1
EXHIBIT 99.5
------------
AMENDED AND RESTATED
STOCKHOLDER SUPPORT AGREEMENT
(VMARK Affiliates)
AMENDED AND RESTATED STOCKHOLDER SUPPORT AGREEMENT, dated
as of October 31, 1997, between the undersigned holders (collectively, the
"Holders") of shares of the common stock, $.01 par value ("VMARK Common Stock"),
of VMARK Software, Inc., a Delaware corporation ("VMARK"), and Unidata, Inc., a
Colorado corporation ("UNIDATA").
RECITALS
A. VMARK and UNIDATA are parties to an Agreement and Plan of
Merger and Reorganization dated as of October 7, 1997 (the "Merger Agreement,"
capitalized terms not otherwise defined herein being used herein as therein
defined), pursuant to which UNIDATA will be merged with and into VMARK (the
"Merger");
B. Each Holder, individually or as trustee or custodian, is
the owner of the number of shares of VMARK Common Stock set forth next to such
Holder's name on SCHEDULE 1 to this Agreement (with respect to each Holder, the
"Shares") and is an executive officer and/or director of VMARK;
C. Each Holder has been advised that, as of the date hereof,
such Holder may be an "affiliate" of VMARK, as that term is defined for purposes
of paragraphs (c) and (d) of Rule 145 of the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended (the "Act");
D. VMARK, UNIDATA and the Holders wish to ensure that the
Merger is accounted for as a pooling of interests and constitutes, for federal
tax purposes, a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code, as amended;
E. UNIDATA has requested the Holders to agree, and the Holders
have agreed, to vote the Shares upon the terms and subject to the conditions
specified herein and to agree to such other restrictions and conditions set
forth herein; and
F. UNIDATA and the Holders hereby amend and restate in its
entirety the Stockholder Support Agreement among them dated as of October 7,
1997.
AGREEMENT
2
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which is acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO VOTE SHARES. Until the consummation of the Merger
or the termination of the Merger Agreement in accordance with its terms, at
every meeting of the stockholders of VMARK called with respect thereto, and at
every adjournment thereof, and on every action or approval by written consent of
the stockholders of VMARK with respect thereto, each Holder shall vote the
Shares in favor of approval of the Merger Agreement and the Merger and any
matter that could reasonably be expected to facilitate the Merger and each
Holder shall use his or her reasonable efforts to cause the stockholders of
VMARK to approve the Merger.
2. REPRESENTATIONS AND WARRANTIES OF HOLDER. Each Holder hereby
represents and warrants to UNIDATA that:
2.1 This Agreement has been duly executed and delivered by such
Holder, and is the legal, valid and binding obligation of such Holder.
2.2 No consent of any court, governmental authority, beneficiary,
co-trustee or other person is necessary for the execution, delivery and
performance of this Agreement by such Holder.
2.3 The Shares of such Holder have been duly authorized and
validly issued, and are fully paid and nonassessable. Except for pledges of the
Shares on margin, the Shares are owned by such Holder free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind, other than this Agreement.
2.4 Such Holder does not now, and will not at the time of the
Merger, have any intention, directly or indirectly, to (a) sell, assign,
transfer (including by merger, testamentary disposition, interspousal
disposition pursuant to a domestic relations proceeding or otherwise by
operation of law), pledge, encumber or otherwise dispose of any of the Shares,
(b) deposit any of the Shares into a voting trust or enter into a voting
agreement or arrangement with respect to the Shares or grant any proxy or power
of attorney with respect thereto which is inconsistent with this Agreement or
(c) enter into any contract, option or other arrangement or undertaking with
respect to the direct or indirect sale, assignment, transfer (including by
merger, testamentary disposition, interspousal disposition pursuant to a
domestic relations proceeding or otherwise by operation of law) or other
disposition of the Shares.
