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
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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
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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,
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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:
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GEAC COMPUTER CORPORATION LIMITED
By: /s/ Charles S. Jones
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Charles S. Jones, Chairman
Date: April 24, 2003