1
EXHIBIT 10.12
EPIPHANY MARKETING SOFTWARE, INC.
▇▇▇▇▇ ▇▇▇▇▇▇
RESTRICTED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made between ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Purchaser") and
Epiphany Marketing Software, Inc. (the "Company") as of July 1, 1998.
WHEREAS, Purchaser has agreed to become Chief Executive Officer of the
Company.
WHEREAS, in connection with the foregoing, Purchaser desires to purchase
from the Company, and the Company desires to sell to Purchaser, shares of the
Company's Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Purchaser agree as
follows:
1. Purchase and Sale of Shares. Subject to the terms and conditions of
this Agreement, the Company hereby agrees to sell to Purchaser and Purchaser
agrees to purchase from the Company, on the Closing Date (as herein defined),
3,200,000 shares of the Company's Common Stock (the "Shares") at a price of
$0.20 per share, for an aggregate purchase price of $640,000.
2. Closing. The purchase and sale of the Shares shall occur at a Closing
to be held at a time to be mutually agreed upon by the Company and Purchaser
(the "Closing Date"). The Closing will take place at the principal offices of
the Company or at such other place as shall be designated by the Company. At the
Closing, Purchaser shall deliver to the Company a check payable to Epiphany
Marketing Software, Inc. in the amount of $320 and executed copies of a
Promissory Note in the aggregate amount of $639,680, a Stock Pledge Agreement, a
Stock Power, Joint Escrow Instructions and Consent of Spouse, in substantially
the forms attached hereto as Exhibits A-E, respectively, together with such
other documents as the Company may reasonably request. The Company will then
issue into escrow (as hereinafter described), as promptly thereafter as
practicable, a certificate registered in the name of the Purchaser evidencing
the Shares.
3. Vesting of Shares.
(a)The Shares shall vest and become exercisable as follows:
12/48th of the number of Shares purchased shall vest on the 12-month anniversary
of May 12, 1998, with the remainder vesting at the rate of 1/48th of the number
of Shares purchased on each monthly anniversary thereafter, for so long as the
Purchaser's employment or consulting relationship with Epiphany has not
terminated. For purposes of this Agreement, "vesting" shall be synonymous with
the lapsing of the Company's repurchase option under Section 4. Further, for
purposes of this Agreement, on any applicable date, "Vested Shares" refers to
shares that are vested pursuant to the terms of this Agreement on such date and
"Unvested Shares" refers to shares that are not vested pursuant to such terms on
such date.
2
(b) Notwithstanding Section 3(a), if after a Change of Control
of the Company (as defined below):
(i) the total compensation paid to Purchaser (which
shall include Purchaser's base salary, base bonus and loan amounts) is reduced;
or
(ii) Purchaser is not offered a Senior Executive
Position (as defined below) with the Company or its successor,
the vesting of the Shares shall be accelerated as
follows:
(x) If the Change of Control is consummated prior to
May 12, 1999, such number of Shares shall vest immediately, in addition to
Purchaser's already Vested Shares, that would result in 1/2 of Purchaser's total
number of Shares being vested at such time; or
(y) if the Change of Control is consummated on or
after May 12, 1999, 1/4 of the Purchaser's total number of Shares shall vest
immediately at such time (or if less than 1/4 of the total number of Shares
remain Unvested Shares, such number of Unvested Shares).
(c) "Change of Control" shall mean the occurrence of any of the
following events:
(i) Any "Person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than any stockholder of the Company as of the date of
this Agreement, is or becomes the "Beneficial Owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the total voting power represented
by the Company's then outstanding voting securities; or
(ii) A merger or consolidation of the Company other
than a merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the stockholders
of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
of the Company's assets.
(d) "Senior Executive Position" shall mean a position with the
Company or its successor that permits Purchaser to run a significant business
unit of the Company or its successor or manage a significant function of the
Company or its successor.
4. Repurchase Option.
(a) If Purchaser's continuous status as an employee or consultant
with the Company is terminated for any reason, including for cause, death, and
disability, the Company shall have the
-2-
3
right and option to purchase from Purchaser, or Purchaser's personal
representative, as the case may be, all of the Purchaser's Unvested Shares as of
the date of such termination at the price paid by the Purchaser for such Shares
(the "Repurchase Option").
(b) Upon the occurrence of a termination, the Company may
exercise its Repurchase Option by delivering personally or by registered mail,
to Purchaser (or his transferee or legal representative, as the case may be),
within ninety (90) days of the termination, a notice in writing indicating the
Company's intention to exercise the Repurchase Option and setting forth a date
for closing not later than thirty (30) days from the mailing of such notice. The
closing shall take place at the Company's offices. At the closing, the holder of
the certificates for the Unvested Shares being transferred shall deliver the
stock certificate or certificates evidencing the Unvested Shares, and the
Company shall deliver the purchase price therefor.
(c) At its option, the Company may elect to make payment for the
Unvested Shares to a bank selected by the Company. The Company shall avail
itself of this option by a notice in writing to Purchaser stating the name and
address of the bank, date of closing, and waiving the closing at the Company's
offices.
(d) If the Company does not elect to exercise the Repurchase
Option conferred above by giving the requisite notice within ninety (90) days
following the termination, the Repurchase Option shall terminate.
(e) The Repurchase Option shall terminate in accordance with the
vesting schedule provided in Section 3.
5. Transferability of the Shares; Escrow.
(a) Purchaser hereby authorizes and directs ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation ("WSGR"), or such other person or
entity designated by the Company, to transfer the Unvested Shares as to which
the Repurchase Option has been exercised from Purchaser to the Company.
(b) To insure the availability for delivery of Purchaser's
Unvested Shares upon repurchase by the Company pursuant to the Repurchase Option
under Section 4, Purchaser hereby appoints WSGR, or any other person or entity
designated by the Company, as Escrow Agent (as defined in the Joint Escrow
Instructions discussed below), as its attorney-in-fact to sell, assign and
transfer unto the Company, such Unvested Shares, if any, repurchased by the
Company pursuant to the Repurchase Option and shall, upon execution of this
Agreement, deliver and deposit with WSGR, or such other person or entity
designated by the Company, the share certificates representing the Unvested
Shares, together with the stock assignment duly endorsed in blank, attached
hereto as Exhibit C. The Unvested Shares and stock assignment shall be held by
WSGR in escrow, pursuant to the Joint Escrow Instructions of the Company and
Purchaser attached hereto as Exhibit D, until the Company exercises its
Repurchase Option as provided in Section 4, until such Unvested Shares are
vested, or until such time as this Agreement no longer is in effect. As a
further condition to the Company's obligations under this Agreement, the spouse
of the Purchaser, if any, shall execute and
-3-
4
deliver to the Company the Consent of Spouse attached hereto as Exhibit E. Upon
vesting of the Unvested Shares, the Escrow Agent shall promptly deliver to the
Purchaser the certificate or certificates representing such Shares in the Escrow
Agent's possession belonging to the Purchaser, and the Escrow Agent shall be
discharged of all further obligations hereunder; provided, however, that the
Escrow Agent shall nevertheless retain such certificate or certificates as
Escrow Agent if so required pursuant to other restrictions imposed pursuant to
this Agreement.
(c) The Escrow Agent, the Company, or its designee, shall not be
liable for any act it may do or omit to do with respect to holding the Shares in
escrow and while acting in good faith and in the exercise of its judgment.
(d) Transfer or sale of the Shares is subject to restrictions on
transfer imposed by any applicable state and federal securities laws. Any
transferee shall hold such Shares subject to all the provisions hereof and shall
acknowledge the same by signing a copy of this Agreement.
6. Limitations on Transfer. In addition to any other limitation on
transfer created by applicable securities laws, Purchasers shall not assign,
encumber or dispose of any interest in the Shares except in compliance with the
provisions below and applicable securities laws.
(a) Right of First Refusal. Before any Shares held by Purchaser
or any transferee of Purchaser (either being sometimes referred to herein as the
"Holder") may be sold or otherwise transferred (including transfer by gift or
operation of law), the Company or its assignee(s) shall have a right of first
refusal to purchase the Shares on the terms and conditions set forth in this
Section 6(a) (the "Right of First Refusal").
(i) Notice of Proposed Transfer. The Holder of the
Shares shall deliver to the Company a written notice (the "Notice") stating: (i)
the Holder's bona fide intention to sell or otherwise transfer such Shares; (ii)
the name of each proposed purchaser or other transferee ("Proposed Transferee");
(iii) the number of Shares to be transferred to each Proposed Transferee; and
(iv) the terms and conditions of each proposed sale or transfer. The Holder
shall offer the Shares at the same price (the "Offered Price") and upon the same
terms (or terms as similar as reasonably possible) to the Company or its
assignee(s).
(ii) Exercise of Right of First Refusal. At any time
within thirty (30) days after receipt of the Notice, the Company and/or its
assignee(s) may, by giving written notice to the Holder, elect to purchase all,
but not less than all, of the Shares proposed to be transferred to any one or
more of the Proposed Transferees, at the purchase price determined in accordance
with subsection (iii) below.
(iii) Purchase Price. The purchase price ("Purchase
Price") for the Shares purchased by the Company or its assignee(s) under this
Section 6(a) shall be the Offered Price. If the Offered Price includes
consideration other than cash, the cash equivalent value of the non-cash
consideration shall be determined by the Board of Directors of the Company in
good faith.
-4-
5
(iv) Payment. Payment of the Purchase Price shall be
made, at the option of the Company or its assignee(s), in cash (by check), by
cancellation of all or a portion of any outstanding indebtedness of the Holder
to the Company (or, in the case of repurchase by an assignee, to the assignee),
or by any combination thereof within 30 days after receipt of the Notice or in
the manner and at the times set forth in the Notice.
(v) Holder's Right to Transfer. If all of the Shares
proposed in the Notice to be transferred to a given Proposed Transferee are not
purchased by the Company and/or its assignee(s) as provided in this Section
6(a), then the Holder may sell or otherwise transfer such Shares to that
Proposed Transferee at the Offered Price or at a higher price, provided that
such sale or other transfer is consummated within 60 days after the date of the
Notice and provided further that any such sale or other transfer is effected in
accordance with any applicable securities laws and the Proposed Transferee
agrees in writing that the provisions of this Section 6 shall continue to apply
to the Shares in the hands of such Proposed Transferee. If the Shares described
in the Notice are not transferred to the Proposed Transferee within such period,
or if the Holder proposes to change the price or other terms to make them more
favorable to the Proposed Transferee, a new Notice shall be given to the
Company, and the Company and/or its assignees shall again be offered the Right
of First Refusal before any Shares held by the Holder may be sold or otherwise
transferred.
