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 contemplated by the Merger Agreement and this
Agreement and any actions required in furtherance thereof and hereof; and


 


(ii)           except as otherwise
agreed to in writing in advance by Parent in its sole discretion, against the
following (other than the Merger, the Asset Purchase and the transactions
contemplated by this Agreement and the Merger Agreement):  (A) any Acquisition Proposal and (B) any
action or agreement that would, to the knowledge of such Stockholder, result in
a breach in any material respect of any covenant, representation or warranty or
any obligation or agreement of the Company under the Merger Agreement or this
Agreement.


 


Section 6.               Irrevocable
Proxy.


 


(a)           Each
Stockholder hereby irrevocably grants to, and appoints, Shelley Isenberg and
Kirk Isaacson, or either of them, in their respective capacities as officers of
Parent, and any individual who shall hereafter succeed to any such office of
Parent, and each of them individually, such Stockholder’s proxy and attorney-in-fact
(with full power of substitution and resubstitution), for and in the name,
place and stead of such Stockholder, to vote or cause to be 


 





















 


voted the Subject Shares at any meeting of
the stockholders of the Company or at any adjournment or postponement thereof:


 


(i)            in favor of the
adoption of the Merger Agreement and the approval of the Merger, the Asset
Purchase and the other actions contemplated by the Merger Agreement and this
Agreement and any actions required in furtherance thereof and hereof; and


 


(ii)           except as otherwise
agreed to in writing in advance by Parent in its sole discretion, against the
following (other than the Merger, the Asset Purchase and the transactions
contemplated by this Agreement and the Merger Agreement):  (A) any Acquisition Proposal and (B) any
action or agreement that would, to the knowledge of such Stockholder, result in
a breach in any material respect of any covenant, representation or warranty or
any obligation or agreement of the Company under the Merger Agreement or this
Agreement.


 


(b)           Each
Stockholder represents that any proxies heretofore given in respect of the
Subject Shares are not irrevocable, and that such proxies either have been or
are hereby revoked.


 


(c)           Each
Stockholder hereby affirms that the irrevocable proxy set forth in this Section
6 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 to a termination of this Agreement in accordance with Section
8 (whereupon this irrevocable proxy shall be automatically revoked), each
Stockholder hereby further affirms that the irrevocable proxy is coupled with
an interest and may not be revoked, except as by amendment or modification in
accordance with Section 9(c) hereof. 
Each Stockholder hereby ratifies and confirms all that such irrevocable
proxy may lawfully do or cause to be done by virtue hereof.  Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 212(e)
of the DGCL.  The power and authority hereby conferred shall not be terminated by any
act of such Stockholder or by operation of law, by lack of appropriate power or
authority, or by the occurrence of any other event or events and shall be
binding upon all his representatives, executors, successors and/or
assigns.  If after the execution of this
Agreement a Stockholder shall cease to have appropriate power or authority, or
if any other such event or events shall occur, Parent is nevertheless
authorized and directed to vote the Subject Shares in accordance with the terms
of this Agreement as if such lack of appropriate power or authority or other
event or events had not occurred and regardless of notice thereof.


 


Section 7.               Fiduciary
Duties.  Each Stockholder is signing
this Agreement solely in such Stockholder’s capacity as an owner of his or her
respective Subject Shares, and nothing herein shall prohibit, prevent or
preclude such individual Stockholder from taking or not taking any action in
his or her capacity as an officer or director of the Company.


 


Section 8.               Termination.  This Agreement shall terminate on the
earliest of (a) termination of the Merger Agreement in accordance with its
terms, (b) the written agreement of the parties hereto to terminate this
Agreement, or (c) the Effective Time of the Merger.


 





















 


Section 9.               Miscellaneous.


 


(a)           Entire
Agreement.  This Agreement (including
the documents and instruments referred to herein) constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the
subject matter hereof.


 


(b)           Successors
and Assigns.  This Agreement shall
not be assigned by operation of law or otherwise without the prior written
consent of the other parties hereto. 
This Agreement shall be binding upon, inure to the benefit of and be
enforceable by each party and such party’s respective heirs, beneficiaries,
executors, representatives and permitted assigns.


 


(c)           Amendment
and Modification.  This Agreement may
not be amended, altered, supplemented or otherwise modified or terminated
(other than a termination under Section 8(a) or Section 8(c) of this Agreement)
except upon the execution and delivery of a written agreement executed by the
parties hereto.


 


(d)           Notices.  All notices, requests, claims and demands and
other communications hereunder shall be in writing and shall be deemed duly
delivered (i) four 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:


 


	
   

  	
  If to Parent, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SSA Global Technologies, Inc.

  
	
   

  	
   

  	
  500 West Madison

  
	
   

  	
   

  	
  Chicago, Illinois 60661

  
	
   

  	
   

  	
  Attn: General Counsel

  
	
   

  	
   

  	
  Fax: (312) 593-5955

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Schulte Roth & Zabel

  
	
   

  	
   

  	
  919 Third Avenue

  
	
   

  	
   

  	
  New York, New York 10022

  
	
   

  	
   

  	
  Attn: Robert B. Loper, Esq./Richard A. Presutti, Esq.

  
	
   

  	
   

  	
  Tel: (212) 756-2138/(212) 756-2063

  
	
   

  	
   

  	
  Fax: (212) 593-5955

  
	
   

  	
   

  	
   

  
	
   

  	
  If to the Company, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  E.piphany, Inc.

