-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G6v2DBe87iprywbzg5Vw5p+jF4u44oj9JqzdQz2R5tdqSnabDpC5c8AvZaGLRN6f J+6xW0fRRsZcGRurUOYdtQ== 0000950135-03-003729.txt : 20030701 0000950135-03-003729.hdr.sgml : 20030701 20030701095829 ACCESSION NUMBER: 0000950135-03-003729 CONFORMED SUBMISSION TYPE: SC TO-T PUBLIC DOCUMENT COUNT: 15 FILED AS OF DATE: 20030701 GROUP MEMBERS: CONDUCTOR ACQUISITION CORP. FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GEAC COMPUTER CORP LTD CENTRAL INDEX KEY: 0001145047 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING SERVICES [7371] IRS NUMBER: 000000000 STATE OF INCORPORATION: A6 FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: SC TO-T BUSINESS ADDRESS: STREET 1: 11 ALLSTATE PARKWAY STREET 2: SUITE 300 CITY: MARKHAM ONTARIO CANADA L3R 9T8 STATE: A6 ZIP: 00000 BUSINESS PHONE: 9059403704 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: COMSHARE INC CENTRAL INDEX KEY: 0000201513 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 381804887 STATE OF INCORPORATION: MI FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC TO-T SEC ACT: 1934 Act SEC FILE NUMBER: 005-30480 FILM NUMBER: 03766511 BUSINESS ADDRESS: STREET 1: 555 BRIARWOOD CIRCLE STREET 2: P O BOX 1588 CITY: ANN ARBOR STATE: MI ZIP: 48108 BUSINESS PHONE: 3139944800 MAIL ADDRESS: STREET 1: P O BOX 1588 STREET 2: 555 BRIARWOOD CIRCLE CITY: ANN ARBOR STATE: MI ZIP: 48108 SC TO-T 1 b47043gcsctovt.txt GEAC COMPUTER CORPORATION LIMITED ON SCHEDULE TO ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- SCHEDULE TO (Rule 14d-100) TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 COMSHARE, INCORPORATED (Name of Subject Company (Issuer)) CONDUCTOR ACQUISITION CORP. (Offeror) an indirect wholly-owned subsidiary of GEAC COMPUTER CORPORATION LIMITED (Parent of Offeror) (Names of Filing Persons) COMMON STOCK, PAR VALUE $1.00 PER SHARE (Title of Class of Securities) 205912108 (CUSIP Number of Class of Securities) CHARLES S. JONES CHAIRMAN GEAC COMPUTER CORPORATION LIMITED 11 ALLSTATE PARKWAY, SUITE 300 MARKHAM, ONTARIO L3R 9T8 CANADA (905) 475-0525 (Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons) with copies to: ROBERT W. SWEET, JR., ESQUIRE FOLEY HOAG LLP 155 SEAPORT BOULEVARD BOSTON, MASSACHUSETTS 02210 (617) 832-1000 CALCULATION OF FILING FEE
Transaction valuation* Amount of filing fee** ---------------------- ---------------------- $52,008,427 $4,208
*Estimated for purposes of calculating the amount of the filing fee only. This amount assumes the purchase at $4.60 per share in cash, pursuant to the Offer to Purchase, of all 10,827,583 issued and outstanding shares of common stock, par value $1.00 per share, of Comshare, Incorporated as of June 30, 2003 plus the aggregate amount in cash to be paid to holders of outstanding options to purchase shares of Comshare common stock determined by multiplying the excess, if any, of $4.60 over the applicable exercise price of each such option by the number of shares of Comshare common stock underlying such option. **The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, equals $80.90 per $1,000,000 of the transaction value. [ ] Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: -------------------- Form or Registration No.: ------------------ Filing Party: ------------------------------ Date Filed: -------------------------------- [ ] Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: [X] third-party tender offer subject to Rule 14d-1. [ ] issuer tender offer subject to Rule 13e-4. [ ] going-private transaction subject to Rule 13e-3. [ ] amendment to Schedule 13D under Rule 13d-2 Check the following box if the filing is a final amendment reporting the results of the tender offer: [ ] ------------------------------------------------------ SCHEDULE TO This Tender Offer Statement on Schedule TO ("Schedule TO") relates to the offer by Conductor Acquisition Corp., a Michigan corporation ("Purchaser") and an indirect wholly owned subsidiary of Geac Computer Corporation Limited, a corporation governed by the Canada Business Corporations Act ("Geac"), to purchase all of the outstanding shares of Common Stock, par value $1.00 per share (the "Shares"), of Comshare, Incorporated, a Michigan corporation (the "Company"), at a purchase price of $4.60 per Share, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated July 1, 2003 (the "Offer to Purchase"), and in the related Letter of Transmittal (the "Letter of Transmittal" which, together with the Offer to Purchase, as each may be amended and supplemented from time to time, constitute the "Offer"). ITEMS 1 THROUGH 9, AND ITEM 11. The information set forth in the Offer to Purchase and the Letter of Transmittal, copies of which are filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B) hereto, respectively, are incorporated herein by reference in answer to Items 1 through 9 and 11 of this Tender Offer Statement on Schedule TO. ITEM 10. FINANCIAL STATEMENTS. Not Applicable. ITEM 12. EXHIBITS. (a)(1)(A) Offer to Purchase, dated July 1, 2003. (a)(1)(B) Letter of Transmittal. (a)(1)(C) Notice of Guaranteed Delivery. (a)(1)(D) Letter to Brokers, Dealers, Banks, Trust Companies and other Nominees. (a)(1)(E) Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and other Nominees. (a)(1)(F) Press Release dated July 1, 2003. (a)(1)(G) Summary Advertisement, published in the New York Times on July 1, 2003. (b) Not Applicable. (c) Not Applicable. (d)(1) Confidentiality Agreement dated April 24, 2003 between Geac and the Company. (d)(2) Confidentiality Agreement effective May 1, 2003 between Geac and the Company. (d)(3) Agreement and Plan of Merger, dated as of June 22, 2003, by and among Geac, Purchaser and the Company. -3- (d)(4) Voting and Tender Agreement, dated as of June 22, 2003, by and among Geac, Purchaser and Dennis G. Ganster. (d)(5) Voting and Tender Agreement, dated as of June 22, 2003, by and among Geac, Purchaser and each of Codec Systems Limited and Anthony Stafford. (d)(6) Employment agreement dated June 19, 2003 by and among the Company, Geac Computers, Inc., Geac and Brian Hartlen. (d)(7) Employment agreement dated June 19, 2003 by and among the Company, Geac Computers, Inc., Geac and David King. (g) Not Applicable. (h) Not Applicable. ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3. Not Applicable. SIGNATURE After due 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. GEAC COMPUTER CORPORATION LIMITED /s/ Charles S. Jones -------------------------------- By: Charles S. Jones Its: Chairman CONDUCTOR ACQUISITION CORP. /s/ Charles S. Jones -------------------------------- By: Charles S. Jones Its: Chairman Date: July 1, 2003 -4- INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION -------------- ----------- (a)(1)(A) Offer to Purchase, dated July 1, 2003. (a)(1)(B) Letter of Transmittal. (a)(1)(C) Notice of Guaranteed Delivery. (a)(1)(D) Letter to Brokers, Dealers, Banks, Trust Companies and other Nominees. (a)(1)(E) Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and other Nominees. (a)(1)(F) Press Release dated July 1, 2003. (a)(1)(G) Summary Advertisement, published in the New York Times on July 1, 2003. (b) Not Applicable. (c) Not Applicable. (d)(1) Confidentiality Agreement dated April 24, 2003 between Geac and the Company. (d)(2) Confidentiality Agreement effective May 1, 2003 between Geac and the Company. (d)(3) Agreement and Plan of Merger, dated as of June 22, 2003, by and among Geac, Purchaser and the Company. (d)(4) Voting and Tender Agreement, dated as of June 22, 2003, by and among Geac, Purchaser and Dennis G. Ganster. (d)(5) Voting and Tender Agreement, dated as of June 22, 2003, by and among Geac, Purchaser and each of Codec Systems Limited and Anthony Stafford. (d)(6) Employment agreement dated June 19, 2003 by and among the Company, Geac Computers, Inc., Geac and Brian Hartlen. (d)(7) Employment agreement dated June 19, 2003 by and among the Company, Geac Computers, Inc., Geac and David King. (g) Not Applicable. (h) Not Applicable.
-5- EX-99.(A)(1)(A) 3 b47043gcexv99wxayx1yxay.txt OFFER TO PURCHASE, DATED JULY 1, 2003 EXHIBIT(a)(1)(A) OFFER TO PURCHASE FOR CASH (THE "OFFER") ALL OUTSTANDING SHARES OF COMMON STOCK (THE "SHARES") (INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS (THE "RIGHTS")) OF COMSHARE, INCORPORATED ("COMSHARE" OR THE "COMPANY") AT $4.60 NET PER SHARE BY CONDUCTOR ACQUISITION CORP. (THE "PURCHASER"), AN INDIRECT WHOLLY OWNED SUBSIDIARY OF GEAC COMPUTER CORPORATION LIMITED ("GEAC") THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON JULY 30, 2003, UNLESS THE OFFER IS EXTENDED (THE "EXPIRATION DATE"). THE OFFER IS BEING MADE IN CONNECTION WITH THE AGREEMENT AND PLAN OF MERGER, DATED AS OF JUNE 22, 2003 (THE "MERGER AGREEMENT"), AMONG GEAC, THE PURCHASER AND THE COMPANY. THE OFFER IS BEING MADE FOR ALL OUTSTANDING SHARES AND IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION DATE OF THE OFFER THAT NUMBER OF SHARES THAT, TOGETHER WITH ANY OTHER SHARES THEN OWNED BY GEAC, PURCHASER OR ANY AFFILIATE OF GEAC OR PURCHASER ON THE DATE SUCH SHARES ARE PURCHASED, CONSTITUTES AT LEAST A MAJORITY OF THE TOTAL OUTSTANDING SHARES OF THE COMPANY, CALCULATED ON A FULLY DILUTED BASIS. THE OFFER IS ALSO SUBJECT TO THE OTHER CONDITIONS SET FORTH IN THIS OFFER TO PURCHASE. SEE SECTION 15. --------------------- THE BOARD OF DIRECTORS OF THE COMPANY (THE "COMPANY BOARD") HAS UNANIMOUSLY DETERMINED THAT THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING, WITHOUT LIMITATION, THE OFFER, THE MERGER (AS DEFINED HEREIN) AND THE PURCHASE OF THE SHARES AND ASSOCIATED RIGHTS CONTEMPLATED BY THE OFFER (COLLECTIVELY, THE "TRANSACTIONS"), ARE FAIR TO AND IN THE BEST INTERESTS OF THE COMPANY'S SHAREHOLDERS; HAS UNANIMOUSLY APPROVED AND ADOPTED THE MERGER AGREEMENT AND THE TRANSACTIONS, INCLUDING THE OFFER AND MERGER, IN ACCORDANCE WITH THE REQUIREMENTS OF MICHIGAN LAW; AND HAS AGREED TO RECOMMEND THAT THE COMPANY'S SHAREHOLDERS ACCEPT THE OFFER, AND APPROVE AND ADOPT THE MERGER AGREEMENT AND THE MERGER. IMPORTANT If you wish to tender all or any portion of your Shares, you should either (1) (a) complete and sign the accompanying Letter of Transmittal according to the instructions in the Letter of Transmittal and mail or deliver it, together with any required signature guarantees and any other required documents, to EquiServe Trust Company, N.A., the Depositary for the Shares and the Offer (the "Depositary"), and mail or deliver the certificates representing the Shares to the Depositary together with any other documents required by the Letter of Transmittal or (b) tender the Shares according to the procedure for book-entry transfer described in Section 3 of this Offer, or (2) request a broker, dealer, commercial bank, trust company or other nominee to effect the transaction for you. If your Shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you should contact that person if you desire to tender your Shares. If you desire to tender your Shares and (1) your certificates are not immediately available or cannot be delivered to the Depositary, (2) you cannot comply with the procedure for book-entry transfer, or (3) your other required documents cannot be delivered to the Depositary by the expiration of the Offer, you must tender your Shares according to the guaranteed delivery procedure described in Section 3 of this Offer to Purchase. Questions and requests for assistance may be directed to Georgeson Shareholder Securities Corporation, the dealer manager for the Offer (the "Dealer Manager") or Georgeson Shareholder Communications Inc., the information agent for the Offer (the "Information Agent"), at their respective addresses and telephone numbers set forth on the back cover of this Offer to Purchase. Requests for additional copies of this Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and the Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 may be directed to the Information Agent. A holder of Shares whose shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee must contact the broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer. Pursuant to Rule 14d-3 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, we have filed with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO (the "Schedule TO"), which contains additional information with respect to the Offer. Our Schedule TO, including exhibits and any amendments, may be examined and copies of it may be obtained at the places and in the manner set forth in Section 18 entitled "Miscellaneous." Neither the SEC nor any state securities commission has (a) approved or disapproved of this transaction; (b) passed upon the merits or fairness of this transaction; or (c) passed upon the accuracy or adequacy of the disclosure in this Offer to Purchase. Any representation to the contrary is a criminal offense. The Depositary for the Offer is: EQUISERVE TRUST COMPANY, N.A. By First Class Mail: By Certified or Express By Hand: Delivery: EquiServe Trust Company EquiServe Trust Company EquiServe Trust Company Attn: Corporate Actions Attn: Corporate Actions c/o Securities and Transfer & Post Office Box 43014 150 Royall Street Reporting Services, Inc. Providence, RI 02940-3014 Canton, MA 02021 100 Williams Street Galleria New York, NY 10038
2 The Information Agent for the Offer is: (GEORGESON SHAREHOLDER LOGO) GEORGESON SHAREHOLDER COMMUNICATIONS INC. 17 State Street -- 10th Floor New York, NY 10004 Toll Free: (800) 286-9178 Banks and Brokers: (212) 440-9800 The Dealer Manager for the Offer is: GEORGESON SHAREHOLDER SECURITIES CORPORATION 17 State Street -- 10th Floor New York, NY 10004 Toll Free: (800) 445-1790 Banks and Brokers: (212) 440-9800 3 TABLE OF CONTENTS SUMMARY TERM SHEET............................................... 5 INTRODUCTION..................................................... 9 THE OFFER........................................................ 12 1. Terms of the Offer; Expiration Date......................... 12 2. Acceptance for Payment and Payment.......................... 14 3. Procedures for Accepting the Offer and Tendering Shares..... 16 4. Withdrawal Rights........................................... 19 5. Certain Federal Income Tax Consequences..................... 20 6. Price Range of the Shares................................... 21 7. Effect of the Offer on the Market for the Shares; Nasdaq Listing; Exchange Act Registration.......................... 21 8. Information Concerning the Company.......................... 22 9. Information Concerning Purchaser and Geac................... 23 10. Background of the Offer; Contacts with the Company.......... 24 11. Purpose of the Offer; Plans for the Company................. 26 12. Description of Merger Agreement, Voting and Tender Agreements and Confidentiality Agreements................... 27 13. Source and Amount of Funds.................................. 38 14. Dividends and Distributions................................. 38 15. Certain Conditions of the Offer............................. 38 16. Legal Matters; Required Regulatory Approvals................ 40 17. Fees and Expenses........................................... 41 18. Miscellaneous............................................... 42 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF GEAC.............. I-1 SCHEDULE II DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER........ II-1 SCHEDULE III SHARES OR OTHER EQUITY SECURITIES OF THE COMPANY BENEFICIALLY OWNED BY PURCHASER AND GEAC....................... III-1
4 SUMMARY TERM SHEET This summary term sheet is a brief description of the Offer being made by Geac Computer Corporation Limited ("Geac") through Conductor Acquisition Corp. ("Purchaser"), an indirect wholly owned subsidiary of Geac, to purchase all of the outstanding shares of common stock, par value $1.00 per share (the "Shares"), of Comshare, Incorporated ("Comshare" or the "Company"), including the associated Series A Preferred Stock Purchase Rights (the "Rights") attached thereto issued pursuant to the Rights Agreement, dated September 16, 1996, between the Company and Computershare Investor Services LLC, as successor to KeyBank National Association, Key Corp Shareholder Services, Inc. and Harris Trust and Savings Bank's corporate trust business (the "Rights Agreement"), at a price of $4.60 net per share in cash. The following are answers to some of the questions you, as a shareholder of Comshare, may have about the Offer. We urge you to read this Offer to Purchase and the accompanying Letter of Transmittal in their entirety because the information in this summary term sheet is not complete, and additional important information is contained in the remainder of this Offer to Purchase and in the Letter of Transmittal. Q. WHO IS OFFERING TO BUY MY SECURITIES? The Purchaser is Conductor Acquisition Corp. We are a Michigan corporation formed for the purpose of making this tender offer. We are an indirect wholly owned subsidiary of Geac, a corporation governed by the Canada Business Corporations Act. The tender offer is the first step in Geac's plan to acquire all of the outstanding Shares. See "Introduction" and Section 9. Q. WHAT IS CONDUCTOR ACQUISITION CORP. SEEKING TO PURCHASE, AT WHAT PRICE, AND WILL I HAVE TO PAY ANY BROKERAGE OR SIMILAR FEES TO TENDER? We are offering to purchase all of the outstanding Shares, including the associated Rights. We are offering to pay $4.60 per Share, net to you, in cash and without interest. If you are the record owner of your Shares and you tender your Shares to us in the Offer, you will not have to pay any brokerage or similar fees. If you own your Shares through a broker or other nominee, your broker or nominee may charge you a fee to tender your Shares on your behalf. You should consult your broker or nominee to determine whether any charges will apply. You should also consult your tax advisor regarding the particular tax consequences to you of tendering your Shares. See "Introduction" and Sections 1 and 5. Q. WHAT ARE THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS? The associated preferred stock purchase Rights were issued to all shareholders of the Company in connection with the Company's adoption in 1996 of an anti-takeover device of the type commonly known as a "rights plan" or a "poison pill," but currently are not represented by separate certificates. Instead, these Rights are represented by the certificates of your Shares. Unless Rights are separately distributed to shareholders (which we do not expect to occur), a tender of your Shares will automatically include a tender of the associated Rights. We will not pay any additional consideration for the tender of any Right. Q. DO YOU HAVE THE FINANCIAL RESOURCES TO PAY FOR MY SECURITIES? Yes. Geac, the Purchaser's parent company, will provide us with sufficient funds to purchase all Shares tendered in the Offer and any Shares to be acquired in the Merger that is expected to follow the successful completion of the Offer. The Offer is not subject to any financing condition. See Section 13. Q. IS YOUR FINANCIAL CONDITION OR THAT OF GEAC RELEVANT TO MY DECISION TO TENDER IN THE OFFER? We do not think our financial condition or that of Geac is relevant to your decision whether to tender Shares and accept the Offer because: - the Offer is being made for all outstanding Shares solely for cash; 5 - our obligation to purchase your Shares in the Offer is not subject to any financing condition; and - if we complete the Offer, we will acquire all remaining Shares for the same cash price in the Merger. See "Introduction" and Sections 1, 11 and 12. Q. HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER? You will have until at least 12:00 midnight, Eastern time, on July 30, 2003, to tender your Shares in the Offer. Under certain circumstances, we may extend the Offer. If the Offer is extended, we will issue a press release announcing the extension on the first business morning following the date the Offer was scheduled to expire. See Section 1. Q. WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER? The most significant conditions to the Offer are the following: - that prior to the expiration date of the Offer, Comshare shareholders have validly tendered in accordance with the terms of the Offer, and not withdrawn, that number of Shares that, together with any other Shares then owned by Geac, Purchaser or any affiliate of Geac or Purchaser on the date such Shares are purchased, represents at least a majority of the total outstanding Shares of the Company, calculated on a fully diluted basis; and - that the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and any laws, rules or regulations analogous to the HSR Act existing in foreign jurisdictions, have expired or been terminated. The Offer is also subject to a number of other customary conditions. For a complete list of the conditions to the Offer, see section 15. Q. HOW DO I TENDER MY SHARES? To tender your Shares before the Offer expires: - if you hold physical certificates (meaning you hold certificates issued in your name), you must deliver your certificate(s) for the Shares you wish to tender and a properly completed and duly executed Letter of Transmittal to the Depositary at the address appearing on the back cover of this document; - if your broker holds your Shares in "street name," you must inform your broker of your decision to tender your Shares so that the Depositary receives a confirmation of receipt of your Shares by book-entry transfer and a Letter of Transmittal; or - you or your broker must comply with the guaranteed delivery procedure. In any case, the Depositary must receive all required documents prior to 12:00 midnight, Eastern time, on Wednesday, July 30, 2003, or, if the Offer is extended, the date and time to which the Offer is extended. If you have any questions, you should contact the Information Agent or your broker for assistance. See Section 3. Q. IF I ACCEPT THE OFFER, WHEN WILL I BE PAID? Provided the conditions to the Offer are satisfied and we complete the Offer and accept any Shares for payment, you will receive a payment equal to the number of Shares you tendered multiplied by $4.60, subject to any required withholding for taxes, as promptly as practicable following the expiration of the Offer. See Section 2. 6 Q. CAN I WITHDRAW SHARES ONCE I HAVE TENDERED THEM? You may withdraw some or all of your tendered Shares by delivering written notice to the Depositary at any time prior to the expiration of the Offer. Further, if we have not agreed to accept your Shares for payment by August 30, 2003, you may withdraw them at any time after that date. Once Shares are accepted for payment, they cannot be withdrawn. Your right to withdraw will not apply to any Subsequent Offering Period, if one is provided. See Section 4. Q. HAVE ANY SHAREHOLDERS AGREED TO TENDER THEIR SHARES? Yes. Dennis G. Ganster, Codec Systems Limited and Anthony Stafford, who together own approximately 15% of the outstanding Shares as of June 22, 2003, have each agreed to support the transaction and tender their respective Shares pursuant to our Offer. See Section 12. Q. WHAT IS THE "TOP-UP OPTION" AND HOW CAN IT BE EXERCISED? We have received an option, which we call the "Top-Up Option," from the Company which will allow us to purchase additional Shares of the Company at $4.60 per Share to enable us to own 90% of the outstanding Shares. The Top-Up Option will be exercisable by us in the event more than 80% but less than 90% of the outstanding Shares are tendered in the Offer. If we exercise the Top-Up Option, we will be able to complete the Merger without a shareholder vote. See Section 12. Q. WHAT DOES THE BOARD OF DIRECTORS OF COMSHARE THINK OF THIS OFFER? The Comshare board of directors (the "Company Board") has unanimously determined that the Merger Agreement and the Transactions are fair to and in the best interests of the Company's shareholders; has unanimously approved and adopted the Merger Agreement and the Transactions, including the Offer and Merger, in accordance with the requirements of Michigan law; and has agreed to recommend that the Company's shareholders accept the Offer, and approve and adopt the Merger Agreement and the Merger. See "Introduction." Q. WHAT WILL HAPPEN TO COMSHARE? If the Offer is consummated, and Purchaser thereby acquires at least 90% of the then outstanding Shares, Purchaser will immediately, without any further action by the shareholders of the Company, be merged with and into Comshare, with Comshare surviving as an indirect wholly owned subsidiary of Geac. If, after the consummation of the Offer, the Purchaser holds less than 90% of the then outstanding Shares, then the Company will schedule a meeting of its shareholders to approve the Merger. At that meeting, the Purchaser will hold a majority of the outstanding Shares of the Company, and will vote those Shares in favor of the Merger. After adoption and approval by the shareholders of the Merger Agreement and the Merger, the Purchaser will immediately be merged with and into the Company, with the Company surviving as an indirect, wholly owned subsidiary of Geac. See "Introduction" and Section 11. Q. IF I DO NOT TENDER BUT THE TENDER OFFER IS SUCCESSFUL, WHAT WILL HAPPEN TO MY SHARES? If the Merger takes place, shareholders who do not tender in the Offer will receive in the Merger the same amount of cash per Share that they would have received had they tendered their Shares in the Offer. Therefore, if the Merger takes place, the only difference to you between tendering your Shares and not tendering your Shares is that you will be paid earlier if you tender your Shares. However, in the event, which we consider unlikely, that the Offer is completed and the Merger does not take place (for example, because one or more conditions in the Merger Agreement cannot be satisfied), the number of shareholders and the number of Shares of Comshare that are still held by persons other than Geac, Purchaser or their affiliates may be so small that there may no longer be an active public trading market (or, possibly, any public trading market) for the Shares. Also, the Shares may no longer be eligible to be traded on the Nasdaq National Market or any other securities exchange, and Comshare may, if otherwise permitted to do so, cease making 7 filings with the SEC or otherwise cease being required to comply with the SEC's rules relating to publicly held companies. See Sections 7 and 12. Q. ARE APPRAISAL RIGHTS AVAILABLE IN EITHER THE OFFER OR THE MERGER? No. Appraisal rights are not available in the Offer, and if the Offer is consummated, appraisal rights will not be available in the Merger. See Section 12. Q. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER AND THE MERGER? The receipt of cash by you in exchange for your Shares pursuant to the Offer or the Merger is a taxable transaction for U.S. federal income tax purposes and may also be a taxable transaction under applicable state, local or foreign tax laws. In general, you will recognize capital gain or loss equal to the difference between your adjusted tax basis in the Shares you tender and the amount of cash you receive for those Shares. You should consult your tax advisor about the particular tax consequences to you of tendering your Shares. See Section 5 for a further discussion of U.S. federal income tax consequences of tendering Shares. Q. WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE? On June 20, 2003, the last Nasdaq National Market trading day before Geac and Comshare announced that they had signed the Merger Agreement, the last sale price of Comshare stock reported on the Nasdaq National Market was $3.64 per share. The average sale price of Comshare's common stock during the twenty trading days preceding the signing of the Merger Agreement, based on the last sale price on each trading day as reported on the Nasdaq National Market, was $3.52 per share. On June 30, 2003, the last sale price of Comshare stock on the Nasdaq National Market was $4.55 per share. We advise you to obtain a recent quotation for Comshare stock before deciding whether or not to tender your Shares. See Section 6. Q. WHOM MAY I CALL WITH QUESTIONS? Questions or requests for assistance may be directed to the Information Agent or to the Dealer Manager at their respective addresses and telephone numbers set forth on the back cover of this Offer to Purchase. You may also choose to contact your own tax, financial and legal advisors to discuss the advisability of accepting or declining the Offer. See the back cover of this Offer to Purchase. 8 INTRODUCTION Conductor Acquisition Corp., a Michigan corporation ("Purchaser") and an indirect wholly owned subsidiary of Geac Computer Corporation Limited, a Canadian corporation ("Geac"), is offering to purchase all of the issued and outstanding shares of common stock, par value $1.00 per share (the "Shares"), of Comshare, Incorporated, a Michigan corporation ("Comshare" or the "Company"), together with the Series A Preferred Stock Purchase Rights (the "Rights") attached thereto issued pursuant to the Rights Agreement, dated September 16, 1996, between the Company and Computershare Investor Services LLC, as successor to KeyBank National Association, Key Corp Shareholder Services, Inc. and Harris Trust and Savings Bank's corporate trust business (the "Rights Agreement"), at a purchase price of $4.60 per Share, net to the seller in cash, or any higher price paid for each Share in the Offer, without interest thereon (the "Offer Price"), on the terms and subject to the conditions set forth in this Offer to Purchase and in the related Letter of Transmittal (which, as amended or supplemented from time to time, collectively constitute the "Offer"). All references to Rights include all benefits that may inure to holders of the Rights under the Rights Agreement and, unless the context otherwise requires, all references in this Offer to Purchase to Shares shall include the Rights. Shareholders whose Shares are registered in their own names and who tender their Shares directly to the Depositary (as defined below) will not be obligated to pay brokerage fees or commissions or, except as set forth in Instruction 6 of the Letter of Transmittal, stock transfer taxes on the sale of Shares in the Offer. However, shareholders that do not complete and sign the Substitute Form W-9 that is included in the Letter of Transmittal, will be subject to a required backup U.S. federal income tax withholding (at the rate of 30%). Shareholders who hold their Shares through a bank or broker should check with such institution as to whether it will charge any service fees. We will pay all fees and expenses of the Depositary, the Information Agent and the Dealer Manager incurred in connection with the Offer. See Section 5 for a further discussion of U.S. federal income tax consequences of tendering Shares. We are making the Offer pursuant to the Agreement and Plan of Merger, dated as of June 22, 2003 (the "Merger Agreement"), among Geac, Purchaser and the Company. Following the completion of the Offer and the satisfaction or waiver of certain conditions, Purchaser will merge with and into the Company (the "Merger"), and the Company will be the surviving corporation in the Merger. Pursuant to the Merger, each then remaining Share outstanding (other than Shares held by (i) the Company or any of its subsidiaries and (ii) Geac, Purchaser or any of Geac's direct or indirect wholly owned subsidiaries, all of which will be cancelled) will be converted into the right to receive the Offer Price, or any higher price per Share paid in the Offer, without interest. Concurrently with the execution of the Merger Agreement, Geac and Purchaser entered into a Voting and Tender Agreement, each dated as of June 22, 2003 (the "Voting and Tender Agreements"), with Dennis G. Ganster and with Codec Systems Limited and Anthony Stafford. As of June 22, 2003, Dennis G. Ganster, Codec Systems Limited and Anthony Stafford together have voting and dispositive control over 1,572,752 Shares, representing approximately 15% of the outstanding Shares. Pursuant to the Voting and Tender Agreements, Dennis G. Ganster, Codec Systems Limited and Anthony Stafford have each agreed, among other things, to tender all their Shares pursuant to the Offer and to vote their Shares in favor of the Merger. Geac and the Company entered into a confidentiality agreement, dated as of April 24, 2003 (the "Company Confidentiality Agreement"), pursuant to which Geac agreed to keep confidential certain information provided by the Company. Geac and the Company also entered into a confidentiality agreement, effective as of May 1, 2003 (the "Geac Confidentiality Agreement" and together with the Company Confidential Agreement, the "Confidentiality Agreements") pursuant to which the Company agreed to keep confidential certain information provided by Geac. The Merger Agreement, Voting and Tender Agreements and Confidentiality Agreements are more fully described in Section 12. 9 THE COMPANY BOARD HAS UNANIMOUSLY DETERMINED THAT THE MERGER AGREEMENT AND THE TRANSACTIONS ARE FAIR TO AND IN THE BEST INTERESTS OF THE COMPANY'S SHAREHOLDERS; HAS UNANIMOUSLY APPROVED AND ADOPTED THE MERGER AGREEMENT AND THE TRANSACTIONS, INCLUDING THE OFFER AND MERGER, IN ACCORDANCE WITH THE REQUIREMENTS OF MICHIGAN LAW; AND HAS AGREED TO RECOMMEND THAT THE COMPANY'S SHAREHOLDERS ACCEPT THE OFFER, AND APPROVE AND ADOPT THE MERGER AGREEMENT AND THE MERGER. Bryant Park Capital, Inc. ("Bryant Park Capital"), the Company's financial advisor, has delivered to the Company Board its written opinion dated June 22, 2003, the date of the Merger Agreement, to the effect that, as of the date of the opinion and based upon and subject to certain matters stated in such opinion, the $4.60 net per Share cash consideration to be received in the Offer and the Merger, taken together, by holders of Shares (other than Geac and its affiliates) was fair, from a financial point of view, to such holders. A copy of the opinion of Bryant Park Capital is attached to the Company's Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9"), which has been filed with the SEC and will be mailed with this document. HOLDERS OF SHARES ARE ENCOURAGED TO READ THE OPINION CAREFULLY AND IN ITS ENTIRETY FOR A DESCRIPTION OF THE ASSUMPTIONS MADE, PROCEDURES FOLLOWED, MATTERS CONSIDERED AND LIMITATIONS OF THE REVIEW UNDERTAKEN BY BRYANT PARK CAPITAL IN CONNECTION WITH SUCH OPINION. The Offer is conditioned upon, among other things, there being validly tendered and not properly withdrawn prior to the expiration date (as defined in Section 1 below) that number of Shares which, together with any other Shares then owned by Geac, Purchaser or any affiliate of Geac or Purchaser on the date such Shares are purchased, constitutes at least a majority of the total outstanding shares of Comshare, calculated on a fully diluted basis after giving effect to the exercise, conversion or termination of all options, warrants, rights and securities exercisable or convertible into Shares, on the date of purchase (the "Minimum Condition"). The Offer also is subject to certain other conditions. See Section 15. Pursuant to the Merger Agreement, the Company granted to Purchaser an irrevocable option (the "Top-Up Option") to purchase, at a purchase price per Share issued pursuant to the Top-Up Option equal to the Offer Price, up to that number of Shares equal to the lowest number of Shares that, when added to the number of Shares owned by the Purchaser at the time of such exercise, will constitute one share more than 90% of the Shares then outstanding on a fully diluted basis (assuming the issuance of the Shares pursuant to the Top-Up Option and the exercise of all outstanding exercisable options to purchase Shares with an exercise price less than the Offer Price). See Section 12. The Company has informed us that, as of June 30, 2003, there were (a) 10,827,583 Shares issued and outstanding, and (b) 1,352,163 Shares reserved for issuance upon the exercise of outstanding stock options. As a result, as of such date, the number of Shares that must be validly tendered and not properly withdrawn prior to the Expiration Date in order to satisfy the Minimum Condition is 6,089,874. Certain other conditions to the consummation of the Offer are described in Section 15. Subject to the terms of the Merger Agreement, we expressly reserve the right to waive any one or more of the conditions to the Offer. Pursuant to the Merger Agreement, we have agreed not to waive the Minimum Condition without the consent of the Company. See Sections 12 and 15. The Merger Agreement provides that, effective upon the acceptance for payment by us pursuant to the Offer of a number of Shares that satisfies the Minimum Condition, we will be entitled to designate such number of directors, rounded up to the nearest whole number, on the Company Board as is equal to the product of the total number of directors on the Company Board (giving effect to the directors to be elected as described in this sentence) multiplied by the percentage that the number of Shares beneficially owned by us (including Shares so accepted for payment) or any of our affiliates bears to the total number of Shares then outstanding. The Company has agreed to take all action necessary to cause our designees to be elected or appointed to the Company Board, including increasing the number of directors on the Company Board. See Section 12. The completion of the Merger is subject to the satisfaction or waiver of a number of conditions, including, if required, the approval of the Merger by the requisite vote or consent of the shareholders. In order to approve the Merger, the Company's Articles of Incorporation require the affirmative vote of holders of a majority of 10 the total voting power of all outstanding Shares. As a result, if the Minimum Condition and the other conditions to the Offer are satisfied and the Offer is consummated, we will own a sufficient number of Shares to ensure that the Merger will be approved. Under Michigan law, if after consummation of the Offer we own at least 90% of the Shares then outstanding, we will be able to cause the Merger to occur without a vote of the Company's shareholders. See Section 12. If we acquire less than this number of Shares, a vote of the Company's shareholders or action by written consent will be required under Michigan law to approve the Merger, the Company will be required in connection therewith to circulate a proxy statement or information statement conforming to the requirements of applicable regulations of the SEC and, consequently, a significantly longer period of time will be required to effect the Merger than if no vote were required. Certain U.S. federal income tax consequences of the sale of Shares in the Offer and the Merger are described in Section 5. THE OFFER IS CONDITIONED UPON THE FULFILLMENT OF THE CONDITIONS DESCRIBED IN SECTION 15 BELOW. THE OFFER WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON WEDNESDAY, JULY 30, 2003, UNLESS WE EXTEND IT. THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH YOU SHOULD READ CAREFULLY BEFORE YOU MAKE ANY DECISION WITH RESPECT TO THE OFFER. 11 THE OFFER 1. TERMS OF THE OFFER; EXPIRATION DATE Upon the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms and conditions of any extension or amendment), we will purchase all Shares validly tendered and not properly withdrawn in accordance with the procedures set forth in Section 4 of this Offer to Purchase on or prior to the Expiration Date. The term "Expiration Date" means 12:00 midnight, Eastern time, on July 30, 2003, unless and until we, in accordance with the terms of the Offer, extend the period of time for which the Offer is open, in which event the term "Expiration Date" means the time and date at which the Offer, as so extended, will expire. We expressly reserve the right to waive the Minimum Condition or any of the other conditions to the Offer and to make any change in the terms or conditions of the Offer. However, in the Merger Agreement, we have agreed that, without the prior written consent of the Company, we will not make any changes that would (a) waive the Minimum Condition, (b) change the form of consideration payable in the Offer, (c) decrease the price per Share or the number of Shares sought in the Offer, (d) impose conditions to the Offer in addition to those set forth in the Merger Agreement or that would otherwise be adverse to the holders of the Shares or (e) waive the condition that by the Determination Time (as defined in the Merger Agreement) any applicable waiting period under the HSR Act or any laws, rules or regulations analogous to the HSR Act existing in foreign jurisdictions has expired or been terminated. Subject to the applicable regulations of the SEC and the terms of the Merger Agreement, we also reserve the right to extend the Offer beyond the initial expiration date in the following events: (a) from time to time, but not later than October 1, 2003, if, at the initial expiration date, one or more of the conditions to the Offer (other than the Minimum Condition) shall not have been satisfied or waived, until such conditions are satisfied or waived, (b) for any period required by any rule, regulation, interpretation or position of the SEC or as otherwise required by applicable law or (c) if all conditions to the Offer are satisfied or waived but the number of Shares validly tendered and not withdrawn is less than ninety percent of the then outstanding number of Shares. We acknowledge (a) that Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), requires us to pay the consideration offered or return the Shares tendered promptly after the termination or withdrawal of the Offer and (b) that we may not delay purchase of, or payment for (except as is required in order to comply with applicable laws), any Shares upon the occurrence of any event specified in Section 15 without extending the period of time during which the Offer is open. The rights we reserve in the preceding paragraphs are in addition to our rights pursuant to Section 15 of this Offer to Purchase. Any extension, delay, termination or amendment of the Offer or waiver of conditions of the Offer will be followed as promptly as practicable by a public announcement. An announcement, in the case of an extension, will be made no later than 9:00 a.m., Eastern time, on the next business day after the previously scheduled Expiration Date. Without limiting the manner in which we may choose to make any public announcement, subject to applicable law (including Rules 14d-4(d) and 14d-6(c) promulgated under the Exchange Act, which require that material changes be promptly disseminated to holders of Shares), we will have no obligation to publish, advertise or otherwise communicate any such public announcement other than by issuing a release to the Dow Jones News Service. If we extend the Offer, are delayed in our payment for Shares (after our acceptance of Shares for payment) or are unable to pay for Shares for any reason, then, without prejudice to our rights under the Offer, the Depositary may retain tendered Shares on our behalf and such Shares may not be withdrawn, except to the extent that tendering shareholders are entitled to withdrawal rights as described in Section 4 of this Offer to Purchase. Our ability to delay the payment for Shares that we have accepted for payment is limited, however, by Rule 14e-1(c) promulgated under the Exchange Act, which requires that we pay the consideration offered or return the Shares deposited by or on behalf of shareholders promptly after the termination or withdrawal of the Offer, unless we include a Subsequent Offering Period under Rule 14d-11 promulgated under the Exchange Act and pay for Shares tendered during the Subsequent Offering Period in accordance with that rule and the terms of the Merger Agreement. 12 If we make a material change in the terms of the Offer, or if we waive a material condition to the Offer, we will extend the Offer and disseminate additional tender offer materials to the extent required by Rules 14d-4(d), 14d-6(c) and 14e-1 promulgated under the Exchange Act. The minimum period during which a tender offer must remain open following material changes in the terms of the Offer, other than a change in price or a change in percentage of securities sought, depends upon the facts and circumstances, including the materiality of the changes. In the SEC's view, an offer should remain open for a minimum of five business days from the date the material change is first published, sent or given to shareholders, and, if material changes are made with respect to information that approaches in significance the terms of the Offer relating to price and the percentage of securities sought, a minimum of ten business days may be required to allow for adequate dissemination and investor response. With respect to a change of price, a minimum ten business day period from the date of the change is generally required to allow for adequate dissemination to shareholders. Accordingly, if, prior to the Expiration Date (and to the extent we are permitted to do so under the Merger Agreement), we decrease the number of Shares being sought, or increase or decrease the consideration offered pursuant to the Offer, and if the Offer is scheduled to expire at any time earlier than the period ending on the tenth business day from the date that notice of the increase or decrease is first published, sent or given to holders of Shares, we will extend the Offer at least until the expiration of that period of ten business days. For purposes of the Offer, a "business day" means any day other than a Saturday, Sunday or a U.S. federal holiday and consists of the time period from 12:01 a.m. through 12:00 midnight, Eastern time. The Offer is conditioned upon, among other things, the satisfaction of the Minimum Condition. Consummation of the Offer is also conditioned upon expiration or termination of all waiting periods imposed by the HSR Act and any laws, rules or regulations analogous to the HSR Act existing in foreign jurisdictions, and the other conditions set forth in Section 15. We reserve the right (but are not obligated), in accordance with applicable rules and regulations of the SEC and with the Merger Agreement, to waive any or all of those conditions. If, by the Expiration Date, any or all of those conditions have not been satisfied, we may, without the consent of the Company, elect to (a) waive all of the unsatisfied conditions (other than the Minimum Condition and the condition relating to the HSR Act) and, subject to complying with applicable rules and regulations of the SEC, accept for payment all Shares so tendered; or (b) subject to the terms of the Merger Agreement, terminate the Offer and not accept for payment any Shares and return all tendered Shares to tendering shareholders. In the event that we waive any condition set forth in Section 15, the SEC may, if the waiver is deemed to constitute a material change to the information previously provided to the shareholders, require that the Offer remain open for an additional period of time and/or that we disseminate information concerning such waiver. The Merger Agreement also gives us the right to extend the initial Expiration Date, without the consent of the Company, in the following events: (i) from time to time, but in no event to a date later than October 1, 2003, if, at the initial Expiration Date (or extended Expiration Date of the Offer, if applicable), one or more of the conditions to the Offer (other than the Minimum Condition) shall not have been satisfied or waived, until such conditions are satisfied or waived; (ii) for any period required by any SEC rule, regulation, interpretation or position applicable to the Offer or any period required by applicable United States law, or (iii) if all of the conditions to the Offer are satisfied or waived but the number of Shares validly tendered and not withdrawn is less than ninety percent (90%) of the outstanding number of Shares, for a subsequent offering period (a "Subsequent Offering Period") consistent with Rule 14d-11 of the Exchange Act; provided that the Expiration Date of the Offer may not extend beyond 12:00 midnight, Eastern time, on October 1, 2003; and provided further, that, in the case of any such Subsequent Offering Period, we (x) accept and pay for Shares validly tendered and not withdrawn, as soon as reasonably practical prior to the date of such extension, (y) otherwise meet the requirements of Rule 14d-11 under the Exchange Act in connection with such Subsequent Offering Period and (z) waive any condition to the consummation of the Merger other than the requirement that there be no statute, rule or regulation by any governmental entity or an injunction by a court of competent jurisdiction which prevents the consummation of the Merger. In addition, we have agreed that, if requested by the Company, we will (a) extend the Offer if, at the Expiration Date, no conditions to the Offer (other than the conditions relating to suits, actions or proceedings or applicable statutes, rules, regulations or injunctions) then excuse performance by us, for up to 20 business days after such previously scheduled Expiration Date, or (b) provide a Subsequent Offering Period if there are validly tendered Shares then owned 13 by Geac representing at least eighty percent (80%), but not more than ninety percent (90%), of the Shares outstanding. Upon the satisfaction or waiver of all the conditions to the Offer and subject to the terms of the Merger Agreement, we will accept for payment, purchase and pay for, in accordance with the terms of the Offer, all Shares validly tendered and not withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer. In order to provide a Subsequent Offering Period, we must satisfy the following conditions: - the Offer was open for a minimum of 20 business days and has expired; - we accept and promptly pay for all Shares tendered during the initial Offer period; - we announce the results of the Offer, including the approximate number and percentage of Shares tendered, no later than 9:00 a.m., Eastern time, on the next business day after the Expiration Date and immediately begin the Subsequent Offering Period; - we immediately accept and promptly pay for Shares as they are tendered during the Subsequent Offering Period; and - we pay the same form and amount of consideration for all Shares tendered during the Subsequent Offering Period. A Subsequent Offering Period, if one is provided, is not an extension of the Offer. A Subsequent Offering Period would be an additional period of time, following the expiration of the Offer, in which shareholders may tender Shares not tendered during the Offer. Pursuant to Rule 14d-7 promulgated under the Exchange Act, no withdrawal rights will apply to Shares tendered in a Subsequent Offering Period and no withdrawal rights apply during the Subsequent Offering Period with respect to Shares tendered in the Offer and accepted for payment. The same consideration, the Offer Price, will be paid to shareholders tendering Shares in the Offer or in a Subsequent Offering Period, if one is provided. The Company has provided us with its shareholder lists and security position listings for the purpose of disseminating the Offer to holders of Shares. We will mail this Offer to Purchase, the related Letter of Transmittal and other relevant materials to record holders of Shares and we will furnish the materials to brokers, dealers, banks and similar persons whose names, or the names of whose nominees, appear on the shareholder lists or, if applicable, who are listed as participants in a clearing agency's security position listing, for forwarding to beneficial owners of Shares. 2. ACCEPTANCE FOR PAYMENT AND PAYMENT Upon the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms and conditions of the Offer as so extended or amended), we will purchase, by accepting for payment, and will pay for all Shares validly tendered and not properly withdrawn prior to the Expiration Date (as permitted by Section 4) promptly after the later to occur of (i) the Expiration Date and (ii) subject to compliance with the applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, the satisfaction or waiver of the conditions to the Offer set forth in Section 15. In addition, subject to applicable rules of the SEC, we reserve the right to delay acceptance for payment of, or payment for, Shares pending receipt of any regulatory or governmental approvals specified in Section 16. For information with respect to regulatory approvals that we are required to obtain prior to the completion of the Offer, see Section 16. In all cases, payment for Shares accepted for payment pursuant to the Offer will be made only after timely receipt by the Depositary of (i) certificates for such Shares (or a timely Book-Entry Confirmation (as defined below in Section 3) with respect thereto), (ii) the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees, or, in the case of a book-entry transfer, an Agent's Message (as defined below), and (iii) any other documents required by the Letter of Transmittal. 14 The term "Agent's Message" means a message transmitted by the Book-Entry Transfer Facility (as defined below in Section 3) to, and received by, the Depositary and forming a part of a Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has received an express acknowledgment from the participant in such Book-Entry Transfer Facility tendering the Shares that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that we may enforce such agreement against the participant. For purposes of the Offer, we will be deemed to have accepted for payment, and thereby purchased, Shares properly tendered to us and not properly withdrawn, if and when we give written notice to the Depositary of our acceptance for payment of such Shares. Payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price therefor with the Depositary, which will act as agent for tendering shareholders for the purpose of receiving payment from us and transmitting payment to tendering shareholders. Upon the deposit of funds with the Depositary for the purpose of making payments to tendering shareholders, our obligation to make such payment shall be satisfied, and tendering shareholders must thereafter look solely to the Depositary for payment of amounts owed to them by reason of the acceptance for payment of Shares pursuant to the Offer. UNDER NO CIRCUMSTANCES WILL WE PAY INTEREST ON THE OFFER PRICE FOR SHARES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT. If we are delayed in our acceptance for payment of, or payment for, Shares or are unable to accept for payment, or pay for, Shares pursuant to the Offer for any reason, then, without prejudice to our rights under the Offer (but subject to compliance with Rule 14e-1(c) under the Exchange Act), the Depositary may, nevertheless, on our behalf, retain tendered Shares, and such Shares may not be withdrawn except to the extent tendering shareholders are entitled to exercise, and duly exercise, withdrawal rights as described in Section 4. If any tendered Shares are not accepted for payment pursuant to the Offer for any reason, or if certificates are submitted representing more Shares than are tendered, certificates representing Shares not tendered or not accepted for purchase will be returned to the tendering shareholder, or such other person as the tendering shareholder shall specify in the Letter of Transmittal, as promptly as practicable following the expiration, termination or withdrawal of the Offer. In the case of Shares delivered by book-entry transfer into the Depositary's account at the Book-Entry Transfer Facility pursuant to the procedures set forth in Section 3, such Shares will be credited to such account maintained at the Book-Entry Transfer Facility as the tendering shareholder shall specify in the Letter of Transmittal, as promptly as practicable following the expiration, termination or withdrawal of the Offer. If no such instructions are given with respect to Shares delivered by book-entry transfer, any such Shares not tendered or not purchased will be returned by crediting the account at the Book-Entry Transfer Facility designated in the Letter of Transmittal as the account from which such Shares were delivered. The Company will pay any transfer taxes payable on the transfer to it of Shares purchased pursuant to the Offer, provided, however, that if (a) payment of the Purchase Price is to be made to, or (in the circumstances permitted by the Offer) unpurchased Shares are to be registered in the name(s) of, any person(s) other than the registered owner(s), or (b) if any tendered certificate(s) are registered, or the Shares tendered are otherwise held, in the name(s) of any person(s) other than the registered owner, the amount of any transfer taxes (whether imposed on the registered owner(s) or such other person(s)) payable on account of such transactions will be deducted from the Purchase Price unless satisfactory evidence of the payment of such taxes, or exemption therefrom, is submitted with the Letter of Transmittal. IF, PRIOR TO THE EXPIRATION DATE, WE INCREASE THE PRICE OFFERED TO HOLDERS OF SHARES IN THE OFFER, WE WILL PAY THE INCREASED PRICE TO THE HOLDERS OF ALL SHARES THAT WE PURCHASE IN THE OFFER, WHETHER THE SHARES WERE TENDERED BEFORE OR AFTER THE INCREASE IN PRICE. We reserve the right to transfer or assign, in whole or from time to time in part, to Geac, or any of our affiliates, the right to purchase all or any portion of the Shares tendered in the Offer, but any such transfer or assignment will not relieve us of our obligations under the Offer or prejudice your rights to receive payment for 15 Shares validly tendered and accepted for payment in the Offer. However, we have no present intention to effect such transfer. 3. PROCEDURES FOR ACCEPTING THE OFFER AND TENDERING SHARES VALID TENDER OF SHARES Except as set forth below, for Shares to be validly tendered pursuant to the Offer, either (i) a properly completed and duly executed Letter of Transmittal, together with any required signature guarantees, or in the case of a book-entry transfer, an Agent's Message, and any other required documents, must be received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase prior to the Expiration Date and either certificates for tendered Shares must be received by the Depositary at one of such addresses or such Shares must be delivered pursuant to the procedures for book-entry transfer set forth below (and a Book-Entry Confirmation (as defined below) received by the Depositary), in each case prior to the Expiration Date, or (ii) the tendering shareholder must comply with the guaranteed delivery procedures set forth below. THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH A BOOK-ENTRY TRANSFER FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. SHARES WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. If your Shares are registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you should contact that person if you desire to tender your Shares. BOOK-ENTRY TRANSFER The Depositary will establish an account with respect to the Shares at The Depositary Trust Company (the "Book-Entry Transfer Facility") for purposes of the Offer within two (2) business days after the date of this Offer to Purchase. Any financial institution that is a participant in the Book-Entry Transfer Facility's systems may make book-entry delivery of Shares by causing the Book-Entry Transfer Facility to transfer such Shares into the Depositary's account in accordance with the Book-Entry Transfer Facility's procedure for such transfer. However, although delivery of Shares may be effected through book-entry transfer into the Depositary's account at the Book-Entry Transfer Facility, the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees, or an Agent's Message, and any other required documents must, in any case, be delivered to, and received by, the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase prior to the Expiration Date, or the tendering shareholder must comply with the guaranteed delivery procedures described below. The confirmation of a book-entry transfer of Shares into the Depositary's account at the Book-Entry Transfer Facility as described above is referred to herein as a "Book-Entry Confirmation." REQUIRED DOCUMENTS MUST BE DELIVERED TO AND RECEIVED BY THE DEPOSITARY AT ONE OF ITS ADDRESSES SET FORTH ON THE BACK COVER PAGE OF THIS OFFER TO PURCHASE. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY. SIGNATURE GUARANTEES No signature guarantee is required on the Letter of Transmittal (i) if the Letter of Transmittal is signed by the registered holder(s) (which term, for purposes of this Section, includes any participant in the Book-Entry Transfer Facility's systems whose name appears on a security position listing as the owner of the Shares tendered therewith) and such registered holder has not completed either the box entitled "Special Delivery Instructions" or the box entitled "Special Payment Instructions" on the Letter of Transmittal or (ii) if such Shares are tendered for the account of a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a participant in the Security Transfer Agents Medallion 16 Program, the New York Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange Medallion Program (each, an "Eligible Institution" and, collectively, "Eligible Institutions"). In all other cases, all signatures on Letters of Transmittal must be guaranteed by an Eligible Institution. See Instructions 1 and 6 to the Letter of Transmittal. If the certificates for Shares are registered in the name of a person other than the signer of the Letter of Transmittal, or if payment is to be made, certificates for Shares not tendered or not accepted for payment are to be returned, to a person other than the registered holder of the certificates surrendered, then the tendered certificates for such Shares must be endorsed or accompanied by appropriate stock powers, in either case, signed exactly as the name or names of the registered holders or owners appear on the certificates, with the signatures on the certificates or stock powers guaranteed as aforesaid. See Instruction 6 to the Letter of Transmittal. GUARANTEED DELIVERY If you want to tender your Shares pursuant to the Offer and your certificates are not immediately available or the procedures for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach the Depositary prior to the Expiration Date, your tender may be effected if all the following conditions are met: - such tender is made by or through an Eligible Institution; - a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by us, is received by the Depositary, as provided below, prior to the Expiration Date; and - the certificates for (or a Book-Entry Confirmation with respect to) such Shares, together with a properly completed and duly executed Letter of Transmittal, with any required signature guarantees, or, in the case of a book-entry transfer, an Agent's Message, and any other required documents, are received by the Depositary within three trading days after the date of execution of such Notice of Guaranteed Delivery. A "trading day" is any day on which the Nasdaq Stock Market is open for business. The Notice of Guaranteed Delivery may be delivered by hand to the Depositary or transmitted by mail to the Depositary at one of its addresses set forth on the back cover page of this Offer to Purchase and must include a guarantee by an Eligible Institution in the form set forth in the Notice of Guaranteed Delivery distributed with this Offer to Purchase. Notwithstanding any other provision of the Offer, we will pay for Shares only after timely receipt by the Depositary of certificates for, or of Book-Entry Confirmation with respect to, the Shares, a properly completed and duly executed Letter of Transmittal, together with any required signature guarantees (or, in the case of a book-entry transfer, an Agent's Message), and any other documents required by the Letter of Transmittal. Accordingly, payment might not be made to all tendering shareholders at the same time, and will depend upon when the Depositary receives certificates or Book-Entry Confirmation that the Shares have been transferred into the Depositary's account at the Book-Entry Transfer Facility. BACKUP FEDERAL TAX WITHHOLDING If you are a U.S. person, the Depositary will withhold United States federal income taxes at a rate of 30% of the gross payment payable to you, unless you complete and sign the Substitute Form W-9 included as part of the Letter of Transmittal, and provide the information and certification necessary to avoid backup withholding. Under the U.S. federal backup withholding tax rules, 30% of the gross proceeds payable to a U.S. person (such as a U.S. citizen or resident alien) under the tender offer generally must be withheld and remitted to the United States Treasury unless the U.S. person has provided the Depositary with a taxpayer identification number ("TIN," usually an employer identification number or a social security number) and certified under penalties of perjury that the TIN is correct and that the U.S. person is not otherwise subject to backup withholding. If, in making such a certification, you fail to furnish the correct TIN or make other false statements, you may be subject to certain penalties specified in the Internal Revenue Code of 1986, as amended (the "Code"). Certain shareholders are exempted from the backup withholding and reporting 17 requirements rules. For additional discussion of U.S. federal income tax consequences to tendering Shareholders, see Section 5. FEDERAL INCOME TAX WITHHOLDING ON FOREIGN SHAREHOLDERS If you are a foreign shareholder or an agent for a foreign shareholder, the Depositary will withhold United States federal income taxes at a rate of 30% of the gross payment payable to you, unless the Depositary determines that an exemption from, or a reduced rate of, withholding tax is applicable because this income is exempt from U.S. taxation, because a tax treaty that applies to you provides for a different withholding rate, because you are exempt from U.S. withholding, or because such gross payment is effectively connected with the conduct of a trade or business by you within the United States. The Depositary must receive certain supporting documentation as follows: - If you are a fiscally-transparent intermediary for non-U.S. persons, before the payment you must deliver to the Depositary a properly completed and executed Form W-8IMY or other equivalent form; - If you are a non-U.S. person claiming an exemption from withholding on the grounds that the gross proceeds paid under the tender offer are effectively connected with the conduct of a trade or business by you within the U.S., before the payment you must deliver to the Depositary a properly completed and executed Form W-8ECI or other equivalent form; - If you are a non-U.S. person otherwise claiming an exemption from, or a reduced rate of, withholding, before the payment you must deliver to the Depositary a properly completed and executed Form W-8EXP, Form W-8BEN or other equivalent form; and - If you are a non-U.S. person who is the beneficial owner of the Shares, and you are not claiming exemption from, or a reduced rate of, withholding as described above, then before the payment you must deliver to the Depositary a properly completed and executed Form W-8BEN or other equivalent form. A foreign Shareholder may be eligible for a refund of all or a portion of any tax that is withheld if the Shareholder is entitled to the benefits of a reduced rate of withholding pursuant to a treaty but a higher rate has been withheld or if the Shareholder is otherwise able to establish that no tax or a reduced rate of tax is actually due. FOREIGN SHAREHOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS REGARDING THE APPLICATION OF U.S. FEDERAL INCOME TAX WITHHOLDING, INCLUDING ELIGIBILITY FOR A REDUCTION OF OR AN EXEMPTION FROM WITHHOLDING TAX. APPOINTMENT AS PROXY By executing the Letter of Transmittal, you irrevocably appoint our designees, and each of them, as your agents, attorneys-in-fact and proxies, with full power of substitution, in the manner set forth in the Letter of Transmittal, to the full extent of your rights with respect to the Shares that you tender and that we accept for payment and with respect to any and all other Shares and other securities or rights issued or issuable in respect of such Shares on or after the date of this Offer to Purchase. All such powers of attorney and proxies will be considered irrevocable and coupled with an interest in the tendered Shares. This appointment will be effective when we accept your Shares for payment in accordance with the terms of the Offer. Upon such acceptance for payment, all other powers of attorney and proxies given by you with respect to your Shares and such other securities or rights granted prior to such payment will be revoked, without further action, and no subsequent powers of attorney and proxies may be given by you (and, if given, will not be deemed effective). Our designees will, with respect to the Shares and such other securities and rights for which the appointment is effective, be empowered to exercise all your voting and other rights as they in their sole discretion may deem proper at any annual or special meeting of the Company's shareholders, or any adjournment or postponement thereof, or by consent in lieu of any such meeting. In order for Shares to be deemed validly tendered, immediately upon the acceptance for payment of such Shares, we or our designee must be able to exercise full voting, consent and other rights with respect to such Shares and other securities, including voting at any meeting of shareholders. 18 DETERMINATION OF VALIDITY All questions as to the validity, form, eligibility (including time of receipt) and acceptance of any tender of Shares will be determined by us, in our sole discretion, which determination will be final and binding. We reserve the absolute right to reject any or all tenders of any Shares determined by us not to be in proper form or the acceptance for payment of which, or payment for which, may be unlawful. We also reserve the absolute right, in our sole discretion, to waive any of the conditions of the Offer or any defect or irregularity in the tender of any Shares of any particular Holder, whether or not similar defects or irregularities are waived in the case of other Holders. No tender of Shares will be deemed to have been validly made until all defects or irregularities relating thereto have been cured or waived. None of Geac, Purchaser, or any of their respective affiliates or assigns, if any, the Depositary, the Information Agent, the Dealer Manager, or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Our interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the instructions thereto) will be final and binding. LOST OR DESTROYED CERTIFICATES Holders of Shares whose certificates for part or all of their Shares have been lost, stolen, misplaced or destroyed should contact the transfer agent for Comshare common stock, Computershare Trust Company of New York, at (312) 360-5223. The shareholder will then be instructed by Computershare Trust Company of New York as to the steps that must be taken in order to replace such certificate. That certificate will then be required to be submitted together with the Letter of Transmittal in order to receive payment for Shares that are tendered and accepted for payment. A bond will be required to be posted by the Holder to secure against the risk that the certificates may be subsequently recirculated. Holders of Shares are urged to contact Computershare Trust Company of New York immediately in order to permit timely processing of this documentation. Certificates, together with a properly completed and duly executed Letter of Transmittal, including any signature guarantees, or an Agent's Message, and any other required documents must be delivered to the Depositary and not to us, the Dealer Manager or the Information Agent. ANY SUCH DOCUMENTS DELIVERED TO US, THE DEALER MANAGER OR THE INFORMATION AGENT WILL NOT BE FORWARDED TO THE DEPOSITARY AND, THEREFORE, WILL NOT BE DEEMED TO BE PROPERLY TENDERED. BINDING AGREEMENT The tender of Shares pursuant to any one of the procedures described above will constitute the tendering shareholder's acceptance of the Offer, as well as the tendering shareholder's representation and warranty that the shareholder has the full power and authority to tender and assign the Shares tendered, as specified in the Letter of Transmittal. Our acceptance for payment of Shares tendered pursuant to the Offer will constitute a binding agreement between the Purchaser and you upon the terms and subject to the conditions of the Offer. 4. WITHDRAWAL RIGHTS Except as otherwise provided in this Section 4, tenders of Shares are irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to the procedures set forth below at any time prior to the Expiration Date and, unless theretofore accepted for payment and paid for by us pursuant to the Offer, may also be withdrawn at any time after August 30, 2003. For a withdrawal to be effective, a written notice of withdrawal must be timely received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase and must specify the name of the person having tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name of the registered holder of the Shares to be withdrawn, if different from the name of the person who tendered the Shares. If certificates for Shares have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such certificates, the serial numbers shown on such certificates must be submitted to the Depositary and, unless such Shares have been tendered by an Eligible Institution, the signatures on the notice of withdrawal must be guaranteed by an Eligible Institution. 19 If Shares have been delivered pursuant to the procedures for book-entry transfer as set forth in Section 3, any notice of withdrawal must also specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Shares and otherwise comply with such Book-Entry Transfer Facility's procedures. Withdrawals of tenders of Shares may not be rescinded, and any Shares properly withdrawn will thereafter be deemed not validly tendered for purposes of the Offer. However, withdrawn Shares may be tendered again following one of the procedures described in Section 3, any time prior to the Expiration Date. If we extend the Offer, are delayed in our acceptance of Shares for payment or are unable to accept Shares for payment for any reason, then, without prejudice to our rights under the Offer, the Depositary may, nevertheless, retain tendered Shares on our behalf, and such Shares may not be withdrawn except to the extent that tendering Holders are entitled to withdraw them as described in this Section 4. Any such delay will be accompanied by an extension of the Offer to the extent required by law. All questions as to the form and validity (including time of receipt) of notices of withdrawal will be determined by us, in our sole discretion, which determination will be final and binding. None of Geac, Purchaser, or any of their respective affiliates or assigns, if any, the Depositary, the Information Agent, the Dealer Manager, or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification. No withdrawal rights will apply to Shares tendered during any Subsequent Offering Period and no withdrawal rights apply during any such Subsequent Offering Period with respect to Shares tendered in the Offer and accepted for payment. 5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES The following discussion applies to shareholders that are "U.S. persons" for federal income tax purposes. The discussion does not address aspects of U.S. taxation other than U.S. federal income taxation, nor does it address aspects of U.S. federal income taxation that may apply to shareholders that are subject to special rules under the Code, including, without limitation, rules that apply to persons who acquired Shares as a result of the exercise of employee stock options, tax-exempt organizations, financial institutions, broker-dealers, insurance companies, persons who hold their shares as part of a straddle, wash sale, hedging or conversion transaction, foreign persons, or pass-through entities. In addition, this discussion does not address state, local or foreign taxation. Your receipt of cash in exchange for Shares pursuant to the Offer or the Merger will be taxable for U.S. federal income tax purposes and may also be taxable under applicable state, local or foreign tax laws. Upon your receipt of cash, you will recognize gain or loss for U.S. federal income tax purposes in an amount equal to the difference, if any, between the amount of cash you receive and your adjusted tax basis in the Shares you sell or exchange pursuant to the Offer or Merger. Gain or loss must be determined separately for each block of Shares exchanged (for example, Shares acquired at the same cost in a single transaction). Such gain or loss will be capital gain or loss (if you hold your Shares as a capital asset) and any such capital gain or loss will be long term if, as of the date of the sale or exchange, you have held the Shares for more than one year. THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL INFORMATION ONLY. YOU ARE URGED TO CONSULT YOUR TAX ADVISOR WITH RESPECT TO THE PARTICULAR TAX CONSEQUENCES TO YOU OF THE OFFER AND THE MERGER, INCLUDING FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES. 20 6. PRICE RANGE OF THE SHARES The Shares are listed and traded on the Nasdaq National Market under the symbol "CSRE." The following table sets forth, for the periods indicated, the high and low closing sales prices for the Shares as reported on the Nasdaq National Market:
