-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, O2c73VbX/I7drxboj5fk8mlRQVPRBUYxxofxDRx5s2zLJ/hE6x9LeWSd3FJ3837W MxSnrC6DcfF/D/ZiTDgwLQ== 0001012870-01-000155.txt : 20010123 0001012870-01-000155.hdr.sgml : 20010123 ACCESSION NUMBER: 0001012870-01-000155 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010118 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PRIME RESPONSE INC/DE CENTRAL INDEX KEY: 0001096839 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 133972166 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-60139 FILM NUMBER: 1510575 BUSINESS ADDRESS: STREET 1: 150 CAMBRIDGE DR CITY: CAMBRIDGE STATE: MA ZIP: 02140 BUSINESS PHONE: 6178768300 MAIL ADDRESS: STREET 1: 150 CAMBRIDGE PARK DR CITY: CAMBRIDGE STATE: MA ZIP: 02140 FORMER COMPANY: FORMER CONFORMED NAME: PRIME RESPONSE GROUP INC/DE DATE OF NAME CHANGE: 19991014 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CHORDIANT SOFTWARE INC CENTRAL INDEX KEY: 0001042134 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 931051328 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 20400 STEVENS CREEK BLVD STREET 2: SUITE 400 CITY: CUPERTINO STATE: CA ZIP: 950142217 BUSINESS PHONE: 4085176100 MAIL ADDRESS: STREET 1: 20400 STEVENS CREEK BLVD STREET 2: SUITE 400 CITY: CUPERTINO STATE: CA ZIP: 950142217 SC 13D 1 0001.txt SCHEDULE 13D FILING SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. __)* Prime Response, Inc. -------------------- (Name of Issuer) Common Stock, $0.01 par value per share --------------------------------------- (Title of Class of Securities) 74158B100 (CUSIP Number) Samuel T. Spadafora Chordiant Software, Inc. 20400 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 (408) 517-6100 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 8, 2001 --------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d(f) or Rule 13d (g), check the following box [ ]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or otherwise subject to the liabilities of that section of the Exchange Act but shall be subject to all other provisions of the Exchange Act (however, see the Notes). - ------------------------------ CUSIP NO. 74158B100 13D --------------- - ------------------------------ - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON Chordiant Software, Inc. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 93-1051328 - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [_] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ------------------------------------------------------------------------------- CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT 5 TO ITEMS 2(d) or 2(e) [_] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION State of Delaware - ------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ------------------------------------------------------------ 8 SHARED VOTING POWER BENEFICIALLY OWNED BY 8,192,828* ------------------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 PERSON ------------------------------------------------------------ 10 SHARED DISPOSITIVE POWER WITH 8,192,828* - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,192,828* shares - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 40.0%* - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) CO - ------------------------------------------------------------------------------- Neither the filing of this statement on Schedule 13D nor any of its contents shall be deemed to constitute an admission by Chordiant Software, Inc. that it is the beneficial owner of any of the Common Stock referred to herein for purposes of Rule 13(d)-4 of the Securities Exchange Act of 1934, as amended, or for any other purpose, and such beneficial ownership is expressly disclaimed. * Does not include warrants to purchase an aggregate of 276,211 shares of Prime Response Common Stock, which warrants are exercisable within 60 days of January 8, 2001, held by the persons listed on this Schedule II. 2 ITEM 1. SECURITY AND ISSUER This statement on Schedule 13D relates to the common stock, $0.01 par value per share (the "Prime Response Common Stock"), of Prime Response, Inc., a Delaware corporation ("Prime Response"). The principal executive offices of Prime Response are located at 150 CambridgePark Drive, Cambridge, MA 02140. ITEM 2. IDENTITY AND BACKGROUND (a) The name of the person filing this statement is Chordiant Software, Inc., a Delaware corporation ("Chordiant Software"). Chordiant Software provides e-business infrastructure software that it believes enables companies to offer their customers personalized marketing, sales programs, e-business services and customer support across multiple communication channels. (b) The address of the principal office and principal business of Chordiant Software is 20400 Stevens Creek Boulevard, Suite 400, Cupertino, CA 95014. (c) Set forth in Schedule I to this Schedule 13D is the name and present principal occupation or employment of each of Chordiant Software's executive officers and directors and the name, principal business and address of any corporation or other organization in which such employment is conducted. (d) During the past five years, neither Chordiant Software nor, to Chordiant Software's knowledge, any person named in Schedule I to this Schedule 13D, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the past five years, neither Chordiant Software nor, to Chordiant Software's knowledge, any person named in Schedule I to this Schedule 13D, was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of or prohibiting or mandating activity subject to federal or state securities laws or finding any violation with respect to such laws. (f) All of the directors and executive officers of Chordiant Software named in Schedule I to this Schedule 13D are citizens of the United States, except for Stephen Kelly who is a citizen of the United Kingdom. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION To facilitate the consummation of the Merger (as defined in Item 4 of this Schedule 13D), certain stockholders of Prime Response have entered into Voting Agreements with Chordiant Software and have entered into and delivered Irrevocable Proxies in favor of Chordiant Software as described in Item 4 and Item 5 of this Schedule 13D. ITEM 4. PURPOSE OF TRANSACTION (a) - (b) Pursuant to an Agreement and Plan of Merger and Reorganization, dated as of January 8, 2001, (the "Merger Agreement"), among Chordiant Software, Puccini Acquisition Corp., a Delaware corporation and wholly- owned subsidiary of Chordiant Software ("Merger Sub"), and Prime Response, and subject to the conditions set forth therein (including, but not limited to, the adoption of the Merger Agreement by the stockholders of both Chordiant Software and Prime Response), Merger Sub will be merged with and into Prime Response (the "Merger"), Prime Response will become a wholly- owned subsidiary of Chordiant Software and each outstanding share of Prime Response Common Stock will be converted into a fraction of a share of common stock of Chordiant Software in accordance with the Merger Agreement. In addition, Chordiant Software will assume certain options and warrants to purchase Prime Response Common Stock on the terms set forth in the Merger Agreement. Concurrently with and as a condition to the execution and delivery of the Merger Agreement, Chordiant Software and the persons named on Schedule II to this Schedule 13D entered into Voting Agreements and the persons named on Schedule II to this Section 13D executed and delivered Irrevocable Proxies in favor of Chordiant Software. The description contained in this Item 4 of the transactions contemplated by the Merger Agreement is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which has been previously filed with the Securities and Exchange Commission as part of Chordiant's Form 8-K, dated January 17, 2001 (No. 000-29357), and is incorporated by reference herein. (c) Not applicable. 3 (d) If the Merger is consummated, Prime Response will become a wholly-owned subsidiary of Chordiant Software, and Choridant Software will subsequently determine the size and membership of the board of directors of Prime Response and the officers of Prime Response. (e) The Merger Agreement prohibits Prime Response from declaring, accruing, setting aside or paying any dividend or making any other distribution in respect of any shares of capital stock, or repurchasing, redeeming or otherwise reacquiring any shares of capital stock or other securities. Upon consummation of the Merger, Prime Response will become a wholly-owned subsidiary of Chordiant Software, and will cease to be a reporting company under the Exchange Act. (f) Upon consummation of the Merger, Prime Response will become a wholly- owned subsidiary of Chordiant Software. (g) The Merger Agreement contains a number of provisions limiting the ability of Prime Response to become acquired by, or to pursue the acquisition of Prime Response by, any persons other than Chordiant Software during the pendency of the Merger Agreement. Upon consummation of the Merger, the certificate of incorporation of Prime Response will be amended and restated to conform to Exhibit B of the Merger Agreement. (h) Upon consummation of the Merger, the Prime Response Common Stock will cease to be quoted on any quotation system or exchange. (i) Upon consummation of the Merger, the Prime Response Common Stock will become eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act. (j) Other than as described above, Chordiant Software currently has no plan or proposal which relates to, or may result in, any of the matters listed in Items 4(a) - (i) of this Schedule 13D (although Chordiant Software reserves the right to develop such plans or proposals). ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a)- (b) As a result of the Voting Agreements and the Irrevocable Proxies, at any time before the earlier of the date upon which the Merger Agreement is validly terminated or the date upon which the Merger is consummated, Chordiant Software has the shared power to vote an aggregate of 8,192,828 shares of Prime Response Common Stock for the limited purpose of voting (i) in favor of the Merger and the adoption of the Merger Agreement and in favor of each of the other actions contemplated by the Merger Agreement and any action that could reasonably be expected to facilitate the consummation of the Merger; (ii) against any action or agreement that could result in a breach of any representation, warranty, covenant or obligation of Prime Response in the Merger Agreement or in this Voting Agreement; and (iii) against the following actions (other than the Merger and the other transactions contemplated by the Merger Agreement) (collectively, hereinafter referred to as the "Other Actions"): (A) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving Prime Response or any of its subsidiaries; (B) any sale, lease or transfer of a material amount of assets of any of Prime Response or any of its subsidiaries (other than in the ordinary course of business); (C) any reorganization, recapitalization, dissolution or liquidation of any of Prime Response or any of its subsidiaries; (D) any removal of or change in a majority of the board of directors of Prime Response; (E) any amendment to the Prime Response's certificate of incorporation; (F) any material change in the capitalization of Prime Response or Prime Response's corporate structure; and (G) any other action that is inconsistent with the Merger or that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any of the other transactions contemplated by the Merger Agreement or this Voting Agreement. In addition, as a result of the Voting Agreements and the Irrevocable Proxies, for a period of 180 days after termination of the Merger Agreement under certain circumstances, Chordiant Software will have the power to vote an aggregate of 8,192,828 shares of Prime Response Common Stock for the limited purpose of voting (i) against any offer, proposal, inquiry or indication of interest (other than an offer, proposal, inquiry or indication of interest made or submitted by Chordiant Software) contemplating or otherwise relating to any transaction or series of transactions involving: (A) any merger, consolidation, amalgamation, share exchange, business combination, issuance of securities, acquisition of securities, tender offer, exchange offer or other similar transaction (1) in which Prime Response or any of its subsidiaries is a constituent corporation, (2) in which a person or group of persons directly or indirectly acquires beneficial or record ownership of securities representing more than 20% of the outstanding securities of any class of voting securities of Prime Response or any of its subsidiaries, or (3) in which Prime Response or any of