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.
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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.
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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
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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.
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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
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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
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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.
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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
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