Exhibit 99.2
AFFILIATE AGREEMENT
This Affiliate Agreement ("Affiliate Agreement") is being executed and
delivered as of _______________ by _________________ ("Affiliate") and Chordiant
Software, Inc., a Delaware corporation ("Parent").
Recitals
A. Affiliate is a stockholder of, and/or is an officer and/or director
of, Prime Response, Inc., a Delaware corporation (the "Company").
B. Parent, Puccini Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), and the Company, have entered into an
Agreement and Plan of Merger and Reorganization, dated as of January ____, 2001
(the "Reorganization Agreement"), providing for the merger of Merger Sub into
the Company (the "Merger"). The Reorganization Agreement contemplates that,
upon consummation of the Merger (which is subject to the conditions set forth in
the Reorganization Agreement) (i) holders of shares of the common stock of the
Company will receive shares of common stock of Parent ("Parent Common Stock") in
exchange for their shares of common stock of the Company and (ii) the Company
will become a wholly owned subsidiary of Parent.
C. Affiliate understands that the Parent Common Stock that would be
issued in the Merger would be issued pursuant to a registration statement on
Form S-4, and that Affiliate may be deemed an "affiliate" of Parent as such term
is defined for purposes of paragraphs (c) and (d) of Rule 145 under the
Securities Act of 1933, as amended (the "Securities Act") and, as such,
Affiliate may only transfer, sell or dispose of such Parent Common Stock in
accordance with this Affiliate Agreement and Rule 145.
Agreement
Affiliate, intending to be legally bound, agrees as follows:
1. Representations and Warranties of Affiliate. Affiliate represents and
warrants to Parent as follows:
(a) Affiliate is the holder and "beneficial owner" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of: (i) the
number of outstanding shares of common stock of the Company (the "Company
Shares"), (ii) the number of shares issuable upon exercise of options to
purchase shares of Company common stock (the "Company Options") and/or (iii) the
number of shares issuable upon exercise of warrants to purchase shares of
Company common stock (the "Company Warrants"); each as set forth beneath
Affiliate's signature on the signature page hereof (the Company Shares, the
Company Options and the Company Warrants are hereinafter referred to as the
"Company Securities"), and Affiliate has good and valid title to the Company
Securities, free and clear of any liens, pledges, security interests, adverse
claims, equities, options, proxies, charges, encumbrances or restrictions of any
nature. Affiliate has the sole right to vote and to dispose of the Company
Securities.
1.
(b) Affiliate does not own any options, warrants, convertible
securities or other rights to purchase shares of common stock of the Company or
any other securities of the Company, other than the Company Securities.
(c) Affiliate has carefully read this Affiliate Agreement and, to the
extent Affiliate felt necessary, has discussed with counsel the limitations
imposed on Affiliate's ability to hold, sell, transfer or otherwise dispose of
the Company Securities or the shares of Parent Common Stock that Affiliate is to
receive pursuant to the Reorganization Agreement (the "Parent Shares") and any
options and/or warrants to purchase shares of Parent Common Stock that Affiliate
is to receive in connection with the Merger with respect to any Company Options
or Company Warrants the Affiliate may own. Affiliate fully understands the
limitations this Affiliate Agreement places upon Affiliate's ability to hold,
sell, transfer or otherwise dispose of securities of the Company and securities
of Parent.
(d) Affiliate understands that the representations, warranties and
covenants set forth in this Affiliate Agreement will be relied upon by Parent.
2. Prohibitions Against Transfer.
(a) Affiliate agrees that, during the period from the date hereof
through the date on which financial results covering at least 30 days of post-
Merger combined operations of Parent and the Company have been published by
Parent, which shall occur as soon as practicable (the "End Date"):
(i) Affiliate shall not sell, transfer or otherwise dispose of,
or reduce Affiliate's interest in or risk relating to, (A) any capital
stock of the Company (including, without limitation, the Company
Securities and any additional shares of capital stock of the Company
acquired by Affiliate, whether upon exercise of a stock option,
warrant or conversion of securities or otherwise), except pursuant to
and upon consummation of the Merger, or (B) any option, warrant,
convertible securities or other right to purchase any shares of
capital stock of the Company, except pursuant to and upon consummation
of the Merger; and
(ii) Affiliate shall not sell, transfer or otherwise dispose of,
or permit to be sold, transferred or otherwise disposed of, or reduce
Affiliate's interest in or risk relating to, (A) any shares of capital
stock of Parent (including, without limitation, the Parent Shares and
any additional shares of capital stock of Parent acquired by
Affiliate, whether upon exercise of a stock option, warrant or
conversion of securities or otherwise) (the "Affiliate's Parent Common
Stock"), or (B) any option, warrant, convertible securities or other
right to purchase any shares of capital stock of Parent.
(b) Affiliate agrees that Affiliate shall not effect any sale,
transfer or other disposition of any shares of the Affiliate's Parent Common
Stock unless:
2.
(i) such sale, transfer or other disposition is effected
pursuant to an effective registration statement under the Securities Act;
(ii) such sale, transfer or other disposition is made in
conformity with the requirements of Rule 145 under the Securities Act;
(iii) counsel reasonably satisfactory to Parent shall have
advised Parent in a written opinion letter (reasonably satisfactory in form
and content to Parent), upon which Parent may rely, that such sale,
transfer or other disposition will be exempt from the registration
requirements of the Securities Act; or
(iv) an authorized representative of the SEC shall have rendered
written advice to Stockholder to the effect that the SEC would take no
action, or that the staff of the SEC would not recommend that the SEC take
action, with respect to such sale, transfer or other disposition, and a
copy of such written advice and all other related communications with the
SEC shall have been delivered to Parent.
3. Stop Transfer Instructions; Legend.
Affiliate acknowledges and agrees that (a) stop transfer instructions
will be given to Parent's transfer agent with respect to the Parent Shares, and
(b) each certificate representing any of such shares shall bear a legend
identical or similar in effect to the following legend (together with any other
legend or legends required by applicable state securities laws or otherwise):
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145(d) OF THE SECURITIES ACT OF
1933 APPLIES AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SUCH RULE AND IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED AS OF
JANUARY ____, 2001, BETWEEN THE REGISTERED HOLDER HEREOF AND
THE ISSUER, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
OFFICES OF THE ISSUER."
4. Independence of Obligations. The covenants and obligations of
Affiliate set forth in this Affiliate Agreement shall be construed as
independent of any other agreement or arrangement between Affiliate, on the one
hand, and the Company or Parent, on the other. The existence of any claim or
cause of action by Affiliate against the Company or Parent shall not constitute
a defense to the enforcement of any of such covenants or obligations against
Affiliate.
5. Specific Performance. Affiliate agrees that in the event of any
breach or threatened breach by Affiliate of any covenant, obligation or other
provision contained in this Affiliate Agreement, Parent shall be entitled (in
addition to any other remedy that may be available to Parent) to: (a) a decree
or order of specific performance or mandamus to enforce the
3.
observance and performance of such covenant, obligation or other provision; and
(b) an injunction restraining such breach or threatened breach. Affiliate
further agrees that neither Parent nor any other person or entity shall be
required to obtain, furnish or post any bond or similar instrument in connection
with or as a condition to obtaining any remedy referred to in this Section 6,
and Affiliate irrevocably waives any right it may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
6. Other Agreements. Nothing in this Affiliate Agreement shall limit any
of the rights or remedies of Parent under the Reorganization Agreement, or any
of the rights or remedies of Parent or any of the obligations of Affiliate under
any agreement between Affiliate and Parent or any certificate or instrument
executed by Affiliate in favor of Parent; and nothing in the Reorganization
Agreement or in any other agreement, certificate or instrument shall limit any
of the rights or remedies of Parent or any of the obligations of Affiliate under
this Affiliate Agreement.
7. Notices. Any notice or other communication required or permitted to
be delivered to Affiliate or Parent under this Affiliate Agreement shall be in
writing and shall be deemed properly delivered, given and received when
delivered (by hand, by registered mail, by courier or express delivery or by
facsimile) to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
party):
if to Parent:
Chordiant Software, Inc.
