Exhibit 10.1


 


SHARE REPURCHASE AGREEMENT


 


THIS SHARE
REPURCHASE AGREEMENT (this “Agreement”) is made as of the 25th day of
May, 2006 (“Effective Date”), by and between Elance, 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 8, 2006, by and among Elance, Inc., a Delaware
corporation, Click Procure, Inc., 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 420,123 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 $19.00 per share of the Company’s common stock or $7,982,337.00
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: (1) an account designated by the
Seller prior to the Repurchase an amount equal to $6,946,324.00; and (2) the
Escrow Fund an amount equal to $1,036,013.00.


 


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 May
19, 2006 through both telephone discussions with the Company’s senior
management and in the confidential Information Memorandum, dated May 19, 2006,
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


 


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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
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 brokerage or finders’ fees or agents’ commissions or investment
bankers’ fees or any similar charges in connection with this Agreement or any
transaction contemplated hereby.


 


4.             Company
Representations and Warranties. The Company hereby represents and warrants
to the Seller as follows:


 


(a)           Organization
and Good Standing. The Company is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware;


 


(b)           Power
and Authority. The Company 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;


 


(c)           Due
Execution. This Agreement has been duly executed and delivered by the
Company, and is a legal, valid and binding instrument enforceable against the
Company 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;
and


 


(d)           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
Company or the charter or bylaws of the Company or any provision of any
mortgage, indenture, contract, agreement or other instrument to which the
Company is a party or by which it is bound.


 


(e)           Absence of Known
Indemnity Claims. Other than with respect to potential claims under the side letter “Outstanding
Claims between the parties” dated May 25, 2006 between Seller and Purchaser and
potential claims under Section 5.2(a)(iv) and (v) of the Asset Purchase
Agreement, neither John Tuhey of the Company nor Mark A. Harris of McDermott
Will & Emery LLP, are aware, to their actual knowledge, of any current intention of the
Parent Indemnitees (as defined in the Asset Purchase Agreement) to assert under
Section 5.3 of the Asset
Purchase Agreement any material indemnity Claims (as defined in the Asset Purchase
Agreement) with respect to Losses (as defined in the Asset
Purchase Agreement) that may be indemnifiable by Seller under Section 5.2(a) of
the Asset Purchase Agreement, other than in connection with certain license
matters;


 


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provided,
however, that nothing in this paragraph shall prevent or preclude the Parent
Indemnitees from asserting any such Claim in the future.


 


5.             Additional
Agreements.


 


(a)           The
Seller hereby acknowledges, agrees and confirms that:


 


(i)            Waiver.
The Seller hereby waives any right or claim that the undersigned may have or
could assert under the Asset Purchase Agreement (including Section 4.14
thereof) related to the issuance, registration or resale of any and all Company
common stock owned by the undersigned, including without limitation, the
Repurchased Shares;


 


(ii)           Arm’s
Length Negotiations. This Agreement and the terms and conditions hereof are
the result of arm’s length negotiations with the Company and the per share
price reflected in the Total Consideration may be more, less or equal to the
prevailing market price of the Company common stock at the time of the
Repurchase. The Seller acknowledges that the Company has made no
representations or warranties with respect to this Agreement or the
transactions contemplated hereby except as expressly set forth in Section 4
of this Agreement;


 


(iii)          Information.
The Seller hereby acknowledges that it has been afforded (i) the
opportunity to ask such questions as the Seller has deemed necessary of, and to
receive answers from, representatives of the Company concerning the terms and
conditions of this Agreement and the Information and (ii) access to
information about the Company and its financial condition, results of
operations, business, properties, management and prospects sufficient to enable
it to evaluate the transactions contemplated by this Agreement. The Seller
acknowledges that it has received and reviewed a copy of the Asset Purchase
Agreement and has received and reviewed such other information and documents
(including the Information and the Information Statement) as it has deemed
necessary; and


 


(iv)          Release.
By the execution and delivery of this Agreement and acceptance of the amounts
payable in respect of the Repurchased Shares under this Agreement, the Seller
(the “Releasor”), on behalf of itself and its heirs, legal representatives,
successors and assigns, hereby releases, acquits and forever discharges, to the
fullest extent permitted by law, the Company, any subsidiary or parent company
of the Company and any successor to the Company (now or hereafter existing) and
each of their respective past, present or future officers, managers, directors,
shareholders, partners, members, Affiliates, employees, counsel and agents
(each a “Releasee”) of, from and against any and all actions, causes of action,
claims, demands, damages, judgments, debts, dues and suits of every kind,
nature and description whatsoever, including with respect to the Repurchased
Shares which such Releasor or its heirs, legal representatives, successors or
assigns ever had, now has or may now have against any Releasee on or by reason
of any matter, cause or thing whatsoever, which in each case has arisen, or
arises out of, or relates to, any circumstance, agreement, activity, action,
omission, event or matter occurring or existing on or prior to the Effective
Date (collectively “Released Claims”); provided however that for the avoidance
of doubt the Released Claims shall not include (i) any claims arising with
respect to enforcement of rights created by this Agreement; (ii) subject to the
proviso below, any claims to enforce rights arising under the terms of the
Asset Purchase Agreement (including without limitation any claims to enforce
Seller’s rights under Sections 4.10, 4.11, 4.12, 4.14 and 4.15 of the Asset
Purchase Agreement) or under the Assumption Agreement, the Assignment and Bill
of Sale, the Trademark Assignment, the Trademark License or the Escrow
Agreement (including the Releasor’s right to receive that portion