(vi) Exception for Certain Family Transfers. Anything
to the contrary contained in this Section 6(a) notwithstanding, the transfer of
any or all of the Shares during Purchaser's lifetime or on Purchaser's death by
will or intestacy to Purchaser's Immediate Family or a trust for the benefit of
Purchaser's Immediate Family shall be exempt from the provisions of this Section
6(a). "Immediate Family" as used herein shall mean spouse, lineal descendant or
antecedent, father, mother, brother or sister. In such case, the transferee or
other recipient shall receive and hold the Shares so transferred subject to the
provisions of this Agreement, and there shall be no further transfer of such
Shares except in accordance with the terms of this Agreement.
(b) Involuntary Transfer.
(i) Company's Right to Purchase upon Involuntary
Transfer. In the event, at any time after the date of this Agreement, of any
transfer by operation of law or other involuntary transfer (including death or
divorce, but excluding a transfer upon Purchaser's death to Immediate Family as
set forth in Section 6(a)(vi) above) of all or a portion of the Shares by the
record holder thereof, the Company shall have an option to purchase all of the
Shares transferred at the greater of the purchase price paid by Purchaser
pursuant to this Agreement or the Fair Market Value of the Shares on the date of
transfer. Upon such a transfer, the person acquiring the Shares shall promptly
notify the Secretary of the Company of such transfer. The right to purchase such
Shares shall be provided to the Company for a period of thirty (30) days
following receipt by the Company of written notice by the person acquiring the
Shares.
(ii) Price for Involuntary Transfer. With respect to
any stock to be transferred pursuant to Section 6(b)(i), the price per Share
shall be a price set by the Board of Directors of the Company that will reflect
the current value of the stock in terms of present earnings and future prospects
of the Company. The Company shall notify Purchaser or his executor of the
-5-
6
price so determined within thirty (30) days after receipt by it of written
notice of the transfer or proposed transfer of Shares. However, if the Purchaser
or his executor does not agree with the valuation as determined by the Board of
Directors of the Company, the Purchaser or his executor shall be entitled to
have the valuation determined by an independent appraiser to be mutually agreed
upon by the Company and the Purchaser and whose fees shall be borne equally by
the Company and the Purchaser or his estate.
(c) Assignment. The right of the Company to purchase any part of
the Shares may be assigned in whole or in part to any stockholder or
stockholders of the Company or other persons or organizations; provided,
however, that an assignee, other than a corporation that is the parent or a 100%
owned subsidiary of the Company, must pay the Company, upon assignment of such
right, cash equal to the difference between the original purchase price and Fair
Market Value, if the original purchase price is less than the Fair Market Value
of the Shares subject to the assignment.
(d) Restrictions Binding on Transferees. All transferees of
Shares or any interest therein will receive and hold such Shares or interest
subject to the provisions of this Agreement. Any sale or transfer of the
Company's Shares shall be void unless the provisions of this Agreement are
satisfied.
(e) Termination of Rights. The Right of First Refusal granted the
Company by Section 6(a) above and the option to repurchase the Shares in the
event of an involuntary transfer granted the Company by Section 6(b) above shall
terminate upon the first sale of Common Stock of the Company to the general
public pursuant to an underwritten public offering which has been filed pursuant
to a Form S-1 registration statement (or its successor) with the Securities and
Exchange Commission under the Securities Act.
(f) Nonexclusivity of Rights. The rights of the Company under
this Section 6 shall be addition to, and not in lieu of, all other rights of the
Company under this Agreement.
7. First Amended and Restated Co-Sale Agreement. The Purchaser agrees to
be a party to and bound by the terms of that certain First Amended and Restated
Co-Sale Agreement, dated as of January 16, 1998, between the Company and certain
investors in the Company, as if Purchaser were a Founder under that Agreement.
8. Restrictive Legends and Stop-Transfer Orders.
(a) Legends. The certificate or certificates representing the
Shares shall bear the following legends (as well as any other legends required
by applicable state and federal corporate and securities laws):
(i) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED; NO SALE OR
DISPOSITION OF SUCH SHARES MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN EXEMPTION
-6-
7
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED.
(ii) THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE
TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE
COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY.
(b) Stop Transfer Notices. Purchaser agrees that, in order to
ensure compliance with the restrictions referred to herein, the Company may
issue appropriate "stop transfer" instructions to its transfer agent, if any,
and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(c) Refusal to Transfer. The Company shall not be required (i) to
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares or to accord the right to vote or pay dividends to any purchaser
or other transferee to whom such Shares shall have been so transferred.
9. Purchaser Securities Laws Representations. In connection with the
purchase of the Shares, Purchaser represents to the Company the following:
(a) Purchaser has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the Shares.
Purchaser is acquiring these Shares for investment for Purchaser's own account
only and not with a view to, or for resale in connection with, any
"distribution" thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act").
(b) Purchaser acknowledges and understands that the Shares
constitute "restricted securities" under the Securities Act and have not been
registered under the Securities Act in reliance upon a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Purchaser's investment intent as expressed herein. In this regard,
Purchaser understands that, in the view of the Securities and Exchange
Commission, the statutory basis for such exemption may be unavailable if
Purchaser's representation was predicated solely upon a present intention to
hold these Shares for the minimum capital gains period specified under tax
statutes, for a deferred sale, for or until an increase or decrease in the
market price of the Shares, or for a period of one year or any other fixed
period in the future. Purchaser further understands that the Shares must be held
indefinitely unless they are subsequently registered under the Securities Act or
an exemption from such registration is available. Purchaser further acknowledges
and understands that the Company is under no obligation to register the Shares.
Purchaser understands that the certificate evidencing the Shares will be
imprinted with a legend which prohibits the transfer of the Shares unless they
are registered or such registration is not required in the opinion of counsel
satisfactory to the Company, and any other legend required under applicable
state securities laws.
