<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
ANDOVER.NET, INC.
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
034318105
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(CUSIP Number)
TODD B. SCHULL
VA LINUX SYSTEMS, INC.
1382 BORDEAUX DRIVE
SUNNYVALE, CALIFORNIA 94089
(408) 542-8600
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
FEBRUARY 2, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box .
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other parties to whom copies are to be sent.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE> 2
SCHEDULE 13D
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CUSIP NO. 034318105 PAGE 2 OF 8 PAGES
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
VA Linux Systems, Inc. I.R.S. Identification No.: 77-0399299
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
N/A
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC, OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
STATE OF DELAWARE
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NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY N/A
OWNED BY EACH
REPORTING PERSON
WITH
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8 SHARED VOTING POWER
8,089,793 (1)
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9 SOLE DISPOSITIVE POWER
N/A
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10 SHARED DISPOSITIVE POWER
N/A
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,089,793 (1)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
49.0%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
(1) Approximately 8,089,793 shares of Andover.Net Common Stock are
subject to Voting Agreements entered into by VA Linux and certain stockholders
of Andover.Net (discussed in Items 3 and 4 below). VA Linux expressly disclaims
beneficial ownership of any of the shares of Andover.Net Common Stock covered by
the Voting Agreements. Based on the 16,512,819 shares of Andover.Net Common
Stock outstanding as of February 2, 2000 (as represented by Andover.Net in the
Merger Agreement discussed in Items 3 and 4 and including the shares issuable
upon the exercise of options held by such shareholders within 60 days of
February 2, 2000), the number of shares of Andover.Net Common Stock indicated
represents approximately 49.0% of the outstanding Andover.Net Common Stock
(based solely upon shares issued and outstanding as of February 2, 2000, these
individuals own approximately 46.5% of the outstanding shares).
<PAGE> 3
SCHEDULE 13D
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CUSIP NO. 034318105 PAGE 3 OF 8 PAGES
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ITEM 1. SECURITY AND ISSUER.
This statement on Schedule 13D (this "Statement") relates to the
Common Stock of Andover.Net, Inc., a Delaware corporation
("Andover.Net" or "Issuer"). The principal executive offices of
Andover.Net are located at 50 Nagog Park, Acton, Massachusetts
01720.
ITEM 2 IDENTITY AND BACKGROUND.
The name of the corporation filing this statement is VA Linux
Systems, Inc., a Delaware corporation ("VA Linux"). VA Linux is a
leading provider of Linux-based solutions, integrating systems,
software and services. The address of VA Linux's principal
business is 1382 Bordeaux Drive, Sunnyvale, California 94089. The
address of VA Linux's executive offices is the same as the
address of its principal business.
Set forth on Schedule A is the name of each of the directors and
executive officers of VA Linux, and their present principal
occupation or employment, including the name, principal business
and address of any corporation or other organization in which
such employment is conducted, as of the date hereof to VA Linux's
knowledge.
Neither VA Linux nor, to VA Linux's knowledge, any person named
on Schedule A hereto is required to disclose legal proceedings
pursuant to Items 2(d) or 2(e). To VA Linux's knowledge, each of
the individuals identified on Schedule A is a citizen of the
United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Pursuant to an Agreement and Plan of Reorganization dated as of
February 2, 2000 (the "Merger Agreement"), among VA Linux,
Atlanta Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of VA Linux ("Merger Sub") and
Andover.Net, and subject to the conditions set forth therein
(including approval by stockholders of Andover.Net), Merger Sub
will merge with and into Andover.Net and Andover.Net will become
a wholly-owned subsidiary of VA Linux (such events constituting
the "Merger"). Once the Merger is consummated, Merger Sub will
cease to exist as a corporation and all of the business, assets,
liabilities and obligations of Merger Sub will be merged into
Andover.Net with Andover.Net remaining as the surviving
corporation (the "Surviving Corporation").
