EXHIBIT 2.3
SECOND AMENDMENT TO
AGREEMENT AND PLAN OF REORGANIZATION
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION (this "Second
Amendment") is entered into as of December 12, 2000, by and among Caldera
Systems, Inc., a Delaware corporation including for all purposes Caldera
Surviving Corporation, ("Caldera"), Caldera International, Inc., a Delaware
corporation ("Newco") and The Santa Xxxx Operation, Inc., a California
corporation ("SCO").
RECITALS
A. On August 1, 2000, Caldera, Newco and SCO entered into an Agreement and
Plan of Reorganization (the "Agreement") which all parties to the Agreement wish
to amend pursuant to the terms and conditions of this Amendment.
B. All terms not otherwise defined herein shall have the meanings set
forth in Section 13.15 of the Agreement.
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NOW, THEREFORE, the parties hereby agree to amend the Agreement as follows:
1. Section 1.3(a)(iii)(A) of the Agreement is amended in its entirety as
follows:
(A) Each of the then outstanding SCO Options held by such employee or
consultant may be cancelled and replaced with an option to purchase one share of
Newco Common Stock for each two shares of SCO Common Stock ("Replacement
Options") subject to an SCO Option at the Effective Time with an exercise price
per share of Newco Common Stock equal to the fair market value of Newco Common
Stock immediately prior to the Effective Time, rounded up to the nearest cent.
The vesting schedule of employees and consultants electing the Replacement
Option alternative will remain the same.
2. Section 1.15 is hereby added to the Agreement as follows:
1.15 Transition Cost Sharing. Caldera and SCO agree to share transition
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costs relating to the SCO Transaction from the date of the Agreement to the
Closing Date as set forth in the Transition Costs Memorandum attached hereto as
Exhibit 1.15.
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[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Agreement and Plan of Reorganization as of the date first above written.
THE SANTA XXXX OPERATION, INC.
a California corporation
By: /s/ Xxxxxx X. Sabbath
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Xxxxxx X. Sabbath
Senior Vice President, Law & Corporate
Affairs
CALDERA SYSTEMS, INC.
a Delaware corporation
By: /s/ Ransom H. Love
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Xxxxxx Love
Chief Executive Officer
CALDERA, INC.
a Delaware corporation
By: /s/ Ransom H. Love
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Xxxxxx Love
Chief Executive Officer
[SIGNATURE PAGE TO AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION]
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Exhibit 1.15
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Transition Costs Memorandum
The purpose of this Memorandum is to memorialize the agreement of The Santa Xxxx
Operation ("SCO") and Caldera Systems, Inc. ("Caldera") with respect to the
sharing of transition costs relating to the planned acquisition by Caldera of
the SCO Server and Professional Services Divisions ("Acquisition").
1. Background. The parties understand that, even if the Acquisition had not
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occurred, SCO would have undergone a reduction in its workforce. The
parties further understand that, if SCO had restructured to remain a
standalone company, it would have terminated 150 more employees than it did
in anticipation of the Acquisition, at an estimated cost to SCO of
approximately $3,200,000.
The carrying costs for these additional 150 employees are approximately
$4,200,000 per quarter. As SCO would have terminated them in August, they
will have been on the SCO payroll an additional four months as of December
31, 2000, at a total cost to SCO of approximately $5,600,000.
In addition, stay-on bonuses of $600,000 have been promised to transition
employees, resulting in a total cost to SCO of $6,200,000.
Therefore, the net incremental cost being borne by SCO as a result of the
Acquisition is approximately $3 million ($6,200,000 that SCO bore minus the
$3,200,000 that SCO saved by not terminating the 150 employees in August).
2. Agreement to Share Transition Costs. After some discussion, the parties
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have agreed to split the net incremental costs on a 50:50 basis. Caldera,
therefore, agrees to pay SCO the sum of $1,500,000, which is intended to
reimburse SCO for a 50 percent portion of the costs from August 2000
through December 2000.
3. One-Time-Only Basis. The parties agree that this cost sharing arrangement
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is being done on a one-time-only basis and that Caldera is not agreeing to
pay or share transition or termination costs that SCO may incur hereafter,
regardless of how long it takes to obtain SEC and shareholder approval and
to consummate the Acquisition.
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