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EXHIBIT 99.4
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AMENDED AND RESTATED
STOCKHOLDER SUPPORT AGREEMENT
(UNIDATA Affiliates - B)
AMENDED AND RESTATED STOCKHOLDER SUPPORT AGREEMENT, dated as of
October 31, 1997, between the undersigned holders (collectively, the "Holders")
of shares of the Class B common stock, no par value ("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 a significant stockholder of UNIDATA;
C. An agreement with similar covenants to this Agreement has
been executed by each of the executive officers and directors of UNIDATA (the
"Affiliate Agreement");
D. 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.
E. 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");
F. 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
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reorganization within the meaning of Section 368(a) of the Internal Revenue
Code, as amended;
G. 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
H. 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, in each
case occurring on or prior to April 15, 1998, 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. No Holder
will take any action to cause the other stockholders of UNIDATA not to approve
the Merger. Notwithstanding the foregoing, the Holders' obligations under this
Section will terminate if the obligations of the parties to the Affiliate
Agreement are terminated.
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 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, except for pledges or liens upon the shares of
MassMutual Corporate Value Partners Limited the existence of which would not
prevent such Holder from performing its obligations hereunder provided there is
no default under the agreement pursuant to which such pledges and liens were
granted.
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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, in such
event 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 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 be 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 Such Holder does not now, and at the time of the Merger will
not, 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 earliest to occur of (a) April 15, 1998, (b) the
consummation of the Merger, or (c) the termination of the Merger Agreement in
accordance with its terms, it will not, and will not take any action through any
entity under its 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
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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
UNIDATA with respect to an Alternative Transaction. For purposes of this
paragraph, an entity under a Holder's control shall not be deemed to include an
investor or minority beneficial owner of such Holder. Notwithstanding the
foregoing, the Holders' obligations under this Section will terminate if the
obligations of the parties to the Affiliate Agreement are terminated.
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 Provided the Merger becomes effective by April 15, 1998, 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). Notwithstanding the foregoing, the Holders' obligations
under this Section will terminate if the obligations of the parties to the
Affiliate Agreement are terminated.
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 the surviving terms of that certain
Registration Rights Agreement dated as of December 1, 1995 and any other
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:
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"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."
If the Holder requests that VMARK remove such legend and VMARK obtains
an opinion from its counsel 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. The Holder may not make such
request more than once in any three month period.
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:
Latham & Watkins
633 West Fifth Street
Suite 4000
Los Angeles, CA 90071-2007
Attention: Gary Olson, Esq.
If to VMARK:
VMARK Software, Inc.
50 Washington Street
Westboro, MA 01581-1021
Attention: Chief Financial Officer
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With a copy to:
Choate, Hall & Stewart
Exchange Place
53 State Street
Boston, MA 02109
Attention: Richard N. Hoehn, 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. CONDITION. The Holders' obligations under this Agreement shall
not become effective until the execution of the Affiliate Agreement by the
executive officers and directors of UNIDATA.
10. 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 Massachusetts
state or federal court sitting in the City of Springfield, Massachusetts, 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.
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11. 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.
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[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDER SUPPORT AGREEMENT - UNIDATA AFFILIATES - B]
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/ Charles F. Kane
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Charles F. Kane
Executive Vice President,
Finance, Chief Financial Officer
and Treasurer
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/ Richard C. Morrison
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Its Managing Director
This Agreement is executed on behalf of MassMutual Corporate Investors,
organized under a Declaration of Trust, dated September 13, 1985, as amended
from time to time. The obligations of such trust are not personally binding
upon, nor shall resort be had to the property of, any of the trustees,
shareholders, officers, employees or agents of such trust, but the trust
property only shall be bound.
MASSMUTUAL CORPORATE INVESTORS
By: /s/ Richard C. Morrison
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Its Vice President
This Agreement is executed on behalf of MassMutual Participation, organized
under a Declaration of Trust, dated April 7, 1988, as amended from time to time.
The obligations of such trust are not personally binding upon, nor shall resort
be had to the property of, any of the trustees, shareholders, officers,
employees or agents of such trust, but the trust property only shall be bound.
MASSMUTUAL PARTICIPATION INVESTORS
By: /s/ Richard C. Morrison
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Its Vice President
MASSMUTUAL CORPORATE VALUE PARTNERS LIMITED
By: Massachusetts Mutual Life Insurance Company, as Investment Manager
By: /s/ Richard C. Morrison
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Its Managing Director
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SCHEDULE 1
SHAREHOLDER NUMBER OF SHARES
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Massachusetts Mutual Life Insurance 233,250
Company
MassMutual Corporate Investors 125,000
MassMutual Participation Investors 62,500
MassMutual Corporate Value Partners 79,250
Limited
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