its subsidiaries issues securities representing more than 20% of the outstanding securities of any class of voting securities of Prime Response or any of its subsidiaries; (B) any sale, lease, exchange, transfer, license, acquisition or disposition of any business or businesses or assets that constitute or account for 20% or more of the consolidated net revenues, net income or assets of Prime Response or any of its subsidiaries; or (C) any liquidation or dissolution of Prime Response or any of 4 its subsidiaries, and against the approval or adoption of any related transaction or agreement; (ii) against any action that is intended, or could reasonably be expected, to facilitate the consummation of any of the foregoing transactions; and (iii) against any Other Action. The stockholders of Prime Response who are parties to the Voting Agreements and who have executed and delivered Irrevocable Proxies to Chordiant Software agreed not to enter into any agreement or understanding with any person or group of persons to vote or give instructions inconsistent with clause "(i)," "(ii)" or "(iii)" of the preceding sentence, and retained the right to vote their shares of Prime Response Common Stock on all matters other than those identifies in the Voting Agreements. The shares covered by the Voting Agreements constitute 40% of the issued and outstanding shares of Prime Response Common Stock as of January 8, 2001. The description contained in Item 4 and this Item 5 of the transactions contemplated by the Voting Agreements is qualified in its entirety by reference to the full text of the Form of Voting Agreement and Irrevocable Proxy, a copy of which is attached to this Schedule 13D as Exhibit 2.2. Also in connection with the Merger Agreement, each person that may be deemed to be an affiliate (as such term is defined in Rule 405 under the Securities Act of 1933, as amended) of Prime Response (individually an "Affiliate" and collectively, the "Affiliates") has executed and delivered, or will execute and deliver, an Affiliate Agreement, dated as of January 8, 2001, (individually, an "Affiliate Agreement" and collectively, the "Affiliate Agreements") to Chordiant Software. Pursuant to Section 2(a) thereof, each Affiliate has agreed that, from the date of the Affiliate Agreement through the date on which financial results covering at least 30 days of post-Merger combined operations of Chordiant Software and Prime Response have been published: (i) such Affiliate shall not sell, transfer or otherwise dispose of, or reduce such Affiliate's interest in or risk relating to, (A) any capital stock of Prime Response (including, without limitation, all capital stock owned by the Affiliate and any additional shares of capital stock acquired by the 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 Prime Response, except pursuant to and upon consummation of the Merger; and (ii) such Affiliate shall not sell, transfer or otherwise dispose of, or reduce such Affiliate's interest in or risk relating to, (A) any shares of capital stock of Chordiant (including, without limitation, the shares of Chordiant common stock and any additional shares of capital stock of Chordiant acquired by the Affiliate, whether upon exercise of a stock option, warrant or conversion of securities or otherwise) or (B) any option, warrant, convertible securities or other right to purchase any shares of capital stock of Chordiant Software. The Affiliates have also agreed, pursuant to Section 2(b) of the Affiliate Agreements, not to transfer any shares of Chordiant common stock received in the Merger, except in accordance with applicable securities laws. The description contained in this Item 5 of the transactions contemplated by the Affiliate Agreements is qualified in its entirety by reference to the full text of the form of Affiliate Agreement, a copy of which is attached to this Schedule 13D as Exhibit 99.1. To Chordiant Software's knowledge, no shares of Prime Response Common Stock are beneficially owned by any of the persons named in Schedule I to this Schedule 13D, except for such beneficial ownership, if any, arising solely from the Voting Agreements and Irrevocable Proxies. Set forth in Schedule II to this Schedule 13D is the name of each person with whom Chordiant Software shares the power to vote or to direct the vote or to dispose or direct the disposition of Prime Response Common Stock in the manner described above. During the past five years, to Chordiant Software's knowledge, neither the entities named in Schedule II nor the persons named in Schedule III to this Schedule 13D has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). During the past five years, to Chordiant Software's knowledge, neither the entities named in Schedule II nor the persons named in Schedule III to this Schedule 13D was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of or prohibiting or mandating activity subject to federal or state securities laws or finding any violation with respect to such laws. To Chordiant Software's knowledge, the person named in Schedule III to this Schedule 13D is a citizens of the United States. (c) Neither Chordiant Software, nor to Chordiant Software's knowledge, any person named in Schedule I to this Schedule 13D, has effected any transaction in Prime Response Common Stock during the past 60 days, except as disclosed herein. (d) Not applicable. (e) Not applicable. 5 ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Other than as described in Item 4 above, to Chordiant Software's knowledge, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of Prime Response, including but not limited to transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS EXHIBIT NO. DESCRIPTION - ----------- ----------- 2.1 Agreement and Plan of Merger and Reorganization, dated as of January 8, 2001, by and among Chordiant Software, Inc., a Delaware corporation, Puccini Acquisition Corp., a Delaware corporation, and Prime Response, Inc., a Delaware corporation, previously filed as Exhibit 2.1 to Chordiant's Form 8-K, dated January 17, 2001 (No. 000-29357), and incorporated by reference herein. 99.1 Form of Voting Agreement in substantially the form entered into between Chordiant Software, Inc., a Delaware corporation and the persons listed on Schedule II to this Schedule 13D, and Form of Irrevocable Proxy in substantially the form executed by the persons listed on Schedule II to this Schedule 13D in favor of Chordiant Software. 99.2 Form of Affiliate Agreement, in substantially the form executed by each of the persons listed on Schedule II to this Schedule 13D, Peter J. Boni, James Carling, Gary Daniels, William E. Ford, Steven Gal, Paul B. Lavellee, Marc McMorris, Terence H. Osborne, Frederick Phillips, James P. Plantan, Allen A. A. Swann, William Wyman, The Peter J. Boni February 2000 Retained Annuity Trust U/D/T and The Paul B. Lavellee Irrevocable Trust. 6 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: January 18, 2001 CHORDIANT SOFTWARE, INC. By: /s/ Samuel T. Spadafora --------------------------- Samuel T. Spadafora Chairman of the Board of Directors and Chief Executive Officer 7 SCHEDULE I EXECUTIVE OFFICERS AND EMPLOYEE DIRECTORS OF CHORDIANT SOFTWARE NAME PRINCIPAL OCCUPATION OR EMPLOYMENT - ---- ---------------------------------- Samuel T. Spadafora Chairman of the Board of Directors and Chief Executive Officer Stephen Kelly President and Chief Operating Officer Joseph F. Tumminaro Chief Technology Officer and Director Donald J. Morrison Executive Vice President, Worldwide Field Operations Cary G. Morgan Corporate Controller, Acting Chief Accounting Officer, Acting Chief Financial Officer and Acting Secretary All individuals named in the above table are employed by Chordiant Software, Inc. The address of Chordiant Software's principal executive office is 20400 Stevens Creek Boulevard, Suite 400, Cupertino, CA 95014. NON-EMPLOYEE DIRECTORS OF CHORDIANT SOFTWARE
NAME AND PRINCIPAL OCCUPATION ADDRESS OF ORGANIZATION NAME OR EMPLOYMENT IN WHICH EMPLOYED - --------------------------------------------------------------------------------------------------------------------------- Oliver D. Curme General Partner Battery Ventures, LP 20 Williams Street, Suite 200 Wellesley, MA 02181 Kathryn C. Gould General Partner Foundation Capital 70 Willow Road, Suite 200 Menlo Park, CA 94025 Mitchell E. Kurtzman President, Chief Executive Officer and Liberate Technologies Director 2 Circle Star Way San Carlos, CA 94070 Robert S. McKinney Acting Chief Information Officer Metropolitan Life Insurance Company One Madison Avenue, Area 5H New York, NY 10010 and Independent Consultant Information Management Consulting c/o Chordiant Software, Inc. 20400 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 William Raduchel Chief Technology Officer America Online Incorporated 20000 AOL Way, #505 Dulles, VA 20166 Carol L. Realini Independent Consultant c/o Chordiant Software, Inc. 20400 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 David R. Springett, Ph.D. President Community College Foundation 1901 Royal Oaks Drive Sacramento, CA 95815
8 SCHEDULE II
PERCENTAGE OF NUMBER OF SHARES* OF PRIME OUTSTANDING SHARES OF RESPONSE COMMON STOCK PRIME RESPONSE COMMON PRIME RESPONSE STOCKHOLDER BENEFICIALLY OWNED STOCK AS OF JANUARY 8, 2001 - ------------------------------------------------------------------------------------------------------ GAP Coninvestment Partners, L.P. 1,219,774 6.0 GAP Coninvestment Partners II, L.P. 427,474 2.1 General Atlantic Partners 42, L.P. 4,151,856 20.3 General Atlantic Partners 48, L.P. 421,708 2.1 General Atlantic Partners 52, L.P. 1,373,225 6.8 General Atlantic Partners 57, L.P. 598,791 3.0
_______________ * Does not include a warrant to purchase 50,757 shares of Prime Response Common Stock exercisable by GAP Coinvestment Partners II, L.P. and does not include a warrant to purchase 225,454 shares of Prime Response Common Stock excercisable by General Atlantic Partners 52, L.P., which warrants are exercisable within 60 days of January 8, 2001. 9 SCHEDULE III NAME POSITION - ---- -------- Matthew Nimitz General Partner, GAP Coninvestment Partners, L.P. General Partner, GAP Coninvestment Partners II, L.P. General Partner, General Atlantic Partners 42, L.P. General Partner, General Atlantic Partners 48, L.P. General Partner, General Atlantic Partners 52, L.P. General Partner, General Atlantic Partners 57, L.P. 10 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION - ----------- ----------- 2.1 Agreement and Plan of Merger and Reorganization, dated as of January 8, 2001, by and among Chordiant Software, Inc., a Delaware corporation, Puccini Acquisition Corp., a Delaware corporation, and Prime Response, Inc., a Delaware corporation, previously filed as Exhibit 2.1 to Chordiant's Form 8-K, dated January 17, 2001 (No.000-29357), and incorporated by reference herein. 99.1 Form of Voting Agreement, in substantially the form entered into between Chordiant Software, Inc., a Delaware corporation and the persons listed on Schedule II to this Schedule 13D, and Form of Irrevocable Proxy in substantially the form executed by the persons listed on Schedule II to this Schedule 13D in favor of Chordiant Software. 99.2 Form of Affiliate Agreement, in substantially the form executed by each of the persons listed on Schedule II to this Schedule 13D, Peter J. Boni, James Carling, Gary Daniels, William E. Ford, Steven Gal, Paul B. Lavellee, Marc McMorris, Terence H. Osborne, Frederick Phillips, James P. Plantan, Allen A. A. Swann, William Wyman, The Peter J. Boni February 2000 Retained Annuity Trust U/D/T and The Paul B. Lavellee Irrevocable Trust. 11 EX-99.1 2 0002.txt VOTING AGREEMENT EXHIBIT 99.1 VOTING AGREEMENT This Voting Agreement is entered into as of ____________, by and between Chordiant Software, Inc., a Delaware corporation ("Parent"), and __________ ("Stockholder"). Recitals A. Parent, Puccini Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and Prime Response, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger and Reorganization of even date herewith (as amended from time to time, the "Reorganization Agreement"), which provides (subject to the conditions set forth therein) for the merger of Merger Sub into the Company (the "Merger"). B. As a condition to the willingness of Parent and Merger Sub to enter into the Reorganization Agreement, Parent and Merger Sub have required that Stockholder enter into this Voting Agreement; and Stockholder is entering into this Voting Agreement in order to induce Parent and Merger Sub to enter into the Reorganization Agreement. Agreement The parties to this Voting Agreement, intending to be legally bound, agree as follows: Section 1. Certain Definitions (a) All capitalized terms used but not otherwise