shall prepare all Tax Returns in accordance the Final Allocation. In the event of an adjustment to the earnings and profits, any Tax Attributes, overall foreign loss or other affiliated, consolidated, combined, unitary, fiscal unity or other group basis attribute, Citrix shall promptly notify RMT Parent in writing of such adjustment. For the avoidance of doubt, Citrix shall not be liable to any member of the LogMeIn Group for any failure of any determination under this Section 3.08(b) to be accurate under applicable Tax Law; provided such determination was made in good faith.
(c) Except as otherwise provided herein, to the extent that the amount of any Tax Attribute is later reduced or increased by a Tax Authority or Tax Proceeding, such reduction or increase shall be allocated to the Party to which such Tax Attribute was allocated pursuant to Section 3.08(a) , as agreed by the Parties.
Section 3.09 Citrix Equity Awards . To the extent permitted by applicable Tax Law, Income Tax deductions with respect to the exercise, vesting or settlement after the Distribution Date of Citrix Equity Awards (including Citrix Equity Awards held by any current or former director, officer, employee or consultant of the LogMeIn Group) shall be claimed solely by Citrix; provided, however , that if Citrix is not permitted under applicable Tax Law to claim Income Tax deductions with respect to the exercise, vesting or settlement after the Distribution Date of Citrix Equity Awards held by any current or former director, officer, employee or consultant of the LogMeIn Group, SpinCo or RMT Parent or one of their respective Affiliates, as applicable, shall claim such Income Tax deductions and promptly pay Citrix an amount equal to the Tax Benefit realized or reasonably expected to be realized within the current Tax Period attributable to such Income Tax deductions. Citrix shall (i) satisfy, or cause to be satisfied, all applicable Tax reporting obligations of any member of the Citrix Group or the LogMeIn Group with respect to the exercise, vesting or settlement after the Distribution Date of Citrix Equity Awards, and (ii) satisfy, or cause to be satisfied, all liabilities for Taxes of any member of the Citrix Group or the LogMeIn Group imposed in connection with the exercise, vesting or settlement after the Distribution Date of Citrix Equity Awards (including the employer portion of any employment Taxes).
 
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Section 4. Tax Payments .
Section 4.01 Taxes Shown on Returns . Citrix shall pay (or cause to be paid) to the proper Tax Authority (or to RMT Parent with respect to any SpinCo Separate Return prepared by Citrix but required to be filed by a member of the LogMeIn Group under applicable Tax Law) the Tax shown as due on any Tax Return that a member of the Citrix Group is responsible for preparing under Section 3 , and RMT Parent shall pay (or cause to be paid) to the proper Tax Authority the Tax shown as due on any Tax Return that a member of the LogMeIn Group is responsible for preparing under Section 3 . In the case of any Tax Return required to be filed by a member of the LogMeIn Group under applicable Tax Law for which Citrix is liable for the amount due under such Tax Return pursuant to this Agreement, Citrix shall pay over to RMT Parent the Tax shown as due on such Tax Return no later than five (5) days before the due date for the payment of such amount to the applicable Tax Authority.
Section 4.02 Adjustments Resulting in Underpayments . In the case of any adjustment pursuant to a Final Determination with respect to any Tax, the Party to which such Tax is allocated pursuant to this Agreement shall pay to the applicable Tax Authority when due any additional Tax required to be paid as a result of such adjustment.
Section 4.03 Indemnification Payments .
(a) Except as otherwise provided in Section 4.01 with respect to SpinCo Separate Returns prepared by Citrix but required to be filed by a member of the LogMeIn Group under applicable Tax Law or as provided in Section 6.05(b) , if any Party (the “ Payor ”) is required under applicable Tax Law to pay to a Tax Authority a Tax that another Party (the “ Required Party ”) is liable for under this Agreement, the Required Party shall reimburse the Payor within twenty (20) Business Days of delivery by the Payor to the Required Party of an invoice for the amount due, accompanied by evidence of payment and a statement detailing the Taxes paid and describing in reasonable detail the particulars relating thereto. The reimbursement shall include interest on the Tax payment computed at the Prime Rate based on the number of days from the date of the Payor’s payment to the Tax Authority to the date of reimbursement by the Required Party under this Section 4.03 . Except as otherwise provided in the following sentence, the Required Party shall also pay to the Payor any reasonable costs and expenses related to the foregoing (including reasonable attorneys’ fees and expenses) within 5 (five) days after the Payor’s written demand therefor. If and to the extent any Distribution Taxes are determined regarding the failure of the Tax-Free Status of the Internal Transactions, the Contribution or the Distribution, the Party allocated responsibility for Tax-Related Losses associated with such Distribution Taxes under Section 2.01 shall pay such Tax-Related Losses to Citrix (if such responsible Party is RMT Parent) or RMT Parent (if such responsible Party is Citrix) within 5 (five) days after written demand therefor.
(b) All indemnification payments under this Agreement shall be made by Citrix directly to RMT Parent and by RMT Parent directly to Citrix; provided, however, that if the Parties mutually agree with respect to any such indemnification payment, any member of the
 
