Exhibit 2.2
FORM OF VOTING AND PROXY AGREEMENT
THIS VOTING AND PROXY AGREEMENT (this "Agreement") is made and entered
into as of August 26, 2002 by and among GEAC COMPUTER CORPORATION LIMITED, a
corporation governed by the Canada Business Corporations Act ("Geac"), CAGE
ACQUISITION INC., a Delaware corporation that is wholly-owned by Geac ("Geac
Sub"), and _________________ ("Stockholder"). Geac, Geac Sub and Stockholder are
each sometimes referred to as a "Party" and together as the "Parties".
BACKGROUND
Geac, Geac Sub and Extensity, Inc., a Delaware corporation ("Extensity"),
are entering into an Agreement and Plan of Merger as of the same date as this
Agreement (as it may be amended, the "Merger Agreement"). The Merger Agreement
contemplates the merger of Geac Sub into Extensity. In order for that merger to
close, Extensity's stockholders must adopt and approve the Merger Agreement and
that merger. Stockholder owns shares of Extensity common stock and ________ is a
director and officer of Extensity. Geac and Geac Sub were not prepared to enter
into the Merger Agreement, unless Stockholder and certain other stockholders of
Extensity signed this and similar agreements. Stockholder desires that Geac and
Geac Sub enter into the Merger Agreement and for that reason is signing this
Agreement. Capitalized terms used but not defined in this Agreement have the
definitions assigned to them in the Merger Agreement.
ACCORDINGLY, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. VOTING. As of the date of this Agreement, Stockholder is: (a) the
record and beneficial owner of that number shares of Extensity Common Stock as
is indicated on the signature page of this Agreement, and (b) the beneficial,
but not the record, owner of that number of shares of Extensity Common Stock as
is indicated on the signature page of this Agreement. (Those shares of Extensity
Common Stock that Stockholder owns of record as of the date of this Agreement
and any other shares of Extensity Common Stock that Stockholder acquires record
ownership of during the term of this Agreement are referred to as the "Record
Shares". Those shares of Extensity Common Stock that Stockholder beneficially
owns as of the date of this Agreement and any other shares of Extensity Common
Stock that Stockholder acquires beneficial, but not record, ownership of during
the term of this Agreement are referred to as the "Beneficial Shares". The
Record Shares and the Beneficial Shares are collectively referred to as the
"Shares".) Before the Expiration Date (defined in Section 10.9), Stockholder (in
Stockholder's capacity as such) shall vote, or cause the vote of, all the Shares
in favor of the adoption and approval of the Merger Agreement and the Merger, it
being understood, however, that for any Shares held in a trust for which
Stockholder is not the trustee (as shown on the exhibit to this Agreement),
Stockholder shall be required (only) to use Stockholder's best efforts to cause
those Shares to be so voted. Stockholder (in stockholder's capacity as such)
shall also vote the Shares against any other extraordinary transaction such as
another merger or a consolidation, business combination, reorganization,
recapitalization, liquidation, sale or transfer of all or substantially all of
the assets or more than 50% of the voting securities of Extensity or any
Extensity Sub or any other change of control involving Extensity or any
Extensity Sub (with the same character of covenant regarding any Shares held in
such a trust).
2. IRREVOCABLE PROXY. Stockholder hereby irrevocably appoints Geac as
Stockholder's proxyholder through the Expiration Date, with full power of
substitution and resubstitution, to attend and act for and on behalf of
Stockholder at the Stockholder Meeting or any other meeting of Extensity's
stockholders, and to act by written consent as a stockholder of Extensity, to
vote the Shares in the following manner: (a) for the adoption and approval of
the Merger Agreement and the Merger and (b) against any other extraordinary
transaction such as another merger or a consolidation, business combination,
reorganization, recapitalization, liquidation, sale or transfer of all or
substantially all of the assets or more than 50% of the voting securities of
Extensity or any Extensity Sub or any other change of control involving
Extensity or any Extensity Sub. By signing this Agreement, Stockholder revokes
any and all prior proxies given by Stockholder with respect to any Shares and
shall promptly inform the holders of any such proxies in writing of that
revocation, sending a copy to Geac. Stockholder shall not grant any other
proxies with respect to any Shares before the Expiration Date. This proxy is
irrevocable, is coupled with an interest and is granted in consideration of Geac
and Geac Sub entering into the Merger Agreement. Stockholder agrees and
acknowledges that none of Geac, Geac Sub or any of their successors, assigns,
subsidiaries, employees, officers, directors, shareholders, agents or affiliates
owe any duty to Stockholder or shall incur any liability of any kind whatsoever
(including, without limitation, for any claims, losses, demands, causes of
action, costs, expenses or attorneys' fees) to Stockholder in connection with or
as a result of any voting (or refraining from voting) any Shares. In addition,
Stockholder acknowledges and agrees that, pursuant to this irrevocable proxy,
Geac may vote the Shares to further its own interests and that Geac is not
acting as a fiduciary for Stockholder. This irrevocable proxy shall survive, and
shall not be terminated by, any act of Stockholder, operation of law or any
other event such as the death, incapacity, disability or bankruptcy of
Stockholder or the termination of any trust or estate for which Stockholder is
acting as a fiduciary. This irrevocable proxy shall be binding upon the spouse
(if any), heirs, personal representatives, successors and assigns of
Stockholder.
