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EXHIBIT 2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
August 1, 2000, by and between The Santa Xxxx Operation, Inc., a California
corporation ("Company") and the undersigned stockholders (each, a "Stockholder")
of Caldera Systems, Inc. ("Caldera").
RECITALS
A. Concurrently with the execution and delivery of this Agreement, the
Company, Caldera Holding, Inc. ("Newco"), a Delaware corporation and Caldera,
are entering into an Agreement and Plan of Reorganization (the "Reorganization
Agreement") that provides for (i) the formation of a wholly owned subsidiary of
Newco which will be merged (the "Merger") into the Company, thereby causing the
Company to become a wholly-owned subsidiary of Newco and (ii) the Acquisition by
Newco of significantly all of the assets of the Company (the "Company
Acquisition" and together with the Merger, the "Transactions"). Pursuant to the
Transactions, The Company and certain of the Company's option holders shall
receive 28% of Newco common stock on a fully diluted basis and the Caldera
stockholders and option holders shall receive 72% of Newco common stock on a
fully diluted basis on the terms and subject to the conditions set forth in the
Reorganization Agreement;
B. Each Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such number of shares of Caldera common stock and shares of common stock subject
to outstanding options as is indicated on the signature page of this Agreement;
and
C. In consideration of the execution of the Reorganization Agreement by
Company, each Stockholder (in his or her capacity as such) agrees to vote the
Shares (as defined below) and any other such shares of common stock of Caldera
over which each Stockholder has voting power so as to facilitate consummation of
the Transactions.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Reorganization Agreement
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Certain Definitions.
Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Reorganization Agreement. For purposes of this
Agreement:
1.1 "Expiration Date" shall mean the earlier to occur of (i) such
date and time as the Reorganization Agreement shall have been validly terminated
pursuant to its terms, except pursuant to Section 8.1(j) and (ii) the Effective
Time.
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1.2 "Person" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity or (iii) governmental authority.
1.3 "Shares" shall mean: (i) all securities of Caldera (including all
shares of Caldera common stock and all options, warrants and other rights to
acquire shares of Caldera common stock) owned by each Stockholder as of the date
of this Agreement; and (ii) all additional securities of Caldera (including all
additional shares of Caldera common stock and all additional options, warrants
and other rights to acquire shares of Caldera common stock) of which each
Stockholder acquires ownership during the period from the date of this Agreement
through the Expiration Date.
1.4 "Transfer", when used as a verb, shall mean to sell, pledge,
assign, encumber, dispose of or otherwise transfer (including by merger,
testamentary disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law), or, when used as a noun,
shall mean a sale, pledge, assignment, encumbrance, disposition, or other
transfer (including a merger, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise or other transfer by
operation of law).
2. Restrictions on Transfer.
Each Stockholder agrees that, during the period from the date of this
Agreement through the Expiration Date, Stockholder shall not, either directly or
indirectly, Transfer any Shares owned either directly or indirectly, by
Stockholder or with respect to which Stockholder has the power of disposition,
whether now or hereafter acquired, without the prior written consent of Company;
provided that the foregoing requirements shall not prohibit any Transfer to any
Person where as a precondition to such Transfer the transferee: (i) executes a
counterpart of this Agreement and an Irrevocable Proxy in the form attached
hereto as Exhibit A (with such modifications as Company may reasonably request);
and (ii) agrees in writing to hold such Shares (or interest in such Shares)
subject to all of the terms and provisions of this Agreement. Each Stockholder
agrees that, during the period from the date of this Agreement through the
Expiration Date, Stockholder shall not (a) deposit (or permit the deposit of)
any Shares in a voting trust or grant any proxy or enter into any voting
agreement or similar agreement in contravention of the obligations of
Stockholder under this Agreement with respect to any of the Shares or (b) take
any action that would make any representation or warranty of Stockholder
contained herein untrue or incorrect or have the effect of preventing or
disabling Stockholder from performing Stockholder's obligations under this
Agreement.
3. Agreement to Vote Shares.
(a) Each Stockholder hereby agrees to appear, or cause the holder of
record on any applicable record date to appear for the purpose of obtaining a
quorum at any annual or special meeting of stockholders of Caldera and at any
adjournment thereof at which matters relating to the Company Acquisition, the
Reorganization Agreement or any transaction contemplated thereby are considered.
At every meeting of the stockholders of
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Caldera, and at every adjournment thereof, and on every action or approval by
written consent of the stockholders of Caldera, each Stockholder (in his or her
capacity as such) shall vote, or cause the Shares to be voted, in favor of
approval and adoption of the Reorganization Agreement and the approval of the
Company Acquisition and in favor of each other action contemplated by the
Reorganization Agreement and any action required in furtherance hereof or
thereof.