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Citrix Group, on the one hand, may make such indemnification payment to any member of the LogMeIn Group, on the other hand, and vice versa. All indemnification payments under this Agreement shall be treated in the manner described in Section 12 .
Section 5. Tax Refunds . Citrix shall be entitled (subject to the limitations provided in Section 3.07 ) to any refund (and any interest thereon received from the applicable Tax Authority) of Taxes for which Citrix is liable hereunder, and RMT Parent shall be entitled (subject to the limitations provided in Section 3.07 ) to any refund (and any interest thereon received from the applicable Tax Authority) of Taxes for which the LogMeIn Parties are liable hereunder. A Party receiving a refund to which another Party is entitled hereunder shall pay over such refund to such other Party within twenty (20) Business Days after such refund is received (together with interest computed at the Prime Rate based on the number of days from the date the refund was received to the date the refund was paid over).
Section 6. Tax-Free Status .
Section 6.01 Representations and Warranties
(a) Spinco.   SpinCo hereby represents and warrants or covenants and agrees, as appropriate, that the facts presented and the representations made in the Representation Letters from SpinCo addressed to the Tax Advisors supporting the Tax Opinions (collectively, the “ SpinCo Representation Letters ”), to the extent that such facts and representations (A) are descriptive of the SpinCo Group (including the business purposes for the Distribution) to the extent they relate to the SpinCo Group and the plans, proposals, intentions and policies of the SpinCo Group after the Distribution Effective Time, and (B) relate to the actions or non-actions of the SpinCo Group to be taken (or not taken, as the case may be) after the Distribution Effective Time, are, or will be from the time presented or made through and including the Distribution Effective Time (and thereafter as relevant) true, correct and complete in all respects, provided that, notwithstanding anything to the contrary in this Agreement, Citrix rather than SpinCo shall be responsible for the accuracy of any such representation, warranty or covenant at the time presented or made (and, if applicable, through and including the Distribution Effective Time).
(b) RMT Parent . RMT Parent hereby represents and warrants or covenants and agrees, as appropriate, that the facts presented and the representations made in the Representation Letters from RMT Parent addressed to the Tax Advisors supporting the Tax Opinions (collectively, the “ RMT Parent Representation Letters ”), to the extent descriptive of the LogMeIn Group at any time (including the plans, proposals, intentions and policies of the LogMeIn Group at any time), are, or will be at the time presented or made (and, if applicable, through and including the Distribution Effective Time and thereafter as relevant), true, correct and complete in all respects.
(c) Citrix . Citrix hereby represents and warrants or covenants and agrees, as appropriate, that (i) it has delivered complete and accurate copies of (A) the Tax Opinions, (B) the Representation Letters from Citrix addressed to the Tax Advisors supporting the Tax Opinions and (C) any other materials delivered or deliverable by Citrix in connection with the rendering by the Tax Advisors of the Tax Opinions (all of the foregoing, collectively, the “ Tax Materials ”) to SpinCo and RMT Parent and (ii) the facts presented and the representations made
 
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in the Tax Materials, to the extent descriptive of (A) the Citrix Group at any time or (B) the SpinCo Group at any time at or prior to the Distribution Effective Time (including, in each case, (x) the business purpose for the Distribution described in the Representation Letters and the other Tax Materials to the extent that they relate to the Citrix Group at any time or the SpinCo Group at any time at or prior to the Effective Time, and (y) the plans, proposals, intentions and policies of the Citrix Group at any time or the SpinCo Group at any time at or prior to the Distribution Effective Time), are, or will be from the time presented or made through and including the Distribution Effective Time (and thereafter as relevant) true, correct and complete in all respects.
(d) No Contrary Knowledge . Each of Citrix, RMT Parent and SpinCo represents and warrants that it knows of no fact (after due inquiry) that may cause the Tax treatment of any of the Internal Transactions, the Contribution, the Distribution or the Merger to be other than the Tax-Free Status.
(e) No Contrary Plan . Citrix represents that neither it, nor any of its Subsidiaries, has any plan or intent to take any action which is inconsistent with any statements or representations made in the Tax Materials. RMT Parent represents that neither it, nor any of its Subsidiaries, has any plan or intent to take any action which is inconsistent with any statements or representations made in the RMT Parent Representation Letters. SpinCo represents that neither it, nor any of its Subsidiaries, has any plan or intent to take any action which is inconsistent with any statements or representations made in the SpinCo Representation Letters.
Section 6.02 Restrictions on Members of the SpinCo and LogMeIn Groups.
(a) The LogMeIn Parties will not, and will not permit any other member of their respective Groups to, take or fail to take, as applicable, any action where such action or failure to act would be inconsistent with or cause to be untrue any statement, information, covenant or representation in the RMT Parent Representation Letters or SpinCo Representation Letters. The LogMeIn Parties will not, and will not permit any other member of their respective Groups to, take or fail to take, as applicable, any action which could reasonably be expected to adversely affect the Tax-Free Status.
(b) Each of the LogMeIn Parties and each other member of their respective Groups agrees that, from the date hereof until the first Business Day after the two-year anniversary of the Distribution Date:
(i) SpinCo will continue and cause to be continued the Active Trade or Business of the SpinCo SAG and cause Foreign SpinCo to continue the Active Trade or Business of the Foreign SpinCo SAG;
(ii) the LogMeIn Parties will not enter into any Proposed Acquisition Transaction or, to the extent either of the LogMeIn Parties or any other member of their respective Groups has the right to prohibit any Proposed Acquisition Transaction, permit any Proposed Acquisition Transaction to occur (whether by (A) redeeming rights under a shareholder rights plan, (B) finding a tender offer to be a “permitted offer” under any such plan or otherwise causing any such plan to be inapplicable or neutralized with respect to any Proposed Acquisition
 
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Transaction, (C) approving any Proposed Acquisition Transaction, whether for purposes of Section 203 of the General Corporation Law of the State of Delaware or any similar corporate statute, any “fair price” or other provision of the charter or bylaws of SpinCo, Foreign SpinCo or RMT Parent, as applicable, (D) amending its certificate of incorporation to declassify its Board of Directors or approving any such amendment, or otherwise);
(iii) none of RMT Parent, SpinCo or Foreign SpinCo will, or will agree to, merge, consolidate or amalgamate with any other Person (except as provided for under the Merger Agreement), unless, in the case of a merger or consolidation, RMT Parent, SpinCo or Foreign SpinCo is the survivor of the merger, consolidation or amalgamation;
(iv) SpinCo will not in a single transaction or series of transactions sell or transfer, or permit any other member of the SpinCo Group to sell or transfer, 30% or more of the gross assets of any Active Trade or Business (such percentage to be measured based on fair market value as of the Distribution Date), in each case other than (A) sales or transfers of assets in the ordinary course of business, (B) any cash paid to acquire assets from an unrelated Person in an arm’s-length transaction, (C) any assets transferred to a Person that is disregarded as an entity separate from the transferor for U.S. federal income tax purposes, (D) any mandatory or optional repayment (or pre-payment) of any indebtedness of SpinCo or any member of the SpinCo Group, or (E) any sales or transfers of assets within the SpinCo SAG or the Foreign SpinCo SAG;
(v) the LogMeIn Parties will not redeem or otherwise repurchase (directly or through an Affiliate) any stock, or rights to acquire stock, of RMT Parent, except to the extent such repurchases satisfy Section 4.05(1)(b) of Revenue Procedure 96-30 (as in effect prior to the amendment of such Revenue Procedure by Revenue Procedure 2003-48);
(vi) the LogMeIn Parties will not amend, or permit any other member of their respective Groups to amend, its certificate of incorporation (or other organizational documents), or take any other action, whether through a shareholder vote or otherwise, affecting the voting rights of the Capital Stock of SpinCo, Foreign SpinCo or RMT Parent (including, without limitation, through the conversion of one class of Capital Stock of SpinCo, Foreign SpinCo or RMT Parent into another class of Capital Stock of SpinCo, Foreign SpinCo or RMT Parent); and
(vii) the LogMeIn Parties will not take, or permit any other member of their respective Groups to take, any other action or actions (including any action or transaction that would be reasonably likely to be inconsistent with any representation made in the RMT Parent Representation Letters or the SpinCo Representation Letters) which in the aggregate (and taking into account the Merger, and any other transactions described in this subparagraph (c)) would be reasonably likely to have the effect of causing or permitting one or more Persons
 