00000 Xxxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Facsimile No. (000) 000-0000
Attn: Chief Executive Officer
if to Affiliate:
______________________________
______________________________
______________________________
Attn: ________________________
Fax: (___) _____ - _______
8. Severability. If any provision of this Affiliate Agreement or any
part of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or
4.
enforceability of such provision or part thereof under any other circumstances
or in any other jurisdiction, and (c) the invalidity or unenforceability of such
provision or part thereof shall not affect the validity or enforceability of the
remainder of such provision or the validity or enforceability of any other
provision of this Affiliate Agreement. Each provision of this Affiliate
Agreement is separable from every other provision of this Affiliate Agreement,
and each part of each provision of this Affiliate Agreement is separable from
every other part of such provision.
9. Applicable Law; Jurisdiction. THIS AFFILIATE AGREEMENT IS MADE
UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any action between
or among any of the parties, whether arising out of this Affiliate Agreement or
otherwise, (a) each of the parties irrevocably and unconditionally consents and
submits to the exclusive jurisdiction and venue of the state and federal courts
located in the State of Delaware; (b) if any such action is commended in a state
court, then, subject to applicable law, no party shall object to the removal of
such action to any federal court located in the State of Delaware; (c) each of
the parties irrevocably waives the right to trial by jury; and (d) each of the
parties irrevocably consents to service of process by first class certified
mail, return receipt requested, postage prepared, to the address at which such
party is to receive notice in accordance with Section 8.
10. Waiver; Termination. No failure on the part of Parent or Affiliate to
exercise any power, right, privilege or remedy under this Affiliate Agreement,
and no delay on the part of Parent or Affiliate in exercising any power, right,
privilege or remedy under this Affiliate Agreement, shall operate as a waiver of
such power, right, privilege or remedy; and no single or partial exercise of any
such power, right, privilege or remedy shall preclude any other or further
exercise thereof or of any other power, right, privilege or remedy. Neither
Parent nor Affiliate shall be deemed to have waived any claim arising out of
this Affiliate Agreement, or any power, right, privilege or remedy under this
Affiliate Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of Parent or Affiliate, as the case may be; and any such
waiver shall not be applicable or have any effect except in the specific
instance in which it is given. If the Reorganization Agreement is terminated,
this Affiliate Agreement shall thereupon terminate.
11. Headings. The headings contained in this Affiliate Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Affiliate Agreement and shall not be referred to in connection with the
construction or interpretation of this Affiliate Agreement.
12. Further Assurances. Affiliate shall execute and/or cause to be
delivered to Parent such instruments and other documents and shall take such
other actions as Parent may reasonably request to effectuate the intent and
purposes of this Affiliate Agreement.
13. Entire Agreement. This Affiliate Agreement, the Reorganization
Agreement and any Voting Agreement between Affiliate and Parent collectively set
forth the entire understanding of Parent and Affiliate relating to the subject
matter hereof and thereof and
5.
supersede all other prior agreements and understandings between Parent and
Affiliate relating to the subject matter hereof and thereof.
14. Non-Exclusivity. The rights and remedies of Parent and Affiliate
hereunder are not exclusive of or limited by any other rights or remedies which
Parent and Affiliate may have, whether at law, in equity, by contract or
otherwise, all of which shall be cumulative (and not alternative).
15. Amendments. This Affiliate Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of Parent and Affiliate.
16. Assignment. This Affiliate Agreement and all obligations of Affiliate
hereunder are personal to Affiliate and may not be transferred or delegated by
Affiliate at any time. Parent may freely assign any or all of its rights under
this Affiliate Agreement, in whole or in part, to any other person or entity
without obtaining the consent or approval of Affiliate.
17. Binding Nature. Subject to Section 16, this Affiliate Agreement will
inure to the benefit of Parent and its successors and assigns and will be
binding upon Affiliate and Affiliate's representatives, executors,
administrators, estate, heirs, successors and assigns.
18. Survival. Each of the representations, warranties, covenants and
obligations contained in this Affiliate Agreement shall survive the consummation
of the Merger.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.
This Affiliate Agreement has been executed as of the date first written
above.
Affiliate:
_____________________________________
Name:
Number of Outstanding shares of
Common Stock of the Company
Held by Affiliate:
_______________________________
Number of Company Options
Held by Affiliate:
_______________________________
Number of Company Warrants
Held by Affiliate:
_______________________________
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
7.
Chordiant Software, Inc.
By: _______________________
Title: _______________________
8.