HIGH LOW ----- ----- Fiscal Year Ended June 30, 2003 Fourth Quarter............................................ $4.70 $2.00 Third Quarter............................................. 2.77 2.00 Second Quarter............................................ 2.30 1.51 First Quarter............................................. 2.48 1.01 Fiscal Year Ended June 30, 2002 Fourth Quarter............................................ $2.26 $2.20 Third Quarter............................................. 2.66 2.30 Second Quarter............................................ 2.92 2.87 First Quarter............................................. 2.95 2.85
On June 20, 2003, the last full day of trading prior to the public announcement of the execution of the Merger Agreement by the Company, Geac and Purchaser, the closing price as reported by Nasdaq for the Shares was $3.64 per Share. On June 30, 2003, the closing price as reported by Nasdaq for the Shares was $4.55 per Share. SHAREHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE COMMON STOCK. 7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; NASDAQ LISTING; EXCHANGE ACT REGISTRATION EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES The purchase of Shares pursuant to the Offer will reduce the number of Shares that might otherwise trade publicly and could adversely affect the liquidity and market value of the remaining Shares held by the public. The purchase of Shares pursuant to the Offer also can be expected to reduce the number of holders of Shares. We cannot predict whether the reduction in the number of Shares that might otherwise trade publicly would have an adverse or beneficial effect on the market price for or marketability of the Shares or whether it would cause future market prices to be greater or less than the Offer Price. NASDAQ LISTING Depending upon the number of Shares acquired pursuant to the Offer, the Shares may no longer meet the requirements for continued listing on Nasdaq. According to Nasdaq's published guidelines, Nasdaq would consider delisting an issuer's shares if, among other things: (a) the number of the issuer's outstanding shares (with certain exclusions) falls below 750,000, (b) the market value of such shares publicly held falls below $5,000,000, (c) the issuer has shareholder equity of less than $10,000,000, (d) there are fewer than 400 holders of round lots of the issuer's shares, and (e) the minimum bid price falls below $1.00 per share. If, as a result of the purchase of Shares pursuant to the Offer or otherwise, the Shares no longer meet the requirements of Nasdaq for continued listing and/or trading and such trading of the Shares were discontinued, the market for the Shares could be adversely affected. In the event that the Shares were no longer listed or traded on Nasdaq, it is possible that the Shares would trade in the over-the-counter market and that price quotations would be reported through Nasdaq or other sources. Such trading and the availability of such quotations would, however, depend upon the number of shareholders and/or the aggregate market value of the Shares remaining at such time, the interest in maintaining a market in the Shares on the part of securities firms, the possible termination of registration of the Shares under the Exchange Act as described below and other factors. 21 EXCHANGE ACT REGISTRATION The Shares are currently registered under the Exchange Act. The purchase of the Shares pursuant to the Offer may result in the Shares becoming eligible for deregistration under the Exchange Act. Registration of the Shares may be terminated upon application by the Company to the SEC if the Shares are not listed on a "national securities exchange" and there are fewer than 300 record holders of Shares. Termination of registration of the Shares under the Exchange Act would substantially reduce the information required to be furnished by the Company to its shareholders and the SEC and would make certain provisions of the Exchange Act, such as the short-swing profit recovery provisions of Section 16(b) and the requirements of furnishing a proxy statement in connection with shareholder meetings pursuant to Section 14(a), no longer applicable to the Company. If the Shares are no longer registered under the Exchange Act, the requirements of Rule 13e-3 under the Exchange Act with respect to "going private" transactions would no longer be applicable to the Company. Furthermore, the ability of "affiliates" of the Company and persons holding "restricted securities" of the Company to dispose of such securities pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended (the "Securities Act"), may be impaired or eliminated. If, as a result of the purchase of Shares pursuant to the Offer or the proposed Merger, the Company is no longer required to maintain registration of the Shares under the Exchange Act, we intend to cause the Company to apply for termination of such registration. If registration of the Shares is not terminated prior to the Merger, then the Shares will be delisted from the Nasdaq Stock Market and the registration of the Shares under the Exchange Act will be terminated promptly following the consummation of the Merger. 8. INFORMATION CONCERNING THE COMPANY The Company was incorporated in Michigan in 1966. In 1968, the Company completed its initial public offering. The principal executive offices of the Company are located at 555 Briarwood Circle, Ann Arbor, Michigan 48108, and its telephone number is (313) 994-4800. The Company and its subsidiaries develop, market and support management planning and control application software. Management planning and control is the process that encompasses planning, budgeting, forecasting, financial consolidation, management reporting and analysis. The Company's management planning and control applications are designed to help management effectively implement its strategy. The Company targets its products and services primarily for chief financial officers and the finance function across a broad range of industries, offering them software solutions that will help them add value to their organizations and increase their effectiveness and efficiency. Except as otherwise set forth herein, the information concerning the Company contained in this Offer to Purchase, including financial information, has been taken from or is based upon publicly available documents and records on file with the SEC. The summary information concerning the Company in this Section 8 and elsewhere in this Offer to Purchase is derived from the Company's Annual Report on Form 10-K for its fiscal year ended June 30, 2002 and other publicly available information. The summary information set forth in this Section 8 and elsewhere in this Offer to Purchase is qualified in its entirety by reference to such report (which may be obtained and inspected as described below) and should be considered in conjunction with the more comprehensive financial and other information in such report and other publicly available reports and documents filed by the Company with the SEC. Although Purchaser and Geac do not have any knowledge that would indicate that any statements contained herein based upon such reports are untrue, neither Purchaser, Geac, nor the Dealer Manager assumes any responsibility for the accuracy or completeness of the information contained in this Offer to Purchase with respect to the Company or any of its subsidiaries or affiliates or for any failure by the Company to disclose events that may have occurred and may affect the significance or accuracy of any such information but which are unknown to Purchaser and Geac. The Company files annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any reports, statements or other information at the public reference facilities maintained by the SEC at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the SEC's 22 regional offices located at 233 Broadway, New York, New York 10279 and 175 W. Jackson Boulevard, Suite 900, Chicago, Illinois 60604. Information regarding the public reference facilities may be obtained from the SEC by telephoning 1-800-SEC-0330. The Company's filings are also available to the public on the SEC's Internet site (http://www.sec.gov). Copies of such materials may also be obtained by mail from the Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. 9. INFORMATION CONCERNING GEAC AND PURCHASER Geac is a corporation governed by the Canada Business Corporations Act and was incorporated in 1971. Geac's common shares are listed on the Toronto Stock Exchange under the symbol GAC. The principal executive offices of Geac and Purchaser are located at 11 Allstate Parkway, Suite 300, Markham, Ontario L3R 9T8, Canada and the telephone number is (905) 475-0525. The names, business addresses, citizenship, present principal occupations and employment history of each of the directors and executive officers of Geac and Purchaser are set forth in Schedules I and II of this Offer to Purchase. Geac is a global provider of business-critical software applications and systems. Geac is organized around two business groups: its Enterprise Application systems group and its Industry Specific Applications group. The Enterprise Application Systems group serves global and medium-sized enterprises by providing software systems that form the backbone of their information technology infrastructures. The Enterprise Applications Systems group offers enterprise resource planning systems that consist of integrated business applications for accounting, financial administration and human resource functions, as well as for manufacturing, distribution and supply chain management. The Industry Specific Applications group provides industry-specific business applications that are used by customers in the restaurant, construction, property management, library and real estate industries, and by government and public safety agencies, to manage their businesses and operations. Geac is subject to the information and reporting requirements of Section 15(d) of the Exchange Act and is required to file periodic reports and other information with the SEC relating to its business, financial condition and other matters. Certain information, as of particular dates, concerning Geac's business, principal physical properties, capital structure, material pending legal proceedings, operating results, financial condition and certain other matters is required to be disclosed in annual and quarterly reports filed with the SEC. You may inspect a copy of these reports and other information at the SEC's public reference facilities in the same manner as set forth with respect to the Company in Section 8. Purchaser was formed by Geac for the specific purpose of being a party to the Merger Agreement and making the Offer. Purchaser has not conducted any other business to date. On the date of the Offer, Purchaser is an indirect wholly owned subsidiary of Geac. Upon consummation of the Merger, Purchaser will merge with and into the Company and the Company will be an indirect wholly owned subsidiary of Geac. Except as set forth elsewhere in this Offer to Purchase and Schedule III hereto: (i) neither Purchaser, Geac nor, to the best of our knowledge, any of the persons listed in Schedules I and II hereto or any associate or majority-owned subsidiary of Purchaser or Geac or any of the persons so listed, beneficially owns or has a right to acquire any Shares or any other equity securities of the Company; (ii) neither Purchaser, Geac nor, to our knowledge, any of the persons or entities referred to in clause (i) above or any of their executive officers, directors or subsidiaries has effected any transaction in the Shares or any other equity securities of the Company during the past 60 days; (iii) neither Purchaser, Geac nor, to our knowledge, any of the persons listed in Schedules I and II hereto, has any contract, arrangement, understanding or relationship with any other person with respect to any securities of the Company, including, but not limited to, the transfer or voting thereof, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or the giving or withholding of proxies, consents or authorizations; (iv) during the two years prior to the date of this Offer to Purchase, there have been no transactions that would require reporting under the rules and regulations of the SEC between Purchaser, Geac or any of their respective subsidiaries or, to our knowledge, any of the persons listed in Schedules I and II hereto, on the one hand, and the Company or any of its 23 executive officers, directors or affiliates, on the other hand; and (v) during the two years prior to the date of this Offer to Purchase, there have been no contracts, negotiations or transactions between Purchaser, Geac or any of their respective subsidiaries or, to the best of our knowledge, any of the persons listed in Schedules I and II hereto, on the one hand, and the Company or its subsidiaries or affiliates, on the other hand, concerning a merger, consolidation or acquisition, tender offer or other acquisition of securities, an election of directors or a sale or other transfer of a material amount of assets of the Company. 10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY In November 2002, the Company's executive management and Board of Directors met and discussed the possibility that the Company's prospects for improved shareholder value might be enhanced by exploring strategic alternatives. The Company's legal counsel reviewed for the Board the fiduciary duties of the Company's Board when considering strategic alternatives for the Company. On November 22, 2002, the Company engaged Bryant Park Capital, Inc. ("Bryant Park Capital") to act as the Company's exclusive financial advisor in connection with evaluating the Company's strategic alternatives. Beginning in December 2002, the Company approached various parties about the possibility of acquiring the Company. In January 2003, the Company prepared a Confidential Informational Memorandum (the "Confidential Memorandum"), which contained a brief description of the Company's business, as well as certain financial information. During 2003, the Company signed confidentiality agreements with a number of parties, providing them with access to the Confidential Memorandum and additional information about the Company, and provided them the ability to meet with management. Representatives of Bryant Park Capital and Richard Crandall, a director of the Company, acting on behalf of the Company, discussed a potential transaction with these parties. Seven parties commenced due diligence investigations of the Company and had meetings with members of the Company's management, including Dennis Ganster, Chairman, President and Chief Executive Officer; Brian Hartlen, Senior Vice President, Marketing; David King, Senior Vice President, Product Development and Chief Technology Officer; Kenneth Kane, Senior Vice President, Direct Operations; and Brian Jarzynski, Senior Vice President and Chief Financial Officer. On February 14, 2003, the Board held a regularly scheduled meeting. Among the matters covered was the status of discussions with parties potentially interested in engaging in a transaction with the Company. By mid-March 2003, there were three parties interested in discussing further the possible acquisition of the Company. Over the course of the next month, the Company engaged in continuing discussions and due diligence activities with these and other potentially interested parties. On March 31, 2003, the Board met to discuss the status of discussions with interested parties. On April 1, 2003, a member of the Company's Board of Directors and a member of Geac's board of directors discussed Geac's interest in a potential transaction with the Company. On April 14, 2003, Mr. Crandall and William Nelson, a member of the board of directors of Geac, discussed the nature of Geac's interest in the Company. As a result of that contact, Charles S. Jones, Executive Chairman of Geac, contacted Mr. Crandall on April 21, 2003 to discuss a potential acquisition of the Company. On April 24, 2003, Geac and the Company entered into a confidentiality agreement, and Bryant Park Capital, at the Company's request, provided Geac with the Confidential Memorandum and additional information about the Company. On April 25, 28 and 29, and May 2, 2003, members of the management of Geac, including Mr. Jones; Paul Birch, President and Chief Executive Officer; Tim Wright, Chief Technology Officer; Jay Sherry, Senior Vice President, Marketing and Strategic Alliances; and Joyce Koenig, Vice President, Strategic Financial Analysis, met with members of the Company's management in Ann Arbor, Michigan and Boston, Massachusetts to conduct initial due diligence. On several occasions between April 30 and May 5, 2003, Mr. Jones and Mr. Crandall discussed the terms of a non-binding indication of interest. On May 7, 2003, Geac submitted a written non-binding indication of interest to acquire the Company. The Company and Geac negotiated the final terms of the indication of interest over the next few days. The final indication of interest provided for Geac to acquire all of the Company's outstanding Shares for an aggregate price of $53 million in cash (which represented approximately $4.68 per Share), with standard conditions, including satisfactory completion of due diligence and execution of voting and tender agreements by each of Codec and Dennis Ganster. Geac also indicated that the transaction 24 would be fully financed from Geac's available cash. On May 8, 2003, the Board met to discuss the status of discussions with the parties that had expressed an interest in acquiring the Company. On May 12, 2003, Dykema Gossett PLLC, counsel to the Company, provided Geac with a draft merger agreement. On May 13, 2003, the non-binding indication of interest was approved by the Company's Board and executed by the parties. The indication of interest provided Geac with an exclusivity period through June 3, 2003, during which the Company agreed to not knowingly solicit, initiate, participate in discussions or negotiations (including discussions pending on the date of the letter) or otherwise cooperate in any way with any other person, entity or group concerning an acquisition of the Company or enter into any agreement to effect any such transaction; provided, however, that the exclusivity period terminated in the event that Geac proposed paying total consideration in any acquisition of the Company that was less than $53 million. In any event, the exclusivity period did not preclude the Company from complying with the requirements of Securities and Exchange Commission Rule 14e-2. On May 14, 2003, Geac commenced confirmatory due diligence, including accounting and legal due diligence, of the Company. Between May 20 and May 28, 2003, representatives from PricewaterhouseCoopers LLP, Geac's accountants, visited the Company's facilities and conducted financial and accounting due diligence, while Geac's legal representatives from Blake, Cassels & Graydon LLP and Foley Hoag LLP also conducted legal due diligence. On May 29 and June 4, 2003, representatives from the Company, including Mr. Jarzynski, held telephone conferences with representatives from Geac regarding due diligence matters. On June 2, 2003, Mr. Crandall advised Mr. Jones that the exclusivity period contained in the indication of interest would not be extended. On June 5, 2003, Mr. Crandall and Mr. Jones had a telephone discussion and exchanged e-mail correspondence regarding certain due diligence matters. On June 6, 2003, the Company received initial comments from Geac to the draft of the Merger Agreement that had been prepared by the Company's legal counsel, as well as a draft tender and voting agreement. On the evening of June 6, 2003, Mr. Crandall was contacted by Mr. Jones who indicated that Geac's board had met that evening to review the results of due diligence review and the status of the transactions, and had determined to lower its aggregate offer price to $48 million (which represented approximately $4.27 per share). Mr. Crandall then indicated to Mr. Jones that he did not believe that the Company's Board would accept such a proposal. Mr. Crandall and Mr. Jones had subsequent discussions over the next few days, and on the evening of June 8, 2003, Geac agreed to increase the aggregate offer price to $52 million. The Company's legal counsel provided responses to Geac's comments on the Merger Agreement on June 10, 2003 and provided comments on the tender and voting agreement on June 12, 2003. On June 13, 2003, the Board met to discuss the status of discussions with Geac and the terms of the proposed Merger Agreement. The parties then engaged in negotiation of the specific terms of the transaction documents, including, without limitation, the conditions to the Offer, the circumstances under which the parties could terminate the Merger Agreement and the amount of the termination fee if the Company terminated the Merger Agreement. Through the course of negotiations, the Company and its legal and financial advisors continued to provide Geac and its financial and legal advisors with material in response to Geac's due diligence requests. On several occasions during this period of negotiation, Mr. Crandall and Mr. Jones had telephone conversations to discuss and resolve certain contract terms and other outstanding issues. On June 18, 2003, Geac informed the Company that Geac's board had approved the Merger Agreement and other related agreements, subject to the resolution of outstanding issues and the finalization of definitive documentation in form satisfactory to Messrs. Jones and Birch. On June 19, 2003, the Company's Board of Directors held a meeting to evaluate the proposed transaction with Geac. At that meeting, prior to any Board action, the Company's legal counsel reviewed the Board's fiduciary duties and the material terms of the Merger Agreement, including the termination provisions and break-up fees. Also at such meeting, Bryant Park Capital rendered to the Board an oral opinion (which opinion was confirmed by delivery of a written opinion dated June 22, 2003, the date of the Merger Agreement) to the effect that, as of the date of the opinion and based upon and subject to certain matters stated in the opinion, the $4.60 net per Share cash consideration to be received in the Offer and the Merger, 25 taken together, by holders of Shares (other than Geac and its affiliates) was fair, from a financial point of view, to such holders. After further discussion, the Board approved the Merger Agreement and other related agreements, and determined that the transaction was fair to and in the best interests of the Company's shareholders and declared it advisable. After the meeting of the Company's Board of Directors on June 19, 2003, the Company informed Geac that its Board had approved the transactions with Geac, subject to resolution of outstanding issues and finalization of definitive documentation. Over the next several days, legal counsel for each of the Company and Geac negotiated resolution of all remaining outstanding issues and Geac completed negotiations and signed employment agreements with Messrs. Hartlen and King, which was a condition to Geac and Purchaser signing the Merger Agreement. The Merger Agreement and other related agreements were executed on June 22, 2003, and the transaction was announced publicly through press releases issued by each of the Company and Geac before the opening of trading in the Company's Common Stock on the Nasdaq National Market(R) on June 23, 2003. The Company's Board of Directors met on June 29, 2003 to consider a letter received from a party expressing an interest in submitting a proposal to acquire all of the outstanding Shares at an unspecified cash price, subject to completion of due diligence. The letter indicated that the proposal would be "materially higher" than $4.60 per Share. The Company's Board concluded at the meeting that, because the letter did not contain sufficient details concerning the proposal, including the absence of a price and financing information, the Board was not able to determine that the proposal may result in a Superior Proposal (as defined in "Item 4. The Solicitation or Recommendation -- Reasons for the Recommendation" below) and advised the third party of that conclusion. On July 1, 2003, in accordance with the Merger Agreement, the Purchaser commenced the Offer. 11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY The purpose of the Offer is to enable Geac to acquire control of, and the entire equity interest in, the Company. The Offer is being made pursuant to the Merger Agreement and is intended to increase the likelihood that the Merger will be effected. The purpose of the Merger is to acquire all of the outstanding Shares not purchased pursuant to the Offer. Pursuant to the terms of the Merger Agreement, Geac currently intends, promptly after consummation of the Offer, to exercise its right under the Merger Agreement to designate a majority of directors to the Company Board to reflect its total voting power of Shares then outstanding. Geac and Purchaser intend to consummate the Merger as soon as possible following the consummation of the Offer. Except as otherwise provided in this Offer to Purchase, it is expected that, initially following the Merger, the business and operations of the Company will be continued substantially as they are currently being conducted. Geac will continue to evaluate the business and operations of the Company during the pendency of the Offer and after the consummation of the Offer and the Merger and will take such actions as it deems appropriate under the circumstances then existing. In addition, Geac will continue to seek additional information about the Company during such time periods. Thereafter, Geac intends to review such additional information as part of a comprehensive review of the Company's business, operations, capitalization and management with a view to optimizing development of the Company's potential in conjunction with Geac's businesses. Shareholders of the Company who tender and sell their Shares in the Offer will cease to have any equity interest in the Company and any right to participate in its earnings and future growth. If the Merger is consummated, non-tendering shareholders will no longer have an equity interest in the Company and instead will have only the right to receive cash consideration pursuant to the Merger Agreement. Similarly, after selling their Shares in the Offer or the subsequent Merger, shareholders of the Company will not bear the risk of any decrease in the value of the Company. Under Section 711 of the Business Corporation Act of the State of Michigan, as amended (the "Business Corporation Act"), if a corporation owns at least 90% of the outstanding shares of each class of voting 26 securities of a subsidiary corporation, the corporation holding such stock may merge such subsidiary into itself, or itself into such subsidiary pursuant to a short-form merger, without any action or vote on the part of the board of directors or the shareholders of such other corporation. In the event that we acquire in the aggregate, pursuant to the Offer, by exercise of the Top-Up Option or otherwise, at least 90% of the Shares then outstanding, then, at the election of the Purchaser, a short-form merger of us with and into the Company could be effected without any further approval of the Company Board or the shareholders of the Company. Even if we do not own 90% of the Shares outstanding following consummation of the Offer, Geac could seek to purchase additional Shares in the open market or otherwise in order to reach the applicable 90% threshold and employ such a short-form merger. The per share consideration paid for any Shares so acquired in open market purchases may be greater or less than the Offer Price. Geac presently intends to effect a short-form merger, if permitted to do so under the Business Corporation Act, pursuant to which Purchaser will be merged with and into the Company. Except as described above or elsewhere in this Offer to Purchase, Purchaser and Geac have no present plans that would relate to or result in an extraordinary corporate transaction involving the Company or any of their respective subsidiaries (such as a merger, reorganization, liquidation, relocation of any operations or sale or other transfer of a material amount of assets), any sale or transfer of a material amount of assets of the Company or any of its subsidiaries, any change in the Company Board or management, any material change in the Company's capitalization or dividend policy or any other material change in the Company's corporate structure or business. 12. DESCRIPTION OF MERGER AGREEMENT, VOTING AND TENDER AGREEMENTS AND CONFIDENTIALITY AGREEMENTS THE FOLLOWING IS A SUMMARY OF MATERIAL PROVISIONS OF THE MERGER AGREEMENT, VOTING AND TENDER AGREEMENTS AND CONFIDENTIALITY AGREEMENTS. THIS SUMMARY IS NOT A COMPLETE DESCRIPTION OF THE TERMS AND CONDITIONS OF SUCH AGREEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE FULL TEXT OF SUCH AGREEMENTS FILED WITH THE SEC AS EXHIBITS TO THE SCHEDULE TO AND IS INCORPORATED HEREIN BY REFERENCE. CAPITALIZED TERMS NOT OTHERWISE DEFINED BELOW WILL HAVE THE MEANINGS SET FORTH IN THE MERGER AGREEMENT. THE MERGER AGREEMENT, VOTING AND TENDER AGREEMENTS AND CONFIDENTIALITY AGREEMENTS MAY BE EXAMINED, AND COPIES OBTAINED, AS SET FORTH IN SECTION 8 OF THIS OFFER TO PURCHASE. MERGER AGREEMENT The Offer. The Merger Agreement provides for the commencement of the Offer on or before July 3, 2003. Our obligation to accept for payment, purchase and pay for Shares validly tendered and not withdrawn pursuant to the Offer is subject to the satisfaction of each of the conditions of the Offer including the condition that at least a majority of the Shares outstanding on a fully diluted basis have been validly tendered and not withdrawn prior to the expiration of the Offer and certain other conditions described in Section 15 below. We expressly reserve the right to waive the Minimum Condition or any of the other conditions to the Offer and to make any change in the terms or conditions of the Offer. However, without the prior written consent of the Company, we will not (a) waive the Minimum Condition, (b) change the form of consideration payable in the Offer, (c) decrease the price per Share or the number of Shares sought in the Offer, (d) impose conditions to the Offer in addition to those set forth in the Merger Agreement or are otherwise adverse to the holders of the Shares, or (e) waive the condition that by the Determination Time (as defined in the Merger Agreement) any applicable waiting period under the HSR Act or any laws, rules or regulations analogous to the HSR Act existing in foreign jurisdictions has expired or been terminated. Upon the applicable Expiration Date of the Offer, we may extend the Offer beyond the initial Expiration Date, without the consent of the Company, in the following events: (i) from time to time, but in no event to a date later than October 1, 2003, if, at the initial Expiration Date (or extended Expiration Date of the Offer, if applicable), one or more of the conditions to the Offer (other than the Minimum Condition) shall not have been satisfied or waived, until such conditions are satisfied or waived; (ii) for any period required by any SEC rule, regulation, interpretation or position applicable to the Offer or any period required by applicable United States law, or (iii) if all of the conditions to the Offer are satisfied or waived but the number of Shares validly tendered and not withdrawn is less than ninety percent (90%) of the outstanding number of Shares for a 27 subsequent offering period (a "Subsequent Offering Period") consistent with Rule 14d-11 of the Exchange Act; provided that the Expiration Date of the Offer may not extend beyond 12:00 midnight, Eastern time, on October 1, 2003; and provided further, that, in the case of any such Subsequent Offering Period, we (x) accept and pay for Shares validly tendered and not withdrawn, as soon as reasonably practical prior to the date of such extension, (y) otherwise meet the requirements of Rule 14d-11 under the Exchange Act in connection with such Subsequent Offering Period and (z) waive any condition to the consummation of the Merger other than the requirement that there be no statute, rule or regulation by any governmental entity or an injunction by a court of competent jurisdiction which prevents the consummation of the Merger. In addition, we have agreed that, if requested by the Company, we will (a) extend the Offer if at the Expiration Date, no conditions to the Offer (other than the conditions relating to suits, actions or proceedings or applicable statutes, rules, regulations or injunctions) then excuse performance by us, for up to 20 business days after such previously scheduled Expiration Date, or (b) provide a Subsequent Offering Period if there are validly tendered Shares then owned by Geac representing at least eighty percent (80%), but not more than ninety percent (90%), of the Shares outstanding. Upon the satisfaction or waiver of all the conditions to the Offer and subject to the terms of the Merger Agreement, we will accept for payment, purchase and pay for, in accordance with the terms of the Offer, all Shares validly tendered and not withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer. In order to provide a Subsequent Offering Period, we must satisfy the following conditions: - the Offer was open for a minimum of 20 business days and has expired; - we accept and promptly pay for all Shares tendered during the initial Offer period; - we announce the results of the Offer, including the approximate number and percentage of Shares tendered, no later than 9:00 a.m., Eastern time, on the next business day after the Expiration Date and immediately begin the Subsequent Offering Period; - we immediately accept and promptly pay for Shares as they are tendered during the Subsequent Offering Period; and - we pay the same form and amount of consideration for all Shares tendered during the Subsequent Offering Period. A Subsequent Offering Period, if one is provided, is not an extension of the Offer. A Subsequent Offering Period would be an additional period of time, following the expiration of the Offer, in which shareholders may tender Shares not tendered during the Offer. Pursuant to Rule 14d-7 promulgated under the Exchange Act, no withdrawal rights will apply to Shares tendered in a Subsequent Offering Period and no withdrawal rights apply during the Subsequent Offering Period with respect to Shares tendered in the Offer and accepted for payment. The same consideration, the Offer Price or any higher price per Share paid in the Offer, will be paid to shareholders tendering Shares in the Offer or in a Subsequent Offering Period, if one is provided. Recommendation. The Company has represented to Purchaser in the Merger Agreement that the Company Board has (a) unanimously determined that the Merger Agreement and the transactions contemplated thereby, including, without limitation, the Offer, the Merger and the purchase of the Shares and associated Rights contemplated by the Offer (collectively, the "Transactions") are fair to and in the best interests of the Company's shareholders, (b) unanimously approved and adopted the Merger Agreement and the Transactions, including the Offer and the Merger, in accordance with the requirements of Michigan Law and (c) resolved to recommend acceptance of the Offer and approval and adoption of the Merger Agreement and the Merger by its shareholders. However, such recommendation may be withdrawn in the event that the Company receives an Acquisition Proposal (as defined below) which the Company Board determines in good faith after consultation with and advice from the Company Financial Advisor (as defined in the Merger Agreement) or other financial advisor of nationally recognized reputation constitutes a Superior Proposal and the Company Board determines in good faith, after consultation with and advice from outside legal counsel, that the failure to take such action would not be consistent with its fiduciary duties under applicable law. The 28 Company further represented that the Company Financial Advisor has delivered to the Company Board its opinion to the effect that, as of the date of the Merger Agreement, the consideration to be paid in the Offer and the Merger is fair, from a financial point of view, to the holders of Shares. The Merger. The Merger Agreement provides that, at the Effective Time, Purchaser will be merged with and into the Company. Following the Merger, the Company will continue as the surviving corporation (the "Surviving Corporation") and will be an indirect, wholly owned subsidiary of Geac. The Company has agreed that if approval of the Company's shareholders is required under Michigan law to consummate the Merger, the Company will cause a meeting of its shareholders (the "Company Shareholder Meeting") to be duly called and held as soon as practicable following the consummation of the Offer, for the purpose of voting on the approval and adoption of the Merger Agreement and the Merger. The Company has also agreed to, among other things, prepare and file proxy materials with the SEC in connection with the Company Shareholder Meeting. Certificate of Incorporation and Bylaws. The Merger Agreement provides that the articles of incorporation of the Company in effect at the Effective Time shall be the articles of incorporation of the Surviving Corporation until amended in accordance with applicable law. Directors and Officers. Pursuant to the Merger Agreement, and subject to applicable law, from and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with applicable law, (i) the directors of Purchaser at the Effective Time shall be the directors of the Surviving Corporation and (ii) the officers of the Company at the Effective Time shall be the officers of the Surviving Corporation. Conversion of Securities. Pursuant to the Merger Agreement, at the Effective Time (x) each Share outstanding immediately prior to the Effective Time (other than Shares held by Geac, Purchaser or any of Geac's direct or indirect wholly owned subsidiaries), together with the Rights attached thereto, shall be converted into the right to receive the Offer Price; (y) each Share that is owned by Geac, Purchaser or any of their respective subsidiaries immediately prior to the Effective Time will be canceled and no payment shall be made with respect to such Shares; and (z) each Share of common stock of Purchaser outstanding immediately prior to the Effective Time will be converted into and become one share of common stock of the Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation. Stock Options. The Merger Agreement provides that at or immediately prior to the Effective Time each outstanding Stock Option, whether or not vested or exercisable and without regard to any agreements qualifying the right to retain or exercise any such option or award, will be canceled, and the Surviving Corporation will pay each holder of any such option at or promptly after the Effective Time for each such option an amount in cash determined by multiplying (a) the excess, if any, of the Merger Consideration per Share over the applicable exercise price or base price, if any, of such option by (b) the number of Shares underlying such option. Top-Up Option. Pursuant to the Merger Agreement, the Company granted to Purchaser the Top-Up Option to purchase up to that number of Shares (the "Top-Up Option Shares") equal to the lowest number of Shares that, when added to the number of Shares owned by Purchaser at the time of such exercise, will constitute one share more than 90% of the Shares then outstanding on a fully diluted basis (assuming the issuance of the Top-Up Option Shares and the exercise of all outstanding exercisable options to purchase Shares with an exercise price less than the Offer Price) at a purchase price per Top-Up Option Share equal to the Offer Price. Purchaser may, at its election, exercise the Top-Up Option, in whole but not in part, at any one time after the occurrence of a Top-Up Exercise Event and prior to the Top-Up Termination Date (as defined below). A "Top-Up Exercise Event" will occur upon Purchaser's acceptance for payment pursuant to the Offer of Shares constituting at least 80% of the Shares then outstanding. The "Top-Up Termination Date" will occur upon the earliest to occur of (i) the Effective Time, (ii) the termination of the Merger Agreement, (iii) the date that is ten business days after the occurrence of a Top-Up Exercise Event, unless the Purchaser has notified the Company of its intent to exercise the Top-Up Option in accordance with the terms and conditions of the 29 Merger Agreement and (iv) the date that is ten business days after the Top-Up Response Date (as defined below) unless the Top-Up Closing (as defined below) has previously occurred. The Company's obligation to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the following conditions: (i) that any applicable waiting period under the HSR Act and regulations analogous to the HSR Act existing in foreign jurisdictions relating to the issuance of the Top-Up Option Shares will have expired or been terminated; (ii) that no provision of any applicable law or regulation and no judgment, injunction, or decree prohibits the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of any such exercise; and (iii) delivery of the Top-Up Option Shares would not require the approval of the Company's shareholders pursuant to the rules and regulations of the Nasdaq Stock Market. Representations and Warranties. Pursuant to the Merger Agreement, the Company has made customary representations and warranties to Geac and Purchaser with respect to, among other matters, its corporate existence and power, corporate authorization, government authorization, non-contravention, capitalization, required filings with the SEC, financial statements, disclosure documents, absence of certain events, absence of undisclosed material liabilities, compliance with laws and court orders, litigation, finders' fees, taxes, employee benefit plans, foreign employee benefit plans, antitakeover statutes and rights agreement, intellectual property, title and conditions of properties, insurance, certain contracts, employment matters and voting requirements. Geac has made customary representations and warranties to the Company with respect to, among other matters, its corporate existence and power, corporate authorization, government authorization, non-contravention, disclosure documents, finders' fees and financing. Covenants. The Merger Agreement obligates the Company and its subsidiaries, from the date of the Merger Agreement and continuing until the Effective Time, to: (a) conduct their business in the ordinary course consistent with past practice and (b) use all commercially reasonable efforts to preserve intact their business organizations and relationships with third parties and to keep available the services of their officers and employees. The Merger Agreement also contains customary covenants restricting certain activities of the Company during the period from the date of the Merger Agreement and continuing until the Effective Time. These covenants provide that the Company will not (and will not permit any of its subsidiaries to) take certain actions without the prior written consent of Geac, with respect to, among other things, making or declaring dividends, initiating stock splits, repurchasing, redeeming or issuing shares of capital stock (other than pursuant to the exercise of stock options), amending its articles of incorporation or bylaws, acquiring other significant businesses, selling or licensing its assets (other than in the ordinary course of business), making significant capital expenditures, incurring debt, making loans, making a new employee compensation plan or amending its existing plan, increasing compensation to directors, officers and employees or entering into new employment arrangements (other than in the ordinary course of business), paying undisclosed bonuses, changing its accounting policies, procedures or practices, making a tax election, settling material income tax liabilities, settling certain litigation, canceling material insurance policies, entering into material contracts (other than in the ordinary course of business), agreeing to limit its line of business or geographic area, liquidating, dissolving or reorganizing its business, altering the corporate structure of itself or any of its subsidiaries, making payments exceeding $200,000 (other than in the ordinary course of business), renewing or terminating significant distribution agreements, agreeing to do any of the foregoing or redeeming the Rights or terminating the Rights Agreement. No Solicitation. The Merger Agreement provides that the Company will not, and will not permit any of its subsidiaries to, and will use its best efforts to ensure that its officers, directors, employees, investment bankers, consultants or other advisors or agents retained by it or any of its subsidiaries, do not solicit, initiate or intentionally encourage the submission of any Acquisition Proposal (as defined below) or engage in discussions or negotiations or furnish to any person any information with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. Nothing contained in the Merger Agreement prevents the Company Board from complying with Rule 14d-9 or Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure to the Company's shareholders if, in the 30 good faith judgment of the Company Board, after consultation with and advice from outside legal counsel, failure to make such disclosure would constitute a breach of the fiduciary duties of the Company Board under applicable law or otherwise violate applicable law. The Company may, however, negotiate or otherwise engage in discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Company Board determines in good faith, after consultation with and advice from the Company Financial Advisor or a financial advisor of nationally recognized reputation, that such Acquisition Proposal may result in a Superior Proposal (as defined below) and (ii) such Person executes a confidentiality agreement no less favorable to the Company than the Confidentiality Agreement (including the standstill provisions). Prior to providing any information to or entering into discussions or negotiations with any Person in connection with an Acquisition Proposal, the Company will promptly (i) notify Geac of any Acquisition Proposal, including providing a copy of any written Acquisition Proposal or amendments or supplements to such Acquisition Proposal, (ii) inform Geac of the status of any discussions or negotiations with such a third party and any material changes to the terms and conditions of such Acquisition Proposal and (iii) deliver to Geac a copy of any information delivered to such person which has not previously been delivered by the Company to Geac. Except as permitted above, neither the Company Board nor any committee thereof may, (i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Geac, its recommendation discussed above, or take any action not explicitly permitted by the Merger Agreement that would be inconsistent with, its approval of the Offer and the Merger, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement, commitment or similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, the Company Board will be permitted (i) not to recommend to its shareholders acceptance of the Offer and/or approval and adoption of the Merger Agreement and the Merger, (ii) to withdraw, or modify in a manner adverse to Geac, its recommendation to its shareholders discussed above, (iii) to approve or recommend any Superior Proposal or (iv) to terminate the Merger Agreement in accordance with its terms and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (y) the Company has received an Acquisition Proposal which the Company Board determines in good faith after consultation with and advice from the Company Financial Advisor or other financial advisor of nationally recognized reputation constitutes a Superior Proposal and (z) the Company Board determines in good faith, after consultation with and advice from outside legal counsel, that the failure to take such action would not be consistent with its fiduciary duties under applicable law. Under the Merger Agreement, "Acquisition Proposal" means any offer or proposal for, or any inquiry or indication of interest in, (i) any sale, lease, exchange, mortgage, transfer or other disposition of 50% or more of the consolidated assets of the Company and its Subsidiaries, (ii) any acquisition or purchase of an equity interest in the Company representing in excess of 15% of the power to vote for the election of the directors of the Company, or any tender offer or exchange offer for equity securities of the Company as a result of which the offeror would hold such an equity interest in the Company, (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 50% of the consolidated assets of the Company, (iv) a plan of liquidation or extraordinary dividend relating to more than 50% of its total assets or (v) the repurchase by the Company or its Subsidiary of more than 50% of the outstanding Shares, in each case other than the Transactions. Under the Merger Agreement, "Superior Proposal" means any bona fide written Acquisition Proposal, not solicited by the Company or by any affiliate or agent of the Company, which contains no financing contingency, or for which financing is reasonably determined to be available by the Company Board, and which the Company Board determines in good faith, after consultation with and advice from the Company Financial Advisor or other financial advisor of nationally recognized reputation, and taking into account all the terms and conditions of the Acquisition Proposal is more favorable to the Company's shareholders (in their capacities as stockholders) from a financial point of view than the Offer and Merger. 31 Other Actions. The Merger Agreement provides that the Company, Geac, and Purchaser, will: - use all commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Transactions, including but not limited to making all filings with the SEC necessary to consummate such transactions, - each file a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as practicable and in any event within ten business days of the date of the Merger Agreement and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable, and - use all commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other party informed in all material respects of any material communication received by such party from, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the "Antitrust Division") or any other governmental authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other party to review any material communication given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the Antitrust Division or any such other governmental authority or, in connection with any proceeding by a private party, with any other Person. Company Shareholder Meeting. Pursuant to the Merger Agreement, if required by Michigan law in order to consummate the Merger, the Company, acting through the Company Board, will call and hold a meeting of its shareholders as soon as reasonably practicable after consummation of the Offer for the purpose of voting on the approval and adoption of the Merger Agreement and the Merger (the "Company Shareholder Meeting"). If Purchaser acquires at least 90% of the outstanding Shares, however, the parties will take all necessary and appropriate action to cause the Merger to become effective, in accordance with Section 711 of the Business Corporations Act, without a meeting of the shareholders of the Company. Company Board Representation. The Merger Agreement provides that upon acceptance for payment by Purchaser of a number of Shares pursuant to the Offer that satisfies the Minimum Condition, Geac is entitled to designate the number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of (i) the total number of directors on the Company Board (giving effect to any increase in the number of directors pursuant to this provision) and (ii) the percentage that the number of Shares beneficially owned by Geac (including Shares accepted for payment) bears to the total number of Shares outstanding, and the Company will take all action necessary to cause Geac's designees to be elected or appointed to the Company Board, including, without limitation, increasing the number of directors and seeking and accepting the resignations of incumbent directors. At such time, the Company will also use its best efforts to cause individuals designated by Geac to constitute the number of members, rounded up to the next whole number, on each committee of the Company Board other than any such committee of independent directors established to take action under the Merger Agreement, as more fully described below, that represents the same percentage as such individuals represent on the Company Board. However, if Geac's designees are appointed or elected to the Company Board, the Company Board will at all times until the Effective Time have at least two directors who are directors on the date of the Merger Agreement or who are neither officers or employees of the Company or Geac or any of their respective affiliates (the "Independent Directors"); provided that if less than two Independent Directors remain, the other directors will designate persons to fill such vacancies who meet the foregoing criteria and such persons will be deemed to be Independent Directors for all purposes of this Agreement. Following the election or appointment of Geac's designees and until the Effective Time, the approval of the majority of Independent Directors will be required to authorize (and such authorization will constitute the authorization of the Company Board and no other action on the part of the Company, including any action by 32 any other directors of the Company, will be required to authorize) any termination or amendment of the Merger Agreement by the Company (other than in relation to the Company's obligation to deliver the Top-Up Option Shares), any extension of time for performance of any obligation or action under the Merger Agreement by Geac or Purchaser, any waiver of compliance with any of the agreements or conditions contained in the Merger Agreement for the benefit of the Company (other than in relation to the Company's obligation to deliver the Top-Up Option Shares), any action as to which the consent or agreement of the Company is required under the Merger Agreement, and the assertion or enforcement of the Company's rights under this Agreement to object to (i) failure to consummate the Merger for failure of a condition contained herein for the benefit of the Company to be satisfied or (ii) a termination of the Merger Agreement Agreement. Access to Information. The Merger Agreement provides that, during the period after the execution of the Merger Agreement and prior to the Effective Time, and subject to applicable law and the Company Confidentiality Agreement, the Company will: - give Geac, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of the Company and its subsidiaries, - furnish to Geac, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information as they may reasonably request, and - instruct the employees, counsel, financial advisors, auditors and other authorized representatives of the Company and its subsidiaries to cooperate with Geac in its investigation of the Company and its subsidiaries, other than information or documentation relating to Acquisition Proposals made by Third Parties. Indemnification and Insurance. Pursuant to the Merger Agreement, Geac and the Surviving Corporation will, jointly and severally, to the fullest extent permitted by the Business Corporations Act, for a period of six years following the Effective Time, indemnify and hold harmless each present and former officer and director of the Company and of any Subsidiary of the Company (each an "Indemnified Person") in respect of acts or omissions occurring at or prior to the Effective Time to the fullest extent permitted by Michigan Law or provided under the Company's articles of incorporation and bylaws in effect on the date of the Merger Agreement; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. The Surviving Corporation and Geac will pay all expenses, including reasonable fees and expenses of counsel, that an Indemnified Person may incur in enforcing the indemnity and related obligations provided for in the Merger Agreement. The Indemnified Person is entitled to control the defense of any action, suit, investigation or proceeding with counsel of his or her own choosing reasonably acceptable to the Surviving Corporation and the Surviving Corporation will cooperate in the defense thereof, provided that the Surviving Corporation will not be liable for the fees of more than one counsel for all Indemnified Persons, other than local counsel, in any one jurisdiction, unless a conflict of interest shall be caused thereby, and provided further that the Surviving Corporation will not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). At the date on which Purchaser accepts for payment pursuant to the Offer a number of Shares that satisfies the Minimum Condition (the "Cut-Off Date"), Geac shall arrange for the Company to obtain, and following the Effective Date the Surviving Corporation shall maintain in effect, a fully paid officers' and directors' liability insurance policy in respect of acts or omissions occurring prior to the Cut-Off Date covering each such Indemnified Person currently covered by the Company's officers' and directors' liability insurance policy on terms with respect to coverage and amount that are no less favorable than those of such policy in effect on the date hereof and extending for a period of six years from the Cut-Off Date. The Company Board shall promptly determine in good faith and shall confirm in writing to Geac whether the officers' and directors' liability insurance provided, or proposed to be provided, by the Surviving Corporation is accepted to constitute insurance that is no less favorable as aforesaid, provided that any time after the Cut-Off Date, any determination to such effect must include the approval of a majority of the Independent Directors, and if so approved, shall be binding on Geac, the Surviving Corporation and all Indemnified Persons. On or after the Cut-Off Date, Geac shall provide or cause the Company to provide the Independent Directors the same 33 coverage under an officers' and directors' liability insurance policy in respect of acts or omissions occurring on or after the Cut-Off Date as are provided to members of the Board of Directors designated by Parent under the Merger Agreement. The indemnification and insurance provisions will survive the consummation of the Merger at the Effective Time, and will be binding on all successors and assigns of Geac and the Surviving Corporation. Proper provisions must be made in the case of transfers of all or substantially all of the assets of Geac, the Surviving Corporation or their successors and assigns, so that these indemnification and insurance obligations are assumed by such successors and assigns. The indemnification rights of each Indemnified Person under the Merger Agreement shall be in addition to any rights such Person may have under the articles of incorporation or bylaws of the Company or any of its Subsidiaries, or under Michigan Law or any other applicable laws. Public Announcements. The Merger Agreement provides that Geac and the Company will consult with each other before issuing any press release or making any public statement with respect to the Merger Agreement or the Transactions and, except as may be required by applicable law or any listing agreement with The Nasdaq Stock Market, Inc. or any national securities exchange, will not issue any such press release or make any such public statement prior to such consultation. Certain Employee Benefits. The Merger Agreement provides that for at least one year after the Effective Time, Geac shall cause the Surviving Corporation to provide those of its and its subsidiaries' employees who were employed by the Company or its subsidiaries immediately prior to the completion of the Offer (the "Company Employees") with compensation at least as favorable, in the aggregate, as the compensation provided by the Company and its subsidiaries to such employees immediately prior to the date of the Merger Agreement, and benefits that are substantially equivalent in the aggregate to those that are provided to employees of Geac having comparable levels of responsibility. The preceding sentence shall not preclude Geac or the Surviving Corporation or its subsidiaries at any time following the Effective Time from terminating the employment of any Company employee nor from terminating or amending any employee plan in accordance with its terms and applicable law and such benefits. The Merger Agreement provides further that each Company Employee be given full credit in respect of his or her employment with the Company and its subsidiaries for purposes of eligibility, vesting, level of benefits and service, other than benefit accrual under any defined benefit plans, under any new employee benefit plans offered by the Surviving Corporation after the Merger or any benefit plan maintained by Geac in which the Company employee is permitted to participate (to the extent that the corresponding Benefit Plan currently provided to Company employees gave such credit). Following the Effective Time, Geac will, or will cause the Surviving Corporation to, (i) cause any pre-existing conditions or limitations and eligibility waiting periods under any group health plans of Geac or the Surviving Corporation, in which Company employees are permitted to participate, to be waived with respect to the Company employees and their eligible dependents (ii) give each Company employee credit for the plan year in which the Effective Time occurs toward applicable deductibles and annual out-of-pocket limits for expenses incurred prior to the Effective Time and (iii) honor, without modification, perform all acts and pay all amounts required or due under or with respect to each Benefit Plan and each agreement which relates to any current or former employee of the Company and its Subsidiaries or the terms of any such employee's employment or termination of employment, except for any modification to any such Benefit Plan or agreement to the extent permitted in accordance with the Merger Agreement. Conditions to Consummation of the Merger. Pursuant to the Merger Agreement, the respective obligations of Geac, Purchaser and the Company to complete the Merger are subject to the satisfaction of the following conditions (collectively, the "Merger Conditions"): - if required by Michigan Law, the Merger Agreement must have been approved and adopted by the shareholders of the Company in accordance with the Business Corporations Act; - any applicable waiting period under the HSR Act or comparable period under the antitrust laws of other applicable jurisdictions relating to the Merger must have expired or been terminated; 34 - no provision of any applicable law or regulation and no judgment, injunction, order or decree must prohibit the consummation of the Merger upon the terms contemplated hereby; and - Purchaser must have purchased Shares pursuant to the Offer. Termination. Pursuant to its terms, the Merger Agreement may be terminated, and the Merger may be abandoned, at any time prior to the Effective Time, whether before or after approval of the Merger by the shareholders of the Company: (i) by mutual written consent of Geac and the Company; (ii) by either the Company or Geac: - if any court or governmental entity has restrained, enjoined, prohibited or otherwise made illegal the Merger by an order (other than a temporary restraining order), decree, ruling or other action (which order, decree, ruling or other action the parties to the Merger Agreement shall use their commercially reasonable efforts to lift); - if (x) the Offer shall have expired without any Shares being purchased therein or (y) Geac or Purchaser shall not have accepted for payment, and paid for, all Shares tendered pursuant to the Offer by October 1, 2003 (this right to terminate will not be available to any party whose breach of this Agreement has been the cause of, or resulted in, the failure of Geac or Purchaser to purchase the Shares pursuant to the Offer); or - if any Person, other than Geac, Purchaser or their affiliates, consummates a tender offer or other transaction pursuant to which such Person becomes the beneficial owner of more than fifty (50%) percent of the then outstanding Shares. (iii) by the Company: - if Geac or Purchaser fails to commence the Offer pursuant to the Merger Agreement (this right to terminate will not be available if the Company is at such time in breach of its obligations under the Merger Agreement so as to (A) cause a Material Adverse Effect on the Company or (B) prevent or materially hinder or delay the purchase of the Shares pursuant to the Offer or the Merger; - in connection with its entering into a definitive agreement with respect to a Superior Proposal, pursuant to the terms of the Merger Agreement, if (x) the Company provides written notice to Geac and Purchaser of the material terms and conditions of an Acquisition Proposal which the Company Board has determined in good faith, after consultation with and advice from the Company Financial Advisor or other nationally recognized financial advisor and its outside legal counsel, constitutes a Superior Proposal, (y) after the third business day immediately following delivery of such written notice, the Company Board reasonably determines, based upon the advice of the Company Financial Advisor or other nationally recognized financial advisor, that any proposal made by Geac and Purchaser supplementing the terms and conditions of the Offer, is not at least as favorable to the Company and the Company's shareholders as the terms and conditions of such Acquisition Proposal specified in the preceding bullet; or - if (x) Geac or Purchaser shall have breached or failed to perform in all material respects any of their obligations under the Merger Agreement, or any of the representations and warranties of Geac or Purchaser contained in the Merger Agreement shall not be true in all material respects as of the date of the Merger Agreement or at any time prior to the Effective Date as if made at and as of such time (except as to any representation or warranty which speaks as of a specific date, which must be untrue as of such date) and (y) such breach or failure to perform obligations, or failure of the representations and warranties to be true, cannot be or has not been cured, in all material respects, within 15 days after the giving of written notice to Geac and Purchaser. 