STOCKHOLDER AGREEMENT dated as of September 12, 1997, among
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York
corporation ("Parent"), and the individuals and other parties
listed on Schedule A attached hereto (each, a "Stockholder" and,
collectively, the "Stockholders").
WHEREAS, Parent, New Orchard Corp., a Delaware corporation and a
wholly owned subsidiary of Parent ("Sub"), and Unison Software, Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented,
the "Merger Agreement"; capitalized terms used but not defined herein shall have
the meanings set forth in the Merger Agreement) providing for the merger of the
Company with and into Sub (the "Merger"), upon the terms and subject to the
conditions set forth in the Merger Agreement; and
WHEREAS, as of the date hereof each Stockholder owns the number of
shares of common stock, par value $.001 per share, of the Company ("Company
Common Stock") set forth opposite his or its name on Schedule A attached hereto
(such shares of Company Common Stock, together with any other shares of capital
stock of the Company acquired by such Stockholder after the date hereof and
during the term of this Agreement (including through the exercise of any stock
options, warrants or similar instruments), being collectively referred to herein
as the "Subject Shares"); and
WHEREAS, as a condition and inducement to its willingness to enter
into the Merger Agreement, Parent has requested that each Stockholder enter into
this Agreement;
NOW, THEREFORE, to induce Parent to enter into, and in consideration
of its entering into, the Merger Agreement, and in consideration of the
representations, warranties, covenants and agreements contained in this
Agreement, the parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER. Each
Stockholder hereby, severally and not jointly, represents and warrants to Parent
as of the date hereof in respect of himself or itself as follows:
(a) AUTHORITY. The Stockholder has all requisite power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
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This Agreement has been duly authorized, executed and delivered by the
Stockholder and constitutes a valid and binding obligation of the Stockholder
enforceable against the Stockholder in accordance with its terms. The
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated by this Agreement and compliance with the
provisions of this Agreement will not, (i) conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, any provision of any trust agreement, loan or credit agreement, bond,
debenture, note, mortgage, indenture, lease or other contract, commitment,
agreement, arrangement, obligation, undertaking, understanding, instrument,
permit, concession, franchise, license, statute, law, ordinance, rule,
regulation, judgment, order, notice or decree, applicable to the Stockholder
or to the Stockholder's property or assets, (ii) require any registration,
declaration or filing with, or consent, approval, order or authorization of,
any Federal, state or local, domestic or foreign, government or any court,
administrative agency or commission or other governmental or regulatory
authority or agency, domestic or foreign or (iii) violate any judgment,
order, writ, injunction, decree, statute, law, ordinance, rule or regulation
applicable to the Stockholder or any of the Stockholder's properties or
assets, including the Stockholder's Subject Shares. If the Stockholder is a
natural person and is married, and the Stockholder's Subject Shares
constitute community property or otherwise need special or other approval for
this Agreement to be legal, valid and binding, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Stockholder's spouse or the person giving such approval,
enforceable against such spouse or person in accordance with its terms. No
trust of which such Stockholder is a trustee requires the consent of any
beneficiary to the execution and delivery of this Agreement or to the
consummation of the transactions contemplated hereby. The Stockholder,
together with the other Stockholders, constitutes all the trustees of any
trust of which such Stockholder is a trustee, and such trustees have all
requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby on behalf of such trust.
(b) THE SUBJECT SHARES. The Stockholder is the record and
beneficial owner of, or is trustee of a trust that is the record holder of, and
whose beneficiaries are the beneficial owners of, and has good and marketable
title to, the Subject Shares set forth opposite his or its name on Schedule A
attached hereto. As of the date hereof, the Stockholder does not own, of record
or beneficially, any
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shares of capital stock of the Company other than the Subject Shares set
forth opposite his or its name on Schedule A attached hereto.
(c) ENCUMBRANCES. The Stockholder's Subject Shares and the
certificates representing such Shares are now, and at all times during the term
hereof will be, held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all pledges, claims, liens,
security interests, proxies, voting trusts or agreements, arrangements or
understandings or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder or under the existing terms of a trust
of which such Stockholder is the trustee.