defined in this Voting Agreement have the meanings given to them in the Reorganization Agreement. (b) "Subject Securities" shall mean 88.3875% (the "Percentage") of the securities of the Company (including shares of Company Common Stock and options, warrants and other rights to acquire shares of Company Common Stock) Owned by Stockholder as of the date of this Agreement; provided that there will be a pro rata adjustment in the Percentage and the number of securities of the Company Owned by the Stockholder subject to the terms and conditions of this Agreement in the event any shares of Company Common Stock are issued after the date hereof. (c) Stockholder shall be deemed to "Own" or to have acquired "Ownership" of a security if Stockholder: (i) is the record owner of such security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3 under the Exchange Act) of such security. (d) "Expiration Date" shall mean the earlier of the date upon which the Reorganization Agreement is validly terminated or the date upon which the Merger becomes effective. (e) An "Identified Termination" shall be deemed to have occurred if: (i) the Reorganization Agreement is terminated by Parent or the Company pursuant to Section 8.1(b) of the Reorganization Agreement, and at or prior to the time of termination of the Reorganization Agreement an Acquisition Proposal shall have been disclosed, announced, commenced, submitted or made; (ii) the Reorganization Agreement is terminated by Parent or the Company pursuant to Section 8.1(d) of the Reorganization Agreement; or (iii) the Reorganization Agreement is terminated by Parent pursuant to Section 8.1(f) of the Reorganization Agreement. (f) The "Record Date" for a particular matter shall be the date fixed for Persons entitled: (i) to receive notice of, and to vote at, a meeting of the stockholders of the Company called for the purpose of voting on such matter; or (ii) to take action by written consent of the stockholders of the Company with respect to such matter. (g) "Voting Expiration Date" shall mean the earlier of the date upon which the Reorganization Agreement is validly terminated or the date upon which the Merger becomes effective; provided, however, the "Voting Expiration Date" shall be the date 180 days following the date on which the Reorganization Agreement is validly terminated, if an Identified Termination occurs. Section 2. Transfer of Subject Securities 2.1 No Disposition or Encumbrance of Subject Securities. Stockholder covenants and agrees that, prior to the Expiration Date, Stockholder will not, directly or indirectly: (i) offer, sell, offer to sell, contract to sell, pledge, grant any option to purchase or otherwise dispose of or transfer (or permit or announce any offer, sale, offer of sale, contract of sale or grant of any option for the purchase of, or permit or announce any other disposition or transfer of) any of the Subject Securities, or any interest in any of the Subject Securities, to any Person other than Parent; (ii) create or permit to exist any Encumbrance on or otherwise affecting any of the Subject Securities; or (iii) reduce Stockholder's Ownership of, interest in or risk relating to any of the Subject Securities. 2.2 Transfer of Voting Rights. Stockholder covenants and agrees that, prior to the Expiration Date, Stockholder will not deposit any of the Subject Securities into a voting trust or grant a proxy or enter into a voting agreement or similar Contract with respect to any of the Subject Securities. Section 3. Voting of Shares 3.1 Pre-Termination Voting Agreement. Stockholder covenants and agrees that, prior to the earlier to occur of the valid termination of the Reorganization Agreement or the Effective Time, at any meeting of the stockholders of the Company, however called, and in any written action by consent of stockholders of the Company, Stockholder shall (unless otherwise directed in writing by Parent) cause to be voted all Subject Securities that are (as of the Record Date for any of the matters referred to in this Section 3.1) Owned by Stockholder: 2 (i) in favor of the Merger and the adoption of the Reorganization Agreement and in favor of each of the other actions contemplated by the Reorganization Agreement and any action that could reasonably be expected to facilitate the consummation of the Merger; (ii) against any action or agreement that could result in a breach of any representation, warranty, covenant or obligation of the Company in the Reorganization Agreement or in this Voting Agreement; and (iii) against the following actions (other than the Merger and the other transactions contemplated by the Reorganization Agreement) (collectively, hereinafter referred to as the "Other Actions"): (A) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving any of the Acquired Corporations; (B) any sale, lease or transfer of a material amount of assets of any of the Acquired Corporations (other than in the ordinary course of business); (C) any reorganization, recapitalization, dissolution or liquidation of any of the Acquired Corporations; (D) any removal of or change in a majority of the board of directors of the Company; (E) any amendment to the Company's certificate of incorporation; (F) any material change in the capitalization of the Company or the Company's corporate structure; and (G) any other action that is inconsistent with the Merger or that is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any of the other transactions contemplated by the Reorganization Agreement or this Voting Agreement. Stockholder shall not, at any time prior to the earlier to occur of the valid termination of the Reorganization Agreement or the Effective Time, enter into any agreement or understanding with any Person to vote or give instructions inconsistent with clause "(i)", "(ii)" or "(iii)" of the preceding sentence. 3.2 Post-Termination Voting Agreement. If an Identified Termination occurs, then, prior to the Voting Expiration Date, at any meeting of the stockholders of the Company, however called, and in any action by written consent of stockholders of the Company, Stockholder shall (unless otherwise directed in writing by Parent) cause to be voted all of the Subject Securities (as of the Record Date for any of the matters referred to in this Section 3.2) are Owned by Stockholder: (i) against any Acquisition Proposal and against the approval or adoption of any related transaction or agreement; (ii) against any action that is intended, or could reasonably be expected, to facilitate the consummation of any Acquisition Transaction; and (iii) against any Other Action. Stockholder shall not at any time prior to the Voting Expiration Date, enter into any agreement or understanding with any Person to vote or give instructions inconsistent with clause "(i)," "(ii)" or "(iii)" of the preceding sentence. 