Each holder of outstanding Andover.Net Common Stock will receive,
in exchange for each share of Andover.Net Common Stock held by
such holder, 0.425 shares of VA
<PAGE> 4
SCHEDULE 13D
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CUSIP NO. 034318105 PAGE 4 OF 8 PAGES
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Linux Common Stock. VA Linux will assume each outstanding option
to purchase Andover.Net Common Stock under Andover.Net's stock
option plans.
As an inducement for VA Linux to enter into the Merger Agreement
and in consideration thereof, certain stockholders of Andover.Net
(the "Stockholders") entered into individual voting agreements
with VA Linux (collectively the "Voting Agreements") whereby each
Stockholder agreed, severally and not jointly, to vote all of the
shares of Andover.Net Common Stock beneficially owned by him in
favor of approval and adoption of the Merger Agreement and
approval of the Merger and certain related matters. VA Linux did
not pay additional consideration to any Stockholder in connection
with the execution and delivery of the Voting Agreements.
References to, and descriptions of, the Merger, the Merger
Agreement and the Voting Agreements as set forth herein are
qualified in their entirety by reference to the copies of the
Merger Agreement and the Voting Agreement, respectively, included
as Exhibits 1 and 2, respectively, to this Schedule 13D, and are
incorporated herein in their entirety where such references and
descriptions appear.
ITEM 4. PURPOSE OF TRANSACTION.
(a) Not applicable.
(b) As described in Item 3 above, this Statement relates to the
Merger of Merger Sub, a wholly-owned subsidiary of VA Linux, with
and into Andover.Net in a statutory merger pursuant to the
Delaware General Corporation Law. At the effective time of the
Merger, the separate existence of Merger Sub will cease and
Andover.Net will continue as the Surviving Corporation and as a
wholly-owned subsidiary of VA Linux.
Pursuant to the Voting Agreements, the Stockholders have
irrevocably appointed VA Linux as their lawful attorney and
proxy. Such proxy gives VA Linux the limited right to vote each
of the approximately 8,089,793 shares (including options
exercisable within 60 days of February 2, 2000) of Andover.Net
Common Stock beneficially owned by the Stockholders in all
matters related to the Merger. In exercising its right to vote
the Shares as lawful attorney and proxy of the Stockholders, VA
Linux (or any nominee of VA Linux) will be limited, at every
Andover.Net stockholders meeting and every written consent in
lieu of such a meeting, to vote the Shares in favor of approval
and adoption of the Merger Agreement, in favor of approval of the
Merger and in favor of each matter that could reasonably be
expected to facilitate the Merger. The Stockholders may vote the
Shares on all other matters. The Voting Agreements terminate upon
such date and time as the Merger Agreement shall have been
terminated pursuant to Article VII thereof.
<PAGE> 5
SCHEDULE 13D
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CUSIP NO. 034318105 PAGE 5 OF 8 PAGES
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The purpose of the transactions under the Voting Agreements are
to enable VA Linux and Andover.Net to consummate the transactions
contemplated under the Merger Agreement.
(c) Not applicable.
(d) It is anticipated that upon consummation of the Merger, the
directors of Merger Sub immediately prior to the Merger shall be
the initial directors of the Surviving Corporation, until their
respective successors are duly appointed. It is anticipated that
the officers of Merger Sub immediately prior to the Merger shall
be the initial officers of the Surviving Corporation, until their
respective successors are duly appointed.
(e) Other than as a result of the Merger described in
Item 3 above, not applicable.
(f) Not applicable.
(g) Upon consummation of the Merger, the Certificate of
Incorporation of Merger Sub, as in effect immediately prior to
the Merger, shall be the Certificate of Incorporation of the
Surviving Corporation until thereafter amended as provided by
Delaware Law and such Certificate of Incorporation. Upon
consummation of the Merger, the Bylaws of Merger Sub, as in
effect immediately prior to the Merger, shall be the Bylaws of
the Surviving Corporation until thereafter amended.
(h) - (i) If the Merger is consummated as planned, the
Andover.Net Common Stock will be deregistered under the Act and
delisted from The Nasdaq National Market.
