Exhibit 2.2
AMENDMENT TO
AGREEMENT AND PLAN OF REORGANIZATION
THIS AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION (this "Amendment")
is entered into as of September 13, 2000, by and among Caldera Systems, Inc., a
Delaware corporation including for all purposes Caldera Surviving Corporation,
("Caldera"), Caldera, 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.
NOW, THEREFORE, the parties hereby agree to amend the Agreement as
follows:
1. Section 1.3(a)(i) and (iii) of the Agreement are amended in their
entirety as follows:
1.3 SCO Transaction.
(a) Issuance of Newco Common Stock.
(i) Consideration. Issue to SCO that number of issued, fully
paid and nonassessable shares of Newco Common Stock equal to The SCO Percentage
Interest, less (a) the number of shares of Newco Common Stock issuable upon
exercise of the Replacement Options pursuant to Section 1.3(a)(iii) below
multiplied by .75, (b) the number of shares of Newco Common Stock issuable upon
exercise of the SCO Options assumed by Newco pursuant to Section 1.3(a)(iii)
below multiplied by .75 and (c) the Escrow Shares issued to SCO and placed
directly into escrow by Caldera pursuant to Section 1.3(b) below, with such
number of shares to be appropriately adjusted in the event of any Caldera stock
split, stock combination, reclassification or other similar capital change (the
"First SCO Certificate") and pay SCO cash consideration equal to seven million
dollars ($7,000,000) (the "Cash Consideration"), by wire transfer of immediately
available funds or upon the cancellation of SCO's outstanding indebtedness to
Caldera.
(iii) Assumption or Replacement of SCO Options. Prior to the
Effective Time, each employee or consultant of SCO who is offered and accepts
employment or a consulting position with New Caldera and who has then
outstanding options to purchase shares of SCO Common Stock held by such Optionee
(collectively, the "SCO Options")(consisting of all outstanding options granted
under the stock option plans of SCO or the SCO Subsidiaries, and
any individual non-plan options held by the Optionees) shall elect one of
the following alternatives with respect to each grant of options held by such
employee or consultant:
(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 after the Effective Time, rounded up to the
nearest cent. The vesting schedule of employees and consultants electing this
alternative shall be determined as follows: (i) the number of vested shares of
common stock under the Replacement Option grant will equal the number of vested
shares of common stock subject to the cancelled SCO option grant immediately
prior to the Effective Time multiplied by 0.25 and (ii) the remaining unvested
Replacement Options will vest over a period of months determined by the
following equation: 48 months less the product of the number of months vested
under the SCO option grant multiplied by 0.5; or
(B) Each of the then outstanding SCO Options held by such
employee or consultant may be assumed by Newco and converted into an option to
purchase one share of Newco Common Stock for each two shares of SCO Common Stock
subject to an SCO Option at the Effective Time (the "SCO Ratio") at an exercise
price per share of Newco Common Stock equal to the exercise price per share of
such assumed SCO Option immediately prior to the Effective Time divided by the
SCO Ratio, rounded up to the nearest cent. Except as set forth in the preceding
sentence, the term, exercisability, vesting schedule, and all other terms and
conditions of the SCO Options will be unchanged and all references in any option
agreement governing such option to SCO shall be deemed to refer to Newco, where
appropriate; provided, however, that the outstanding SCO Options previously
designated as "incentive stock options" under Section 422 of the Internal
Revenue Code may, as a result of the foregoing adjustments, be converted into
non-statutory stock options. Continuous service as an employee or consultant
with SCO or any of the SCO Subsidiaries will be credited to the Optionee for
purposes of determining the number of shares of Newco Common Stock vested and
exercisable under the assumed SCO Option after the Closing. If the foregoing
calculation results in a Newco Option, which is issued for an SCO Option, being
exercisable for a fraction of a share of Newco Common Stock, then the number of
shares of Newco Common Stock subject to such option will be rounded down to the
nearest whole number of shares, with no cash being payable for such resulting
fractional share.
2. Section 1.3(c) of the Agreement is hereby deleted in its entirety.
3. Section 13.15 of the Agreement is hereby amended as follows:
(a) The following definition is hereby amended in its entirety: "Caldera
Percentage Interest" means 72% of the fully diluted equity interest in Newco
(taking into account all options, warrants and convertible debentures on an as-
converted basis except for any Replacement Options issued or SCO Options assumed
pursuant to Section 1.3(a)(iii)).
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(b) The following definition is hereby added in its entirety: "Replacement
Options" is defined in Section 1.3(a)(iii)(A).
(c) The following definition is hereby amended in its entirety: "SCO
Ratio" is defined in Section 1.3(a)(iii)(B).
4. All references to the form of Sales Representative and Support
Agreement, attached as Exhibit 4.12 of the Agreement shall hereby be replaced by
references to the form of Sales Representative and Support Agreement attached
hereto as Exhibit 4.12A (the "Sales Representative Agreement") and the form of
Open Server Research and Development Agreement attached hereto as Exhibit 4.12B
(the "Open Server Agreement"). The Sales Representative Agreement and Open
Server Agreement shall be executed at the Effective Time.
[SIGNATURE PAGE TO FOLLOW]
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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/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxx
President and Chief Executive Officer
CALDERA SYSTEMS, INC.
a Delaware corporation
By: /s/ Ransom H. Love
-----------------------------------------
Xxxxxx Love
Chief Executive Officer
CALDERA, INC.
a Delaware corporation
By: /s/ Ransom H. Love
-----------------------------------------
Xxxxxx Love
Chief Executive Officer
[SIGNATURE PAGE TO AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION]
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