(c) Purchaser is familiar with the provisions of Rule 701 and
Rule 144, each promulgated under the Securities Act, which, in substance, permit
limited public resale of "restricted
-7-
8
securities" acquired, directly or indirectly from the issuer thereof, in a
non-public offering subject to the satisfaction of certain conditions. Rule 701
provides that if the issuer qualifies under Rule 701 at the time of the sale of
the Shares to the Purchaser, the exercise will be exempt from registration under
the Securities Act. In the event the Company becomes subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), ninety (90) days thereafter (or such longer period
as any market stand-off agreement may require) the Shares exempt under Rule 701
may be resold, subject to the satisfaction of certain of the conditions
specified by Rule 144, including: (1) the resale being made through a broker in
an unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Exchange Act); and, in the case of an
affiliate, (2) the availability of certain public information about the Company,
(3) the amount of Shares being sold during any three month period not exceeding
the limitations specified in Rule 144(e), and (4) the timely filing of a Form
144, if applicable.
In the event that the Company does not qualify under Rule 701 at
the time of sale of the Shares, then the Shares may be resold in certain limited
circumstances subject to the provisions of Rule 144, which requires the resale
to occur not less than one year after the later of the date the Shares were sold
by the Company or the date the Shares were sold by an affiliate of the Company,
within the meaning of Rule 144; and, in the case of acquisition of the Shares by
an affiliate, or by a non-affiliate who subsequently holds the Shares less than
two years, the satisfaction of the conditions set forth in sections (1), (2),
(3) and (4) of the paragraph immediately above. PURCHASER UNDERSTANDS THAT
PAYMENT FOR THE SECURITIES WITH A PROMISSORY NOTE IS NOT DEEMED TO BE FULL
PAYMENT UNDER RULE 144 UNLESS THE NOTE IS SECURED BY ASSETS OTHER THAN THE
SECURITIES.
(d) Purchaser further understands that in the event all of the
applicable requirements of Rule 701 or 144 are not satisfied, registration under
the Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rules 144
and 701 are not exclusive, the staff of the Securities and Exchange Commission
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rules 144 or 701 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk. Purchaser understands that no assurances can be given that
any such other registration exemption will be available in such event.
10. Section 83(b) Election; Tax Representation.
(a) Purchaser hereby acknowledges that he has been informed that,
with respect to the purchase of the Shares subject to the Repurchase Option
under Section 4, an election may be filed by the Purchaser with the Internal
Revenue Service, within 30 days of the purchase of the Shares, electing pursuant
to Section 83(b) of the Code to be taxed currently on any difference between the
purchase price of the Shares and their Fair Market Value on the date of
purchase. Absent such an election, taxable income will be measured and
recognized by Purchaser at the time or times on which the Company's Repurchase
Option lapses. Purchaser is strongly encouraged to seek the advice of his
-8-
9
own tax consultants in connection with the purchase of the Shares and the
advisability of filing of the Election under Section 83(b) of the Code. A form
of Election under Section 83(b) is attached hereto as Exhibit F for reference. A
form of cover letter addressed to the Internal Revenue Service to accompany such
Election under Section 83(b) is attached hereto as Exhibit G for reference.
(b) PURCHASER ACKNOWLEDGES THAT IT IS PURCHASER'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION
83(b), EVEN IF PURCHASER REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS
FILING ON PURCHASER'S BEHALF.
(c) Purchaser has reviewed with his or her own tax advisors the
federal, state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. Purchaser is relying solely on such
advisors and not on any statements or representations of the Company or any of
its agents. Purchaser understands that he (and not the Company) shall be
responsible for his own tax liability that may arise as a result of this
investment or the transactions contemplated by this Agreement.
11. No Employment Rights. Nothing in this Agreement shall affect in any
manner whatsoever the right or power of the Company, or a parent or subsidiary
of the Company, to terminate Purchaser's employment or consulting relationship,
for any reason, with or without cause.
12. Market Standoff Agreement. Purchaser hereby agrees that, if so
requested by the Company or any representative of the underwriters (the
"Managing Underwriter") in connection with any registration of the offering of
any securities of the Company under the Securities Act, Purchaser shall not sell
or otherwise transfer any Shares or other securities of the Company during the
up to 180-day period (or such other period as may be requested in writing by the
Managing Underwriter and agreed to in writing by the Company) (the "Market
Standoff Period") following the effective date of a registration statement of
the Company filed under the Securities Act and to execute an agreement
reflecting the foregoing as may be requested by the Managing Underwriter at the
time of the public offering. Such restriction shall apply only to the first
registration statement of the Company to become effective under the Securities
Act that includes securities to be sold on behalf of the Company to the public
in an underwritten public offering under the Securities Act. The Company may
impose stop-transfer instructions with respect to securities subject to the
foregoing restrictions until the end of such Market Standoff Period.
13. Ownership, Voting Rights, Duties. This Agreement shall not affect in
any way the ownership, voting rights or other rights or duties of Purchaser,
except as specifically provided herein.
14. Adjustment for Stock Split. All references to the number of Shares
and the purchase price of the Shares in this Agreement shall be appropriately
adjusted to reflect any stock split, stock dividend or other change in the
Shares which may be made by the Company after the date of this Agreement.
-9-
10
15. Notices. Notices required hereunder shall be given in person or by
registered mail to the address of Purchaser shown on the records of the Company,
and to the Company at their respective principal executive offices.
16. Survival of Terms. This Agreement shall apply to and bind Purchaser
and the Company and their respective permitted assignees and transferees, heirs,
legatees, executors, administrators and legal successors.