  
	
   

  	
   

  	
  475 Concar Drive

  
	
   

  	
   

  	
  San Mateo, California 94402

  
	
   

  	
   

  	
  Attn: Karen Richardson

  
				



 





















 


	
   

  	
   

  	
  Fax: (650) 578-7403

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  E.piphany, Inc.

  
	
   

  	
   

  	
  475 Concar Drive

  
	
   

  	
   

  	
  San Mateo, California 94402

  
	
   

  	
   

  	
  Attn: Andrew Sherman

  
	
   

  	
   

  	
  Fax: (650) 240-1734

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wilson Sonsini Goodrich & Rosati

  
	
   

  	
   

  	
  650 Page Mill Road

  
	
   

  	
   

  	
  Palo Alto, California 94304

  
	
   

  	
   

  	
  Attn: 

  	
  Aaron J. Alter

  
	
   

  	
   

  	
   

  	
  N. Anthony Jeffries

  
	
   

  	
   

  	
  Fax: (650) 493-6811

  



 


If to Stockholder, to the address set forth opposite such Stockholder’s
name on Schedule 1.


 


Any Party may
give any notice or other communication hereunder using any other means
(including personal delivery, messenger service, facsimile or ordinary mail),
but no such notice or other communication shall be deemed to have been duly
given unless and until it is actually received by the Party for whom it is
intended.  Any Party may change the
address to which notices and other communications hereunder are to be delivered
by giving the other Parties to this Agreement notice in the manner herein set forth.


 


(e)           Severability.  Any term or provision of this Agreement which
is held to be invalid, illegal or unenforceable in any respect in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction.  If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.


 


(f)            Specific
Performance.  The Parties acknowledge
that money damages would not be an adequate remedy at Law if any party fails to
perform in any material respect any of its obligations hereunder and
accordingly agree that each Party, in addition to any other remedy to which it
may be entitled at Law or in equity shall be entitled to seek to compel
specific performance of the obligations of any other Party under this
Agreement, without the posting of any bond, in accordance with the terms and
conditions of this Agreement in any court of the United States or any State
thereof having jurisdiction, and if any action should be brought in equity to
enforce any of the provisions of this Agreement, none of the Parties hereto
shall raise the defense that there is an adequate remedy at Law.  No remedy shall be exclusive of any other
remedy.  All available remedies shall be
cumulative.


 





















 


(g)           No
Waiver.  The failure of any party
hereto to exercise any right, power or remedy provided under this Agreement or
otherwise available in respect hereof at Law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder, and any custom
or practice of the parties at variance with the terms hereof, will not
constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.


 


(h)           No
Third Party Beneficiaries.  This
Agreement is not intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder.


 


(i)            Governing
Law.  This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Delaware (without reference to its choice of law rules).


 


(j)            Descriptive
Heading.  The descriptive headings
used herein are for reference purposes only and will not affect in any way the
meaning or interpretation of this Agreement.


 


(k)           Expenses.  All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.


 


(l)            Further
Assurances.  From time to time, at
any other party’s request and without further consideration (but without any
obligation to incur any expense), each party hereto shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.


 


(m)          Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.


 


 


[Remainder of this page intentionally left
blank.  Signature page follows.]


 





















 


IN WITNESS
WHEREOF, Parent and each Stockholder have caused this Agreement to be duly
executed as of the day and year first written above.


 


 


	
   

  	
  SSA GLOBAL TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name: Kirk Isaacson

  
	
   

  	
  Title: President

  



 





















 


	
   

  	
  STOCKHOLDERS:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Karen Richardson

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Phillip Fernandez

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Andrew Sherman

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Ashok Santhanam

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Kevin Yeaman

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Roger Siboni

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Fred Anderson

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Mohan Gyani

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Robert Joss

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Douglas Mackenzie

  	
   

  



 





















 


SCHEDULE 1


 


 


	
  Stockholder

  	
   

  	
  Owned Common

  Stock

  	
   

  	
  Options

  	
   

  	
  Stock Units(1)

  
	
  Karen
  Richardson

  	
   

  	
  413,908

  	
   

  	
  1,654,432

  	
   

  	
  N/A

  
	
  Phillip
  Fernandez

  	
   

  	
  72,082

  	
   

  	
  1,245,499

  	
   

  	
  N/A

  
	
  Andrew
  Sherman

  	
   

  	
  48,186

  	
   

  	
  214,406

  	
   

  	
  N/A

  
	
  Ashok
  Santhanam

  	
   

  	
  0

  	
   

  	
  325,000

  	
   

  	
  N/A

  
	
  Kevin Yeaman

  	
   

  	
  88,878

  	
   

  	
  728,124

  	
   

  	
  N/A

  
	
  Roger Siboni

  	
   

  	
  1,161,812

  	
   

  	
  220,000

  	
   

  	
  N/A

  
	
  Fred
  Anderson

  	
   

  	
  0

  	
   

  	
  60,000

  	
   

  	
  N/A

  
	
  Mohan Gyani

  	
   

  	
  0

  	
   

  	
  60,000

  	
   

  	
  N/A

  
	
  Robert Joss

  	
   

  	
  15,000

  	
   

  	
  181,250

  	
   

  	
  10,769

  
	
  Douglas
  Mackenzie

  	
   

  	
  226,259

  	
   

  	
  87,500

  	
   

  	
  16,928

  



 


 










(1) Each stock unit reflects
the right to receive one share of Company Common Stock pursuant to the
Company’s Nonemployee Director Deferred Compensation Plan.