35 (iv) by Geac: - if, due to an occurrence, not resulting from a breach by Geac or Purchaser of their obligations hereunder, which makes it impossible to satisfy any of the Offer Conditions (as defined in Section 15), Geac or Purchaser shall have failed to commence the Offer on or prior to July 3, 2003; - if, prior to the consummation of the Offer, the Company shall have breached any representation, warranty, covenant or other agreement contained in the Merger Agreement which (y) gives rise to the failure of a condition set forth in paragraph (c) or (d) of the Offer Conditions described in Section 15 and (z) cannot be or has not been cured, in all material respects, within the later of 15 days after the giving of written notice to the Company or the initial expiration of the Offer (or such later date upon which the Offer shall expire in accordance with the Merger Agreement); - if, whether or not permitted to do so, the Company Board withdraws or modifies in a manner adverse to Geac or Purchaser (or fails, at the request of Geac, to reaffirm within 5 business days after the request), its approval or recommendation of the Offer, the Merger or the Agreement, or approves or recommends any Acquisition Proposal; or - if, whether or not permitted to do so, the Company enters into a written acquisition agreement agreeing to an Acquisition Proposal, including a Superior Proposal otherwise entered into in accordance with the terms of the Merger Agreement. As used in the Merger Agreement, "Material Adverse Effect" means, with respect to any Person, any change, result, effect, event, occurrence or state of facts (or any development that has had or is reasonably likely to have any change or effect) that is or would reasonably be expected to be materially adverse to the business, financial condition, assets, liabilities or results of operations or prospects of such Person and its Subsidiaries, taken as a whole, or which is or would reasonably be expected to be materially adverse to the ability of such Person to consummate the Transactions; provided, however, that none of the following will be deemed in itself, either alone or in combination to constitute, and none of the following will be taken into account in determining whether there has been, a Material Adverse Effect: (i) any such effect resulting from or arising in connection with this Agreement or the Transactions or the execution or announcement hereof, (ii) changes in circumstances or conditions affecting the industry in which the Company and its Subsidiaries operate or affecting software companies in general, (iii) changes in general economic, regulatory or political conditions or in financial or securities markets in the United States or elsewhere, (iv) changes in generally accepted accounting principles or (v) any change in the price at which the Shares are publicly traded. The failure of a Person to meet any particular revenue or earnings forecast or estimate for any period ending after the date of the Merger Agreement, including estimates prepared by equity analysts or other third parties, as well as internal forecasts prepared by management of such Person, shall not, in and of itself, be deemed to constitute a Material Adverse Effect.. Fees and Expenses. Except as provided in the Merger Agreement, whether or not the Offer or the Merger is consummated, all costs and expenses incurred in connection with the Merger Agreement and the Transactions will be paid by the party incurring those expenses. The Merger Agreement further provides that in the event that (1) the Merger Agreement is terminated by Geac pursuant to the fourth bullet point in paragraph (iv) described above under "Termination," (2) the Merger Agreement is terminated by the Company pursuant to the second bullet point under paragraph (iii) described above under "Termination," or (3) the Merger Agreement is terminated by the Company or Geac pursuant to the third bullet point under paragraph (ii) described above under "Termination," then the Company will pay Geac a termination fee of $1,850,000 plus an amount equal to Geac's actual and reasonably documented out of pocket expenses up to an aggregate of $750,000 in connection with the Offer, the Merger, the Merger Agreement and the consummation of the Transactions. In the Merger Agreement, the Company acknowledged that the agreements contained under "Fees and Expenses" are an integral part of the Transactions, and that, without these agreements, Geac would not have entered into the Merger Agreement; accordingly if the Company fails to promptly pay the amounts due as 36 described above, and Geac commences a suit which results in the payment of such fees, then the Company will also pay to Geac its costs and expenses in connection with such amounts plus interest. However, if Geac commences such a suit but does not substantially prevail in such suit, then Geac will pay to the Company the Company's costs and expenses in connection with such amounts plus interest. Amendments and Waivers. The Merger Agreement provides that any provision of the Merger Agreement may be amended or waived prior to the Effective Time if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to the Merger Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective, provided that, after the adoption of the Merger Agreement by the shareholders of the Company and without their further approval, no such amendment or waiver shall reduce the amount or change the kind of consideration to be received in exchange for the Shares. No failure or delay by any party in exercising any right, power or privilege under the Merger Agreement will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. VOTING AND TENDER AGREEMENTS Geac and Purchaser have entered into a Voting and Tender Agreement with Dennis G. Ganster and with Codec Systems Limited and Anthony Stafford (the "Voting Agreement Signatories"). Pursuant to the Voting and Tender Agreements, each Voting Agreement Signatory has agreed to tender his or its Shares in the Offer not later than one business day prior to the Expiration Date and not to withdraw such Shares once tendered. Each Voting Agreement Signatory has also agreed to vote his or its Shares (a) in favor of the Merger, the Merger Agreement and the Transactions, (b) against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of the Company under the Merger Agreement, and (c) against any action or agreement that would materially impede, interfere with or attempt to discourage the Offer or the Merger. In addition, under the Voting and Tender Agreements (so long as they remain in effect), each Voting Agreement Signatory has granted an irrevocable proxy to and appointed Geac as such Voting Agreement Signatory's proxy and attorney-in-fact to vote, act by written consent or grant a consent, proxy or approval in respect of all Shares held by the Voting Agreement Signatory with respect to such vote or action by written consent, solely for the purposes of voting in favor of the Merger, the Merger Agreement (as amended from time to time, except for an amendment that would result in termination of the Voting and Tender Agreement pursuant to the terms thereof) and any of the transactions contemplated by the Merger Agreement. The agreements contained in each Voting and Tender Agreement shall terminate automatically upon the earliest to occur of (a) an amendment or modification to or waiver under the Merger Agreement, including the terms and conditions of the Offer, that would be economically adverse to the Voting Agreement Signatory, (b) the termination of the Merger Agreement, (c) the completion of the Merger, or (d) December 31, 2003. CONFIDENTIALITY AGREEMENTS Pursuant to the Company Confidentiality Agreement, Geac has agreed, among other things, to keep confidential certain information concerning the Company furnished to it and its representatives by or on behalf of the Company or its representatives ("Company Information"), and to use the Company Information solely for the purpose of evaluating a possible transaction with the Company. Geac has further agreed to maintain the confidentiality of any discussions or negotiations with the Company and, upon request, to redeliver or destroy all Company Information. Geac also agreed that, except pursuant to a transaction approved by the board of directors of the Company, it will not, directly or indirectly, effect or seek, offer or propose to effect certain transactions involving the Company, including any acquisition of securities or assets of the Company or any of its subsidiaries or any tender or exchange offer, merger or other business combination involving the Company or any of its subsidiaries for a period of twelve months from the date of the Company Confidentiality Agreement. For a period of one year after the date of the Company Confidentiality Agreement, Geac will not, without the Company's prior written consent, employ or solicit to employ certain of the current officers or employees of the Company, provided that after six months from the date of the Company Confidentiality Agreement Geac may employ any such person who responds to a general solicitation for employment. 37 Pursuant to the Geac Confidentiality Agreement, the Company has agreed, among other things, to keep confidential certain information concerning Geac furnished to it and its representatives by or on behalf of Geac or its representatives ("Geac Information"), and to use the Geac Information solely for the purpose of understanding timing considerations relating to the Transactions. The Company has further agreed to maintain the confidentiality of any discussions or negotiations with Geac and, upon request, to redeliver or destroy all Information. The Company acknowledges that the Geac Information includes material non-public information and that it and its directors, officers, employees, representatives and advisors are aware of the restrictions imposed by applicable securities laws on a person possession material non-public information about a public company. RULE 13E-3 The SEC has adopted Rule 13e-3 under the Exchange Act, which is applicable to certain "going private" transactions and which may under certain circumstances be applicable to the Merger or another business combination following the purchase of Shares pursuant to the Offer in which we seek to acquire the remaining Shares not held by us. We believe, however, that Rule 13e-3 will not be applicable to the Merger because it is anticipated that the Merger would be effected within one year following consummation of the Offer and in the Merger, shareholders would receive the same price per Share as paid in the Offer. If Rule 13e-3 were applicable to the Merger, it would require, among other things, that certain financial information concerning the Company, and certain information relating to the fairness of the proposed Transactions and the consideration offered to minority shareholders in such a transaction, be filed with the SEC and disclosed to minority shareholders prior to consummation of the Transactions. 13. SOURCE AND AMOUNT OF FUNDS We estimate that the total amount of funds required to purchase all Shares pursuant to the Offer and Merger and to pay to the holders of outstanding Comshare stock options the amounts required under the Merger Agreement will be approximately $52 million. Geac will ensure that sufficient funds are available to acquire all of the outstanding Shares pursuant to the Offer and the Merger and to pay all amounts required to be paid to the holders of outstanding Comshare stock options. The Offer is not conditioned upon Geac's or Purchaser's ability to finance the purchase of Shares pursuant to the Offer. 14. DIVIDENDS AND DISTRIBUTIONS The Merger Agreement provides that the Company will not, and will not permit any of its subsidiaries to, between the date of the Merger Agreement and the Effective Time without the prior consent of Geac, make, declare, set aside or pay any dividend or other distribution with respect to any shares of its capital stock, other than dividends and other distributions paid by any such subsidiary to the Company or any other wholly-owned subsidiary of the Company. 15. CERTAIN CONDITIONS OF THE OFFER For the purposes of this Section 15, capitalized terms used but not defined herein will have the meanings set forth in the Merger Agreement. Notwithstanding any other provisions of the Offer, we will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, pay for any tendered Shares, and may delay the acceptance for payment of or the payment for any tendered Shares, and under certain circumstances, terminate or amend the Offer as to any Shares not then paid for, if: (i) prior to the Determination Time, the Minimum Condition has not been satisfied; (ii) by the Determination Time, any applicable waiting period under the HSR Act or any laws, rules or regulations analogous to the HSR Act existing in foreign jurisdictions has not expired or been terminated; (iii) prior to the Determination Time, the Merger Agreement is terminated according to its terms; or (iv) at 38 the Determination Time, any of the following conditions have occurred and are continuing (collectively, the "Offer Conditions"): (a) there shall be pending any suit, action or proceeding by any Governmental Entity (i) seeking to prohibit or impose any material limitations on Geac's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a material portion of the Company's businesses or assets, (ii) seeking to compel Geac or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, (iii) challenging the acquisition by Geac or Purchaser of any Shares pursuant to the Offer or the Merger, (iv) seeking to restrain or prohibit the making or consummation of the Offer or the Merger or the performance of any of the other Transactions, (v) seeking to obtain from the Company any damages as a result of the Offer or the Merger that would be reasonably expected to have a Material Adverse Effect on the Company, (vi) rendering Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (vii) seeking to impose material limitations on the ability of Purchaser or Geac effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's shareholders; or (b) there has been any statute, rule, regulation, injunction, order or decree enacted, enforced, promulgated, issued or deemed applicable to the Offer or the Merger by any Governmental Entity that results in any of the consequences referred to in clauses (i) or (ii) of paragraph (a) above; or (c) any representation or warranty of the Company contained in the Merger Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification) shall not be true and correct in all respects as of the Determination Time, as if made at and as of such time (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case such representation or warranty shall not be true and correct as of such date), and the failure of such representation or warranty to be true and correct would reasonably be expected to have a Material Adverse Effect on the Company, provided that such breach is incapable of being cured or has not been cured prior to the initial expiration date of the Offer (or such later date upon which the Offer shall expire in accordance with Section 2.01 of the Merger Agreement); or (d) the Company shall have failed to perform or comply with any of its obligations, covenants or agreements contained in the Merger Agreement required to be performed or complied with at or prior to the Determination Time, and such failure would reasonably be expected to have a Material Adverse Effect on the Company, provided that such failure to perform or comply with is incapable of being cured or has not been cured prior to the initial expiration date of the Offer (or such later date upon which the Offer shall expire in accordance with Section 2.01 of the Merger Agreement); or (e) the Company Board or any committee thereof shall have withdrawn or modified in a manner adverse to Geac or Purchaser (including by amendment of the Schedule 14D-9) its approval or recommendation of the Offer, the Merger or the Merger Agreement or recommended or approved any Acquisition Proposal, and, in the reasonable good faith judgment of Geac or Purchaser, the condition or event described in the foregoing paragraphs (a) through (e), regardless of the circumstances giving rise to such event or condition, makes it inadvisable to proceed with the Offer or the acceptance for payment of or payment for the Shares; provided, in any such case, that Purchaser and Geac have performed all of their respective obligations under Section 9.01 of the Merger Agreement. A public announcement may be made of a material change in, or waiver of, such conditions and the Offer may, in certain circumstances, be extended in connection with any such change or waiver. See Section 1. 39 16. LEGAL MATTERS; REQUIRED REGULATORY APPROVALS Except as set forth in this Offer to Purchase, we are not aware of any licenses or regulatory permits that appear to be material to the business of the Company and its subsidiaries, taken as a whole, and that might be adversely affected by our acquisition of Shares (and the indirect acquisition of the stock of the Company's subsidiaries) in the Offer, or any filings, approvals or other actions by or with any domestic, foreign or supranational governmental authority or administrative or regulatory agency that would be required prior to our acquisition or ownership of the Shares (or the indirect acquisition of the stock of the Company's subsidiaries). Should any such approval or other action be required, there can be no assurance that any such additional approval or action, if needed, would be obtained without substantial conditions or that adverse consequences might not result to the Company's or its subsidiaries' business, or that certain parts of the Company's or Geac's or any of their respective subsidiaries' business might not have to be disposed of or held separate or other substantial conditions complied with in order to obtain such approval or action or in the event that such approvals were not obtained or such actions were not taken. Purchaser's obligation to purchase and pay for Shares is subject to certain conditions, including conditions with respect to governmental actions. See the Introduction and Section 15 for a description of certain conditions to the Offer, including with respect to litigation and governmental actions. State Takeover Laws. A number of states (including Michigan, where the Company is incorporated) have adopted takeover laws and regulations which purport, to varying degrees, to be applicable to attempts to acquire securities of corporations which are incorporated in those states or that have substantial assets, security holders, principal executive offices or principal places of business in those states. To the extent that these state takeover statutes purport to apply to the Offer, we believe that such laws conflict with federal law and constitute an unconstitutional burden on interstate commerce. In the Merger Agreement, the Company represented to Geac and the Purchaser that: - the Company has taken all action necessary, if any, to exempt the Offer, the Merger and the Merger Agreement and the Transactions from the provisions of Section 775 through 784 of Michigan Law in order to render the provisions of such statutes requiring supermajority approval of certain business combinations inapplicable to Shares acquired by Geac, Purchaser or their respective affiliates pursuant to the Offer and the Merger; - the Company has taken all action necessary to opt out of Sections 790 through 799 of Michigan Law in order to render the provisions of such statutes restricting voting rights of "control shares" inapplicable to Shares acquired by Geac, Purchaser or their respective affiliates pursuant to the Offer and the Merger; - no other anti-takeover, control share acquisition, fair price, moratorium or other similar statute (each, a "Takeover Statute") applies or purports to apply to the Merger Agreement, the Offer, the Merger, the Voting Agreement, the Top-Up Option or the Transactions; - the Company has taken all action necessary to render the Rights inapplicable to the Transactions, including the Offer and the Merger; and - the Rights Agreement has been amended by all necessary action to (i) render the Rights Agreement inapplicable to the Merger Agreement, the Offer, the Merger, the Voting Agreement, the Top-Up Option and the Transactions, (ii) ensure that (x) none of Geac, Purchaser or their respective affiliates is an "Acquiring Person" (as defined in the Rights Agreement) by virtue of the execution, delivery, announcement or performance of the Merger Agreement, the Offer, the Merger, the Voting Agreement, the Top-Up Option or the Transactions and (y) none of a "Distribution Date", a "Share Acquisition Date", or a "Triggering Event" (as such terms are defined in the Rights Agreement) occurs by reason of the execution, delivery, announcement, consummation or performance of the Merger Agreement, the Offer, the Merger, the Voting Agreement, the Top-Up Option or the Transactions, and such amendment by its terms may not be further amended by the Company without the prior written consent of Geac in its sole discretion. 40 Except as described herein, we have not attempted to comply with any state takeover statutes in connection with the Offer or the Merger. We reserve the right to challenge the validity or applicability of any state law allegedly applicable to the Offer or the Merger and nothing in this Offer to Purchase nor any action taken in connection with the Offer or the Merger is intended as a waiver of that right. In the event that any state takeover statute is found applicable to the Offer or the Merger, and it is not determined by an appropriate court that the statutes in question do not apply or are invalid as applied to the Offer, we may be required to file certain documents with, or receive approvals from, the relevant state authorities, and we may be unable to accept for payment or purchase Shares tendered in the Offer or be delayed in continuing or consummating the Offer. In that case, we may not be obligated to accept for purchase, or pay for, any Shares tendered. See Section 15. Antitrust. Under the HSR Act, and the rules and regulations that have been issued by the FTC, certain acquisition transactions may not be consummated until certain information and documentary material has been furnished for review by the Antitrust Division and the FTC and certain waiting period requirements have been satisfied. The acquisition of Shares pursuant to the Offer is, and the proposed Merger may be, subject to these requirements. Purchaser intends to file a Premerger Notification and Report Form with the Antitrust Division and the FTC in connection with the purchase of Shares pursuant to the Offer. Under the HSR Act, the purchase of Shares in the Offer may not be completed until the expiration of a 15-calendar-day waiting period following the filing by the Purchaser of the Premerger Notification and Report Form with the FTC and Antitrust Division, unless the waiting period is earlier terminated by the FTC and the Antitrust Division or we receive a Request for Additional Information and Documentary Material from the Antitrust Division or the FTC prior to that time. If either the FTC or the Antitrust Division were to issue a Request for Additional Information and Documentary Material to us, the waiting period with respect to the Offer would expire at 11:59 p.m., Eastern time, on the tenth calendar day after the date of our substantial compliance with that request. Thereafter, the waiting period could be extended only by court order or with our consent. The additional 10-calendar-day waiting period may be terminated sooner by the FTC and the Antitrust Division. Although the Company is required to file certain information and documentary material with the Antitrust Division and the FTC in connection with the Offer, neither the Company's failure to make those filings nor the issuance to the Company by the FTC or the Antitrust Division of a Request for Additional Information and Documentary Material will extend the waiting period with respect to the Offer. The Antitrust Division and the FTC frequently scrutinize the legality under the antitrust laws of transactions, such as our acquisition of Shares in the Offer and the proposed Merger. At any time before or after our purchase of Shares, the Antitrust Division or the FTC could take such action under the antitrust laws that either deems necessary or desirable in the public interest, including seeking to enjoin the purchase of Shares in the Offer, the divestiture of Shares purchased pursuant to the Offer or the divestiture of substantial assets of the Company or Geac or any of their respective subsidiaries. Private parties as well as state attorneys general may also bring legal actions under the antitrust laws under certain circumstances. See Section 15. State antitrust authorities and private parties in certain circumstances may bring legal action under the antitrust laws seeking to enjoin the Offer or the Merger or to impose conditions on the Offer or the Merger. See "Efforts" discussed above in Section 12. Geac and the Company each conduct operations in a number of foreign jurisdictions other than the U.S. and filings may have to be made with foreign governments under their respective pre-merger notification statutes. Where necessary, the parties intend to make such filings. In addition, Geac and the Company conduct operations in a number of other countries where regulatory filings or approvals may be required in connection with the consummation of the Merger. 17. FEES AND EXPENSES We have retained Georgeson Shareholder Communications Inc. to act as the Information Agent and Georgeson Shareholder Securities Corporation to act as our Dealer Manager in connection with the Offer. We have agreed to pay Georgeson Shareholder Communications Inc. and Georgeson Shareholder Securities 41 Corporation reasonable and customary compensation for their services as Information Agent and Dealer Manager. The Dealer Manager may contact shareholders by personal interview, mail, e-mail, telephone, facsimile transmission, telegraph and other methods of electronic communication and may request brokers, dealers, commercial banks, trust companies and other nominees to forward the Offer materials to beneficial holders of Shares. We have also agreed to reimburse each such firm for certain reasonable out-of-pocket expenses and to indemnify each such firm against certain liabilities in connection with their services, including certain liabilities under Federal securities laws. In addition, we have retained EquiServe Trust Company, N.A. as the Depositary. The Depositary has not been retained to make solicitations or recommendations in its role as Depositary. The Depositary will receive reasonable and customary compensation for its services in connection with the Offer, will be reimbursed for its reasonable out-of-pocket expenses and will be indemnified against certain liabilities and expenses in connection therewith. Except as set forth above, we will not pay any fees or commissions to any broker, dealer or other person (other than the Information Agent and the Dealer Manager) for soliciting tenders of Shares pursuant to the Offer. We will reimburse brokers, dealers, commercial banks and trust companies and other nominees for customary clerical and mailing expenses incurred by them in forwarding materials to their customers. 18. MISCELLANEOUS The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares residing in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. However, we may, in our own discretion, take any action as we may deem necessary to make the Offer in any jurisdiction and extend the Offer to holders of Shares in those jurisdictions. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on our behalf by the Dealer Manager or by one or more other registered brokers or dealers that are licensed under the laws of such jurisdiction. We have filed with the SEC a Tender Offer Statement on Schedule TO, together with exhibits, pursuant to Rule 14d-3 of the General Rules and Regulations under the Exchange Act, furnishing certain additional information with respect to the Offer, and may file amendments to our Schedule TO. Our Schedule TO and any exhibits or amendments may be examined and copies may be obtained from the office of the SEC in the same manner as described in Section 8 with respect to information concerning the Company. We have not authorized any person to give any information or to make any representation on our behalf not contained in this Offer to Purchase or in the Letter of Transmittal and, if given or made, you should not rely on any such information or representation as having been authorized. Neither the delivery of the Offer to Purchase nor any purchase pursuant to the Offer will, under any circumstances, create any implication that there has been no change in the affairs of Geac, Purchaser, the Company or any of their respective subsidiaries since the date as of which information is furnished or the date of this Offer to Purchase. CONDUCTOR ACQUISITION CORP. July 1, 2003 42 SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF GEAC Set forth below are the name, present principal occupation or employment, and material occupations, positions, offices or employment for the past five years of each director and executive officer of Geac. The business address of each director and executive officer employed by Geac is 11 Allstate Parkway, Suite 300, Markham, Ontario L3R 9T8, Canada. All executive officers and directors are citizens of the United States, except for Hema Anganu, C. Kent Jespersen, Pierre MacDonald and Robert L. Sillcox, who are citizens of Canada, Paul D. Birch and Timothy J. Wright, who are citizens of the United Kingdom, and Thomas I.A. Allen, Q.C., and Craig C. Thorburn, who are dual citizens of Canada and Ireland. Charles S. Jones was first elected to Geac's board of directors in September 1997. Mr. Jones has served as Chairman of Geac's board of directors since November 2000. Mr. Jones is the Chairman and co-founder of First Funding Corporation, an investment firm based in Stamford, Connecticut, where he has worked since 1984. Currently, Mr. Jones serves as a director of Farrel Corporation and a number of diverse companies, from an industrial equipment manufacturer to a computer games designer and publisher. Paul D. Birch has been Geac's President and Chief Executive Officer since December 2001. From July 2001 until December 2001, Mr. Birch served as Geac's Chief Operating Officer and Chief Financial Officer. He was elected to Geac's board of directors in September 2000. Mr. Birch also served as President of Geac Enterprise Solutions, Americas from May 2001 until August 2002. From March 2000 until he joined Geac as an executive, Mr. Birch was a director, Chief Operating Officer and Chief Financial Officer of Escher Group Limited, a provider of peer-to-peer messaging management solutions and services. From February 1991 to February 2000, prior to joining Escher, Mr. Birch was a director and Executive Vice-President of MRO Software, Inc., a US-based global software application developer and marketer. Prior to joining MRO, Mr. Birch served with PricewaterhouseCoopers in Boston, Massachusetts and Arthur Andersen in London, England. Hema Anganu was appointed Geac's Treasurer in September 1999. Prior to that appointment, Ms. Anganu served as Geac's Director, Financial Reporting & Analysis from 1998 to 1999, Controller, Corporate Finance from 1996 to 1998, and Manager, Corporate Finance from 1991 to 1996. Arthur Gitajn has served as Geac's Chief Financial Officer since December 2001. From May 2001 to December 2001, he was Geac's Vice President and Corporate Controller. Prior to that appointment, Mr. Gitajn was Vice President, Finance for North American Verticals from February 1999 to April 2001. Prior to joining Geac, he was Director of Financial and Information Technology Services for the City of Alexandria, Virginia, where he served from 1986 to 1999. Joyce Koenig has been Geac's Vice President, Strategic Financial Analysis, since she joined Geac in January 2002. Previously, Ms. Koenig worked at MRO Software, Inc. Most recently, Ms. Koenig served as Director, Financial Analysis & Purchasing at MRO, from 1996 to 2001. John L. Sherry, III has served as Geac's Senior Vice President, Marketing and Strategic Alliances since February 2002. Prior to joining Geac, he served in 2001 as Senior Vice President, Marketing and Business Development for ViryaNet, a publicly held software company providing workforce management solutions for field service operations. From 1999 to 2001, Mr. Sherry served as Vice President, Marketing for Excelergy, a venture backed company providing software to the deregulating energy and utilities industries. From 1996 to 1999, he served as Executive Director of Marketing for the Kenan Systems unit of Lucent Technologies. Craig C. Thorburn has served as Geac's Senior Vice President, Mergers & Acquisitions, and Corporate Secretary since December 2001. Mr. Thorburn has also been with the Toronto office of Blake, Cassels & Graydon LLP since 1985, where he became a partner in 1993 and where he continues his practice involving mergers and acquisitions, and business and regulatory law. Mr. Thorburn is also a director of Vivendi Universal Exchangeco Inc. James M. Travers joined Geac as Senior Vice President and President, Geac Enterprise Solutions Americas, in August 2002. Before joining Geac, Mr. Travers served from December 2000 to April 2001 as I-1 Interim President and Chief Executive Officer of Agillion, Inc., a provider of real-time customer collaboration and content management solutions. From January 1995 until it was acquired by Peregrine Systems in June 2000, Mr. Travers served in several senior management positions, most recently as President and Chief Executive Officer, with Harbinger Corporation, a provider of e-commerce solutions. Timothy J. Wright was appointed as Geac's Senior Vice President, Chief Technology Officer and Chief Information Officer in January 2003. Prior to joining Geac, Mr. Wright served for just over three years as Senior Vice President, Chief Technology Officer and Chief Information Officer at Terra Lycos, a major provider of Internet access and content to several million subscribers worldwide. Prior to working at Terra Lycos, Mr. Wright spent seven years at The Learning Company, a major provider of consumer and education software, until it was acquired by Mattel in mid-1999. Thomas I. A. Allen, Q.C. was first elected to Geac's board of directors in September 1999. He is the Chairman of the Accounting Standards Oversight Council of Canada and is a member of the Advisory Board of the Office of the Superintendent of Financial Institutions of Canada. Mr. Allen has been a partner at the law firm of Ogilvy Renault since October 1996. Mr. Allen is a director of the following public corporations: Bema Gold Corporation, YM Biosciences Inc., Middlefield Bancorp Limited, Mundoro Mining Inc., and Unisphere Waste Conversion Limited. David Friend has been one of Geac's directors since October 2001. Mr. Friend is the Chairman of Sonexis, Inc., a telecommunications software and platform provider, a company he founded in June 1999. Prior to founding Sonexis, he was the Chairman and co-founder of FaxNet Corporation, a supplier of messaging services to the telecommunications industry, where he served from January 1995 to May 1999. Prior to founding FaxNet, Mr. Friend founded Pilot Software, Inc., a software company based in Cambridge, Massachusetts, where he served from November 1983 to November 1994. Mr. Friend is an active venture investor and serves on the board of directors of HealthGate Data Systems, Inc. C. Kent Jespersen was first elected to Geac's board of directors in October 2001. Mr. Jespersen has been the Chairman of La Jolla Resources International Ltd., an international business advisory and investment company, since 1998. From 1994 to 1998, Mr. Jespersen held the positions of President of NOVA Gas International Ltd., President and Chief Executive Officer Elect of NOVA Energy Services, President of NOVA Gas Services Ltd., and Senior Vice President, Corporate Development of NOVA Corporation. Mr. Jespersen currently serves as the Chairman of the board of directors of CCR Technologies Ltd. and is Chairman Emeritus of Institute of the Americas of La Jolla, California. He also serves as a director of Telesystems International Wireless Inc., Axia NetMedia Corporation, Bow Valley Energy Ltd., Matrikon, Inc. and Ryan Energy Ltd. Technologies Inc. Pierre MacDonald was first elected to Geac's board of directors in September 1999. Since March 1995, Mr. MacDonald has served as Chairman and Chief Executive Officer of MacD Consult Inc., a group of consultants in international finance and marketing. Since May 2000, Mr. MacDonald has served as the Vice- Chairman of the board of directors of the Export Development Corporation, a Crown corporation that operates as a financial institution devoted exclusively to providing trade finance services in support of Canadian exporters and investors in up to 200 countries. Mr. MacDonald began serving as a director of Export Development Corporation in August 1995. He also serves as a director of AEterna Laboratories Inc., AIM Canada Fund Inc., AIM Global Fund Inc., Slater Steel Inc. and Sodisco-Howden Group Inc. Michael D. Marvin was appointed to Geac's board of directors in August 2001. Mr. Marvin is the founder and Chairman Emeritus of MapInfo Corporation, a software technology company specializing in location based solutions and services that help businesses better understand their customers and markets. Mr. Marvin was the Chairman of MapInfo from 1992 until January 2001. William G. Nelson was first elected to Geac's board of directors in September 1988. He served as Chairman of Geac's board of directors from June 1996 to October 2000, and as Geac's President and Chief Executive Officer from September 1996 to April 1999. Mr. Nelson has served as Chief Executive Officer of Clarendon Capital Inc., an investment banking and consulting firm, since June 1995. Mr. Nelson has been the Chairman of the board of directors of Harris Business Group, Inc. since 1990 and the Chairman of the board I-2 of directors of Repository Technologies Inc., a computer software company, since 1999. Mr. Nelson is also a director of Manugistics Group, Inc., a provider of intelligent supply chain optimization solutions for enterprises and evolving eBusiness trading networks, HealthGate Data Corp., a provider of eHealth Internet solutions for hospitals and healthcare enterprises, and Catalyst International Inc., a global provider of software and services for warehouse management. Robert L. Sillcox was appointed to Geac's board of directors in August 2001. Mr. Sillcox is the Chairman of Quant Investment Strategies Inc., an investment firm specializing in providing quantitative investment strategies to institutions. He has held this position since he co-founded the firm in 1998. Mr. Sillcox is currently also a director of a Canadian chartered bank, Glenmount International, L.P.I., an industrial technology private equity partnership, and Helpcaster Technologies Inc., a software technology company. I-3 SCHEDULE II DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER Set forth below are the name, business address and present principal occupation or employment, and material occupations, positions, offices or employment for the past five years of each director and executive officer of Purchaser. The business address of each director and executive officer employed by Purchaser is 11 Allstate Parkway, Suite 300, Markham, Ontario L3R 9T8, Canada. Charles S. Jones is a citizen of the United States, Paul D. Birch is a citizen of the United Kingdom and Ruth Klein is a citizen of Canada. Paul D. Birch is a director of Purchaser and President, Chief Executive Officer and Treasurer of Purchaser. (See Summary in Schedule I.) Charles S. Jones is Chairman of the board of directors of Purchaser. (See Summary in Schedule I.) Ruth Klein is Secretary of Purchaser. Ms. Klein was appointed Geac's Vice President, Legal Affairs, in 2002. Prior to that appointment, Ms. Klein served as Geac's Assistant General Counsel from 1996 to 2002. II-1 SCHEDULE III SHARES OR OTHER EQUITY SECURITIES OF THE COMPANY BENEFICIALLY OWNED BY PURCHASER AND GEAC Neither Purchaser nor Geac, nor any of their respective executive officers, directors and subsidiaries, beneficially owns any Shares. III-1 Copies of the Letter of Transmittal, properly completed and duly executed, will be accepted. The Letter of Transmittal, certificates for Shares and any other required documents should be sent or delivered by each Holder who wishes to tender his Shares in the Offer or his broker, dealer, commercial bank, trust company or other nominee to the Depositary, at the addresses set forth below: The Depositary for the Offer is: EQUISERVE TRUST COMPANY, N.A. By First Class Mail: By Certified or Express By Hand: Delivery: EquiServe Trust Company EquiServe Trust Company EquiServe Trust Company Attn: Corporate Actions Attn: Corporate Actions c/o Securities and Transfer & Post Office Box 43014 150 Royall Street Reporting Services, Inc. Providence, RI 02940-3014 Canton, MA 02021 100 Williams Street Galleria New York, NY 10038
Any questions or requests for assistance or additional copies of this Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and the Guidelines for Certification of Taxpayer Identification on Substitute Form W-9 may be directed to the Information Agent at the address and telephone numbers set forth below. Holders of Shares may also contact their broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer. The Information Agent for the Offer is: (GEORGESON SHAREHOLDER LOGO) GEORGESON SHAREHOLDER COMMUNICATIONS INC. 17 State Street -- 10th Floor New York, NY 10004 Toll Free: (800) 286-9178 Banks and Brokers: (212) 440-9800 The Dealer Manager for the Offer is: GEORGESON SHAREHOLDER SECURITIES CORPORATION 17 State Street -- 10th Floor New York, NY 10004 Toll Free: (800) 445-1790 Banks and Brokers: (212) 440-9800 EX-99.(A)(1)(B) 4 b47043gcexv99wxayx1yxby.txt LETTER OF TRANSMITTAL Exhibit (a)(1)(B) LETTER OF TRANSMITTAL TO TENDER SHARES OF COMMON STOCK OF COMSHARE, INCORPORATED PURSUANT TO THE OFFER TO PURCHASE DATED JULY 1, 2003 BY CONDUCTOR ACQUISITION CORP., AN INDIRECT WHOLLY OWNED SUBSIDIARY OF GEAC COMPUTER CORPORATION LIMITED THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON WEDNESDAY, JULY 30, 2003, UNLESS THE OFFER IS EXTENDED. The Depositary for the Offer is: EQUISERVE TRUST COMPANY, N.A. By First Class Mail: By Certified or Express By Hand: Delivery: EquiServe Trust Company EquiServe Trust Company EquiServe Trust Company Attn: Corporate Actions Attn: Corporate Actions c/o Securities and Transfer & Post Office Box 43014 150 Royall Street Reporting Services, Inc. Providence, RI 02940-3014 Canton, MA 02021 100 Williams Street Galleria New York, NY 10038
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
- ------------------------------------------------------------------------------------------------------------------------------ DESCRIPTION OF SHARES TENDERED - ------------------------------------------------------------------------------------------------------------------------------ NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARE CERTIFICATE(S) AND SHARE(S) (PLEASE FILL IN EXACTLY AS TENDERED (ATTACH ADDITIONAL NAME(S) APPEAR(S) ON SHARE CERTIFICATE(S)) LIST, IF NECESSARY) TOTAL SHARES - ------------------------------------------------------------------------------------------------------------------------------ SHARES SHARE REPRESENTED BY NUMBER OF CERTIFICATE SHARE SHARES NUMBER(S)* CERTIFICATE(S)* TENDERED** ----------------------------------------------------------------- ----------------------------------------------------------------- ----------------------------------------------------------------- ----------------------------------------------------------------- ----------------------------------------------------------------- TOTAL SHARES - ------------------------------------------------------------------------------------------------------------------------------ * See Instruction 3 if space is inadequate. Need not be completed by Book-Entry Shareholders (as defined below). ** Unless otherwise indicated, all Shares represented by certificates delivered to the Depositary will be deemed to have been tendered. See Instruction 4. - ------------------------------------------------------------------------------------------------------------------------------
IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE BEEN LOST, DESTROYED OR STOLEN, SEE INSTRUCTION 10. This Letter of Transmittal is to be used either if certificates for Shares (as defined herein) are to be delivered herewith or, unless an Agent's Message (as defined in the Offer to Purchase, which is defined herein) is utilized, if delivery of Shares is to be made pursuant to the procedures for book-entry transfer described in the Offer to Purchase to an account maintained by the Depositary (as defined herein) at the Book-Entry Transfer Facility (as defined in the Offer to Purchase). Shareholders whose certificates for Shares are not immediately available or who cannot deliver either the certificates for, or a Book-Entry Confirmation (as defined in the Offer to Purchase) with respect to, their Shares, and all other documents required hereby, to the Depositary prior to the Expiration Date (as defined in the Offer to Purchase) of the Offer (as defined below) must tender their Shares in accordance with the guaranteed delivery procedures described in the Offer to Purchase. See Instruction 2. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY. [ ] CHECK HERE IF SHARES ARE BEING TENDERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER): Name of Tendering Institution: - -------------------------------------------------------------------------------- Deliver by Book-Entry Transfer to the Book-Entry Transfer Facility (The Depository Trust Company) Account Number: - -------------------------------------------------------------------------------- Transaction Code Number: - -------------------------------------------------------------------------------- [ ] CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING: Name(s) of Registered Owner(s): - -------------------------------------------------------------------------------- Window Ticket Number (if any): - -------------------------------------------------------------------------------- Date of Execution of Notice of Guaranteed Delivery: - -------------------------------------------------------------------------------- Name of Institution that Guaranteed Delivery: - -------------------------------------------------------------------------------- [ ] Check box if delivered by Book-Entry Transfer to the Book-Entry Transfer Facility (The Depository Trust Company) Account Number: - -------------------------------------------------------------------------------- Transaction Code Number: - -------------------------------------------------------------------------------- NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY Ladies and Gentlemen: The undersigned hereby tenders to Conductor Acquisition Corp., a Michigan corporation (the "Purchaser") and an indirect wholly owned subsidiary of Geac Computer Corporation Limited, a corporation governed by the Canada Business Corporations Act ("Geac"), the above described shares of common stock, par value $1.00 per share ("Shares"), of Comshare, Incorporated, a Michigan corporation ("Comshare"), upon the terms and subject to the conditions set forth in the Purchaser's Offer to Purchase, dated July 1, 2003 (the "Offer to Purchase"), and this Letter of Transmittal (which, together with any amendments or supplements thereto or hereto, collectively constitute the "Offer"), receipt of which is hereby acknowledged. Upon the terms of the Offer, subject to, and effective upon, acceptance for payment of, and payment for, the Shares tendered herewith in accordance with the terms of the Offer, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Purchaser all right, title and interest in and to all the Shares that are being tendered herewith (and any and all dividends, distributions, other Shares or other securities or rights issued or issuable in respect thereof on or after July 1, 2003 (collectively, "Distributions")) and irrevocably constitutes and appoints EquiServe Trust Company, N.A. (the "Depositary") the true and lawful agent and attorney-in-fact of the undersigned, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to the full extent of the undersigned's rights with respect to such Shares (and any and all Distributions) (i) to deliver certificates for such Shares (and any such other Shares or securities or rights) or transfer ownership of such Shares (and any and all Distributions) on the account books maintained by the Book-Entry Transfer Facility together, in any such case, with all accompanying evidences of transfer and authenticity to, or upon the order of, the Purchaser, (ii) to present such Shares (and any and all Distributions) for transfer on Comshare's books and (iii) to receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares (and any and all Distributions), all in accordance with the terms of the Offer. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Shares tendered herewith (and any and all Distributions) and, when the same are accepted for payment by the Purchaser, the Purchaser will acquire good title thereto, free and clear of all liens, restrictions, claims and encumbrances, and the same will not be subject to any adverse claim. The undersigned will, upon request, execute any additional documents deemed by the Depositary or the Purchaser to be necessary or desirable to complete the sale, assignment and transfer of the Shares tendered herewith (and any and all Distributions). In addition, the undersigned shall remit and transfer promptly to the Depositary for the account of the Purchaser any and all Distributions in respect of the Shares tendered hereby, accompanied by appropriate documentation of transfer, and, pending such remittance and transfer or appropriate assurance thereof, the Purchaser shall be entitled to all rights and privileges as owner of each such Distribution and may withhold the entire purchase price of the Shares tendered hereby or deduct from such purchase price, the amount of value of such Distribution as determined by the Purchaser in its sole discretion. All authority conferred or agreed to be conferred pursuant to this Letter of Transmittal shall be binding upon the successors, assigns, heirs, executors, administrators and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. Except as described in the Offer to Purchase, this tender is irrevocable. The Purchaser reserves the right to require that, in order for the Shares or other securities to be deemed validly tendered, immediately upon the Purchaser's acceptance for payment of such Shares, the Purchaser must be able to exercise full voting, consent and other rights with respect to such Shares (and any and all Distributions), including voting at any meeting of Comshare's shareholders. By executing this Letter of Transmittal, the undersigned hereby irrevocably appoints Charles S. Jones, Paul D. Birch and Craig C. Thorburn each as an attorney-in-fact and proxy of the undersigned, each with full power of substitution and resubstitution, to vote at any annual, special, adjourned or postponed meeting of Comshare's shareholders or otherwise in such manner as each such attorney-in-fact and proxy (or his or her substitute) shall in his or her sole discretion deem proper with respect to, to execute any written consent concerning any matter as each such attorney-in-fact and proxy (or his or her substitute) shall in his or her sole discretion deem proper with respect to, and to otherwise act as each such attorney-in-fact and proxy (or his or her substitute) shall in his or her sole discretion deem proper with respect to, the Shares tendered herewith that have been accepted for payment by the Purchaser prior to the time any such action is taken and with respect to which the undersigned is entitled to vote (and any and all Distributions). This appointment is effective when, and only to the extent that, the Purchaser accepts for payment such Shares as provided in the Offer to Purchase. This power of attorney and proxy are irrevocable and are granted in consideration of the acceptance for payment of such Shares in accordance with the terms of the Offer. Upon such acceptance for payment, all prior powers of attorney, proxies and consents given by the undersigned with respect to the Shares tendered herewith (and any and all Distributions) will, without further action, be revoked and no subsequent powers of attorney, proxies, consents or revocations may be given (and, if given, will not be deemed effective) by the undersigned in respect of such Shares. The undersigned understands that the valid tender of Shares pursuant to any of the procedures described in the Offer to Purchase and in the Instructions hereto will constitute a binding agreement between the undersigned and the Purchaser upon the terms of and subject to the conditions to the Offer (and if the Offer is extended or amended, the terms or conditions of any such extension or amendment). Unless otherwise indicated herein in the box labeled "Special Payment Instructions," please issue the check for the purchase price and/or return any certificate(s) for Shares not tendered or accepted for payment in the name(s) of the registered holder(s) indicated herein in the box labeled "Description of Shares Tendered" on the cover page of this Letter of Transmittal. Similarly, unless otherwise indicated herein in the box labeled "Special Delivery Instructions," please mail the check for the purchase price and/or return any certificates for Shares not tendered or accepted for payment (and accompanying documents, as appropriate) to the address(es) of the registered holder(s) indicated herein in the box labeled "Description of Shares Tendered" on the cover page of this Letter of Transmittal. In the event that both of the boxes herein labeled the "Special Payment Instructions" and the "Special Delivery Instructions," respectively, are completed, please issue the check for the purchase price and/or return any certificate(s) for Shares not tendered or accepted for payment (and any accompanying documents, as appropriate) in the name of, and deliver such check and/or return such certificates (and any accompanying documents, as appropriate) to, the person or persons indicated therein. Please credit any Shares tendered herewith by book-entry transfer that are not accepted for payment by crediting the account at the Book-Entry Transfer Facility. The undersigned recognizes that the Purchaser has no obligation pursuant to the Special Payment Instructions to transfer any Shares from the name of the registered holder(s) thereof if the Purchaser does not accept for payment any of the Shares so tendered. SPECIAL PAYMENT INSTRUCTIONS (SEE INSTRUCTIONS 5, 6 AND 7) To be completed ONLY if the check for the purchase price of Shares purchased (less the amount of any federal income and backup withholding tax required to be withheld) or certificates for Shares not tendered or not purchased are to be issued in the name of someone other than the undersigned. Issue: [ ] check [ ] certificate(s) to: Name: - -------------------------------------------------------------------------------- (PLEASE PRINT) Address: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (ZIP CODE) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (TAXPAYER IDENTIFICATION NUMBER) SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 5, 6 AND 7) To be completed ONLY if the check for the purchase price of Shares purchased (less the amount of any federal income and backup withholding tax required to be withheld) or certificates for Shares not tendered or not purchased are to be mailed to someone other than the undersigned or to the undersigned at an address other than that shown below the undersigned's signature(s). Mail: [ ] check [ ] certificate(s) to: Name: - -------------------------------------------------------------------------------- (PLEASE PRINT) Address: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (ZIP CODE) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (TAXPAYER IDENTIFICATION NUMBER) SIGN HERE (PLEASE COMPLETE SUBSTITUTE FORM W-9 ON PAGE 6) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SIGNATURE(S) OF OWNER(S) Dated ------------------------------ , 2003 Name(s) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (PLEASE PRINT) Capacity (Full Title) - -------------------------------------------------------------------------------- Address - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (INCLUDE ZIP CODE) Area Code and Telephone Number - -------------------------------------------------------------------------------- Taxpayer Identification Number and Social Security Number - -------------------------------------------------------------------------------- (Must be signed by registered holder(s) exactly as name(s) appear(s) on stock certificate(s) or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents delivered herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer of a corporation or other person acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5.) GUARANTEE OF SIGNATURE(S) (IF REQUIRED; SEE INSTRUCTIONS 1 AND 5) FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN SPACE BELOW. Authorized Signature(s) - -------------------------------------------------------------------------------- Name(s) - -------------------------------------------------------------------------------- Name of Firm - -------------------------------------------------------------------------------- Address - -------------------------------------------------------------------------------- Area Code and Telephone Number - -------------------------------------------------------------------------------- Dated ------------------------------ , 2003
- ---------------------------------------------------------------------------------------------- PAYER: EQUISERVE TRUST COMPANY, N.A. - ---------------------------------------------------------------------------------------------- Name ------------------------------------------------------------------ Address ------------------------------------------------------------------ ------------------------------------------------------------------ ------------------------------------------------------------------ (City) (State) (Zip SUBSTITUTE Code) FORM W-9 DEPARTMENT OF THE TREASURY PART I TAXPAYER IDENTIFICATION NUMBER -- FOR ALL ACCOUNTS INTERNAL REVENUE SERVICE Enter your Taxpayer Identification Number in the appropriate box. PAYER'S REQUEST FOR For most individuals and sole proprietors, this is your Social TAXPAYER IDENTIFICATION Security Number. For other entities, it is your Employer NUMBER Identification Number. If you do not have a number, see "Obtaining a Number" in the enclosed Guidelines For Certification of Taxpayer Identification Number on Substitute Form W-9 ("Guidelines"). Note: If the account is in more than one name, see the chart on page 1 of the enclosed Guidelines to determine what number to enter. Social Security Number OR Employer Identification Number ------------------------------------------------------------------ PART II FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING PLEASE WRITE "EXEMPT" HERE (SEE ENCLOSED GUIDELINES) ------------------------------------------------------------------ PART III PLEASE CHECK THE BOX AT RIGHT IF YOU HAVE APPLIED FOR, AND ARE AWAITING RECEIPT OF, YOUR TAXPAYER IDENTIFICATION NUMBER [ ] - ---------------------------------------------------------------------------------------------- CERTIFICATION -- Under penalty of perjury, I certify that: (1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a number to be issued to me); (2) I am not subject to backup withholding either because (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service ("IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and (3) Any information provided on this form is true, correct and complete YOU MUST CROSS OUT ITEM (2) ABOVE IF YOU HAVE BEEN NOTIFIED BY THE IRS THAT YOU ARE CURRENTLY SUBJECT TO BACKUP WITHHOLDING BECAUSE OF UNDERREPORTING INTEREST OR DIVIDENDS ON YOUR TAX RETURN AND YOU HAVE NOT RECEIVED A NOTICE FROM THE IRS ADVISING YOU THAT BACKUP WITHHOLDING HAS TERMINATED. SIGNATURE ------------------------------ DATE ------------------------- NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 30% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR ADDITIONAL DETAILS. - ----------------------------------------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING YOUR TIN, CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalty of perjury that a Taxpayer Identification Number has not been issued to me, and either (1) I have mailed or delivered an application to receive a Taxpayer Identification Number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (2) I intend to mail or deliver an application in the near future. I understand that if I do not provide a Taxpayer Identification Number within 60 days, 30% of all reportable payments made to me thereafter will be withheld until I provide a number. Signature: ------------------------------ Date: ------------------------- , 2003 INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER 1. Guarantee of Signatures. No signature guarantee is required on this Letter of Transmittal if (i) this Letter of Transmittal is signed by the registered holder(s) of Shares tendered herewith, unless such registered holder(s) has completed either the box labeled "Special Payment Instructions" or the box labeled "Special Delivery Instructions" on this Letter of Transmittal or (ii) such Shares are tendered for the account of a financial institution (including most banks, savings and loan associations and brokerage houses) that is a participant in the Security Transfer Agent's Medallion Program, Nasdaq Stock Market Guarantee Program or the Stock Exchange Medallion Program or by any other "eligible guarantor institution," as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (each, an "Eligible Institution"). For purposes of this Instruction, a registered holder of Shares includes any participant in the Book-Entry Transfer Facilities system whose name appears on a security position listing as the owner of the Shares. In all other cases, all signatures on this Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 5. 2. Requirements of Tender. This Letter of Transmittal is to be completed by shareholders either if certificates are to be tendered herewith or, unless an Agent's Message (as defined in the Offer to Purchase) is utilized, if delivery of Shares is to be made pursuant to the procedures for book-entry transfer described in the Offer to Purchase to an account maintained by the Depositary at the Book Entry Transfer Facility (as defined in the Offer to Purchase). For a shareholder to validly tender Shares in the Offer, either (i) the certificate(s) representing the tendered Shares, together with this Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees and any other required documents, must be received by the Depositary at one of its addresses listed herein prior to the Expiration Date, (ii) in the case of a tender effected pursuant to a book-entry transfer (a) either this Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, or an Agent's Message, and any other required documents, must be received by the Depositary at one of its addresses listed herein prior to the Expiration Date, and (b) the Shares to be tendered must be delivered pursuant to the book-entry transfer procedures described in the Offer to Purchase and a Book-Entry Confirmation (as defined in the Offer to Purchase) must be received by the Depositary prior to the Expiration Date or (iii) the tendering shareholder must comply with the guaranteed delivery procedures described in the Offer to Purchase prior to the Expiration Date. If a shareholder desires to tender Shares in the Offer and such shareholder's certificates representing such Shares are not immediately available, or the book-entry transfer procedures described in the Offer to Purchase cannot be completed on a timely basis, or time will not permit all required documents to reach the Depositary prior to the Expiration Date, such shareholder may tender such Shares if all the following conditions are met: (i) such tender is made by or through an Eligible Institution; (ii) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by the Purchaser, is received by the Depositary at one of its addresses listed herein prior to the Expiration Date; and (iii) either (a) the certificates representing such Shares, together with this Letter of Transmittal, properly completed and duly executed, and any required signature guarantees, and any other required documents, are received by the Depositary at one of its addresses listed herein within three trading days (as described below) after the date of execution of such Notice of Guaranteed Delivery or (b) in the case of a book-entry transfer effected pursuant to the book-entry transfer procedures described in the Offer to Purchase, (1) either this Letter of Transmittal, properly completed and duly executed, and any required signature guarantees, or an Agent's Message, and any other required documents, is received by the Depositary at one of its addresses listed herein and (2) such Shares are delivered pursuant to the book-entry transfer procedures described in the Offer to Purchase, and a Book-Entry Confirmation is received by the Depositary, in each case within three trading days after the date of execution of such Notice of Guaranteed Delivery. For purposes of the foregoing, a trading day is any day on which the Nasdaq Stock Market is open for business. THE METHOD OF DELIVERY OF SHARES TO BE TENDERED IN THE OFFER, THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. SHARES TO BE TENDERED IN THE OFFER WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY OF SHARES IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY. No alternative, conditional or contingent tenders will be accepted. All tendering shareholders, by execution of this Letter of Transmittal, irrevocably waive any right to receive any notice of the acceptance of their Shares for payment. 3. Inadequate Space. If the space provided herein is inadequate, the certificate numbers and/or the number of Shares should be listed on a separate schedule attached hereto. 4. Partial Tenders (Applicable to Certificate Shareholders Only). If fewer than all the Shares evidenced by any certificate submitted are to be tendered herewith, fill in the number of Shares that are to be tendered under the column "Number of Shares Tendered" in the box entitled "Description of Shares Tendered." In any such case, new certificate(s) for the remainder of the Shares that were evidenced by the old certificate(s) will be sent to the registered holder(s), unless otherwise provided in the appropriate box on this Letter of Transmittal, as soon as practicable after the acceptance of payment of, and payment for, the Shares tendered herewith. All Shares represented by certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated. 5. Signatures on Letter of Transmittal, Stock Powers and Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered herewith, the signature(s) must correspond with the name(s) as written on the face of the certificate(s) without any change whatsoever. If any of the Shares tendered herewith are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal. If any tendered Shares are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal as there are different registrations of certificates. If this Letter of Transmittal or any certificates or stock powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing and proper evidence, satisfactory to the Purchaser, of their authority so to act must be submitted. When this Letter of Transmittal is signed by the registered owner(s) of the Shares tendered herewith, no endorsements of certificates or separate stock powers are required unless payment is to be made to, or certificates for Shares not tendered or accepted for payment are to be issued to, a person other than the registered owner(s). Signatures on such certificates or stock powers must be guaranteed by an Eligible Institution. If this Letter of Transmittal is signed by a person other than the registered owner(s) of certificate(s) listed on the cover page, such certificate(s) must be endorsed or accompanied by appropriate stock powers, in either case signed exactly as the name or names of the registered owner(s) appear on such certificate(s) and the signatures on such certificates or stock powers must be guaranteed by an Eligible Institution. 6. Stock Transfer Taxes. Except as otherwise provided in this Instruction 6, the Purchaser will pay any stock transfer taxes with respect to the transfer and sale of Shares to it in the Offer. If, however, payment of the purchase price is to be made to, or if certificates for Shares not to be tendered or not accepted for payment are to be registered in the name of, any person(s) other than the registered owner(s), or if tendered certificate(s) are registered in the name of any person(s) other than the person(s) signing this Letter of Transmittal, the amount of any stock transfer taxes (whether imposed on the registered owner(s) or such person(s)) payable on account of the transfer to such person(s) will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes, or exemption therefrom, is submitted. EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATE(S) LISTED IN THIS LETTER OF TRANSMITTAL. 7. Special Payment and Delivery Instructions. If a check is to be issued in the name of, and/or certificates for Shares not accepted for payment are to be returned to, a person other than the person signing this Letter of Transmittal, or if a check is to be sent and/or such certificates are to be returned to a person other than the person signing this Letter of Transmittal or to an address other than that shown above, the appropriate boxes on this Letter of Transmittal must be completed. 8. Waiver of Conditions. Subject to the terms and conditions of the Merger Agreement (as defined in the Offer to Purchase), the Purchaser reserves the absolute right in its sole discretion to waive any of the specified conditions (other than the Minimum Condition (as defined in the Offer to Purchase) or the condition that by the Determination Time (as defined in the Offer to Purchase) any applicable waiting period under the HSR Act (as defined in the Offer to Purchase) or any laws, rules or regulations analogous to the HSR Act existing in foreign jurisdictions has expired or been terminated) of the Offer, in whole or in part, in the case of any Shares to be tendered herewith. 9. Backup Withholding. In order to avoid backup withholding of U.S. federal income tax on payments of cash in the Offer, a shareholder tendering Shares in the Offer who is a U.S. citizen or a U.S. resident alien must, unless an exemption applies, provide the Depositary with such shareholder's correct taxpayer identification number ("TIN") on Substitute Form W-9 included below in this Letter of Transmittal and certify under penalties of perjury that such TIN is correct and that such shareholder is not subject to backup withholding. If a shareholder does not provide such shareholder's correct TIN or fails to provide the certifications described above, the Internal Revenue Service (the "IRS") may impose a penalty on such shareholder and payment of cash to such shareholder in the Offer may be subject to backup withholding of 30%. Backup withholding is not an additional tax. Rather, the amount of the backup withholding can be credited against the U.S. federal income tax liability of the person subject to the backup withholding, provided that the required information is given to the IRS. If backup withholding results in an overpayment of tax, a refund can be obtained by the shareholder upon filing an income tax return. The shareholder is required to give the Depositary the TIN (i.e., social security number or employer identification number) of the record owner(s) of the Shares tendered herewith. If such Shares are held in more than one name, or are not in the name of the actual owner(s), consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 for additional guidance on which number to report. The box in Part 3 of the Substitute Form W-9 may be checked if the tendering shareholder has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in Part 3 is checked, the shareholder or other payee must also complete the Certificate of Awaiting Taxpayer Identification Number below in order to avoid backup withholding. Notwithstanding that the box in Part 3 is checked and the Certificate of Awaiting Taxpayer Identification Number is completed, the Depositary will withhold 30% on all payments made prior to the time a properly certified TIN is provided to the Depositary. However, such amounts will be refunded to such shareholder if a TIN is provided to the Depositary within 60 days. See the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 for more instructions. Certain shareholders (including, among others, all corporations and certain foreign individuals and entities) are not subject to backup withholding. Tendering shareholders who are not U.S. citizens or U.S. resident aliens should complete and sign the main signature form and a Form W-8BEN, Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding, copies of which may be obtained from the Depositary, in order to avoid backup withholding. Shareholders should consult their tax advisors about qualifying for exemption from backup withholding and the procedure for obtaining such exemption. 10. Lost, Destroyed or Stolen Certificates. If any certificate representing Shares has been lost, destroyed or stolen, the shareholder should promptly notify the transfer agent for Comshare common stock, Computershare Trust Company of New York, at (312) 360-5223. The shareholder will then be instructed by Computershare Trust Company of New York as to the steps that must be taken in order to replace such certificate. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost or destroyed certificates have been completed. IMPORTANT: THIS LETTER OF TRANSMITTAL TOGETHER WITH ANY SIGNATURE GUARANTEES, OR IN THE CASE OF A BOOK-ENTRY TRANSFER, AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE, AND EITHER CERTIFICATES FOR TENDERED SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER DESCRIBED IN THE OFFER TO PURCHASE, IN EACH CASE PRIOR TO THE EXPIRATION DATE, OR THE TENDERING SHAREHOLDER MUST COMPLY WITH THE PROCEDURES FOR GUARANTEED DELIVERY DESCRIBED IN THE OFFER TO PURCHASE. MANUALLY SIGNED COPIES OF THIS LETTER OF TRANSMITTAL WILL BE ACCEPTED. THIS LETTER OF TRANSMITTAL, CERTIFICATES FOR SHARES AND ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT OR DELIVERED BY EACH SHAREHOLDER OR SUCH SHAREHOLDER'S BROKER, DEALER, BANK, TRUST COMPANY OR OTHER NOMINEE TO THE DEPOSITARY AT ONE OF ITS ADDRESSES LISTED BELOW. EQUISERVE TRUST COMPANY, N.A. By First Class Mail: By Certified or Express By Hand: Delivery: EquiServe Trust Company EquiServe Trust Company EquiServe Trust Company Attn: Corporate Actions Attn: Corporate Actions c/o Securities and Transfer & Post Office Box 43014 150 Royall Street Reporting Services, Inc. Providence, RI 02940-3014 Canton, MA 02021 100 Williams Street Galleria New York, NY 10038
Questions regarding the Offer, and requests for assistance in connection with the Offer, may be directed to the Information Agent or the Dealer Manager at their address and telephone numbers listed below. Additional copies of the Offer to Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery or any other materials related to the Offer may be obtained from the Information Agent and will be furnished promptly free of charge. You may also contact your broker, dealer, bank, trust company or other nominee for assistance concerning the Offer. The Information Agent for the Offer is: (GEORGESON SHAREHOLDER LOGO) GEORGESON SHAREHOLDER COMMUNICATIONS INC. 17 State Street -- 10th Floor New York, NY 10004 Toll Free: (800) 286-9178 Banks and Brokers: (212) 440-9800 The Dealer Manager for the Offer is: GEORGESON SHAREHOLDER SECURITIES CORPORATION 17 State Street -- 10th Floor New York, NY 10004 Toll Free: (800) 445-1790 Banks and Brokers: (212) 440-9800 EX-99.(A)(1)(C) 5 b47043gcexv99wxayx1yxcy.txt NOTICE OF GUARANTEED DELIVERY Exhibit (a)(1)(C) NOTICE OF GUARANTEED DELIVERY FOR TENDER OF SHARES OF COMMON STOCK OF COMSHARE, INCORPORATED TO CONDUCTOR ACQUISITION CORP., AN INDIRECT WHOLLY OWNED SUBSIDIARY OF GEAC COMPUTER CORPORATION LIMITED (NOT TO BE USED FOR SIGNATURE GUARANTEES) THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON WEDNESDAY, JULY 30, 2003, UNLESS THE OFFER IS EXTENDED. This Notice of Guaranteed Delivery, or a form substantially equivalent hereto, must be used to accept the Offer (as defined below) (i) if certificates ("Share Certificates") representing shares of common stock, par value $1.00 per share ("Shares"), of Comshare, Incorporated, a Michigan corporation, are not immediately available, (ii) if Share Certificates and all other required documents cannot be delivered to EquiServe Trust Company, N.A., the depositary for the Offer (the "Depositary"), or (iii) if the procedures for book-entry transfer cannot be completed on a timely basis. This form may be delivered by hand or by mail to the Depositary and must include a guarantee by an Eligible Institution (as defined in Conductor Acquisition Corp.'s Offer to Purchase, dated July 1, 2003 (the "Offer to Purchase")). See Section 3 of the Offer to Purchase. The Depositary for the Offer is: EQUISERVE TRUST COMPANY, N.A. By First Class Mail: By Certified or Express By Hand: EquiServe Trust Company Delivery: EquiServe Trust Company Attn: Corporate Actions EquiServe Trust Company c/o Securities Transfer & Post Office Box 43014 Attn: Corporate Actions Reporting Services, Inc. Providence, RI 02940-3014 150 Royall Street 100 Williams Street Galleria Canton, MA 02021 New York, NY 10038
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY. THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL FOR THE OFFER IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE INSTITUTION" (AS DEFINED IN THE OFFER TO PURCHASE) UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON SUCH LETTER OF TRANSMITTAL. THE ELIGIBLE INSTITUTION THAT COMPLETES THIS FORM MUST COMMUNICATE THE GUARANTEE TO THE DEPOSITARY AND MUST DELIVER THE LETTER OF TRANSMITTAL OR AN AGENT'S MESSAGE (AS DEFINED IN THE OFFER TO PURCHASE) AND SHARES TO THE DEPOSITARY IN THE TIME PERIOD SHOWN HEREIN. FAILURE TO DO SO COULD RESULT IN A FINANCIAL LOSS TO SUCH ELIGIBLE INSTITUTION. THE GUARANTEE ON THE FOLLOWING PAGES MUST BE COMPLETED. Ladies and Gentlemen: The undersigned hereby tenders to Conductor Acquisition Corp., a Michigan corporation (the "Purchaser") and an indirect wholly owned subsidiary of Geac Computer Corporation Limited, a corporation governed by the Canada Business Corporations Act, upon the terms and subject to the conditions set forth in the Offer to Purchase and in the Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"), receipt of which is hereby acknowledged, the number of Shares set forth below, all pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. Number of Shares: - -------------------------------------------------------------------------------- Certificate Nos. (if available): - -------------------------------------------------------------------------------- (Check box if Shares will be tendered by book-entry transfer) [ ] The Depository Trust Company Account Number - -------------------------------------------------------------------------------- Dated - -------------------------------------------------------------------------------- Name(s) of Record Holder(s): - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PLEASE PRINT Address(es): - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (ZIP CODE) Daytime Area Code and Tel. No.: - -------------------------------------------------------------------------------- Signature(s): - -------------------------------------------------------------------------------- GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a firm that is a participant in the Security Transfer Agent's Medallion Program or Nasdaq Stock Market Guarantee Program or the Stock Exchange Medallion Program or an "eligible guarantor institution," as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended, hereby guarantees to deliver to the Depositary either the certificates representing the Shares tendered herewith, in proper form for transfer, or a Book-Entry Confirmation (as defined in Section 3 of the Offer to Purchase) with respect to such Shares, in any such case together with a properly completed and duly executed Letter of Transmittal for the Offer, with any required signature guarantees, or an Agent's Message (as defined in Section 2 of the Offer to Purchase), and any other required documents, within three trading days (as described in the Letter of Transmittal for the Offer) after the date hereof. THE ELIGIBLE INSTITUTION THAT COMPLETES THIS FORM MUST COMMUNICATE THE GUARANTEE TO THE DEPOSITARY AND MUST DELIVER A LETTER OF TRANSMITTAL FOR THE OFFER OR AN AGENT'S MESSAGE AND CERTIFICATES FOR SHARES TO THE DEPOSITARY WITHIN THE TIME PERIOD SHOWN HEREIN. FAILURE TO DO SO COULD RESULT IN A FINANCIAL LOSS TO SUCH ELIGIBLE INSTITUTION. Name of Firm - -------------------------------------------------------------------------------- Address(es): - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (ZIP CODE) Area Code and Tel. No.: - -------------------------------------------------------------------------------- AUTHORIZED SIGNATURE Name: - -------------------------------------------------------------------------------- PLEASE TYPE OR PRINT Title: - -------------------------------------------------------------------------------- Dated: - -------------------------------------------------------------------------------- Signature(s): - -------------------------------------------------------------------------------- NOTE: DO NOT SEND SHARE CERTIFICATES WITH THIS NOTICE. SHARE CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL FOR THE OFFER. EX-99.(A)(1)(D) 6 b47043gcexv99wxayx1yxdy.txt LETTER TO BROKERS, DEALERS, BANKS, TRUST COMPANIES EXHIBIT (a)(1)(D) OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK OF COMSHARE, INCORPORATED AT $4.60 NET PER SHARE BY CONDUCTOR ACQUISITION CORP., AN INDIRECT WHOLLY OWNED SUBSIDIARY OF GEAC COMPUTER CORPORATION LIMITED THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON WEDNESDAY, JULY 30, 2003, UNLESS THE OFFER IS EXTENDED. July 1, 2003 To Brokers, Dealers, Banks, Trust Companies and other Nominees: We have been engaged by Conductor Acquisition Corp., a Michigan corporation (the "Purchaser") and an indirect wholly owned subsidiary of Geac Computer Corporation Limited, a corporation governed by the Canada Business Corporations Act ("Geac"), to act as the information agent (the "Information Agent") in connection with the Purchaser's offer to purchase all of the outstanding shares of common stock, par value $1.00 per share (the "Shares"), of Comshare, Incorporated, a Michigan corporation ("Comshare"), at a price of $4.60 per share (the "Offer Price"), net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Purchaser's Offer to Purchase, dated July 1, 2003 (the "Offer to Purchase"), and in the Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). Please furnish copies of the enclosed materials to those of your clients for whom you hold Shares that are registered in your name or in the name of your nominee. Holders of Shares who wish to tender their Shares but whose certificates for such Shares (the "Share Certificates") are not immediately available, who cannot complete the procedures for book-entry transfer on a timely basis, or who cannot deliver all other required documents to EquiServe Trust Company, N.A. (the "Depositary") prior to the Expiration Date (as defined in the Offer to Purchase) must tender their Shares according to the guaranteed delivery procedure set forth in the Offer to Purchase. Enclosed herewith are copies of the following documents: 1. The Offer to Purchase dated July 1, 2003; 2. The Letter of Transmittal to be used by shareholders of Comshare to tender Shares in the Offer (manually signed copies of the Letter of Transmittal may also be used to tender Shares); 3. A letter to shareholders of Comshare from the Chairman of the Board, President and Chief Executive Officer of Comshare, accompanied by Comshare's Solicitation/Recommendation Statement on Schedule 14D-9 filed with the Securities and Exchange Commission by Comshare, which includes the recommendation of Comshare's board of directors that Comshare shareholders accept the Offer and tender their Shares to the Purchaser pursuant to the Offer; 4. A printed form of letter that may be sent to your clients for whose account you hold Shares that are registered in your name or in the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Offer; 5. Notice of Guaranteed Delivery to be used to accept the Offer if Share Certificates are not immediately available or if such certificates and all other required documents cannot be delivered to the Depositary or if the procedures for book-entry transfer cannot be completed on a timely basis; 6. Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9; and 7. Return envelope addressed to EquiServe Trust Company, N.A., as the Depositary for the Offer. WE URGE YOU TO CONTACT YOUR CLIENTS PROMPTLY. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON WEDNESDAY, JULY 30, 2003, UNLESS THE OFFER IS EXTENDED. The Offer is conditioned upon, among other things, there being validly tendered in accordance with the terms of the Offer and not properly withdrawn prior the Expiration Date (as defined in the Offer to Purchase) a number of Shares that, when added to the number of Shares owned by Geac, Purchaser or any affiliate of Geac or Purchaser, represents at least a majority of the total shares of Comshare common stock issued and outstanding on a fully diluted basis (the "Minimum Condition"). The Offer is also subject to other conditions described in Section 15 (Certain Conditions of the Offer) of this Offer to Purchase. The Offer is being made pursuant to an Agreement and Plan of Merger, dated as of June 22, 2003 (the "Merger Agreement"), by and among Geac, the Purchaser and Comshare pursuant to which, following the purchase of Shares in the Offer and the satisfaction or waiver of certain conditions, the Purchaser will be merged with and into Comshare (the "Merger"), with Comshare surviving the Merger as an indirect wholly owned subsidiary of Geac. As a result of the Merger, each outstanding Share (other than Shares owned by Geac, the Purchaser, Comshare or any subsidiary of Geac or Comshare) will be converted into the right to receive the price per Share paid in the Offer in cash, without interest thereon. COMSHARE'S BOARD OF DIRECTORS HAS UNANIMOUSLY DETERMINED THAT THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING, WITHOUT LIMITATION, THE OFFER, THE MERGER AND THE PURCHASE OF THE SHARES AND ASSOCIATED RIGHTS CONTEMPLATED BY THE OFFER (COLLECTIVELY, THE "TRANSACTIONS"), ARE FAIR TO AND IN THE BEST INTERESTS OF THE COMSHARE'S SHAREHOLDERS; HAS UNANIMOUSLY APPROVED AND ADOPTED THE MERGER AGREEMENT AND THE TRANSACTIONS, INCLUDING THE OFFER AND MERGER, IN ACCORDANCE WITH THE REQUIREMENTS OF MICHIGAN LAW; AND HAS AGREED TO RECOMMEND THAT COMSHARE'S SHAREHOLDERS ACCEPT THE OFFER, AND APPROVE AND ADOPT THE MERGER AGREEMENT AND THE MERGER. On the terms of and subject to the conditions to the Offer, promptly after the Expiration Date of the Offer, the Purchaser will accept for payment, and pay for, all Shares validly tendered to the Purchaser and not properly withdrawn prior to the Expiration Date of the Offer. To validly tender Shares in the Offer (i) the certificate(s) representing the tendered Shares, together with the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, and any other required documents, must be received by the Depositary on or prior to the Expiration Date, (ii) in the case of a tender effected pursuant to the book-entry transfer procedures described in the Offer to Purchase (a) either the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, or an Agent's Message (as defined in the Offer to Purchase), and any other required documents, must be received by the Depositary prior to the Expiration Date of the Offer, and (b) the Shares to be tendered must be delivered pursuant to the book-entry transfer procedures described in the Offer to Purchase and a Book-Entry Confirmation (as defined in the Offer to Purchase) must be received by the Depositary prior to the Expiration Date or (iii) the tendering shareholder must comply with the guaranteed delivery procedures described in the Offer to Purchase prior to the Expiration Date. Neither the Purchaser nor Geac will pay any fees or commissions to any broker or dealer or other person (other than the Depositary, the Information Agent and Georgeson Shareholder Securities Corporation, the dealer manager for the Offer (the "Dealer Manager")) in connection with the solicitation of tenders of Shares in connection with the Offer. You will be reimbursed by the Purchaser upon request for customary mailing and handling expenses incurred by you in forwarding the enclosed materials to your customers. The Purchaser will pay or cause to be paid all stock transfer taxes applicable to its purchase of Shares pursuant to the Offer, except as otherwise provided in Instruction 6 of the Letter of Transmittal. Questions regarding the Offer, and requests for additional copies of the enclosed material, may be directed to the Information Agent at the address and telephone number listed on the back cover of the Offer to Purchase. Very truly yours, GEORGESON SHAREHOLDER COMMUNICATIONS INC. NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR ANY OTHER PERSON THE AGENT OF THE PURCHASER, GEAC, THE DEPOSITARY, THE INFORMATION AGENT OR THE DEALER MANAGER OR AUTHORIZE YOU OR ANY OTHER PERSON TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF ANY OF THEM WITH RESPECT TO THE OFFER NOT CONTAINED IN THE OFFER TO PURCHASE OR THE LETTER OF TRANSMITTAL FOR THE OFFER. Georgeson Shareholder Communications Inc. 17 State Street -- 10th Floor New York, New York 10004 Banks and Brokers Call: (212) 440-9800 All Others Call Toll Free: (800) 286-9178 EX-99.(A)(1)(E) 7 b47043gcexv99wxayx1yxey.txt LETTER TO CLIENTS FOR USE BY BROKERS, DEALERS EXHIBIT (a)(1)(E) OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK OF COMSHARE, INCORPORATED AT $4.60 NET PER SHARE BY CONDUCTOR ACQUISITION CORP., AN INDIRECT WHOLLY OWNED SUBSIDIARY OF GEAC COMPUTER CORPORATION LIMITED THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON WEDNESDAY, JULY 30, 2003, UNLESS THE OFFER IS EXTENDED. July 1, 2003 To Our Clients: Enclosed for your consideration is an Offer to Purchase, dated July 1, 2003 (the "Offer to Purchase"), and a Letter of Transmittal (which, together with amendments or supplements thereto, collectively constitute the "Offer") relating to the Offer by Conductor Acquisition Corp., a Michigan corporation (the "Purchaser") and an indirect wholly owned subsidiary of Geac Computer Corporation Limited, a corporation governed by the Canada Business Corporations Act ("Geac"), to purchase all of the outstanding shares of common stock, par value $1.00 per share (the "Shares"), of Comshare, Incorporated, a Michigan corporation ("Comshare"), at a price of $4.60 per share, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer. Also enclosed for your consideration is a letter to the shareholders of Comshare from the Chairman of the Board, President and Chief Executive Officer of Comshare accompanied by Comshare's Solicitation/Recommendation Statement on Schedule 14D-9. The Purchaser's Offer is being made upon the terms and subject to the conditions set forth in the Offer. We (or our nominees) are the holder of record of Shares held by us for your account. A tender of such Shares can be made only by us as the holder of record and pursuant to your instructions. The enclosed Letter of Transmittal is furnished to you for your information only and cannot be used to tender Shares held by us for your account. We request instructions as to whether you wish to tender any or all of the Shares held by us for your account pursuant to the terms and conditions set forth in the Offer. Your attention is directed to the following: 1. The offer price for the Offer is $4.60 per Share, net to the seller in cash (the "Offer Price"), without interest thereon, upon the terms of and subject to the conditions to the Offer. 2. The Offer is being made for all outstanding Shares. 3. The Offer is conditioned upon, among other things, there being validly tendered in accordance with the terms of the Offer and not properly withdrawn prior the Expiration Date (as defined in the Offer to Purchase) a number of shares of Comshare common stock that, when added to the number of shares of Comshare common stock owned by Geac, Purchaser or any affiliate of Geac or Purchaser, represents at least a majority of the shares of Comshare common stock issued and outstanding on a fully diluted basis (the "Minimum Condition"). The Offer is also subject to other conditions described in Section 15 (Certain Conditions of the Offer) of the Offer to Purchase. 4. The Offer is being made pursuant to an Agreement and Plan of Merger, dated as of June 22, 2003 (the "Merger Agreement"), by and among Geac, the Purchaser and Comshare pursuant to which, following the purchase of Shares in the Offer and the satisfaction or waiver of certain conditions, the Purchaser will be merged with and into Comshare (the "Merger"), with Comshare surviving the Merger as an indirect wholly owned subsidiary of Geac. As a result of the Merger, each outstanding Share (other than Shares owned by Geac, the Purchaser, Comshare or any subsidiary of Geac or Comshare) will be converted into the right to receive the price per Share paid in the Offer in cash, without interest thereon. 5. Comshare's board of directors has unanimously determined that the Merger Agreement and the transactions contemplated thereby, including, without limitation, the Offer, the Merger and the purchase of the Shares and associated Rights contemplated by the Offer (collectively, the "Transactions"), are fair to and in the best interests of the Company's shareholders; has unanimously approved and adopted the Merger Agreement and the Transactions, including the Offer and Merger, in accordance with the requirements of Michigan law; and has agreed to recommend that the Company's shareholders accept the Offer, and approve and adopt the Merger Agreement and the Merger. 6. The Offer and withdrawal rights expire at 12:00 midnight, Eastern time, on July 30, 2003 (the "Expiration Date"), unless the Offer is extended by the Purchaser, in which event the term Expiration Date shall mean the latest time at which the Offer, as so extended by the Purchaser, will expire. 7. Any stock transfer taxes applicable to a sale of Shares to the Purchaser will be borne by the Purchaser, except as otherwise set forth in Instruction 6 of the Letter of Transmittal. 8. Tendering shareholders will not be obligated to pay brokerage fees or commissions to the Depositary, the Information Agent or the Dealer Manager (each as defined in the Offer to Purchase), or except as set forth in Instruction 6 of the Letter of Transmittal for the Offer, transfer taxes on the purchase of Shares by the Purchaser in the Offer. However, federal income tax backup withholding at a rate of 30% may be required, unless the required taxpayer identification information is provided or an exemption is available. See the Letter of Transmittal for the Offer for more information. Your instructions to us should be forwarded promptly to permit us to submit a tender on your behalf prior to the Expiration Date. If you wish to have us tender any or all of the Shares held by us for your account, please so instruct us by completing, executing and returning to us the instruction form. An envelope to return your instructions to us is enclosed. If you authorize the tender of your Shares, all such Shares will be tendered unless otherwise specified on the detachable part hereof. Your instructions should be forwarded to us in ample time to permit us to submit a tender on your behalf prior to the Expiration Date. On the terms of and subject to the conditions to the Offer, promptly after the Expiration Date, the Purchaser will accept for payment, and pay for, all Shares validly tendered to the Purchaser in the Offer and not properly withdrawn prior to the Expiration Date. To validly tender Shares in the Offer (i) the certificate(s) representing the tendered Shares, together with the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees and any other required documents, must be received by the Depositary for the Offer prior to the Expiration Date, (ii) in the case of a tender effected pursuant to the book-entry transfer procedures described in the Offer to Purchase (a) either the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, or an Agent's Message described in the Offer to Purchase, and any other required documents, must be received by the Depositary prior to the Expiration Date, and (b) the Shares to be tendered must be delivered pursuant to the book-entry transfer procedures described in the Offer to Purchase and a Book-Entry Confirmation described in the Offer to Purchase must be received by the Depositary for the Offer prior to the Expiration Date or (iii) the tendering shareholder must comply with the guaranteed delivery procedures described in the Offer to Purchase prior to the Expiration Date. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the laws of such jurisdiction. In those jurisdictions where securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of the Purchaser by the Dealer Manager or one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by the Purchaser. INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK OF COMSHARE, INCORPORATED The undersigned acknowledge(s) receipt of your letter, the Offer to Purchase of Conductor Acquisition Corp., dated July 1, 2003 (the "Offer to Purchase"), and the Letter of Transmittal relating to shares of common stock, par value $1.00 per share (the "Shares"), of Comshare, Incorporated, a Michigan corporation. This will instruct you to tender the number of Shares indicated below (or, if no number is indicated below, all Shares) held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Offer to Purchase and Letter of Transmittal. Number of Shares to be Tendered*: Shares SIGN HERE Signature(s) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Please Type or Print Name(s) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Please Type or Print Address(es) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Area Code and Telephone Number - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Taxpayer Identification or Social Security No. - -------------------------------------------------------------------------------- * Unless otherwise indicated, it will be assumed that all your Shares are to be tendered. Dated: ------------------------------ , 2003 EX-99.(A)(1)(F) 8 b47043gcexv99wxayx1yxfy.txt PRESS RELEASE DATED JULY 1,2003 Exhibit (a)(1)(F) [GEAC LOGO] NEWS RELEASE - -------------------------------------------------------------------------------- GEAC COMMENCES TENDER OFFER TO ACQUIRE COMSHARE MARKHAM, ON AND SOUTHBOROUGH, MA - JULY 1, 2003 - Geac Computer Corporation Limited (TSX: GAC), a global enterprise software company for business performance management, today announced that it has commenced, through its indirect, wholly owned subsidiary Conductor Acquisition Corp., a cash tender offer to purchase all of the outstanding shares of common stock of Comshare, Incorporated (Nasdaq: CSRE), a leading provider of corporate performance management software. The tender offer is being made pursuant to the previously announced definitive merger agreement between Geac and Comshare dated as of June 22, 2003. Comshare shareholders will receive US $4.60 in cash for each share of Comshare common stock tendered. Comshare's Board of Directors has unanimously approved the transaction and agreed to recommend that its shareholders accept it. The holders of approximately 15% of Comshare's outstanding common stock, including Dennis Ganster, Comshare's Chief Executive Officer, Codec Systems Limited and Anthony Stafford, have agreed to support the transaction and to tender their shares to Geac. Geac today has filed with the Securities and Exchange Commission a tender offer statement on Schedule TO setting forth in detail the terms of the tender offer, and Comshare has filed with the Commission a solicitation/recommendation statement on Schedule 14D-9 setting forth the conclusion of Comshare's Board of Directors that the tender offer and the merger described in the merger agreement are fair to and in the best interests of Comshare's shareholders, and the recommendation of the Comshare Board of Directors that Comshare shareholders accept the offer and tender their shares pursuant to the offer. The tender offer will expire at 12:00 midnight on July 30, 2003, unless extended in accordance with the merger agreement and the applicable regulations of the Securities and Exchange Commission. The offer is conditioned upon, among other things, there being validly tendered and not properly withdrawn prior to the expiration date of the offer shares of Comshare common stock representing not less than a majority of Comshare's total outstanding shares, calculated on a fully diluted basis. The tender offer is expected to be consummated by August 2003, and, assuming at least 90% of Comshare's outstanding common stock is tendered, the merger will close immediately thereafter. The transaction is subject to regulatory clearance, approval by Comshare's stockholders (if less than 90% of Comshare's outstanding shares are acquired by Geac in the tender offer) and other customary closing conditions. ABOUT COMSHARE, INCORPORATED Comshare, Incorporated is a leading provider of software that helps companies implement and execute strategy. Comshare's corporate performance management application encompasses planning, budgeting, forecasting, financial consolidation, management reporting, and analysis. In business for over 35 years, Comshare is one of the top independent software companies, with Fortune 500 and Financial Times Top 1000 customers around the world. Comshare is a Business Objects partner, a Siebel Software Partner, and a Microsoft Gold Certified Partner for Business Intelligence and Software. For more information on Comshare, call 1-800-922-7979, send email to info@comshare.com or visit Comshare's website at www.comshare.com. ABOUT GEAC Geac (TSX: GAC) is a global enterprise software company for business performance management, providing customers worldwide with the core financial and operational solutions and services to improve their business performance in real time. Further information is available at http://www.geac.com or through e-mail at info@geac.com. All Geac products and services referred to herein are the registered trademarks or trademarks of Geac Computer Corporation Limited or its subsidiaries. All other brand or product names are registered trademarks or trademarks of their respective holders. ADDITIONAL INFORMATION Geac has filed with the Securities and Exchange Commission a tender offer statement on Schedule TO, and will mail to Comshare stockholders, the Offer to Purchase and related documents. Comshare has filed with the Commission, and will mail to Comshare stockholders, a solicitation/recommendation statement on Schedule 14D-9. Comshare stockholders are advised to read Geac's tender offer statement and Comshare's solicitation/recommendation statement because they will contain important information about Geac, Comshare, the tender offer and the merger. Comshare stockholders may obtain free copies of these statements from the Securities and Exchange Commission's website at www.sec.gov, or by contacting Geac Investor Relations at 905-475-0525 x3325 or investor@geac.com or Comshare Investor Relations at 734-994-4800 or bjarzynski@comshare.com. SAFE HARBOR STATEMENT This press release contains forward-looking statements that are based on current expectations, including statements regarding the timing of the consummation of the tender offer and merger. These forward-looking statements entail various risks or uncertainties that could cause actual results to differ materially from those reflected in the forward-looking statements. Important factors that could cause such differences include the timing of completion of the regulatory review process, the 2 possibility that approval of Comshare's stockholders may be required and, if required, may not be obtained or may be delayed, the possibility that other closing conditions in the merger agreement may not be satisfied, and other risks and uncertainties described under the heading "Risk Factors" in Geac's Registration Statement on Form F-4, No. 333-103019, filed with the United States Securities and Exchange Commission (copies of which are available through the website maintained by the Commission at www.sec.gov and through the website maintained by the Canadian Depository for Securities Limited at www.sedar.com), and under the heading "Safe Harbor Statement" in Comshare's Quarterly Report on Form 10-Q for the three months ended March 31, 2003, filed with the Commission (copies of which are available at www.sec.gov). CONTACT INFORMATION: PAUL D. BIRCH DAN MARTIN PRESIDENT AND CHIEF EXECUTIVE OFFICER PROGRAM SUPERVISOR GEAC MILLER CONSULTING GROUP 508.871.5000 617.262.1800 X223 PAUL.BIRCH@GEAC.COM DAN@MILLERGRP.COM 3 EX-99.(A)(1)(G) 9 b47043gcexv99wxayx1yxgy.txt SUMMARY ADVERTISMENT DATED JULY 1, 2003 EXHIBIT (a)(1)(G) This announcement is neither an offer to purchase nor a solicitation of an offer to sell shares of Comshare, Incorporated. The Offer (as hereinafter defined) is made solely by the Offer to Purchase, dated July 1, 2003 (the "Offer to Purchase"), and the related Letter of Transmittal, and any amendments or supplements thereto, and is being made to all holders of Shares (as hereinafter defined). The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction or any administrative or judicial action pursuant thereto. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of Conductor Acquisition Corp. by Georgeson Shareholder Securities Corporation (the "Dealer Manager") or one or more registered brokers or dealers licensed under the laws of such jurisdiction. NOTICE OF OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK OF COMSHARE, INCORPORATED AT $4.60 NET PER SHARE BY CONDUCTOR ACQUISITION CORP. AN INDIRECT WHOLLY OWNED SUBSIDIARY OF GEAC COMPUTER CORPORATION LIMITED Conductor Acquisition Corp., a Michigan corporation ("Purchaser") and an indirect wholly owned subsidiary of Geac Computer Corporation Limited, a corporation governed by the Canada Business Corporations Act ("Geac"), is offering to purchase all outstanding shares of common stock, par value $1.00 per share (the "Shares") (including the Series A Preferred Stock purchase rights associated thereto (the "Rights")), of Comshare, Incorporated, a Michigan corporation (the "Company"), at a purchase price of $4.60 per Share, net to the seller in cash, without interest thereon (the "Offer Price"), upon the terms and subject to the conditions set forth in the Offer to Purchase and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, constitute the "Offer"). The Offer is a third party tender offer by Purchaser to purchase at the Offer Price all Shares tendered pursuant to the Offer. Following consummation of the Offer, Purchaser and Geac intend to effect the Merger (as defined below) as described in the Offer to Purchase and below. Tendering stockholders who have Shares registered in their name and who tender directly to EquiServe Trust Company, N.A. (the "Depositary") will not be charged brokerage fees or commissions or, except as set forth in the Letter of Transmittal, transfer taxes on the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares through a broker or bank should consult with such institution as to whether it charges any service fees. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, EASTERN TIME, ON WEDNESDAY, JULY 30, 2003, UNLESS THE OFFER IS EXTENDED. Among other things, the Offer is conditioned on at least a majority of the Shares outstanding on a fully diluted basis (taking into account any Shares owned by Geac or Purchaser or any affiliate of Geac or Purchaser on the date such Shares are purchased pursuant to the Offer) having been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"). The Offer is subject to certain other conditions set forth in the Offer to Purchase. The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of June 22, 2003 (the "Merger Agreement"), among Geac, Purchaser and the Company. The Merger Agreement provides that, among other things, Purchaser will make the Offer and that following the purchase of Shares pursuant to the Offer, upon the terms and subject to the conditions set forth in the Merger Agreement, and in accordance with the Michigan Business Corporation Act (the "MBCA"), Purchaser will be merged with and into the Company (the "Merger"). Following consummation of the Merger, the Company will continue as the surviving corporation and become an indirect wholly owned subsidiary of Geac. At the effective time of the Merger, each outstanding Share (other than Shares held by (a) the Company or any of its subsidiaries or (b) Geac, Purchaser or any of Geac's direct or indirect wholly owned subsidiaries) will be converted into the right to receive $4.60 in cash, or any higher price per Share paid pursuant to the Offer, without interest, as set forth in the Merger Agreement and described in the Offer to Purchase. The Merger Agreement provides that Geac and Purchaser may transfer or assign any or all of their rights and obligations (including the right to purchase Shares in the Offer) to one or more of their affiliates, but no such transfer or assignment shall relieve either Geac or Purchaser of its obligations under the Merger Agreement. Geac and Purchaser have no present intention to effect such transfer. Simultaneously with the execution and delivery of the Merger Agreement, Geac and Purchaser have entered into a Voting and Tender Agreement (the "Voting and Tender Agreements") with each of Dennis G. Ganster, Codec Systems Limited and Anthony Stafford (the "Voting Agreement Signatories"). Pursuant to the Voting and Tender Agreements, each Voting Agreement Signatory has agreed to tender his or its Shares in the Offer not later than one business day prior to the Expiration Date and not to withdraw such Shares once tendered. The Voting Agreement Signatories together hold approximately 15% of the outstanding Shares as of June 22, 2003. The Merger Agreement and the Voting and Tender Agreements are more fully described in Section 12 of the Offer to Purchase. The Board of Directors of the Company has unanimously determined that the Merger Agreement and the transactions contemplated thereby, including, without limitation, the Offer, the Merger and the purchase of the Shares and associated Rights contemplated by the Offer (collectively, the "Transactions"), are fair to and in the best interests of the Company's shareholders; has unanimously approved and adopted the Merger Agreement and the Transactions, including the Offer and Merger, in accordance with the requirements of Michigan law; and has agreed to recommend that the Company's shareholders accept the Offer, and approve and adopt the Merger Agreement and the Merger. For purposes of the Offer and as used herein and in the Offer to Purchase, the term "Expiration Date" means 12:00 midnight, Eastern time, on Wednesday, July 30, 2003, unless and until the Purchaser extends the period of time during which the Offer is open in accordance with the terms of the Merger Agreement, in which event the term Expiration Date will mean the latest time and date on which the Offer, as so extended by the Purchaser, will expire. If the Purchaser extends the Offer, the Purchaser will inform the Depositary of that fact and will make a public announcement of the extension not later than 9:00 a.m., Eastern time, on the next business day after the previously scheduled Expiration Date. During any such extension, all Shares previously tendered and not withdrawn will remain subject to the Offer, subject to the right of a tendering -2- stockholder to withdraw such Shares. Shares that are tendered in the Offer may be withdrawn pursuant to the procedures described in the Offer to Purchase at any time prior to the Expiration Date, and shares that are tendered may also be withdrawn at any time after August 30, 2003 unless accepted for payment on or before that date. In the event that the Purchaser provides for a subsequent offering period following the completion of the Offer, (i) no withdrawal rights will apply to shares tendered during such subsequent offering period and (ii) no withdrawal rights will apply to shares that were previously tendered in the Offer and accepted for payment. For a withdrawal of Shares previously tendered in the Offer to be effective, a written notice of withdrawal must be timely received by the Depositary at one of its addresses listed on the back cover of the Offer to Purchase, specifying the name of the person having tendered the shares to be withdrawn, the number of shares to be withdrawn and the name of the registered holder of the shares to be withdrawn, if different from the name of the person who tendered the shares. If certificates for shares have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such certificates, the serial numbers shown on such certificates must be submitted to the Depositary and, unless such shares have been tendered by a financial institution (including most banks, savings and loan associations and brokerage houses) that is a participant in the Security Transfer Agent's Medallion Program, Nasdaq Stock Market Medallion Signature Guarantee Program or the Stock Exchange Medallion Program (each an "Eligible Institution"), any and all signatures on the notice of withdrawal must be guaranteed by an Eligible Institution. If shares have been tendered pursuant to the book-entry transfer procedures described in Section 3 of the Offer to Purchase, any notice of withdrawal must also specify the name and number of the account at the Book-Entry Transfer Facility (as defined in Section 3 of the Offer to Purchase) to be credited with the withdrawn shares and otherwise comply with the Book-Entry Transfer Facility's procedures. Withdrawals of tenders of Shares may not be rescinded, and any Shares properly withdrawn will thereafter be deemed not validly tendered for purposes of the Offer. Withdrawn Shares may be re-tendered in the Offer, however, by following one of the procedures described in Section 3 of the Offer to Purchase at any time prior to the Expiration Date. All questions as to the form and validity (including time of receipt) of any notice of withdrawal will be determined by the Purchaser in its sole discretion, which determination will be final and binding. None of the Purchaser, Geac, the Company, the Depositary, the Dealer Manager, the Information Agent, or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification. Under Rule 14d-11 of the Securities Exchange Act of 1934, as amended, and subject to the conditions described in the Offer to Purchase, the Purchaser may elect to provide for a subsequent offering period, immediately following the Expiration Date, of not less than three business days nor more than twenty business days in length. If provided, a subsequent offering period would be an additional period of time, following the Expiration Date and the acceptance for payment of, and the payment for, any Shares that are validly tendered in the Offer and not properly withdrawn prior to the Expiration Date, during which holders of Shares that were not previously tendered in the Offer may tender such Shares to the Purchaser in exchange for the Offer Price on the same terms and conditions that applied to the Offer. A subsequent offering period is not the same as an extension of the Offer, which will have been previously completed if a subsequent offering period is provided. The Purchaser will accept for payment, and pay for, any Shares that are validly tendered to the Purchaser during a subsequent offering period, if provided, as promptly as practicable after any such Shares are validly tendered to the Purchaser during such subsequent offering period, for the same price paid to holders of Shares that were validly tendered in the Offer and not withdrawn prior to the Expiration Date, net to the holders thereof in cash. Holders of Shares that are validly tendered to the Purchaser during a subsequent offering period, if provided, will not have the right to withdraw such tendered shares. -3- The Company has provided the Purchaser with a list, and security position listings, of the Company's stockholders for the purpose of disseminating the Offer to holders of Shares. The Offer to Purchase and the Letter of Transmittal and other materials related to the Offer will be mailed to record holders of Shares, and will be furnished to brokers, dealers, banks, trust companies and other nominees whose names, or the names of whose nominees, appear on the list of the Company's stockholders, or, if applicable, who are listed as participants in a clearing agency's security position listing, for subsequent transmittal to beneficial owners of Shares. The receipt of cash in the Offer or the Merger will be a taxable transaction for United States federal income tax purposes under the Internal Revenue Code of 1986, as amended, and may also be a taxable transaction under applicable state, local or foreign income or other tax laws. Generally, for U.S. federal income tax purposes, a U.S. stockholder tendering Shares in the Offer will recognize gain or loss equal to the difference between the amount of cash received by the stockholder in the Offer or the Merger and the stockholder's aggregate adjusted tax basis in the Shares tendered by the stockholder and purchased in the Offer or converted into cash in the Merger, as the case may be. If Shares that are tendered in the Offer are held by a tendering U.S. stockholder as capital assets, gain or loss recognized by such stockholder will be capital gain or loss, which will be long-term capital gain or loss if such stockholder's holding period for such shares exceeds one year. All stockholders should consult with their own tax advisors as to the particular tax consequences of the Offer and the Merger to them, including the applicability and effect of the alternative minimum tax and any state, local or foreign income and other tax laws and of changes in such tax laws. For a more complete description of certain U.S. federal income tax consequences of the Offer and the Merger, see Section 5 of the Offer to Purchase. The Purchaser expressly reserves the right (but shall not be obligated), at any time and from time to time, to increase the Offer Price or to make any other changes in the terms of and conditions to the Offer, subject to the terms of the Merger Agreement, which provides that certain conditions may not be waived and certain modifications may not be made without the consent of the Company. The information required to be disclosed by paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, is contained in the Offer to Purchase and is incorporated herein by reference. THE OFFER TO PURCHASE AND LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION AND SHOULD BE READ CAREFULLY AND IN THEIR ENTIRETY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER. Any questions or requests for assistance may be directed to the Information Agent or the Dealer Manager at the telephone numbers and address set forth below. Requests for copies of the Offer to Purchase and the related Letter of Transmittal and other tender offer documents may be directed to the Information Agent or the Dealer Manager as set forth below, and copies will be furnished promptly at Purchaser's expense. Stockholders may also contact their broker, dealer, commercial bank, trust company or nominee for assistance concerning the Offer. To confirm delivery of Shares, stockholders are directed to contact the Depositary. The Information Agent for the Offer is: (GEORGESON SHAREHOLDER LOGO) Georgeson Shareholder Communications Inc. 17 State Street - 10th Floor New York, New York 10004 Toll Free: (800) 286-9178 The Dealer Manager for the Offer is: Georgeson Shareholder Securities Corporation 17 State Street - 10th Floor New York, NY 10004 Toll Free: (800) 445-1790 July 1, 2003 -4- EX-99.(D)(1) 10 b47043gcexv99wxdyx1y.txt CONFIDENTIALITY AGREEMENT Exhibit (d)(1) April 24, 2003 Geac Computer Corporation Limited 11 Allstate Parkway, Suite 300 Markham, Ontario L3R 9T8 Attention: The Chairman Dear Sirs: Comshare, Incorporated ("Comshare") understands that the company named above (the "Recipient") is interested in receiving information about Comshare in connection with a possible transaction. All information (including but not limited to business plans and strategy, financial, marketing, or sales data, technical specifications, computer programming techniques, customer lists and information, product development plans, software and documentation) furnished by Comshare, its directors, officers, employees, agents or representatives (collectively, "representative"), either in written form or orally, and all analyses, compilations, data, studies or other documents prepared by the Recipient or its representatives containing or based in whole or in part on any such furnished information or reflecting the Recipient's review or, or interest in, Comshare is hereinafter referred to as the "Information." In consideration of being furnished with the Information, the Recipient agrees to the following Confidentiality and Exploratory Agreement: 1. CONFIDENTIALITY. The Recipient agrees that all Information is the confidential information of Comshare. The Recipient shall not copy, abstract, reverse engineer or disclose any Information to any other person, firm, corporation, or other entity. Dissemination of the Information shall be limited to the Recipient's employees, and representatives who have a need to know and who shall be bound to honor the provisions of this Agreement. 2. EXCEPTIONS. The obligations of confidentiality shall not apply to any information that (a) is contained in a generally available non-confidential publication bearing a date prior to the date of this Agreement; (b) is or becomes generally available to the public other than as a result of the Page 2 April 24, 2003 improper action of the Recipient; (c) is rightfully known from a source independent of any restrictions imposed by Comshare or becomes rightfully known to the Recipient from such a source; (d) shall be or has been independently developed by the Recipient; (e) is generally furnished to others by Comshare without restrictions on the receiving party's right to disclose; or (f) is required to be disclosed by any valid requirement of any governmental authority, regulatory agency or stock exchange (by order, oral questions, interrogations, subpoena or otherwise) or by a court of law having jurisdiction over the Recipient (provided that, to the extent permitted by law, the Recipient shall notify Comshare of the receipt of such an order and shall cooperate with Comshare in efforts to limit the extent of information required to be disclosed and to assure that confidential treatment will be accorded the Information). 3. DISCUSSIONS. The fact that discussions are taking place between Comshare and the Recipient regarding a potential transaction, the content of the discussions, and the participation of the parties in the discussions shall also be regarded as Information. 4. PURPOSE. All Information shall be used by the Recipient solely for the purpose of exploring a transaction with Comshare and for no other purpose. The Information shall not be used in any way directly or indirectly detrimental to Comshare. The furnishing of the Information does not constitute the grant of or waiver by Comshare of any of its proprietary interests, including without limitation patents, trade secrets, copyrights, or trademarks. The Recipient understands that Comshare has tried to include Information that it believes to be reliable and relevant for the purpose of the Recipient's evaluation but acknowledges that Comshare makes no representation or warranty as to the accuracy or completeness of the Information. The Recipient agrees that neither Comshare nor any of its representatives shall have any liability as a result of the use of the Information by the Recipient and its representatives, and the Recipient understands that only those particular representations and warranties that may be made by Comshare in a definitive agreement, when, as and if it is executed, and subject to such limitations and restrictions as may be specified in such a definitive agreement, shall have any legal effect. 5. RETURN. The Recipient shall return to Comshare all Information furnished to the Recipient by Comshare or its representatives, and shall destroy, or caused to be destroyed, all notes, memoranda, analyses, compilations, data, studies, other documents or other stored information of any kind prepared by the Recipient or its representatives containing or based in whole or in part on the Information or the discussions generally, upon Page 3 April 24, 2003 Comshare's request. All confidentiality obligations shall survive the termination of this Agreement and the return of Information. 6. EXPLORATORY DISCUSSION NOT BINDING. The parties agree that this Agreement, continuing discussions, future provision of Information, past or future correspondence (including without limitation correspondence indicating interest or intent), and other communications between the parties shall not commit either party to continue discussions or negotiate, or be legally binding as an informal agreement or agreement to agree to a potential transaction. The only way the parties shall be bound to a transaction, if at all, shall be by a mutually satisfactory definitive written agreement signed by the parties. Any research and development, prototyping, or other action or expense that either party takes or incurs in anticipation that a transaction will be consummated shall be entirely at the acting party's risk and expense and shall not impose any liability on any other party. 7. TRADING. The Recipient hereby acknowledges that it is aware (and that its directors, officers, employees, representatives and agents who are apprised of the matter have been, or upon becoming apprised will be, advised) that the Information includes material non-public information about Comshare and that they are aware of the restrictions (including the restrictions regarding transactions in securities) imposed by the United States federal securities laws on a person possessing material non-public information about a public company. 