(b) At every meeting of the stockholders of Caldera, and at every
adjournment thereof and on every action or approval by written consent of the
stockholders of Caldera, each Stockholder shall vote, or cause the Shares to be
voted, against (i) any dissolution, liquidation or winding up of or by Caldera
or (ii) any amendment of the Certificate of Incorporation or by-laws of Caldera
or other proposal or transaction involving Caldera, which amendment or other
proposal or transaction would in any manner impede, frustrate, prevent or
nullify any material provision of the Reorganization Agreement, the Company
Acquisition, the Merger or any other transaction contemplated by the
Reorganization Agreement or change in any manner the voting rights of any class
of Caldera's capital stock. Each Stockholder shall not commit or agree to take
any action inconsistent with the foregoing.
4. Irrevocable Proxy.
Each Stockholder is hereby delivering to Company an irrevocable proxy in
the form attached hereto as Exhibit A (the "Irrevocable Proxy") with respect to
each meeting of stockholders of Caldera and action by stockholders of Caldera by
written consent in lieu of a meeting, such Irrevocable Proxy to cover the total
number of Shares in respect of which Stockholder is entitled to vote. Upon the
execution of this Agreement by each Stockholder, such Stockholder hereby revokes
any and all prior proxies given thereby with respect to the Shares and agrees
not to grant any subsequent proxies with respect to the Shares until after the
Expiration Date.
5. Representations and Warranties of each Stockholder.
5.1 Stockholder (i) is the beneficial owner of the Shares indicated
on the signature page of this Agreement, free and clear of any liens, claims,
options, rights of first refusal, co-sale rights, charges or other encumbrances;
(ii) does not beneficially own any securities of Caldera other than the shares
of Caldera common stock and options and warrants and to purchase shares of
Caldera common stock indicated on the signature page of this Agreement; and
(iii) has full power and authority to make, enter into and carry out the terms
of this Agreement and the Irrevocable Proxy.
5.2 This Agreement and the Irrevocable Proxy have been duly and
validly executed and delivered by Stockholder and constitute the valid and
binding obligations of Stockholder, enforceable against Stockholder in
accordance with their respective terms. The execution and delivery of this
Agreement and the Irrevocable Proxy by Stockholder do not, and the performance
of Stockholder's obligations hereunder will not, (a) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
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would become a default) under, or give to others any right to terminate, amend,
accelerate or cancel any right or obligation under, or result in the creation of
any lien or encumbrance on any Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligations to which Stockholder is a party or by which
Stockholder or the Shares are or will be bound or affected or (b) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to Stockholder or any of Stockholder's properties or assets. No
consent, approval, order or authorization of, or registration, declaration or
filing with, or notice to, any state or federal public body or authority is
required by or with respect to Stockholder in connection with the execution and
delivery of this Agreement and the Irrevocable Proxy by Stockholder or the
consummation by Stockholder of any of the transactions contemplated hereby or
thereby.
6. Additional Documents.
Each Stockholder (in his or her capacity as such) hereby covenants and
agrees to execute and deliver any additional documents necessary or desirable,
in the reasonable opinion of Company, to carry out the intent of this Agreement.
7. Termination.
This Agreement shall terminate and shall have no further force or effect
as of the Expiration Date.
8. Confidentiality.
Each Stockholder agrees (i) to hold any information regarding this
Agreement, the Reorganization Agreement and the Transactions in strict
confidence and (ii) not to divulge any such information to any third person,
except to the extent any of the same is hereafter publicly disclosed by Company.
9. Miscellaneous.
9.1 Severability.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
then the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
9.2 Binding Effect and Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
any of the parties without prior
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written consent of the others. Nothing contained in this Agreement, express or
implied, is intended to confer upon any person other than the parties hereto and
their respective successors and permitted assigns any rights or remedies of any
nature whatsoever by reason of this Agreement.
9.3 Amendments and Modification.
This Agreement may be amended by the parties hereto and the terms and
conditions hereof may be waived only by an instrument in writing signed on
behalf of each of the parties hereto or, in the case of a waiver, by an
instrument signed on behalf of the party waiving compliance.
9.4 Specific Performance.
The parties hereto acknowledge that Company shall be immediately and
irreparably harmed and injured if for any reason any of the provisions of this
Agreement are not performed in accordance with their specific terms or are
otherwise breached by any of the other parties hereto. Therefore, it is agreed
that, in addition to any other remedies that may be available to Company upon
any such violation, Company shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Company at law or in equity. If Company brings an action in equity
to enforce the provisions of this Agreement, neither of the other parties hereto
will allege, and each hereby waives the defense, that there is an adequate
remedy at law.
9.5 Notices.
All notices and other communications pursuant to this Agreement shall
be in writing and deemed to be sufficient if contained in a written instrument
and shall be deemed given if delivered personally, telecopied, sent by
nationally-recognized overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following address (or at such other address for a party as shall be specified by
like notice):
if to Company, to:
The Santa Xxxx Operation, Inc.
000 Xxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx
Attention: Chief Executive Officer and Law and
Corporate Affairs
Telecopier.: (000) 000-0000
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and with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
if to Stockholders, to the address for notice set forth on the
signature pages hereof.
All such notices and other communications shall be deemed to have
been received (a) in the case of personal delivery, on the date of such
delivery, (b) in the case of a telecopy, when the party receiving such copy
shall have confirmed receipt of the communication, (c) in the case of delivery
by nationally-recognized overnight courier, on the business day following
dispatch, and (d) in the case of mailing, on the third business day following
such mailing.