17. Governing Law. This Agreement shall be governed by the internal
substantive laws, but not the choice of law rules, of California.
18. Purchaser Representation. Purchaser represents that he has read this
Agreement and is familiar with its terms and provisions. Purchaser hereby agrees
to accept as binding, conclusive and final all decisions or interpretations of
the Board upon any questions arising under this Agreement.
[Remainder of Page Intentionally Left Blank]
-10-
11
IN WITNESS WHEREOF, this Restricted Stock Purchase Agreement is deemed
made as of the date first set forth above.
PURCHASER: EPIPHANY MARKETING SOFTWARE, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------- -----------------------------------
Signature By
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ EVP R&D & CHAIRMAN OF THE BOARD
------------------------------- -----------------------------------
Print Name Title
-------------------------------
-------------------------------
Residence Address
Dated: July 1, 1998
-11-
12
EXHIBIT A
PROMISSORY NOTE
US$639,680
Date: July 1, 1998
FOR VALUE RECEIVED, ▇▇▇▇▇ ▇▇▇▇▇▇ ("Maker") hereby absolutely and
unconditionally promises to pay to the order of Epiphany Marketing Software,
Inc. or its successors and assigns ("Payee") in immediately available funds the
principal amount of $639,680 or, if less, the aggregate principal amount of this
Note outstanding on such date (the "Principal Sum"), together with accrued and
unpaid interest thereon at the rate hereinafter provided.
1. Repayment. The Principal Sum shall be paid on July 1, 2008, together
with all accrued and unpaid interest thereon calculated from the date hereof at
the rate provided in Section 2 of this Note. This Note may be repaid, in whole
or in part, at any time without premium or penalty, with interest calculated on
the outstanding balance. Security for this Note shall be the pledged Collateral
as defined in the Stock Pledge Agreement, dated as of the date hereof, by and
between the Maker as "Stockholder" and Payee as "Pledgee" (the "Security
Agreement").
2. Interest. This Note shall bear interest on the Principal Sum thereof
from time to time outstanding at a rate per annum equal to five and eighty-eight
hundredths percent (5.88%), calculated without compounding; additional interest
on any amounts outstanding after July 1, 2008 shall accrue at the same rate.
3. Method and Place of Payment. All payments of the Principal Sum and
interest pursuant hereto shall be made in immediately available funds of the
United States. All payments shall be made to Payee at is registered office as
indicated in Section 8. In the event Maker pays any interest on this Note and it
is determined that such rate was in excess of the then-legal maximum interest
rate, then the portion of the interest payment representing an amount in excess
of the then-legal maximum interest rate shall be deemed a payment of principal
and applied against the principal of the Note.
4. Defaults and Remedies. An "Event of Default" with respect to this
Note occurs (i) if Maker defaults in the payment of the Principal Sum or
interest thereon when the same becomes due and payable and remains in default
for fifteen (15) days after receipt of notice of such default from Payee, (ii)
upon the termination by Payee of Maker's employment with Payee, or (iii) upon a
voluntary or involuntary bankruptcy of Maker. Upon the occurrence and during the
continuation of any Event of Default, (in addition to any other rights and
remedies Payee may have hereunder), Payee may by written notice of default to
Maker declare all or a portion of the amounts outstanding under this Note as due
and payable immediately. Maker agrees to pay all collection expenses, court
costs and reasonable attorneys' fees and disbursements that are incurred after
July 1, 2008, or such earlier date as the Principal Sum may become due
hereunder, in connection with the successful collection under or enforcement of
this Note.
13
5. Waiver. Except as otherwise specifically provided in this Note, Maker
hereby waives presentment, demand, notice, protest, and all other demands and
notice in connection with the delivery, acceptance, performance or enforcement
of this Note. No failure or delay on the part of Payee in exercising any of its
rights, powers or privileges hereunder shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise of any right, power or privilege. The remedies provided herein are
cumulative and are not exclusive of any remedies provided by law. This Note may
be amended, waived or discharged only with the written consent of Payee.
6. Governing Law; Jurisdiction. THIS NOTE IS MADE AND DELIVERED AND
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPALS THEREOF.
Each of Maker and Payee irrevocably and unconditionally (i) agrees that any
action or proceeding against him or it seeking specific performance or other
equitable relief or other remedy arising out of this Note shall be brought only
in an appropriate court located in the State of California, (ii) submits to the
jurisdiction and venue of the courts referred to above in connection with any
such action or proceeding and (iii) consents to the service of process outside
the territorial jurisdiction of the courts referred to above in any such action
and proceeding by sending copies thereof by overnight courier or certified mail
to his or its address as specified in Section 8 hereof.
7. Severability. Whenever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited by, or invalid under,
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Note.
8. Notices. All notices and other communications provided hereunder
shall be in writing or by facsimile and addressed, delivered or transmitted if
to Maker at _________________ ____________________________ or if to Payee at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ (telephone),
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile) or at such other address or facsimile number as may
be designated by such party in a notice to the other party. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by prepaid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when transmitted and
confirmed by telephone call to the recipient at the number specified herein.
9. Successors and Assigns. This Note shall be finding upon Maker and his
assigns and successors in interest and shall inure to the benefit of Payee and
its administrators, personal representatives, assigns and successors in
interest.
WITNESS MY HAND as of the day and year first above written.
MAKER
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
-2-
14
EXHIBIT B
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is made and dated as of
July 1, 1998 between Epiphany Marketing Software, Inc., a Delaware corporation
(the "Pledgee") and ▇▇▇▇▇ ▇▇▇▇▇▇ ("Stockholder").
