1
EXHIBIT 99.3
------------
AMENDED AND RESTATED
STOCKHOLDER SUPPORT AGREEMENT
(UNIDATA Affiliates)
AMENDED AND RESTATED STOCKHOLDER SUPPORT AGREEMENT, dated as of October
31, 1997, between the undersigned holders (collectively, the "Holders") of
shares of the Class A common stock, no par value, and Class B common stock, no
par value (collectively, "UNIDATA Common Stock"), of Unidata, Inc., a Colorado
corporation ("UNIDATA") and VMARK Software, Inc., a Delaware corporation
("VMARK").
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"), and each outstanding share of UNIDATA Common Stock will be converted
into the right to receive shares of the common stock, $.01 par value, of VMARK
(the "VMARK Common Stock");
B. Each Holder, individually or as trustee or custodian, is
the owner of the number of shares of UNIDATA Common Stock set forth next to such
Holder's name on SCHEDULE 1 to this Agreement (with respect to each Holder, the
"UNIDATA Shares") and is an executive officer, director and/or significant
stockholder of UNIDATA;
C. Pursuant to the Merger, each Holder will receive shares of
VMARK Common Stock (such shares, together with any securities which may be paid
as a dividend or otherwise issued or delivered in exchange or substitution
therefor, hereinafter collectively referred to as the "VMARK Shares") in
exchange for the UNIDATA Shares owned by such Holder in accordance with Article
I of the Merger Agreement.
D. Each Holder has been advised that, as of the date hereof,
such Holder may be an "affiliate" of UNIDATA, 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");
E. 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;
2
F. VMARK has requested the Holders to agree, and the Holders
have agreed, to vote the UNIDATA Shares upon the terms and subject to the
conditions specified herein and to agree to such other restrictions and
conditions set forth herein; and
G. VMARK and the Holders hereby amend and restate in its
entirety the Stockholder Support Agreement among them dated as of October 7,
1997.
AGREEMENT
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which is acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO VOTE UNIDATA 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 UNIDATA called with respect
thereto, and at every adjournment thereof, and on every action or approval by
written consent of the stockholders of UNIDATA with respect thereto, each Holder
shall vote the UNIDATA 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 UNIDATA to approve the Merger.
2. REPRESENTATIONS AND WARRANTIES OF HOLDER. Each Holder hereby
represents and warrants to VMARK 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 UNIDATA Shares of such Holder have been duly authorized
and validly issued, and are fully paid and nonassessable. The UNIDATA 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. The Holder has been advised that the issuance of the VMARK
Shares to the Holder pursuant to the Merger will be registered with the SEC on a
registration statement on Form S-4. However, the Holder has also been advised
that, since the Holder may be an "affiliate" of UNIDATA at the time the Merger
is submitted for a vote of the shareholders of UNIDATA and the distribution by
the Holder of the VMARK Shares will not be registered under the Act, Rule 145(d)
under the Act will restrict the Holder's sales of VMARK Shares received in the
Merger.
2.5 The Holder understands that the Merger is intended to qualify
as a generally tax-free reorganization for federal income tax purposes and that
such a reorganization
2
3
requires that UNIDATA shareholders maintain a substantial and meaningful
continuing equity ownership interest in VMARK after the Merger. The Holder does
not now, and will not at the time of the Merger, have any plan or intent to
engage in a sale, exchange, transfer, pledge, disposition or any other
transaction which results in a reduction in the risk of ownership (any such
transaction, a "Sale") with respect to any of the VMARK Shares to be received by
the Holder in the Merger, other than any fractional VMARK Shares for which the
Holder will receive cash pursuant to the Merger Agreement. The Holder is neither
aware of nor participating in currently, and will not at the time of the Merger
be aware of or participating in, any written or oral plan pursuant to which the
holders of UNIDATA Shares intend to engage in Sales of VMARK Shares to be
received in the Merger, other than fractional VMARK Shares for which such
holders will receive cash pursuant to the Merger Agreement.
2.6 The Holder has carefully read this Agreement and the Merger
Agreement and has discussed the requirements of each and the limitations upon
the disposition of the VMARK Shares received by the Holder, to the extent
considered necessary, with counsel for the Holder or with counsel for UNIDATA.
2.7 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 UNIDATA
Shares, (b) deposit any of the UNIDATA Shares into a voting trust or enter into
a voting agreement or arrangement with respect to the UNIDATA 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 UNIDATA Shares.
3. COVENANTS OF THE HOLDERS. Each Holder hereby acknowledges,
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 UNIDATA, as determined by such director in
good faith after consultation with and 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 UNIDATA's stockholders with respect to an Alternative Transaction; or
(iii) become a member of a "group" (as such term
3
4
is used in Section 13d of the Exchange Act) with respect to any voting
securities of UNIDATA with respect to an Alternative Transaction.
3.2 Any shares of UNIDATA 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 "UNIDATA Shares" and
subject to each of the terms and conditions of this Agreement.
3.3 The Holder shall not sell, transfer or otherwise dispose of,
or reduce the Holder's interest in or risk relating to, any UNIDATA Shares that
the Holder owns beneficially during the thirty (30) day period immediately
preceding consummation of the Merger and the Holder shall not sell, transfer or
otherwise dispose of, or reduce the Holder's interest in or risk relating to,
any VMARK Shares issued to the Holder pursuant to the Merger, or any VMARK
securities issued to the Holder upon exercise of any stock options until
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).
3.4 The Holder shall not make any sale, transfer or other
disposition of the VMARK Shares in violation of the Act or the rules and
regulations of the SEC thereunder.
3.5 The Holder will not sell or otherwise dispose of any VMARK
Shares, except pursuant to Rule 145(d) or an effective registration statement or
exemption under the Act (provided that the Holder may make bona fide gifts or
distributions without consideration so long as the recipients thereof agree not
to sell, transfer or otherwise dispose of VMARK Shares except as provided
herein).
3.6 Except pursuant to specific written agreements with a Holder,
VMARK is under no further obligation to register the sale, transfer or other
disposition of the VMARK Shares to be received by the Holder or to take any
action necessary in order to make an exemption from registration available.
3.7 Stop transfer instructions will be given to the transfer agent
of VMARK with respect to the VMARK Shares the Holder will receive, and there
will be placed on the certificates representing such stock, or any certificates
delivered in substitution therefor, a legend stating in substance:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 UNDER THE SECURITIES ACT OF 1933 (THE
"ACT") APPLIES. THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY ONLY
BE TRANSFERRED IN ACCORDANCE WITH RULE 145(D) OR AN EFFECTIVE
REGISTRATION STATEMENT OR EXEMPTION UNDER THE ACT."
4
5
If the Holder requests that VMARK remove such legend and such request
is accompanied by an opinion from counsel satisfactory to VMARK to the effect
that such legend is no longer applicable under federal and state securities
laws, VMARK will cause such stock certificate to be issued without such legend.
3.8 Unless the transfer by the Holder of his or its VMARK Shares
is a sale made in conformity with the provisions of Rule 145(d), or made
pursuant to a registration under the Act, VMARK reserves the right to put an
appropriate legend on the certificates issued to the Holder's transferee.
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 UNIDATA Share or the VMARK
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:
5
6
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxx, Esq.
If to VMARK:
VMARK Software, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Chief Financial Officer
With a copy to:
Xxxxxx, Xxxx & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, 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 VMARK against any loss,
damage or expense VMARK 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
6
7
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
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.
* * * * * *
7
8
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDER SUPPORT AGREEMENT - UNIDATA 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.
VMARK SOFTWARE, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxx
Executive Vice President,
Finance, Chief Financial Officer
and Treasurer
GLENANGUS HOLDINGS CORP.
/s/ Xxxxx X. Xxxxxxx
----------------------------------
Its: President
Attested to:
/s/ Xxxxxx Xxxxxxxxxx
----------------------------------
Its: Secretary
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx, Xx.
---------------------------------- ----------------------------------------
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
---------------------------------- ----------------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxxxx III
---------------------------------- ----------------------------------------
Xxxxxxxx X. Xxxxx Xxxxx X. Xxxxxxx III
Trustee of the Xxxxx Xxxxxxx
Irrevocable Trust
8
9
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxxx
---------------------------------- ----------------------------------------
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
Trustee of the Xxxxxx Xxxxxxx Trustee of the Xxxxxx Xxxxxxx
Irrevocable Trust Irrevocable Trust
/s/ Xxxxx Xxxxxx /s/ Xxxxxx X. Xxxx
---------------------------------- ----------------------------------------
Xxxxx Xxxxxx Xxxxxx X. Xxxx
/s/ Xxxx Xxxxx /S/ Xxxx Xxxxxxxx
---------------------------------- ----------------------------------------
Xxxx Xxxxx Xxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxxxx /s/ Xxxx X. Xxxxx
---------------------------------- ----------------------------------------
Xxxxxx Xxxxxxxxxx Xxxx X. Xxxxx
9
10
SCHEDULE 1
SHAREHOLDER NUMBER OF SHARES
----------- ----------------
Xxxxx, Xxxx 89,000
Xxxxxx, Xxxxx 674,500
Xxxxxxx, Xxxxxx X. 670,000
Xxxxxxx, Xxxxxxx X. 670,000
Xxxxxxx, Xxxxx X. 2,520,000
Xxxxxxx, Xxxxx X. Xx. 655,000
Xxxxxxx, Xxxxxx 5,000
Xxxxxxx, Xxxxxx 5,000
Glenangus Holdings Corp. 4,000,000
Xxxx, Xxxxxx X. 100,000
Xxxxx, Xxxxxxxx X. 670,000
Xxxxxxxxxx, Xxxxxx 75,000
Xxxxx, Xxxx 50,000
Xxxxxxxx, Xxxx 100,000
10
