Exhibit 10.1
STOCKHOLDER TENDER AND VOTING
AGREEMENT
THIS STOCKHOLDER TENDER AND VOTING
AGREEMENT (this “ Agreement ”) dated as of
December 7, 2005, is made and entered into by and among
Trilogy, Inc., a Delaware corporation (“ Parent
”), V Acquisition, Inc., a Delaware corporation and wholly
owned subsidiary of Parent (“ Sub ”), and each
other Person listed on the signature pages hereof (each, a “
Stockholder ”). Capitalized terms not defined herein
have the meanings ascribed to such terms in the Agreement and Plan
of Merger dated of even date herewith (as the same may be amended
from time to time, the “ Merger Agreement ”) by
and among Parent, Sub and Versata, Inc., a Delaware corporation
(the “ Company ”).
THE PARTIES ENTER THIS AGREEMENT ON
THE BASIS OF THE FOLLOWING FACTS, UNDERSTANDINGS AND
INTENTIONS:
A. Parent, Sub and the Company
propose to enter into the Merger Agreement, which provides for
Parent to make a cash tender offer (the “ Tender Offer
”) to purchase all of the outstanding shares of Company
Common Stock, including the Shares beneficially owned (as
hereinafter defined) by each Stockholder, and the merger of Sub
with and into the Company (the “ Merger ”), upon
the terms and subject to the conditions of the Merger
Agreement;
B. As of the date hereof, each
Stockholder is the beneficial owner (“beneficial
owner,” “beneficial ownership,”
“beneficially,” and related terms, wherever used
herein, within the meaning of Section 13(d)(1) of the Exchange
Act, but shall exclude any Shares issuable pursuant to outstanding
options not exercised prior to the completion or expiration of the
Tender Offer) and the owner of record of the number of shares and
percentage of ownership of Company Common Stock, set forth opposite
such Stockholder’s name on Exhibit A hereto;
and
C. As a condition to their
willingness to enter into the Merger Agreement, Parent and Sub have
required each Stockholder to agree, and, in order to induce Parent
and Sub to enter into the Merger Agreement each Stockholder, in
such Stockholder’s capacity as a stockholder of the Company,
is willing to agree, severally and not jointly, to (a) tender
all Shares beneficially owned by such Stockholder (as to each
Stockholder, the “ Owned Shares ”) into the
Tender Offer; (b) grant to each of Parent and Sub the Option
(defined below); and (c) grant Parent an irrevocable proxy in
respect of such Owned Shares in connection with certain matters, in
each case as more fully described in this Agreement, and to agree
to such other matters as are set forth herein.
NOW, THEREFORE, in consideration of
the foregoing and the respective representations, warranties,
covenants and agreements set forth herein and in the Merger
Agreement, the parties hereto agree as follows:
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ARTICLE I
TRANSFER, TENDER AND VOTING OF
SHARES
1.1 No Transfer; Other
Actions.
(a) Without the prior written
consent of Parent or as expressly contemplated hereby, from the
date hereof until the Outside Date, each Stockholder agrees not to
(directly or indirectly) (i) sell, transfer, pledge, assign,
encumber (or suffer to exist any encumbrances) or otherwise dispose
of or hypothecate (including in each case by gift or contribution,
distribution to or from any trust or similar instrument, merger,
consolidation, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise or
otherwise provided by law) (collectively, “ Transfer
”) any of such Stockholder’s Owned Shares;
(ii) grant any proxy, power-of-attorney or other authorization
or consent with respect to any of such Stockholder’s Owned
Shares; (iii) deposit any of such Stockholder’s Owned
Shares into a voting trust or enter into a voting agreement,
arrangement or understanding with respect to any of such
Stockholder’s Owned Shares or grant any proxy with respect
thereto; (iv) enter into any Contract, option or other
arrangement or undertaking (including any profit sharing
arrangement) with respect to any of the items referred to in the
foregoing clauses (i) through (iii); (v) acquire
beneficial ownership of additional Shares (by exercise of any
option, exchange, conversion of any right or otherwise); or
(vi) knowingly take or cause the taking of any other action
that would make such Stockholder’s representations and
warranties contained herein incorrect or restrict, limit or
interfere with the performance of such Stockholder’s
obligations hereunder or the transactions contemplated
hereby.
