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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, licens
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