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 Company
Common Stock, such Stockholder will appear at the meeting or
otherwise cause the Subject Shares to be counted as present thereat
for purposes of establishing a quorum and vote or consent (or cause
to be voted or consented) all of the Subject Shares:
(i) in favor of the adoption of the
Merger Agreement and the approval of the Merger, the Asset Purchase
and the other actions