3.3 Proxy. (a) Concurrently with the execution of this Voting Agreement: (i) Stockholder shall deliver to Parent a proxy in the form attached hereto as Exhibit A, which shall be irrevocable to the fullest extent permitted by law, with respect to the shares referred to therein (the "Proxy"); and (ii) Stockholder shall cause to be delivered to Parent an additional proxy (in 3 the form attached hereto as Exhibit A) executed on behalf of the record owner of any outstanding shares of Company Common Stock that are owned beneficially (but are not owned of record) by Stockholder. (b) After the execution of this Voting Agreement, Stockholder shall execute or cause to be executed such further documents, instruments or proxies as may be reasonably requested by Parent with respect to any additional shares of outstanding capital stock of the Company of which Stockholder acquires Ownership or as may reasonably be required to vest in Parent the power to carry out and give effect to the provisions of this Voting Agreement. Stockholder shall promptly notify Parent upon acquiring Ownership of any securities of the Company. Section 4. Waiver of Appraisal Rights. To the fullest extent permitted by law, Stockholder hereby irrevocably and unconditionally waives any rights of appraisal, dissenters' rights or similar rights that Stockholder may have in connection with the Merger, and Stockholder shall cause to be irrevocably and unconditionally waived any such rights that any affiliate of Stockholder may have in connection with the Merger. Section 5. No Solicitation Stockholder covenants and agrees that, during the period commencing on the date of this Voting Agreement and ending on the Voting Expiration Date, Stockholder shall not, directly or indirectly, and shall not authorize or permit any Representative of Stockholder directly or indirectly to: (i) solicit, initiate, encourage, induce or facilitate the making, submission or announcement of any Acquisition Proposal or take any action that could reasonably be expected to lead to an Acquisition Proposal; (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal; (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Stockholder shall immediately cease any existing discussions with any Person that relate to any Acquisition Proposal. Stockholder shall promptly (and in no event later than 24 hours after receiving, or obtaining knowledge of, any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information relating to any of the Acquired Corporations (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person. 4 Section 6. Representations and Warranties of Stockholder Stockholder hereby represents and warrants to Parent as follows: 6.1 Authorization, etc. Stockholder has all requisite power and capacity to execute and deliver this Voting Agreement and the Proxy and to perform Stockholder's obligations hereunder and thereunder. This Voting Agreement and the Proxy have been duly executed and delivered by Stockholder and constitute the legal, valid and binding obligations of Stockholder, enforceable against Stockholder in accordance with their respective terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. 6.2 No Conflicts, Required Filings and Consents. (a) The execution and delivery of this Voting Agreement and the Proxy by Stockholder do not, and the performance of this Voting Agreement and the Proxy by Stockholder will not: (i) conflict with or violate any Legal Requirement, order, decree or judgment applicable to Stockholder or by which Stockholder or any of Stockholder's properties is bound or affected; or (ii) result in any breach of or constitute a default (with notice or lapse of time, or both) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of an Encumbrance on or otherwise affecting any of the Subject Securities pursuant to, any Contract to which Stockholder is a party or by which Stockholder or any of Stockholder's properties is bound or affected. (b) The execution and delivery of this Voting Agreement and the Proxy by Stockholder do not, and the performance of this Voting Agreement and the Proxy by Stockholder will not, require any Consent of any Person. 6.3 Title to Subject Securities. As of the date hereof, Stockholder Owns in the aggregate (including shares owned of record and shares owned beneficially) the number of outstanding shares of capital stock of the Company specified below Stockholder's name on the signature page hereof (the "Stockholder's Shares"), and the number of options, warrants and other rights to acquire shares of Company Common Stock specified below Stockholder's name on the signature page hereof (the "Stockholder's Options"), and Stockholder does not directly or indirectly Own any other securities of the Company, or any option, warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock or other securities of the Company, other than the shares and options, warrants and other rights set forth on the signature page hereof. For the purposes of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, the Stockholder Owns all of the Stockholder's Shares and all of the Stockholder's Options as its own ultimate parent Entity. 6.4 Accuracy of Representations. The representations and warranties contained in this Voting Agreement are accurate in all respects as of the date of this Voting Agreement, will be accurate in all respects at all times through the Voting Expiration Date and will be accurate in all respects as of the date of the consummation of the Merger as if made on that date. 5 Section 7. Covenants of Stockholder 7.1 Further Actions. Stockholder agrees to cooperate fully with Parent and to execute and deliver such further documents, transfers, assignments, endorsements, proxies, consents, certificates, agreements and instruments and shall (at Stockholder's sole expense) take such other actions as may be requested by Parent to evidence or reflect the transactions contemplated by this Voting Agreement and to carry out the intent and purposes of this Voting Agreement. 