Exhibit 99(d)(8)
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (this "Amendment")
is entered into as of this 13th day of August, 2003, by and 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").
WHEREAS, the Company, Parent and Merger Subsidiary are parties to an
Agreement and Plan of Merger dated June 22, 2003 (the "Merger Agreement");
WHEREAS, capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Merger Agreement;
WHEREAS, pursuant to the Merger Agreement, Merger Subsidiary has
purchased approximately 9,745,362 Shares, representing 89.87 % of the Shares
outstanding on the date hereof;
WHEREAS, the parties wish to amend the Merger Agreement to facilitate
the exercise by Merger Subsidiary of the Top-Up Option and the subsequent
Merger;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties hereby agree as follows:
1. Amendment.
Section 2.04 (a) of the Merger Agreement is hereby amended and restated
in its entirety to read as follows:
"(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 up to a 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 (assuming the issuance of the Top-Up Option Shares but assuming
no exercise of any other outstanding option to purchase Shares); 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)."
Section 2.04 (b) of the Merger Agreement is hereby amended and restated
in its entirety to read as follows:
"(b) The Merger Subsidiary may exercise the Top-Up Option, in whole or
in part, on more than one occasion from time to 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 in whole or in part the Top-Up Option in accordance with the
terms and conditions of this Agreement; and (iv) ten (10) business days after
the then most recent Top-Up Response Date (as defined below) unless a Top-Up
Closing (as defined below) has previously occurred."
2. Effect on Merger Agreement. Except as modified hereby, the
Merger Agreement shall remain in full force and effect.
3. Governing Law. This Amendment 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).
4. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this First Amendment
to the Merger Agreement as of the day and year first above written.
COMSHARE, INCORPORATED
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President & Chief
Financial Officer
GEAC COMPUTER CORPORATION LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President, Mergers &
Acquisitions, and Corporate Secretary
CONDUCTOR ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
