Execution Version
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of August __, 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:
(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, ordinance, rule or regulation applicable to the Stockholder,
the Shares or any of the Stockholder's properties or assets. Except
as expressly contemplated hereby, the Stockholder is not a party
to, and the Shares are not subject to or bound in any manner by,
any contract or agreement relating to the Shares, including without
limitation, any voting agreement, option agreement, purchase
agreement, stockholders' agreement, partnership agreement or
voting trust. Except for any informational filings with the
Securities and Exchange Commission, no consent, approval, order or
authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or other governmental
authority or instrumentality, domestic, foreign or supranational,
is required by or with respect to the Stockholder in connection
with the execution and delivery of this Agreement or the consummation
by the Stockholder of the transactions contemplated hereby.
Section 4. No Solicitation. Prior to the termination of this
Agreement in accordance with its terms, each Stockholder agrees,
in its individual capacity as a stockholder of the Company, that
(i) it will not, nor will it authorize or permit any of its employees,
agents and representatives to, directly or indirectly, (a) initiate,
solicit or encourage any inquiries or the making of any Acquisition
Proposal, (b) enter into any agreement with respect to any Acquisition
Proposal, or (c) participate in any discussions or negotiations regarding,
or furnish to any person any information with respect to, or take any
other action to facilitate any inquiries or the making of any proposal
that constitutes, or may reasonably be expected to lead to, any Acquisition
Proposal, and (ii) it will notify Parent as soon as possible if any such
inquiries or proposals are received by, any information or documents is
requested from, or any negotiations or discussions are sought to be
initiated or continued with, it or any of its affiliates in its individual
capacity.
Section 5. Stock Dividends, etc. In the event of a stock split, stock
dividend or distribution, or any change in the common stock by reason of
any split-up, reverse stock split, recapitalization, combination,
reclassification, exchange of shares or the like, the term "Shares" shall
be deemed to refer to and include such shares as well as all such stock
dividends and distributions and any securities into which or for which any
or all of such shares may be changed or exchanged or which are received in
such transaction; provided that the foregoing shall not prevent the conversion
of any of the Shares into the right to receive Merger Consideration pursuant
to the Merger in accordance with the terms of the Merger Agreement.
Section 6. Termination. This Agreement shall terminate upon the earlier to
occur of (i) the Effective Time or (ii) any termination of the Merger Agreement
in accordance with the terms thereof; provided that no such termination shall
relieve any party of liability for a willful breach hereof prior to termination.
Section 7. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
Section 8. Fiduciary Duties. Each Stockholder is signing this Agreement
solely in such Stockholder's capacity as an owner of his, her or its respective
Shares, and nothing herein shall prohibit, prevent or preclude such Stockholder
from taking or not taking any action in his or her capacity as an officer or
director of the Company, to the extent permitted by the Merger Agreement.
Section 9. Consent and Waiver. Each Stockholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreement to which such Stockholder is a party or pursuant to
any rights such Stockholder may have in its capacity as a Stockholder of the
Company.
Section 10. Waiver of Appraisal Rights. To the fullest extent permitted by
applicable law, each Stockholder hereby waives any rights of appraisal or
rights to dissent from the Merger that it may have under applicable law.
Section 11. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written
and oral, between the parties with respect thereto. This Agreement may
not be amended, modified or rescinded except by an instrument in
writing signed by each of the parties hereto.
(b) Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such
determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order
that the terms of this Agreement remain as originally contemplated
to the fullest extent possible.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to the
principles of conflicts of law thereof.
(d) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly delivered (i) three business days
after being sent by registered or certified mail, return receipt
requested, postage prepaid, or (ii) one business day after being sent
for next business day delivery, fees prepaid, via a reputable nationwide
overnight courier service, in each case to the intended recipient as
set forth below:
(i) if to a Stockholder to the address set forth on the respective signature
page of this Agreement;
(ii) if to the Parent to:
Versata Enterprises, Inc.
0000 Xxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Telecopy: 000-000-0000
with a copy to:
Xxxxxx and Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopy: 000-000-0000
(iii) if to the Company to:
Gensym Corporation
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: President
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx, Esq.
Xxxxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
(f) No Third Party Beneficiaries. This Agreement is not intended, and shall
not be deemed, to confer any rights or remedies upon any person other than
the parties hereto and their respective successors and permitted assigns, to
create any agreement of employment with any person or to otherwise create any
third-party beneficiary hereto.
(g) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise
by any of the parties hereto without the prior written consent of
the other parties, and any such assignment without such prior written
consent shall be null and void, except that the Parent may assign
this Agreement to any direct or indirect wholly owned subsidiary of
the Parent without the consent of the Company or the Stockholder,
provided that the Parent shall remain liable for all of its obligations
under this Agreement. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by,
the parties hereto and their respective successors and permitted
assigns.
(h) Interpretation. When reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement, unless
otherwise indicated. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement. The language used in
this Agreement shall be deemed to be the language chosen by the parties
hereto to express their mutual intent, and no rule of strict construction
shall be applied against any party. Whenever the context may require,
any pronouns used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns and
pronouns shall include the plural, and vice versa. Any reference to any
federal, state, local or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation." No summary of this
Agreement prepared by the parties shall affect in any way the meaning or
interpretation of this Agreement.
(i) Submission to Jurisdiction. Each of the parties to this Agreement
(i) consents to submit itself to the personal jurisdiction of any
state or federal court sitting in the State of Delaware in any action
or proceeding arising out of or relating to this Agreement or any of
the transactions contemplated by this Agreement, (ii) agrees that
all claims in respect of such action or proceeding may be heard and
determined in any such court, (iii) agrees that it will not attempt
to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court and (iv) agrees not to bring any action
or proceeding arising out of or relating to this Agreement or any of
the transactions contemplated by this Agreement in any other court.
Each of the parties hereto waives any defense of inconvenient forum
to the maintenance of any action or proceeding so brought and waives
any bond, surety or other security that might be required of any other
party with respect thereto. Any party hereto may make service on
another party by sending or delivering a copy of the process to the
party to be served at the address and in the manner provided for the
giving of notices in Section 11(e). Nothing in this Section, however,
shall affect the right of any party to serve legal process in any
other manner permitted by law.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARENT, THE COMPANY AND
EACH STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE
ACTIONS OF THE PARENT, THE COMPANY OR EACH STOCKHOLDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF
THIS AGREEMENT.
[Signature Page to follow]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed individually or by its respective duly
authorized officer as of the date first written above.
GENSYM CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
VERSATA ENTERPRISES, INC.
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President of Finance and Chief Financial Officer
STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Address
Address
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Address
Address
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Address
Address
/s/ Xxxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxxxxxxx
Address
Address
Schedule I
Stockholder Number of Shares of Common Stock Owned
Xxxxxx X. Xxxxxx 1,310,311
Xxxx X. Xxxxx 47,875
Xxxxx X. Xxxxx 13,171
Xxxxxx X. Xxxxxxxxxxx 20,286