RECITALS
WHEREAS, Stockholder desires to purchase 3,200,000 shares of Pledgee;
WHEREAS, Pledgee has agreed that the exercise price for the shares may
be paid by Stockholder by means of delivery of an executed promissory note (the
"Promissory Note"), to be dated July 1, 1998; and
WHEREAS, Stockholder has agreed to pledge the shares as collateral for
the Promissory Note.
NOW THEREFORE, in consideration of and in order to induce Pledgee to
accept the Promissory Note as consideration for the shares, and for other good
and valuable consideration, Stockholder hereby agrees, for the benefit of
Pledgee, as follows:
AGREEMENT
1. Defined Terms. Except as otherwise provided herein, the capitalized
terms set forth below shall have the following meanings:
(a) "Person" shall mean any natural person, corporation,
partnership, firm, association, government, governmental agency or any other
entity and whether acting in an individual, fiduciary or other capacity.
(b) "Transfer" shall mean any transfer, sale, issuance,
assignment, pledge, encumbrance, award, or confirmation, of any interest in any
Pledged Stock (as hereinafter defined), or any attempt to do the same, for
consideration or otherwise, whether voluntary, involuntary or by operation of
law, irrespective of whether any change in the record ownership of the Pledged
Stock occurs, including without limitation whenever any transfer, award or
confirmation of any such Pledged Stock occurs to any Stockholder's spouse
pursuant to a decree of divorce, dissolution, or separate maintenance, or
pursuant to a property settlement or separation agreement, whenever any
testamentary or other similar disposition of any interest in any such Pledged
Stock occurs upon any Stockholder's death, or whenever any other event which,
were it not for the provisions of this Agreement, would cause any such Pledged
Stock, or any interest therein, to be sold, assigned, pledged, encumbered,
awarded, confirmed, or otherwise transferred, for consideration or otherwise, to
any Person, whether voluntarily, involuntarily, or by operation of law.
Capitalized terms used herein without definition shall have the
meaning ascribed thereto in the Promissory Note.
-3-
15
2. Stock Subject to This Agreement. Stock subject to this Agreement (the
"Pledged Stock") shall consist of the 3,200,000 shares of capital stock of
Pledgee purchased by Stockholder together with all now existing and hereafter
arising rights of the Stockholder as the holder of Pledged Stock, including,
without limitation, all voting rights and all rights to cash and non-cash
dividends and other distributions on account of the Pledged Stock.
3. Grant of Security Interest. Stockholder hereby pledges, assigns, and
hypothecates, transfers and delivers to the Pledgee all of his Pledged Stock and
hereby grants to the Pledgee a first lien on, and security interest in, such
Pledged Stock and all other Collateral (as hereinafter defined) pledged
hereunder, and in all proceeds thereof, and hereby transfers and delivers to the
Pledgee stock certificates evidencing the Pledged Stock, together with
appropriate undated stock powers duly executed in blank, to secure payment and
performance of the obligations described in Paragraph 5 below.
4. Collateral. The Collateral shall consist of the following:
(a) The Pledged Stock together with all new, substituted,
exchanged and additional securities issued at any time with respect to such
Pledged Stock;
(b) All now existing and hereafter arising rights of Stockholder
as the holder of Pledged Stock, including, without limitation, all voting rights
and all rights to cash and non-cash dividends and other distributions on account
of the Pledged Stock; and
(c) All proceeds of the foregoing Collateral, and all proceeds of
such proceeds, including proceeds acquired with cash proceeds consisting of any
of the property described in paragraphs (a) and (b) above.
For purposes of this Agreement, the term "proceeds" includes
whatever is receivable or received when Collateral or proceeds are sold,
collected, exchanged or otherwise disposed of whether such disposition is
voluntary or involuntary, and includes, without limitation, all rights to
payment, including return premiums, with respect to any insurance relating
thereto and also includes all interest, dividends and other property receivable
or received on account of, the Collateral or proceeds thereof.
5. Obligations. The obligations secured by this Agreement (the
"Obligations") shall consist of any and all debts, obligations and liabilities
of the Stockholder (or Maker) to the Pledgee (or Payee) arising under the
Promissory Note.
6. Sale or Transfer of Shares. As a condition precedent to any transfer
of Pledged Stock, a counterpart of this Agreement must be executed by the
proposed transferee, and such Pledged Stock, with stock powers, executed in
blank, shall be delivered to the Pledgee under this Agreement together with such
other documents and instruments as may be reasonably requested by the Pledgee in
order to perfect the security interest in the Pledged Stock as stated herein.
7. Authorized Action by the Pledgee. Stockholder hereby irrevocably
appoints the Pledgee as his attorney-in-fact to do (but the Pledgee shall not be
obligated to and shall incur no liability to Stockholder or any third party for
failure so to do), from and after such time as there has occurred a
-4-
16
default hereunder, any act that Stockholder is obligated by this Agreement to
do, and to exercise such rights and powers as Stockholder might exercise with
respect to the Collateral, including, without limitation, the right to (a)
collect by legal proceedings or otherwise and endorse, receive and receipt for
all dividends, interest, payments, proceeds and other sums and property
thereafter payable on or on account of the Collateral; (b) enter into any
extension, reorganization, deposit, merger, consolidation or other agreement
pertaining to, or deposit, surrender, accept, hold or apply other property in
exchange for the Collateral; (c) insure, process and preserve the Collateral;
(d) transfer the Collateral to the Pledgee's own or its nominee's name; and (e)
make any compromise or settlement, and take any other action the Pledgee deems
advisable with respect to the Collateral. Each Stockholder agrees to reimburse
the Pledgee upon demand for any costs and expenses, including, without
limitation, reasonable attorneys' fees, the Pledgee may incur while acting as
such Stockholder's attorney-in-fact hereunder, all of which costs and expenses
are included in the Obligations secured hereby.
8. Administration of the Pledged Stock. In addition to any provisions of
this Agreement which govern the administration of the Collateral generally, the
following provisions shall govern the administration of the Pledged Stock:
(a) Until there shall have occurred a default hereunder,
Stockholder shall be entitled to vote or consent with respect to the Pledged
Stock in any manner not inconsistent with this Agreement, the Promissory Note or
any document or instrument delivered or to be delivered pursuant to or in
connection herewith. If there shall have occurred and be continuing a default
hereunder and the Pledgee shall have notified Stockholder that the Pledgee
desires to exercise its proxy rights with respect to all or a portion of the
Pledged Stock, Stockholder grants to the Pledgee an irrevocable proxy for the
Pledged Stock pursuant to which proxy the Pledgee shall be entitled to vote or
consent, in its discretion, and in such event Stockholder agrees to deliver to
the Pledgee such further evidence of the grant of such proxy as the Pledgee may
request.
(b) In the event that at any time or from time to time after the
date hereof, Stockholder, as record and beneficial owner of the Pledged stock,
shall receive or shall become entitled to receive, any dividend or any other
distribution with respect to the Pledged Stock, whether in securities or
property, by way of stock-split, spin-off, split-up, reverse stock split or
reclassification, combination of stock or the like, or in case of any
reorganization, consolidation or merger, Stockholder, as record and beneficial
owner of the Pledged Stock, shall thereby be entitled to receive securities or
property in respect of such Pledged Stock, then and in each such case,
Stockholder shall deliver to the Pledgee and the Pledgee shall be entitled to
receive and retain all such securities or property as part of the Pledged Stock,
as security for the payment and performance of the Obligations; provided,
however, that until there shall have occurred a default hereunder, Stockholder
shall be entitled to retain any cash dividends paid on account of the Pledged
Stock.
(c) Upon the occurrence of a default hereunder, Pledgee may
exercise the rights and remedies of the holder of a first priority perfected
security interest in the Pledged Stock with respect thereto, including, without
limitation, at any sale of any of the Pledged Stock, if it deems it advisable to
do so, to restrict the prospective bidders or purchasers to persons or entities
who (i) will represent and agree that they are purchasing for their own account,
for investment, and not with a view to the distribution or sale of any of the
Pledged Stock; and (ii) satisfy the offeree and purchase requirements for a
valid private placement transaction under Section 4(2) of the Securities Act of
-5-
17
1933, as amended (the "Act"), and under Securities and Exchange Commission
Regulation D, or under any similar state or federal statute, rule or regulation.
(d) If any consent, approval or authorization of any state,
municipal or other governmental department, agency or authority shall be
necessary to effectuate any sale or other disposition of Pledged Stock, or any
part thereof, Stockholder will execute such applications and other instruments
as may be required in connection with securing any such consent, approval or
authorization, and will otherwise use his best efforts to secure the same.
9. Default and Remedies. Stockholder shall be deemed in default under
this Agreement upon the occurrence of an Event of Default under the Promissory
Note.
Upon the occurrence of a default hereunder, the Pledgee may, at
its option and without notice to or demand upon Stockholder, and in addition to
all rights and remedies at law or in equity or otherwise, (a) foreclose or
otherwise enforce the Pledgee's security interest in the Collateral in any
manner permitted by law or provided for in this Agreement; (b) sell or otherwise
dispose of the Collateral or any part thereof at one or more public or private
sales at the Pledgee's place of business or any other place or places,
including, without limitation, any broker's board or securities exchange,
whether or not such Collateral is present at the place of sale, for cash or
credit or future delivery, on such terms and in such manner as the Pledgee may
determine; and (c) recover from Stockholder all costs and expenses, including,
without limitation, reasonable attorneys' fees, incurred or paid by the Pledgee
in exercising any right, power or remedy provided by this Agreement or by law.
Stockholder shall be given ten (10) business days prior notice of the time and
place of the sale of Pledged Stock at any public sale or of the time after which
any private sale or other intended disposition is to be made, which notice
Stockholder hereby agrees shall be deemed reasonable notice thereof. Upon any
sale or other disposition pursuant to this Agreement, the Pledgee shall have the
right to deliver, assign and transfer to the purchaser thereof the Collateral or
portion thereof so sold or disposed of.
10. Spousal Interests in Stock. To the extent that any Pledged Stock of
Stockholder constitutes the community property of Stockholder and his spouse,
the Stockholder shall obtain his or her spouse's acknowledgment of and consent
to the existence and binding effect of this Agreement, by having a spousal
consent in the form attached hereto executed and delivered to the Pledgee. If a
Stockholder marries or remarries subsequent to the date of this Agreement,
Stockholder shall obtain and deliver to the Pledgee the required spousal consent
within a reasonable time, not to exceed thirty (30) days, following the
marriage.
11. Cumulative Rights. The rights, powers and remedies of the Pledgee
under this Agreement shall be in addition to all rights, powers and remedies
given to the Pledgee by virtue of any statute or rule of law, the Promissory
Note or any other agreement, all of which rights, powers and remedies shall be
cumulative and may be exercised successively or concurrently without impairing
the Pledgee's security interest in the Collateral.
