Marketfirst Software Inc – NOTE AND WARRANT PURCHASE AGREEMENT (August 10th, 2000)Exhibit 4.4 NOTE AND WARRANT PURCHASE AGREEMENT This Note and Warrant Purchase Agreement (this "Agreement") is entered into as of July 11, 2000 by and among MarketFirst Software, Inc., a Delaware corporation (the "Company"), and the persons listed on Schedule 1 hereto (collectively, the "Lenders"). R E C I T A L S --------------- A. The Company desires to borrow from the Lenders up to $10,000,000 in order to meet its needs for working capital pending the closing of the proposed sale of shares of its capital stock in a Qualified Equity Financing (as defined below) or an Acquisition (as defined below). B. Subject to the terms and conditions set forth below, each of the Lenders desires to make loans in the Total Commitment Amount set forth opposite its name on Schedule 1 hereto in exchange for con
Marketfirst Software Inc – AMENDMENT TO EMPLOYMENT AGREEMENT (August 10th, 2000)Exhibit 10.9 AMENDMENT TO EMPLOYMENT AGREEMENT This Amendment to Employment Agreement (this "Amendment") is made and entered into as of July 1, 2000 by and between MarketFirst Software, Inc., a Delaware corporation (the "Company"), and Peter R. Tierney (the "Executive"). WHEREAS, that certain Amended and Restated Employment Agreement (the "Agreement") was entered into as of January 1, 2000 by and between the Company and the Executive. WHEREAS, the parties desire to amend the Agreement as set forth below. NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows: ARTICLE I DEFINITIONS Except as otherwise defined herein, capitalized terms used
Marketfirst Software Inc – AMENDMENT TO MERGER AGREEMENT (August 10th, 2000)EXHIBIT 2.2 AMENDMENT TO MERGER AGREEMENT This Amendment to Merger Agreement (this "Amendment") is made and entered into as of July 20, 2000 by and among MarketFirst Software, Inc., a Delaware corporation ("Parent"), FusionDM, Inc., a Delaware corporation, a wholly owned subsidiary of Parent ("Merger Sub"), Times Direct Marketing, Inc., a California corporation (the "Company"), and Christopher E. Peterson and Thierry Zamora (individually, a "Shareholder", and collectively the "Shareholders"). WHEREAS, that certain Agreement and Plan of Merger and Reorganization (the "Agreement") was entered into as of April 14, 2000 by and among Parent, Merger Sub, the Company and the Shareholders. WHEREAS, the parties desire to amend the Agreement as set forth below. NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agree
Marketfirst Software Inc – CERTIFICATE OF INCORPORATION (April 18th, 2000)EXHIBIT 3.3 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF MARKETFIRST SOFTWARE, INC. The undersigned Peter R. Tierney and Anurag Khemka, hereby certify that: ONE: They are the duly elected and acting President and Secretary, --- respectively, of said corporation. TWO: The original Certificate of Incorporation of the Corporation was --- filed with the Secretary of State of Delaware on August 8, 1996, under the name "Cybernate Technology, Inc." On September 3, 1999, the Corporation filed an Amended and Restated Certificate of Incorporation. THREE: The Amended and Restated Certificate of Incorporation of said ----- corporation shall be amended and restated to read in full as follows:
Marketfirst Software Inc – Secured Full Recourse Promissory Note (April 18th, 2000)EXHIBIT 10.6 Amended and Restated -------------------- Secured Full Recourse Promissory Note ------------------------------------- Mountain View, California $156,184.88 July 30, 1998 1. Obligation. In exchange for the issuance to the undersigned ---------- ("Purchaser") of 2,263,549 shares (the "Shares") of the Common Stock of MarketFirst Software, Inc., a Delaware corporation (the "Company"), receipt of which is hereby acknowledged, Purchaser hereby promises to pay to the order of the Company on or before July 30, 2002, at the Company's principal place of business at 485 Clyde Avenue, Mountain View, California, or at such other place as the Company may direct, the principal sum of ONE HUNDRED FIFTY-SIX T
