Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT (this
“Agreement”), dated as of August 3, 2005, is made by
and among SSA Global Technologies, Inc., a Delaware corporation
(“Parent”), and the Stockholders Listed on Schedule
1 attached hereto (each individually a
“Stockholder” and collectively the
“Stockholders”).
WITNESSETH:
WHEREAS, immediately prior to the
execution of this Agreement, Parent, SSA-E Merger Subsidiary Inc.,
a Delaware corporation and a wholly-owned subsidiary of Parent
(“Merger Sub”), SSA-E Acquisition Subsidiary Inc., a
Delaware corporation and a wholly-owned subsidiary of Parent
(“Acquisition Sub”), and E.piphany, Inc., a Delaware
corporation (the “Company”), have entered into an
Agreement and Plan of Merger of even date herewith (the
“Merger Agreement”), pursuant to which the parties
thereto have agreed, upon the terms and subject to the conditions
set forth therein, to consummate the Asset Purchase (as defined in
the Merger Agreement) and to merge Sub with and into the Company
(the “Merger”); and
WHEREAS, each Stockholder owns the
number of shares of common stock, $0.0001 par value per share, of
the Company (the “Company Common Stock”) set forth
opposite such Stockholder’s name on Schedule 1 hereto
(such shares of Company Common Stock, together with any other
shares of capital stock of the Company acquired by such Stockholder
after the date hereof and during the term of this Agreement,
including any shares of capital stock issued upon the exercise of
any warrants or options, the conversion of any convertible
securities or otherwise, being collectively referred to herein as
the “Subject Shares”); and
WHEREAS, as inducement and a
condition to entering into the Merger Agreement, Parent has
required Stockholders to agree, and Stockholders have agreed, to
enter into this Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual premises, representations, warranties,
covenants and agreements contained herein, the parties hereto,
intending to be legally bound hereby, agree as follows:
Section 1.
Certain
Definitions . In addition to the
terms defined elsewhere herein, capitalized terms used and not
defined herein shall have the respective meanings ascribed to them
in the Merger Agreement. For purposes of this
Agreement:
(a)
“
Beneficially Own ” or “ Beneficial
Ownership ” with respect to any securities means having
“beneficial ownership” of such securities as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”). Without
duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a person include securities
Beneficially Owned by all other persons with whom such person would
constitute a “group” within the meaning of Section
13(d) of the Exchange Act with respect to the securities of the
same issuer.
Section 2.
Representations and
Warranties of Stockholder . Each Stockholder
represents and warrants severally, but not jointly, to Parent as
follows:
(a)
Ownership of
Shares . Such Stockholder is a
record owner and Beneficial Owner of the Subject Shares set forth
opposite such Stockholder’s name on Schedule 1 .
On the date hereof, the Subject Shares (including the options set
forth opposite such Stockholder’s name on Schedule 1 )
constitute all of the shares of the Company Common Stock owned of
record or Beneficially Owned by such Stockholder. There are
no outstanding options or other rights to acquire from such
Stockholder or obligations of such Stockholder to sell or to
acquire, any shares of the Company Common Stock. With respect
to the shares of Company Common Stock held by it, each Stockholder
has voting power and power to issue instructions with respect to
the matters set forth in Sections 4 and 5 hereof, power of
disposition, power of conversion, power to demand appraisal rights
and power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Subject Shares
with no limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this
Agreement.
(b)
Power; Binding
Agreement . Such Stockholder has
the legal capacity, power and authority to enter into and perform
all of such Stockholder’s obligations under this
Agreement. This Agreement has been duly and validly executed
and delivered and constitutes a valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance
with its terms except that (i) such enforcement may be subject to
applicable bankruptcy, insolvency or other similar laws, now or
hereafter in effect, affecting creditors’ rights generally,
and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c)
No
Conflicts . None of the execution
and delivery of this Agreement by such Stockholder, the
consummation by such Stockholder of the transactions contemplated
hereby or compliance by such Stockholder with any of the provisions
hereof shall (i) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond,
mortgage, indenture, license, or material contract, commitment,
arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Stockholder is a party or by
which such Stockholder or any of its properties or assets may be
bound, or (ii) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such
Stockholder or the Subject Shares.
(d)
Reliance
. Each
Stockholder understands and acknowledges that each of Parent and
Sub is entering into the Merger Agreement in reliance upon such
Stockholder’s execution and delivery of this
Agreement.
Section 3.
Disclosure
. Each
Stockholder hereby agrees to permit the Company to publish and
disclose in the Proxy Statement (including all documents and
schedules filed with the Securities and Exchange Commission), and
any press release or other disclosure document which the Company,
in its reasonable discretion, determines to be required by law or
necessary in connection with the Merger and any transactions
related thereto, such Stockholder’s
identity and ownership of
the Company Common Stock and the nature of such Stockholder’s
commitments, arrangements and understandings under this
Agreement.
Section 4.
Certain
Prohibited Transfers . Prior to the
termination of this Agreement, each Stockholder agrees, subject to
such Stockholder’s right to sell the Subject Shares in bona
fide transactions, not to, directly or indirectly:
(i)
grant any proxy,
grant any power of attorney, deposit any of the Subject Shares into
a voting trust or enter into a voting agreement or arrangement with
respect to the Subject Shares in violation of this Agreement;
or
(ii)
take any other
action that would make any representation or warranty of such
Stockholder contained herein untrue or incorrect or have the effect
of preventing or disabling such Stockholder from performing its
obligations under this Agreement.
Section 5.
Voting of the
Company Common Stock . Each Stockholder
hereby agrees that, during the period commencing on the date hereof
and continuing until the first to occur of (a) the Effective Time
or (b) termination of this Agreement in accordance with its terms,
at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the holders of Company Common
Stock, however called, or in connection with any written consent of
the holders of
|