(j) Other than described above, VA Linux currently has no plan or
proposals which relate to, or may result in, any of the matters
listed in Items 4(a) - (j) of Schedule 13D (although VA Linux
reserves the right to develop such plans).
References to, and descriptions of, the Merger Agreement and the
Voting Agreements as set forth above in this Item 4 are qualified
in their entirety by reference to the copies of the Merger
Agreement and the Voting Agreement, respectively, included as
Exhibits 1 and 2, respectively, to this Schedule 13D, and are
incorporated in this Item 4 in their entirety where such
references and descriptions appear.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) - (b) As a result of the Voting Agreements, VA Linux may be
deemed to be the beneficial owner of approximately 8,089,793
shares of Andover.Net Common Stock. Such Andover.Net Common Stock
constitutes approximately 49.0% of the issued and
<PAGE> 6
SCHEDULE 13D
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CUSIP NO. 034318105 PAGE 6 OF 8 PAGES
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outstanding shares of Andover.Net Common Stock based on the
number of shares of Andover.Net Common Stock outstanding as of
February 2, 2000 (as represented by Andover.Net in the Merger
Agreement discussed in Items 3 and 4 and including the shares
issuable upon the exercise of options held by the affiliates of
Andover.Net within 60 days of February 2, 2000). VA Linux may be
deemed to have the shared power to vote the Shares with respect
to those matters described above. However, VA Linux (i) is not
entitled to any rights as a stockholder of Andover.Net as to the
Shares and (ii) disclaims any beneficial ownership of the shares
of Andover.Net Common Stock which are covered by the Voting
Agreements.
To VA Linux's knowledge, no person listed on Schedule A has an
ownership interest in Andover.Net.
Set forth on Schedule B is the name of those stockholders of
Andover.Net that have entered into a Voting Agreement with VA
Linux, and their present principal occupation or employment,
including the name, principal business and address of any
corporation or other organization in which such employment is
conducted, to VA Linux's knowledge.
(c) VA Linux, to its knowledge, has not effected any
transactions in the class of securities reported on herein during
the past sixty days.
(d) To the knowledge of VA Linux, no person has the right to
receive or the power to direct the receipt of dividends from, or
the proceeds from the sale of, the securities of Andover.Net
reported on herein.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Other than the Merger Agreement and the exhibits thereto,
including the Voting Agreements, to the knowledge of VA Linux,
there are no contracts, arrangements, understandings or
relationships among the persons named in Item 2 or between such
persons and any person with respect to any securities of
Andover.Net, including but not limited to transfer or voting of
any of the securities, finder's fees, joint ventures, loan or
option arrangement, puts or calls, guarantees of profits,
division of profits or loss, or the giving or withholding of
proxies.
<PAGE> 7
SCHEDULE 13D
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CUSIP NO. 034318105 PAGE 7 OF 8 PAGES
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ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
The following documents are filed as exhibits:
1. Agreement and Plan of Reorganization, dated February 2,
2000 by and among VA Linux, Merger Sub and Andover.Net.
(incorporated by reference to exhibits to the Report on
Form 8-K filed by Andover.Net, Inc. on February 14, 2000
(File No. 000-28369).
2. Form of Voting Agreement, dated February 2, 2000, between
VA Linux and certain stockholders of Andover.Net.
<PAGE> 8
SCHEDULE 13D
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CUSIP NO. 034318105 PAGE 8 OF 8 PAGES
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: February 14, 2000
VA LINUX SYSTEMS, INC.
By:/s/ Todd B. Schull
---------------------------------
Todd B. Schull, Vice President,
Finance and Chief Financial
Officer
<PAGE> 9
Schedule A
DIRECTORS AND EXECUTIVE OFFICERS OF
VA LINUX SYSTEMS, INC.
The following table sets forth the name, business address and present
principal occupation or employment of each director and executive officer of VA
Linux. Except as indicated below, the business address of each such person is
1382 Bordeaux Drive, Sunnyvale, CA 94089.
<TABLE>
<CAPTION>
Officers Name Title and Present Principal Occupation
- ------------- --------------------------------------
<S> <C>
Larry M. Augustin President, Chief Executive Officer and Director
of VA Linux
Robert Russo General Manager and Executive Vice President,
Worldwide Field Operations of VA Linux
Brian D. Biles Vice President, Marketing of VA Linux
John T. Hall Vice President, Support and Professional
Services of VA Linux
Todd B. Schull Vice President, Finance and Chief Financial
Officer of VA Linux
Daniel R. Shore Vice President, Operations of VA Linux
Gregg E. Zehr Vice President, Engineering of VA Linux
Leonard N. Zubkoff Chief Technical Officer of VA Linux
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
Directors Name Title and Present Principal Occupation
- -------------- --------------------------------------
<S> <C>
Larry M. Augustin President, Chief Executive Officer and Director
of VA Linux
Jeffry R. Allen Senior Vice President, Finance and Operations,
Director Chief Financial Officer and Secretary of
Network Appliances, Inc.
2770 San Tomas
Santa Clara, CA 95051
Carol A. Bartz President, Chief Executive Officer and Chairman
Director of the Board of Autodesk, Inc.
111 McInnis Parkway
San Rafael, CA 94903
Douglas Leone General Partner, Sequoia Capital
Director 3000 Sand Hill Road
Building 4, Suite 280
Menlo Park, CA 94025
Eric S. Raymond Technical Director of Chester County InterLink
Director c/o VA Linux Systems, Inc.
1382 Bordeaux Drive
Sunnyvale, CA 94089
Carl Redfield Senior Vice President, Manufacturing and
Director Logistics of Cisco Systems, Inc.
110 West Tasman Drive
San Jose, CA 95134
</TABLE>
<PAGE> 11
Schedule B
The following table sets forth the name and present principal occupation
or employment of each Andover.Net stockholder that entered into a voting
agreement with VA Linux. Except as indicated below, the business address of each
such person is c/o Andover.Net, Inc., 50 Nagog Park, Acton, MA 01720.
<TABLE>
<CAPTION>
Voting Agreement Stockholder Shares Beneficially Owned
- ---------------------------- -------------------------
<S> <C>
Bruce A. Twickler (a)
President, Chief Executive Officer and
Chairman of the Board of Directors of
Andover.Net, Inc. 1,911,112
Peter A. Phelps
Chief Financial Officer of Andover.Net,
Inc. 0
Adam B. Green (b)
Chief Technology Officer of Andover.Net,
Inc. 304,901
James E. Patterson (c)
Executive Vice President of Andover.Net,
Inc. 121,580
William M. Dwyer (d)
Vice President, Publishing of
Andover.Net, Inc. 80,380
Derek V. Carroll (e)
Vice President, Business Development of
Andover.Net, Inc. 100,475
Janet F. Holian (f)
Vice President, Communications of
Andover.Net, Inc. 30,142
Walter M. Bird, III (g)
Vice President of Claflin Capital
Management, Inc.
10 Liberty Square, Suite 300
Boston, MA 02169 0
Claflin Capital VI, L.P. (h)
10 Liberty Square, Suite 300
Boston, MA 02169 461,007
</TABLE>
<PAGE> 12
<TABLE>
<S> <C>
Claflin Capital VII, L.P. (i)
10 Liberty Square, Suite 300
Boston, MA 02169 331,679
Jonathan M. Goldstein (j)
Principal of TA Associates, Inc.
125 High Street, Suite 2500
Boston, MA 02110-2717 0
TA/Advent VIII, L.P. (k)
125 High Street, Suite 2500
Boston, MA 02110-2717 1,592,871
TA/Atlantic and Pacific IV, L.P. (l)
125 High Street, Suite 2500
Boston, MA 02110-2717 726,351
TA Executives Fund LLC (m)
125 High Street, Suite 2500
Boston, MA 02110-2717 30,263
TA Investors LLC (n)
125 High Street, Suite 2500
Boston, MA 02110-2717 31,856
James D. Logan (o)
President and Chief Executive Officer of
Gotuit Media, Inc. 211,835
Robert Malda (p)
President of Blockstackers 111,111
Louis Page (q)
President of
Window to Wall Street, Inc.