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(whether or not acting in concert) to acquire directly or indirectly stock representing a Fifty-Percent or Greater Interest in either or both of the LogMeIn Parties or would reasonably be expected to result in a failure to preserve the Tax-Free Status;
unless prior to taking any such action set forth in the foregoing clauses (i) through (vi), (A) RMT Parent shall have obtained a ruling from the IRS (“ Ruling ”) to the effect that a transaction will not affect the Tax-Free Status, and Citrix shall have received such a Ruling in form and substance satisfactory to Citrix in its reasonable discretion, which discretion shall be exercised in good faith solely to preserve the Tax-Free Status, or (B) RMT Parent shall have provided Citrix with an Unqualified Tax Opinion in form and substance satisfactory to Citrix in its reasonable discretion (and in determining whether an opinion is satisfactory, Citrix may consider, among other factors, the appropriateness of any underlying assumptions and management’s representations if used as a basis for the opinion) or (C) Citrix shall have waived the requirement to obtain such Ruling or Unqualified Tax Opinion.
Section 6.03 Restrictions on Citrix. Citrix agrees that it will not take or fail to take, or permit any member of the Citrix Group, as the case may be, to take or fail to take, any action where such action or failure to act would be inconsistent with or cause to be untrue any statement, information, covenant or representation in any Representation Letters or Tax Opinions. Citrix agrees that it will not take or fail to take, or permit any member of the Citrix Group, as the case may be, to take or fail to take, any action which could reasonably be expected to adversely affect the Tax-Free Status.
Section 6.04 Procedures Regarding Opinions and Rulings .
(a) If RMT Parent notifies Citrix that it or SpinCo desires to take one of the actions described in Section 6.02(b) (a “ Notified Action ”), Citrix shall cooperate with RMT Parent and use its reasonable best efforts to seek to obtain a Ruling or Unqualified Tax Opinion for the purpose of permitting RMT Parent or SpinCo, as applicable, to take the Notified Action unless Citrix shall have waived the requirement to obtain such Ruling or Unqualified Tax Opinion. If such a Ruling is to be sought, Citrix shall apply for such ruling and Citrix and RMT Parent shall jointly control the process of obtaining such Ruling. In no event shall Citrix be required to file any request for a Ruling under this Section 6.04(a) unless RMT Parent represents that (i) it has read such request, and (ii) all information and representations, if any, relating to any member of the LogMeIn Group, contained in such request documents are (subject to any qualifications therein) true, correct and complete. RMT Parent shall reimburse Citrix for all reasonable costs and expenses incurred by the Citrix Group in connection with such cooperation within thirty (30) Business Days after receiving an invoice from Citrix therefor.
(b) Citrix shall have the right to obtain a Ruling or tax opinion at any time in its sole and absolute discretion. If Citrix determines to obtain a Ruling or tax opinion, the LogMeIn Parties shall (and shall cause their respective Affiliates to) cooperate with Citrix and take any and all actions reasonably requested by Citrix in connection with obtaining the Ruling or tax opinion (including, without limitation, by making any reasonable representation or covenant or providing any materials or information requested by the IRS or any Tax Advisor; provided that the LogMeIn Parties shall not be required to make (or cause any member of the LogMeIn Group
 
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to make) any representation or covenant that is untrue or inconsistent with historical facts, or as to future matters or events over which they have no control). Citrix shall reimburse RMT Parent for all reasonable costs and expenses incurred by the LogMeIn Group in connection with such cooperation within thirty (30) Business Days after receiving an invoice from RMT Parent therefor.
(c) Except as provided in Sections 6.04(a) and (b) , following the Distribution Effective Time, neither of the LogMeIn Parties shall, nor shall either of the LogMeIn Parties permit any of their respective Affiliates to, seek any guidance from the IRS or any other Tax Authority (whether written, verbal or otherwise) at any time concerning the Internal Reorganization, the Contribution, or the Distribution (including the impact of any transaction on the Tax-Free Status of the Internal Transactions, the Contribution or the Distribution) without obtaining Citrix’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
Section 6.05 Liability for Distribution Taxes and Tax-Related Losses.
(a) Notwithstanding anything in this Agreement, the Separation Agreement or the Merger Agreement to the contrary (and in each case regardless of whether a Ruling, Unqualified Tax Opinion or waiver described in clause (A), (B) or (C) of Section 6.02(b) may have been provided), the LogMeIn Parties shall be responsible for, and shall indemnify and hold harmless Citrix and its Affiliates and each of their respective officers, directors and employees from and against, one hundred percent (100%) of any Distribution Taxes and Tax-Related Losses that are attributable to or result from any one or more of the following: (A) the acquisition following the Merger of all or a portion of either or both of the LogMeIn Parties’ stock and/or of the SpinCo Group’s assets by any means whatsoever by any Person, (B) any negotiations, understandings, agreements or arrangements by either or both of the LogMeIn Parties or any other member of their respective Groups with respect to transactions or events (including stock issuances, whether pursuant to the exercise of stock options or otherwise, option grants, capital contributions or acquisitions, or a series of such transactions or events), other than the Merger, that cause the Distribution to be treated as part of a plan (which plan may include the Merger) pursuant to which one or more Persons acquire directly or indirectly stock of either or both of the LogMeIn Parties representing a Fifty-Percent or Greater Interest therein, as applicable, (C) any action or failure to act by either or both of the LogMeIn Parties or any other member of their respective Groups after the Distribution (including any amendment to any such Person’s certificate of incorporation (or other organizational documents), whether through a shareholder vote or otherwise) affecting the voting rights of either or both of the LogMeIn Parties’ stock (including through the conversion of one class of Capital Stock of SpinCo or RMT Parent into another class of Capital Stock of SpinCo or RMT Parent, but not including the composition of the Parent Board (as defined in the Merger Agreement) as contemplated by Section 2.07 of the Merger Agreement), (D) any act or failure to act by either or both of the LogMeIn Parties or any other member of their respective Groups that would affect the Tax-Free Status (regardless whether such act or failure to act may be covered by a Ruling, Unqualified Tax Opinion or waiver described in clause (A), (B) or (C) of Section 6.02(b) ), other than entering into the Merger, or (E) any breach or inaccuracy by either or both of the LogMeIn Parties or any other member of their respective Groups of their covenants and representations herein; provided , however , that, notwithstanding the foregoing, in the case of an acquisition described in clause (A) of this
 