3. COVENANTS OF THE HOLDERS. Each Holder hereby agrees and
covenants that:
3.1 Until the consummation of the Merger or the termination of the
Merger Agreement in accordance with its terms, subject to the applicable
fiduciary duties of a director of VMARK, as determined by such director in good
faith after consultation with and
2
3
based upon the advice of legal counsel, he will not, and will not permit any
entity under his control, to: (i) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the Exchange
Act) with respect to an Alternative Transaction or otherwise encourage or assist
any party in taking or planning any action that would compete with, restrain or
otherwise serve to interfere with or inhibit the timely consummation of the
Merger in accordance with the terms of the Merger Agreement; (ii) initiate a
stockholders' vote or action by written consent of VMARK's stockholders with
respect to an Alternative Transaction; or (iii) become a member of a "group" (as
such term is used in Section 13d of the Exchange Act) with respect to any voting
securities of VMARK with respect to an Alternative Transaction.
3.2 Any shares of VMARK Common Stock that such Holder purchases or
with respect to which such Holder otherwise acquires beneficial ownership after
the date of this Agreement shall be considered "Shares" and subject to each of
the terms and conditions of this Agreement.
3.3 Such Holder shall not sell, transfer or otherwise dispose of,
or reduce the Holder's interest in or risk relating to, the Shares during the
period commencing thirty (30) days prior to the consummation of the Merger and
ending at such time as financial results covering at least thirty (30) days of
the combined operations of UNIDATA and VMARK have been published (within the
meaning of Accounting Series Release 130, as amended, of the SEC).
4. ASSIGNMENT PROHIBITED. This Agreement shall not be assignable
by any party hereto without the prior written consent of the other parties. This
Agreement shall be binding upon and enforceable against administrators,
executors, representatives, heirs, legatees, devisees, permitted successors and
assigns of each Holder and any pledgee holding the Shares as collateral.
5. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given (and shall be deemed
to have been duly received if so given) if personally delivered or sent by
facsimile, or registered or certified mail, postage prepaid, addressed to the
respective parties as follows:
If to a Holder, to the Holder at the address appearing on the signature
page beneath such Holder's name, with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇, Hall & ▇▇▇▇▇▇▇
Exchange Place, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to UNIDATA:
3
4
Unidata, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary and General Counsel
With a copy to:
▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith, except that notices of changes of address shall
be effective only upon receipt.
6. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
7. INDEMNIFICATION. Each Holder shall indemnify UNIDATA against
any loss, damage or expense UNIDATA may incur as a result of any breach by such
Holder of the foregoing representations, warranty and agreements contained
herein.
8. AMENDMENT; ENTIRE AGREEMENT. This Agreement may not be
amended, except by an instrument in writing signed on behalf of each of the
parties hereto. This Agreement is the entire agreement among the parties and
supersedes any prior agreements with respect to the subject matter hereof.
9. GOVERNING LAW/CONSENT TO JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware.
Each Holder hereby irrevocable submits to the jurisdiction of any Delaware state
or federal court sitting in the City of Wilmington, Delaware, in any action or
proceeding arising out of or related to this Agreement, and hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such state or federal court. Each Holder hereby irrevocably
consents to the service of process which may be served in any such action or
proceeding by certified mail, return receipt requested, by delivering a copy of
such process
4
5
to such Holder at his or her address specified on the signature page hereof or
by any other method permitted by law.
10. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
* * * * * *
5
6
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDER SUPPORT AGREEMENT - VMARK AFFILIATES]
IN WITNESS WHEREOF, this Agreement has been executed by each of the
parties hereto individually, by its duly authorized officer or in its capacity
as a duly authorized trustee or custodian, all as of the date first above
written.
UNIDATA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: President
THE HOLDERS
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------- ----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------- ----------------------------------------
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ----------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- ----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇
---------------------------------- ----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ----------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
6
7
SCHEDULE 1
HOLDER NUMBER OF SHARES
------ ----------------
▇▇▇▇▇ ▇▇▇▇▇▇ 3,823
▇▇▇▇▇ ▇▇▇ 10,984
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0
▇▇▇▇▇ ▇▇▇▇▇ 58,116
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 104,926
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 0
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 54,991
▇▇▇▇▇ ▇▇▇▇▇ 646
▇▇▇▇▇▇▇ ▇▇▇▇ 2,357
▇▇▇▇▇ ▇▇▇▇▇▇ 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 195,176
▇▇▇▇▇ ▇▇▇ 19,500
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 56,200
7
