GREAT PLAINS SOFTWARE, INC.
SHAREHOLDER AGREEMENT
This Shareholder Agreement (this "Agreement") is made and entered into as
of December 21, 2000, between Microsoft Corporation, a Washington corporation
("Microsoft"), and the undersigned Shareholder(s) ("Shareholder") of Great
Plains Software, Inc., a Minnesota corporation ("Company").
RECITALS
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A. Concurrently with the execution of this Agreement, Company, Microsoft
and a wholly owned subsidiary of Microsoft ("Sub") have entered into an
Agreement and Plan of Reorganization (the "Reorganization Agreement"), which
provides for the merger (the "Merger") of Sub with and into Company. Pursuant
to the Merger, all outstanding capital stock of Company will be converted into
Microsoft Common Stock.
B. The Shareholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such number of shares of the outstanding Common Stock of Company as indicated on
the final page of this Agreement (the "Shares").
C. In consideration of the execution of the Reorganization Agreement by
Microsoft, Shareholder agrees not to transfer or otherwise dispose of any of the
Shares, or any other shares of capital stock of Company acquired by Shareholder
hereafter and prior to the Expiration Date (as defined in Section 1.1 below),
and agrees to vote the Shares and any other such shares of capital stock of
Company so as to facilitate consummation of the Merger.
NOW, THEREFORE, the parties agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance. Until the Expiration Date (as defined
below), Shareholder agrees not to sell, exchange, transfer, pledge or otherwise
dispose of or encumber the Shares or any New Shares (as defined in Section 1.2
below) unless each person to whom Shares are sold, exchanged, transferred,
pledged or otherwise disposed of or encumbered agrees in writing to hold such
Shares subject to the terms and conditions of this Agreement. As used herein,
the term "Expiration Date" shall mean the earlier to occur of (i) such date and
time as the Merger shall become effective in accordance with the terms and
provisions of this Reorganization Agreement and (ii) such date and time as the
Reorganization Agreement shall be terminated in accordance with the terms
therein.
1.2 New Shares. Shareholder agrees that any shares of capital stock
of Company that Shareholder purchases or with respect to which Shareholder
otherwise acquires beneficial ownership after the date of this Agreement and
prior to the Expiration Date ("New Shares") shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares.
2. Agreement to Vote Shares. Until the Expiration Date, at every meeting
of the shareholders of Company called with respect to any of the following, and
at every adjournment thereof, and on every action or approval by written consent
of the Shareholders of Company with respect to any of the following, Shareholder
shall vote the Shares and any New Shares: (i) in favor of approval of the
Reorganization Agreement and the Merger and any matter that could reasonably be
expected to facilitate the Merger, and (ii) against approval of any proposal
made in opposition to or in competition with consummation of the Merger and the
Reorganization Agreement, against any merger, consolidation, sale of assets,
reorganization or recapitalization with any party other than Microsoft or its
affiliates and against any liquidation or winding up of Company (each of the
foregoing is hereinafter referred to as an "Opposing Proposal"). Shareholder
agrees not, directly or indirectly, to solicit or encourage any offer from any
party concerning the possible disposition of all or any substantial portion of
Company's business, assets or capital stock. This Agreement is intended to bind
Shareholder as a shareholder of Company only with respect to the specific
matters set forth herein and shall not prohibit Shareholder from acting in
accordance with his or her fiduciary duties, if applicable, as an officer or
director of Company.
3. Irrevocable Proxy. Concurrently with the execution of this Agreement,
Shareholder agrees to deliver to Microsoft a proxy in the form attached hereto
as Exhibit A (the "Proxy"), which shall be irrevocable to the extent provided in
Section 302A.449 of the Minnesota Business Corporation Act (the "MBCA") as this
Proxy is coupled with an interest in the Shares, covering the total number of
Shares and New Shares of capital stock of Company beneficially owned (as such
term is defined in Rule 13d-3 under the Exchange Act) by Shareholder set forth
therein. This Proxy is not terminable under 302A.449 subd. 7 of the MBCA since
Company has elected not to be subject to Section 302A.671 of the MBCA.
4. Representations, Warranties and Covenants of Shareholder. Shareholder
hereby represents, warrants and covenants to Company as follows:
4.1 Ownership of Shares. Shareholder: (i) is the beneficial owner
of the Shares, which at the date of this Agreement and at all times up until the
Expiration Date will be free and clear of any liens, claims, options, charges or
other encumbrances that would adversely affect the ability of Shareholder to
carry out the terms of this Agreement; (ii) does not beneficially own any shares
of capital stock of Company other than the Shares (excluding shares as to which
Shareholder currently disclaims beneficial ownership in accordance with
applicable law); and (iii) has full power and authority to make, enter into and
carry out the terms of this Agreement and the Proxy.
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4.2 No Proxy Solicitations. Shareholder will not, and will not
permit any entity under Shareholder's control, to: (i) solicit proxies or become
a "participant" in a "solicitation" as such terms are defined in Regulation 14A
under the Exchange Act) with respect to an Opposing Proposal or otherwise
encourage or assist any party in taking or planning any action that would
compete with, restrain or otherwise serve to interfere with or inhibit the
timely consummation of the Merger in accordance with the terms of the Merger
Agreements; (ii) initiate a Shareholders' vote or action by written consent of
Company Shareholders with respect to an Opposing Proposal; or (iii) become a
member of a "group" (as such term is used in Section 13(d) of the Exchange Act)
with respect to any voting securities of Company with respect to an Opposing
Proposal.