3. TRANSFER RESTRICTIONS. Before the Expiration Date, Stockholder shall
not directly or indirectly: (a) sell, transfer, assign, pledge, hypothecate,
tender, encumber or otherwise dispose of any Shares or limit its right to vote
any Shares in any manner, (b) agree to do any of the foregoing or (c) take any
action that has or could have the effect of preventing or disabling Stockholder
from performing any obligations under this Agreement. Notwithstanding the
foregoing, nothing in this Agreement shall prohibit a transfer of Extensity
Common Stock by Stockholder: (i) if Stockholder is a natural person, to any
member of his or her immediate family or upon his or her death, or (ii) if
Stockholder is a partnership or limited liability company, to one or more
partners or members of Stockholder or to an affiliated corporation under common
control with Stockholder, provided that, in case of both clause (i) and clause
(ii), Stockholder first furnishes Geac with a written undertaking by the
intended transferee in form and substance reasonably acceptable to Geac that the
transferee will comply with this Agreement. Promptly after this Agreement is
signed, Extensity shall deliver stop transfer instructions to its transfer agent
respecting all the Shares that, before the Expiration Date, cannot be
countermanded without both Extensity's and Geac's consent.
4. NO SOLICITATION. Neither Stockholder nor any agent, representative or
associate of Stockholder shall, directly or indirectly: (a) solicit, initiate,
negotiate, encourage or induce the making, submission or announcement of any
Extensity Acquisition Proposal or take any action or omit to take action, the
taking or omission of which could reasonably be expected to lead to a Extensity
Acquisition Proposal, (b) participate in any discussions or negotiations
regarding, or furnish to any Person any non-public information with respect to,
or take any other action to facilitate any inquiries or the making of any
proposal that constitutes or may reasonably be expected to lead to, any
Extensity Acquisition Proposal, (c) engage in any discussions with any Person
with respect to any Extensity Acquisition Proposal, except as to the existence
of these provisions or (d) approve, endorse or recommend any Extensity
Acquisition Proposal, other than with respect to ______ and then only in strict
accordance with the Merger Agreement and only in his capacity as a director and
officer of Extensity. Moreover, even if
Extensity receives a Extensity Superior Offer, Stockholder shall continue to be
bound by this Agreement including, without limitation, its Sections 1, 2 and 3.
Stockholder shall immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any Person with respect to any of
the foregoing. Stockholder shall immediately notify Geac, both orally and in
writing, if any Person contacts Stockholder concerning any Extensity Acquisition
Proposal.
5. PUBLIC ANNOUNCEMENT. Stockholder shall not, in any capacity other than
on behalf of Extensity and then only in accordance with the Merger Agreement,
issue any press release or otherwise make any public statement with respect to
this Agreement, the Merger or the Merger Agreement. Notwithstanding the
foregoing, nothing in this Agreement shall prevent Stockholder from making any
disclosures required by the SEC, the NASDAQ Stock Market or Law.
6. DISCLOSURE. Stockholder authorizes Geac, Geac Sub and Extensity to
publish and disclose in any announcement or disclosure required by the SEC, the
Ontario Securities Commission, the TSX, the NASDAQ Stock Market or applicable
Law, Stockholder's identity and ownership of the Shares and Stockholder's
commitments under this Agreement.
7. REPRESENTATIONS AND WARRANTIES. Stockholder hereby represents and
warrants to Geac and Geac Sub that, as of the date of this Agreement and as of
the Effective Time:
7.1 OWNERSHIP. Stockholder has good and marketable title to, and is
the sole legal, record and beneficial owner of, the Record Shares, free and
clear of all liabilities, adverse claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever. Stockholder
is also the sole legal and beneficial holder of the Beneficial Shares, free and
clear of all Liens, except as shown on the exhibit to this Agreement.