Marketfirst Software Inc – CERTIFICATE OF INCORPORATION (April 18th, 2000)Exhibit 3.1 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF MARKETFIRST SOFTWARE, INC. MarketFirst Software, Inc., a Delaware corporation, hereby certifies that the Amended and Restated Certificate of Incorporation of the corporation attached hereto as Exhibit "A", which is incorporated herein by this reference, ----------- and which restates, integrates and further amends the provisions of the Certificate of Incorporation of this corporation as heretofore amended or supplemented, has been duly adopted by the corporation's Board of Directors and has been adopted by a majority of the corporation's stockholders in accordance with Sections 228, 242 and 245 of the Delaware General Corporation Law. The corporation was previously incorporated under the name Cybernat
Marketfirst Software Inc – SOFTWARE LICENSE AGREEMENT (April 18th, 2000)EXHIBIT 10.7 MARKETFIRST SOFTWARE, INC. SOFTWARE LICENSE AGREEMENT THIS SOFTWARE LICENSE AGREEMENT (the "Agreement") is made and entered as of January 1, 2000, (the "Effective Date"), by and between MarketFirst Software, Inc., a Delaware corporation having its principal place of business at: 485 Clyde Avenue, Mountain View, CA 94043 ("MarketFirst"), and SAP AG Inc., a German corporation having its principal place of business at Neurottstr. 16, 69190 Walldorf, Germany ("Customer"). The Parties hereto agree as follows: 1. Definitions 1.1 "Commencement Date" shall mean the date on which the Programs are delivered by MarketFirst to Customer, or if no delivery is necessary, the effective date set forth on the Order Form. 1.2 "Designated System" or "Designated Systems" shall mean the computer hardware and operating system(s) d
Marketfirst Software Inc – THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS WARRANT ARE (April 18th, 2000)EXHIBIT 4.3 THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS WARRANT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS WARRANT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT. THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
Marketfirst Software Inc – OFFICE LEASE AGREEMENT (April 18th, 2000)Exhibit 10.8 SHORELINE TECHNOLOGY PARK MOUNTAIN VIEW, CALIFORNIA OFFICE LEASE AGREEMENT BETWEEN EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a Delaware limited liability company ("LANDLORD") AND MARKETFIRST SOFTWARE, INC., a Delaware corporation ("TENANT") TABLE OF CONTENTS I. Basic Lease Information.......................................... 1 II. Lease Grant...................................................... 3 III. Possession....................................................... 3 IV. Rent.............................................
Marketfirst Software Inc – 2000 EMPLOYEE STOCK PURCHASE PLAN (April 18th, 2000)Exhibit 10.5 MARKETFIRST SOFTWARE, INC. 2000 EMPLOYEE STOCK PURCHASE PLAN 1. PURPOSE OF THE PLAN This Employee Stock Purchase Plan is intended to promote the interests of MarketFirst Software, Inc., a Delaware corporation, by providing eligible employees with the opportunity to acquire a proprietary interest in the Corporation through participation in a payroll-deduction based employee stock purchase plan designed to qualify under Section 423 of the Code. Capitalized terms herein shall have the meanings assigned to such terms in the attached Appendix. 2. ADMINISTRATION OF THE PLAN The Plan Administrator shall have full authority to interpret and construe any provision of the Plan and to adopt such rules and regulations for administering the Plan as it may deem necessary in order to comply with the requirements of Code
Marketfirst Software Inc – EMPLOYMENT AGREEMENT (April 18th, 2000)EXHIBIT 10.2 AMENDED AND RESTATED EMPLOYMENT AGREEMENT -------------------- THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), is entered into as of January 1, 2000 by MARKETFIRST SOFTWARE, INC. (the "Company") and PETER R. TIERNEY (the "Executive"). WHEREAS, the Company desires to secure the services of Executive as President and Chief Executive Officer, and Executive desires to perform such services for the Company on the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the premises and of the covenants and agreements set forth below, it is mutually agreed as follows: ARTICLE I EMPLOYMENT 1.1 Term of Employment. The term of employment of Executive by the -------------