8. PURCHASE. The Recipient hereby agrees that for a period of twelve months after the date of this Agreement it will not, directly or indirectly, (a) purchase or offer to purchase any assets or securities of Comshare or propose any merger, tender or exchange offer, or other business combination, or any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction, involving Comshare except pursuant to a transaction approved by the Board of Directors of Comshare, (b) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting securities of Comshare, (c) form, join or in any way participate in a "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 with respect to the securities of Comshare, (d) otherwise act, alone or in concert with others, to seek to control the management, board of directors, or policies of Comshare, (e) disclose any intention, plan or arrangement inconsistent with the foregoing, (f) take any action that might require Comshare to make a public announcement regarding the possibility of any of the foregoing or (g) request Comshare (or its directors, officers, employees, Page 4 April 24, 2003 affiliates or advisors) to amend or waive any of the foregoing. For a period of one year after the date of this Agreement, Recipient will not, without Comshare's prior written consent, employ or solicit to employ any person who is then serving as an officer, employee, distributor or consultant to the Company or who served in such capacity within the prior six months; provided, however, that after six months from the date of this Agreement the Recipient shall be permitted to employ any such person who responds to a general solicitation for employment. 9. PROCESS. The Recipient agrees that Comshare may conduct any process for any transaction involving Comshare in any manner that Comshare may determine in its sole discretion and acknowledges that Comshare reserves the right to reject any and all proposals made by the Recipient and to terminate discussions and negotiations with the Recipient at any time. 10. GENERAL. Headings are for convenience only and have no legal significance. This Agreement constitutes the entire agreement between the parties regarding its subject matter. It may be altered, amended, modified, or waived only by a written agreement signed by the parties. Without prejudice to any other rights or remedies Comshare may have, the Recipient acknowledges and agrees that money damages would not be an adequate remedy for any breach of this Agreement and that Comshare shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of this Agreement. The illegality, invalidity or unenforceability of any provision of this Agreement under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision of this Agreement. This Agreement shall be governed by the internal laws of the State of Michigan exclusive of its choice of law rules. The parties acknowledge that they have read and understood this Agreement and agree to be bound by its terms. Sincerely yours, /s/ Brian J. Jarzynski Brian J. Jarzynski Senior Vice President and CFO Comshare, Incorporated AGREED TO AND ACCEPTED BY: Page 5 April 24, 2003 GEAC COMPUTER CORPORATION LIMITED By: /s/ Charles S. Jones ------------------------------------------------- Charles S. Jones, Chairman Date: April 24, 2003 EX-99.(D)(2) 11 b47043gcexv99wxdyx2y.txt CONFIDENTIALITY AGREEMENT Exhibit (d)(2) Effective as of May 1, 2003 Comshare, Incorporated 555 Briarwood Circle Ann Arbor, MI 48108 USA Attention: Brian J. Jarzynski Dear Sirs: In connection with a possible transaction being discussed by Comshare, Incorporated (the "Recipient") and Geac Computer Corporation Limited ("GCCL") pursuant to which GCCL would acquire the Recipient through a public tender offer followed, if necessary, by a back-end merger (together, the "Transaction"), GCCL and the Recipient entered into a non-disclosure agreement on April 24, 2003 relating to the disclosure of information about the Recipient to GCCL. GCCL would now like to be able to disclose certain information to the Recipient about GCCL in order to facilitate the Transaction. All information (including but not limited to business plans and strategy, financial, marketing, or sales data, technical specifications, computer programming techniques, customer lists and information, product development plans, software and documentation) furnished by GCCL, its directors, officers, employees, agents or representatives (collectively, "representative"), either in written form or orally, and all analyses, compilations, data, studies or other documents prepared by the Recipient or its representatives containing or based in whole or in part on any such furnished information is hereinafter referred to as the "Information". In consideration of being furnished with the Information, the Recipient agrees to the following Confidentiality Agreement: 1. CONFIDENTIALITY. The Recipient agrees that all Information is the confidential information of GCCL. The Recipient shall not copy, abstract, reverse engineer or disclose any Information to any other person, firm, corporation, or other entity. Dissemination of the Information shall be limited to the Recipient's employees and representatives who have a need to know and who shall be bound to honor the provisions of this Agreement. 2. EXCEPTIONS. The obligations of confidentiality shall not apply to any information that (a) is contained in a generally available non-confidential publication bearing a date prior to the date of this Agreement; (b) is or becomes generally available to the public other than as a result of the improper action of the Recipient; (c) is rightfully known from a source independent of any restrictions imposed by GCCL or becomes rightfully known to the Recipient from such a source; (d) shall be or has been independently developed by the Recipient; (e) is generally furnished to others by GCCL Page 2 Effective as of May 1, 2003 without restrictions on the receiving party's right to disclose; or (f) is required to be disclosed by any valid requirement of any governmental authority, regulatory agency or stock exchange (by order, oral questions, interrogations, subpoena or otherwise) or by a court of law having jurisdiction over the Recipient (provided that, to the extent permitted by law, the Recipient shall notify GCCL of the receipt of such an order and shall cooperate with GCCL in efforts to limit the extent of information required to be disclosed and to assure that confidential treatment will be accorded the Information). 3. DISCUSSIONS. The fact that discussions are taking place between GCCL and the Recipient regarding the Transaction, the content of the discussions, and the participation of the parties in the discussions shall also be regarded as Information. 4. PURPOSE. All Information shall be used by the Recipient solely for the purpose of understanding timing considerations relating to the Transaction and for no other purpose. The Information shall not be used in any way directly or indirectly detrimental to GCCL. The furnishing of the Information does not constitute the grant of or waiver by GCCL of any of its proprietary interests, including without limitation patents, trade secrets, copyrights, or trademarks. The Recipient understands that GCCL has tried to include Information that it believes to be reliable and relevant for the purpose of facilitating the Transaction but acknowledges that GCCL makes no representation or warranty as to the accuracy or completeness of the Information. The Recipient agrees that neither GCCL nor any of its representatives shall have any liability as a result of the use of the Information by the Recipient and its representatives, and the Recipient understands that only those particular representations and warranties that may be made by GCCL in a definitive agreement, when, as and if it is executed, and subject to such limitations and restrictions as may be specified in such a definitive agreement, shall have any legal effect. 5. RETURN. The Recipient shall return to GCCL all Information furnished to the Recipient by GCCL or its representatives, and shall destroy, or caused to be destroyed, all notes, memoranda, analyses, compilations, data, studies, other documents or other stored information of any kind prepared by the Recipient or its representatives contained or base in whole or in apart on the Information or the discussions generally, upon GCCL's request. All confidentiality obligations shall survive the termination of this Agreement and the return of Information. 6. DISCUSSION NOT BINDING. The parties agree that this Agreement, continuing discussions, future provision of Information, past or future correspondence (including without limitation correspondence indicating interest or intent), and other communications between the parties shall not commit either party to continue discussions or negotiate, or be legally binding as an informl agreement or agreement to agree to the Transaction. The only way the parties shall be bound to a transaction, if at all, shall be by a mutually satisfactory definitive written agreement signed by the parties. Any research and development, prototyping, or other action or expense that either party takes or incurs in anticipation that a transaction will be consummated shall be entirely at the acting party's risk and expense and shall not impose any liability on any other party. Page 3 Effective as of May 1, 2003 7. TRADING. The Recipient hereby acknowledges that it is aware (and that its directors, officers, employees, representatives and agents who are apprised of the matter have been, or upon becoming apprised will be, advised) that the Information includes material non-public information about GCCL and that they are ware of the restrictions (including the restrictions regarding transactions in securities) imposed by applicable securities laws on a person possessing material non-public information about a public company. 8. GENERAL. Headings are for convenience only and have no legal significant. This Agreement constitutes the entire agreement between the parties regarding its subject matter. It may be altered, amended, modified, or waived only by a written agreement signed by the parties. Without prejudice to any other rights or remedies GCCL may have, the Recipient acknowledges and agrees that money damages would not be an adequate remedy for any breach of this Agreement and that GCCL shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of this Agreement. The illegality, invalidity or unenforceability of any provision of this Agreement under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision of this Agreement. This Agreement shall be governed by the internal laws of the State of Michigan exclusive of its choice of law rules. The parties acknowledge that they have read and understood this Agreement and agree to be bound by its terms. Sincerely yours, GEAC COMPUTER CORPORATION LIMITED By: /s/ Craig C. Thornburn ----------------------------------------------------------- Craig C. Thorburn, Senior Vice President, Mergers & Acquisitions, and Corporate Secretary AGREED TO AND ACCEPTED, EFFECTIVE AS OF MAY 1, 2003, BY: COMSHARE, INCORPORATED By: /s/ Brian J. Jarzynski ---------------------------------------------------------- Brian J. Jarzynski Senior Vice President and CFO Date: June 22, 2003 EX-99.(D)(3) 12 b47043gcexv99wxdyx3y.txt AGREEMENT AND PLAN OF MERGER Exhibit (d)(3) AGREEMENT AND PLAN OF MERGER dated as of June 22, 2003 among COMSHARE, INCORPORATED GEAC COMPUTER CORPORATION LIMITED and CONDUCTOR ACQUISITION CORP. TABLE OF CONTENTS ARTICLE 1 DEFINITIONS ................................................ 1 Section 1.01. Definitions. ......................................... 1 ARTICLE 2 THE OFFER .................................................. 5 Section 2.01. The Offer. ........................................... 5 Section 2.02. Company Action. ...................................... 7 Section 2.03. Directors. ........................................... 8 Section 2.04. Top-Up Option. ....................................... 9 ARTICLE 3 THE MERGER ................................................. 11 Section 3.01. The Merger. .......................................... 11 Section 3.02. Conversion of Shares. ................................ 12 Section 3.03. Surrender and Payment ................................ 12 Section 3.04. Stock Options ........................................ 13 Section 3.05. Stock Purchase Plan .................................. 13 Section 3.06. Adjustments .......................................... 13 Section 3.07. Withholding Rights ................................... 13 Section 3.08. Lost, Stolen or Destroyed Certificates ............... 14 ARTICLE 4 THE SURVIVING CORPORATION .................................. 14 Section 4.01. Articles of Incorporation ............................ 14 Section 4.02. Bylaws ............................................... 14 Section 4.03. Directors and Officers ............................... 14 ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE COMPANY .............. 14 Section 5.01. Corporate Existence and Power ........................ 14 Section 5.02. Corporate Authorization .............................. 15 Section 5.03. Governmental Authorization. .......................... 15 Section 5.04. Non-contravention .................................... 15 Section 5.05. Capitalization. ...................................... 16 Section 5.06. Subsidiaries. ........................................ 17 Section 5.07. SEC Filings. ......................................... 17 Section 5.08. Financial Statements. ................................ 18 Section 5.09. Disclosure Documents. ................................ 18 Section 5.10. Absence of Certain Changes ........................... 19 Section 5.11. No Undisclosed Material Liabilities. ................. 20 Section 5.12. Compliance with Laws and Court Orders ................ 21 Section 5.13. Litigation ........................................... 21 Section 5.14. Finders' Fees ........................................ 21 Section 5.15. Taxes ................................................ 21 Section 5.16. Employee Benefit Plans. .............................. 22 Section 5.17. Antitakeover Statutes and Rights Agreement. .......... 25 Section 5.18. Intellectual Property ................................ 26 Section 5.19 Title and Condition of Properties .................... 28 Section 5.20 Insurance ............................................ 28 Section 5.21 Certain Contracts. ................................... 28
i Section 5.22 Employment Matters. .................................. 29 Section 5.23 Voting Requirements .................................. 29 Section 5.24. Disclaimer of Other Representations and Warranties ... 30 ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF PARENT ................... 30 Section 6.01. Corporate Existence and Power ........................ 30 Section 6.02. Corporate Authorization .............................. 30 Section 6.03. Governmental Authorization ........................... 30 Section 6.04. Non-contravention .................................... 31 Section 6.05. Disclosure Documents. ................................ 31 Section 6.06. Finders' Fees ........................................ 32 Section 6.07. Financing ............................................ 32 ARTICLE 7 COVENANTS OF THE COMPANY ................................... 32 Section 7.01. Conduct of the Company ............................... 32 Section 7.02. Shareholder Meeting; Proxy Material .................. 35 Section 7.03. Access to Information ................................ 35 Section 7.04. No Solicitation; Other Offers. ....................... 35 Section 7.05. Rights Agreement; Takeover Statutes .................. 37 Section 7.06. Section 16 Matters ................................... 37 ARTICLE 8 COVENANTS OF PARENT ........................................ 37 Section 8.01. Confidentiality ...................................... 37 Section 8.02. Obligations of Merger Subsidiary ..................... 38 Section 8.03. Voting of Shares ..................................... 38 Section 8.04. Director and Officer Liability ....................... 38 Section 8.05. Employee Benefits after the Merger. .................. 39 Section 8.06. Financing ............................................ 41 ARTICLE 9 COVENANTS OF PARENT AND THE COMPANY ........................ 41 Section 9.01. Commercially Reasonable Efforts. ..................... 41 Section 9.02. Certain Filings ...................................... 42 Section 9.03. Public Announcements ................................. 42 Section 9.04. Further Assurances ................................... 42 Section 9.05. Merger Without Meeting of Shareholders ............... 42 ARTICLE 10 CONDITIONS TO THE MERGER .................................. 42 Section 10.01. Conditions to Obligations of Each Party ............. 42 ARTICLE 11 TERMINATION ............................................... 43 Section 11.01. Termination ......................................... 43 Section 11.02. Effect of Termination ............................... 45 Section 11.03. Fees and Expenses ................................... 45 ARTICLE 12 MISCELLANEOUS ............................................. 46 Section 12.01. Notices ............................................. 46 Section 12.02. Survival of Representations and Warranties .......... 47 Section 12.03. Amendments; No Waivers. ............................. 47
ii Section 12.04. Successors and Assigns .............................. 47 Section 12.05. Governing Law ....................................... 47 Section 12.06. Jurisdiction ........................................ 47 Section 12.07. Waiver of Jury Trial ................................ 48 Section 12.08. Counterparts; Effectiveness; Benefit ................ 48 Section 12.9. Entire Agreement .................................... 48 Section 12.10. Captions ............................................ 48 Section 12.11. Severability ........................................ 48 Section 12.12. Specific Performance ................................ 48 Section 12.13. No Prejudice ........................................ 49
iii AGREEMENT AND PLAN OF MERGER THIS AGREEMENT AND PLAN OF MERGER dated as of June 22, 2003, is among Comshare, Incorporated, a Michigan corporation (the "COMPANY"), Geac Computer Corporation Limited, a corporation governed by the Canada Business Corporations Act ("PARENT"), and Conductor Acquisition Corp., a Michigan corporation and an indirect wholly owned subsidiary of Parent ("MERGER SUBSIDIARY"). RECITALS WHEREAS, the Board of Directors of each of Parent and Merger Subsidiary has determined that it is advisable and in the best interests of Parent and Merger Subsidiary to engage in a transaction whereby Merger Subsidiary will acquire the Company on the terms and subject to the conditions set forth in this Agreement; and WHEREAS, the Board of Directors of the Company (the "BOARD OF Directors") has, after considering the long-term prospects and interests of the Company and its shareholders, determined that it is advisable and in the best interests of the Company and its shareholders to engage in a transaction whereby Merger Subsidiary will acquire the Company on the terms and subject to the conditions set forth in this Agreement; and WHEREAS, Parent, Merger Subsidiary and the Company wish to make certain representations, warranties, covenants and agreements in connection with the Offer and the Merger and also to prescribe various conditions to the Offer and the Merger. NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, Parent, Merger Subsidiary and the Company hereby agree as follows: ARTICLE 1 DEFINITIONS Section 1.01. Definitions. (a) The following terms, as used herein, have the following meanings: "ACQUISITION PROPOSAL" means any offer or proposal for, or any inquiry or indication of interest in, (i) any sale, lease, exchange, mortgage, transfer or other disposition of 50% or more of the consolidated assets of the Company and its Subsidiaries, (ii) any acquisition or purchase of an equity interest in the Company representing in excess of 15% of the power to vote for the election of the directors of the Company, or any tender offer or exchange offer for equity securities of the Company as a result of which the offeror would hold such an equity interest in the Company, (iii) any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, or any of its Subsidiaries whose assets, individually or in the aggregate, constitute more than 50% of the consolidated assets of the Company, (iv) a plan of liquidation or extraordinary dividend relating to more than 50% of its total assets or (v) the repurchase by the Company or its Subsidiary of more than 50% of the outstanding Shares, in each case other than the Transactions (as defined in Section 2.02(a)). "AFFILIATE" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person; for purposes hereof "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities, by contract or otherwise. "ANTITRUST LAW" means the Sherman Act, the Clayton Act, the HSR Act, the Federal Trade Commission Act, and all other federal, state and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition. "BUSINESS DAY" means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York or Detroit, Michigan are authorized or required by law to close. "BENEFICIALLY OWNED" means, with respect to any Shares held by any Person, that such Person is the beneficial owner of such Shares as defined in Rule 13d-3 promulgated under the 1934 Act. "CODE" means the Internal Revenue Code of 1986. "FULLY DILUTED SHARES" means all outstanding Shares on a fully diluted basis, after giving effect to the exercise, conversion or termination of all options, warrants, rights and securities exercisable or convertible into the Shares. "HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976. "KNOWLEDGE" of any Person that is not an individual means the actual conscious knowledge of such Person's executive officers. "LIEN" means, with respect to any property or asset, any mortgage, lien, pledge, charge, claim, security interest or encumbrance of any kind or nature whatsoever in respect of such property or asset. "MATERIAL ADVERSE EFFECT" means, with respect to any Person, any change, result, effect, event, occurrence or state of facts (or any development that has had or is reasonably likely to have any change or effect) that is or would reasonably be expected to be materially adverse to the business, financial condition, assets, liabilities or results of operations or prospects of such Person and its Subsidiaries, taken as a whole, or which is or would reasonably be expected to be materially adverse to the ability of such Person to consummate the Transactions; provided, however, that none of the following shall be deemed in itself, either alone or in combination to constitute, and none of the following shall be taken into account in determining whether there 2 has been, a Material Adverse Effect: (i) any such effect resulting from or arising in connection with this Agreement or the Transactions or the execution or announcement hereof, (ii) changes in circumstances or conditions affecting the industry in which the Company and its Subsidiaries operate or affecting software companies in general, (iii) changes in general economic, regulatory or political conditions or in financial or securities markets in the United States or elsewhere, (iv) changes in generally accepted accounting principles or (v) any change in the price at which the Shares are publicly traded. The failure of a Person to meet any particular revenue or earnings forecast or estimate for any period ending after the date of this Agreement, including estimates prepared by equity analysts or other third parties, as well as internal forecasts prepared by management of such Person, shall not, in and of itself, be deemed to constitute a Material Adverse Effect. "MICHIGAN LAW" means the Michigan Business Corporation Act. "1933 ACT" means the Securities Act of 1933. "1934 ACT" means the Securities Exchange Act of 1934. "PERSON" means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "SEC" means the Securities and Exchange Commission. "SHARES" means the shares of common stock, $1.00 par value, of the Company. "STOCK OPTION" means an employee or director stock option to purchase Shares under any employee or director stock option or compensation plan or arrangement of the Company, not including the Stock Purchase Plan (as defined in Section 3.05) or the Top-Up Option. "SUBSIDIARY" means, with respect to any Person, any corporation or other legal entity of which such Person controls (either alone or through or together with any other Subsidiary) more than 50% of the capital stock or other ownership interests, the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity. "THIRD PARTY" means a Person, as defined in this Agreement, other than Parent or any of its Affiliates. Any reference in this Agreement to a statute shall be to such statute, as amended from time to time, and to the rules and regulations promulgated thereunder. Any reference to dollar amounts shall be to United States dollars. (b) Each of the following terms is defined in the Section set forth opposite such term:
TERM SECTION ---- ------- Acquisition Proposal............................... 7.04
3 Agreement.......................................... Annex A Board of Directors................................. Recitals Certificates....................................... 3.03 Company Copyrights................................. 5.18 Company Disclosure Documents....................... 5.09 Company Financial Advisor.......................... 2.02(a) Company Marks...................................... 5.18 Company Patents.................................... 5.18 Company Proxy Statement............................ 5.03 Company SEC Documents.............................. 5.07 Company Secret Information......................... 5.18 Company Securities................................. 5.05 Company Shareholder Meeting........................ 7.02 Company Subsidiary Securities...................... 5.06 Comshare Plan...................................... 8.05 Confidentiality Agreement.......................... 7.03 Determination Time................................. Annex A DOJ................................................ 9.01 Disclosure Schedule................................ Article 5 Effective Time..................................... 3.01 Employee Plans..................................... 5.16 ERISA.............................................. 5.16 Exchange Agent..................................... 3.03 Expenses........................................... 11.03 Foreign Plans...................................... 5.16 Foreign Retirement Plan............................ 5.16 Foreign Welfare Plan............................... 5.16 FTC................................................ 9.01 GAAP............................................... 5.08 Governmental Entity................................ 5.03 Indemnified Person................................. 8.04 Independent Directors.............................. 2.03 Information Statement ............................. 5.09 Intellectual Property.............................. 5.18 Material Contract.................................. 5.21 Merger............................................. 3.01 Merger Consideration............................... 3.02 Minimum Condition.................................. 2.01 Offer.............................................. 2.01 Offer Documents.................................... 2.01 Offer Price........................................ 2.01 Parent Plans....................................... 8.05 Parent's 401(k) Plan............................... 8.05 Preferred Stock.................................... 5.05 Required Cash Amount............................... 6.07 Rights............................................. 2.01
4 Rights Agreement................................... 2.01 Schedule 14D-9..................................... 2.02 Schedule TO........................................ 2.01 Stock Purchase Plan................................ 3.05 Subsequent Offering Period......................... 2.01 Superior Proposal.................................. 7.04 Surviving Corporation.............................. 3.01 Surviving Corporation New Plans.................... 8.05 Takeover Statute................................... 5.17(a) Taxes.............................................. 5.15 Taxing Authority................................... 5.15 Tax Return......................................... 5.15 Termination Fee.................................... 11.03 Top-Up Closing..................................... 2.04 Top-Up Exercise Event.............................. 2.04 Top-Up Option...................................... 2.04 Top-Up Option Shares............................... 2.04 Top-Up Response Date............................... 2.04 Top-Up Termination Date............................ 2.04 Transactions....................................... 2.02 U.K. Pension Plan.................................. 5.16 Uncertificated Shares.............................. 3.03 Voting Agreement................................... 5.05(d) Welfare Plan....................................... 5.16
ARTICLE 2 THE OFFER Section 2.01. The Offer. (a) As promptly as practicable after the date hereof, but in no event later than July 3, 2003, Merger Subsidiary shall commence (within the meaning of Rule 14d-2(a) under the 1934 Act) an offer (the "OFFER") to purchase any and all of the outstanding Shares, together with the Series A Preferred Stock purchase rights (the "RIGHTS") attached thereto issued pursuant to the Rights Agreement, dated as of September 16, 1996, between the Company and Computershare Investor Services LLC, as successor to KeyBank National Association, Key Corp Shareholder Services, Inc. and Harris Trust and Savings Bank's corporate trust business, as Rights Agent (the "RIGHTS AGREEMENT"), at a price of $4.60 per Share (the "OFFER PRICE"), net to the seller in cash, subject to reduction for any applicable withholding taxes and, if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer, and not withdrawn, a number of Shares that, together with the Shares then owned by Parent or any of its Subsidiaries, represents at least a majority of the Fully Diluted Shares (the "MINIMUM CONDITION"), and Merger Subsidiary shall not be required to accept for payment or pay for any Shares, and may terminate the Offer, if, on the expiration date of the Offer (as extended in 5 accordance with this Section 2.01), (i) the Minimum Condition has not been met, or (ii) the other conditions set forth in Annex A hereto have not been satisfied. (b) Merger Subsidiary expressly reserves the right to waive the Minimum Condition or any of the other conditions to the Offer and to make any change in the terms or conditions of the Offer; provided that no change or waiver may be made that, without the prior written consent of the Company, waives the Minimum Condition, changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth herein or is otherwise adverse to the holders of the Shares, or waives the condition that by the Determination Time any applicable waiting period under the HSR Act or any laws, rules or regulations analogous to the HSR Act existing in foreign jurisdictions has expired or been terminated. Notwithstanding anything in this Agreement to the contrary, without the consent of the Company, Merger Subsidiary shall have the right to extend the Offer beyond the initial expiration date in the following events: (i) from time to time, but in no event later than October 1, 2003, if, at the initial expiration date (or extended expiration date of the Offer, if applicable), one or more of the conditions to the Offer (other than the Minimum Condition, to which this clause does not apply) shall not have been satisfied or waived, until such conditions are satisfied or waived; (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable United States' law; or (iii) if all of the conditions to the Offer are satisfied or waived but the number of Shares validly tendered and not withdrawn is less than ninety percent (90%) of the then outstanding number of Shares, for a subsequent offering period (the "SUBSEQUENT OFFERING PERIOD") consistent with Rule 14d-11 of the 1934 Act, provided that Merger Subsidiary shall accept and pay for all shares validly tendered and not withdrawn as soon as reasonably practicable prior to the date of such extension, shall otherwise meet the requirements of Rule 14d-11 under the 1934 Act in connection with such extension and shall waive any condition to the consummation of the Merger, other than the condition in Section 10.01(c), that may fail to be satisfied during such extension. In addition, Parent and Merger Subsidiary agree that Merger Subsidiary shall, if requested by the Company, (i) from time to time extend the Offer if, at the initial expiration date (or any extended expiration date of the Offer, including pursuant to this sentence, if applicable), no conditions to the Offer other than the conditions set forth in clause (a) or clause (b) of Annex A then excuse performance by Merger Subsidiary under Annex A, for twenty (20) Business Days after such previously scheduled expiration date or (ii) provide a Subsequent Offering Period if there shall be validly tendered and accepted by Merger Subsidiary a number of Shares that, together with the Shares then owned by Parent or any of its Subsidiaries, represents at least eighty percent (80%), but not more than ninety percent (90%), of the Shares outstanding. Upon the satisfaction or waiver of all conditions to the Offer and subject to the terms and conditions of this Agreement, Merger Subsidiary will, and Parent will cause Merger Subsidiary to, accept for payment, purchase and pay for, in accordance with the terms of the Offer, all Shares and associated Rights validly tendered and not withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer. Parent shall provide or cause to be provided to Merger Subsidiary all of the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the Offer or during the Subsequent Offering Period as soon as reasonably practicable after the expiration of the Offer. 6 (c) The Company will not tender in response to the Offer any Shares that are held by the Company in its treasury or that are owned, directly or indirectly, by the Company or any of its subsidiaries. (d) As soon as practicable on the date of commencement of the Offer, Merger Subsidiary and Parent shall file with the SEC a Tender Offer Statement on Schedule TO (the "SCHEDULE TO") with respect to the Offer, which will contain the offer to purchase and form of the related letter of transmittal and summary advertisement (such Schedule TO and such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS"). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Subsidiary with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Parent, Merger Subsidiary and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary each agrees to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents (and any amendments thereto) prior to their being filed with the SEC or disseminated to the holders of Shares. Parent and Merger Subsidiary shall provide the Company and its counsel with any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments or other communications. In the event that this Agreement has been terminated pursuant to Article 11, Parent and Merger Subsidiary shall promptly terminate the Offer without accepting any Shares for payment. Section 2.02. Company Action. (a) The Company hereby consents to the Offer and represents that the Board of Directors, at a meeting duly called and held, has unanimously (i) determined that this Agreement and the transactions contemplated hereby, including, without limitation, the Offer, the Merger and the purchase of the Shares and associated Rights contemplated by the Offer (collectively, the "TRANSACTIONS") are fair to and in the best interests of the Company's shareholders, (ii) approved and adopted this Agreement and the Transactions, including the Offer and the Merger, in accordance with the requirements of Michigan Law and (iii) subject to Section 7.04(d), resolved to recommend acceptance of the Offer and approval and adoption of the Agreement and the Merger by its shareholders. The Company further represents that Bryant Park Capital, Inc. (the "COMPANY FINANCIAL ADVISOR") has delivered to the Board of Directors its opinion to the effect that, as of the date of this Agreement, the consideration to be paid in the Offer and the Merger is fair, from a financial point of view, to the holders of Shares (other than Parent and its Affiliates), and has authorized the Company, as of the date of this Agreement, to permit the inclusion of 7 such opinion in the Company Disclosure Documents and the Company Proxy Statement, provided that such inclusion is in form and substance reasonably satisfactory to the Company Financial Advisor and its independent counsel. The Company will promptly furnish Parent with a list of its shareholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and will provide to Parent such additional information (including, without limitation, updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger in accordance with applicable law, Parent and Merger Subsidiary and each of their Affiliates, associates, employees, agents and representatives shall hold in confidence the information contained in any such lists, labels, listings or files in accordance with the terms of the Confidentiality Agreement and shall otherwise comply with the requirements of such agreement. (b) As soon as practicable after the time that the Offer is commenced, the Company shall file with the SEC and disseminate to holders of Shares, in each case as and to the extent required by applicable federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the "SCHEDULE 14D-9") that shall reflect the recommendations of the Board of Directors referred to above. The Schedule 14D-9 will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Parent or Merger Subsidiary in writing for inclusion in the Schedule 14D-9. The Company, Merger Subsidiary and Parent each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect. The Company agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given an opportunity to review and comment on the Schedule 14D-9 prior to its being filed with the SEC. The Company agrees to provide to Parent and its counsel any comments or other communications which the Company or its counsel may receive from the staff of the SEC with respect to the Schedule 14D-9 promptly after receipt thereof. Parent, Merger Subsidiary and the Company each hereby agree to provide promptly such information necessary to prepare the exhibits and schedules to the Schedule 14D-9 and the Offer Documents as the respective party responsible therefore may reasonably request. Section 2.03. Directors. (a) Effective upon the acceptance for payment pursuant to the Offer of a number of Shares that satisfies the Minimum Condition, Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Board of Directors that equals the product of (i) the total number of directors on the Board of Directors (giving effect to the 8 election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Shares Beneficially Owned by Parent (including Shares accepted for payment) bears to the total number of Shares outstanding, and the Company shall take all action necessary to cause Parent's designees to be elected or appointed to the Board of Directors, including, without limitation, increasing the number of directors. At such time, the Company will also use its best efforts to cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on each committee of the Board other than the committee of Independent Directors described in Section 2.03(d) that represents the same percentage as such individuals represent on the Board. (b) Anything to the contrary contained herein notwithstanding, if Parent's designees are appointed or elected to the Board of Directors, until the Effective Time the Board of Directors shall have at least two (2) directors who are directors on the date hereof and who are neither officers or employees of the Company nor officers, shareholders, affiliates or associates (within the meaning of the 1933 Act and 1934 Act) of Parent or persons having any other material relationship with the Parent (one or more such directors being referred to as the "INDEPENDENT DIRECTORS"); provided that if less than two (2) Independent Directors remain, the other directors shall designate persons to fill the vacancies who meet the foregoing criteria, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. (c) The Company's obligations to appoint Parent's designees to the Board of Directors shall be subject to Section 14(f) of the 1934 Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent shall supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and Rule 14f-1. (d) Following the election or appointment of Parent's designees pursuant to Section 2.03(a) and until the Effective Time, the approval of a majority of the Independent Directors, acting as a committee of the Board of Directors pursuant to Section 528 of Michigan Law, shall be required to authorize (and such authorization shall constitute the authorization of the Board of Directors and no other action on the part of the Company, including any action by any other director of the Company, shall be required to authorize) any termination of this Agreement by the Company, any amendment of this Agreement requiring action by the Board of Directors (other than Section 2.04(e)(iii)), any extension of time for performance of any obligation or action hereunder by Parent or Merger Subsidiary, any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company (other than Section 2.04(e)(iii)), any action as to which the consent or agreement of the Company is required under this Agreement, and the assertion or enforcement of the Company's rights under this Agreement to object to (i) failure to consummate the Merger for failure of a condition contained herein for the benefit of the Company to be satisfied or (ii) a termination of this Agreement under Article 11. Section 2.04. Top-Up Option. 9 (a) The Company hereby grants to the Merger Subsidiary an irrevocable option (the "TOP-UP OPTION"), such Top-Up Option to be exercisable only on or after the Determination Time, to purchase that number of Shares (the "TOP-UP OPTION SHARES") equal to the lowest number of Shares that, when added to the number of Shares owned by the Merger Subsidiary at the time of such exercise, shall constitute one share more than 90% of the Shares then outstanding (assuming the issuance of the Top-Up Option Shares and the exercise of all outstanding exercisable options to purchase Shares with an exercise price less than the Offer Price), at a price per share equal to the Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise the Merger Subsidiary would own more than 90% of the Shares then outstanding; and provided, further, that in no event shall the Top-Up Option be exercisable for a number of shares in excess of the Company's then authorized but unissued Shares (giving effect to Shares reserved for issuance under Stock Options as though they were outstanding). (b) The Merger Subsidiary may exercise the Top-Up Option, in whole but not in part, at any one time after the occurrence of a Top-Up Exercise Event (as defined below) and prior to the Top-Up Termination Date. The "TOP-UP TERMINATION DATE" will occur upon the earliest to occur of the following: (i) the Effective Time; (ii) the termination of this Agreement pursuant to its terms, (iii) ten (10) business days after the occurrence of a Top-Up Exercise Event, unless Merger Subsidiary has notified the Company of its intent to exercise the Top-Up Option in accordance with the terms and conditions of this Agreement; and (iv) ten (10) business days after the Top-Up Response Date (as defined below) unless the Top-Up Closing (as defined below) has previously occurred. (c) For purposes of this Agreement, a "TOP-UP EXERCISE EVENT" shall occur only upon Merger Subsidiary's acceptance for payment pursuant to the Offer of Shares or acquisition of Shares constituting at least 80% of the Shares then outstanding. (d) In the event Merger Subsidiary wishes to exercise the Top-Up Option, Merger Subsidiary shall so notify the Company, in writing, and shall set forth in such notice (i) the number of Shares that are expected to be owned by Merger Subsidiary immediately preceding the purchase of the Top-Up Option Shares and (ii) the place and time for the closing of the purchase of the Top-Up Option Shares (the "TOP-UP CLOSING"). The Company shall, as soon as practicable following receipt of such notice, notify Merger Subsidiary, in writing (the date of such notice being the "TOP-UP RESPONSE DATE"), of the number of Shares then outstanding and the number of Top-Up Option Shares. At the Top-Up Closing, Merger Subsidiary shall pay the Company the aggregate price required to be paid for the Top-Up Option Shares and the Company shall cause to be issued to Merger Subsidiary a certificate representing the Top-Up Option Shares. (e) The obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the following conditions: (i) any applicable waiting period under the HSR Act and regulations analogous to the HSR Act existing in foreign jurisdictions relating to the issuance of the Top-Up Option Shares will have expired or been terminated; (ii) no provision of any applicable law or regulation and no judgment, injunction, or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of any such exercise; and (iii) delivery of the Top-Up Option Shares would not 10 require the approval of the Company's shareholders pursuant to the rules and regulations of The Nasdaq Stock Market. (f) Parent and Merger Subsidiary understand that the Shares which Merger Subsidiary may acquire upon exercise of the Top-Up Option will not be registered under the 1933 Act and will be issued in reliance upon an exemption thereunder for transactions not involving a public transaction. Merger Subsidiary is, or will be upon the purchase of the Top-Up Option Shares, an Accredited Investor, as defined in Rule 501 of Regulation D promulgated under the 1933 Act. Merger Subsidiary agrees that the Top-Up Option and the Top-Up Option Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Merger Subsidiary for the purpose of investment and not with a view to or for resale in connection with any distribution thereof within the meaning of the 1933 Act. (g) Certificates evidencing Top-Up Option Shares delivered hereunder may, at the Company's election, contain the following legend: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933 OR ANY EXEMPTION THEREFROM. ARTICLE 3 THE MERGER Section 3.01. The Merger. (a) At the Effective Time, Merger Subsidiary shall be merged (the "MERGER") with and into the Company in accordance with Michigan Law, whereupon the separate existence of Merger Subsidiary shall cease, and the Company shall be the surviving corporation (the "SURVIVING CORPORATION"). (b) As soon as practicable, but in no event later than two business days, after satisfaction or, to the extent permitted hereunder, waiver of all conditions to the Merger, the Company and Merger Subsidiary will file a certificate of merger with the Michigan Department of Consumer and Industry Services Corporation, Securities and Land Development Bureau and make all other filings or recordings required by Michigan Law in connection with the Merger. The Merger shall become effective at such time (the "EFFECTIVE Time") as the certificate of merger is duly filed with the Michigan Department of Consumer and Industry Services Corporation, Securities and Land Development Bureau or at such later time as is specified in the certificate of merger. (c) From and after the Effective Time, the Surviving Corporation shall possess all the rights, powers, privileges and franchises and be subject to all of the obligations, liabilities, restrictions and disabilities of the Company and Merger Subsidiary, all as provided under Michigan Law. 11 Section 3.02. Conversion of Shares. At the Effective Time: (a) except as otherwise provided in Section 3.02(b), each Share outstanding immediately prior to the Effective Time, together with the Rights attached thereto, shall be converted into the right to receive $4.60 in cash or any higher price paid for each Share in the Offer, without interest (the "MERGER CONSIDERATION"); (b) each Share owned by Parent or any of its Subsidiaries immediately prior to the Effective Time shall be canceled, and no payment shall be made with respect thereto; and (c) each share of common stock of Merger Subsidiary outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation. Section 3.03. Surrender and Payment (a) Prior to the Effective Time, Parent shall appoint an agent (the "EXCHANGE AGENT") reasonably acceptable to the Company for the purpose of exchanging (i) certificates representing Shares (the "CERTIFICATES") or (ii) uncertificated Shares (the "UNCERTIFICATED SHARES") for the Merger Consideration. At the Effective Time, Parent will deposit with the Exchange Agent the Merger Consideration to be paid in respect of the Shares. Promptly after the Effective Time, Parent will send, or will cause the Exchange Agent to send, to each holder of Shares at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Securities to the Exchange Agent) for use in such exchange. (b) Each holder of Shares that have been converted into the right to receive the Merger Consideration will be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an "agent's message" by the Exchange Agent (or other such evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration payable for each Share represented by such Certificate or for each Uncertificated Share. Until so surrendered, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration. (c) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such tax has been paid or is not payable. 12 (d) After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 3. (e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares one year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged Shares for the Merger Consideration in accordance with this Section 3.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Section 3.04. Stock Options. At or immediately prior to the Effective Time, each outstanding Stock Option, whether or not vested or exercisable and without regard to any agreements qualifying the right to retain or exercise any such option or award, shall be canceled, and the Surviving Corporation shall pay each holder of any such option at or promptly after the Effective Time for each such option an amount in cash determined by multiplying (a) the excess, if any, of the Merger Consideration per Share over the applicable exercise price or base price, if any, of such option by (b) the number of Shares underlying such option. Notwithstanding the foregoing, with respect to any Person subject to Section 16(a) of the 1934 Act, any Merger Consideration to be paid to such Person in accordance with this Section 3.04 shall be paid as soon as practicable after the first day payment can be made without liability to such Person under Section 16(b) of the 1934 Act. Section 3.05. Stock Purchase Plan. The current purchase period under the Company's employee stock purchase plan (the "STOCK PURCHASE PLAN") will end on June 30, 2003. The Company will not commence any new purchase period under the Stock Purchase Plan for a period of six months, commencing July 1, 2003. No member of the Board of Directors will be permitted to elect to have their fees for service as a director of the Company paid in Shares for a period of six months, commencing July 1, 2003. Section 3.06. Adjustments. If, during the period between the date of this Agreement and the Effective Time, any change in the outstanding Shares shall occur, including by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of Shares, or stock dividend thereon with a record date during such period, the cash payable pursuant to the Offer, the Merger Consideration and any other amounts payable pursuant to this Agreement shall be appropriately adjusted. Section 3.07. Withholding Rights. Each of the Surviving Corporation and Parent shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Article 3 such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of federal, state, local or foreign tax law. If the Surviving Corporation or Parent, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares in respect of 13 which the Surviving Corporation or Parent, as the case may be, made such deduction and withholding. Section 3.08. Lost, Stolen or Destroyed Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will pay, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of the Shares represented by such Certificate, as contemplated by this Article. ARTICLE 4 THE SURVIVING CORPORATION Section 4.01. Articles of Incorporation. The articles of incorporation of the Company in effect at the Effective Time shall be the articles of incorporation of the Surviving Corporation until amended in accordance with applicable law. Section 4.02. Bylaws. The bylaws of the Company in effect at the Effective Time shall be the bylaws of the Surviving Corporation until amended in accordance with applicable law. Section 4.03. Directors and Officers. From and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with applicable law, (i) the directors of Merger Subsidiary at the Effective Time shall be the directors of the Surviving Corporation and (ii) the officers of the Company at the Effective Time shall be the officers of the Surviving Corporation. ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company represents and warrants to Parent that, except as set forth in the disclosure schedule delivered by the Company to Parent and attached hereto (the "DISCLOSURE SCHEDULE"), with specific reference to the section or subsections of this Agreement to which the exception stated in such disclosure relates, or as disclosed in the Company SEC Documents: Section 5.01. Corporate Existence and Power. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Michigan and has all corporate powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted, except for those licenses, authorizations, permits, consents and approvals the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. The Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. The Company has heretofore delivered to Parent true and complete copies of the articles of incorporation and bylaws of the Company as currently in effect. 14 Section 5.02. Corporate Authorization. The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby are within the Company's corporate powers and, except for the affirmative vote of the holders of a majority of the outstanding Shares in connection with the consummation of the Merger (if required by law), have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to the enforcement of creditors' rights generally and (ii) is subject to general principles of equity. Section 5.03. Governmental Authorization. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby require no consent, notice to, permit, approval, order or authorization of, or action by or in respect of, or registration, declaration or filing with, any governmental body, court, agency, official, commission or authority, domestic or foreign (a "GOVERNMENTAL ENTITY"), other than (i) the filing of a certificate of merger with respect to the Merger with the Michigan Department of Consumer and Industry Services, Corporation, Securities and Land Development Bureau and appropriate documents with the relevant authorities of other states in which the Company is qualified to do business, (ii) compliance with any applicable requirements of the HSR Act and of laws, rules and regulations analogous to the HSR Act existing in foreign jurisdictions, including but not limited to the European Union and the United Kingdom, (iii) the filing with the SEC of (a) the Schedule 14D-9, (b) a proxy statement of the Company relating to the approval by the Company's stockholders of this Agreement (as amended or supplemented from time to time, the "COMPANY PROXY STATEMENT"), if required, and (c) compliance with any applicable requirements of the 1934 Act and any other applicable securities or takeover laws, whether state or foreign, as may be required in connection with this Agreement and the Transactions, (iv) compliance with the rules and regulations of The Nasdaq Stock Market, Inc., (v) in connection with any state or local tax which is attributable to the beneficial ownership of the Company's or its Subsidiaries' real property, if any, (vi) as may be required by any applicable state securities or "blue sky" laws, (vii) such filings, consents, approvals, orders, registrations and declarations as may be required under the laws of any foreign country in which the Company or any of its Subsidiaries conducts any business or owns any assets, and (viii) such other consents, approvals, orders, authorizations, registrations, declarations and filings the failure of which to be obtained or made would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Section 5.04. Non-contravention. The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the articles of incorporation or bylaws of the Company, (ii), assuming compliance with the matters referred to in Section 5.03, contravene, conflict with or result in a violation or breach of any provision of any applicable law, statute, ordinance, rule, regulation, judgment, injunction, order or decree, (iii), require any consent or other action by any Person under, constitute a default under, or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company or any of its Subsidiaries is entitled under any provision of any agreement or other instrument binding upon the Company or any of 15 its Subsidiaries or any license, franchise, permit, certificate, approval or other similar authorization affecting, or relating in any way to, the assets or business of the Company and its Subsidiaries that would not otherwise be permitted to be terminated, cancelled, accelerated, changed or lost, or (iv) result in the creation or imposition of any Lien on any asset of the Company or any of its Subsidiaries, except for such contraventions, conflicts and violations referred to in clause (ii), and for such failures to obtain any such consent or other action, default, termination, cancellation, acceleration, change, loss or Lien referred to in clauses (iii) and (iv), that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company or materially to impair the ability of the Company to consummate the transactions contemplated by this Agreement. Section 5.05. Capitalization. (a) The authorized capital stock of the Company consists of 20,000,000 Shares and 5,000,000 shares of preferred stock, no par value per share ("PREFERRED STOCK"). No shares of Preferred Stock are outstanding. As of June 9, 2003, there were outstanding (i) 10,671,114 Shares and (ii) Stock Options, other than options outstanding under the Stock Purchase Plan, to purchase an aggregate of 1,617,001 Shares (of which Stock Options to purchase an aggregate of 797,336 Shares were exercisable), as to which the holders, dates of grant, exercise prices and vesting schedules are as set forth in Section 5.05(a) of the Disclosure Schedule. Upon the acceptance for payment pursuant to the Offer of a number of Shares that satisfies the Minimum Condition, each outstanding Stock Option, by its terms or under the terms of the stock option plan or other written compensatory plan or arrangement pursuant to which it was granted, and without any corporate action on the part of the Company, its Board of Directors or any committee thereof, will automatically become exercisable in full. Since June 9, 2003, there have been no issuances of shares of the capital stock of the Company or any other securities of the Company. All Shares outstanding as of the date hereof have been duly authorized and validly issued and are fully paid and nonassessable. All Shares issuable upon exercise of outstanding Stock Options or pursuant to the Stock Purchase Plan have been duly authorized and, when issued, will have been validly issued and will be fully paid and nonassessable. (b) Except as described in Section 5.05(a) or as set forth in Section 5.05(b) of the Disclosure Schedule, there are no outstanding (i) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (iii) options or other rights (including, without limitation, any subscriptions, warrants, calls, stock appreciation rights, commitments or agreements of any character) to acquire from the Company or other obligation of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company (the items in clauses (i), (ii) and (iii) being referred to collectively as the "COMPANY SECURITIES"). There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Securities. Neither the Company nor any of its Subsidiaries has adopted a shareholder rights plan or similar plan or arrangement, other than the Rights Agreement. (c) There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into securities having the right to vote) on any matters on which stockholders of the Company may vote. 16 (d) Except as set forth in Section 5.05(d) of the Disclosure Schedule, other than the Voting and Tender Agreement of even date herewith among Parent, Merger Subsidiary and each of Dennis Ganster, Codec Systems Limited and Anthony Stafford, (the "VOTING AGREEMENT"), there are no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of the capital stock of the Company or any of the Subsidiaries. Section 5.06. Subsidiaries. (a) Each Subsidiary of the Company is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation, has all corporate powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted, except for those licenses, authorizations, permits, consents and approvals the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each such Subsidiary is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. All Subsidiaries of the Company and their respective jurisdictions of incorporation are identified in the Company SEC Documents. (b) Except as set forth in Section 5.06(b) of the Disclosure Schedule, all of the outstanding capital stock of, or other voting securities or ownership interests in, each Subsidiary of the Company (other than director qualifying shares) is owned by the Company, directly or indirectly, free and clear of any Lien and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other voting securities or ownership interests), except for such limitations or restrictions arising under applicable securities or other laws. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company or (ii) options or other rights to acquire from the Company or any of its Subsidiaries, or other obligation of the Company or any of its Subsidiaries to issue, any capital stock or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock or other voting securities or ownership interests in, any Subsidiary of the Company (the items in clauses (i) and (ii) being referred to collectively as the "COMPANY SUBSIDIARY SECURITIES"). Other than securities representing an investment of less than 2% in any publicly traded company and the capital stock or other ownership interests of its Subsidiaries, the Company does not own, directly or indirectly, any capital stock or other ownership interest in any corporation, partnership, joint venture or other entity. There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Subsidiary Securities. Section 5.07. SEC Filings. (a) The Company has filed with the SEC all reports, schedules, forms, statements and other documents required to be filed by the Company with the SEC since July 1, 2000 (collectively, the "COMPANY SEC DOCUMENTS"). 17 (b) As of its filing date, each Company SEC Document complied as to form in all material respects with the applicable requirements of the 1933 Act or the 1934 Act, as the case may be and the rules and regulations of the SEC promulgated thereunder applicable to such Company SEC Document. (c) As of its filing date, each Company SEC Document filed pursuant to the 1934 Act did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. (d) Each Company SEC Document filed pursuant to the 1933 Act, as of its filing date, or, in the case of each Company SEC Document that is a registration statement or an amendment thereto, as of the date such statement or amendment became effective, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. Section 5.08. Financial Statements. The financial statements of the Company included in the Company SEC Documents, in each case: (i) comply as to form in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) have been prepared in accordance with U.S. generally accepted accounting principles ("GAAP") (except, in the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes to such financial statements) and (iii) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments and the absence of notes in the case of any unaudited interim financial statements). Section 5.09. Disclosure Documents. (a) Each document required to be filed by the Company with the SEC or required to be distributed or otherwise disseminated by the Company to its shareholders in connection with the Transactions including, without limitation, the Schedule 14D-9, the information statement to be filed by the Company in connection with the Offer pursuant to Rule 14f-1 promulgated under the Exchange Act (as amended or supplemented from time to time, the "INFORMATION STATEMENT") and the Company Proxy Statement, if any, to be filed with the SEC in connection with the Merger, and any amendments or supplements thereto, when filed, distributed or disseminated, as applicable (collectively, the "COMPANY DISCLOSURE DOCUMENTS"), collectively, will comply as to form in all material respects with the applicable requirements of the 1934 Act and the rules and regulations thereunder. 18 (b) (i) The Company Proxy Statement, as supplemented or amended, if applicable, at the time such Company Proxy Statement or any amendment or supplement thereto is first mailed to shareholders of the Company and at the time such shareholders vote on adoption of this Agreement, and (ii) any Company Disclosure Document (other than the Company Proxy Statement), the Schedule 14D-9, and the Information Statement at the respective times such documents and any amendments or supplements thereto are filed with the SEC and at the time of any distribution or dissemination thereof to shareholders of the Company, will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties contained in this Section 5.09(b) will not apply to statements or omissions included in the Company Disclosure Documents based upon information furnished to the Company in writing by or on behalf of Parent or Merger Subsidiary specifically for use therein. (c) The information with respect to the Company or any of its Subsidiaries that the Company furnishes to Parent in writing specifically for use in the Offer Documents, at the time of the filing thereof with the SEC and at the time of any distribution or dissemination thereof to shareholders of the Company, will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. Section 5.10. Absence of Certain Changes. Since March 31, 2003, the business of the Company and its Subsidiaries has been conducted only in the ordinary course consistent with past practices and there has not been: (a) any event, change, occurrence or development that has had or would reasonably be expected to have, individually, a Material Adverse Effect on the Company; (b) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company, or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries (other than ordinary course open market purchases made in connection with the Company's profit sharing plan); (c) any amendment of any material term of any outstanding security of the Company or any of its Subsidiaries; (d) any incurrence, assumption or guarantee by the Company or any of its Subsidiaries of any indebtedness for borrowed money that is material to the Company and its Subsidiaries, taken as a whole, other than (i) under the Company's existing credit facility, (ii) between the Company and its Subsidiaries or between two or more of the Company's Subsidiaries or (iii) otherwise in the ordinary course of business and in amounts and on terms consistent with past practices; (e) any creation or other incurrence by the Company or any of its Subsidiaries of any Lien on any asset of the Company or its Subsidiaries, other than in the ordinary course of 19 business consistent with past practices, if the Lien would reasonably be expected to have a Material Adverse Effect on the Company; (f) any making of any material loan, advance or capital contributions to or investment in any Person other than (i) loans, advances or capital contributions to or investments in its wholly-owned Subsidiaries, or by its wholly-owned Subsidiaries to or in the Company or other Subsidiaries of the Company or (ii) other loans, advances, capital contributions or investments made in the ordinary course of business consistent with past practices; (g) any change in any method of accounting, method of tax accounting or accounting principles or practice by the Company or any of its Subsidiaries, except for any such change required by reason of a concurrent change in GAAP, Regulation S-X under the 1934 Act or other applicable law or regulation; (h) any (i) grant of any severance or termination pay to any director or officer of the Company or any of its Subsidiaries, (ii) material increase in benefits payable to any officer or director of the Company or any of its Subsidiaries under any existing, severance or termination pay policies or employment agreements, (iii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director or officer of the Company or any of its Subsidiaries, (iv) establishment, adoption or amendment (except as required by applicable law) of any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any director, officer or employee of the Company or any of its Subsidiaries other than the Company's management severance plan, or (v) increase in compensation, bonus or other benefits payable to any director or officer of the Company or any of its Subsidiaries, other than, in the case of any of clauses (i) through (v), in the ordinary course of business consistent with past practice; or (i) except as set forth in Section 5.10(i) of the Disclosure Schedule, any other action taken by the Company that would have been prohibited under Section 7.01 hereof. Section 5.11. No Undisclosed Material Liabilities. (a) There are no liabilities or obligations of the Company or any of its Subsidiaries of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, which would be required to be reflected on a balance sheet, or in the notes thereto, prepared in accordance with GAAP, other than: (i) liabilities or obligations disclosed or provided for in any of the Company SEC Documents or set forth in the Disclosure Schedule; (ii) liabilities or obligations incurred since March 31, 2003 in the ordinary course of business consistent with past practice; (iii) liabilities or obligations arising under this Agreement; and (iv) liabilities or obligations that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. 20 (b) Except as disclosed in the Disclosure Schedule or in the Company SEC Documents, neither the Company nor any Subsidiary maintains any "off-balance sheet arrangement," within the meaning of Item 303 of Regulation S-K of the SEC, which either has or is reasonably likely to have, a current or future effect on the Company's financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that is material. Section 5.12. Compliance with Laws and Court Orders. Since July 1, 2000, the Company and each of its Subsidiaries has been in compliance with all applicable laws, statutes, ordinances, rules, regulations, judgments, injunctions, orders or decrees, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Section 5.13. Litigation. There is no action, suit, investigation or proceeding pending, or, to the Knowledge of the Company, threatened, against the Company, any of its Subsidiaries, any present or former officer, director or employee of the Company or any of its Subsidiaries or any other Person for whom the Company or any such Subsidiary may be liable, or any of their respective properties before any court or arbitrator or before or by any governmental body, agency or official, domestic or foreign, as to which there is a reasonable likelihood that such action, suit, investigation or proceeding will be resolved in a manner adverse to the Company or any of its Subsidiaries, except where such adverse resolution would not reasonably be expected to have a Material Adverse Effect on the Company, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against the Company or any of its Subsidiaries which has had any such effect. Section 5.14. Finders' Fees. Except for the Company Financial Advisor, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of the Company or any of its Subsidiaries who might be entitled to any fee or commission from the Company or any of its Subsidiaries in connection with the Transactions. Section 5.15. Taxes. Except as set forth in Schedule 5.15 of the Disclosure Schedule: (a) the Company and each of its Subsidiaries has filed all Tax Returns required to be filed by it, has paid (or has caused to be paid) all Taxes which have become due and payable by it and has made adequate provision in reserves established in its financial statements and accounts for all Taxes which have accrued but are not yet due and payable, except with respect to matters contested in good faith or where the failure to file Tax Returns, pay Taxes or provide adequate reserves for Taxes would not reasonably be expected to have a Material Adverse Effect on the Company; (b) there are no Liens or encumbrances for Taxes on any of the assets of the Company or any of its Subsidiaries which Liens or encumbrances would reasonably be expected to have a Material Adverse Effect on the Company; (c) neither the Company nor any of its Subsidiaries has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency; and 21 (d) no federal, state, local or foreign audits or administrative proceedings are pending or, to the Company's Knowledge, threatened, with regard to any Taxes or any Tax Return of the Company or its Subsidiaries which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. "TAXES" mean any and all taxes, charges, fees, levies or other assessments, including income, gross receipts, excise, real or personal property, sales, withholding, social security, retirement, unemployment, occupation, use, goods and services, service use, license, value added, capital, net worth, payroll, profits, withholding, franchise, transfer and recording taxes, fees and charges, and any other taxes, assessment or similar charges imposed by the IRS or any taxing authority (whether domestic or foreign including any state, county, local or foreign government or any subdivision or taxing agency thereof (including a United States possession)) (a "TAXING AUTHORITY"), whether computed on a separate, consolidated, unitary, combined or any other basis; and such term shall include any interest whether paid or received, fines, penalties or additional amounts attributable to, or imposed upon, or with respect to, any such taxes, charges, fees, levies or other assessments. "TAX RETURN" means any report, return, document, declaration or other information or filing required to be supplied to any taxing authority or jurisdiction (foreign or domestic) with respect to Taxes, including information returns, any documents with respect to or accompanying payments of estimated Taxes, or with respect to or accompanying requests for the extension of time in which to file any such report, return, document, declaration or other information. Section 5.16. Employee Benefit Plans. (a) Section 5.16 of the Disclosure Schedule lists each material "employee benefit plan," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and each other material employment, consulting, bonus or other incentive compensation, salary continuation during any absence from active employment for disability or other reasons, supplemental retirement, cafeteria benefit (Section 125 of the Code) or dependent care (Section 129 of the Code), sick days, tuition assistance, club membership, employee discount, employee loan, or vacation pay, severance, deferred compensation, incentive, fringe benefit, change in control, retention, stock option, restricted stock or other compensatory plan, policy, agreement or arrangement (including, without limitation, any collective bargaining agreement) that (i) is currently, or has since July 1, 2000 been maintained, administered, contributed to or required to be contributed to by the Company or any of its Subsidiaries or to which the Company or any Subsidiary is, or has since July 1, 2000 been a party, and (ii) covers any current or former officer, director or employee of the Company or any of its Subsidiaries (collectively, the "EMPLOYEE PLANS"). The Company has delivered to Parent (i) accurate and complete copies of all Employee Plan documents and all other material documents relating thereto, including (if applicable) all documents establishing or constituting any related trust, annuity contract, insurance contract or other funding instruments, and summary plan descriptions relating to said Employee Plans, (ii) accurate and complete copies of the most recent financial statements and actuarial reports with respect to all Employee Plans for which financial statements or actuarial reports are required or have been prepared, and (iii) accurate and complete copies of all annual reports and summary annual reports for all Employee Plans (for which annual reports are required) prepared since January 1, 2000. The Company has also delivered to Parent complete copies of other current plan summaries, employee booklets, 22 personnel manuals and other material documents or written materials concerning the Employee Plans that are in possession of the Company or any Subsidiary as of the date hereof. Neither the Company nor any Subsidiary has ever maintained or contributed to any "defined benefit plans" as defined in Section 3(35) of ERISA, nor do any of them have a current or contingent obligation to contribute to any multiemployer plan (as defined in Section 3(37) of ERISA). (b) Each Employee Plan intended to qualify under Section 401(a) of the Code has been determined by the Internal Revenue Service to so qualify, and the trusts created thereunder have been determined to be exempt from tax under Section 501(a) of the Code; copies of all determination letters have been delivered to the Parent; and nothing has occurred since the date of such determination letters which is likely to cause the loss of such qualification or exemption, or result in the imposition of any material excise tax or income tax on unrelated business income under the Code or ERISA with respect to any Employee Plan. (c) With respect to any Employee Plan covered by Title I of ERISA, no non-exempt transaction prohibited by Section 406 of ERISA or Section 4975 of the Code has occurred which will cause the Company to incur a liability under ERISA or the Code that would reasonably be expected to have a Material Adverse Effect on the Company. All material contributions required to be made under any Employee Plan as of the date hereof have been made or, if required by U.S. generally accepted accounting principles, provided for on the Company's financial statements. (d) Neither the Company nor any Subsidiary of the Company, nor any of their directors, officers, employees or agents, nor any trustee or administrator of any trust created under the Employee Plans, has engaged in or been a party to any "prohibited transaction" as defined in Section 4975 of the Code and Section 406 of ERISA which could subject the Company or its Subsidiaries, directors or employees or the Employee Plans or the trusts relating thereto or any party dealing with any of the Employee Plans or trusts to any tax or penalty on "prohibited transactions" imposed by Section 4975 of the Code. (e) Except as specifically provided in this Agreement or as set forth in the Disclosure Schedule, no employee or former employee of the Company or any Subsidiary will become entitled to any material bonus, severance or similar benefit (including acceleration of vesting or exercise of an incentive award) as a result of the Transactions contemplated hereby, and there is no contract, plan or arrangement covering any employee or former employee of the Company or any Subsidiary that, individually or collectively, could reasonably be expected to give rise to a payment that would not be deductible by Parent, the Company or any Subsidiary by reason of Sections 280G or 162(m) of the Code or require payment of an excise tax under Section 4999 of the Code. (f) There are no pending or, to the Knowledge of the Company, threatened actions, suits, proceedings, or claims against or relating to any Employee Plans other than routine benefit claims by persons entitled to benefits thereunder, nor is any Employee Plan the subject of any pending (or to the Knowledge of the Company, any threatened) investigation or audit by the Internal Revenue Service or Department of Labor. No event has occurred, and there exists no condition or set of circumstances, which presents a material risk of a partial termination (within the meaning of Section 411(d)(3) of the Code) of any Employee Plan. With respect to any 23 Company Plan that is qualified under Section 401(k) of the Code, individually and in the aggregate, no event has occurred, and to the Knowledge of the Company, there exists no condition or set of circumstances in connection with which the Company could be subject to any liability that is reasonably likely to have a Company Material Adverse Effect (except liability for benefits claims and funding obligations payable in the ordinary course) under ERISA, the Code or any other applicable law. All employee contributions, including elective deferrals, to the Company's 401(k) plan have been segregated from Company's general assets and deposited into the trust established pursuant to the 401(k) plan in a timely manner in accordance with the "plan asset" regulations of the Department of Labor. (g) Neither the Company nor any Subsidiary has liability (contingent or otherwise) under Section 4069 of ERISA by reason of a transfer of an underfunded pension plan. (h) With respect to any Employee Plan that is an employee welfare benefit plan (within the meaning of Section 3(1) of ERISA (a "WELFARE PLAN") and except as set forth in the Disclosure Schedule, (i) each Welfare Plan for which contributions are claimed by the Company as deductions under any provision of the Code is in material compliance with all applicable requirements pertaining to such deduction, and (ii) any Employee Plan that is a group health plan (within the meaning of Section 4980B(g)(2) of the Code) complies, and has complied, with all of the applicable material requirements of COBRA, the Family Medical Leave Act of 1993, the Health Insurance and Portability and Accountability Act of 1996, the Women's Health and Cancer Rights Act of 1996, the Newborns' and Mothers' Health Protection Act of 1996, or any similar provisions of state law applicable to employees of the Company or any Company Subsidiary. The Company has no welfare benefit fund (within the meaning of Section 419 of the Code) related to a Welfare Plan. None of the Employee Plans promises or provides retiree medical or other retiree welfare benefits to any person except as required by applicable law, and neither the Company or any Company Subsidiary has represented, promised or contracted (whether in oral or written form) to provide such retiree benefits to any employee, former employee, director, consultant or other person, except to the extent required by statute. Except as set forth in Section 5.16(h) of the Disclosure Schedule, no Employee Plan or employment agreement provides health benefits that are not insured through an insurance contract. Except as set forth in Section 5.16(h) of the Disclosure Schedule, each Employee Plan is amendable and terminable unilaterally by the Company at any time, and no Employee Plan, plan documentation or agreement, summary plan description or other written communication distributed generally to employees by its terms prohibits Company from amending or terminating any such Employee Plan. (i) Foreign Employee Benefit Plans. Section 5.16(i) of the Disclosure Schedule lists each material non-governmental plan maintained, or contributed to, by or on behalf of any Subsidiary applicable to employees of a business located outside of the United States (a "FOREIGN RETIREMENT PLAN") and each non-governmental welfare benefit plan maintained or contributed to by or on behalf of any Subsidiary applicable to employees of a business located outside of the United States( a "FOREIGN WELFARE PLAN"). Except as set forth in the Disclosure Schedule, each such Foreign Retirement Plan and Foreign Welfare Plan (collectively, the "FOREIGN PLANS") has been administered, in all material respects, in compliance with its terms and the requirements of all applicable laws and regulations, and all required contributions to each Foreign Plan have been made. Except as set forth in the Disclosure Schedule, there are no 24 inquiries or investigations by any foreign governmental body, and no termination proceedings against any Foreign Plan or the assets thereof that would have a Material Adverse Effect on the Company. Except as set forth in the Disclosure Schedule, there are no actions, suits or claims (other than routine benefit claims by persons entitled to benefits thereunder) pending or, to the Company's Knowledge, threatened against any Foreign Plan or the assets thereof which would have a Material Adverse Effect on the Company. Except as set forth in the Disclosure Schedule, there are no material unfunded obligations under any Foreign Plan providing benefits after termination of employment to any employee or former employee. With respect to the defined benefit plan of the Company's United Kingdom subsidiary (the "U.K. PENSION PLAN") which was frozen on April 1, 1997: (i) there are no further benefits accruing under the U.K. Pension Plan; (ii) the Company has delivered to the Parent an actuarial report which fairly presents in all material respects the financial condition and funding status of said Plan as of the date of such report, including any unfunded liabilities under said Plan at that time, and subsequent to the date of said report there has been no adverse change in the funding status or financial condition of said U.K. Pension Plan; (iii) the Company has delivered to the Parent a schedule setting forth each annual contribution made to the U.K. Pension Plan for the prior ten years by the Company or any Subsidiary of the Company and a schedule prepared by the actuaries for the U.K. Pension Plan setting forth projections, as of the date of the report, for annual contribution obligations with respect to said U.K. Plan in the future; and (iv) the Company has delivered to the Parent copies of all material correspondence and reports and any other material information in its or a Subsidiary's possession (whether issued by a governmental authority or actuaries and other third parties retained by the Company or any Subsidiary with respect to the U.K. Pension Plan) relating to the amount for which the Company or any Subsidiary is or could be liable with respect to the U.K. Pension Plan Section 5.17. Antitakeover Statutes and Rights Agreement. (a) The Company has taken all action necessary, if any, to exempt the Offer, the Merger and this Agreement and the Transactions from the provisions of Section 775 through 784 of Michigan Law in order to render the provisions of such statutes requiring supermajority approval of certain business combinations are inapplicable to Shares acquired by Parent, Merger Sub or their Affiliates pursuant to the Offer and the Merger. The Company has taken all action necessary to opt out of Sections 790 through 799 of Michigan Law in order to render the provisions of such statutes restricting voting rights of "control shares" inapplicable to Shares acquired by Parent, Merger Subsidiary or their Affiliates pursuant to the Offer and the Merger. No other anti-takeover, control share acquisition, fair price, moratorium or other similar statute (each, a "TAKEOVER STATUTE") applies or purports to apply to this Agreement, the Offer, the Merger, the Voting Agreement, the Top-Up Option or the Transactions. (b) The Company has taken all action necessary to render the Rights inapplicable to the Transactions, including the Offer and the Merger. Without limiting the generality of the foregoing, the Rights Agreement has been amended by all necessary action to (i) render the Rights Agreement inapplicable to this Agreement, the Offer, the Merger, the Voting Agreement, the Top-Up Option and the Transactions, (ii) ensure that (x) none of Parent, Merger Subsidiary or their Affiliates is an "Acquiring Person" (as defined in the Rights Agreement) by virtue of the execution, delivery, announcement or performance of this Agreement, the Offer, the Merger, the Voting Agreement, the Top-Up Option or the Transactions and (y) none of a "Distribution Date", 25 a "Share Acquisition Date", or a "Triggering Event"(as such terms are defined in the Rights Agreement) occurs by reason of the execution, delivery, announcement, consummation or performance of this Agreement, the Offer, the Merger, the Voting Agreement, the Top-Up Option or the Transactions, and such amendment by its terms may not be further amended by the Company without the prior written consent of Parent in its sole discretion. Section 5.18. Intellectual Property. As used herein, the term "INTELLECTUAL PROPERTY" shall mean all intellectual property rights which are material to the conduct of the business of the Company or one of its Subsidiaries as it is currently conducted or as proposed to be conducted by the Company or any of its Subsidiaries anywhere in the world, including, without limitation: (i) all trademarks, service marks, trade names, business names, Internet domain names, trade dress and slogans, and the goodwill associated therewith, and all registrations or applications for registration thereof (collectively, the "COMPANY MARKS"); (ii) all patents and patent applications (collectively, the "COMPANY PATENTS"); (iii) all copyrights, database rights and moral rights in both published works and unpublished works, including software, user and training manuals, marketing and promotional materials, internal reports, business plans and any other expressions, mask works, firmware and videos, whether registered or unregistered, and all registrations or applications for registration thereof (collectively, the "COMPANY COPYRIGHTS"); and (iv) information which is considered by the Company to be confidential and proprietary, including trade secrets, know-how, customer lists, technical information, proprietary information, technologies, processes and formulae, software, data, plans, drawings and blue prints, whether tangible or intangible and whether stored, compiled, or memorialized physically, electronically, photographically, or otherwise (collectively, the "COMPANY SECRET INFORMATION"). For purposes of this Section 5.18, "software" means any and all: (w) computer programs and applications, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code, (x) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (y) descriptions, flow-charts library functions, algorithms, architecture, structure, display screens and development tools, and other information, work product or tools used to design, plan, organize or develop any of the foregoing and (z) all documentation, including user manuals and training materials, relating to any of the foregoing. (a) Except as set forth in Section 5.18(a) of the Disclosure Schedule, the Company or one of its Subsidiaries, as applicable: (i) owns all right, title and interest in and to all of the Intellectual Property, free and clear of all Liens, or (ii) is licensed to use or otherwise possesses legally valid and enforceable rights to use each item of Intellectual Property that it does not so own. The Company and its Subsidiaries have made all necessary filings and recordations to protect and maintain their interests in the Intellectual Property except where the failure to make such filings or recordations would not have a Material Adverse Effect on the Company. No Person has notified the Company in writing that any of the products, services or technology used, sold, offered for sale or licensed or proposed for use, sale, offer for sale or license by the Company or any of its Subsidiaries infringes any intellectual property rights of any Person. (b) To the Knowledge of the Company: (i) all the Company Patents are valid and subsisting and all filings due to be made on the applications and all maintenance fees, annuities and the like required to be paid before the date hereof have been paid; (ii) none of the issued 26 Company Patents is being or has been infringed; and (iii) neither the validity nor the enforceability of any of the Company Patents has been challenged by any Person. (c) To the Knowledge of the Company: (i) all the Company Marks are valid and subsisting and, with respect to registrations and applications for registration thereof, all filings and payments due to be made or paid before the date hereof have been paid; (ii) none of the Company Marks is being or has been infringed or diluted, (iii) none of the Company Marks has been opposed or challenged and no proceeding has been commenced or threatened that would seek to prevent the use by the Company or any of its Subsidiaries of any Company Mark; and (iv) all uses of Company Marks are in conformance with applicable statutory and common law so as not to compromise the strength or validity of the Company Marks or the goodwill associated therewith. (d) To the Knowledge of the Company: (i) all the Company Copyrights, whether or not registered, are valid and enforceable; (ii) none of the Company Copyrights is being or has been infringed, or its validity challenged or threatened in any way; and (iii) no proceeding has been commenced or threatened that would seek to prevent the use by the Company or any of its Subsidiaries of any of their products or services, or any other software, including source code or object code, or other written expression used in the business of the Company or any of its Subsidiaries as currently conducted or as proposed to be conducted. (e) The Company and its Subsidiaries have taken reasonable measures to protect the secrecy, confidentiality and value of the Company Secret Information. To the Knowledge of the Company, the Company Secret Information has not been used, divulged or appropriated for the benefit of any Person (other than the Company or any of its Subsidiaries). To the Knowledge of the Company, none of the Company Secret Information is subject to any material adverse claim. (f) To the Knowledge of the Company, no Company Intellectual Property asset is subject to any outstanding order, proceeding (other than pending proceedings pertaining to applications for patent or trademark or copyright registration), or stipulation restricting in any manner the licensing thereof by the Company or any of its Subsidiaries. (g) To the Knowledge of the Company, none of its employees, contractors, agents and consultants is obligated under any contract, covenant or other agreement or commitment, or subject to any judgment, decree or order of any court or administrative agency, that would interfere with the efforts of such employee, contractor, agent or consultant to promote the interests of the Company or any Subsidiary or that would conflict with the business of the Company or any Subsidiary as presently conducted or proposed to be conducted by them. Neither the Company nor any of its Subsidiaries has any written agreement with any employee, contractor, agent or consultant as a result of which any such employee, contractor, agent or consultant may have rights to any material portion of the Intellectual Property. Neither the Company nor any Subsidiary has entered into any agreement to indemnify any other Person including, but not limited to, any employee, contractor, agent or consultant of the Company or such Subsidiary, against any charge of infringement, misappropriation or misuse of any intellectual property, other than indemnification of customers, distributors, agents, suppliers or licensors in connection with the sale or licensing to customers, in the ordinary course of business, of products of the Company and its Subsidiaries. 27 (h) All employees, contractors, agents and consultants of the Company or any of its Subsidiaries who are or were involved in the creation of Intellectual Property have executed a standard assignment of inventions agreement to vest in the Company or any of its Subsidiaries exclusive ownership of any Intellectual Property, except where the failure to have executed such an agreement will not have a Material Adverse Effect. All employees, contractors, agents and consultants of the Company or any of its Subsidiaries who have or have had access to the Company Secret Information executed a standard nondisclosure agreement to protect the confidentiality of the Company Secret Information, except where the failure to have executed such an agreement will not have a Material Adverse Effect. The Company or such Subsidiary have in their possession copies of all such agreements, except where the failure to have copies shall not have a Material Adverse Effect. (i) Without limiting the generality of the foregoing, except as set forth in Section 5.18(i) of the Disclosure Schedule, all the software that the Company or any of its Subsidiaries license or otherwise make available to customers and all Intellectual Property therein was: (i) developed by employees of the Company within the scope of their employment and their obligation to assign inventions and patents therein; (ii) developed by independent contractors or consultants who assigned all of their right, title and interest in and to that software to the Company or (iii) otherwise acquired by the Company from a third party by contract. Section 5.19 Title and Condition of Properties. Except for the Intellectual Property (title to which is described in Section 5.18), the Company or one of its Subsidiaries (a) has good and marketable title to or a valid leasehold interest under a real property or a capitalized lease in all assets reflected on the Company's balance sheet as of March 31, 2003, free and clear of all Liens, except for (i) assets disposed of in the ordinary course of business since such date, (ii) Liens disclosed in the Disclosure Schedule or in the Company SEC Documents, (iii) Liens or imperfections of title which are not, individually, material in character, amount or extent and which do not materially detract from the value or materially interfere with the present or presently contemplated use by the Company of the assets subject thereto or affected thereby, (iv) Liens arising under conditional sale or title retention agreements, real property leases, equipment leases or lease purchase agreements or (v) Liens arising in the ordinary course of business (including, but not limited to, Liens for Taxes or governmental charges or levies, Liens of mechanics, carriers, workmen and repairmen, Liens incurred in connection with workmen's compensation, unemployment insurance, social security and other like laws, Liens to secure the performance of letters of credit, bids, tenders sales contracts, leases, statutory obligations, surety, appeal and performance bonds and similar Liens) for amounts which are not delinquent, except such Liens as are being contested in good faith, and (b) has a valid leasehold or other interest in all other assets used by it in its business, except in each case for exceptions to the foregoing that would not, individually, reasonably be expected to have a Material Adverse Effect on the Company. Section 5.20 Insurance. The Company and its Subsidiaries have paid all premiums due under their respective insurance policies and are not in default with respect to their obligations under any such policies other than any default that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. Section 5.21 Certain Contracts. 28 (a) As of the date hereof, except as set forth in the Disclosure Schedule or in the Company SEC Documents, neither the Company nor any of its Subsidiaries is a party to or bound by any Material Contracts. As used in this Agreement "MATERIAL CONTRACT" shall mean a material contract as defined in Item 601(b)(10) of Regulation S-K of the SEC. (b) Neither the Company nor any of its Subsidiaries is, or has any Knowledge that any other party thereto is, or asserts in writing that the Company or any of its Subsidiaries is, in default in any respect under any Material Contract, except for such defaults as have not had and are not reasonably expected to have a Material Adverse Effect on the Company, and there has not occurred, to the Knowledge of the Company, any event that with the lapse of time or the giving of notice or both would constitute such a default. Section 5.22 Employment Matters. (a) Neither the Company nor any of its Subsidiaries is a party to any labor or collective bargaining agreement, and no employees of the Company or any of its Subsidiaries are represented by any labor organization. Within the preceding three years, there have been no representation or certification proceedings, or petitions seeking a representation proceeding, pending or, to the Knowledge of the Company, threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. Within the preceding three years, to the Knowledge of the Company, there have been no organization activities involving the Company or any of its Subsidiaries in respect of any group of employees of the Company or any of its Subsidiaries. (b) There are no strikes, work stoppages, slowdowns, lockouts, material arbitrations, or material grievances or other material labor disputes pending or, to the Knowledge of the Company, threatened in writing against or involving the Company or any of its Subsidiaries. There are no unfair labor practice charges, grievances, or complaints pending or, to the Knowledge of the Company, threatened in writing by or on behalf of any employee or group of employees of the Company or its Subsidiaries that, if individually or collectively resolved against the Company or its Subsidiaries, would have a Material Adverse Effect on the Company. (c) There are no complaints, charges, or claims against the Company or its Subsidiaries pending or, to the Knowledge of the Company, threatened to be brought or filed with any Governmental Entity based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or its Subsidiaries that, in each case, would have a Material Adverse Effect on the Company. (d) There has been no "mass layoff" or "plant closing" as defined by the federal Worker Adjustment, Retraining and Notification Act in or any similar state statute in respect of the Company or its Subsidiaries within the six months prior to the Effective Date. Section 5.23 Voting Requirements. The affirmative vote of the holders of a majority of the outstanding Shares is the only vote of the holders of any class or series of the Company's capital stock necessary to approve this Agreement and the Transactions, unless the Merger may be consummated in accordance with Section 711 of Michigan Law, in which case no such vote of the Company's stockholders is required. 29 Section 5.24. Disclaimer of Other Representations and Warranties. The Company does not make, and has not made, any representations or warranties in connection with the Offer or the Merger other than those expressly set forth herein. It is understood that any data, any financial information or any memoranda or offering materials or presentations (including but not limited to the Confidential Information Memorandum dated January 2003) are not and shall not be deemed to be or to include representations or warranties of the Company. Except as expressly set forth herein, no Person has been authorized by the Company to make any representation or warranty relating to the Company or any Subsidiary thereof or their respective businesses, or otherwise in connection with the Offer or the Merger and, if made, such representation or warranty may not be relied upon as having been authorized by the Company. ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF PARENT Parent represents and warrants to the Company that: Section 6.01. Corporate Existence and Power. Each of Parent and Merger Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all corporate powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted, except for those licenses, authorizations, permits, consents and approvals the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent. Since the date of its incorporation, Merger Subsidiary has not engaged in any activities other than in connection with or as contemplated by this Agreement or in connection with arranging any financing required to consummate the Transactions. Section 6.02. Corporate Authorization. The execution, delivery and performance by Parent and Merger Subsidiary of this Agreement and the consummation by Parent and Merger Subsidiary of the Transactions are within the corporate powers of Parent and Merger Subsidiary and have been duly authorized by all necessary corporate action on the part of Parent and Merger Subsidiary. This Agreement has been duly executed and delivered by each of Parent and Merger Subsidiary and constitutes a valid and binding obligation of each of Parent and Merger Subsidiary, enforceable against each of Parent and Merger Subsidiary in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to the enforcement of creditors' rights generally and (ii) is subject to general principles of equity. Section 6.03. Governmental Authorization. The execution, delivery and performance by Parent and Merger Subsidiary of this Agreement and the consummation by Parent and Merger Subsidiary of the Transactions require no action by or in respect of, or filing, with, any governmental body, agency, official or authority, domestic or foreign, other than (i) the filing of the Offer Documents with the SEC, and compliance with applicable federal securities laws in connection therewith, (ii) the filing of a certificate of merger with respect to the Merger with the Michigan Department of Consumer and Industry Services, Corporation, Securities and Land Development Bureau and appropriate documents with the relevant authorities of other states in which Parent is qualified to do business, (iii) compliance with any applicable requirements of the HSR Act and of laws, rules and regulations analogous to the HSR Act existing in foreign 30 jurisdictions, including but not limited to the European Union and the United Kingdom, (iv) filing with the SEC of the Schedule TO and compliance with any applicable requirements of the 1934 Act and any other applicable securities or takeover laws, whether state or foreign, as may be required in connection with this Agreement and the Transactions, (v) compliance with the rules and regulations of The Toronto Stock Exchange, (vi) as may be required by any applicable state securities or "blue sky" laws, (vii) such filings, consents, approvals, orders, registrations and declarations as may be required under the laws of any foreign country in which Parent or Merger Subsidiary conducts any business or owns any assets, and (viii) such other consents, approvals, orders, authorizations, registrations, declarations and filings the failure of which to be obtained or made would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent or Merger Subsidiary. Section 6.04. Non-contravention. The execution, delivery and performance by Parent and Merger Subsidiary of this Agreement and the consummation by Parent and Merger Subsidiary of the Transactions do not and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the articles of incorporation or bylaws of Parent or Merger Subsidiary, (ii), assuming compliance with the matters referred to in Section 6.03, contravene, conflict with, or result in any violation or breach of any provision of any law, rule, regulation, judgment, injunction, order or decree or (iii) require any consent or other action by any Person under, constitute a default under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which Parent or Merger Subsidiary is entitled under any provision of any agreement or other instrument binding upon Parent or Merger Subsidiary, except for such contraventions, conflicts and violations referred to in clause (ii), and for such failures to obtain any such consent or other action, default, termination, cancellation, acceleration, change or loss referred to in clause (iii), that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent or materially to impair the ability of Parent or Merger Subsidiary to consummate the Transactions. Section 6.05. Disclosure Documents. (a) The information with respect to Parent and any of its Subsidiaries that Parent furnishes to the Company for use in any Company Disclosure Document will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading (i) in the case of the Company Proxy Statement, as supplemented or amended, if applicable, at the time such Company Proxy Statement or any amendment or supplement thereto is first mailed to shareholders of the Company and at the time such shareholders vote on adoption of this Agreement and at the Effective Time, and (ii) in the case of any Company Disclosure Document other than the Company Proxy Statement, at the time of the filing of such Company Disclosure Document or any supplement or amendment thereto with the SEC and at the time of any distribution or dissemination thereof to the Company's shareholders. (b) The Offer Documents, when filed, distributed or disseminated, as applicable, will comply as to form in all material respects with the applicable requirements of the 1934 Act and, at the time of the filing thereof, at the time of any distribution or dissemination thereof and at the time of consummation of the Offer, will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements made therein, in the light of the 31 circumstances under which they were made, not misleading, provided that this representation and warranty will not apply to statements or omissions included in the Offer Documents based upon information furnished to Parent or Merger Subsidiary in writing by the Company specifically for use therein. Section 6.06. Finders' Fees. Except for Yorkton Securities, Inc., whose fees will be paid by Parent, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Parent or any of its Affiliates who might be entitled to any fee or commission from the Company or any of its Affiliates upon consummation of the Transactions. Section 6.07. Financing (a) Parent has all funds necessary to enable it to purchase all of the Shares outstanding on a fully-diluted basis and to pay all related fees and expenses pursuant to the Offer and the Merger (such amount, the "REQUIRED CASH AMOUNT"); and (b) Upon consummation of the transaction contemplated by this Agreement, the Surviving Corporation (i) will not become insolvent, (ii) will not be left with unreasonably small capital and (iii) will not have incurred debts beyond its ability to pay such debts as they mature. ARTICLE 7 COVENANTS OF THE COMPANY The Company agrees that: Section 7.01. Conduct of the Company. From the date hereof until the Effective Time, the Company and its Subsidiaries shall conduct their business in the ordinary course consistent with past practice and shall use all commercially reasonable efforts to preserve intact their business organizations and relationships with third parties and to keep available the services of their present officers and employees. Without limiting the generality of the foregoing, from the date hereof until the Effective Time, without the prior written consent of Parent (which consent shall not be unreasonably withheld), the Company shall not: (i) make, declare, set aside or pay any dividend or other distribution with respect to any shares of its capital stock, other than dividends and other distributions paid by any Subsidiary to the Company or any other wholly-owned Subsidiary of the Company; (ii) adjust, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) directly or indirectly repurchase, redeem or otherwise acquire any shares of capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries; (iv) issue, deliver or sell any shares of any class or series of its capital stock, or any securities convertible into or exercisable or exchangeable for shares of any class or series of its capital stock, other than issuances pursuant to the exercise of Stock Options that are outstanding on the date hereof or pursuant to the Stock Purchase Plan; 32 (v) except as otherwise contemplated by this Agreement, adopt or implement any amendment to its articles of incorporation or bylaws or other comparable organizational documents or any plan of consolidation, merger or reorganization or amend the terms of its outstanding securities; (vi) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof or (B) any assets for consideration exceeding $200,000 in any one instance, except purchases in the ordinary course of business consistent with past practice; (vii) transfer, sell, lease, license, mortgage or otherwise encumber or voluntarily subject to any Lien or otherwise dispose of any of its properties or assets for consideration exceeding $200,000 in any one instance, except sales in the ordinary course of business; (viii) except for the items currently contracted for by the Company and the items contemplated by the Company's capital expenditure budget made available to Parent, make or agree to make any new capital expenditure or expenditures in excess of $200,000; (ix) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities, or guarantee any debt securities of another Person, except for the endorsement of checks in the normal course of business and the extension of credit in the normal course of business, or make any loans, advances or capital contributions to, or investments in, any other Person, other than to any direct or indirect wholly-owned Subsidiary or in accordance with past practice; (x) enter into or adopt any new, or amend or renew any existing, Employee Plan, or any collective bargaining agreement, other than as required by law or as required to consummate the Transactions; (xi) except to the extent required by the terms of written employment agreements as in effect on the date of this Agreement and previously disclosed to Parent, increase the compensation payable to or to become payable to, or pension or other fringe benefits or perquisites to its present or former directors, employees, officers or consultants, except for increases in the ordinary course of business consistent with past practice in the salaries or wages of present employees, other than officers or directors, such increases not to exceed 4% in any individual case; (xii) enter into any contract of employment (other than contracts terminable by the Company without liability immediately following the Closing) or any severance, retention or similar agreement, except for agreements with new employees entered into in the ordinary course of business and providing for annual base and bonus compensation not to exceed $200,000; (xiii) pay, agree to pay or award any employee bonuses other than those paid in accordance with the terms and conditions and in the amounts of bonus arrangements disclosed in writing to Parent prior to the date of this Agreement in respect of the fiscal year ended June 30, 2003, or forgive any officer or employee loan; 33 (xiv) adopt any change, other than as required by the SEC, changes in U.S. generally accepted accounting principles or applicable law, in its accounting policies, procedures or practices; (xv) (A) make any Tax election, (B) settle or compromise any material income Tax liability; or (xvi) discharge, settle or satisfy any disputed claim, litigation, arbitration, disputed liability or other controversy (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the discharge or satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidation financial statements (or the notes thereto) included in the Company SEC Reports or incurred since March 31, 2003 in the ordinary course of business consistent with past practice, or waive any material benefits of, or agree to modify in any material respect, any confidentiality, standstill or similar agreements to which the Company or any of its Subsidiaries is a party; provided, however, that the discharge or settlement of any disputed claim, liability or other controversy in the amount of less than $25,000 shall in no event be prohibited by the foregoing; (xvii) cancel or terminate any material insurance policy naming the Company or any Subsidiary as a beneficiary or loss payable payee to be canceled or terminated; (xviii) enter into any Material Contract, other than in the ordinary and usual course of business consistent with past practice, or terminate, renew or amend in any material respect any of the Material Contracts ; (xix) enter into any agreement or arrangement that limits or otherwise restricts the Company or any of its Subsidiaries or any successor thereto or that could, after the Effective Time, limit or restrict the Company or any successor thereto, from engaging or competing in any line of business or in any geographic area; (xx) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger or an otherwise permitted by this Agreement); (xxi) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any Subsidiary; (xxii) make or agree to make any commitment or investment or enter into any contract which obligates the Company or any of its Subsidiaries to make payments exceeding $200,000, except in the ordinary course consistent with past practice; (xxiii) renew or terminate any significant agreement relating to the distribution of the Company's products outside the United States; (xxiv) enter into, or agree or commit to enter into, any agreement, contract, commitment or arrangement that if completed would be in contravention of any of the foregoing; or 34 (xxv) Except as otherwise contemplated by Sections 5.17 and 7.05, redeem the Rights or amend or terminate the Rights Agreement, except in connection with any action permitted by Section 7.04(d) or as required by any statute, rule, regulation, injunction, order or decree of any Governmental Entity. Section 7.02. Shareholder Meeting; Proxy Material. The Company shall cause a meeting of its shareholders (the "COMPANY SHAREHOLDER MEETING") to be duly called and held as soon as reasonably practicable after consummation of the Offer for the purpose of voting on the approval and adoption of this Agreement and the Merger, unless Michigan Law does not require a vote of shareholders of the Company for consummation of the Merger. In connection with such meeting, the Company will (i) promptly prepare and file with the SEC, will use all commercially reasonable efforts to have cleared by the SEC and will thereafter mail to its shareholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such meeting, (ii) use all commercially reasonable efforts to obtain the necessary approvals by its shareholders of this Agreement and the Transactions and (iii) otherwise comply with all legal requirements applicable to such meeting. The Company shall give Parent and its counsel the opportunity to review the Company Proxy Statement and all amendments and supplements thereto, prior to their being filed with the SEC. The Company will notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will promptly supply Parent with reports of all oral communications and copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Company Proxy Statement or the Merger. If at any time prior to the Company Stockholder Meeting there shall occur any event that should be set forth in an amendment or supplement to the Company Proxy Statement, the Company will promptly prepare and mail to its stockholders such an amendment or supplement. The Company will not mail any Company Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects. Section 7.03. Access to Information. From the date hereof until the Effective Time and subject to applicable law and the Confidentiality Agreement dated as of April 24, 2003 between the Company and Parent (the "CONFIDENTIALITY AGREEMENT"), the Company shall (i) give Parent, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of the Company and the Subsidiaries, (ii) furnish to Parent, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information as such Persons may reasonably request and (iii) instruct the employees, counsel, financial advisors, auditors and other authorized representatives of the Company and its Subsidiaries to cooperate with Parent in its investigation of the Company and its Subsidiaries, other than information or documentation relating to Acquisition Proposals made by Third Parties. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries. Section 7.04. No Solicitation; Other Offers. (a) The Company shall not, and shall not permit any of its Subsidiaries to, and shall use its best efforts to ensure that its officers, directors or employees, or any investment bankers, 35 consultants or other advisors or agents retained by it or any of its Subsidiaries do not solicit, initiate or intentionally encourage the submission of any Acquisition Proposal or engage in discussions or negotiations or furnish to any Person any information with respect to an Acquisition Proposal or knowingly facilitate any effort or attempt to make an Acquisition Proposal. The Company shall, and shall cause its Subsidiaries and the directors, employees and other advisors or agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated all activities, discussions and negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Acquisition Proposal and, to the extent within its power, request that all information concerning the Company and its Subsidiaries in the possession of such Persons and their affiliates, representatives and advisors be returned to the Company or destroyed. Nothing contained in this Agreement shall prevent the Board of Directors from complying with Rule 14d-9 or Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal or making any disclosure to the Company's stockholders if, in the good faith judgment of the Board of Directors, after consultation with and advice from outside legal counsel, failure to make such disclosure would constitute a breach of the fiduciary duties of the Board of Directors under applicable law or otherwise violate applicable law. (b) Notwithstanding the first sentence of Section 7.04(a), the Company may negotiate or otherwise engage in discussions with, and furnish nonpublic information to, any Person in response to an unsolicited Acquisition Proposal by such Person if (i) the Board of Directors determines in good faith after consultation with and advice from the Company Financial Advisor or a financial advisor of nationally recognized reputation, that such Acquisition Proposal may result in a Superior Proposal and (ii) such Person executes a confidentiality agreement no less favorable to the Company than the Confidentiality Agreement (including the standstill provisions thereof). (c) The Company shall notify Parent of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable (but in no case later than 24 hours after its receipt, and in any event before providing any information to or entering into discussions or negotiations with any person in connection with the Acquisition Proposal); shall promptly provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto; shall promptly inform Parent of the status of any discussions or negotiations with such a third party and any material changes to the terms and conditions of such Acquisition Proposal; and shall promptly deliver to Parent a copy of any information delivered to such person which has not previously been delivered by the Company to Parent. (d) Except as permitted by the second sentence of this Section 7.04(d), neither the Board of Directors nor any committee thereof shall (1) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Parent, its recommendation to its stockholders, or take any action not explicitly permitted by this Agreement that would be inconsistent with, its approval of the Offer and the Merger, (2) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal or (3) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or similar agreement or document related to any Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors shall be permitted (1) not to recommend to its stockholders acceptance of the Offer and/or approval and adoption of this Agreement and the Merger, (2) to withdraw, or modify in a manner adverse to 36 Parent, its recommendation to its stockholders, (3) to approve or recommend any Superior Proposal or (4) to terminate this Agreement in accordance with Section 11.01(c)(ii) below and in connection therewith enter into an agreement with respect to such Superior Proposal, but only if (y) the Company has received an Acquisition Proposal which the Board of Directors determines in good faith after consultation with and advice from the Company Financial Advisor or other financial advisor of nationally recognized reputation constitutes a Superior Proposal and (z) the Board of Directors of the Company determines in good faith, after consultation with and advice from outside legal counsel, that the failure to take such action would not be consistent with its fiduciary duties under applicable law. (e) For purposes of this Agreement: "Superior Proposal" means any bona fide written Acquisition Proposal, not solicited by the Company or by any affiliate or agent of the Company, which contains no financing contingency, or for which financing is reasonably determined to be available by the Board of Directors, and which the Board of Directors determines in good faith, after consultation with and advice from the Company Financial Advisor or other financial advisor of nationally recognized reputation, and taking into account all the terms and conditions of the Acquisition Proposal is more favorable to the Company's stockholders (in their capacities as stockholders) from a financial point of view than the Offer and Merger. Section 7.05. Rights Agreement; Takeover Statutes. The Board of Directors of the Company shall take all further action (in addition to that referred to in Section 5.17) necessary (including redeeming the Rights immediately prior to the Effective Time or amending the Rights Agreement) in order to render the Rights inapplicable to this Agreement, the Offer, the Merger, the Voting Agreement, the Top-Up Option or the Transactions. If any Takeover Statute is or may become applicable to this Agreement, the Offer, the Merger, the Voting Agreement, the Top-Up Option or the Transactions, each of Parent and the Company and their respective Boards of Directors shall grant such approvals and take such lawful actions as are necessary to ensure that such transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement, the Offer, the Merger, the Voting Agreement, the Top-Up Option and the Transactions, as applicable, and otherwise act to eliminate or minimize the effects of such statute and any regulations promulgated thereunder on such transactions. Section 7.06. Section 16 Matters. Prior to the Effective Time, the Company shall take all such steps as may be required to cause any dispositions of Shares in the Merger by each individual who is subject to the reporting requirements under Section 16(a) of the 1934 Act with respect to the Company to be exempt under Rule 16b-3 promulgated under the 1934 Act. ARTICLE 8 COVENANTS OF PARENT Parent agrees that: Section 8.01. Confidentiality. Prior to the Effective Time and after any termination of this Agreement, Parent will hold, and will cause its officers, directors, employees, accountants, 37 counsel, consultants, advisors and agents to hold, in confidence, all documents and information concerning the Company or any of its Subsidiaries furnished to Parent or its Affiliates in connection with the Transactions in accordance with the terms of the Confidentiality Agreement. Section 8.02. Obligations of Merger Subsidiary. Parent will take all action necessary to cause Merger Subsidiary to perform its obligations under this Agreement and to consummate the Offer and the Merger on the terms and conditions set forth in this Agreement. Section 8.03. Voting of Shares. Parent agrees to vote or cause to be voted all Shares Beneficially Owned by Parent, the Merger Subsidiary or their Affiliates in favor of adoption of this Agreement at the Company Shareholder Meeting. Section 8.04. Director and Officer Liability. Parent shall cause the Surviving Corporation, and the Surviving Corporation hereby agrees, to do the following: (a) For six years after the Effective Time, the Surviving Corporation shall indemnify and hold harmless each present and former officer and director of the Company and of any Subsidiary of the Company (each an "INDEMNIFIED PERSON") in respect of acts or omissions occurring at or prior to the Effective Time to the fullest extent permitted by Michigan Law or provided under the Company's articles of incorporation and bylaws in effect on the date hereof; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. (b) The Surviving Corporation shall pay all expenses, including reasonable fees and expenses of counsel, that an Indemnified Person may incur in enforcing the indemnity and other obligations provided for in this Section 8.04. The Indemnified Person shall be entitled to control the defense of any action, suit, investigation or proceeding with counsel of his or her own choosing reasonably acceptable to the Surviving Corporation and the Surviving Corporation shall cooperate in the defense thereof, provided that the Surviving Corporation shall not be liable for the fees of more than one counsel for all Indemnified Persons, other than local counsel, in any one jurisdiction, unless a conflict of interest shall be caused thereby, and provided further that the Surviving Corporation shall not be liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld). (c) At the date on which Merger Subsidiary accepts for payment pursuant to the Offer a number of Shares that satisfies the Minimum Condition (the "Cut-Off Date"), Parent shall arrange for the Company to obtain, and following the Effective Date the Surviving Corporation shall maintain in effect, a fully paid officers' and directors' liability insurance policy in respect of acts or omissions occurring prior to the Cut-Off Date covering each such Indemnified Person currently covered by the Company's officers' and directors' liability insurance policy on terms with respect to coverage and amount that are no less favorable than those of such policy in effect on the date hereof and extending for a period of six years from the Cut-Off Date. The Board of Directors shall promptly determine in good faith and shall confirm in writing to Parent whether the officers' and directors' liability insurance provided, or proposed to be provided, by the Surviving Corporation is accepted to constitute insurance that is no less favorable as aforesaid, provided that any time after the Cut-Off Date, any determination to such effect must include the approval of a majority of the Independent Directors, and if so approved, shall be binding on 38 Parent, the Surviving Corporation and all Indemnified Persons. On or after the Cut-Off Date, the Parent shall provide or cause the Company to provide the Independent Directors the same coverage under an officers' and directors' liability insurance policy in respect of acts or omissions occurring on or after the Cut-Off Date as are provided to members of the Board of Directors designated by Parent under Section 2.03. (d) The obligations of the Surviving Corporation under this Section 8.04 shall be joint and several obligations of Parent and the Surviving Corporation. (e) If Parent, the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 8.04. (f) The rights of each Indemnified Person under this Section 8.04 shall be in addition to any rights such Person may have under the articles of incorporation or bylaws of the Company or any of its Subsidiaries, or under Michigan Law or any other applicable laws. These rights shall survive consummation of the Merger and are intended to benefit, and shall be enforceable by, each Indemnified Person and may not be changed as to an Indemnified Person without the consent of the Indemnified Person. Section 8.05. Employee Benefits after the Merger. (a) For at least one year from and after the Effective Time, Parent shall cause the Surviving Corporation to provide those of its and its Subsidiaries' employees who were employed by the Company or its Subsidiaries immediately prior to the completion of the Offer with compensation at least as favorable, in the aggregate, as the compensation provided by the Company and its Subsidiaries to such employees immediately prior to the date hereof, and benefits that are substantially equivalent in the aggregate to those that are provided to employees of Parent having comparable levels of responsibility. The preceding sentence shall not preclude the Parent or the Surviving Corporation or its Subsidiaries at any time following the Effective Time from terminating the employment of any Company employee nor from terminating or amending any Employee Plan in accordance with its terms and applicable law and such benefits. (b) Parent shall, or shall cause the Surviving Corporation to, give each Company employee full credit in respect of his or her employment with the Company or its Subsidiaries prior to the Effective Time for purposes of eligibility, vesting, level of benefits and service, other than benefit accrual under any defined benefit plans, under any new employee benefit plans offered by the Surviving Corporation after the Merger ("SURVIVING CORPORATION NEW PLANS") or any benefit plan maintained by Parent in which the Company employee is permitted to participate ("PARENT PLANS") (to the extent that the corresponding Benefit Plan currently provided to Company employees gave such credit). 