(b) Each Stockholder hereby
authorizes and requests Parent or Sub to notify the Company’s
transfer agent that there is a stop transfer order with respect to
all of such Stockholder’s Owned Shares and that this
Agreement places limits on the voting of all such Owned Shares;
provided, however, that any such stop transfer order shall
terminate upon the termination of this Agreement pursuant to
Section 4.11 hereof.
1.2 Tender of Shares
.
(a) Subject to Section 1.4 and
Section 1.6 hereof, each Stockholder agrees that such
Stockholder shall tender or cause to be tendered in the Tender
Offer, prior to the Outside Date, all of such Stockholder’s
Owned Shares as of the date hereof and any and all Shares such
Stockholder may acquire prior to the expiration of the Tender Offer
and that it shall not withdraw or cause to be withdrawn any such
Shares so tendered. Each Stockholder hereby acknowledges and agrees
that the obligation of Parent to commence the Tender Offer and
accept for payment and pay for such Shares in the Tender Offer is
subject to the terms and conditions set forth in
Annex A to the Merger Agreement and subject to
applicable law. In addition, each Stockholder hereby severally and
not jointly grants to each of Parent and Sub an irrevocable option
(as to each Stockholder, the “ Option ”) to
purchase any or all of such Stockholder’s Owned Shares at a
price per share equal to an amount not less than that which is
offered in the Tender Offer. Subject to Section 4.11 hereof,
the Option may be exercised at any time and from time to time after
the date hereof and prior to the later of the expiration (as such
date could be extended
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pursuant to the Merger Agreement) or termination
of the Merger Agreement and Tender Offer; provided, however, that
the Option shall only be exercisable if Parent
reasonably determines in good faith that the Minimum Condition
would be met after giving effect to (i) the sale of all
Shares properly tendered but not withdrawn in
the Tender Offer and (ii) all other exercises (if any) of
the Option with respect to the Shares for which the Parent intends
to exercise the Option. If Parent shall for any reason have
increased the price per share payable in the Tender Offer over the
original Offer Price (and Parent accepts Shares for payment
pursuant to the Tender Offer), then, immediately following payment
by Parent for the Shares pursuant to the Tender Offer, each
Stockholder shall pay to such Parent on demand an amount in cash
equal to the product of (i) the number of such
Stockholder’s Owned Shares purchased pursuant to the Tender
Offer and (ii) the excess of (A) the per share cash
consideration received by such Stockholder as a result of the
Tender Offer, as amended, less (B) the original Offer
Price.
(b) As of the date hereof, each
Stockholder that has any currently exercisable options outstanding
has currently exercisable options outstanding for such number of
shares of Company Common Stock as set forth opposite such
Stockholder’s name on Exhibit A hereto and no
Stockholder has any options, warrants, or other rights exercisable,
convertible, or exchangeable for any Shares that are not set forth
opposite such Stockholder’s name on Exhibit A
hereto.
(c) Each Stockholder hereby agrees
to permit Parent and Sub to publish and disclose in the Tender
Offer Material, and if required under applicable law, the Proxy
Statement (including all documents and schedules filed with the
SEC) such Stockholder’s identity and ownership of Company
Common Stock and the nature of such Stockholder’s
commitments, arrangements and understandings under this
Agreement.
1.3 Voting of Shares
.
(a) Subject to Section 1.4 and
Section 1.6 hereof, each Stockholder, by this Agreement, at
every annual, special, postponed or adjourned meeting of the
stockholders of the Company called, and at every postponement or
adjournment thereof, irrevocably agrees to vote any and all of such
Stockholder’s Owned Shares entitled to be voted thereat or to
cause any and all such Owned Shares to be voted: (i) in favor
of the adoption of the Merger Agreement and approval of the Merger
and the other Contemplated Transactions, (ii) against
(a) any proposal for any merger, consolidation,
recapitalization, sale of assets or other business combination
(other than the Merger) between the Company and any Person (other
than Parent or Sub), (b) any Acquisition Proposal or any
Alternative Transaction (other than a Superior Proposal),
(c) any change in the Company’s capital structure or any
amendment of the Company’s Certificate of Incorporation or
Bylaws, or (d) any other action or agreement intended to or
that could result in (x) a breach of any covenant,
representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement, (y) any of the
conditions to the Company’s obligations under the Merger
Agreement not being fulfilled, or (z) a delay of completion of
the Tender Offer and/or the Merger, and (iii) in favor of any
other matter relating to the consummation of the transactions
contemplated by the Merger Agreement. Each Stockholder further
agrees to cause such Stockholder’s Owned Shares to be voted
in accordance with the foregoing. Each Stockholder acknowledges
receipt and review of a copy of the Merger Agreement.