7.2 AUTHORIZATION. Stockholder has all requisite power, authority
and legal capacity to execute and deliver this Agreement and to perform
Stockholder's obligations under this Agreement. Stockholder has the sole voting
power and sole power of disposition with respect to the Shares, without
restriction, except as shown on the exhibit to this Agreement. Stockholder
confirms that, if Stockholder is married, Stockholder's spouse consents to this
Agreement in all respects. Stockholder has duly executed and delivered this
Agreement. This Agreement is the legal, valid and binding agreement of
Stockholder, enforceable against Stockholder in accordance with its terms,
except to the extent that its enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar Laws of general application related to or affecting creditors' rights
and to general principles of equity.
7.3 NO VIOLATION. Neither the execution and delivery of this
Agreement nor its performance by Stockholder will: (a) require Stockholder to
file or register with, or obtain any permit, authorization, consent or approval
or any Government Entity or other Person (other than any Schedule 13D filing
required under the Exchange Act) or (b) violate, or cause a breach of or default
under, any contract, Law, judgment, decree, writ or order to which Stockholder
is a party or by which Stockholder or any of the Shares is bound or affected.
7.4 ADEQUATE INFORMATION. Stockholder is a sophisticated investor
and has had access to adequate information concerning the business, operations,
financial condition and prospects of Extensity, the Extensity Subs, Geac and the
Geac Subsidiaries to make an informed decision about the Merger Agreement, the
Merger and this Agreement, and has independently and without reliance upon Geac,
Geac Sub, Extensity or any Extensity Sub, based on such information as
Stockholder deemed appropriate, made an independent analysis and decision to
enter into this Agreement and support the Merger. Stockholder understands and
acknowledges that the effectiveness of this Agreement (including, without
limitation, its
Sections 1 and 2) shall not be affected in any way by any events or
circumstances that may occur after the date of this Agreement and before the
Stockholder Meeting, or by any information disclosed after the date of this
Agreement and before the Stockholder Meeting. Stockholder further understands
and acknowledge that Stockholder will be bound by this Agreement even if, for
example, a Extensity Superior Offer materializes. Stockholder understands and
acknowledges that none of Geac, Geac Sub, Extensity and the Extensity Subs has
made any representation or warranty, whether express or implied, of any kind or
character, to Stockholder, and that Stockholder is not a third party beneficiary
of the Merger Agreement.
7.5 NO SETOFF. Stockholder has no liability or obligation related to
or in connection with the Shares, other than the obligations to Geac and Geac
Sub set forth in this Agreement.
8. SPECIFIC PERFORMANCE. Stockholder acknowledges that Geac and Geac Sub
will be irreparably harmed and that there will be no adequate remedy at law for
a violation of any of Stockholder's covenants contained in this Agreement.
Accordingly, Stockholder agrees that, in addition to any other remedies that may
be available to Geac and Geac Sub, Geac and Geac Sub shall have the right to
injunctive relief to restrain any breach or threatened breach by Stockholder of
any such covenant or otherwise to obtain specific performance of any of such
covenant.
9. CERTAIN LITIGATION. Stockholder agrees to comply with the reasonable
requests of Geac and Extensity in defending or settling any action brought by or
against Extensity, Stockholder or any other affiliate or former affiliate of
Extensity for any act or omission that preceded the Merger (whether before or
after the date of this Agreement) including, without limitation, the securities
class action currently pending against Extensity and others in the Federal
District Court for the Southern District of New York.
10. MISCELLANEOUS
10.1 AMENDMENT AND MODIFICATION. This Agreement contains the entire
understanding, both oral and written, of the Parties and supersedes any and all
prior agreements and understandings with respect to its subject matter. This
Agreement may be amended, modified or supplemented only by a written agreement
of Geac, Geac Sub and Stockholder.
10.2 WAIVER AND CONSENTS. Any failure of Stockholder to comply with
any provision of this Agreement may be waived by Geac or Geac Sub only by a
written instrument signed by Geac granting the waiver. However, a waiver or
failure to insist upon strict compliance with a provision in this Agreement
shall not operate as a waiver of, or estoppel with respect to, any subsequent
failure to comply with that provision or any other provision of this Agreement.
