Exhibit 10.17
SHARE REPURCHASE
AGREEMENT
THIS SHARE REPURCHASE AGREEMENT
(this “ Agreement ”) is made as of the 18th day
of October, 2005, by and between Commerce 5, Inc., a Delaware
corporation (the “ Seller ”), and Click
Commerce, Inc., a Delaware corporation (the “
Company ”).
WHEREAS, the Company issued certain
shares of its common stock pursuant to an Asset Purchase Agreement,
dated February 2, 2005, by and among ChannelWave, Inc., a
Delaware corporation, CWV Acquisition Corp., a Delaware corporation
and a direct, wholly-owned subsidiary of the Company, and the
Company (the “ Asset Purchase Agreement
”);
WHEREAS, the Seller owns certain
shares of the Company’s common stock issued in connection
with the Asset Purchase Agreement;
WHEREAS, the Company wishes to
purchase from Seller, and Seller wishes to sell to the Company, a
total of 161,774 shares (the “ Repurchased Shares
”) of the Company’s common stock issued in connection
with the Asset Purchase Agreement, upon the terms and subject to
the conditions contained herein;
NOW, THEREFORE, in consideration of
the foregoing and the mutual representations, warranties, covenants
and agreements herein contained, the Seller and the Company agree
as follows:
1.
Repurchase
. Subject
to the terms and conditions of this Agreement, simultaneously with
the execution of this Agreement, the Company hereby purchases,
acquires and takes assignment and delivery from the Seller of, and
the Seller hereby sells, assigns, transfers and delivers to the
Company, all of the Seller’s right, title and interest in and
to the Repurchased Shares (the “ Repurchase
”).
2.
Total
Consideration . In consideration for
the Repurchased Shares, the Company shall pay to the Seller $15.50
per share of the Company’s common stock or $2,507,497.00 in
the aggregate (the “ Total Consideration ”) for
all of the Repurchased Shares. In connection with the
Repurchase and as soon as reasonably practicable following the
execution of this Agreement, (i) the Seller shall transfer to
the Company through physical delivery or customary DTC electronic
transfer all of the Repurchased Shares, which shall be duly
endorsed to the Company, and (ii) the Company shall pay to the
Seller the Total Consideration by wire transfer of immediately
available funds to an account designated by the Seller prior to the
Repurchase.
3.
Seller
Representations and Warranties . The Seller hereby
represents and warrants to the Company as follows:
(a)
Legal and
Beneficial Owners; Transfer . As of the date of
the Repurchase, the Seller is the legal, and sole record and
beneficial, owner of the Repurchased Shares, and such Repurchased
Shares are free of all adverse claims, rights, options to acquire,
charges, restrictions, commitments, liens or encumbrances, and the
transfer of such Repurchased Shares to the Company pursuant to the
Repurchase will transfer to the Company good and valid title to
such Repurchased Shares, free of all adverse claims, rights,
options to acquire, charges, restrictions, commitments, liens or
encumbrances. The Seller is not a party to, nor is the Seller
aware of, any voting agreement, voting trust or similar agreement
or arrangement relating to the Repurchased Shares. The Seller
has not sold, pledged, hypothecated or otherwise transferred any of
the Repurchased Shares or any
interest therein to any
other person, and there are no outstanding options, rights, calls,
commitments of any kind relating to, or any presently effective
agreements or understandings with respect to, any of the
Repurchased Shares that would affect or prevent the sale of the
Repurchased Shares to the Company as contemplated by this
Agreement;
(b)
Organization
and Good Standing . The Seller is a
corporation, duly established, organized and validly existing under
the laws of the jurisdiction of its establishment;
(c)
Power and
Authority . The Seller has full
power, authority and right to execute, deliver and perform this
Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this
Agreement;
(d)
Due
Execution . This Agreement has
been duly executed and delivered by the Seller and is a legal,
valid and binding instrument enforceable against the Seller in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency and other similar laws relating
to the enforcement of creditors’ rights generally and to
general principles of equity;
(e)
No
Conflict . Neither the execution
and delivery of this Agreement nor the consummation of the
transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or
constitute a default (with notice or passage of time or both) under
any provision of any law, governmental rule, regulation, judgment,
decree or order binding on the Seller or the charter, bylaws, or
trust documents of the Seller or any provision of any mortgage,
indenture, contract, agreement or other instrument to which the
Seller is a party or by which it or the Repurchased Shares are
bound;
(f)
Review of
Agreement . The Seller has
carefully read each provision of this Agreement and, to the extent
it desired, has discussed this Agreement with its legal counsel and
financial advisors;
(g)
Review of
Information . The Seller has
received and carefully reviewed the information provided by the
Company in connection with its current business operations and
plans, including the confidential information provided pursuant to
the Confidentiality Agreement between the Seller and the Company
dated October 13, 2005 through both telephone discussions with
the Company’s senior management and in the confidential
Information Memorandum, dated October 18, 2005, from John
Tuhey of the Company (collectively, the
“Information”). The Seller also acknowledges that
it has been made aware that the Company also files annual,
quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission (the
“Commission”), and that the Seller has been informed
that these filings are available on the Internet at the
Commission’s website at www.sec.gov and at the
Company’s website at www.clickcommerce.com. The Seller
has, to the extent it desired, had an opportunity to review such
filings, has had an opportunity to discuss such filings with the
Company and its legal counsel and financial advisors and has
conducted such investigation of the Company as it has deemed
appropriate and has had the questions it has asked of the Company
answered to its satisfaction;
(h)
Sophistication
. The
Seller (i) is a sophisticated person with respect to the
transactions contemplated by this Agreement and the Asset Purchase
Agreement; (ii) has made an informed decision regarding its
entry into this Agreement and (iii) has independently and
without reliance upon the Company or any other party related to the
Company, and based on such
2
information as the Seller
has deemed appropriate, made its own analysis and decision to enter
into this Agreement;
(i)
Consultation
with Counsel . The Seller
(i) fully understands its rights to discuss all aspects of
this Agreement with its attorneys, (ii) has availed itself of
this right to the extent it desired, (iii) has carefully read
and fully understands all of the terms of this Agreement,
(iv) has not transferred or assigned any rights or claims that
it is hereby purporting to release herein, (v) is voluntarily,
and with proper and full authority, entering into this Agreement,
and (vi) has considered all of its rights and claims carefully
before executing this Agreement;
(j)
Brokers
. The
Seller has not incurred, nor will it incur, directly or indirectly,
any liability for broke
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