7.2 Legend. Immediately after the execution of this Voting Agreement (and from time to time prior to the Expiration Date upon the acquisition by Stockholder of Ownership of any shares of capital stock of the Company), Stockholder shall instruct the Company to cause each certificate of Stockholder evidencing any outstanding shares of capital stock of the Company Owned by Stockholder to bear a legend in the following form: THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE VOTING AGREEMENT DATED AS OF JANUARY __, 2001, AS IT MAY BE AMENDED, BETWEEN THE ISSUER AND _____________, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER. Section 8. Miscellaneous 8.1 Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made by Stockholder in this Voting Agreement shall survive (i) the consummation of the Merger, (ii) any termination of the Reorganization Agreement and (iii) the Voting Expiration Date. 8.2 Expenses. All costs and expenses incurred in connection with the transactions contemplated by this Voting Agreement shall be paid by the party incurring such costs and expenses. 8.3 Notices. Any notice or other communication required or permitted to be delivered to any party under this Voting Agreement shall be in writing and shall be deemed properly delivered, given and received (a) upon receipt when delivered by hand or (b) two business days after sent by registered mail or by courier or by express delivery service, provided that in each case the notice or other communication is sent to the address set forth beneath the name of such party below (or to such other address as such party shall have specified in a written notice given to the other parties hereto): if to Stockholder: at the address set forth below Stockholder's signature on the signature page hereto; 6 if to Parent: Chordiant Software, Inc. 20400 Stevens Creek Blvd., Suite 400 Cupertino, CA 95014-2217 Facsimile No. (408) 517-0270 Attn: Chief Executive Officer 8.5 Severability. In the event that any term, provision, covenant or restriction contained in this Voting Agreement, or the application of any such term, provision, covenant or restriction to any Person or set of circumstances, shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Voting Agreement, and the application of such term, provision, covenant or restriction to Persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law. 8.6 Entire Agreement; Counterparts. This Voting Agreement, the Proxy and any other documents delivered by the parties in connection herewith constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and thereof. No addition to or modification of any provision of this Voting Agreement shall be binding upon either party hereto unless made in writing and signed by both parties hereto. This Voting Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. 8.7 Assignment; Binding Effect. Except as provided herein, neither this Voting Agreement nor any of the obligations hereunder of Stockholder shall be assigned or delegated by any party (whether by operation of law or otherwise) without the prior written consent of the other party. Subject to the preceding sentence, this Voting Agreement shall be binding upon Stockholder and Stockholder's heirs, successors and assigns, and shall inure to the benefit of Parent and its successors and assigns. Without limiting any of the restrictions set forth in Section 2 or elsewhere in this Voting Agreement, this Voting Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Notwithstanding anything contained in this Voting Agreement to the contrary, nothing in this Voting Agreement, express or implied, is intended to confer on any Person, other than Parent and its successors and assigns, any rights or remedies of any nature. 8.8 Specific Performance. Stockholder agrees that (a) in the event of any breach or threatened breach by Stockholder of any covenant, obligation or other provision contained in this Voting Agreement, Parent shall be entitled (in addition to any other remedy that may be available to Parent) to (i) a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision; and (ii) an injunction restraining such breach or threatened breach; and (b) neither the stockholder nor any other Person shall be required to provide any bond or other security in connection with any such decree, order or injunction or in connection with any related action or proceeding. 7 8.9 Other Agreements. Nothing in this Voting Agreement shall limit any of the rights or remedies of Parent or obligations of Stockholder under any Affiliate Agreement or under any other agreement between Parent and Stockholder or any certificate or instrument executed by Stockholder 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 Stockholder under this Voting Agreement. 8.10 Applicable Law; Jurisdiction. This Voting Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. In any action between any of the parties arising out of or relating to this Voting Agreement or any of the transactions contemplated by this Voting Agreement: (a) each of the parties irrevocably and unconditionally consents and submits to the jurisdiction and venue of the state and federal courts located in the State of Delaware; (b) each of the parties irrevocably waives the right to trial by jury; and (c) each of the parties irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the address at which such party is to receive notice in accordance with Section 8.4. 8.11 No Limitation of Actions of Stockholder as Director. Notwithstanding anything to the contrary in this Voting Agreement, in the event Stockholder or any affiliate thereof is a director of the Company, nothing in this Voting Agreement is intended or shall be construed to require Stockholder, in its capacity as a director of the Company, to act or fail to act in accordance with its fiduciary duties in such capacity. 8.12 Construction. (a) For purposes of this Voting Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders. (b) The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Voting Agreement. (c) As used in this Voting Agreement, the words "include" and "including," and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words "without limitation." (d) Except as otherwise indicated, all references in this Voting Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this Voting Agreement and Exhibits to this Voting Agreement. (e) The headings contained in this Voting Agreement are for convenience of reference only, shall not be deemed to be a part of this Voting Agreement and shall not be referred to in connection with the construction or interpretation of this Voting Agreement. 