9.6 Governing Law; Venue.
(a) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
(b) Venue. The parties agree that any dispute regarding the
interpretation or validity of, or otherwise arising out of this Agreement, shall
be subject to the exclusive jurisdiction of the California State Courts in and
for Santa Xxxxx County, California or, in the event of federal jurisdiction, the
United States District Court for the Northern District of California sitting in
Santa Xxxxx County, California, and each party hereby agrees to submit to the
personal and exclusive jurisdiction and venue of such courts and not to seek the
transfer of any case or proceeding out of such courts.
9.7 Entire Agreement.
This Agreement and the Irrevocable Proxy contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
9.8 Descriptive Headings.
The section headings are for convenience only and shall not affect
the construction or interpretation of this Agreement.
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9.9 Counterparts.
This Agreement may be executed in counterparts, each of which will be
deemed to be an original, but all of which, taken together, will constitute one
and the same instrument.
9.10 Stockholder Capacity
Notwithstanding anything herein to the contrary, no person executing
this Agreement who is, or becomes during the term hereof, a director of Caldera
makes any agreement or understanding herein in his or her capacity as such
director, and the agreements set forth herein shall in no way restrict any
director in the exercise of his or her fiduciary duties as a director of
Caldera. Each Stockholder has executed this Agreement solely in his or her
capacity as the record or beneficial holder of such Stockholder's Shares or as
the trustee of a trust whose beneficiaries are the beneficial owners of such
Stockholder's Shares.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
THE SANTA XXXX OPERATION, INC.
By:
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Name:
Title:
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By:
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Name:
Title:
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Print Address
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Telephone
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Facsimile No.
Shares beneficially owned:
__________ shares of Caldera common stock
__________ shares of Caldera common stock issuable
upon exercise of outstanding options or warrants
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Caldera Systems, Inc., a Delaware
corporation ("Caldera"), hereby irrevocably appoints the members of the Board of
Directors of The Santa Xxxx Operation, Inc., a California corporation (the
"Company"), and each of them, or any other designee of Company, as the sole and
exclusive attorneys-in-fact and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Caldera that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Caldera issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Irrevocable Proxy. The Shares beneficially owned by the undersigned
Stockholder of Caldera as of the date of this Irrevocable Proxy are listed on
the signature page of this Irrevocable Proxy. Upon the undersigned's execution
of this Irrevocable Proxy, any and all prior proxies given by the undersigned
with respect to any Shares are hereby revoked and the undersigned agrees not to
grant any subsequent proxies with respect to the Shares until after the
Expiration Date (as defined below).
This proxy is irrevocable, is coupled with an interest and is granted
pursuant to that certain Voting Agreement of even date by and between Company
and the undersigned stockholder (the "Voting Agreement"), and is granted in
consideration of and as a condition to Company entering into that certain
Agreement and Plan of Reorganization (the "Reorganization Agreement"), among the
Company, Caldera Holding, Inc. ("Newco"), a Delaware corporation and Caldera.
The Reorganization Agreement provides for, among other things, the acquisition
of significantly all of the assets of the Company by Newco (the "Company
Acquisition"). As used herein, the term "Expiration Date" shall mean the earlier
to occur of (i) such date and time as the Reorganization Agreement shall have
been validly terminated pursuant to the terms thereof, except pursuant to
Section 8.1(j) and (ii) such date and time as the Company Acquisition shall
become effective in accordance with the terms and provisions of the
Reorganization Agreement.
The attorneys-in-fact and proxies named above, and each of them, are
hereby authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney-in-fact and Irrevocable
Proxy to demand that the Secretary of Caldera call a special meeting of
stockholders of the Company for the purpose of considering any action related to
the Reorganization Agreement and to vote the Shares, and to exercise all voting,
consent and similar rights of the undersigned with respect to the Shares
(including, without limitation, the power to execute and deliver written
consents) at every annual, special or adjourned meeting of stockholders of
Caldera and in every written consent in lieu of such meeting (a) in favor of the
approval and adoption of the Reorganization Agreement and the approval of the
Company
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Acquisition and in favor of each other action contemplated by the Reorganization
Agreement and any action required in furtherance hereof or thereof and (b)
against (i) any dissolution, liquidation or winding up of or by Caldera or (ii)
any amendment of the Certificate of Incorporation or by-laws of Caldera or other
proposal or transaction involving Caldera, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or nullify any
material provision of the Reorganization Agreement, the Company Acquisition, the
Merger or any other transaction contemplated by the Reorganization Agreement or
change in any manner the voting rights of any class of Caldera's capital stock.
Any obligation of the undersigned hereunder shall be binding upon
the successors and assigns of the undersigned.
Dated: August 1, 2000
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By:
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Name:
Title:
Shares beneficially owned:
__________ shares of Caldera common stock
__________ shares of Caldera common stock
issuable upon exercise of
outstanding options or warrants
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