Whenever this Agreement requires or permits a consent by any Party, that consent
shall be given in writing in a manner and with the same effects as for a waiver,
as set forth in this Section 10.2.
10.3 ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors and permitted
assigns. No Party may assign any rights under this Agreement or delegate any
obligations under this Agreement without the prior written consent of the other
Parties.
10.4 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be delivered personally, by overnight
courier or similar means, or sent by facsimile with written confirmation of
receipt, to the Parties at the addresses specified below or to such other
address for a Party as shall be specified by like notice. Any such notice shall
be effective upon receipt, if personally delivered, or on the next Business Day
following transmittal if sent by confirmed facsimile. Notices shall be delivered
as follows:
If to Geac or Geac Sub: Geac Computer Corporation Limited
00 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx
with a copy to: Xxxxx Xxxxxxx & Xxxxxxx LLP
Commerce Court West
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Telephone: (000) 000-0000
Facsimile (000) 000-0000
Attention: Xxxxx Xxxxxxxx
and a copy to: Xxxxxx Xxxxxx White & XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxxxxx
If to Stockholder:
10.5 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Delaware without reference to its principles of conflicts of law.
10.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be treated as an original but all of which
together shall constitute one and the same instrument.
10.7 SEVERABILITY. If any provision of this Agreement is finally determined to
be invalid, illegal or unenforceable in any respect, it shall be adjusted, if
possible, to effect the original intention of the Parties as nearly as is
possible. The validity, legality and enforceability of the remaining provisions
of this Agreement shall be unaffected by that determination unless, and then
only to the extent strictly necessary in order to accommodate, the deletion or
adjustment of the provision that was determined to be invalid, illegal or
unenforceable.
10.8 INTERPRETATION. The section headings in this Agreement are
principally for the purpose of reference and shall not, by themselves, affect
the meaning or interpretation of this Agreement.
10.9 TERM. This Agreement shall terminate upon the earlier of: (i)
the closing of the Merger and (ii) the termination of the Merger Agreement
pursuant to its Section 9.1 (the date and time of such termination being
referred to in this Agreement as the "EXPIRATION DATE"). After such a
termination, this Agreement shall be void and of no further force or effect,
provided that: (iii) the termination of this Agreement shall not relieve any
Party from liability for any breach of this Agreement before its termination,
(iv) Sections 7 and 10 of this Agreement shall continue in effect after the
termination of this Agreement, and (v) Section 9 of this Agreement shall
continue in effect if and after the Merger closes.
10.10 FIDUCIARY DUTIES. Notwithstanding anything in this Agreement
to the contrary, nothing in this Agreement shall limit or restrict: (a)
Stockholder from acting in Stockholder's capacity as a director or officer of
Extensity, if Stockholder is such a director or officer, or (b) any
representative of Stockholder on Extensity's board of directors from acting in
his capacity as a director of Extensity (it being understood, for purposes of
both clause (a) and (b), that this Agreement shall apply to Stockholder solely
in Stockholder's capacity as a stockholder of Extensity) or (c) voting any
Shares in Stockholder's sole discretion on any matter other than those referred
to in Section 1 of this Agreement.
10.11 EXPENSES AND ENFORCEMENT. Each Party shall pay its own costs
and expenses incurred in connection with this Agreement. However, if any Party
seeks to enforce any rights under this Agreement, whether through formal
proceedings or otherwise, the Party or Parties that substantially prevail shall
be entitled to reimbursement for its or their costs and expenses incurred in
that effort including, without limitation, its or their reasonable attorneys'
fees and costs.
10.12 FURTHER ASSURANCES. Stockholder (in Stockholder's capacity as
such) shall execute and deliver any additional documents, and take any other
actions, reasonably requested by Geac to carry out the purposes and intent of
this Agreement.
IN WITNESS WHEREOF, the Parties have signed this Agreement as of the date that
appears in its first paragraph.
GEAC COMPUTER CORPORATION LIMITED
By
----------------------------------------
Name
--------------------------------------
Title
-------------------------------------
CAGE ACQUISITION INC.
By
----------------------------------------
Name
--------------------------------------
Title
-------------------------------------
STOCKHOLDER
------------------------------------------
Name:
SHARES OF EXTENSITY COMMON STOCK HELD OF
RECORD:
SHARES OF EXTENSITY COMMON STOCK
BENEFICIALLY OWNED:
EXHIBIT
Information regarding record ownership of Shares that Stockholder does not hold
of record:
Information regarding Shares held in trust:
