Exhibit 10.18
SHARE REPURCHASE
AGREEMENT
THIS SHARE REPURCHASE AGREEMENT
(this “ Agreement ”) is made as of the 18th day
of October, 2005, by and between Chris Heidelberger (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 19,250 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 $298,375.00 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
1
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)
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;
(c)
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 he or the Repurchased Shares are bound;
(d)
Review of Agreement . The Seller has carefully read
each provision of this Agreement and the Asset Purchase Agreement
and, to the extent he desired, has discussed this Agreement and the
Asset Purchase Agreement with his legal counsel and financial
advisors. Having read this Agreement, the Seller does hereby
consent to this Agreement for all purposes under applicable
law;
(e)
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
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 he desired, had an opportunity to review such
filings, has had an opportunity to discuss such filings and the
Company common stock with the Company and his legal counsel and
financial advisors and has conducted such investigation of the
Company as he has deemed appropriate and has had the questions he
has asked of the Company answered to his satisfaction;
(f)
Economic Risk . The Seller has been able to and,
notwithstanding the effect of the transactions contemplated by this
Agreement, can continue to bear the economic risk of his investment
in shares of the Company’s common stock and has such
knowledge and
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experience in financial or business matters that
he is capable of evaluating the merits and risks of such
investment;
(g)
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 his 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 information as the Seller has deemed appropriate, made his own
analysis and decision to enter into this Agreement;
(h)
Consultation with Counsel . The Seller (i) fully
understands his rights to discuss all aspects of this Agreement
with his private attorneys, (ii) has availed itself of this
right to the extent he 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 he 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 his rights and claims carefully
before executing this Agreement;
(i)
Questionnaire . The Seller has fully and completely
set forth the relevant information required in the