39 Cedar Hill Road
Dover, MA 02030 0
Window to Wall Street, Inc. (r)
39 Cedar Hill Road
Dover, MA 02030 561,479
Window to Wall Street Limited
Partnership (s)
39 Cedar Hill Road
Dover, MA 02030
Window to Wall Street II 569,196
Limited Partnership (t)
39 Cedar Hill Road
Dover, MA 02030 196,501
</TABLE>
<PAGE> 13
<TABLE>
<S> <C>
Thomas R. Shepherd (u)
Chairman of The Shepherd Group, LLC
636 Great Road
Stowe, MA 01775 108,533
The Shepherd Group, LLC (v)
636 Great Road
Stowe, MA 01775 10,188
The Shepherd Venture Fund I, L.P. (w)
636 Great Road
Stowe, MA 01775 80,883
John E. Trombly (x)
General Partner of Royalty Capital Fund
L.P. I
5 Downing Road
Lexington, MA 02421 182,524
Royalty Capital Fund L.P. I (y)
5 Downing Road
Lexington, MA 02421 334,926
Total: 8,089,793
</TABLE>
(a)Represents 1,763,352 shares of outstanding Andover.Net Common Stock
(including shares held by Barbara Jane Twickler) and 147,760 shares
subject to options exercisable within 60 days of February 2, 2000.
(b)Represents 304,901 shares subject to options exercisable within 60
days of February 2, 2000.
(c)Represents 30,203 shares of outstanding Andover.Net Common Stock
and 91,377 shares subject to options exercisable within 60 days of
February 2, 2000.
(d)Represents 80,380 shares subject to options exercisable within 60
days of February 2, 2000.
(e)Represents 100,475 shares subject to options exercisable within 60
days of February 2, 2000.
(f)Represents 30,142 shares subject to options exercisable within 60
days of February 2, 2000.
(g)Does not include shares held by Claflin Capital VI, L.P. and Claflin
Capital VII, L.P. over which Mr. Bird has shared voting and
investment power.
(h)Represents 461,007 shares of outstanding Andover.Net Common Stock.
<PAGE> 14
(i)Represents 331,679 shares of outstanding Andover.Net Common Stock.
(j)Does not include shares held by TA/Advent VIII, L.P., TA/Atlantic and
Pacific IV, L.P., TA Executives Fund LLC and TA Investors LLC over
which Mr. Goldstein has shared voting and investment power.
(k)Represents 1,592,871 shares of outstanding Andover.Net Common Stock.
(l)Represents 726,351 shares of outstanding Andover.Net Common Stock.
(m)Represents 30,263 shares of outstanding Andover.Net Common Stock.
(n)Represents 31,856 shares of outstanding Andover.Net Common Stock.
(o)Represents 188,170 shares of outstanding Andover.Net Common Stock
held by a Family trust and 23,665 shares subject to options
exercisable within 60 days of February 2, 2000.
(p)Represents 111,111 shares of outstanding Andover.Net Common Stock.
(q)Does not include shares held by Window to Wall Street, Inc., Window
to Wall Street, Limited Partnership and Window to Wall Street II
Limited Partnership over which Mr. Page has voting and investment
power.
(r)Represents 561,479 shares of outstanding Andover.Net Common Stock.
(s)Represents 569,196 shares of outstanding Andover.Net Common Stock.
(t)Represents 196,501 shares of outstanding Andover.Net Common Stock.
(u)Represents 108,533 shares of outstanding Andover.Net Common Stock and
does not include shares held by The Shepherd Group, LLC and The
Shepherd Venture Fund I, L.P. over which Mr. Shepherd has shared
voting and investment power.
(v)Represents 10,188 shares of outstanding Andover.Net Common Stock.
(w)Represents 80,883 shares of outstanding Andover.Net Common Stock.
<PAGE> 15
(x)Represents 182,524 shares of outstanding Andover.Net Common Stock and
does not include shares held by Royalty Capital Fund L.P. over which
Mr. Trombly has shared voting and investment power.