5. Additional Documents. Shareholder and Company hereby covenant and
agree to execute and deliver any additional documents necessary or desirable, in
the reasonable opinion of Microsoft, to carry out the purpose and intent of this
Agreement.
6. No Right to Manage. Except as otherwise provided in the
Reorganization Agreement and in this Agreement, Microsoft shall have no
authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of Company, or exercise any power
or authority to direct Shareholder in the voting of any of the Shares (except as
otherwise provided herein and in Exhibit A) or the performance of the
Shareholder's duties or responsibilities as a shareholder of Company.
7. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. Miscellaneous.
8.1 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, then 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.
8.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interest or obligations of the parties hereto may be assigned by either
of the parties without the prior written consent of the other.
8.3 Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
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8.4 Specific Performance: Injunctive Relief. The parties hereto
acknowledge that Microsoft will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Shareholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Microsoft upon any such violation,
Microsoft shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
Microsoft at law or in equity.
8.5 Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to Microsoft: Microsoft Corporation
One Microsoft Way
Redmond, Washington 98052
Attn.: Deputy General Counsel,
Finance and Operations
Facsimile No. (206) 869-1327
With a copy to: Preston Gates & Ellis LLP
5000 Bank of America Tower
701 Fifth Avenue
Seattle, Washington 98104-7078
Attention: Richard B. Dodd
Facsimile: (206) 623-7022
If to Shareholder: To the address for notice set forth on the last page
hereof.
With a copy to: Dorsey & Whitney LLP
220 South Sixth Street
Minneapolis, MN 55402-1498
Attention: Timothy S. Hearn
Fax: (612) 340-2868
8.6 Governing Law. This Agreement shall be governed by, construed
and enforced in accordance with the internal laws of the State of Minnesota.
8.7 Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
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8.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
8.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
(the remainder of this page was intentionally left blank)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
MICROSOFT CORPORATION SHAREHOLDER
By:
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Title: -----------------------------------------
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(spouse, if applicable)
Address
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Shares beneficially owned:
shares of Company Common Stock
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EXHIBIT A
IRREVOCABLE PROXY
to Vote
Great Plains Software, Inc. Common Stock
The undersigned Shareholder(s) of Great Plains Software, Inc., a Minnesota
corporation ("Company"), hereby irrevocably (to the full extent permitted by
Section 302A.449 subd. 7 of the Minnesota Business Corporation Act) appoints
Robert A. Eshelman and Amar Nehru, each an officer of Microsoft Corporation, a
Washington corporation ("Microsoft"), as the sole and exclusive attorneys and
proxies of the undersigned, with full power of substitution and resubstitution,
to vote and exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock of Company that now are or hereafter may be beneficially owned by the
undersigned and any and all other shares or securities of Company issued or
issuable in respect thereof on or after the date hereof (collectively, the
"Shares") in accordance with the terms of this Proxy. The Shares beneficially
owned by the undersigned Shareholder of Company as of the date of this Proxy are
listed on the final page of this Proxy. Upon the undersigned's execution of
this Proxy, any and all prior proxies given by the undersigned with respect to
any Shares that are inconsistent with this Proxy are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares that are inconsistent with this Proxy until after the Expiration Date (as
defined below).
This proxy is irrevocable (to the extent provided in Section 302A.449 of
the Minnesota Business Corporation Act), is granted pursuant to that certain
Shareholder Agreement dated as of December __, 2000 by and among Microsoft and
the undersigned Shareholder (the "Shareholder Agreement"), and is granted in
consideration of Microsoft entering into that certain Agreement and Plan of
Reorganization dated as of December __, 2000 (the "Reorganization Agreement"),
among Company, Microsoft, and a wholly-owned subsidiary of Microsoft ("Sub").
The Reorganization Agreement provides for the merger of Sub with and into
Company in accordance with its terms (the "Merger"). As used herein the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the Merger shall become effective in accordance with the terms and provisions of
the Reorganization Agreement or (ii) such date and time as the Reorganization
Agreement shall be terminated in accordance with the terms therein. This proxy
is intended to bind Shareholder as a shareholder of Company only with respect to
the specific matters set forth herein and shall not prohibit Shareholder from
acting in accordance with his or her fiduciary duties, if applicable, as an
officer or director of Company.
The attorney and proxy named above is hereby authorized and empowered by
the undersigned, at any time prior to the Expiration Date, to act as the
undersigned's attorney and proxy to vote the Shares, and to exercise all voting
and other rights of the undersigned with respect to the Shares (including,
without limitation, the power to execute and deliver written consents pursuant
to Section 302A.441 of the Minnesota Business Corporation Act), at every
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annual, special or adjourned meeting of the shareholders of Company and in every
written consent in lieu of such meeting: (a) in favor of approval of the Merger
and the Reorganization Agreement and in favor of any matter that could
reasonably be expected to facilitate the Merger, and (b) against approval of any
proposal made in opposition to or in competition with the consummation of the
Merger and the Reorganization Agreement and against any liquidation or winding
up of Company. The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided in clauses (a) and (b)
above. The undersigned Shareholder may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable (to the extent provided in Section 302A.449 of
the Minnesota Business Corporation Act).
Dated: December , 2000 SHAREHOLDER
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By
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By
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(spouse if applicable)
Shares beneficially owned:
shares of Company Common Stock
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Pursuant to the requirements set forth in Section 302A.449 subd. 1 of the
Minnesota Business Corporation Act, Great Plains Software, Inc. acknowledges
receipt of this Irrevocable Proxy.
GREAT PLAINS SOFTWARE, INC.
By
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Its
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Shareholder Agreement - Microsoft Corp. and Shareholder of Great Plains Software Inc.
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