39 (c) From and after the Effective Time, Parent will, or will cause the Surviving Corporation to, (i) cause any pre-existing conditions or limitations and eligibility waiting periods (only to the extent such limitations or waiting periods did not apply to the Company employees under the Benefit Plans) under any group health plans of Parent, or any group health plans constituting Surviving Corporation New Plans, in which Company employees are permitted to participate to be waived with respect to the Company employees and their eligible dependents and (ii) give each Company employee credit for the plan year in which the Effective Time occurs toward applicable deductibles and annual out-of-pocket limits under group health plans of Parent or group health plans constituting Surviving Corporation New Plans for expenses incurred prior to the Effective Time under the Benefit Plans. (d) From and after the Effective Time, Parent will, and will cause the Surviving Corporation to, honor, without modification, perform all acts and pay all amounts required or due under or with respect to each Benefit Plan and each agreement which relates to any current or former employee of the Company and its Subsidiaries or the terms of any such employee's employment or termination of employment, including, without limitation, all employment, retention, change of control, employment protection, severance, termination, consulting, deferred compensation, executive pension and retirement, welfare and fringe benefit agreements, plans and programs, except for any modification to any such Benefit Plan or agreement to the extent permitted in accordance with Section 8.05(a). (e) Parent acknowledges and agrees that the consummation of the Transactions will constitute a "change of control" of the Company for purposes of each Benefit Plan and each program, policy and agreement covering any current or former employee of the Company and its Subsidiaries and, accordingly agrees to, and agrees to cause the Surviving Corporation to, honor all provisions under such Benefit Plans, programs, policies and agreements relating to a change of control. (f) Notwithstanding the foregoing, nothing in this Section 8.05 shall preclude Parent from seeking to (i) modify any employment agreement with the consent of the affected employee or employees or (ii) modify any Benefit Plan to the extent such modification is permitted by the terms of such Benefit Plan and is consistent with Section 8.05(a). (g) It is the intention of the parties hereto that, as soon as the Parent determines that it is administratively feasible to do so after the Effective Time, the Profit Sharing Plan of Comshare, Incorporated (the "COMSHARE PLAN") shall be merged into the Parent's tax-qualified 401(k) Plan (the "PARENT'S 401(K) PLAN") in accordance with the terms and conditions of Section 414(l) of the Code; provided, however, that the Parent, prior to the Effective Time, has determined in its sole discretion that the Comshare Plan is in compliance in all material respects with the provisions of ERISA and the Code and that the merger of said Plans would not result in any undue administrative burden for the Parent, including but not limited to incompatible assets and protected rights and features with respect to the Comshare Plan. At the Parent's request the Company shall terminate the Comshare Plan by resolution adopted prior to the Determination Time, to become effective immediately prior to the Merger Subsidiary acquiring 80% or more of the combined voting power of all classes of capital stock of the Company or 80% or more of the value of shares of all classes of capital stock of the Company, on terms acceptable to the Parent and shall simultaneously amend the Comshare Plan to the extent necessary to comply with all 40 applicable law to the extent not previously amended. The Parent agrees that the Parent will cause the Parent's 401(k) Plan to accept direct rollovers of "eligible rollover distributions" within the meaning of Section 402(c) of the Code (including, but not limited to, outstanding plan loans) made with respect to the Company's employees pursuant to the Comshare Plan by reason of the transactions contemplated by this Agreement. Rollover amounts contributed to Parent's 401(k) Plan in accordance with this Section 8.05(g) shall be held in a separate rollover account which shall at all times be 100% vested and shall be invested in accordance with the provisions of the Parent's 401(k) Plan. Section 8.06. Financing. Parent shall provide the Required Cash Amount to Merger Subsidiary no later than the dates on which Merger Subsidiary is required to make payments of the Required Cash Amount under this Agreement. ARTICLE 9 COVENANTS OF PARENT AND THE COMPANY The parties hereto agree that: Section 9.01. Commercially Reasonable Efforts. (a) Subject to the terms and conditions of this Agreement and subject to the fiduciary duties under applicable law of the directors of the Company (as determined by such directors in good faith), Company and Parent will use all commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Transactions, including but not limited to making all filings with the SEC necessary to consummate such transactions. In furtherance and not in limitation of the foregoing, each of Parent and Company agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as practicable and in any event within ten business days of the date hereof and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable. Anything to the contrary in the foregoing notwithstanding, the parties hereby agree that no party hereto will be required to take or commit itself to take any action, including, without limitation, the proposing, negotiating, committing to or effecting, by consent decree, "hold separate" order or otherwise, the sale, divestiture or disposition of assets or businesses of Parent (or any of its Subsidiaries, including the Surviving Corporation), if such action would limit Parent or its Subsidiaries' freedom of action with respect to, or its ability to retain, one or more of its Subsidiaries' businesses, product lines or assets after the Effective Date. (b) In connection with the efforts referenced in Section 9.01(a) to obtain all requisite approvals and authorizations for the Transactions under the HSR Act or any other Antitrust Law, each of Parent and Company shall use all commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) keep the other party informed in all material respects of any material communication received by such party from, or given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust 41 Division of the Department of Justice (the "DOJ") or any other governmental authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other party to review any material communication given by it to, and consult with each other in advance of any meeting or conference with, the FTC, the DOJ or any such other governmental authority or, in connection with any proceeding by a private party, with any other Person. Section 9.02. Certain Filings. The Company and Parent shall cooperate with one another (i) in connection with the preparation of the Company Disclosure Documents and the Offer Documents, (ii) in determining whether any action by or in respect of, or filing with, any governmental body, agency, official, or authority is required, or any actions, consents, approvals or waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the Transactions and (iii) in taking such actions or making any such filings, furnishing information required in connection therewith or with the Company Disclosure Documents or the Offer Documents and seeking timely to obtain any such actions, consents, approvals or waivers. Section 9.03. Public Announcements. Parent and the Company will consult with each other before issuing any press release or making any public statement with respect to this Agreement or the Transactions and, except as may be required by applicable law or any listing agreement with The Nasdaq Stock Market, Inc. or any national securities exchange, will not issue any such press releases or make any such public statement prior to such consultation. Section 9.04. Further Assurances. At and after the Effective Time, the officers and directors of the Surviving Corporation will be authorized to execute and deliver, in the name and on behalf of the Company or Merger Subsidiary, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of the Company or Merger Subsidiary, any other actions and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets of the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger. Section 9.05. Merger Without Meeting of Shareholders. If Parent, Merger Subsidiary or any other Subsidiary of Parent shall acquire at least 90% of the outstanding Shares pursuant to the Offer or otherwise, the parties hereto agree to take all necessary and appropriate action to cause the Merger to be effective as soon as practicable after the acceptance for payment and purchase of Shares pursuant to the Offer without a meeting of shareholders of the Company in accordance with Michigan Law. ARTICLE 10 CONDITIONS TO THE MERGER Section 10.01. Conditions to Obligations of Each Party. The obligations of the Company, Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction of the following conditions: 42 (a) if required by Michigan Law, this Agreement shall have been approved and adopted by the shareholders of the Company in accordance with Michigan Law; (b) any applicable waiting period under the HSR Act or comparable period under the Antitrust Laws of other applicable jurisdictions relating to the Merger shall have expired or been terminated; (c) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the consummation of the Merger upon the terms contemplated hereby; and (d) Merger Subsidiary shall have purchased Shares pursuant to the Offer. ARTICLE 11 TERMINATION Section 11.01. Termination. This Agreement may be terminated, and the Merger contemplated hereby may be abandoned, at any time prior to the Effective Time, whether before or after approval of the Merger by the stockholders of the Company: (a) by mutual written consent of Parent and the Company; (b) by either the Company or Parent: (i) if any court or Governmental Entity shall have issued an order (other than a temporary restraining order), decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their commercially reasonable efforts, subject to Section 9.01 hereof, to lift) restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and nonappealable; or (ii) if (x) the Offer shall have expired without any Shares being purchased therein or (y) Parent or Merger Subsidiary shall not have accepted for payment, and paid for, all Shares tendered pursuant to the Offer by October 1, 2003, provided that the right to terminate this Agreement under this Section 11.01(b)(ii) shall not be available to any party whose breach of this Agreement has been the cause of, or resulted in, the failure of Parent or Merger Subsidiary to purchase the Shares pursuant to the Offer; (iii) any Person, other than Parent, Merger Subsidiary or their Affiliates, consummates a tender offer or other transaction pursuant to which such Person becomes the beneficial owner of more than fifty (50%) percent of the then outstanding Shares. (c) by the Company: (i) if Parent and/or Merger Subsidiary fails to commence the Offer as provided in Section 2.01 hereof; provided, that the Company may not terminate this Agreement pursuant to this Section 11.01(c)(i) if the Company is at such time in breach of its obligations under this Agreement so as to (A) cause a Material Adverse Effect on the Company or (B) 43 prevent or materially hinder or delay the purchase of the Shares pursuant to the Offer or the Merger; (ii) in connection with its entering into a definitive agreement with respect to a Superior Proposal, to the extent otherwise permitted by this agreement, if (x) the Company provides written notice to Parent and Merger Subsidiary of the material terms and conditions of an Acquisition Proposal which the Board of Directors has determined in good faith, after consultation with and advice from the Company Financial Advisor or other financial advisor of nationally recognized reputation and outside legal counsel, constitutes a Superior Proposal, (y) on or after the third Business Day following delivery of such written notice, the Board of Directors reasonably determines, based upon the advice of such financial advisor, that any proposal made by Parent and Merger Subsidiary in writing with respect to the Offer, within such time period, supplementing the terms and conditions of the Offer, is not at least as favorable to the Company and the Company's stockholders as the terms and conditions of such Acquisition Proposal specified in (i) above; or (iii) if (x) Parent or Merger Subsidiary shall have breached or failed to perform in all material respects any of their obligations under this Agreement, or any of the representations and warranties of the Parent or Merger Subsidiary contained in this Agreement shall not be true in all material respects as of the date of this Agreement or at any time prior to the Effective Date as if made at and as of such time (except as to any representation or warranty which speaks as of a specific date, which must be untrue as of such date) and (y) such breach or failure to perform obligations, or failure of the representations and warranties to be true, cannot be or has not been cured, in all material respects, within 15 days after the giving of written notice to Parent or Merger Subsidiary. (d) by Parent: (i) if, due to an occurrence, not resulting from a breach by Parent or Merger Subsidiary of their obligations hereunder, which makes it impossible to satisfy any of the conditions set forth in Annex A hereto, Parent or Merger Subsidiary shall have failed to commence the Offer in the time period provided in Section 2.01 hereof; or (ii) if, prior to the consummation of the Offer, the Company shall have breached any representation, warranty, covenant or other agreement contained in this Agreement which (y) gives rise to the failure of a condition set forth in paragraph (c) or (d) of Annex A hereto and (z) cannot be or has not been cured, in all material respects, within the later of 15 days after the giving of written notice to the Company or the initial expiration of the Offer (or such later date upon which the Offer shall expire in accordance with Section 2.01 of the Agreement); or (iii) if, whether or not permitted to do so, the Board of Directors shall have withdrawn or modified in a manner adverse to Parent or Merger Subsidiary, or shall have failed, at the written request of Parent, to reaffirm within 5 Business Days after the request, its approval or recommendation of the Offer, the Merger or the Agreement, or shall have approved or recommended any Acquisition Proposal; or 44 (iv) if, whether or not permitted to do so, the Company shall have entered into a written acquisition agreement agreeing to an Acquisition Proposal, including a Superior Proposal otherwise entered into in accordance with the terms of this Agreement. Section 11.02. Effect of Termination. In the event of termination of this Agreement by either the Company or Parent as provided in Section 11.01, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of Parent, Merger Subsidiary or the Company, other than the provisions of Section 7.04(b), Section 8.01, this Section 11.02, Section 11.03, and Article 12 (other than Section 12.02); provided that if such termination shall result from the (i) failure of either party to perform a covenant or agreement hereof or (ii) breach by Parent of its representation contained in Section 6.07(a), such party shall be fully liable for any and all liabilities and damages incurred or suffered by the other party as a result of such failure or breach. Section 11.03. Fees and Expenses (a) If (i) Parent terminates this Agreement pursuant to Section 11.01(d) (iv) or (ii) the Company terminates this Agreement pursuant to Section 11.01(c)(ii), or either party terminates this Agreement pursuant to Section 11.01(b)(iii), then, in any such case, the Company shall pay, or cause to be paid to Parent, at the time of termination, a termination fee in the amount of One Million Eight Hundred Fifty Thousand ($1,850,000) Dollars (the "TERMINATION FEE") plus an amount equal to Parent's actual and reasonably documented out-of-pocket expenses incurred by Parent after the date hereof in connection with the Offer, the Merger, this Agreement and the consummation of the Transactions, including, without limitation, the fees and out-of-pocket expenses payable to all banks, investment banking firms and other financial institutions and their respective agents and counsel incurred in connection with acting as Parent's financial advisor with respect to the Transactions, up to an aggregate of Seven Hundred Fifty Thousand ($750,000) Dollars (the "Expenses"). (Wherever the capitalized term "Expenses" is used in this Agreement, it shall refer to Expenses up to Seven Hundred Fifty Thousand ($750,000) Dollars.) (b) Any payments required to be made pursuant to this Section 11.03 shall be made by wire transfer of same day funds to an account designated by Parent. The Company acknowledges that the agreements contained in this Section 11.03 are an integral part of the Transactions, and that, without these agreements Parent would not have entered into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to Section 11.03, and, in order to obtain such payment, Parent commences a suit (i) which results in a judgment against the Company for the fee set forth in this Section 11.03, the Company shall pay to Parent, and (ii) in the event that Parent does not substantially prevail in such suit, the Parent shall pay to the Company, its costs and expenses (including attorneys' fees) in connection with such suit, together with interest from the date of termination of this Agreement on the amounts owed at the prime rate of Harris Trust and Savings Bank in effect from time to time during such period. (c) Except as otherwise provided herein, all fees and expenses incurred in connection with the Offer, the Merger, this Agreement and the Transactions shall be paid by the party incurring such fees or expenses, whether or not the Offer or the Merger is consummated. 45 (d) In the event the Company is required to pay Parent any amount pursuant to this Section 11.03, such payment shall be Parent's and Merger Subsidiary's exclusive remedy for Company's termination and/or breach of the Agreement. ARTICLE 12 MISCELLANEOUS Section 12.01. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission) and shall be given, if to Parent or Purchaser, to: Geac Computer Company Limited 11 Allstate Parkway, Suite 300 Markham, Ontario L3R 9T8 Facsimile: (905) 940-3722 Attention: Chief Executive Officer with copies (which shall not constitute notice) to: Blake, Cassels & Graydon LLP Commerce Court West 199 Bay Street, Suite 2800 Toronto, Ontario M5L 1A9 Facsimile: (916) 863-2653 Attention: Craig Thorburn, Esq. Foley Hoag LLP World Trade Center West 155 Seaport Boulevard Boston, Massachusetts 02210 Facsimile: (617) 832-1000 Attention: Robert W. Sweet, Jr., Esq. If to the Company, to: Comshare Incorporated 555 Briarwood Circle Ann Arbor, MI 48108 Facsimile: (734) 205-0143 Attention: Chief Executive Officer With a copy (which shall not constitute notice) to: Dykema Gossett PLLC 400 Renaissance Center Detroit, Michigan 48243 Attention: Thomas S. Vaughn, Esq. 46 Fax: (313) 568-6915 or such other address or facsimile number as such party may hereafter specify for the purpose by notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5 p.m. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt. Section 12.02. Survival of Representations and Warranties. The representations and warranties and agreements contained herein and in any certificate or other writing delivered pursuant hereto shall not survive the Effective Time, except for the agreements contained herein (including in Sections 8.04 and 8.05) and any other agreement that by their terms apply or are to be performed in whole or in part after the Effective Time. Section 12.03. Amendments; No Waivers. (a) Any provision of this Agreement may be amended or waived prior to the Effective Time if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective, provided that, after the adoption of this Agreement by the shareholders of the Company and without their further approval, no such amendment or waiver shall reduce the amount or change the kind of consideration to be received in exchange for the Shares. (b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. Section 12.04. Successors and Assigns. The provisions of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns, provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto, except that Parent or Merger Subsidiary may transfer or assign, in whole or from time to time in part, to one or more of its Affiliates, the right to purchase all or a portion of the Shares pursuant to the Offer, but no such transfer or assignment will relieve Parent or Merger Subsidiary of its obligations under the Offer or prejudice the rights of tendering shareholders to receive payment for Shares validly tendered and accepted for payment pursuant to the Offer. Section 12.05. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of Michigan (regardless of the laws that might be applicable under principles of conflicts of law). Section 12.06. Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the Transactions 47 may be brought in any federal court located in the State of Michigan or any Michigan state court, and each of the parties hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party by notice as provided in Section 12.01 shall be deemed effective service of process on such party. Section 12.07. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Section 12.08. Counterparts; Effectiveness; Benefit. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto. Except as provided in Sections 8.04 and 8.05, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. Section 12.9. Entire Agreement. This Agreement and the Confidentiality Agreement constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement. Section 12.10. Captions. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. Section 12.11. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable, 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. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the Transactions be consummated as originally contemplated to the fullest extent possible. Section 12.12. Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. 48 Section 12.13. No Prejudice. This Agreement has been jointly prepared and negotiated by the parties hereto and the terms hereof shall not be construed in favor of or against any party on account of its participation in such preparation. [Signatures on next page.] 49 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. COMSHARE, INCORPORATED By: /s/ Dennis G. Ganster ------------------------- Name: Dennis G. Ganster Title: Chairman and CEO GEAC COMPUTER CORPORATION LIMITED By: /s/ Paul D. Birch ------------------------- Name: Paul D. Birch Title: President and Chief Executive Officer CONDUCTOR ACQUISITION CORP. By: /s/ Paul D. Birch ------------------------- Name: Paul D. Birch Title: President and Chief Executive Officer ANNEX A CONDITIONS TO THE OFFER Capitalized terms used but not defined herein shall have the meanings given to such terms in the Agreement and Plan of Merger (the "AGREEMENT") of which this Annex A is a part. Notwithstanding any other provision of the Offer, Merger Subsidiary shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the 1934 Act (relating to the obligation of Merger Subsidiary to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for any tendered Shares and (subject to any such rules or regulations) may delay the acceptance for payment of or the payment for any tendered Shares and (except as provided in the Agreement) amend or terminate the Offer without accepting for payment any tendered shares if (i) there are not validly tendered (and not properly withdrawn) prior to the expiration date for the Offer (as extended in accordance with Section 2.01(b) of this Agreement) (the "DETERMINATION TIME") that number of Shares which, when added to any such Shares owned by Parent or any of its affiliates, will at least satisfy the Minimum Condition, (ii) by the Determination Time any applicable waiting period under the HSR Act or any laws, rules or regulations analogous to the HSR Act existing in foreign jurisdictions has not expired or been terminated, (iii) prior to the Determination Time the Agreement shall have been terminated in accordance with its terms or (iv) at the Determination Time any of the following events shall have occurred and be continuing: (a) there shall be threatened or pending any suit, action or proceeding by any Governmental Entity (i) seeking to prohibit or impose any material limitations on Parent's or Merger Subsidiary's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a material portion of the Company's businesses or assets, (ii) seeking to compel Parent or Merger Subsidiary or their respective subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, (iii) challenging the acquisition by Parent or Merger Subsidiary of any Shares pursuant to the Offer or the Merger, (iv) seeking to restrain or prohibit the making or consummation of the Offer or the Merger or the performance of any of the other Transactions, (v) seeking to obtain from the Company any damages as a result of the Offer or the Merger that would be reasonably expected to have a Material Adverse Effect on the Company, (vi) rendering Merger Subsidiary unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (vii) seeking to impose material limitations on the ability of Merger Subsidiary or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholders; or (b) there has been any statute, rule, regulation, injunction, order or decree enacted, enforced, promulgated, issued or deemed applicable to the Offer or the Merger by any Governmental Entity that results in any of the consequences referred to in clauses (i) or (ii) of paragraph (a) above; or A-1 (c) any representation or warranty of the Company contained in the Agreement (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification) shall not be true and correct in all respects as of the Determination Time, as if made at and as of such time (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case such representation or warranty shall not be true and correct as of such date), and the failure of such representation or warranty to be true and correct would reasonably be expected to have a Material Adverse Effect on the Company, provided that such breach is incapable of being cured or has not been cured prior to the initial expiration date of the Offer (or such later date upon which the Offer shall expire in accordance with Section 2.01 of the Agreement); or (d) the Company shall have failed to perform or comply with any of its obligations, covenants or agreements contained in the Agreement required to be performed or complied with at or prior to the Determination Time, and such failure would reasonably be expected to have a Material Adverse Effect on the Company, provided that such failure to perform or comply is incapable of being cured or has not been cured prior to the initial expiration date of the Offer (or such later date upon which the Offer shall expire in accordance with Section 2.01 of the Agreement); or (e) the Board of Directors or any committee thereof (i) shall have withdrawn or modified in a manner adverse to Parent or Merger Subsidiary (including by amendment of the Schedule 14D-9) its approval or recommendation of the Offer, the Merger or the Agreement or recommended or approved any Acquisition Proposal or (ii) shall fail to reaffirm its approval or recommendation of the Offer, the Merger Agreement or the Merger, after Merger Subsidiary's written request that it do so within 5 Business Days after the request, or (iii) shall have resolved to do any of the foregoing, and, in the reasonable good faith judgment of Parent or Merger Subsidiary, the condition or event described in the foregoing paragraphs (a) through (f), regardless of the circumstances giving rise to such event or condition, makes it inadvisable to proceed with the Offer or the acceptance for payment of or payment for the Shares; provided, in any such case, that Merger Subsidiary and Parent have performed all of their respective obligations under Section 9.01 herein. The foregoing conditions (x) are for the sole benefit of Parent and Merger Subsidiary and (y) may be asserted by Parent and Merger Subsidiary, and, except for the (1) Minimum Condition or (2) expiration or termination or any applicable waiting period under the HSR Act or foreign laws, and otherwise subject to the terms of the Agreement, may be waived by Parent and Merger Subsidiary, in whole or in part, at any time and from time to time, in the sole discretion of Parent and Merger Subsidiary. The failure of Parent or Merger Subsidiary at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each right shall be deemed a continuing right which may be asserted at any time and from time to time. Should the Offer be terminated pursuant to the foregoing provisions, all tendered Shares not theretofore accepted for payment pursuant thereto shall forthwith be returned to the tendering stockholders. A-2 EX-99.(D)(4) 13 b47043gcexv99wxdyx4y.txt VOTING AND TENDER AGREEMENT Exhibit (d)(4) VOTING AND TENDER AGREEMENT This Voting and Tender Agreement (this "Agreement"), dated as of June 22, 2003, is entered into by and among Geac Computer Corporation Limited, a corporation governed by the Canada Business Corporations Act ("Parent"), Conductor Acquisition Corp., a Michigan corporation and an indirect wholly-owned subsidiary of Parent ("Merger Subsidiary"), and Dennis G. Ganster (the "Stockholder"). W I T N E S S E T H: WHEREAS, Parent, Merger Subsidiary and Comshare, Incorporated, a Michigan corporation ("Company"), are entering into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger Agreement") pursuant to which Merger Subsidiary has agreed to make a tender offer (the "Offer") for all outstanding shares of common stock, par value $1.00 per share, of the Company (the "Common Stock"), together with any associated Rights, at a price per share of $4.60, net to the seller in cash, without interest (such price, or such higher price per share of Common Stock as may be paid in the Offer, being referred to herein as the "Offer Price"), to be followed by a merger (the "Merger") of Merger Subsidiary with and into the Company (all capitalized terms not otherwise defined herein shall have the meanings given to them in the Merger Agreement); WHEREAS, the Stockholder holds 130,870 shares of the Common Stock (the "Shares;" provided that, for purposes of this Agreement, the term "Shares" shall include any associated Rights); WHEREAS, as a condition to the willingness of Parent and Merger Subsidiary to enter into the Merger Agreement, each of Parent and Merger Subsidiary has required that the Stockholders agree, and in order to induce Parent and Merger Subsidiary to enter into the Merger Agreement, the Stockholder has agreed, to enter into this Agreement simultaneously with the execution and delivery by the parties thereto of the Merger Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the adequacy of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows: 1. Tender by Stockholder. 1.1 Tender of Shares. Subject to Section 6 below, the Stockholder agrees to tender and sell to Merger Subsidiary, not later than one (1) business day prior to the initial expiration date of the Offer, without regard to any extension thereof (the "Initial Expiration Date"), all the Shares (and any shares of Common Stock, and any associated Rights, acquired by the Stockholder subsequent to the date hereof but prior to the consummation of the Tender Offer), pursuant to and in accordance with the Offer. The Stockholder agrees that he shall deliver or cause to be delivered to the depositary for the Offer, not later than one (1) business day before the Initial Expiration Date of the Offer, either a letter of transmittal together with the certificates for the Shares, if available, or a "Notice of Guaranteed Delivery," if the Shares are not available. After such tender the Stockholders shall not withdraw any such Shares, until this Agreement is terminated in accordance with its terms. 1.2 Adjustments Upon Changes in Capitalization. In the event of any change in the number of issued and outstanding shares of Common Stock by reason of any stock dividend, subdivision, merger, recapitalization, combination, conversion or exchange of shares, or any other change in the corporate or capital structure of the Company (including, without limitation, the declaration or payment of an extraordinary dividend of cash or securities), the term "Shares" shall be deemed to refer to and include the Shares as well as all such stock dividends and distributions and any shares into which or for which any or all of the Shares may be changed or exchanged. 2. Representations and Warranties of the Stockholder. The Stockholder represents and warrants to Parent and Merger Subsidiary that: 2.1 Power and Authority. The Stockholder has all necessary power and authority to enter into and perform all of his obligations under this Agreement and to sell, assign, transfer and deliver to Parent and/or Merger Subsidiary, pursuant to the terms and subject to the conditions of this Agreement and the Merger Agreement, the Shares that he legally and/or beneficially owns. This Agreement and the Stockholder's consummation of the transactions contemplated hereby have been duly and validly authorized, executed and delivered by the Stockholder. 2.2 No Other Rights. Except for this Agreement, there are no outstanding options, warrants or rights to purchase or acquire any of the Shares. 2.3 Only Shares. The Stockholder is the beneficial owner of all of the Shares. On the date hereof, the Shares constitute all of the shares of Common Stock of the Company owned of record or beneficially owned by the Stockholder other than Stock Options (as defined in the Merger Agreement), shares to be acquired through the Company's Employee Stock Purchase Plan and shares owned by the Stockholder's spouse. The Stockholder has sole voting power and sole power to issue instructions with respect to the matters set forth in Section 1 hereof, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Shares, with no limitations, qualifications or restrictions on such rights (subject to applicable securities laws). There is no beneficiary or holder of a voting trust certificate or other interest of any trust of which the Stockholder is settlor or trustee or any other person whose consent is required for the execution, delivery and performance of this Agreement or the consummation by the Stockholder of the transactions contemplated hereby. 2.4 Title. The Stockholder is the beneficial owner of all of the Shares held by such Stockholder and has, and upon the closing of the Offer, Merger Subsidiary shall receive, good and marketable title to such Shares, free and clear of all liens, claims, encumbrances and security interests of any nature whatsoever. 2.5 Validity. This Agreement has been duly and validly executed and delivered by the Stockholder and constitutes the legal, valid and binding agreement of the Stockholder, enforceable against the Stockholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, - 2 - moratorium or other similar laws relating to creditors' rights generally and except that the availability of legal and equitable remedies, including specific performance, is subject to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing and the discretion of the court before which any proceeding therefor may be brought. 2.6 Non-Contravention. The execution, delivery and performance of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not, contravene, conflict with, or result in any violation of, breach of or default by (with or without notice or lapse of time, or both) the Stockholder under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or result in the creation of any Lien, security interest, charge or encumbrance upon any of the properties or assets of the Stockholder under, any provision of: (i) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to such Stockholder or (ii) any judgment, order, decree, statute, law, ordinance, injunction, rule or regulation applicable to such Stockholder or any of his properties or assets, other than, in the case of clauses (i) and (ii), any such conflicts, violations, defaults, rights, liens, security interests, charges or encumbrances that, individually or in the aggregate, would not materially impair the ability of such Stockholder to perform his obligations hereunder or prevent, limit or restrict the consummation of any of the transactions contemplated hereby. 3. Representations and Warranties of Parent and Merger Subsidiary. Parent and Merger Subsidiary, jointly and severally, represent and warrant to the Stockholder that: 3.1 Power and Authority. Each of Parent and Merger Subsidiary has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement and the consummation by Parent and Merger Subsidiary of the transactions contemplated hereby have been duly and validly authorized by each of Parent and Merger Subsidiary, and no other corporate action or proceedings on the part of Parent and Merger Subsidiary are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. 3.2 Validity. This Agreement has been duly and validly executed and delivered by each of Parent and Merger Subsidiary and constitutes the legal, valid and binding agreement of each of Parent and Merger Subsidiary, enforceable against each of them in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to creditors' rights generally and except that the availability of legal and equitable remedies, including specific performance, is subject to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing and the discretion of the court before which any proceeding therefor may be brought. 3.3 Non-Contravention. The execution, delivery and performance of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not, contravene, conflict with, or result in any violation of, breach of or default by (with or without notice or lapse of time, or both) either of Parent or Merger Subsidiary under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or result in the creation of any Lien, security interest, charge or encumbrance upon any of the - 3 - properties or assets of either Parent or Merger Subsidiary under, any provision of: (i) the charter or organizational documents of Parent or Merger Subsidiary, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to Parent or Merger Subsidiary or (iii) any judgment, order, decree, statute, Law, ordinance, injunction, rule or regulation applicable to Parent or Merger Subsidiary or any of their properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, violations, defaults, rights, liens, security interests, charges or encumbrances that, individually or in the aggregate, would not materially impair the ability of Parent or Merger Subsidiary to perform its obligations hereunder or prevent, limit or restrict the consummation of any of the transactions contemplated hereby. 4. Covenants of the Stockholder. 4.1 No Disposition or Encumbrance of Shares; No Proxies. The Stockholder represents, covenants and agrees that, except for the proxy granted in Section 5 and as contemplated by this Agreement: (a) he shall not, directly or indirectly, during the period commencing on the date hereof and continuing until this provision terminates pursuant to Section 7 hereof: offer for sale or agree to sell, transfer, tender, assign, pledge, hypothecate or otherwise dispose of or enter into any contract, option or other arrangement or understanding with respect to, or consent to, the offer for sale, sale, transfer, tender, pledge, hypothecation, encumbrance, assignment or other disposition of, or create any security interest, Lien, claim, pledge, option, right of first refusal, agreement, limitation on voting rights, charge or other encumbrance of any nature whatsoever with respect to any or all of the Shares or any interest thereon now legally and/or beneficially owned by the Stockholder, or that may hereafter be acquired by, the Stockholder; (b) he shall not grant any proxy, irrevocable proxy or power of attorney or deposit any Shares into a voting trust or enter into a voting agreement with respect to the voting of Shares (each a "Voting Proxy") to any person except to vote in favor of any of the Transactions contemplated by this Agreement or the Merger Agreement; (c) he has granted no Voting Proxy which is currently (or which will hereafter become) effective with respect to the Shares, and if any Voting Proxy has been granted to any person, such Voting Proxy is hereby revoked; (d) no Voting Proxy shall be given or written consent executed by the Stockholder after the date hereof with respect to the Shares (and if given or executed, shall not be effective) so long as this Agreement remains in effect; and (e) he shall not, and shall not offer to agree to, acquire any additional shares of Common Stock, or options, warrants or other rights to acquire shares of Common Stock (except upon exercise of Stock Options presently held by the Stockholder or pursuant to the Company's Employee Stock Purchase Plan), without the prior written consent of Parent or Merger Subsidiary. 5. Voting Agreement. The Stockholder agrees that, during the time this Agreement is in effect, at any meeting of the stockholders of the Company, however called, and in any action by written consent of the stockholders of the Company, he shall vote all of the Shares legally and/or beneficially owned by him (i) in favor of the Merger, the Merger Agreement and any of the transactions contemplated by the Merger Agreement (as amended from time to time, except for an amendment, modification or waiver that results in termination of the Agreement pursuant to Section 7 hereof); (ii) against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of the Company under the Merger Agreement; and (iii) against any action or agreement that would - 4 - materially impede, interfere with or attempt to discourage the Offer or the Merger. The Stockholder hereby irrevocably grants to and appoints Parent as the Stockholder's proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Stockholder, to vote, act by written consent or grant a consent, proxy or approval in respect of all Shares held by the Stockholder with respect to such vote or action by written consent, solely for the purposes of voting in favor of the Merger, the Merger Agreement (as amended from time to time, except for an amendment, modification or waiver that results in termination of the Agreement pursuant to Section 7 hereof); and any of the transactions contemplated by the Merger Agreement. The Stockholder hereby affirms that such proxy shall be irrevocable and shall be deemed coupled with an interest, in accordance with Section 422 of the Michigan Law (as defined in the Merger Agreement). This proxy shall lapse and be of no further force and effect from and after the date of this Agreement is terminated pursuant to Section 7 hereof. 6. Sophistication. The Stockholder acknowledges being a sophisticated investor who, together with his financial advisors and independent legal counsel, has undertaken such investigation as they have deemed necessary, including inquiries of the Company and review of the Merger Agreement and this Agreement, to enable the Stockholder to make an informed and intelligent decision with respect to the Merger Agreement and this Agreement and the transactions contemplated hereby. 7. Effectiveness; Termination; No Survival. This Agreement shall become effective upon its execution by the Stockholder, Parent and Merger Subsidiary and upon the execution of the Merger Agreement. This Agreement may be terminated as to the Stockholder at any time by mutual written consent of the Stockholder, Parent and Merger Subsidiary. This Agreement, and all the obligations of the Stockholder hereunder, including, without limitation, his obligations under Sections 1, 4 and 5 above, shall terminate, without any action by the parties hereto, upon the earliest to occur of (a) in the event of an amendment or modification to or waiver under the Merger Agreement (including, without limitation, the terms and conditions of the Offer) that is or would be adverse to the Stockholder, including without limitation any reduction of the Offer Price or the number of shares sought in the Offer, change of the form of consideration to be paid, or waiver of the Minimum Condition, upon such amendment, modification, waiver or reduction, (b) in the event the Merger Agreement is terminated by any party in accordance with its terms, upon such termination, (c) in the event the Merger is consummated, upon the Effective Time (as defined in the Merger Agreement) or (d) December 31, 2003. The representations and warranties of the parties set forth in Sections 2 and 3 hereof shall not survive the termination of this Agreement. Notwithstanding anything to the contrary herein, no termination of this Agreement shall relieve the parties of liability for breach hereof prior to such termination. 8. Further Assurances. Subject to the terms of this Agreement, from time to time, the Stockholder shall execute and deliver such additional documents and use his commercially reasonable best efforts to take, or cause to be taken, all such further actions, and to do or cause to be done, all things reasonably necessary, proper or advisable in the most expeditious manner possible, under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement. 9. Miscellaneous. - 5 - 9.1 Notices. Any notice request, instruction or other document to be given hereunder by any party to the other parties shall be in writing and delivered personally or sent by overnight courier, registered or certified mail, postage prepaid, or by facsimile transmission, as follows: if to Parent or Merger Subsidiary, to: Geac Computer Company Limited 11 Allstate Parkway, Suite 300 Markham, Ontario L3R 9T8 Facsimile: (905) 940-3722 Attention: Chief Executive Officer with a copy (which shall not constitute notice) to each of: Blake, Cassels & Graydon LLP Commerce Court West 199 Bay Street, Suite 2800 Toronto, Ontario M5L 1A9 Facsimile: (916) 863-2653 Attention: Craig Thorburn, Esq. and Foley Hoag LLP World Trade Center West 155 Seaport Boulevard Boston, Massachusetts 02210 Facsimile: (617) 832-1000 Attention: Robert W. Sweet, Jr., Esq. if to the Stockholder, at its address set forth on Exhibit A hereto: with a copy (which shall not constitute notice) to each of: Comshare Incorporated 555 Briarwood Circle Ann Arbor, MI 48108 Facsimile: (734) 205-0143 Attention: Chief Executive Officer and Dykema Gossett PLLC 400 Renaissance Center Detroit, MI 48243-1668 Facsimile: (313) 568-6915 Attention: Thomas S. Vaughn, Esq. - 6 - 9.2 Waivers and Amendment. Any provision of this Agreement may be waived at any time by the party which is entitled to the benefits thereof. This Agreement may not be amended, changed, supplemented or otherwise modified except upon the execution and delivery of a written agreement executed by all of the parties hereto. 9.3 Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement, and supersede all other prior and contemporaneous agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof. This Agreement is not intended to confer upon any other person any rights or remedies hereunder. 9.4 Successors and Assigns. This Agreement shall not be assigned by any party hereto, except that Parent or Merger Subsidiary may assign its rights under this Agreement to another direct or indirect wholly-owned subsidiary of Parent, but such assignment shall not relieve Parent or Merger Subsidiary of its respective obligations hereunder. This Agreement shall be binding upon, inure solely to the benefit of and be enforceable by and against the parties hereto and their successors (including heirs, administrators and executors of individuals) and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person, any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. 9.5 Remedies. Each of the parties hereto acknowledges and agrees that each other party would be irreparably damaged in the event any of the provisions of this Agreement were not performed by the other in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each party shall be entitled to an injunction or injunctions to redress any breaches of this Agreement and to specifically enforce the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having jurisdiction, in addition to any other remedy to which such party may be entitled at law or in equity. 9.6 Expenses. Each of the parties shall pay its own expenses in connection with the negotiation, execution and performance of this Agreement. 9.7 Counterparts. This Agreement and any amendments hereto may be executed in two or more counterparts, each of which shall be considered to be an original, both of which together shall constitute the same instrument. 9.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to the principles of conflicts of laws thereof. 9.9 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, 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. 9.10 Effect of Headings. The section headings herein are for convenience only and shall not affect the meaning or interpretation of this Agreement. - 7 - 9.11 Stockholder Capacity. Notwithstanding anything herein to the contrary, the Stockholder makes no agreement or understanding herein in his capacity as a director or officer of the Company or any subsidiary of the Company, and the agreements set forth herein shall in no way restrict the Stockholder in the exercise of his fiduciary duties as a director or officer of the Company or any subsidiary of the Company or limit or affect any actions taken by the Stockholder in his capacity as an officer or director of the Company or any subsidiary of the Company. The Stockholder has executed this Agreement solely in his capacity as the record and/or beneficial holder of Shares. 9.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute one agreement. - 8 - IN WITNESS WHEREOF, the parties have executed this Agreement to take effect as of the date set forth above. GEAC COMPUTER CORPORATION LIMITED By: /s/ Paul D. Birch ------------------------- Name: Paul D. Birch Title: President and Chief Executive CONDUCTOR ACQUISITION CORP. By: /s/ Paul D. Birch ------------------------- Name: Paul D. Birch Title: President and Chief Executive STOCKHOLDER By: /s/ Dennis G. Ganster ------------------------- Dennis G. Ganster - 9 - EX-99.(D)(5) 14 b47043gcexv99wxdyx5y.txt VOTING AND TENDER AGREEMENT Exhibit (d)(5) VOTING AND TENDER AGREEMENT This Voting and Tender Agreement (this "Agreement"), dated as of June 22 , 2003, is entered into by and among Geac Computer Corporation Limited, a corporation governed by the Canada Business Corporations Act ("Parent"), Conductor Acquisition Corp., a Michigan corporation and an indirect wholly-owned subsidiary of Parent ("Merger Subsidiary"), and each of Codec Systems Limited and Anthony Stafford (each a "Stockholder" and, collectively, the "Stockholders"). W I T N E S S E T H: WHEREAS, Parent, Merger Subsidiary and Comshare, Incorporated, a Michigan corporation ("Company"), are entering into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger Agreement") pursuant to which Merger Subsidiary has agreed to make a tender offer (the "Offer") for all outstanding shares of common stock, par value $1.00 per share, of the Company (the "Common Stock"), together with any associated Rights, at a price per share of $4.60, net to the seller in cash, without interest (such price, or such higher price per share of Common Stock as may be paid in the Offer, being referred to herein as the "Offer Price"), to be followed by a merger (the "Merger") of Merger Subsidiary with and into the Company (all capitalized terms not otherwise defined herein shall have the meanings given to them in the Merger Agreement); WHEREAS, the Stockholders collectively hold 1,441,882 shares of the Common Stock (the "Shares;" provided that, for purposes of this Agreement, the term "Shares" shall include any associated Rights); WHEREAS, as a condition to the willingness of Parent and Merger Subsidiary to enter into the Merger Agreement, each of Parent and Merger Subsidiary has required that the Stockholders agree, and in order to induce Parent and Merger Subsidiary to enter into the Merger Agreement, each Stockholder has agreed, to enter into this Agreement simultaneously with the execution and delivery by the parties thereto of the Merger Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the adequacy of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows: 1. Tender by Stockholder. 1.1 Tender of Shares. Subject to Section 6 below, the Stockholders severally agree to tender and sell to Merger Subsidiary, not later than one (1) business day prior to the initial expiration date of the Offer, without regard to any extension thereof (the "Initial Expiration Date"), all the Shares (and any shares of Common Stock, and any associated Rights, acquired by any Stockholder Party subsequent to the date hereof), pursuant to and in accordance with the Offer. The Stockholders, jointly and severally, agree that they shall deliver to the depositary for the Offer, not later than one (1) business day before the Initial Expiration Date of the Offer, either a letter of transmittal together with the certificates for the Shares, if available, or a "Notice of Guaranteed Delivery," if the Shares are not available. After such tender the Stockholders shall not withdraw any such Shares until this Agreement is terminated in accordance with its terms. 1.2 Adjustments Upon Changes in Capitalization. In the event of any change in the number of issued and outstanding shares of Common Stock by reason of any stock dividend, subdivision, merger, recapitalization, combination, conversion or exchange of shares, or any other change in the corporate or capital structure of the Company (including, without limitation, the declaration or payment of an extraordinary dividend of cash or securities), the term "Shares" shall be deemed to refer to and include the Shares as well as all such stock dividends and distributions and any shares into which or for which any or all of the Shares may be changed or exchanged. 2. Representations and Warranties of the Stockholder. The Stockholders severally represent and warrant to Parent and Merger Subsidiary (in each case, qualified by and subject to the terms, conditions and limitations set forth in the Standstill Agreement dated August 15, 2002 between the Company and the Stockholders (the "Standstill Agreement")) that: 2.1 Power and Authority. Each Stockholder has all necessary power and authority to enter into and perform all of its obligations under this Agreement and to sell, assign, transfer and deliver to Parent and/or Merger Subsidiary, pursuant to the terms and subject to the conditions of this Agreement and the Merger Agreement, the Shares that it legally and/or beneficially owns. This Agreement and each Stockholder's consummation of the transactions contemplated hereby have been duly and validly authorized, executed and delivered by such Stockholder, and no other corporate action or proceedings on the part of any Stockholder are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. 2.2 No Other Rights. Except for this Agreement, there are no outstanding options, warrants or rights to purchase or acquire any of the Shares. 2.3 Only Shares. The Stockholders are the beneficial owners of all of the Shares. On the date hereof, the Shares constitute all of the shares of Common Stock of the Company owned of record or beneficially owned by the Stockholders other than Stock Options (as defined in the Merger Agreement). The Stockholders have sole voting power and sole power to issue instructions with respect to the matters set forth in Section 1 hereof, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Shares, with no limitations, qualifications or restrictions on such rights (subject to applicable securities laws). There is no beneficiary or holder of a voting trust certificate or other interest of any trust of which any Stockholder is settlor or trustee or any other person whose consent is required for the execution, delivery and performance of this Agreement or the consummation by the Stockholders of the transactions contemplated hereby. 2.4 Title. Each Stockholder is the record and beneficial owner of all of its Shares held by such Stockholder and has, and upon the closing of the Offer, Merger Subsidiary shall receive, good and marketable title to such Shares, free and clear of all liens, claims, encumbrances and security interests of any nature whatsoever. - 2 - 2.5 Validity. This Agreement has been duly and validly executed and delivered by each Stockholder and constitutes the legal, valid and binding agreement of such Stockholder, enforceable against such Stockholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to creditors' rights generally and except that the availability of legal and equitable remedies, including specific performance, is subject to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing and the discretion of the court before which any proceeding therefor may be brought. 2.6 Non-Contravention. The execution, delivery and performance of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not, contravene, conflict with, or result in any violation of, breach of or default by (with or without notice or lapse of time, or both) any Stockholder under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or result in the creation of any Lien, security interest, charge or encumbrance upon any of the properties or assets of any Stockholder under, any provision of: (i) the charter or organizational documents of such Stockholder, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to such Stockholder or (iii) any judgment, order, decree, statute, law, ordinance, injunction, rule or regulation applicable to such Stockholder or any of its properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, violations, defaults, rights, liens, security interests, charges or encumbrances that, individually or in the aggregate, would not materially impair the ability of such Stockholder to perform its obligations hereunder or prevent, limit or restrict the consummation of any of the transactions contemplated hereby. 3. Representations and Warranties of Parent and Merger Subsidiary. Parent and Merger Subsidiary, jointly and severally, represent and warrant to each Stockholder that: 3.1 Power and Authority. Each of Parent and Merger Subsidiary has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement and the consummation by Parent and Merger Subsidiary of the transactions contemplated hereby have been duly and validly authorized by each of Parent and Merger Subsidiary, and no other corporate action or proceedings on the part of Parent and Merger Subsidiary are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. 3.2 Validity. This Agreement has been duly and validly executed and delivered by each of Parent and Merger Subsidiary and constitutes the legal, valid and binding agreement of each of Parent and Merger Subsidiary, enforceable against each of them in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to creditors' rights generally and except that the availability of legal and equitable remedies, including specific performance, is subject to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing and the discretion of the court before which any proceeding therefor may be brought. - 3 - 3.3 Non-Contravention. The execution, delivery and performance of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the provisions hereof will not, contravene, conflict with, or result in any violation of, breach of or default by (with or without notice or lapse of time, or both) either of Parent or Merger Subsidiary under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or result in the creation of any Lien, security interest, charge or encumbrance upon any of the properties or assets of either Parent or Merger Subsidiary under, any provision of: (i) the charter or organizational documents of Parent or Merger Subsidiary, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license applicable to Parent or Merger Subsidiary or (iii) any judgment, order, decree, statute, Law, ordinance, injunction, rule or regulation applicable to Parent or Merger Subsidiary or any of their properties or assets, other than, in the case of clauses (ii) and (iii), any such conflicts, violations, defaults, rights, liens, security interests, charges or encumbrances that, individually or in the aggregate, would not materially impair the ability of Parent or Merger Subsidiary to perform its obligations hereunder or prevent, limit or restrict the consummation of any of the transactions contemplated hereby. 4. Covenants of the Stockholder. 4.1 No Disposition or Encumbrance of Shares; No Proxies. The Stockholders severally represent, covenant and agree that, except for the proxy granted in Section 5 and as contemplated by this Agreement or as required pursuant to the terms of the Standstill Agreement: (a) they shall not, directly or indirectly, during the period commencing on the date hereof and continuing until this provision terminates pursuant to Section 7 hereof: offer for sale or agree to sell, transfer, tender, assign, pledge, hypothecate or otherwise dispose of or enter into any contract, option or other arrangement or understanding with respect to, or consent to, the offer for sale, sale, transfer, tender, assign, pledge, hypothecation, encumbrance, assignment or other disposition of, or create any security interest, Lien, claim, pledge, option, right of first refusal, agreement, limitation on voting rights, charge or other encumbrance of any nature whatsoever with respect to any or all of the Shares or any interest thereon now legally and/or beneficially owned by any Stockholder, or that may hereafter be acquired by, any Stockholder; (b) they shall not grant any proxy, irrevocable proxy or power of attorney or deposit any Shares into a voting trust or enter into a voting agreement with respect to the voting of Shares (each a "Voting Proxy") to any person except to vote in favor of any of the Transactions contemplated by this Agreement or the Merger Agreement; (c) they have granted no Voting Proxy which is currently (or which will hereafter become) effective with respect to the Shares, and if any Voting Proxy has been granted to any person, such Voting Proxy is hereby revoked; (d) no Voting Proxy shall be given or written consent executed by any Stockholder after the date hereof with respect to the Shares (and if given or executed, shall not be effective) so long as this Agreement remains in effect; and (e) they shall not, and shall not offer to agree to, acquire any additional shares of Common Stock, or options, warrants or other rights to acquire shares of Common Stock (except upon exercise of Stock Options presently held by any Stockholder), without the prior written consent of Parent or Merger Subsidiary. 5. Voting Agreement. Each Stockholder severally agrees that, during the time this Agreement is in effect, at any meeting of the stockholders of the Company, however called, and in any action by written consent of the stockholders of the Company, it shall vote all of the - 4 - Shares legally and/or beneficially owned by it (i) in favor of the Merger, the Merger Agreement (as amended from time to time, except for an amendment, modification or waiver that results in termination of this Agreement pursuant to Section 7 hereof) and any of the transactions contemplated by the Merger Agreement; (ii) against any action or agreement that would result in a breach in any material respect of any covenant, representation or warranty or any other obligation of the Company under the Merger Agreement; and (iii) against any action or agreement that would materially impede, interfere with or attempt to discourage the Offer or the Merger. Each Stockholder hereby irrevocably grants to and appoints Parent as the 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, act by written consent or grant a consent, proxy or approval in respect of all Shares held by the Stockholder with respect to such vote or action by written consent, solely for the purposes of voting in favor of the Merger, the Merger Agreement (as amended from time to time, except for an amendment, modification or waiver that results in termination of this Agreement pursuant to Section 7 hereof) and any of the transactions contemplated by the Merger Agreement. Each Stockholder hereby affirms that such proxy shall be irrevocable and shall be deemed coupled with an interest, in accordance with Section 422 of the Michigan Law. This proxy shall lapse and be of no further force and effect from and after the date of this Agreement is terminated pursuant to Section 7 hereof. 6. Sophistication. The Stockholders acknowledge being sophisticated investors who, together with their financial advisors and independent legal counsel, have undertaken such investigation as they have deemed necessary, including inquires of the Company and review of the Merger Agreement and this Agreement, to enable the Stockholders to make an informed and intelligent decision with respect to the Merger Agreement and this Agreement and the transactions contemplated hereby. 7. Effectiveness; Termination; No Survival. This Agreement shall become effective upon its execution by each Stockholder, Parent and Merger Subsidiary and upon the execution of the Merger Agreement. This Agreement may be terminated as to any Stockholder at any time by mutual written consent of such Stockholder, Parent and Merger Subsidiary. This Agreement, and all the obligations of Stockholders hereunder, including, without limitation, their obligations under Sections 1, 4 and 5 above, shall terminate, without any action by the parties hereto, upon the earliest to occur of (a) in the event of an amendment or modification to or waiver under the Merger Agreement (including, without limitation, the terms and conditions of the Offer) that is or would be adverse to any Stockholder, including without limitation any reduction of the Offer Price or the number of shares sought in the Offer, change of the form of consideration to be paid, or waiver of the Minimum Condition, upon such amendment, modification, waiver or reduction, (b) in the event the Merger Agreement is terminated by any party in accordance with its terms, upon such termination, (c) in the event the Merger is consummated, upon the Effective Time (as defined in the Merger Agreement) or (d) December 31, 2003. The representations and warranties of the parties set forth in Sections 2 and 3 hereof shall not survive the termination of this Agreement. Notwithstanding anything to the contrary herein, no termination of this Agreement shall relieve the parties of liability for breach hereof prior to such termination. - 5 - 8. Further Assurances. Subject to the terms of this Agreement, from time to time, each Stockholder shall execute and deliver such additional documents and use its commercially reasonable efforts to take, or cause to be taken, all such further actions, and to do or cause to be done, all things reasonably necessary, proper or advisable in the most expeditious manner possible, under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement. 9. Miscellaneous. 9.1 Notices. Any notice request, instruction or other document to be given hereunder by any party to the other parties shall be in writing and delivered personally or sent by overnight courier, registered or certified mail, postage prepaid, or by facsimile transmission, as follows: if to Parent or Merger Subsidiary, to: Geac Computer Company Limited 11 Allstate Parkway, Suite 300 Markham, Ontario L3R 9T8 Facsimile: (905) 940-3722 Attention: Chief Executive Officer with a copy (which shall not constitute notice) to each of: Blake, Cassels & Graydon LLP Commerce Court West 199 Bay Street, Suite 2800 Toronto, Ontario M5L 1A9 Facsimile: (916) 863-2653 Attention: Craig Thorburn, Esq. and Foley Hoag LLP World Trade Center West 155 Seaport Boulevard Boston, Massachusetts 02210 Facsimile: (617) 832-1000 Attention: Robert W. Sweet, Jr., Esq. if to any Stockholder, at its address set forth on Exhibit A hereto: with a copy (which shall not constitute notice) to each of: Comshare Incorporated 555 Briarwood Circle Ann Arbor, MI 48108 - 6 - Facsimile: (734) 205-0143 Attention: Chief Executive Officer and Dykema Gossett PLLC 400 Renaissance Center Detroit, MI 48243-1668 Facsimile: (313) 568-6915 Attention: Thomas S. Vaughn, Esq. and Pillsbury Winthrop LLP One Battery Park Plaza New York, New York 10004 Facsimile: (212) 858-1500 Attention: Ronald A. Fleming, Jr. 9.2 Waivers and Amendment. Any provision of this Agreement may be waived at any time by the party which is entitled to the benefits thereof. This Agreement may not be amended, changed, supplemented or otherwise modified except upon the execution and delivery of a written agreement executed by all of the parties hereto. 9.3 Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement, and supersede all other prior and contemporaneous agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof. This Agreement is not intended to confer upon any other person any rights or remedies hereunder. 9.4 Successors and Assigns. This Agreement shall not be assigned by any party hereto, except that Parent or Merger Subsidiary may assign its rights under this Agreement to another direct or indirect wholly-owned subsidiary of Parent, but such assignment shall not relieve Parent or Merger Subsidiary of its respective obligations hereunder. This Agreement shall be binding upon, inure solely to the benefit of and be enforceable by and against the parties hereto and their successors (including heirs, administrators and executors of individuals) and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person, any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. Without limiting the foregoing, no direct or indirect holder of any equity interests or securities of the Stockholders (whether such holder is a limited or general partner, member, stockholder or otherwise, or any affiliate of any party hereto, nor any director, officer, employee, representative, agent or other controlling person of each of the parties hereto and their respective affiliates) shall have any liability or obligation arising under this Agreement or the transactions contemplated hereby. 9.5 Remedies. Each of the parties hereto acknowledges and agrees that each other party would be irreparably damaged in the event any of the provisions of this Agreement were - 7 - not performed by the other in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each party shall be entitled to an injunction or injunctions to redress any breaches of this Agreement and to specifically enforce the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having jurisdiction, in addition to any other remedy to which such party may be entitled at law or in equity. 9.6 Expenses. Each of the parties shall pay its own expenses in connection with the negotiation, execution and performance of this Agreement. 9.7 Counterparts. This Agreement and any amendments hereto may be executed in two or more counterparts, each of which shall be considered to be an original, both of which together shall constitute the same instrument. 9.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to the principles of conflicts of laws thereof. 9.9 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, 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. 9.10 Effect of Headings. The section headings herein are for convenience only and shall not affect the meaning or interpretation of this Agreement. 9.11 Stockholder Capacity. Notwithstanding anything herein to the contrary, no person who is a director, officer or employee of a Stockholder who is, or becomes during the term hereof, a director of the Company makes any agreement or understanding herein in his or her capacity as such director, and the agreements set forth herein shall in no way restrict any director in the exercise of his or her fiduciary duties as a director of the Company. Each Stockholder has executed this Agreement solely in its capacity as the record and/or beneficial holder of Shares. 9.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute one agreement. - 8 - IN WITNESS WHEREOF, the parties have executed this Agreement to take effect as of the date set forth above. GEAC COMPUTER CORPORATION LIMITED By: /s/ Paul D. Birch ------------------------- Name: Paul D. Birch Title: President and Chief Executive Officer CONDUCTOR ACQUISITION CORP. By: /s/ Paul D. Birch ------------------------- Name: Paul D. Birch Title: President and Chief Executive Officer CODEC SYSTEMS LIMITED By: /s/ Anthony Stafford ------------------------- Name: A.G. Stafford Title: Chairman ANTHONY STAFFORD /s/ Anthony Stafford - ----------------------------- - 9 - EX-99.(D)(6) 15 b47043gcexv99wxdyx6y.txt BRIAN HARTLEN EMPLOYMENT AGREEEMENT Exhibit (d)(6) June 19, 2003 Mr. Brian Hartlen [address] Dear Brian: This letter will confirm the terms of your continuing employment by [Conductor] following the consummation of the tender offer (the "Offer") described in the Agreement and Plan of Merger dated June __, 2003 by and among [Conductor,] [Parent] and [Merger Subsidiary] (the "Merger Agreement"), and our understanding concerning certain matters relating to the Change in Control Severance Agreement dated as of February 9, 2001 between you and [Conductor] (the "Change in Control Agreement"). This letter agreement will take effect simultaneously with the acceptance for payment by [Merger Subsidiary] of any shares of common stock of [Conductor] pursuant to the Offer (the "Effective Date"). 1. Responsibilities and Reporting Obligations You will be employed until December 31, 2003 as Vice President, Marketing of Conductor, reporting to Jay Sherry or as otherwise directed by the Board of Directors of Conductor, and thereafter as Vice President, Marketing of [GCI] ("GCI"), a wholly-owned subsidiary of Parent, reporting to Jay Sherry, or as otherwise directed by the Board of Directors of GCI. Use in this letter agreement of the term "Company" shall be deemed to refer to Conductor as the surviving corporation in the merger, or GCI, whichever is then your employer. You shall serve the Company faithfully and to the best of your ability, and shall throughout the term of your employment devote your full working time and attention to the business and affairs of the Company and shall use your best efforts to maintain and advance its business. Nothing in this letter shall be deemed to prohibit your participation in community affairs or monitoring your personal investments, to the extent that those activities do not interfere with your performance of your duties under this letter agreement. 2. Remuneration 2.1 Base Salary. You will receive a base salary at the rate of US $175,000 per annum, subject to annual review consistent with Parent's company-wide review procedure. Your base salary will be paid in semi-monthly installments subject to all proper withholding taxes and any deductions attributable to your required or directed contributions to the benefits provided by the Company, including those referred to in Section 2.3 below. 2.2 Bonus. You will be eligible to participate in the Parent bonus plan. Your annual on-target bonus amount will be US $81,340 based on performance targets. Performance targets for the partial fiscal year beginning on the Effective Date ending April 30, 2004 will be based on a combination of the financial performance of the Conductor business and personal goals. We will adjust the performance targets and goals annually to reflect the evolution of the business. The targeted bonus amount will be prorated for the first, partial fiscal year. We will pay any bonus when the relevant information for the fiscal year to which a bonus relates is available, which we expect will occur during the July or August after each fiscal year. To receive a bonus, you will need to continue to be employed by the Company on the date bonuses are payable. 2.3 Group Benefits. As soon as is administratively practical after the merger, you will be entitled to receive and participate in all of the Company's standard employee benefit plans and programs, assuming you are in active employment status on the Effective Date. Those plans will be the same as the benefit plans and programs in effect, from time to time, at GCI. All such benefits will be furnished to you by one or more providers in the United States. To the extent permitted under those plans, for purposes of eligibility and vesting, your service as an employee with Conductor before the merger will be credited to the same extent as though that service had been with the Company. 2.4 Vacation. During each full year of your employment with the Company, you will be entitled to a total of 4 weeks of paid vacation to be taken at mutually agreeable times. Any unused vacation, holiday or sick days carried over from a prior year to which you were entitled at the Effective Date under Conductor's normal employment policies may be carried over by you at the Effective Date. Your entitlement to carry forward any unused vacation, holiday or sick days which accrue after the Effective Date shall be governed by GCI's normal employment policies. 3. Stock Options 3.1 Following the closing of the merger, Parent will grant you options to purchase 50,000 common shares of Parent. Those options will have an exercise price equal to the greater of (a) the market price of the Parent common shares at the close of business on the date of grant or (b) the average price of the common shares of Parent on the five most recent trading days, each as reported by the Toronto Stock Exchange, and will vest over a 4-year period. 3.2 The grant of these options is subject to formal action by the Board of Directors of Parent and approval of the Toronto Stock Exchange. 4. Nature of Employment Arrangements Our employment relationship will be entirely at will. That means that you can resign with or without reason, and the Company can terminate you, with or without reason, subject to, and with the consequences described in, Sections 4, 5 and 6 below. 4.1 Voluntary Resignation. If you wish to resign voluntarily, you must provide the Company with at least 30 days' prior written notice. The Company may elect to require you to remain in its employ for all or part of the notice period, or may require that you resign immediately. Upon the effective date of your resignation, the Company shall pay you all unpaid salary and any unpaid bonus, provide that the conditions for payment of the bonus have been fully met, together with any amounts due under sections 5 or 6. If the Company elects that your resignation be effective before the end of that 30-day period, it will also pay your salary for the balance of that 30-day period. Upon the effective date of your resignation, the vesting of - 2 - your stock options shall cease and you will have no entitlement to pay or benefits beyond the date of resignation, other than any benefit, such as COBRA, that is required by law. 4.2 Termination for Cause. If you engage in any conduct constituting Cause (defined below), the Company may terminate your employment by providing you with written notice of termination. Your employment and your rights under this Letter shall terminate on the day the Company gives you that notice. Upon termination for Cause, you shall be paid all unpaid salary owing to you, the vesting of your stock options shall cease and your options shall terminate forthwith. You will have no entitlement to pay or benefits beyond the date of termination, other than any benefit, such as COBRA, that is required by law. For purposes of this Section 4.2, "Cause" means (a) your material failure to substantially perform your duties with the Company (including due to disability or death) that continues for more than 30 days after a written demand for substantial performance is delivered to you by Jay Sherry or his designee or successor, which specifically identifies the manner in which the Company believes that you have not substantially performed your duties, (b) willful conduct by you which is or could reasonably be expected to be materially injurious to Conductor or any of its affiliates, monetarily or otherwise, (c) your conviction of any crime, other than routine traffic violations and other minor misdemeanors, or (d) your engaging in any business which competes with any business of the Company or any of its affiliates. 4.3 Termination for Any Reason Other Than Cause. The Company shall have the right to terminate your employment at any time other than for Cause. In the event of that type of termination occurring after the second anniversary of the Effective Date, you shall be entitled to receive continued base salary at the rate you were receiving base salary when you were terminated for a number of weeks (or fractions thereof) equivalent to the number of years (or fractions thereof) during which you were employed on a full-time basis by the Company, including service at Conductor prior to the Effective Date and service at the Company after the Effective Date. You will also receive any unpaid bonus, provided that the conditions for the payment of the bonus have been fully met. The Company will also maintain all of your benefits through the last day of the calendar month in which termination of your employment occurred. You will also be paid, credited or reimbursed, as the case may be, for all unpaid salary (including credit for any vacation earned but not taken), expenses, benefits and other amounts payable to you or earned by you up to the termination date. The entitlements described in this paragraph are in lieu of any severance or similar entitlements conferred, from time to time, by Conductor's severance policies that applied or apply from time to time to other employees. If any part of this paragraph conflicts with section 5.2, section 5.2 shall govern. 5. Existing Change in Control Agreement. 5.1 Change in Control. Parent and Merger Subsidiary acknowledge and agree that upon the Effective Date, a "Change in Control" will have occurred, and "Good Reason" will exist for your termination of your employment by Conductor, as each such term is defined in your existing Change in Control Agreement. 5.2 Effect of Termination of Employment Prior to Second Anniversary of Effective Date. In the event of termination, at any time prior to the second anniversary of the - 3 - Effective Date, of your employment with the Company, whether by you or by the Company, the provisions of your existing Change in Control Agreement with regard to the payment of severance benefits shall govern. 5.3 Survival of Change in Control Agreement; Termination. Your existing Change in Control Agreement shall survive the execution and delivery of this letter agreement and be given continued effect in accordance with its terms; provided, however, that the Change in Control Agreement shall terminate on the second anniversary of the Effective Date. In the event of any termination of your employment on or after the second anniversary of the Effective Date, the provisions of Section 6 below shall govern. 6. Termination of Employment On or After the Second Anniversary of the Effective Date. 6.1 Definitions. For purposes of this Section 6, the following terms shall have the meanings set forth below: (a) "Change in Control" means the occurrence of one or more of the following events: (i) The sale, lease or transfer, in one or a series of related transactions, of all or substantially all of Parent's assets considered on a consolidated basis to any person or company or combination of persons or companies; (ii) The adoption of a plan relating to the liquidation or dissolution of Parent; (iii) The acquisition by any person or company or combination of persons or companies acting jointly or in concert of a direct or indirect interest in more than 50 percent of the ownership of Parent or the voting power of the voting shares of Parent by way of a purchase, merger or consolidation or otherwise (other than a creation of a holding company that does not involve a change in the beneficial ownership of Parent as a result of such transaction); (iv) The amalgamation, merger or consolidation of Parent with or into another corporation or the amalgamation or merger of another corporation into Parent with the effect that immediately after such transaction the shareholders of Parent immediately prior to such transaction hold less than 50 percent of the total voting power of all securities generally entitled to vote in the election of directors, manager or trustees of the person surviving such amalgamation, merger or consolidation; or (v) During any period of two consecutive years, individuals who at the beginning of such period constitute the entire Board of Directors of Parent shall cease for any reason to constitute a majority thereof unless the election, or the nomination for election of Parent's stockholders, of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period or who, themselves, were approved during such period by the requisite two-thirds vote specified above. - 4 - (b) "Change Affecting Your Employment" means any of the following circumstances which are not accepted by you during the 90-day period immediately following the date on which you become aware of such circumstances: (i) Any change to your employment conditions with the Company which would significantly reduce the nature or status of your responsibilities; (ii) A reduction by the Company in your annual compensation as of the date of the Change in Control; (iii) The failure by the Company to continue in effect for your benefit any prerequisites or participation in any employee benefit plan to which other employees of the Company are entitled, to the same extent to which any other employees enjoy such benefits; (iv) Any other change which would constitute "constructive dismissal" under applicable law; or (v) Any change in the location of the principal office of the Company which causes you to substantially increase your travel time or relocate. (c) "Termination Payment" shall mean an amount equal to (a) your base salary received or receivable by you in respect of the immediately preceding year plus (b) either (i) the average of the bonuses paid or payable to you with respect to each of the three preceding years or (ii) if you have been employed by the Company (including any service prior to the Effective Date), for fewer than three years at the time of your termination, the average of the bonuses paid or payable to you with respect to each of the years in which you have worked for the Company. Subject to the agreement of the carrier or carriers, the Company will also maintain all of your benefits of employment for a period of 12 months from the date of termination. You will be paid, credited or reimbursed, as the case may be, for all unpaid salary (including credit for any vacation earned but not taken), all unpaid bonuses, all accrued bonuses (such bonuses to be determined on a proportionate basis having regard to the proportion of the fiscal year which was elapsed), expenses, benefits and other amounts payable to you or earned by you up to the termination date. For purposes below, all amounts payable to you shall be increased to appropriately reflect the tax payment and gross provisions set forth above with respect to salary, bonus and benefits. 6.2 Termination of Employment After a Change in Control. If, on or after the second anniversary of the Effective Date and within 12 months following a Change in Control (as defined in Section 6.1(a) above, and excluding any change in control resulting from the Offer or the merger described in the Merger Agreement): (a) your employment shall be terminated, other than for Cause, by the Company; or (b) if within such 12-month period following a Change in Control there shall occur a Change Effecting Your Employment, and you shall within the 90-day period immediately following the date on which you became aware of the circumstances constituting - 5 - such Change Affecting Your Employment, resign from your employment by the Company, in either such event you will be entitled to receive the following: (i) On the effective date of your resignation, the Company will pay you the Termination Payment, calculated as though such effective date was the effective date of the termination of your employment by the Company for a reason other than Cause; (ii) Subject to the agreement of the carrier or carriers, the Company will maintain all benefits of employment for a period of 23 months from the date of termination; (iii) In such event, you will also be paid, credited or reimbursed, as the case may be, for all unpaid salary (including credit for any vacation earned but not taken all unpaid bonuses, all accrued bonuses (such bonuses to be determined on a proportionate basis having regards to the proportion of the fiscal year which has elapsed), expenses, benefits and other amounts payable to you or earned by you up to the date of resignation. Also, in such event, all unvested stock options previously granted shall become fully vested; and (iv) In no case will you be entitled to both a payment for termination for any reason other than Cause and for a termination in the event of a Change in Control and Change Affecting Your Employment. 7. General. 7.1 Property of the Company. All equipment, material, written correspondence, memoranda, communications, reports, and other documents pertaining to the business of the Company or its affiliates used or produced by you in connection with your employment, or in your possession or under your control, shall at all times remain the property of the Company and its affiliates. You shall return all property of the Company and its affiliates in your possession or under your control in good condition within one week of a request by the Company, or within one week of the termination of your employment. 7.2 Non-Disclosure and Use. You agree to be bound by the terms of the General Confidentiality Agreement attached as Schedule "A." 7.3 Resignation as Officer and Director. You agree that after the Effective Date, upon any notice of your resignation from the Company or notice by the Company of the termination of your employment, you shall forthwith tender your resignation from any and all offices and directorships then held by you at the Company or any of its affiliates, such resignation to be effective immediately, or at such other date as may be mutually agreed, and you shall not be entitled to receive any severance payment or compensation for loss of office or directorship, or otherwise, by reason of the resignation, other than as provided elsewhere in this Agreement. If you fail to resign as set out above, you will be deemed to have resigned from all such offices and directorships, and the Company and its affiliates are hereby authorized by you to appoint any person in your name on your behalf to sign any documents or do any things necessary or required to give effect to such resignation. - 6 - 7.4 Successors. If, after the Effective Date, you are transferred to an affiliate of the Company, this Letter will bind and inure to the benefit of that affiliate and continue to bind you and inure to your benefit. 7.5 Choice of Law. This Letter shall be construed in accordance with the laws of the State of Michigan. 7.6 Submission of Arbitration. You understand and agree that, except for any claims or actions brought under the Change in Control Agreement, any dispute or controversy in connection with this Agreement, including its interpretation, will be conclusively settled by submission to arbitration (the "Arbitration") in accordance with the rules of arbitration of The Commonwealth of Massachusetts as amended from time to time. The Arbitration will be conducted before a single arbitrator mutually agreeable to the parties (the "Arbitrator"). Each party will be responsible for their own legal costs incurred at the Arbitration. The cost of the Arbitrator will be shared subject to the Company's agreement to reimburse you for your share of the Arbitrator's costs in the event you substantially prevail at the Arbitration. 7.7 Notices. Any notice required or permitted hereunder shall be deemed to be delivered on the date of actual delivery, if delivered personally, or on the date four days after mailing, if delivered by registered mail. In the case of postal disruption, delivery shall be made by way of personal delivery. The Company's address, for this purpose, is [GCI], 66 Perimeter Center East, Atlanta, GA 30346, Attention: Cindy Davis, unless and until the Company notifies you of a different address. 7.8 Entire Agreement. This letter agreement (including Exhibit A), together with the additional documents that govern your stock option or options described in Section 3, and the Change in Control Agreement, as modified by Section 5.3, contain the entire agreement between or among us, with respect to their subject matter. Accordingly, upon the Effective Date, any and all oral or other written representations, agreement, arrangements and understandings between or among us will automatically terminate without the necessity for any further action by any person or entity. If these arrangements are acceptable to you, we ask that you indicate your acceptance of this Letter by signing the enclosed copy of this Letter and returning it to [GCI], 66 Perimeter Center East, Atlanta, GA 30346, Attention: Cindy Davis. Sincerely, CONDUCTOR, INC. By: /s/ Brian Jarzynski _________________________________________ SVP & CFO _________________________________________ [GCI] By: /s/ Cynthia E. Davis _________________________________________ - 7 - VP HR _________________________________________ [PARENT] By: /s/ John L. Sherry, III _________________________________________ Senior VP, Marketing _________________________________________ ACCEPTED: /s/ Brian Hartlen _________________________________________ Brian Hartlen - 8 - Schedule "A" EMPLOYEE CONFIDENTIALITY AGREEMENT Brian Hartlen (Employee) [PARENT] or a subsidiary or affiliate of that company desires to retain my services as set out in a letter of employment. References in this Agreement to "Parent" mean [Parent] and all of its present and future subsidiaries and affiliates. "Parent" also includes [Conductor] and its subsidiaries, including before they became Parent subsidiaries. References to "Employer" mean whatever specific Parent entity employs me from time to time. Parent desires to protect its business, including its confidential information and proprietary rights. ACCORDINGLY, in consideration of my employment by Employer, I agree as follows: 1. DEFINITIONS (a) "CONFIDENTIAL INFORMATION" means information disclosed to me or acquired by me as a result of my employment with Parent and includes, but is not limited to, Proprietary Rights, information relating to Parent's products or development of new or improved products, marketing strategies, sales and business plans, the names and information about Parent's past, present and prospective customers, suppliers and clients, trade secrets and all other information which is not in the public domain and which can reasonably be considered confidential, whether or not explicitly identified as such. (b) "PROPRIETARY RIGHTS" means all rights in and to all the computer programs, systems documentation, drawings, schematics, hardware and other materials developed by Parent or made available to Parent by licensor or others in accordance with the rights of such licensors or others. For the purposes of this Agreement, Proprietary Rights shall include Confidential Information and rights of Parent, its customers, partners, joint venturers, licensors and other business associates including, but not limited to, information relating to inventions, apparatus, processes, procedures, products, prices, research, costs, business affairs, future plans, ideas, technical data and raw data from field or other tests or evaluations thereof. 2. USE AND DISCLOSURE While employed by any Parent entity and for a period of five years thereafter, I shall not, directly or indirectly, in any way use or disclosure to any person or entity any Confidential Information, except to the extent authorized and required to do so for the performance of my employment; provided that, for any such Confidential Information constituting a trade secret, the period referred to previously shall extend for so long as the particular Confidential Information remains - 9 - a trade secret under applicable law. I agree and acknowledge that Confidential Information of Parent is the exclusive property of Parent, and I shall hold all such Confidential Information in trust for Parent. I confirm and acknowledge my fiduciary duty to use my best efforts to protect Confidential Information, and not to misuse any Confidential Information, and to protect all Confidential Information from any misuse, misappropriation, harm, or interference by others in any manner whatsoever. 3. EXCLUSIVITY AND DEDICATION During the period of my employment with any Employer, I shall devote my entire working time during the regular business hours assigned to my position with attention to such duties as may be assigned to me by Employer. During such time, I shall faithfully and diligently serve and endeavor to further the interests of Parent. I shall not engage in or become connected with: (a) any other business during my regular business hours with any Employer or (b) any business which is in competition with Parent at any time. I understand and agree that nothing in this Agreement confers on me any right of continued employment with Parent. 4. INVENTIONS BELONGING TO PARENT Parent has been and is actively engaged in research and development. Accordingly, I may develop or participate in developing inventions for Parent. I may also enhance or help to enhance products already owned or marketed by Parent. I recognize that Parent has a proprietary interest in all inventions and enhancements that I may make or develop during my employment, whether during or after regular business hours, and whether made or developed with Parent's, my own or anyone else's materials or equipment, if such inventions or enhancements may reasonably be regarded as: (a) relating directly to the business of Parent (to the extent that I may reasonably be aware of the same) at the time of the development of the invention or enhancement or (b) derived from Confidential Information or Proprietary Rights obtained by me in the course of my employment. Such inventions or enhancements are referred to as "Parent Inventions". This paragraph is subject in all respects to the addendum that is attached to this Agreement. 5. ASSIGNMENT OF INTEREST IN INVENTIONS I hereby irrevocably assign and agree to assign all my interest, if any, together with all moral rights, if any, in all Parent Inventions to Parent or its nominee. This obligation shall continue beyond the termination of my employment and shall be binding upon my heirs, assigns, executors, administrators and other legal representatives. 6. REGISTRATION OF OWNERSHIP RIGHTS Promptly upon making any Parent Invention, I shall fully disclose it to Employer and shall, if requested, assist Parent in preparing any copyright registration, patent application or design registration application which Parent may choose to file. Upon request, I shall execute without further consideration such further documents as may reasonably be required to obtain patents, copyrights or design registrations in any country for any Parent Inventions and vest the same in Parent. If I fail to execute and deliver such further documents to Parent within ten days after - 10 - being requested by Parent, then, by such failure, I shall irrevocably constitute and appoint each Parent entity as my attorney-in-fact to execute and deliver the documents to any third party. 7. ASSISTANCE TO PROTECT PARENT'S PROPRIETARY RIGHTS Both during and after my employment by each Employer, I will do everything reasonably necessary or desirable to assist Parent in obtaining and enforcing proper protection of the Parent Inventions. 8. CONFLICTS My employment with Parent and my performing this Agreement are not in conflict with any obligations that I have with any other person or entity, such as a former employer. I will notify Employer in writing upon having knowledge of, or before performing or causing to be performed, any work for or on behalf of Parent which appears to or may potentially be in conflict with: (a) any rights claimed by ME in any invention or idea conceived by me, including before my employment or (b) any rights of others arising out of obligations incurred by me before entering into this Agreement. If I fail to give Employer written notice of any such conflict of which I am aware, Parent may consider that no such conflict exists. By such inaction, I will thereby waive any claim which I may have against Parent with respect to the use of any such invention or idea. 9. RETURN OF PROPERTY Upon ceasing employment with Parent, or earlier if required by Parent, I agree promptly to deliver to Parent all property and all copies thereof, including but not limited to, correspondence, blueprints, letters, drawings, schematics, manuals, notes, notebooks, reports, flowcharts, progress reports, proposals, records, data, sketches, drawings, memorandum, models, samples, equipment, customer lists, price lists, product specifications, laboratory or field test results or any other property pertaining to my employment by Parent and belonging to Parent, its customers, partners, joint ventures, suppliers, or other business associates. 10. REIMBURSMENT All pre-approved costs and expenses incurred by me in fulfilling paragraphs 5, 6, and 7 during my employment by Employer shall be re-imbursed to me by Employer. If, after my termination of employment, Employer requests my assistance with regard to the issues referred to in such paragraphs, it shall pay all pre-approved costs and expenses, as well as reasonable compensation for my time expended in the performance of those obligations. 11. NON-SOLICITATION OF EMPLOYEES AND CONSULTANTS While I am employed by any Employer, and for one year after the termination of my employment with all Parent entities, I shall not directly or indirectly solicit, induce or attempt to induce any Parent employee or consultant into leaving Parent's employment or consultancy, nor - 11 - shall I directly or indirectly participate in any employer's or agency's recruitment or hiring of any Parent employee or consultant. 12. PRESENTATIONS AND PUBLICATIONS I acknowledge that I am required to obtain the written consent of an officer of Employer in advance of presentation or publication of any speech, paper or article authored by me, either alone with others, which in ny way refers to my employment with Parent or relates to any Confidential Information or Proprietary Rights, unless such presentation or publication was at the direction or request of Parent and Parent consented to its contents. 13. SEVERABILITY I acknowledge that each provision of this Agreement is separate from each other provision of this Agreement, and if any one provision is found to be unenforceable as written, that finding shall not affect the validity or enforcement of the other provisions of this Agreement. Any provision found to be unenforceable shall be construed to be reformed to extend as far as is enforceable. 14. INJUNCTIVE RELIEF Because of the valuable and unique nature of the Confidential Information and Proprietary Rights, I understand and agree that Parent will suffer irreparable harm if I breach any of my obligations under this Agreement, whether or not related to such information or rights, and that monetary damages will be inadequate to compensate Parent fully for any such breach. Accordingly, I agree that, in addition to any other remedies or rights, Parent shall have the right to obtain an injunction or other equitable relief to enforce this Agreement. 15. JURISDICTION This Agreement shall be interpreted in accordance with the laws of the jurisdiction in which you reside at the time of your act or omission that is asserted to violate, or in all events is governed by, this Agreement. 16. THIRD PARTY BENEFICIARIES Each entity that is included in the definition of "Parent" shall be a third party beneficiary of your obligations under this Agreement. 17. INDEPENDENT LEGAL ADVICE I acknowledge that I have read this Agreement and have had the opportunity to obtain independent legal advice before signing it. If I did not obtain such advice, that fact shall not be - 12 - used by me in any attempt to obviate, alter, sever or otherwise terminate or avoid this Agreement or any part of this Agreement. 18. AMENDMENTS Any and all amendments to this Agreement must be in writing and be signed by both you and Employer. Dated as of June 23, 2003 /s/ Brian Hartlen /s/ Cynthia E. Davis _______________________________ ____________________________ Employee (Signature) Witness (Signature) Brian Hartlen Cynthia E. Davis _______________________________ ____________________________ (Print) (Print) - 13 - EX-99.(D)(7) 16 b47043gcexv99wxdyx7y.txt DAVID KING EMPLOYMENT AGREEMENT Exhibit (d)(7) June 19, 2003 Mr. David King [address] Dear David: This letter will confirm the terms of your continuing employment by [Conductor] following the consummation of the tender offer (the "Offer") described in the Agreement and Plan of Merger dated June __, 2003 by and among [Conductor,] [Parent] and [Merger Subsidiary] (the "Merger Agreement"), and our understanding concerning certain matters relating to the Change in Control Severance Agreement dated as of June 1, 1998, as amended on November 30, 1999, between you and [Conductor] (the "Change in Control Agreement"). This letter agreement will take effect simultaneously with the acceptance for payment by [Merger Subsidiary] of any shares of common stock of [Conductor] pursuant to the Offer (the "Effective Date"). 1. Responsibilities and Reporting Obligations You will be employed until December 31, 2003 as Vice President, Technology of Conductor, reporting to Tim Wright or as otherwise directed by the Board of Directors of Conductor, and thereafter as Vice President, Technology of [GCI] ("GCI"), a wholly-owned subsidiary of Parent, reporting to Tim Wright, or as otherwise directed by the Board of Directors of GCI. Use in this letter agreement of the term "Company" shall be deemed to refer to Conductor as the surviving corporation in the merger, or GCI, whichever is then your employer. You shall serve the Company faithfully and to the best of your ability, and shall throughout the term of your employment devote your full working time and attention to the business and affairs of the Company and shall use your best efforts to maintain and advance its business. Nothing in this letter shall be deemed to prohibit your participation in community affairs or monitoring your personal investments, to the extent that those activities do not interfere with your performance of your duties under this letter agreement. 2. Remuneration 2.1 Base Salary. You will receive a base salary at the rate of US $216,000 per annum, subject to annual review consistent with Parent's company-wide review procedure. Your base salary will be paid in semi-monthly installments subject to all proper withholding taxes and any deductions attributable to your required or directed contributions to the benefits provided by the Company, including those referred to in Section 2.3 below. 2.2 Bonus. You will be eligible to participate in the Parent bonus plan. Your annual on-target bonus amount will be US $86,000 based on performance targets. Performance targets for the partial fiscal year beginning on the Effective Date ending April 30, 2004 will be based on a combination of the financial performance of the Conductor business and personal goals. We will adjust the performance targets and goals annually to reflect the evolution of the business. The targeted bonus amount will be prorated for the first, partial fiscal year. We will pay any bonus when the relevant information for the fiscal year to which a bonus relates is available, which we expect will occur during the July or August after each fiscal year. To receive a bonus, you will need to continue to be employed by the Company on the date bonuses are payable. 2.3 Group Benefits. As soon as is administratively practical after the merger, you will be entitled to receive and participate in all of the Company's standard employee benefit plans and programs, assuming you are in active employment status on the Effective Date. Those plans will be the same as the benefit plans and programs in effect, from time to time, at GCI. All such benefits will be furnished to you by one or more providers in the United States. To the extent permitted under those plans, for purposes of eligibility and vesting, your service as an employee with Conductor before the merger will be credited to the same extent as though that service had been with the Company. 2.4 Vacation. During each full year of your employment with the Company, you will be entitled to a total of 4 weeks of paid vacation to be taken at mutually agreeable times. Any unused vacation, holiday or sick days carried over from a prior year to which you were entitled at the Effective Date under Conductor's normal employment policies may be carried over by you at the Effective Date. Your entitlement to carry forward any unused vacation, holiday or sick days which accrue after the Effective Date shall be governed by GCI's normal employment policies. 3. Stock Options 3.1 Following the closing of the merger, Parent will grant you options to purchase 50,000 common shares of Parent. Those options will have an exercise price equal to the greater of (a) the market price of the Parent common shares at the close of business on the date of grant or (b) the average price of the common shares of Parent on the five most recent trading days, each as reported by the Toronto Stock Exchange, and will vest over a 4-year period. 3.2 The grant of these options is subject to formal action by the Board of Directors of Parent and approval of the Toronto Stock Exchange. 4. Nature of Employment Arrangements Our employment relationship will be entirely at will. That means that you can resign with or without reason, and the Company can terminate you, with or without reason, subject to, and with the consequences described in, Sections 4, 5 and 6 below. 4.1 Voluntary Resignation. If you wish to resign voluntarily, you must provide the Company with at least 30 days' prior written notice. The Company may elect to require you to remain in its employ for all or part of the notice period, or may require that you resign immediately. Upon the effective date of your resignation, the Company shall pay you all unpaid salary and any unpaid bonus, provide that the conditions for payment of the bonus have - 2 - been fully met. If the Company elects that your resignation be effective before the end of that 30-day period, it will also pay your salary for the balance of that 30-day period. Upon the effective date of your resignation, the vesting of your stock options shall cease and you will have no entitlement to pay or benefits beyond the date of resignation, other than any benefit, such as COBRA, that is required by law. 4.2 Termination for Cause. If you engage in any conduct constituting Cause (defined below), the Company may terminate your employment by providing you with written notice of termination. Your employment and your rights under this Letter shall terminate on the day the Company gives you that notice. Upon termination for Cause, you shall be paid all unpaid salary owing to you, the vesting of your stock options shall cease and your options shall terminate forthwith. You will have no entitlement to pay or benefits beyond the date of termination, other than any benefit, such as COBRA, that is required by law. For purposes of this Section 4.2, "Cause" means (a) your material failure to substantially perform your duties with the Company (including due to disability or death) that continues for more than 30 days after a written demand for substantial performance is delivered to you by Tim Wright or his designee or successor, which specifically identifies the manner in which the Company believes that you have not substantially performed your duties, (b) willful conduct by you which is or could reasonably be expected to be materially injurious to Conductor or any of its affiliates, monetarily or otherwise, (c) your conviction of any crime, other than routine traffic violations and other minor misdemeanors, or (d) your engaging in any business which competes with any business of the Company or any of its affiliates. 4.3 Termination for Any Reason Other Than Cause. The Company shall have the right to terminate your employment at any time other than for Cause. In the event of that type of termination occurring after the second anniversary of the Effective Date, you shall be entitled to receive continued base salary at the rate you were receiving base salary when you were terminated for a number of weeks (or fractions thereof) equivalent to the number of years (or fractions thereof) during which you were employed on a full-time basis by the Company, including service at Conductor prior to the Effective Date and service at the Company after the Effective Date. You will also receive any unpaid bonus, provided that the conditions for the payment of the bonus have been fully met. The Company will also maintain all of your benefits through the last day of the calendar month in which termination of your employment occurred. You will also be paid, credited or reimbursed, as the case may be, for all unpaid salary (including credit for any vacation earned but not taken), expenses, benefits and other amounts payable to you or earned by you up to the termination date. The entitlements described in this paragraph are in lieu of any severance or similar entitlements conferred, from time to time, by Conductor's severance policies that applied or apply from time to time to other employees. 5. Existing Change in Control Agreement. 5.1 Change in Control. Parent and Merger Subsidiary acknowledge and agree that upon the Effective Date, a "Change in Control" will have occurred, and "Good Reason" will exist for your termination of your employment by Conductor, as each such term is defined in your existing Change in Control Agreement. - 3 - 5.2 Effect of Termination of Employment Prior to Second Anniversary of Effective Date. In the event of termination, at any time prior to the second anniversary of the Effective Date, of your employment with the Company, whether by you or by the Company, the provisions of your existing Change in Control Agreement with regard to the payment of severance benefits shall govern. 5.3 Survival of Change in Control Agreement; Termination. Your existing Change in Control Agreement shall survive the execution and delivery of this letter agreement and be given continued effect in accordance with its terms; provided, however, that the Change in Control Agreement shall terminate on the second anniversary of the Effective Date. In the event of any termination of your employment on or after the second anniversary of the Effective Date, the provisions of Section 6 below shall govern. 6. Termination of Employment On or After the Second Anniversary of the Effective Date. 6.1 Definitions. For purposes of this Section 6, the following terms shall have the meanings set forth below: (a) "Change in Control" means the occurrence of one or more of the following events: (i) The sale, lease or transfer, in one or a series of related transactions, of all or substantially all of Parent's assets considered on a consolidated basis to any person or company or combination of persons or companies; (ii) The adoption of a plan relating to the liquidation or dissolution of Parent; (iii) The acquisition by any person or company or combination of persons or companies acting jointly or in concert of a direct or indirect interest in more than 50 percent of the ownership of Parent or the voting power of the voting shares of Parent by way of a purchase, merger or consolidation or otherwise (other than a creation of a holding company that does not involve a change in the beneficial ownership of Parent as a result of such transaction); (iv) The amalgamation, merger or consolidation of Parent with or into another corporation or the amalgamation or merger of another corporation into Parent with the effect that immediately after such transaction the shareholders of Parent immediately prior to such transaction hold less than 50 percent of the total voting power of all securities generally entitled to vote in the election of directors, manager or trustees of the person surviving such amalgamation, merger or consolidation; or (v) During any period of two consecutive years, individuals who at the beginning of such period constitute the entire Board of Directors of Parent shall cease for any reason to constitute a majority thereof unless the election, or the nomination for election of Parent's stockholders, of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the - 4 - beginning of such period or who, themselves, were approved during such period by the requisite two-thirds vote specified above. (b) "Change Affecting Your Employment" means any of the following circumstances which are not accepted by you during the 90-day period immediately following the date on which you become aware of such circumstances: (i) Any change to your employment conditions with the Company which would significantly reduce the nature or status of your responsibilities; (ii) A reduction by the Company in your annual compensation as of the date of the Change in Control; (iii) The failure by the Company to continue in effect for your benefit any prerequisites or participation in any employee benefit plan to which other employees of the Company are entitled, to the same extent to which any other employees enjoy such benefits; (iv) Any other change which would constitute "constructive dismissal" under applicable law; or (v) Any change in the location of the principal office of the Company which causes you to substantially increase your travel time or relocate. (c) "Termination Payment" shall mean an amount equal to (a) your base salary received or receivable by you in respect of the immediately preceding year plus (b) either (i) the average of the bonuses paid or payable to you with respect to each of the three preceding years or (ii) if you have been employed by the Company (including any service prior to the Effective Date), for fewer than three years at the time of your termination, the average of the bonuses paid or payable to you with respect to each of the years in which you have worked for the Company. Subject to the agreement of the carrier or carriers, the Company will also maintain all of your benefits of employment for a period of 12 months from the date of termination. You will be paid, credited or reimbursed, as the case may be, for all unpaid salary (including credit for any vacation earned but not taken), all unpaid bonuses, all accrued bonuses (such bonuses to be determined on a proportionate basis having regard to the proportion of the fiscal year which was elapsed), expenses, benefits and other amounts payable to you or earned by you up to the termination date. For purposes below, all amounts payable to you shall be increased to appropriately reflect the tax payment and gross provisions set forth above with respect to salary, bonus and benefits. 6.2 Termination of Employment After a Change in Control. If, on or after the second anniversary of the Effective Date and within 12 months following a Change in Control (as defined in Section 6.1(a) above, and excluding any change in control resulting from the Offer or the merger described in the Merger Agreement): (a) your employment shall be terminated, other than for Cause, by the Company; or - 5 - (b) if within such 12-month period following a Change in Control there shall occur a Change Effecting Your Employment, and you shall within the 90-day period immediately following the date on which you became aware of the circumstances constituting such Change Affecting Your Employment, resign from your employment by the Company, in either such event you will be entitled to receive the following: (i) On the effective date of your resignation, the Company will pay you the Termination Payment, calculated as though such effective date was the effective date of the termination of your employment by the Company for a reason other than Cause; (ii) Subject to the agreement of the carrier or carriers, the Company will maintain all benefits of employment for a period of 23 months from the date of termination; (iii) In such event, you will also be paid, credited or reimbursed, as the case may be, for all unpaid salary (including credit for any vacation earned but not taken all unpaid bonuses, all accrued bonuses (such bonuses to be determined on a proportionate basis having regards to the proportion of the fiscal year which has elapsed), expenses, benefits and other amounts payable to you or earned by you up to the date of resignation. Also, in such event, all unvested stock options previously granted shall become fully vested; and (iv) In no case will you be entitled to both a payment for termination for any reason other than Cause and for a termination in the event of a Change in Control and Change Affecting Your Employment. 7. General. 7.1 Property of the Company. All equipment, material, written correspondence, memoranda, communications, reports, and other documents pertaining to the business of the Company or its affiliates used or produced by you in connection with your employment, or in your possession or under your control, shall at all times remain the property of the Company and its affiliates. You shall return all property of the Company and its affiliates in your possession or under your control in good condition within one week of a request by the Company, or within one week of the termination of your employment. 7.2 Non-Disclosure and Use. You agree to be bound by the terms of the General Confidentiality Agreement attached as Schedule "A." 7.3 Resignation as Officer and Director. You agree that after the Effective Date, upon any notice of your resignation from the Company or notice by the Company of the termination of your employment, you shall forthwith tender your resignation from any and all offices and directorships then held by you at the Company or any of its affiliates, such resignation to be effective immediately, or at such other date as may be mutually agreed, and you shall not be entitled to receive any severance payment or compensation for loss of office or directorship, or otherwise, by reason of the resignation, other than as provided elsewhere in this Agreement. If you fail to resign as set out above, you will be deemed to have resigned from all - 6 - such offices and directorships, and the Company and its affiliates are hereby authorized by you to appoint any person in your name on your behalf to sign any documents or do any things necessary or required to give effect to such resignation. 7.4 Successors. If, after the Effective Date, you are transferred to an affiliate of the Company, this Letter will bind and inure to the benefit of that affiliate and continue to bind you and inure to your benefit. 7.5 Choice of Law. This Letter shall be construed in accordance with the laws of the State of Michigan. 7.6 Submission of Arbitration. You understand and agree that, except for any claims or actions brought under the Change in Control Agreement, any dispute or controversy in connection with this Agreement, including its interpretation, will be conclusively settled by submission to arbitration (the "Arbitration") in accordance with the rules of arbitration of The Commonwealth of Massachusetts as amended from time to time. The Arbitration will be conducted before a single arbitrator mutually agreeable to the parties (the "Arbitrator"). Each party will be responsible for their own legal costs incurred at the Arbitration. The cost of the Arbitrator will be shared subject to the Company's agreement to reimburse you for your share of the Arbitrator's costs in the event you substantially prevail at the Arbitration. 7.7 Notices. Any notice required or permitted hereunder shall be deemed to be delivered on the date of actual delivery, if delivered personally, or on the date four days after mailing, if delivered by registered mail. In the case of postal disruption, delivery shall be made by way of personal delivery. The Company's address, for this purpose, is [GCI], 66 Perimeter Center East, Atlanta, GA 30346, Attention: Cindy Davis, unless and until the Company notifies you of a different address. 7.8 Entire Agreement. This letter agreement (including Exhibit A), together with the additional documents that govern your stock option or options described in Section 3, and the Change in Control Agreement, as modified by Section 5.3, contain the entire agreement between or among us, with respect to their subject matter. Accordingly, upon the Effective Date, any and all oral or other written representations, agreement, arrangements and understandings between or among us will automatically terminate without the necessity for any further action by any person or entity. If these arrangements are acceptable to you, we ask that you indicate your acceptance of this Letter by signing the enclosed copy of this Letter and returning it to [GCI], 66 Perimeter Center East, Atlanta, GA 30346, Attention: Cindy Davis. Sincerely, CONDUCTOR, INC. By: /s/ Brian Jarzynski _________________________________________ SVP & CFO _________________________________________ - 7 - [GCI] By: /s/ Cynthia E. Davis _________________________________________ VP, HR _________________________________________ [PARENT] By: /s/ Tim Wright _________________________________________ CIO & CTO _________________________________________ ACCEPTED: /s/ David King _____________________________________________ David King - 8 - Schedule "A" EMPLOYEE CONFIDENTIALITY AGREEMENT David King (Employee) [PARENT] or a subsidiary or affiliate of that company desires to retain my services as set out in a letter of employment. References in this Agreement to "Parent" mean [Parent] and all of its present and future subsidiaries and affiliates. "Parent" also includes [Conductor] and its subsidiaries, including before they became Parent subsidiaries. References to "Employer" mean whatever specific Parent entity employs me from time to time. Parent desires to protect its business, including its confidential information and proprietary rights. ACCORDINGLY, in consideration of my employment by Employer, I agree as follows: 1. DEFINITIONS (a) "CONFIDENTIAL INFORMATION" means information disclosed to me or acquired by me as a result of my employment with Parent and includes, but is not limited to, Proprietary Rights, information relating to Parent's products or development of new or improved products, marketing strategies, sales and business plans, the names and information about Parent's past, present and prospective customers, suppliers and clients, trade secrets and all other information which is not in the public domain and which can reasonably be considered confidential, whether or not explicitly identified as such. (b) "PROPRIETARY RIGHTS" means all rights in and to all the computer programs, systems documentation, drawings, schematics, hardware and other materials developed by Parent or made available to Parent by licensor or others in accordance with the rights of such licensors or others. For the purposes of this Agreement, Proprietary Rights shall include Confidential Information and rights of Parent, its customers, partners, joint venturers, licensors and other business associates including, but not limited to, information relating to inventions, apparatus, processes, procedures, products, prices, research, costs, business affairs, future plans, ideas, technical data and raw data from field or other tests or evaluations thereof. 2. USE AND DISCLOSURE While employed by any Parent entity and for a period of five years thereafter, I shall not, directly or indirectly, in any way use or disclosure to any person or entity any Confidential Information, except to the extent authorized and required to do so for the performance of my employment; provided that, for any such Confidential Information constituting a trade secret, the period referred to previously shall extend for so long as the particular Confidential Information remains - 9 - a trade secret under applicable law. I agree and acknowledge that Confidential Information of Parent is the exclusive property of Parent, and I shall hold all such Confidential Information in trust for Parent. I confirm and acknowledge my fiduciary duty to use my best efforts to protect Confidential Information, and not to misuse any Confidential Information, and to protect all Confidential Information from any misuse, misappropriation, harm, or interference by others in any manner whatsoever. 3. EXCLUSIVITY AND DEDICATION During the period of my employment with any Employer, I shall devote my entire working time during the regular business hours assigned to my position with attention to such duties as may be assigned to me by Employer. During such time, I shall faithfully and diligently serve and endeavor to further the interests of Parent. I shall not engage in or become connected with: (a) any other business during my regular business hours with any Employer or (b) any business which is in competition with Parent at any time. I understand and agree that nothing in this Agreement confers on me any right of continued employment with Parent. 4. INVENTIONS BELONGING TO PARENT Parent has been and is actively engaged in research and development. Accordingly, I may develop or participate in developing inventions for Parent. I may also enhance or help to enhance products already owned or marketed by Parent. I recognize that Parent has a proprietary interest in all inventions and enhancements that I may make or develop during my employment, whether during or after regular business hours, and whether made or developed with Parent's, my own or anyone else's materials or equipment, if such inventions or enhancements may reasonably be regarded as: (a) relating directly to the business of Parent (to the extent that I may reasonably be aware of the same) at the time of the development of the invention or enhancement or (b) derived from Confidential Information or Proprietary Rights obtained by me in the course of my employment. Such inventions or enhancements are referred to as "Parent Inventions". This paragraph is subject in all respects to the addendum that is attached to this Agreement. 5. ASSIGNMENT OF INTEREST IN INVENTIONS I hereby irrevocably assign and agree to assign all my interest, if any, in all Parent Inventions to Parent or its nominee. This obligation shall continue beyond the termination of my employment and shall be binding upon my heirs, assigns, executors, administrators and other legal representatives. 6. REGISTRATION OF OWNERSHIP RIGHTS Promptly upon making any Parent Invention, I shall fully disclose it to Employer and shall, if requested, assist Parent in preparing any copyright registration, patent application or design registration application which Parent may choose to file. Upon request, I shall execute without further consideration such further documents as may reasonably be required to obtain patents, copyrights or design registrations in any country for any Parent Inventions and vest the same in Parent. If I fail to execute and deliver such further documents to Parent within ten days after - 10 - being requested by Parent, then, by such failure, I shall irrevocably constitute and appoint each Parent entity as my attorney-in-fact to execute and deliver the documents to any third party. 7. ASSISTANCE TO PROTECT PARENT'S PROPRIETARY RIGHTS Both during and after my employment by each Employer, I will do everything reasonably necessary or desirable to assist Parent in obtaining and enforcing proper protection of the Parent Inventions. 8. CONFLICTS My employment with Parent and my performing this Agreement are not in conflict with any obligations that I have with any other person or entity, such as a former employer. I will notify Employer in writing upon having knowledge of, or before performing or causing to be performed, any work for or on behalf of Parent which appears to or may potentially be in conflict with: (a) any rights claimed by me in any invention or idea conceived by me, including before my employment or (b) any rights of others arising out of obligations incurred by me before entering into this Agreement. If I fail to give Employer written notice of any such conflict of which I am aware, Parent may consider that no such conflict exists. By such inaction, I will thereby waive any claim which I may have against Parent with respect to the use of any such invention or idea. 9. RETURN OF PROPERTY Upon ceasing employment with Parent, or earlier if required by Parent, I agree promptly to deliver to Parent all property and all copies thereof, including but not limited to, correspondence, blueprints, letters, drawings, schematics, manuals, notes, notebooks, reports, flowcharts, progress reports, proposals, records, data, sketches, drawings, memorandum, models, samples, equipment, customer lists, price lists, product specifications, laboratory or field test results or any other property pertaining to my employment by Parent and belonging to Parent, its customers, partners, joint ventures, suppliers, or other business associates. 10. REIMBURSMENT All pre-approved costs and expenses incurred by me in fulfilling paragraphs 5, 6, and 7 during my employment by Employer shall be re-imbursed to me by Employer. If, after my termination of employment, Employer requests my assistance with regard to the issues referred to in such paragraphs, it shall pay all pre-approved costs and expenses, as well as reasonable compensation for my time expended in the performance of those obligations. 11. NON-SOLICITATION OF EMPLOYEES AND CONSULTANTS While I am employed by any Employer, and for one year after the termination of my employment with all Parent entities, I shall not directly or indirectly solicit, induce or attempt to induce any Parent employee or consultant into leaving Parent's employment or consultancy, nor - 11 - shall I directly or indirectly participate in any employer's or agency's recruitment or hiring of any Parent employee or consultant. 12. PRESENTATIONS AND PUBLICATIONS I acknowledge that I am required to obtain the written consent of an officer of Employer in advance of presentation or publication of any speech, paper or article authored by me, either alone with others, which in ny way refers to my employment with Parent or relates to any Confidential Information or Proprietary Rights, unless such presentation or publication was at the direction or request of Parent and Parent consented to its contents. 13. SEVERABILITY I acknowledge that each provision of this Agreement is separate from each other provision of this Agreement, and if any one provision is found to be unenforceable as written, that finding shall not affect the validity or enforcement of the other provisions of this Agreement. Any provision found to be unenforceable shall be construed to be reformed to extend as far as is enforceable. 14. INJUNCTIVE RELIEF Because of the valuable and unique nature of the Confidential Information and Proprietary Rights, I understand and agree that Parent will suffer irreparable harm if I breach any of my obligations under this Agreement, whether or not related to such information or rights, and that monetary damages will be inadequate to compensate Parent fully for any such breach. Accordingly, I agree that, in addition to any other remedies or rights, Parent shall have the right to obtain an injunction or other equitable relief to enforce this Agreement. 15. PREVAILING PARTY If legal action is commenced to enforce or interpret this Agreement or for declaratory relief with respect thereto, the party that substantially prevails in that action shall be entitled to recover, from the other party, the reasonable attorneys' fees and costs incurred by the former. 16. JURISDICTION This Agreement shall be interpreted in accordance with the laws of the jurisdiction in which you reside at the time of your act or omission that is asserted to violate, or in all events is governed by, this Agreement. 17. THIRD PARTY BENEFICIARIES Each entity that is included in the definition of "Parent" shall be a third party beneficiary of your obligations under this Agreement. - 12 - 18. INDEPENDENT LEGAL ADVICE I acknowledge that I have read this Agreement and have had the opportunity to obtain independent legal advice before signing it. If I did not obtain such advice, that fact shall not be used by me in any attempt to obviate, alter, sever or otherwise terminate or avoid this Agreement or any part of this Agreement. 19. AMENDMENTS Any and all amendments to this Agreement must be in writing and be signed by both you and Employer. Dated as of 6/23, 2003 /s/ David King /s/ Cynthia E. Davis _______________________________ ____________________________ Employee (Signature) Witness (Signature) /s/ David King Cynthia E. Davis _______________________________ ____________________________ (Print) (Print) - 13 - -----END PRIVACY-ENHANCED MESSAGE-----