(y)Represents 334,926 shares of outstanding Andover.Net Common Stock.
<PAGE> 16
Exhibit 2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
February 2, 2000 by and among VA Linux Systems, Inc., a Delaware corporation
("Parent"), Andover.Net, Inc., a Delaware corporation (the "Company"), and the
undersigned shareholder (the "Shareholder") of the Company.
RECITALS
A. Concurrently with the execution of this Agreement, Parent, Atlanta
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of
Parent ("Sub") and, the Company have entered into an Agreement and Plan of
Reorganization dated as of February , 2000 (the "Merger Agreement"), which
provides for the merger (the "Merger") of Sub with and into the Company.
B. Pursuant to the Merger, all of the issued and outstanding shares of
capital stock of the Company will be converted into the right to receive the
consideration set forth in the Merger Agreement, all upon the terms and subject
to the conditions set forth therein.
C. Shareholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of the
number of shares of outstanding capital stock of the Company and other
securities convertible into, or exercisable or exchangeable for, shares of
capital stock of the Company, all as set forth on the signature page of this
Agreement (collectively, the "Shares").
D. In consideration of the execution of the Merger Agreement by Parent,
Shareholder agrees to restrict the transfer or disposition of any of the Shares,
or any other shares of capital stock of the Company acquired by Shareholder
hereafter and prior to the Expiration Date (as defined in Section 1(a) hereof),
and hereby agrees to vote the Shares and any other such shares of capital stock
of the Company so as to facilitate the consummation of the Merger.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Agreement to Retain Shares.
(a) Transfer and Encumbrance. Shareholder agrees, during the
period beginning on the date hereof and ending on the Expiration Date (as
defined below), not to transfer, sell, exchange, pledge or otherwise dispose of
or encumber (collectively, "Transfer") any of the Shares or any New Shares (as
defined in Section 1(b) hereof), or to discuss, negotiate, or make any offer or
agreement relating thereto, other than to or with Parent, in each case without
the prior written consent of Parent. Shareholder acknowledges that the intent of
the foregoing sentence is to ensure that Parent retains the right under the
Proxy (as defined in Section 4 hereof) to vote the Shares and any New Shares in
accordance with the terms of the Proxy. As used herein, the term "Expiration
Date" shall mean the termination of the Merger Agreement in accordance with its
terms.
(b) New Shares. Shareholder agrees that any shares of capital
stock of the Company that Shareholder purchases or with respect to which
Shareholder otherwise acquires
<PAGE> 17
beneficial ownership after the date of this Agreement and prior to the
Expiration Date, including, without limitation, shares issued or issuable upon
the conversion, exercise or exchange, as the case may be, of all securities held
by Shareholder which are convertible into, or exercisable or exchangeable for,
shares of capital stock of the Company ("New Shares"), shall be subject to the
terms and conditions of this Agreement to the same extent as if they constituted
Shares.
2. Agreement to Vote Shares. Until the Expiration Date, at every meeting
of shareholders of the Company called with respect to any of the following, and
at every adjournment or postponement thereof, and on every action or approval by
written consent of shareholders of the Company with respect to any of the
following, Shareholder shall vote, to the extent not voted by the person(s)
appointed under the Proxy (as defined in Section 3 hereof) the Shares and any
New Shares (to the extent any such New Shares may be voted):
(i)in favor of approval of the Merger, the execution and delivery
by the Company of the Merger Agreement and the adoption and approval of the
terms thereof and in favor of each of the other actions contemplated by the
Merger Agreement and the Proxy and any action required in furtherance thereof;
(ii) against approval of any proposal made in opposition to, or
in competition with, consummation of the Merger and the Merger Agreement;
(iii) against any of the following actions (other than those
actions that relate to the Merger and the transactions contemplated by the
Merger Agreement): (A) any merger, consolidation, business combination, sale of
assets, reorganization or recapitalization of the Company with any party; (B)
any sale, lease or transfer of any significant part of the assets of the
Company; (C) any reorganization, recapitalization, dissolution, liquidation or
winding up of the Company; (D) any material change in the capitalization of the
Company or the Company's corporate structure; or (E) any other action that is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement with such powers, rights and
obligations as are set forth in the Merger Agreement; and
(iv) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any sale of assets,
change of control, or acquisition of the Company by any other person, or any
consolidation or merger of the Company with or into any other person.
Prior to the Expiration Date, Shareholder shall not enter into any
agreement or understanding with any person to vote or give instructions in any
manner inconsistent with this Section 2.
3. Irrevocable Proxy. Subject to the terms hereof relating to the
Expiration Date, concurrently with the execution of this Agreement, Shareholder
hereby is delivering to Parent an irrevocable proxy in the form attached hereto
as Exhibit A (the "Proxy"), which is irrevocable to the fullest extent permitted
by applicable law, covering the total number of Shares and New Shares of capital
stock of the Company beneficially owned (as such term is defined in Rule 13d-3
under the Exchange Act) by Shareholder as set forth therein.
-2-
<PAGE> 18
4. Representations, Warranties and Covenants of Shareholder. Shareholder
represents, warrants and covenants to Parent as follows:
(i)Shareholder is the beneficial owner of the Shares, with full
power to vote or direct the voting of the Shares for and on behalf of all
beneficial owners of the Shares.
(ii) Except as set forth in any restricted stock purchase
agreement(s) by and between the Company and the Shareholder, copies of which
have been provided or made available to Parent, as of the date hereof the Shares
are, and at all times up until the Expiration Date the Shares will be, free and
clear of any rights of first refusal, co-sale rights, security interests, liens,
pledges, claims, options, charges or other encumbrances.
(iii) Shareholder does not beneficially own any shares of capital
stock of the Company other than the Shares.
(iv) Shareholder has full power and authority to make, enter into
and carry out the terms of this Agreement, the Proxy and that certain Company
Affiliate Agreement by and between the Shareholder and Parent on even date
herewith.
5. Additional Documents. Shareholder and the Company hereby covenant and
agree to execute and deliver any additional documents reasonably necessary or
desirable to carry out the purpose and intent of this Agreement and the Merger.
6. Consents and Waivers. Shareholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreement to which Shareholder is a party or pursuant to any rights
Shareholder may have.
7. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate if the Merger Agreement is terminated in accordance
with its terms.
8. Legending of Shares. If so requested by Parent, Shareholder agrees
that the Shares and any New Shares shall bear a legend stating that they are
subject to this Agreement and to an irrevocable proxy. Subject to the terms of
Section 1 hereof, Shareholder agrees that Shareholder will not Transfer the
Shares or any New Shares without first having the aforementioned legend affixed
to the certificates representing the Shares or any New Shares.
9. Miscellaneous.
(a) 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.
(b) Binding Effect and Assignment. This Agreement and all of the
provisions hereof 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
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<PAGE> 19
Agreement nor any of the rights, interests or obligations of the parties hereto
may be assigned by any of the parties without the prior written consent of the
other parties.
(c) Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
(d) Waiver. No waiver by any party hereto of any condition or of
any breach of any provision of this Agreement shall be effective unless in
writing.
(e) Specific Performance; Injunctive Relief. The parties
acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Shareholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
(f) 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 Parent, to: VA Linux Systems, Inc.
1382 Bordeaux Drive
Sunnyvale, California 94089
Attn: Chief Financial Officer
Telephone No.: (408) 542-8600
Facsimile No.: (408) 745-9152
With a copy to: Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
Attn: Bruce M. McNamara, Esq.
Telephone No.: (650) 493-9300
Facsimile No.: (650) 493-6811
If to Shareholder: To the address for notice set forth on the
signature page hereof.
With a copy to: Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
Attn: David P. Kreisler, Esq.