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Section 6.05(a) that neither of the LogMeIn Parties nor any other member of their respective Groups had the right to prohibit from occurring, the LogMeIn Parties shall be responsible for, and shall indemnify and hold harmless Citrix and its Affiliates and each of their respective officers, directors and employees from and against, only fifty percent (50%), instead of one hundred percent (100%), of any Distribution Taxes and Tax-Related Losses attributable to or resulting from such acquisition.
(b) RMT Parent shall pay Citrix the amount of any Distribution Taxes for which the LogMeIn Parties are responsible under this Section 6.05 as a result of a Final Determination no later than two (2) Business Days after the date such Distribution Taxes are determined as a result of a Final Determination to be due.
Section 7. Assistance and Cooperation .
Section 7.01 Assistance and Cooperation .
(a) The Parties shall cooperate (and cause their respective Affiliates to cooperate) with each other and with each other’s agents, including accounting firms and legal counsel, in connection with Tax matters relating to the Parties and their Affiliates including (i) preparation and filing of Tax Returns, (ii) determining the liability for and amount of any Taxes due (including estimated Taxes) or the right to and amount of any refund of Taxes, (iii) examinations of Tax Returns, and (iv) any administrative or judicial proceeding in respect of Taxes assessed or proposed to be assessed. Such cooperation shall include making all information and documents in their possession relating to any other Party and its Affiliates reasonably available to such other Party as provided in Section 8 of this Agreement. Each of the Parties shall also make available to any other Party, as reasonably requested and available, personnel (including officers, directors, employees and agents of the Parties or their respective Affiliates) responsible for preparing, maintaining, and interpreting information and documents relevant to Taxes, and personnel reasonably required as witnesses or for purposes of providing information or documents in connection with any administrative or judicial proceedings relating to Taxes. The LogMeIn Parties and each other member of their respective Groups shall cooperate with Citrix and take any and all actions reasonably requested by Citrix in connection with obtaining the Tax Opinions (including, without limitation, by making any new representation or covenant, confirming any previously made representation or covenant or providing any materials or information requested by any Tax Advisor; provided that none of SpinCo, RMT Parent or any other member of their respective Groups shall be required to make or confirm any representation or covenant that is inconsistent with historical facts or as to future matters or events over which it has no control).
(b) Any information or documents provided under this Section 7 shall be kept confidential by the Party receiving the information or documents, except as may otherwise be necessary in connection with the filing of Tax Returns or in connection with any administrative or judicial proceedings relating to Taxes. Notwithstanding any other provision of this Agreement, the Separation Agreement or any Ancillary Agreement, (i) neither Citrix nor any Citrix Affiliate shall be required to provide SpinCo, RMT Parent or any of their respective Affiliates or any other Person access to or copies of any information, documents or procedures (including the proceedings of any Tax Contest) other than information, documents or procedures that relate solely to a member of the SpinCo Group or to the SpinCo Business, (ii) neither
 
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SpinCo, RMT Parent nor any of their respective Affiliates shall be required to provide Citrix or any Citrix Affiliate or any other Person access to or copies of any information, documents or procedures (including the proceedings of any Tax Contest) other than information, documents or procedures that relate solely to a member of the Citrix Group or to the Citrix Business, (iii) in no event shall Citrix or any Citrix Affiliate be required to provide SpinCo, RMT Parent or any of their respective Affiliates or any other Person access to or copies of any information or documents if such action could reasonably be expected to result in the waiver of any Privilege and (iv) in no event shall SpinCo, RMT Parent or any of their respective Affiliates be required to provide Citrix or any Citrix Affiliate or any other Person access to or copies of any information or documents if such action could reasonably be expected to result in the waiver of any Privilege. In addition, in the event that Citrix determines that the provision of any information or documents to SpinCo, RMT Parent or any of their respective Affiliates, or SpinCo or RMT Parent determines that the provision of any information or documents to Citrix or any Citrix Affiliate, could be commercially detrimental, violate any Law or agreement or waive any Privilege, the Parties shall use reasonable best efforts to permit each other’s compliance with its obligations under this Section 7 in a manner that avoids any such harm or consequence.
Section 7.02 Tax Return Information . Each of Citrix, SpinCo and RMT Parent, and each member of their respective Groups, acknowledges that time is of the essence in relation to any request for information, assistance or cooperation made pursuant to Section 7.01 or this Section 7.02 . Each of Citrix, SpinCo and RMT Parent, and each member of their respective Groups, acknowledges that failure to conform to the reasonable deadlines set by the Party making such request could cause irreparable harm. Each Party shall provide to the other Parties information and documents relating to its Group reasonably required by the other Parties to prepare Tax Returns, including any pro forma returns required by the Responsible Party for purposes of preparing such Tax Returns. Any information or documents the Responsible Party requires to prepare such Tax Returns shall be provided in such form as the Responsible Party reasonably requests and at or prior to the time reasonably specified by the Responsible Party so as to enable the Responsible Party to file such Tax Returns on a timely basis.
Section 7.03 Reliance by Citrix . If any member of the LogMeIn Group supplies information to a member of the Citrix Group in connection with a Tax liability and an officer of a member of the Citrix Group signs a statement or other document under penalties of perjury in reliance upon the accuracy of such information, then upon the written request of such member of the Citrix Group identifying the information being so relied upon, the chief financial officer of RMT Parent (or any officer of SpinCo or RMT Parent as designated by the chief financial officer of RMT Parent), shall certify in writing that to his or her knowledge (based upon consultation with appropriate employees) the information so supplied is accurate and complete.
Section 7.04 Reliance by the LogMeIn Parties . If any member of the Citrix Group supplies information to a member of the LogMeIn Group in connection with a Tax liability and an officer of a member of the LogMeIn Group signs a statement or other document under penalties of perjury in reliance upon the accuracy of such information, then upon the written request of such member of the LogMeIn Group identifying the information being so relied upon, the chief financial officer of Citrix (or any officer of Citrix as designated by the chief financial officer of Citrix) shall certify in writing that to his or her knowledge (based upon consultation with appropriate employees) the information so supplied is accurate and complete.
 
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Section 7.05 Internal Transactions . The LogMeIn Parties shall (and shall cause their respective Affiliates to) reasonably cooperate with Citrix and take any and all commercially reasonable actions requested by Citrix to minimize any Taxes otherwise payable by the Citrix Group in connection with the Internal Transactions.
Section 8. Tax Records .
Section 8.01 Retention of Tax Records . Each of Citrix and SpinCo shall preserve and keep all Tax Records exclusively relating to the assets and activities of its Group for Pre-Distribution Periods, and Citrix shall preserve and keep all other Tax Records relating to Taxes of the Citrix and SpinCo Groups for Pre-Distribution Periods, for so long as the contents thereof may be or become material in the administration of any matter under the Code or other applicable Tax Law, but in any event until the later of (i) the expiration of any applicable statutes of limitations, or (ii) seven (7) years after the Distribution Date (such later date, the “ Retention Date ”). After the Retention Date, each of Citrix and SpinCo may dispose of such Tax Records upon sixty (60) Business Days’ prior written notice to the other Parties. If, prior to the Retention Date, (a) Citrix or SpinCo reasonably determines that any Tax Records which it would otherwise be required to preserve and keep under this Section 8 are no longer material in the administration of any matter under the Code or other applicable Tax Law and the other Parties agree, then such first Party may dispose of such Tax Records upon sixty (60) Business Days’ prior notice to the other Parties. Any notice of an intent to dispose given pursuant to this Section 8.01 shall include a list of the Tax Records to be disposed of describing in reasonable detail each file, book, or other record accumulation being disposed. The notified Parties shall have the opportunity, at their cost and expense, to copy or remove, within such sixty (60) Business Day period, all or any part of such Tax Records. If, at any time prior to the Retention Date, a Party or any of its Affiliates determines to decommission or otherwise discontinue any computer program or information technology system used to access or store any Tax Records, then such program or system may be decommissioned or discontinued upon ninety (90) Business Days’ prior notice to the other Party and the other Party shall have the opportunity, at its cost and expense, to copy, within such ninety (90) Business Day period, all or any part of the underlying data relating to the Tax Records accessed by or stored on such program or system.
Section 8.02 Access to Tax Records . The Parties and their respective Affiliates shall make available to each other for inspection and copying during normal business hours upon reasonable notice all Tax Records (and, for the avoidance of doubt, any pertinent underlying data accessed or stored on any computer program or information technology system) in their possession pertaining to (i) in the case of any Tax Return of the Citrix Group, the portion of such return that relates to Taxes for which the SpinCo Group or the LogMeIn Group may be liable pursuant to this Agreement or (ii) in the case of any Tax Return of the SpinCo Group or the LogMeIn Group, the portion of such return that relates to Taxes for which the Citrix Group may be liable pursuant to this Agreement, and shall permit the other Parties and their Affiliates, authorized agents and representatives and any representative of a Tax Authority or other Tax auditor direct access, at the cost and expense of the requesting Party, during normal business hours upon reasonable notice to any computer program or information technology system used to access or store any Tax Records, in each case to the extent reasonably required by the other Party in connection with the preparation of Tax Returns or financial accounting statements, audits, litigation, or the resolution of items under this Agreement.
 
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Section 8.03 Preservation of Privilege . The Parties and their respective Affiliates shall not provide access to, copies of, or otherwise disclose to any Person any documentation relating to Taxes existing prior to the Distribution Date to which Privilege may reasonably be asserted without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed.
Section 9. Tax Contests .
Section 9.01 Notice . Each of Citrix, SpinCo and RMT Parent shall provide prompt notice to the other Parties of any written communication from a Tax Authority regarding any pending Tax audit, assessment or proceeding or other Tax Contest of which it becomes aware related to Taxes for Tax Periods for which it is indemnified by another Party hereunder or for which it may be required to indemnify another Party hereunder, or otherwise relating to the Tax-Free Status or the Internal Reorganization (including the resolution of any Tax Contest relating thereto). Such notice shall attach copies of the pertinent portion of any written communication from a Tax Authority and contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail and shall be accompanied by copies of any notice and other documents received from any Tax Authority in respect of any such matters. If an indemnified Party has knowledge of an asserted Tax liability with respect to a matter for which it is to be indemnified hereunder and such Party fails to give the indemnifying Party prompt notice of such asserted Tax liability and the indemnifying Party is entitled under this Agreement to contest the asserted Tax liability, then (i) if the indemnifying Party is precluded from contesting the asserted Tax liability in any forum as a result of the failure to give prompt notice, the indemnifying Party shall have no obligation to indemnify the indemnified Party for any Taxes arising out of such asserted Tax liability, and (ii) if the indemnifying Party is not precluded from contesting the asserted Tax liability in any forum, but such failure to give prompt notice results in a material monetary detriment to the indemnifying Party, then any amount which the indemnifying Party is otherwise required to pay the indemnified Party pursuant to this Agreement shall be reduced by the amount of such detriment.
Section 9.02 Control of Tax Contests.
(a) Citrix Control . Notwithstanding anything in this Agreement to the contrary, Citrix shall have the right to control any Tax Contest with respect to any Tax matters relating to (i) a Joint Return, (ii) any member of the Citrix Group, (iii) any member of the SpinCo Group relating to a Pre-Distribution Period and (iv) Distribution Taxes. Subject to Sections 9.02(c) and (d), Citrix shall have reasonable discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any such Tax Contest relating to a SpinCo Separate Return for a Straddle Period, and absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any other such Tax Contest.
(b) RMT Parent Control.   Except as otherwise provided in this Section 9.02 , RMT Parent shall have the right to control any Tax Contest with respect to any member of the SpinCo Group to the extent related solely to any Post-Distribution Period. Subject to Section 9.02(c) and Section 9.02(d) , RMT Parent shall have absolute discretion with respect to any decisions to be made, or the nature of any action to be taken, with respect to any such Tax Contest.
 
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(c) Settlement Rights . The Controlling Party shall have the sole right to contest, litigate, compromise and settle any Tax Contest without obtaining the prior consent of the Non-Controlling Party; provided, that to the extent any such Tax Contest may give rise to a claim for indemnity by the Controlling Party or its Affiliates against the Non-Controlling Party or its Affiliates under this Agreement, the Controlling Party shall not settle any such Tax Contest without the Non-Controlling Party’s prior written consent (which consent may not be unreasonably withheld, conditioned, or delayed and, in the case of a Tax Contest relating to Distribution Taxes, must take into account the reasonable likelihood of success of such Tax Contest on its merits without regard to the ability of the LogMeIn Parties to pay). Subject to Section 9.02(e) , and unless waived by the Parties in writing, in connection with any potential adjustment in a Tax Contest as a result of which adjustment the Non-Controlling Party may reasonably be expected to become liable to make any indemnification payment to the Controlling Party under this Agreement: (i) the Controlling Party shall keep the Non-Controlling Party informed in a timely manner of all actions taken or proposed to be taken by the Controlling Party with respect to such potential adjustment in such Tax Contest; (ii) the Controlling Party shall timely provide the Non-Controlling Party copies of any written materials relating to such potential adjustment in such Tax Contest received from any Tax Authority; (iii) the Controlling Party shall timely provide the Non-Controlling Party with copies of any correspondence or filings submitted to any Tax Authority or judicial authority in connection with such potential adjustment in such Tax Contest; (iv) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such potential adjustment in such Tax Contest; and (v) the Controlling Party shall defend such Tax Contest diligently and in good faith. The failure of the Controlling Party to take any action specified in the preceding sentence with respect to the Non-Controlling Party shall not relieve the Non-Controlling Party of any liability and/or obligation which it may have to the Controlling Party under this Agreement except to the extent that the Non-Controlling Party was actually harmed by such failure, and in no event shall such failure relieve the Non-Controlling Party from any other liability or obligation which it may have to the Controlling Party. In the case of any Tax Contest described in this Section 9 , “ Controlling Party ” means the Party entitled to control the Tax Contest under such Section and “ Non-Controlling Party ” means (x) Citrix if RMT Parent is the Controlling Party and (y) RMT Parent if Citrix is the Controlling Party.
(d) Tax Contest Participation . Subject to Section 9.02(e) , and unless waived by the Parties in writing, the Controlling Party shall provide the Non-Controlling Party with written notice reasonably in advance of, and the Non-Controlling Party shall have the right to attend, any formally scheduled meetings with Tax Authorities or hearings or proceedings before any judicial authorities in connection with any potential adjustment in a Tax Contest pursuant to which the Non-Controlling Party may reasonably be expected to become liable to make any indemnification payment to the Controlling Party under this Agreement. The failure of the Controlling Party to provide any notice specified in this Section 9.02(d) to the Non-Controlling Party shall not relieve the Non-Controlling Party of any liability or obligation which it may have to the Controlling Party under this Agreement except to the extent that the Non-Controlling Party was actually harmed by such failure, and in no event shall such failure relieve the Non-Controlling Party from any other liability or obligation which it may have to the Controlling Party.
 
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(e) Citrix Consolidated Federal Income Tax Return . Notwithstanding anything in this Section 9 to the contrary, in the case of a Tax Contest related to a Citrix Federal Consolidated Income Tax Return, the rights of the LogMeIn Parties and their Affiliates under Section 9.02(c) and Section 9.02(d) shall be limited in scope to the portion of such Tax Contest relating to Taxes for which the LogMeIn Parties may reasonably expected to become liable to make any indemnification payment to Citrix under this Agreement.
(f) Power of Attorney . Each member of the LogMeIn Group shall execute and deliver to Citrix (or such member of the Citrix Group as Citrix shall designate) any power of attorney or other similar document reasonably requested by Citrix (or such designee) in connection with any Tax Contest (as to which Citrix is the Controlling Party) described in this Section 9 . Each member of the Citrix Group shall execute and deliver to RMT Parent (or such member of the LogMeIn Group as RMT Parent shall designate) any power of attorney or other similar document requested by RMT Parent (or such designee) in connection with any Tax Contest (as to which RMT Parent is the Controlling Party) described in this Section 9 .
Section 10. Effective Date . Except as expressly set forth in this Agreement, as between Citrix and SpinCo, this Agreement shall become effective upon the consummation of the Distribution, and as between Citrix, SpinCo and RMT Parent, this Agreement shall become effective upon the consummation of the Merger; provided , however , that solely for purposes of the definition of “SpinCo Business” on Schedule I, this Agreement shall become effective among Citrix and RMT Parent on the date hereof.
Section 11. Survival of Obligations . The representations, warranties, covenants and agreements set forth in this Agreement shall be unconditional and absolute and shall remain in effect without limitation as to time.
Section 12. Tax Treatment of Payments .
Section 12.01 General Rule . Except as otherwise required by a change in applicable Tax Law or as otherwise agreed to among the Parties, any payment (other than interest thereon) made by Citrix or any member of the Citrix Group to RMT Parent or any member of the LogMeIn Group, or by RMT Parent or any member of the LogMeIn Group to Citrix or any member of the Citrix Group, pursuant to this Agreement, the Separation Agreement, the Merger Agreement or any Ancillary Agreement that relates to Taxable periods (or portions thereof) ending on or before the Distribution Date shall be treated by the Parties for all Tax purposes as a distribution by SpinCo to Citrix, or a capital contribution from Citrix to SpinCo, as the case may be, occurring immediately before the Distribution; provided, however, that any such payment that is made or received by a Person other than Citrix or SpinCo, as the case may be, shall be treated as if made or received by the payor or the recipient as agent for Citrix or SpinCo, in each case as appropriate; provided further that the treatment described in this Section 12.01 shall apply in each case only to the extent the payment does not relate to a Tax allocated to the payor in accordance with Section 1552 of the Code or the Treasury Regulations thereunder or Treasury Regulations § 1.1502-33(d) (or under corresponding principles of other applicable Tax Laws). No Party shall take any position inconsistent with the treatment described in the preceding sentence, and in the event that a Tax Authority asserts that a Party’s treatment of a payment pursuant to this Agreement should be other than as set forth in the preceding sentence, such Party shall use its commercially reasonable efforts to contest such challenge.
 
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Section 12.02 Interest . Anything herein to the contrary notwithstanding, to the extent one Party makes a payment of interest to another Party under this Agreement with respect to the period from the date that the Party receiving the interest payment made a payment of Tax to a Tax Authority to the date that the Party making the interest payment reimbursed the Party receiving the interest payment for such Tax payment, the interest payment shall be treated as interest expense to the Party making such payment (deductible to the extent provided by Law) and as interest income by the Party receiving such payment (includible in income to the extent provided by Law). The amount of the payment shall not be adjusted to take into account any associated Tax Benefit to the Party making such payment or increase in Tax to the Party receiving such payment.
Section 13. Dispute Resolution . Any and all Disputes arising hereunder shall be resolved through the procedures provided in Article VII of the Separation Agreement.
Section 14. General Provisions .
Section 14.01 Complete Agreement; Construction . This Agreement, together with the Separation Agreement, the Merger Agreement and the Ancillary Agreements constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof and thereof; for the avoidance of doubt, the preceding clause shall apply to all other agreements, whether or not written, in respect of any Tax between or among any member or members of the Citrix Group, on the one hand, and any member or members of the SpinCo Group, on the other hand, which agreements shall be of no further effect between the parties thereto and any rights or obligations existing thereunder shall be fully and finally settled, calculated as of the date hereof. Except as expressly set forth in the Separation Agreement, the Merger Agreement or any Ancillary Agreement: (i) all matters relating to Taxes and Tax Returns of the Parties and their respective Subsidiaries, to the extent such matters are the subject of this Agreement, shall be governed exclusively by this Agreement; and (ii) for the avoidance of doubt, in the event of any conflict between the Separation Agreement, the Merger Agreement or any Ancillary Agreement, on the one hand, and this Agreement, on the other hand, with respect to such matters, the terms and conditions of this Agreement shall govern.
Section 14.02 Other Agreements . Except as expressly set forth herein, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Separation Agreement, the Merger Agreement or the Ancillary Agreements.
Section 14.03 Counterparts . This Agreement may be executed and delivered (including by facsimile or other means of electronic transmission, such as by electronic mail in “pdf” form) in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
 
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Section 14.04 Survival of Agreement . Except as otherwise contemplated by this Agreement or the Separation Agreement, all covenants and agreements of the Parties contained in this Agreement shall survive the Distribution Effective Time and remain in full force and effect in accordance with their applicable terms.
Section 14.05 Expenses . Except as otherwise provided in this Agreement, each party hereto shall be responsible for the fees and expenses of the Parties as provided in Section 9.03 of the Merger Agreement.
Section 14.06 Notices . All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by a nationally recognized overnight courier service, or by email or facsimile (with a confirmatory copy sent by a nationally recognized overnight courier service) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 14.06 ):
If to Citrix or, prior to the Distribution Effective Time, SpinCo:
Citrix Systems, Inc.
851 West Cypress Creek Road
Fort Lauderdale, FL 33309
Facsimile: (954) 267-3101
Attention:  General Counsel
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
500 Boylston Street, 23rd Floor
Boston, Massachusetts 02116
Facsimile: (617) 573-4822
Attention:  Margaret A. Brown
If to RMT Parent, or to SpinCo after the Distribution Effective Time:
LogMeIn, Inc.
320 Summer Street
Boston, MA 02210
Facsimile: (781) 437-1820
Attention:  Chief Financial Officer
 
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with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
John Hancock Tower
200 Clarendon Street
Boston, MA 02116
Facsimile: (617) 948-6001
Attention:  John H. Chory
         Bradley C. Faris
Any notice to Citrix shall be deemed notice to all members of the Citrix Group, and any notice to SpinCo shall be deemed notice to all members of the SpinCo Group.
Section 14.07 Amendment and Waivers .
(a) This Agreement may not be amended or modified except (a) by an instrument in writing signed by, or on behalf of, each Party that expressly references the Section of this Agreement to be amended; or (b) by a waiver in accordance with Section 14.07(b) .
(b) Any Party may (a) extend the time for the performance of any of the obligations or other acts of the other Parties; (b) waive any inaccuracies in the representations and warranties of the other parties contained herein or in any document delivered by the other Parties pursuant to this Agreement; or (c) waive compliance with any of the agreements of the other Parties or conditions to such obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by any party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other right hereunder. Any waiver of any term or condition hereof shall not be construed as a waiver of any subsequent breach or as a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement.
Section 14.08 Termination . This Agreement shall terminate without further action at any time before the Distribution Effective Time upon termination of the Merger Agreement. If terminated, no party hereto shall have any Liability of any kind to the other parties or any other Person on account of this Agreement, except as provided in the Merger Agreement.
Section 14.09 Assignment . This Agreement and the rights and obligations hereunder may not be assigned by any Party by operation of Law or otherwise without the express written consent of the other Parties (which consent may be granted or withheld in the sole discretion of the other Parties). Any attempted assignment that is not in accordance with this Section 14.09 shall be null and void.
Section 14.10 Successors and Assigns . The provisions of this Agreement and the obligations and rights hereunder shall be binding upon, inure to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted assigns.
 
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Section 14.11 Payment Terms.
(a) Except as otherwise expressly provided to the contrary in this Agreement, any amount to be paid or reimbursed by a Party (where applicable, or a member of such Party’s Group) to the other Party (where applicable, or a member of such other Party’s Group) under this Agreement shall be paid or reimbursed hereunder within sixty (60) days after presentation of an invoice or a written demand therefor, in either case setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.
(b) Except as expressly provided to the contrary in this Agreement, any amount not paid when due pursuant to this Agreement (and any amount billed or otherwise invoiced or demanded and properly payable that is not paid within sixty (60) days of such bill, invoice or other demand) shall bear interest at a rate per annum equal to the Prime Rate, from time to time in effect, plus two percent (2%), calculated for the actual number of days elapsed, accrued from the date on which such payment was due up to the date of the actual receipt of payment.
(c) Without the consent of the party receiving any payment under this Agreement specifying otherwise, all payments to be made by either Citrix or SpinCo under this Agreement shall be made in U.S. dollars. Except as expressly provided herein, any amount which is not expressed in U.S. dollars shall be converted into U.S. dollars by using the exchange rate published on Bloomberg at 5:00 pm, Eastern time, on the day before the relevant date, or in The Wall Street Journal on such date if not so published on Bloomberg. Except as expressly provided herein, in the event that any Tax indemnity payment required to be made hereunder may be denominated in a currency other than U.S. dollars, the amount of such payment shall be converted into U.S. dollars on the date in which notice of the claim is given to the indemnifying Party.
Section 14.12 Subsidiaries . Each of the Parties shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any Subsidiary of such Party or by any Person that becomes a Subsidiary of such Party at or after the Distribution Effective Time, in each case to the extent such Subsidiary remains a Subsidiary of the applicable Party.
Section 14.13 Third Party Beneficiaries . Except as specifically provided herein, this Agreement shall be binding upon and inure solely to the benefit of, and be enforceable by, only the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to, or shall confer upon, any other Person any right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.
Section 14.14 Governing Law . This Agreement and any Dispute shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof that might lead to the application of laws other than the Laws of the State of Delaware. All Actions that, directly or indirectly, arise out of or relate to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware; provided, however, that if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any Delaware state court or United
 
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States federal court sitting in the State of Delaware. Consistent with the preceding sentence, each of the Parties hereby (a) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action brought by any party hereto that, directly or indirectly, arises out of or relates to this Agreement; (b) agrees that service of process in such Action will be validly effected by sending notice in accordance with Section 9.6 of the Separation Agreement; (c) irrevocably waives and releases, and agrees not to assert by way of motion, defense, or otherwise, in or with respect to any such Action, any claim that (i) such Action is not subject to the subject matter jurisdiction of at least one of the above-named courts; (ii) its property is exempt or immune from attachment or execution in the State of Delaware; (iii) such Action is brought in an inconvenient forum; (iv) that the venue of such Action is improper; or (v) this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts; and (d) agrees not to move to transfer any such Action to a court other than any of the above-named courts.
Section 14.15 Waiver of Jury Trial . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR LIABILITY, DIRECTLY OR INDIRECTLY, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION OR LIABILITY, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 14.15 .
Section 14.16 Specific Performance . The Parties acknowledge and agree that the Parties would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached and that any non-performance or breach of this Agreement by any Party could not be adequately compensated by monetary damages alone and that the Parties would not have any adequate remedy at law. Accordingly, in addition to any other right or remedy to which any Party may be entitled, at law or in equity (including monetary damages), such party shall be entitled to enforce any provision of this Agreement by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of any of the provisions of this Agreement, without posting any bond or other undertaking. The Parties agree that they will not contest the appropriateness of specific performance as a remedy.
Section 14.17 Severability . If any term or other provision (or part thereof) of this Agreement is declared invalid, illegal or incapable of being enforced by any Governmental Authority, all other terms and provisions (or parts thereof) of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision (or part thereof) is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so
 
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as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement are consummated as originally contemplated to the greatest extent possible.
Section 14.18 Interpretation . The Parties have participated jointly in the negotiation and drafting of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted. Unless the context requires otherwise, the words “include,” “includes” and “including” when used in this Agreement shall be deemed to be followed by the phrase “without limitation.”
Section 14.19 No Duplication; No Double Recovery . Nothing in this Agreement, the Separation Agreement, the Merger Agreement or any Ancillary Agreement is intended to confer to or impose upon any Party a duplicative right, entitlement, obligation or recovery with respect to any matter arising out of the same facts and circumstances.
Section 14.20 No Admission of Liability . The allocation of Assets and Liabilities herein is solely for the purpose of allocating such Assets and Liabilities between Citrix and SpinCo and is not intended as an admission of liability or responsibility for any alleged Liabilities vis-à-vis any Third Party, including with respect to the Liabilities of any non-wholly owned subsidiary of Citrix or SpinCo.
[Signature Page Follows]
 
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

CITRIX SYSTEMS, INC.	
		
By:	 	/s/ David J. Henshall	
	 	Name:	 	David J. Henshall	
	 	Title:	 	Executive Vice President, Chief Operating Officer and Chief Financial Officer	
	
GETGO, INC.	
		
By:	 	/s/ Antonio G. Gomes	
	 	Name:	 	Antonio G. Gomes	
	 	Title:	 	Secretary	
	
LOGMEIN, INC.	
		
By:	 	/s/ William R. Wagner	
	 	Name:	 	William R. Wagner	
	 	Title:	 	President	
 
Signature Page to Tax Matters Agreement