2. REPRESENTATIONS AND WARRANTIES OF PARENT. Parent hereby
represents and warrants to each Stockholder that Parent has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by Parent and constitutes a valid and binding
obligation of Parent enforceable against Parent in accordance with its terms.
The execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated by this Agreement and compliance with the provisions
of this Agreement will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under, any provision
of the Certificate of Incorporation or By-laws of Parent, any trust agreement,
loan or credit agreement, bond, debenture, note, mortgage, indenture, lease or
other contract, commitment, agreement, arrangement, obligation, understanding,
instrument, permit, concession, franchise, license, statute, law, ordinance,
rule, regulation, judgment, order, notice or decree applicable to Parent or to
Parent's property or assets.
3. COVENANTS OF EACH STOCKHOLDER. Until the termination of this
Agreement in accordance with Section 8, each Stockholder, severally and not
jointly, agrees as follows:
(a) Without in any way limiting the Stockholder's right to vote the
Subject Shares in its sole discretion on any other matters that may be submitted
to a stockholder vote, consent or other approval (including by written consent),
at any meeting of stockholders of the Company called to vote upon the Merger and
the Merger Agreement or at any adjournment thereof or in any other circumstances
upon which a vote, consent or other approval (including by written consent) with
respect to the Merger and the Merger
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Agreement is sought, the Stockholder shall, including by initiating a written
consent solicitation if requested by Parent, vote (or cause to be voted) such
Stockholder's Subject Shares (and each class thereof) in favor of the Merger,
the adoption by the Company of the Merger Agreement and the approval of the
other transactions contemplated by the Merger Agreement.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought, such Stockholder shall vote (or cause
to be voted) such Stockholder's Subject Shares against (i) any merger agreement
or merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company or any other Company
Acquisition (collectively, "Alternative Transactions") or (ii) any amendment of
the Company's Certificate of Incorporation or Bylaws or other proposal or
transaction involving the Company or any of its subsidiaries, which amendment or
other proposal or transaction would in any manner impede, frustrate, prevent or
nullify the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement (collectively, "Frustrating Transactions").
(c) Such Stockholder shall not (i) transfer (which term shall include,
without limitation, for the purposes of this Agreement, any sale, gift, pledge
or other disposition), or consent to any transfer of, any or all of such
Stockholder's Subject Shares or any interest therein, except pursuant to the
Merger, (ii) enter into any contract, option or other agreement, arrangement or
understanding with respect to any or all of such Subject Shares or any interest
therein, (iii) grant any proxy, power-of-attorney or other authorization in or
with respect to such Subject Shares, except for this Agreement or (iv) deposit
such Shares into a voting trust or enter into a voting agreement or arrangement
with respect to such Shares; PROVIDED, HOWEVER, that any such Stockholder may
transfer (as defined above) any of the Subject Shares to any other Stockholder
who is on the date hereof, or to any family member of a Stockholder or
beneficiary of a trust for which Stockholder is trustee or charitable
institution which prior to the Stockholders Meeting and prior to such transfer
becomes, a party to this Agreement bound by all the obligations of a
"Stockholder" hereunder.
(d) Such Stockholder hereby waives any rights of appraisal, or rights
to dissent from the Merger, that such 5
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Stockholder may have and hereby irrevocably agrees to make a Stock Election with
respect to at least 85% of such Stockholder's Subject Shares.
(e) During the term of this Agreement, the Stockholder shall not, nor
shall it authorize or permit any officer, director, partner, employee or agent
or any investment banker, attorney or other advisor or representative of the
Stockholder to, directly or indirectly, (i) solicit, initiate or encourage the
submission of any Takeover Proposal or (ii) participate in any discussions or
negotiations regarding, or furnish to any person any information with respect
to, or take any other action to facilitate any inquiries or the making of any
proposal that constitutes or may reasonably be expected to lead to, any Takeover
Proposal. The foregoing sentence shall not prohibit the Stockholder from taking
any action that would be permitted under Section 4.02 of the Merger Agreement
and in no event shall the Stockholder be liable for any action taken by the
Company or the Stockholder in compliance with, or that would be permitted under,
Section 4.02 of the Merger Agreement; PROVIDED, HOWEVER that this sentence shall
not limit the obligations of the Stockholder under Sections 3(a), 3(b) and 3(j)
and 4 hereof.
(f) Until after the Merger is consummated or the Merger Agreement is
terminated, the Stockholder shall use all reasonable efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditions manner
practicable, the Merger and the other transactions contemplated by the Merger
Agreement. The foregoing sentence shall not prohibit the Stockholder from
taking any action that would be permitted under Section 4.02 of the Merger
Agreement and in no event shall the Stockholder be liable for any action taken
by the Company or the Stockholder in compliance with, or that would be permitted
under, Section 4.02 of the Merger Agreement; PROVIDED, HOWEVER that this
sentence shall not limit the obligations of the Stockholder under Sections 3(a),
3(b) and 3(j) and 4 hereof.
(g) If, at the time the Merger Agreement is submitted for approval to
the stockholders of the Company, a Stockholder is an "affiliate" of the Company
for purposes of Rule 145 under the Securities Act, such Stockholder shall
deliver to Parent on or prior to the Closing Date a written agreement
substantially in the form attached as Exhibit A to the Merger Agreement.
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(h) The Stockholder, and any beneficiary of a revocable trust for
which such Stockholder serves as trustee, shall not take any action to revoke,
terminate or amend such trust or take any other action which would restrict,
limit or frustrate in any way the transactions contemplated by this Agreement,
including withdrawing any Subject Shares from such trust or replacing any
trustees of such trust. The Stockholder, on behalf of each such beneficiary,
hereby acknowledges and agrees to be bound by the terms of this Agreement
applicable to it.
(i) Each Stockholder shall cause this Agreement to be filed with the
Secretary of the Company.
(j) (i) In the event that the Merger Agreement shall have been
terminated under circumstances where Parent is or may become entitled to receive
the Termination Fee, each Stockholder shall pay to Parent on demand an amount
equal to all profit (determined in accordance with Section 3(j)(ii)) of such
Stockholder from the consummation of (A) any Company Acquisition consummated
within 12 months following the termination of the Merger Agreement pursuant to
Section 7.01(b)(iv) thereof or (B) any Company Acquisition that results in the
Company being obligated to pay the Termination Fee in accordance with the Merger
Agreement.
(ii) For purposes of this Section 3(j), the profit of any Stockholder
from any Company Acquisition shall equal (A) the aggregate consideration
received by such Stockholder pursuant to such Company Acquisition, valuing any
non-cash consideration (including any residual interest in the Company) at its
fair market value on the date of such consummation plus (B) the fair market
value, on the date of disposition, of all Subject Shares of such Stockholder
disposed of after the termination of the Merger Agreement and prior to the date
of such consummation less (C) the fair market value of the aggregate
consideration that would have been issuable or payable to such Stockholder if
such Stockholder had received the Merger Consideration set forth in the Merger
Agreement in effect on the date hereof (the "Original Merger Consideration"),
valued as of the close of business on the last full trading day prior to the
first public announcement by the Company of its intention to terminate the
Merger Agreement as if the Merger had been consummated on the date of such
public announcement. In addition, it is agreed that for purposes of this
Section 3(j), the profit of any Stockholder from any Company Acquisition shall
be net of any taxes paid or payable by Stockholder in respect of or otherwise
attributable to such profit (after taking into account the present value of any
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tax benefits in respect of or otherwise attributable to any payment of such
profit pursuant to Section 3(j)(i)); it being understood that any such
Stockholder shall deliver to Parent a written opinion of a nationally recognized
accounting firm as to the amount of any such net tax adjustments at the time of
the payment of any profits pursuant to Section 3(j)(i).