Telephone No.: (617) 951-6600
Facsimile No.: (617) 951-1295
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<PAGE> 20
(g) Governing Law. This Agreement shall be governed by, construed
and enforced in accordance with the laws of the State of Delaware, without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
(h) Attorneys' Fees and Expenses. If any action or other
proceeding relating to the enforcement of any provision of this Agreement is
brought by either party, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements (in addition to any other
relief to which the prevailing party may be entitled).
(i) Entire Agreement. This Agreement and the 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.
(j) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(k) Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
[Remainder of Page Intentionally Left Blank]
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<PAGE> 21
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
VA LINUX SYSTEMS, INC. SHAREHOLDER:
By:
----------------------- ------------------------------------
Name: Larry M. Augustin Signature
Title: President and Chief Executive
Officer
------------------------------------
Print Name
ANDOVER.NET, INC. ------------------------------------
------------------------------------
By: Address
-----------------------
Name: Bruce Twickler
Title: President and Chief Executive
Officer
Company Capital Stock:
Common Stock:
-----------------------
Company Options:
--------------------
[SIGNATURE PAGE TO VOTING AGREEMENT]
<PAGE> 22
EXHIBIT A
IRREVOCABLE PROXY
The undersigned shareholder (the "Shareholder") of Atlanta, Inc., a
Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent
permitted by law) appoints Larry Augustin and Todd Schull, each officers of VA
Linux Systems, Inc., a Delaware corporation ("Parent"), and each of them, as the
sole and exclusive attorneys 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 the Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares"), in accordance with the terms
of this Proxy. The Shares beneficially owned by the undersigned shareholder of
the Company as of the date of this Proxy are listed on the final page of this
Proxy, along with the number(s) of the share certificate(s) which represent such
Shares. Upon the undersigned's execution of this Proxy, any and all prior
proxies given by each 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 (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement dated as of February 2, 2000 by and among Parent, the Company and the
Shareholder (the "Voting Agreement"), and is granted in consideration of Parent
entering into that certain Agreement and Plan of Reorganization dated as of
February 2, 2000 (the "Merger Agreement"), by and among Parent, Atlanta
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of
Parent ("Sub") and the Company. The Merger Agreement provides for the merger of
Sub with and into the Company in accordance with its terms (the "Merger") and
Shareholder is receiving a portion of the proceeds of the Merger. As used in
this Irrevocable Proxy, the term "Expiration Date" shall mean the earlier to
occur of (i) such date and time as the Merger shall become effective in
accordance with the terms and provisions of the Merger Agreement, or (ii) the
termination of the Merger Agreement in accordance with its terms.
The attorneys 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 and proxy 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, adjourned or postponed meeting of
shareholders of the Company and in every written consent in lieu of such
meeting:
(i) in favor of approval of the Merger, the execution and delivery by the
Company of the Merger Agreement and the adoption and approval of the terms
thereof and in favor of each of the other actions contemplated by the Merger
Agreement and any action required in furtherance thereof;
<PAGE> 23
(ii) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the Merger Agreement;
(iii) against any of the following actions (other than those actions that
relate to the Merger and the transactions contemplated by the Merger Agreement):
(A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company with any party, (B) any sale,
lease or transfer of any significant part of the assets of the Company, (C) any
reorganization, recapitalization, dissolution, liquidation or winding up of the
Company, (D) any material change in the capitalization of the Company or the
Company's corporate structure, or (E) any other action that is intended, or
could reasonably be expected to, impede, interfere with, delay, postpone,
discourage or adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement;
(iv) in favor of waiving any notice that may have been or may be required
relating to any reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any sale of assets,
change of control, or acquisition of the Company by any other person, or any
consolidation or merger of the Company with or into any other person.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided in clauses (i), (ii), (iii) or (iv) above. The
Shareholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
[remainder of page intentionally left blank; signature page
follows immediately hereafter]
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<PAGE> 24
This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date (as defined in the Voting Agreement).
Dated: February __, 2000
------------------------------------
Signature
------------------------------------
Print Name
------------------------------------
------------------------------------
Address
Company Capital Stock:
Common Stock:
-----------------------
Company Options:
--------------------
[SIGNATURE PAGE TO PROXY]
