EXHIBIT 2.3
FORM OF LOCK-UP AGREEMENT
THIS IS A LOCK-UP AGREEMENT (this "Agreement") made and entered into as of
August 26, 2002 by and between GEAC COMPUTER CORPORATION LIMITED, a corporation
governed by the Canada Business Corporations Act ("Geac"), and _______________
("Stockholder"). Geac and Stockholder are each sometimes referred to as a
"Party" and together as the "Parties".
B A C K G R O U N D
Geac, Cage Acquisition Inc., a Delaware corporation that is wholly-owned
by Geac ("Geac Sub"), and Extensity, Inc., a Delaware corporation, 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. Stockholder owns shares of Extensity
common stock and _______ is a director and officer of Extensity. In addition,
Stockholder may be considered an "affiliate" of Extensity, as that term is
defined for purposes of paragraph (c) of Rule 145 adopted by the United States
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended. If and when the Merger is completed, Stockholder may receive Geac
common shares in exchange for some or all of Stockholder's shares of Extensity
common stock. 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 has carefully read this Agreement and
has discussed (or had an opportunity to discuss) its requirements and
implications with Stockholder's legal counsel. Because Stockholder desires that
Geac enters into the Merger Agreement, Stockholder is signing this Agreement.
Capitalized terms used but not defined in the balance of this Agreement have the
definitions assigned to them in the Merger Agreement.
ACCORDINGLY, THE PARTIES HEREBY AGREE AS FOLLOWS:
11. SECURITIES ACT RESTRICTIONS. Stockholder shall not sell, transfer or
otherwise dispose of any common shares of Geac received by Stockholder in the
Merger or any other security issued by Geac in exchange for any of such shares
or in respect to any of such shares ("Geac Common Shares") in violation of the
Securities Act. Stockholder understands that any issuance of Geac Common Shares
to Stockholder in the Merger is expected to be registered under the Securities
Act on a Registration Statement on Form F-4. However, Stockholder also
understands that Stockholder may not sell, transfer or otherwise dispose of any
Geac Common Shares except in certain circumstances. That is because, at the time
of the Stockholder Meeting, Stockholder may be considered an Affiliate of
Extensity and because the distribution by Stockholder of Geac Common Shares has
not been registered under the Securities Act. Accordingly, Stockholder may not
sell, transfer or otherwise dispose of any Geac Common Stock issued to
Stockholder in the Merger unless: (a) the sale, transfer or other disposition
has been registered under the Securities Act, (b) the sale, transfer or other
disposition is made in conformity with the volume, holding period and other
applicable limitations imposed by or through Rule 145 under the Securities Act,
(c) in the opinion of counsel reasonably acceptable to Geac (it being understood
that the law firm of Xxxxxx Godward LLP is deemed to be reasonably acceptable to
Geac), the sale, transfer or other disposition is otherwise exempt from
registration under the Securities Act, or (d) an authorized representative of
the SEC takes a position in writing, reasonably acceptable to Geac, to the
effect that the SEC would take no action, or that the staff of the SEC would not
recommend that the SEC take action, with respect to such sale, transfer or other
disposition, and a copy of such written position (a "No Action
Correspondence") is delivered to Geac. Stockholder understands that Geac will be
under no obligation to register the sale, transfer or other disposition of any
Geac Common Shares by Stockholder or on Stockholder's behalf under the
Securities Act or to take any other action necessary in order to make any
exemption from registration available to Stockholder.
12. CONTRACTUAL RESTRICTION. In addition, as a contractual matter,
Stockholder shall not sell, transfer or otherwise dispose of any Geac Common
Shares even if the requirements of Section 1 of this Agreement have been
satisfied, except as follows: (a) on the day after the three month anniversary
of the Effective Time, Stockholder may sell, transfer or otherwise dispose of
16.7% of the Geac Common Shares, and (b) on the day after each subsequent
monthly anniversary of the Effective Time, the Stockholder may sell, transfer or
otherwise dispose of up to an additional 16.7% of the Geac Common Shares
following each monthly anniversary. Stockholder may only sell, transfer or
otherwise dispose of the Geac Common Shares as set out in this Section 2 if the
provisions of Section 1 are met.
13. STOP TRANSFER INSTRUCTIONS AND LEGEND. Stockholder understands and
agrees that stop transfer instructions will be given to Geac's transfer agent
with respect to the Geac Common Shares owned by Stockholder. In addition,
Stockholder understands and agrees that Geac will cause substantially the
following legend to be placed on all certificates representing Geac Common
Shares held by Stockholder:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 000 XXXXX XXX XXXXXX XXXXXX SECURITIES ACT OF
1933, AS AMENDED, APPLIES. THE SECURITIES MAY ONLY BE TRANSFERRED IN
ACCORDANCE WITH A LOCK-UP AGREEMENT DATED AUGUST, 2002 BETWEEN THE HOLDER
OF THE SECURITIES AND GEAC COMPUTER CORPORATION LIMITED. A COPY OF THAT
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF GEAC COMPUTER CORPORATION
LIMITED."
The legend shall be removed by delivery of substitute certificates without the
legend, if Stockholder delivers to Geac a written request to remove the legend
and such Geac Common Stock is no longer subject to the contractual transfer
restrictions set forth at Section 2 of this Agreement and either (a) Stockholder
has furnished Geac with reasonably satisfactory evidence and representations
that the securities represented by the certificate are being or have been sold,
transferred or otherwise disposed of in accordance with clause (a) or (b) of
Section 1 above or (b) Stockholder has delivered to Geac the opinion
contemplated by clause (c) of Section 1 above, in written form addressed to Geac
and obtained at the cost of Stockholder, or (c) Stockholder has delivered to
Geac the No Action Correspondence contemplated by clause (d) of Section 1 above,
obtained at the cost of Stockholder.
14. SPECIFIC PERFORMANCE. Stockholder acknowledges that Geac may be
irreparably harmed and that there will be no adequate remedy at law for a breach
of any of Stockholder's promises contained in this Agreement. Accordingly,
Stockholder agrees that, in addition to any other remedies that may be available
to Geac, Geac shall be entitled to injunctive relief to restrain any breach or
threatened breach of any such promise or otherwise to obtain specific
performance of any of such promise.
15. MISCELLANEOUS
15.1 AMENDMENT AND MODIFICATION. This Agreement contains the entire
understanding, both oral and written, of the Parties. It 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 and Stockholder.
15.2 WAIVER. Any failure of Stockholder to comply with any provision
of this Agreement may be waived by Geac 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.
15.3 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 other Party at the applicable address 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: 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
If to Stockholder:
15.4 GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Delaware without reference to its
principles of conflicts of law.
15.5 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.
15.6 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 purposes of this Agreement 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.
15.7 EXPENSES AND ENFORCEMENT. Each Party shall pay its own costs
and expenses incurred in connection with this Agreement. However, if either
Party seeks to enforce any rights under this Agreement, whether through formal
proceedings or otherwise, the Party that substantially prevails shall be
entitled to reimbursement for that costs and expenses incurred in that effort
including, without limitation, that Party's reasonable attorneys' fees and
costs.
15.8 FURTHER ASSURANCES. Stockholder 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.
15.9 SPOUSAL CONSENT. Stockholder confirms that, if Stockholder is
married, Stockholder's spouse consents to this Agreement in all respects.
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 __________________________
STOCKHOLDER
_________________________________
Name:
