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EXHIBIT 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
August 1, 2000, by and between Caldera Systems, Inc., a Delaware corporation
("Company") and the undersigned stockholder ("Stockholder") of The Santa Xxxx
Operation, Inc. ("SCO").
RECITALS
A. Concurrently with the execution and delivery of this Agreement, the
Company, Caldera Holding, Inc. ("Newco"), a Delaware corporation and SCO, 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 SCO (the "SCO Acquisition" and
together with the Merger, the "Transactions"). Pursuant to the Transactions, SCO
and certain SCO option holders shall receive 28% of Newco common stock on a
fully diluted basis and the Company 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. 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 SCO 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, 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 SCO over which
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 SCO (including all
shares of SCO common stock and all options, warrants and other rights to acquire
shares of SCO common stock) owned by Stockholder as of the date of this
Agreement; and (ii) all additional securities of SCO (including all additional
shares of SCO common stock and all additional options, warrants and other rights
to acquire shares of SCO common stock) of which 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.
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. 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) 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 SCO and at any adjournment
thereof at which matters relating to the SCO Acquisition, the Reorganization
Agreement or any transaction contemplated thereby are considered. At every
meeting of the stockholders of SCO, and
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at every adjournment thereof, and on every action or approval by written consent
of the stockholders of SCO, 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 SCO 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 SCO, and at every
adjournment thereof and on every action or approval by written consent of the
stockholders of SCO, Stockholder shall vote, or cause the Shares to be voted,
against (i) any SCO Alternative Proposal (in his capacity as such), (ii) any
dissolution, liquidation or winding up of or by SCO or (iii) any amendment of
the Certificate of Incorporation or by-laws of SCO or other proposal or
transaction involving SCO or any Contributing Company, which amendment or other
proposal or transaction would in any manner impede, frustrate, prevent or
nullify any material provision of the Reorganization Agreement, the SCO
Acquisition, the Merger or any other transaction contemplated by the
Reorganization Agreement or change in any manner the voting rights of any class
of SCO's capital stock. Stockholder shall not commit or agree to take any action
inconsistent with the foregoing.
4. Irrevocable Proxy.
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 SCO and action by stockholders of SCO 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 Stockholder, 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 the 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 SCO other than
the shares of SCO common stock and options and warrants and to purchase shares
of SCO 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.
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. No Solicitation.
Stockholder agrees that, during the period from the date of this
Agreement through the Expiration Date, Stockholder will not, and will not permit
any of its officers, directors, affiliates or employees or any investment
banker, attorney or other advisor or representative retained by it to, directly
or indirectly, (i) solicit, initiate, or encourage the submission of any SCO
Alternative Proposal, (ii) engage in discussions or negotiations regarding,
provide non-public information with respect to, or to take any other action
intended, designed or reasonably likely to facilitate any inquiries or the
making of any proposal or offer that constitutes, or would reasonably be
expected to lead to, any SCO Alternative, (iii) enter into any letter of intent,
agreement in principle, agreement involving a business combination or other
similar agreement with any person with respect to any SCO Alternative Proposal
or (iv) make or authorize any statement, recommendation or solicitation in
support of any SCO Alternative Proposal. Stockholder as promptly as practicable
shall advise Company orally and in writing of any request received by
Stockholder for non-public information which Stockholder reasonably believes
could lead to a SCO Acquisition Proposal or of any SCO Acquisition Proposal. the
principal financial and other material terms and conditions of such SCO
Alternative Proposal, and the identity of the person making any such request or
SCO Alternative Proposal.
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9. Confidentiality.
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.
10. Miscellaneous.
10.1 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.
10.2 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 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.
10.3 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.
10.4 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.
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10.5 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:
Caldera Systems, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxx, Xxxx 00000
Attention: Chief Executive Officer
Telecopier.: (000) 000-0000
and with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, III
Telecopier: (000) 000-0000
if to Stockholder, to the address for notice set forth on the
signature page 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.
10.6 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
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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.
10.7 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.
10.8 Descriptive Headings.
The section headings are for convenience only and shall not
affect the construction or interpretation of this Agreement.
10.9 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.
10.10 Stockholder Capacity
Notwithstanding anything herein to the contrary, no person
executing this Agreement who is, or becomes during the term hereof, a director
of SCO 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 SCO.
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.
CALDERA SYSTEMS, INC.
By: /s/ Xxxxxx Love
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Name:
Title:
XXXX XXXXXXX
/s/ Xxxx Xxxxxxx
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Print Address
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Telephone
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Facsimile No.
Shares beneficially owned:
3,553,400 shares of SCO common stock
300,000 shares of SCO common stock
issuable upon exercise of outstanding options
or warrants
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of The Santa Xxxx Operation, Inc., a
Delaware corporation ("SCO"), hereby irrevocably appoints the members of the
Board of Directors of Caldera Systems, Inc., a Delaware 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 SCO that now are or hereafter
may be beneficially owned by the undersigned, and any and all other shares or
securities of SCO 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 SCO 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 SCO. The
Reorganization Agreement provides for, among other things, the acquisition of
significantly all of the assets of SCO by Newco (the "SCO 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 SCO 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 SCO call a special meeting of stockholders
of SCO 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 SCO 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 SCO Acquisition and in favor of
each other action contemplated by the Reorganization Agreement and any action
required
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in furtherance hereof or thereof and (b) against (i) any SCO Alternative
Proposal (in his capacity as such), (ii) any dissolution, liquidation or winding
up of or by SCO or (iii) any amendment of the Certificate of Incorporation or
by-laws of SCO or other proposal or transaction involving SCO or any
Contributing Company, which amendment or other proposal or transaction would in
any manner impede, frustrate, prevent or nullify any material provision of the
Reorganization Agreement, the SCO Acquisition, the Merger or any other
transaction contemplated by the Reorganization Agreement or change in any manner
the voting rights of any class of SCO's capital stock.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
Dated: August __, 2000
Xxxx Xxxxxxx
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Shares beneficially owned:
________ shares of SCO common stock
________ shares of SCO common stock
issuable upon exercise of outstanding options or
warrants
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