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Exhibit
10.1
Execution
Copy
STOCKHOLDER
AGREEMENT
STOCKHOLDER AGREEMENT, dated
as of August 13, 2007 (this “Agreement”), among
the stockholders listed on the signature page(s) hereto
(collectively, “Stockholders” and each individually, a
“Stockholder”), Gensym Corporation, a Delaware
corporation (the “Company”) and Versata Enterprises,
Inc., a Delaware corporation (“Parent”). Capitalized
terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Merger Agreement
referred to below.
WHEREAS, as of the date
hereof, the Stockholders collectively own of record and
beneficially shares of capital stock of the Company, as set forth
on Schedule I hereto (such shares, or any other voting or equity of
securities of the Company hereafter acquired by any Stockholder
prior to the termination of this Agreement, being referred to
herein collectively as the “Shares”);
WHEREAS, concurrently with
the execution of this Agreement, Parent and the Company are
entering into an Agreement and Plan of Merger, dated as of the date
hereof (the “Merger Agreement”), pursuant to which,
upon the terms and subject to the conditions thereof, a subsidiary
of Parent will be merged with and into the Company, and the Company
will be the surviving corporation (the “Merger”);
and
WHEREAS, as a condition to
the willingness of Parent to enter into the Merger Agreement,
Parent has required that the Stockholders agree, and in order to
induce Parent to enter into the Merger Agreement, the Stockholders
are willing to enter into this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree, severally and not jointly, as
follows:
Section 1. Voting of
Shares .
(a) Each Stockholder
covenants and agrees that until the termination of this Agreement
in accordance with the terms hereof, at the Company Meeting or any
other meeting of the stockholders of the Company, however called,
and in any action by written consent of the stockholders of the
Company, such Stockholder will vote, or cause to be voted, all of
his, her or its respective Shares (i) in favor of adoption of
the Merger Agreement and approval of the Merger contemplated by the
Merger Agreement, as the Merger Agreement may be modified or
amended from time to time in a manner not adverse to the
Stockholders, (ii) against any merger agreement or merger
(other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by
the Company or any other proposal, offer or agreement concerning
any merger, reorganization, consolidation, recapitalization,
business combination, liquidation, share exchange, sale of stock,
sale of material assets or similar business transaction involving
the Company, any subsidiary of the Company or any division of the
Company and (iii) against any other action, agreement or
transaction submitted for the vote or written consent of
Stockholders that would reasonably be expected to impede, interfere
with, delay, postpone, discourage, frustrate the purposes of or
adversely affect the Merger or the other transactions contemplated
by the Merger Agreement or this Agreement or the performance by the
Company of its obligations under the Merger Agreement or by such
Stockholder of its obligations under this Agreement.
(b) Each Stockholder hereby
irrevocably grants to, and appoints, Parent, and any individual
designated in writing by it, and each of them individually, as its
proxy and attorney-in-fact (with full power of substitution), for
and in its name, place and stead, to vote his, her or its Shares at
any meeting of the stockholders of the Company called with respect
to any of the matters specified in, and in accordance and
consistent with this Section 1. Each Stockholder understands
and acknowledges that Parent is entering into the Merger Agreement
in reliance upon the Stockholder’s execution and delivery of
this Agreement. Each Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 1(b) is given in
connection with the execution of the Merger Agreement, and that
such irrevocable proxy is given to secure the performance of the
duties of such Stockholder under this Agreement. Except as
otherwise provided for herein, each Stockholder hereby
(i) affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked,
(ii) ratifies and confirms all that the proxies appointed
hereunder may lawfully do or cause to be done by virtue hereof and
(iii) affirms that such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of
Section 212(e) of the Delaware General Corporation Law.
Notwithstanding any other provisions of this Agreement, the
irrevocable proxy granted hereunder shall automatically terminate
upon the termination of this Agreement.
(c) Each Stockholder
covenants and agrees that until the termination of this Agreement
in accordance with the terms hereof, at the Company Meeting or any
other meeting of the stockholders of the Company, however called,
and in any action by written consent of the stockholders of the
Company, such Stockholder shall appear at each such meeting or
otherwise cause the Shares as to which such Stockholder controls
the right to vote to be counted as present thereat for purposes of
calculating a quorum.
(d) The obligations of each
Stockholder specified in this Section 1 shall, subject to
Section 6, apply whether or not the Merger or any action
described above is recommended by the Board of Directors of the
Company.
Section 2. Transfer
of Shares . Each Stockholder covenants and agrees that such
Stockholder will not directly or indirectly (i) sell, assign,
transfer (including by merger, testamentary disposition,
interspousal disposition pursuant to a domestic relations
proceeding or otherwise by operation of law), pledge, encumber or
otherwise dispose of any of the Shares, (ii) deposit any of
the Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Shares or grant any proxy or power
of attorney with respect thereto which is inconsistent with this
Agreement or (iii) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect
sale, assignment, transfer (including by merger, testamentary
disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law) or other
disposition of any Shares.
Section 3.
Representations and Warranties of the Stockholders . Each
Stockholder on its own behalf hereby severally represents and
warrants to Parent with respect to itself and its, his or her
ownership of the Shares as follows:
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(a) Ownership of
Shares . The Stockholder beneficially owns all of the Shares as
set forth on Schedule I hereto and has good and marketable title to
such Shares, free and clear of any claims, liens, encumbrances and
security interests whatsoever. The Stockholder owns no shares of
Common Stock other than the Shares as set forth on Schedule I
hereto. The Stockholder has sole voting power, without
restrictions, with respect to all of the Shares.
(b) Power, Binding
Agreement . The Stockholder has the legal capacity and all
requisite power and authority to enter into and perform all of its
obligations, under this Agreement. This Agreement has been duly and
validly executed and delivered by the Stockholder and constitutes a
valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms.
(c) No Conflicts . The
execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not,
conflict with or result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any
obligation or to loss of a material benefit under, any provision of
any loan or credit agreement, note, bond, mortgage, indenture,
lease, or other agreement, instrument, permit, concession,
franchise, license, judgment, order, decree, statute,
law,
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