Exhibit 2.1
NOTE: Information in this document marked with an "[*]" has been omitted and
filed separately with the Commission. Confidential treatment has been requested
with respect to the omitted portions.
AGREEMENT
THIS AGREEMENT is made and entered into by and between CALDERA
INTERNATIONAL, INC., a Delaware corporation having its principal place of
business at 000 Xxxxx 000 Xxxx, Xxxxxx, Xxxx 00000 ("CALDERA"); and TARANTELLA,
Inc., a California corporation having its principal place of business at 000
Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter "TARANTELLA"), to be
effective as of the 28th day of March, 2002.
WITNESSETH:
----------
TARANTELLA and CALDERA are parties to a Secured Promissory Note ("the
Note") whereby CALDERA is obligated to make four quarterly payments of $2
million dollars each, beginning in 2002. CALDERA wishes to purchase the Note,
together with all security interests and other encumbrances to the Note, with
appropriate discounts. The parties also wish to resolve and settle certain other
potential claims between them.
TARANTELLA and CALDERA are parties to an Agreement and Plan of
Reorganization dated August 1, 2000 (the "Definitive Agreement") and amended on
September 13, 2000, December 12, 2000 and February 9, 2001, and to an Agreement
relating to certain TARANTELLA products dated June 30, 2001.
Notwithstanding anything in the foregoing agreements, and in
consideration of the mutual covenants and promises contained herein, and
otherwise good and valuable consideration, the parties hereto agree:
1. PAYMENT
Within five days of the execution of this Agreement, CALDERA will deliver
to TARANTELLA a payment of $4,500,000 plus a payment of $500,000 to an escrow
agent, which will satisfy TARANTELLA's obligation for cash escrow as set forth
below., said sum representing a discount from the face value of the Note.
Notwithstanding the foregoing, CALDERA shall offset against payments due
TARANTELLA hereunder those sums agreed by the parties as set forth on Exhibit A,
and CALDERA shall pay to TARANTELLA the net sum due within five days of
execution of this Agreement.
2. STOCK PURCHASE
CALDERA agrees to purchase from TARANTELLA, within five days of the
execution of this Agreement, 500,000 shares of the CALDERA stock presently owned
by TARANTELLA. This stock will be purchased at 70% of the average closing price
for the five trading days prior to the date of execution of this Agreement.
Pursuant to the Definitive Agreement, at such time as the number of shares held
by TARANTELLA is less than 20% of the outstanding shares of CALDERA stock,
TARANTELLA agrees to have one of its designees to the CALDERA board resign, and
at such time as the number of shares held by
TARANTELLA is less than 10% of the outstanding shares of CALDERA stock,
TARANTELLA agrees to have its other designee to the CALDERA board resign.
3. ASSIGNMENT
Upon receipt of full payment due TARANTELLA hereunder within five days of
execution of this Agreement (including full payment for the CALDERA shares),
TARANTELLA shall deliver to CALDERA an assignment of the Note, together with all
security interests and other encumbrances to the Note.
4. LICENSE
TARANTELLA hereby grants CALDERA a perpetual, irrevocable, worldwide,
non-exclusive, license to use and sublicense VisionFS, Termlite and Webtop in
object code form, bundled with any version of CALDERA'S products, acquired from
TARANTELLA, that existed prior to May 7, 2001. Exhibit B identifies a list of
products known to meet the above criteria. This license does not apply to any
Linux Operating System offering or to CALDERA'S OPEN UNIX product offering, or
any other products that did not have bundled VisionFS, Termlite, or Webtop prior
to May 7, 2001. For such license grant, CALDERA will pay TARANTELLA, within five
days of the execution of this Agreement, the sum of $[*]
5. LEASE ESCROW
The parties acknowledge that TARANTELLA is currently occupying facilities
in the United Kingdom and that CALDERA is currently occupying facilities in the
United States, for which both parties may be liable to the landlord for rent and
other related sums, with the party occupying the premises having primary
liability and the other party being in a position of guarantor. Each party
occupying a facility agrees that it will indemnify and hold harmless the party
not occupying the facility against any claim brought by a landlord relating to
the facility. Further, each of the parties shall establish an escrow account and
shall maintain in escrow for the benefit of the other party the sum of $500,000,
to be deposited with the escrow agent within 5 days of the execution of this
Agreement. In addition, the Escrow created in the Definitive Agreement and
containing (at present) 400,000 shares of CALDERA stock shall be extended until
such time as each of the leases on facilities being occupied by TARANTELLA (and
guaranteed by Caldera Europe Ltd.) is assigned to TARANTELLA and its
subsidiaries. (TARANTELLA shall make best efforts to ensure that Caldera Europe
Ltd.'s liability is subordinate to that of Tarantella Limited and Tarantella,
Inc.) Additionally, TARANTELLA shall have the right to exchange the shares held
in escrow, in whole or in part, for an amount of cash equivalent to the value of
the shares on the date of this Agreement. As the lease payment obligations
decrease over time, or should the party occupying the premises succeed in having
the other party removed from the position of the guarantor, the sum held in
escrow may be reduced accordingly, so long as the lesser of $500,000 or a sum
sufficient to cover the remaining lease obligation remains in escrow. In the
event either party shall fail to otherwise indemnify the other, the injured
party may remove from the other party's escrow a sum sufficient to provide such
indemnification. Further, the injured party may terminate its own escrow and
recover those escrowed funds for its own use. Nothing set forth herein shall be
construed to limit either party's right to recover damages from the other in the
event the defaulting party's escrow is insufficient to fully satisfy applicable
liabilities.