8 In Witness Whereof, Parent and Stockholder have caused this Voting Agreement to be executed as of the date first written above. Chordiant Software, Inc. By:_________________________________ Name: Title: 9 In Witness Whereof, Parent and Stockholder have caused this Voting Agreement to be executed as of the date first written above. ______________________________________ Name: Address: _____________________________ ______________________________________ Facsimile No.: _______________________ Number of outstanding shares of Company Common Stock owned of record as of the date of this Voting Agreement: _________________ Number of additional outstanding shares of Company Common Stock owned beneficially (but not of record) as of the date of this Voting Agreement:__________________ Number of options, warrants and other rights to acquire shares of Company Common Stock owned of record as of the date of this Voting Agreement:__________________ Number of additional options, warrants and other rights to acquire shares of Company Common Stock owned beneficially (but not of record) as of the date of this Voting Agreement:__________________ 10 Exhibit A Irrevocable Proxy The undersigned stockholder of Prime Response, Inc., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes Samuel Spadafora, Don Morrison, Tyler Wall and Chordiant Software, Inc., a Delaware corporation ("Parent"), and each of them, the attorneys and proxies of the undersigned with full power of substitution and resubstitution, to the full extent of the undersigned's rights with respect to the Subject Securities (as defined in the Voting Agreement). Upon the execution hereof, all prior proxies given by the undersigned with respect to any of the Subject Securities are hereby revoked, and no subsequent proxies will be given with respect to any of the Subject Securities. This proxy is irrevocable, is coupled with an interest and is granted in connection with the Voting Agreement, dated as of the date hereof, between Parent and the undersigned (the "Voting Agreement"), and is granted in consideration of Parent entering into the Agreement and Plan of Merger and Reorganization, dated as of the date hereof, among Parent, Puccini Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Parent, and the Company (the "Reorganization Agreement"). Capitalized terms used but not otherwise defined in this proxy have the meanings given to such terms in the Reorganization Agreement. The attorneys and proxies named above will be empowered, and may exercise this proxy, to vote the Subject Securities at any time until the earlier to occur of the valid termination of the Reorganization Agreement or the Effective Time at any meeting of the stockholders of the Company, however called, or in any action by written consent of stockholders of the Company: (i) in favor of the Merger and the adoption of the Reorganization Agreement and in favor of each of the other actions contemplated by the Reorganization Agreement and any action that could reasonably be expected to facilitate the consummation of the Merger; (ii) against any action or agreement that could result in a breach of any representation, warranty, covenant or obligation of the Company in the Reorganization Agreement or the Voting Agreement; and (iii) in their discretion, with respect to the following actions (other than the Merger and the transactions contemplated by the Reorganization Agreement): (A) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving any of the Acquired Corporations; (B) any sale, lease or transfer of a material amount of assets of any of the Acquired Corporations (other than in the ordinary course of business); (C) any reorganization, recapitalization, dissolution or liquidation of any of the Acquired Corporations; (D) any removal of or change in a majority of the board of directors of the Company; (E) any amendment to the Company's certificate of incorporation; (F) any material change in the capitalization of the Company or the Company's corporate structure; or (G) any other action which is intended, or could reasonably be expected to, impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any of the other transactions contemplated by the Reorganization Agreement or the Voting Agreement. If an Identified Termination occurs, then, prior to the Voting Expiration Date (as such term is defined in the Voting Agreement), at any meeting of the stockholders of the Company, however called, and in any action by written consent of stockholders of the Company, the attorneys and proxies named above will be empowered, and may exercise this proxy, to vote the Subject Securities owned by the undersigned in their discretion with respect to (i) any Acquisition Proposal and any related transaction or agreement, (ii) any action that is intended, or could reasonably be expected, to facilitate the consummation of any Acquisition Transaction and (iii) against any Other Action. The undersigned stockholder may vote the Subject Securities on all matters other than the matters referred to in the two preceding paragraphs. This proxy shall be binding upon the heirs, successors and assigns of the undersigned (including any transferee of any of the Subject Securities). Any term or provision of this proxy which is invalid or unenforceable 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 proxy or affecting the validity or enforceability of any of the terms or provisions of this proxy in any other jurisdiction. If any provision of this proxy is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable. This proxy shall terminate upon the Voting Expiration Date. Dated: _______________ ________________________________ Name Number of Subject Securities of Company Common Stock owned of record as of the date of this proxy: ______________________________ 2 EX-99.2 3 0003.txt AFFILIATE AGREEMENT 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. 20400 Stevens Creek Blvd., Suite 400 Cupertino, CA 95014-2217 Facsimile No. (408) 517-0270 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. -----END PRIVACY-ENHANCED MESSAGE-----