12. Release of Security Interest. The Pledgee hereby agrees to release
its security interest in the Collateral promptly on the date the Promissory Note
is repaid in full.
-6-
18
13. Waiver. Compliance with any provision hereof may be waived only in
writing signed by the party against which such waiver is sought to be enforced.
No exercise of or failure to exercise any right hereunder, and no partial or
single exercise of any such right, shall operate as a waiver, or otherwise
affect such exercise or any other exercise, of that or any other right, it being
understood that all such rights and all remedies therefor are intended to be
cumulative and not exclusive.
14. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
permitted successors and assigns, except that Stockholder may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of Pledgee.
15. Notice. Any written notice, consent or other communication provided
for in this Agreement shall be given in accordance with Section 8 of the
Promissory Note.
[Remainder of Page Intentionally Left Blank]
-7-
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first written above.
EPIPHANY MARKETING SOFTWARE, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Print Name
Chairman & EVP R&D
--------------------------------------------
Title
STOCKHOLDER
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
-8-
20
EXHIBIT D
JOINT ESCROW INSTRUCTIONS
July 1, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Ladies and Gentlemen:
As Escrow Agent for both Epiphany Marketing Software, Inc. (the
"Company"), and the undersigned purchaser of stock of the Company (the
"Purchaser"), you are hereby authorized and directed to hold the documents
delivered to you pursuant to the terms of that certain Restricted Stock Purchase
Agreement (the "Agreement") between the Company and the undersigned, in
accordance with the following instructions:
1. In the event the Company and/or any assignee of the Company (referred
to collectively for convenience herein as the "Company") exercises the Company's
Repurchase Option set forth in the Agreement, the Company shall give to
Purchaser and you a written notice specifying the number of shares of stock to
be purchased, the purchase price, and the time for a closing hereunder at the
principal office of the Company. Purchaser and the Company hereby irrevocably
authorize and direct you to close the transaction contemplated by such notice in
accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver same, together with the certificate
evidencing the shares of stock to be transferred, to the Company or its
assignee, against the simultaneous delivery to you of the purchase price (by
cash, a check, or some combination thereof) for the number of shares of stock
being purchased pursuant to the exercise of the Company's Repurchase Option.
3. Purchaser irrevocably authorizes the Company to deposit with you any
certificates evidencing shares of stock to be held by you hereunder and any
additions and substitutions to said shares as defined in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as Purchaser's
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities all documents necessary or appropriate to make such
securities negotiable and to complete any transaction herein contemplated,
including but not limited to the filing with any applicable state blue sky
authority of any required applications for consent to, or notice of transfer of,
the securities. Subject to the provisions of this paragraph 3, Purchaser shall
exercise all rights and privileges of a stockholder of the Company while the
stock is held by you.
21
4. Upon written request of the Purchaser, but no more than once per
calendar year, unless the Company's Repurchase Option has been exercised, you
will deliver to Purchaser a certificate or certificates representing so many
shares of stock as are not then subject to the Company's Repurchase Option.
Within 120 days after cessation of Purchaser's continuous status as an employee
or consultant with the Company, or any parent or subsidiary of the Company, you
will deliver to Purchaser a certificate or certificates representing the
aggregate number of shares held or issued pursuant to the Agreement and not
purchased by the Company or its assignees pursuant to exercise of the Company's
Repurchase Option.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to Purchaser,
you shall deliver all of the same to Purchaser and shall be discharged of all
further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties. You
shall not be personally liable for any act you may do or omit to do hereunder as
Escrow Agent or as attorney-in-fact for Purchaser while acting in good faith,
and any act done or omitted by you pursuant to the advice of your own attorneys
shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case you obey or comply with any such order, judgment or decree, you shall not
be liable to any of the parties hereto or to any other person, firm or
corporation by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or called
for hereunder.
▇▇.▇▇▇ shall not be liable for the outlawing of any rights under the
Statute of Limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
▇▇.▇▇▇ shall be entitled to incur legal expenses on your own, or employ
such legal counsel and other experts as you may deem necessary properly to
advise you in connection with your obligations hereunder, you may rely upon the
advice of such counsel, and may pay such counsel reasonable compensation
therefor.
12.Your responsibilities as Escrow Agent hereunder shall terminate if
and when you resign as Escrow Agent by written notice and deliver such notice to
each party. In the event of any such termination, the Company shall appoint a
successor Escrow Agent.
-2-
22
13.If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
▇▇.▇▇ is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such disputes shall have been settled either by mutual written agreement
of the parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
15.Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery or upon deposit in
the United States Post Office, by registered or certified mail with postage and
fees prepaid, addressed to each of the other parties thereunto entitled at the
following addresses or at such other addresses as a party may designate by ten
(10) days' advance written notice to each of the other parties hereto.
PURCHASER: COMPANY:
▇▇▇▇▇ ▇▇▇▇▇▇ EPIPHANY MARKETING SOFTWARE, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: Corporate Secretary
------------------------------------- ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Residence Address:
ESCROW AGENT:
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Professional Corporation
-------------------------------------
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇.▇▇ signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not become a
party to the Agreement.
17.This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns.
-3-
23
18. These Joint Escrow Instructions shall be governed by the internal
substantive laws, but not the choice of law rules, of California.
PURCHASER: EPIPHANY MARKETING
SOFTWARE, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------- ------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ By ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title Chairman & EVP R&D
ESCROW AGENT:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Professional Corporation
------------------------------------
By
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title Partner
Dated: July 1, 1998
-4-