Marketfirst Software Inc – AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (April 18th, 2000)Exhibit 2.1 AGREEMENT AND PLAN OF MERGER AND REORGANIZATION By and Among MARKETFIRST SOFTWARE, INC., FUSIONDM, INC., TIMES DIRECT MARKETING, INC., and CHRISTOPHER E. PETERSON and THIERRY ZAMORA Dated as of April 14, 2000 AGREEMENT AND PLAN OF MERGER AND REORGANIZATION THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this "Agreement") is made and entered into as of April 14, 2000, by and among --------- MARKETFIRST SOFTWARE, INC., a Delaware corporation ("Parent"), FUSIONDM, INC., a ------ Delaware corporation and wholly-owned subsidiary of Parent ("Merger Sub"), TIMES
Marketfirst Software Inc – 1996 EQUITY INCENTIVE PLAN (April 18th, 2000)Exhibit 10.3 MARKETFIRST SOFTWARE, INC. 1996 EQUITY INCENTIVE PLAN Amended and Restated March 17, 2000 1. PURPOSE. The purpose of this Plan is to provide incentives to ------- attract, retain and motivate eligible persons whose present and potential contributions are important to the success of the Company, its Parent and Subsidiaries, by offering them an opportunity to participate in the Company's future performance through awards of Options and Restricted Stock. Capitalized terms not defined in the text are defined in Section 22. This Plan is intended to be a written compensatory benefit plan within the meaning of Rule 701 promulgated under the Securities Act. 2. SHARES SUBJECT TO THE PLAN. -------------------------- 2.1 Number of Shares Available. Subject to Sec
Marketfirst Software Inc – 2000 STOCK INCENTIVE PLAN (April 18th, 2000)EXHIBIT 10.4 MARKETFIRST SOFTWARE, INC. 2000 STOCK INCENTIVE PLAN ------------------------- ARTICLE I INTRODUCTION ------------ 1.1. PURPOSE OF THE PLAN This 2000 Stock Incentive Plan is intended to promote the interests of MarketFirst Software, Inc., a Delaware corporation, by providing eligible persons in the Corporation's service with the opportunity to acquire a proprietary interest, or otherwise increase their proprietary interest, in the Corporation as an incentive for them to remain in such service. Capitalized terms shall have the meanings assigned to such terms in the attached Appendix. 1.2. STRUCTURE OF THE PLAN A. The Plan shall be divided into three separate equity programs:
Marketfirst Software Inc – INVESTOR'S RIGHTS AGREEMENT (April 18th, 2000)Exhibit 4.2 FIFTH RESTATED AND AMENDED -------------------------- INVESTOR'S RIGHTS AGREEMENT --------------------------- This Fifth Restated and Amended Investor's Rights Agreement (this "Agreement") is made and entered into as of September 10, 1999 by and among --------- MarketFirst Software, Inc., a Delaware corporation (the "Company"), and the ------- persons and entities listed on Exhibit A hereto (the "Investors") and the --------- --------- persons listed on Exhibit B attached hereto (the "Founders"). --------- -------- R E C I T A L S - - - - - - - - A. Certain of the Investors (the "Pri
Marketfirst Software Inc – INDEMNIFICATION AGREEMENT (April 18th, 2000)EXHIBIT 10.1 FORM OF INDEMNIFICATION AGREEMENT THIS AGREEMENT (the "Agreement") is made and entered into this _____ --------- day of ______, 2000 between MarketFirst Software, Inc., a Delaware corporation (the "Company"), and ____________________, an individual ("Indemnitee"). ------- ---------- WITNESSETH THAT: WHEREAS, Indemnitee performs a valuable service for the Company; and WHEREAS, the Board of Directors of the Company have adopted a Certificate of Incorporation (the "Certificate") permitting the Board of ----------- Directors to indemnify the officers and directors of the Company; and WHEREAS, the Certificate and Section 145 of the Delaware General Corpor
Marketfirst Software Inc – CERTIFICATE OF INCORPORATION (April 18th, 2000)EXHIBIT 3.2 CERTIFICATE OF AMENDMENT OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF MARKETFIRST SOFTWARE, INC. MarketFirst Software, Inc., a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify that: FIRST. The amendment to the Corporation's Amended and Restated Certificate of Incorporation set forth below was duly adopted in accordance with the provisions of Section 242 and has been consented to in writing by the stockholders in accordance with Section 228 of the General Corporation Law of the State of Delaware. SECOND. Article IV, Section A, of the Corporation's Amended and Restated Certificate of