(iii) For purposes of this Section 3(j), the fair market value of any
non-cash consideration consisting of:
(A) securities listed on a national securities exchange or traded on
the Nasdaq Stock Market shall be equal to the average closing
price per share of such security as reported on such exchange or
Nasdaq Stock Market for the five trading days before the date of
determination; and
(B) consideration that is other than cash or securities of the form
specified in clause (A) of this Section 3(j)(iii) shall be
determined by a nationally recognized independent investment
banking firm mutually agreed upon by Parent and the Stockholders
within 10 business days of the event requiring selection of such
banking firm; PROVIDED, HOWEVER, that if Parent and the
Stockholders are unable to agree within two business days after
the date of such event as to the investment banking firm, then
Parent and the Stockholders shall each select one firm, and those
firms shall select a third investment banking firm, which third
firm shall make such determination; PROVIDED FURTHER, that the
fees and expenses of such investment banking firm shall be borne
equally by Parent, on the one hand, and the Stockholders, on the
other hand. The determination of the investment banking firm
shall be binding upon the parties.
(iv) Any payment of profit under this Section 3(j) shall be paid in
the same form as the consideration received from the Company Acquisition or
disposition (and, if the consideration received from the Company Acquisition or
disposition was received in more than one form, in the same proportion as the
forms of consideration received) and (x) to the extent paid in cash, shall be
paid by wire transfer of same day funds to an account designated by Parent and
(y) to the extent paid through a transfer of
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securities, shall be paid through delivery of such securities, suitably
endorsed for transfer.
4. GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY. (a) Without
in any way limiting the Stockholder's right to vote the Subject Shares in its
sole discretion on any other matters that may be submitted to a stockholder
vote, consent or other approval (including by written consent), each Stockholder
hereby irrevocably grants to, and appoints, Parent and Xxx Xxxxxx and Xxxxxx
Xxxxxxx, in their respective capacities as designees of Parent, and any
individual who shall hereafter succeed to any such office of Parent, and each of
them individually, such Stockholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of such
Stockholder, to vote such Stockholder's Subject Shares, or grant a consent or
approval in respect of such Subject Shares, (i) in favor of the Merger, the
adoption by the Company of the Merger Agreement and the approval of the other
transactions contemplated by the Merger Agreement, and (ii) against any
Alternative Transaction or Frustrating Transaction. The proxy set forth in this
Section 4 shall terminate upon the termination of this Agreement.
(b) Such Stockholder represents that any proxies heretofore given in
respect of such Stockholder's Subject Shares are not irrevocable, and that all
such proxies are hereby revoked.
(c) Such Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 4 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of the Stockholder under this Agreement. Such Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked. Such Stockholder hereby ratifies and
confirms all that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212(e) of the DGCL.
5. FURTHER ASSURANCES. Each Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments and take such other actions as
Parent may reasonably request for the purposes of effectively carrying out the
transactions contemplated by this Agreement.
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6. CERTAIN EVENTS. (a) Each Stockholder agrees that this Agreement
and the obligations hereunder shall attach to such Stockholder's Subject Shares
and shall be binding upon any person or entity to which legal or beneficial
ownership of such Subject Shares shall pass, whether by operation of law or
otherwise, including such Stockholder's heirs, guardians, administrators or
successors. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of the
Company affecting the Company Common Stock, or the acquisition of additional
shares of Company Common Stock or other voting securities of the Company by any
Stockholder, the number of Subject Shares listed in Schedule A beside the name
of such Stockholder shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of Company Common
Stock or other voting securities of the Company issued to or acquired by such
Stockholder.
(b) Each Stockholder agrees that such Stockholder will tender to the
Company, within 10 business days after the date hereof (or, in the event Subject
Shares are acquired subsequent to the date hereof within 10 business days after
the date of such acquisition), any and all certificates representing such
Stockholder's Subject Shares in order that the Company may inscribe upon such
certificates the legend in accordance with Section 5.12 of the Merger Agreement.
7. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned, in whole or in part, by
operation of law or otherwise, by any Stockholder, on the one hand, without the
prior written consent of Parent nor by Parent, on the other hand, without the
prior written consent of the Stockholders, except that Parent may assign, in its
sole discretion, any or all of its rights, interests and obligations hereunder
to any direct or indirect wholly owned subsidiary of Parent. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and assigns.
8. TERMINATION. This Agreement shall terminate, and the provisions
hereof shall be of no further force or effect, upon the earliest to occur of
(v) March 15, 1999, (w) the Effective Time, (x) the termination of the Merger
Agreement pursuant to Section 7.01(a), Section 7.01(b)(ii) or Section 7.01(d),
(y) the termination of the Merger Agreement pursuant to Section 7.01(b)(i) or
Section 7.01(b)(iii) unless in either case a Takeover Proposal shall have been
publicly announced or otherwise publicly disclosed
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and not publicly withdrawn prior to such termination or (z) one year after
the date the Merger Agreement is otherwise terminated in accordance with its
terms. Notwithstanding the foregoing, Section 3(j) and the last sentence of
Section 4(a) shall survive the termination of this Agreement.
9. GENERAL PROVISIONS.
(a) AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) NOTICE. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery)
to Parent in accordance with Section 8.02 of the Merger Agreement and to the
Stockholders at their respective addresses set forth on Schedule A attached
hereto (or at such other address for a party as shall be specified by like
notice).
(c) INTERPRETATION. When a reference is made in this Agreement to a
Section or Schedule, such reference shall be to a Section of or Schedule to this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation".
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other parties.
(e) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and instruments referred to herein) (i) constitutes the
entire agreement, and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(f) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of
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the State of Delaware, regardless of the laws that might otherwise govern
under applicable principles of conflicts of law thereof.
(g) VOIDABILITY. If prior to the execution hereof, the Board of
Directors of the Company shall not have duly and validly authorized and approved
by all necessary corporate action, this Agreement, the Merger Agreement and the
transactions contemplated hereby and thereby, so that by the execution and
delivery hereof Parent or Sub would become, or could reasonably be expected to
become, an "interested stockholder" with whom the Company would be prevented for
any period pursuant to Section 203 of the DGCL from engaging in any "business
combination" (as such terms are defined in Section 203 of the DGCL), then this
Agreement shall be void and unenforceable until such time as such authorization
and approval shall have been duly and validly obtained.
10. ENFORCEMENT. The parties 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 of this Agreement in any court of the United States
located in the State of Delaware or in a Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of any court of the United States located in the State of
Delaware or any Delaware state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement, (ii) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (iii) agrees that such party
will not bring any action relating to this Agreement or the transactions
contemplated by this Agreement in any court other than a court of the United
States located in the State of Delaware or a Delaware state court and
(iv) waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any of the transactions
contemplated hereby.
11. PUBLIC ANNOUNCEMENTS. Except as required by law, no Stockholder
shall issue any press release or other public statement with respect to the
transactions
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contemplated by this Agreement or the Merger Agreement without the prior
written consent of Parent.
12. SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law
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in an acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
IN WITNESS WHEREOF, Parent has caused this Agreement to be signed by
its authorized signatories and each Stockholder has signed this Agreement, all
as of the date first written above.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
By: /s/ Xxx X. Xxxxxx
------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
Corporate Development &
Real Estate
STOCKHOLDERS:
/s/ Xxx X. Xxx
------------------------------------
Xxx X. Xxx
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
SCHEDULE A
Number of Shares
of Company
Name and Common Stock
Address of Owned or to be
Stockholder* Owned of Record
------------ ---------------
Xxx X. Xxx(1) 2,240,952
Xxxxxxx X. Xxxxxxx(2) 1,482,649
----------------------
* Unless an address is otherwise set forth below, the address for such
stockholder shall be the address of the Company set forth in Section 8.02 of
the Merger Agreement.
(1) Includes 12,000 shares issuable under stock options exercisable within
60 days of August 29, 1997.
(2) Includes 18,000 shares issuable under stock options exercisable within
60 days of August 29, 1997.