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(b) Subject to Section 1.4 and
Section 1.6 hereof, in furtherance of the agreements contained
in Section 1.3(a) hereof and as security for such agreements,
each Stockholder hereby irrevocably appoints Parent and Sub, or any
nominee designated by Parent or Sub, and each of them individually,
as the sole, exclusive, true and lawful Proxy (the “
Proxy ”) of such Stockholder, to vote each of such
Stockholder’s Owned Shares as the Proxy of such Stockholder,
for and in the name, place and stead of such Stockholder, with full
power of substitution and resubstitution, (i) in favor of the
adoption of the Merger Agreement and approval of the Merger and the
other Contemplated Transactions, (ii) against any matter
referred to in Section 1.3(a)(ii) of this Agreement,
(iii) in favor of any other matter relating to consummation of
the Contemplated Transactions, and (iv) in the discretion of
the Proxy, with respect to any proposed postponements or
adjournments of any annual or special meeting of the stockholders
of the Company held in connection with any of the foregoing. Each
Stockholder hereby affirms and agrees that the irrevocable proxy
set forth in this Section 1.3(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. Each Stockholder hereby further
affirms and agrees that the irrevocable proxy is coupled with an
interest and, except as set forth in this Section 1.3(b) or
Section 1.4 and Section 1.6 hereof, is intended to be
irrevocable in accordance with the provisions of Section 212
of the DGCL. If for any reason the Proxy granted herein is not
irrevocable, then such Stockholder agrees that it shall vote such
Stockholder’s Owned Shares in accordance with
Section 1.3(a) hereof as instructed by Parent in writing. Each
Stockholder shall promptly deliver to Parent any proxy cards that
such Stockholder receives with respect to the voting of the Company
Common Stock. Each Stockholder hereby represents that any proxies
heretofore given in respect of such Stockholder’s Owned
Shares, if any, are revocable, and hereby revokes such
proxies.
1.4 Limitation Upon Obligation to
Tender and Voting Proxy . The obligations of each Stockholder
specified in this Agreement shall apply whether or not (a) a
Company Adverse Recommendation Change shall have occurred or
(b) the Company breaches any of its representations,
warranties, agreements or covenants set forth in the Merger
Agreement. Parent acknowledges and agrees that this Agreement shall
not be binding upon the Stockholders in the event that the Merger
Agreement shall be amended by the parties thereto to lower the
price or value of, or change the form of, the Offer
Price.
1.5 No Solicitation
.
(a) Each Stockholder agrees, in such
Stockholder’s capacity as a stockholder of the Company, that
it shall not, directly or indirectly, solicit, initiate, knowingly
encourage or take any other action designed to facilitate any
inquiries or the making of any proposal from any person (other than
Parent or Sub) or offer that constitutes, or may reasonably be
expected to lead to, any Acquisition Proposal, or participate in
any discussions or negotiations regarding any Acquisition
Proposal.
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(b) Each Stockholder shall notify
Parent promptly of any Acquisition Proposal or any inquiry with
respect to, or that could reasonably be expected to lead to, any
Acquisition Proposal, in any such notice to Parent and Sub,
indicate in reasonable detail the identity of the person making
such proposal or inquiry and the material terms and conditions of
any such Acquisition Proposal.
1.6 Fiduciary Duties . The
parties acknowledge and agree that nothing contained in this
Agreement shall restrict, limit or prohibit any Stockholder who is
a director of the Company, from exercising in his capacity as a
director of the Company his fiduciary duties as such a director,
including, but not limited to, taking any action permitted pursuant
to Section 6.02 of the Merger Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
Each Stockholder, severally but not
jointly, hereby represents and warrants to Parent and to Sub as
follows:
2.1 Due Organization and
Authorization . Such Stockholder (in the case of a Stockholder
that is a corporation, partnership, trust or other legal entity) is
duly organized and validly existing under the laws of the
jurisdiction of such Stockholder’s incorporation or
organization. Such Stockholder has full power and authority
(corporate, partnership, trust or otherwise) to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary action (corporate or otherwise) on the
part of such Stockholder. This Agreement has bee