6. WAIVER
TARANTELLA and CALDERA hereby mutually release and forever discharge each
other and each of their officers, employees, customers, agents, successors and
assigns and all other persons, firms or corporations liable or who might be
claimed to be liable for money and all claims, demands, actions, or causes of
action at law or in equity. TARANTELLA and CALDERA acknowledge and agree that
the mutual release agreed to herein applies to release all claims whether known
or unknown, foreseen or unforeseen, patent or latent, that either party may have
against the other with regard to those matters. TARANTELLA and CALDERA hereby
waive application of California Civil Code Section 1542 and certify that they
have read the following provision of California Civil Code Section 1542:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing this release, which if known by him, must have materially
affected his settlement with the debtor.
TARANTELLA and CALDERA understand and acknowledge that the significance and
consequence of this waiver of rights under California Civil Code Section 1542 is
that, if either party should eventually suffer additional damages arising out of
the matters that are the basis of the claims addressed by this release, they
will be barred from making any claim for damages by virtue of this release.
Furthermore, TARANTELLA and CALDERA acknowledge the consequences of such a
waiver of rights under California Civil Code Section 1542 and affirmatively
represent that they intend that aforementioned release to apply as to claims for
damages that may exist as of the date of this release, but are unknown to them
as of this date, and which claims, if known, would materially affect their
decision to agree to this release, regardless of whether such lack of knowledge
is a result of ignorance, oversight, error, negligence or any other cause.
As used in this provision, "TARANTELLA" and "CALDERA" shall include their
respective subsidiaries and affiliated companies where applicable.
Nothing set forth herein shall be construed to release:
x. XXXXXXX of its obligation to pay to TARANTELLA any sums that may
become due as an "Earn-out Amount" as set forth in the Third Amendment
to the Definitive Agreement and that pertain to OpenServer Revenue
realized by CALDERA or to release CALDERA from any other royalty
obligations to TARANTELLA except as expressly set forth in this
Agreement. As a point of clarification to that Third Amendment, the
Earn-out Amount is calculated based on revenues, and is not intended
to apply to any proceeds from the sale of the entire OpenServer asset,
except that the Earn-out Amount obligation must be assumed by any
assignee of that asset under the same terms, conditions, and
obligations as presently exist;
b. TARANTELLA for any payments due for foreign taxes incurred prior to
May 7, 2001;
c. TARANTELLA for any payments due to CALDERA relating to the commit
receivables; or
x. XXXXXXX for any reimbursements due to TARANTELLA arising from third
party royalties and/or sales commissions paid by TARANTELLA pertaining
to the commit receivables.
7. INDEMNIFICATION
CALDERA shall indemnify and hold TARANTELLA harmless against any claims
brought against TARANTELLA by former employees of Tarantella (or The Santa Xxxx
Operation, Inc. or its subsidiaries) subsequently employed by CALDERA pursuant
to Definitive Agreement and pertaining to a claim for severance pay or a payment
due the employee pursuant to a change in control agreement previously entered
into by the employee and TARANTELLA.
8. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of compromise and
settlement among the parties, and there are no other agreements modifying or
affecting its terms. Its terms can be modified only by a writing signed by all
of the parties to this Agreement expressly stating that such modification is
intended.
9. MISCELLANEOUS
The parties to this Agreement agree to take all action necessary to
effectuate the terms of this Agreement.
The waiver of any breach of this Settlement Agreement by any party shall
not be a waiver of any other subsequent or prior breach.
This Agreement has been carefully read by the parties, its contents are
known by the parties, and it is freely and voluntarily signed by the parties.
The parties in this Agreement shall execute any and all further documents
that reasonably may be required to effectuate the purpose of this Agreement.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and to their respective representatives and successors.
This Agreement may be executed in counterparts, and, if so executed, each
such counterpart shall have the force and effect of an original.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and made effective as of the date first above written.
TARANTELLA, INC.
Date: March 28, 2002 /s/ Xxxx Xxxxxxx
-------------------------
Xxxx Xxxxxxx
President
CALDERA INTERNATIONAL, INC.
Date: March 28, 2002 /s/ Xxxxxx Love
------------------------------
Xxxxxx Love
President
EXHIBIT A
OFFSETS
Outstanding Invoices for Shared Services $ [*]
Uncollectable commit receivables [*]
Final Payment for MDF/Coop funds [*]
Change in Control amounts advanced by Caldera [*]
Italy costs advanced by Caldera [*]
Estimate of Professional Services Collected by TTA [*]
Total Amount of Offsets: $ [*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
EXHIBIT B
VisionFS, Termlite and Webtop Permitted Bundles
Products included in this license limited to products which had
VisionFS, Termlite and Webtop bundled prior to May 7, 2001.
Specifically:
Certain Openserver versions prior to and including Version 5.0.6a
Certain UnixWare versions prior to and including Version 7.1.1
Addendum:
Known products with VisionFS/Termlite bundled:
Openserver Desktop and Enterprise version release 5.0.4, 5.0.5, 5.0.6a
UnixWare Base, Business, Departmental, Messaging, DataCenter and Enterprise
Editions, release 7.0.0, 7.0.1, 7.1.0, 7.1.1
Known products with Webtop bundled:
UnixWare 7.1.0, 7.1.1 - All editions: FREE, BASE, BUSINESS, DEPARTMENTAL,
MESSAGING, ENTERPRISE, and DATACENTER.
If either party identifies additional products which meet these criteria,
they will notify the other party in writing promptly.