 


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of any amounts that may hereafter become payable out of the escrow
established thereunder) (but, provided, however, in each case this clause (ii)
shall not apply to any claims, right, cause of action or other liability
related to the issuance, registration or repurchase of the Repurchased Shares
(including any delays in implementing the registration thereof under Section
4.8 of the Asset Purchase Agreement or any disclosures, or lack thereof, by the
Company or its officers or agents prior to the date of the Asset Purchase
Agreement); or (iii) any claims for misappropriation or infringement of any
patent or other intellectual property rights of Seller or its assignees or
acquirors or the parent thereof; provided, however, that the Releasor
acknowledges and agrees that, as of the Effective Date, it has no Knowledge of
any such claim except those potential claims set forth in the side letter “Outstanding
Claims between the parties” dated May 25, 2005 between Seller and Company. The
Releasor agrees not to, and agrees to cause its respective Affiliates and
subsidiaries not to, assert any Released Claims, directly or indirectly,
against the Releasees.


 


6.             Applicable
Law. This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Illinois without giving
effect to the principles of conflicts of law thereof.


 


7.             Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.


 


8.             Successors
and Assigns. This Agreement shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors, assigns, and
affiliates, but shall not be assignable by either party hereto without the
prior written consent of the other party hereto.


 


9.             Waiver.
No party may waive any of the terms or conditions of this Agreement except by
an instrument in writing duly signed by each of the parties.


 


10.           Stock
Transfer Taxes. Any stock transfer taxes with respect to the surrender of
the Repurchased Shares will be paid by the Seller and the amount to be so paid
by the Seller will be deducted from any funds distributable by the Company to
the Seller under this Agreement. If, however, payment for the Repurchased
Shares is to be made to any person other than the Seller, the amount of any
stock transfer taxes (whether imposed on the Seller or such other person)
payable on account of the transfer to such person will be deducted from the
payment if satisfactory evidence of the payment of such taxes, or exemption
therefrom, is not submitted.


 


11.           Backup
Federal Income Tax Withholding and Substitute Form W-9. Under the “backup
withholding” provisions of U.S. Federal tax law, the Company may be required to
withhold a portion of the consideration for the Repurchased Shares. To prevent
backup withholding, the Seller should complete and sign the Substitute
Form W-9 below, and either: 
(a) provide the Seller’s correct taxpayer identification number (“TIN”)
and certify, under penalties of perjury, that the TIN provided is correct (or
that such holder is awaiting a TIN), and that (i) the Seller has not been
notified by the Internal Revenue Service (“IRS”) that the Seller is subject to
backup withholding as a result of failure to report all interest or dividends,
or (ii) the IRS has notified the Seller that the Seller is no longer
subject to backup withholding; or (b) provide an adequate basis for
exemption. If “Applied For” is written in Part I of the substitute
Form W-9, the Company will retain the required portion of any payment
during the sixty (60) day period following the date of the Substitute
Form W-9. If the Seller furnishes the Representative with his or her TIN
within sixty (60) days of the date of the Substitute W-9, the Company will
remit such amount retained during the sixty (60) day period to the Seller, and
no further amounts will be retained or withheld from any payment made to the
Seller


 


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thereafter. If, however, the Seller has not
provided the Company with its TIN within such sixty (60) day period, the
Company will remit such previously retained amounts to the IRS as backup
withholding and will withhold the required portion of any payment in respect of
the Repurchased Shares made to the Seller thereafter until the Seller furnishes
a TIN to the Company. In general, an individual’s TIN is the individual’s
Social Security Number. If the Company is not provided with the correct TIN or
an adequate basis for exemption, the Seller may be subject to a $50 penalty
imposed by the IRS and backup withholding.


 


Failure to complete the Substitute Form W-9 will not, by itself,
cause the Repurchased Shares to be deemed invalidly delivered, but may require
the Company to withhold 28% of the amount of any payments in respect of such
Repurchased Shares made pursuant to this Agreement. Backup withholding is not
an additional federal income tax. Rather, the federal income tax liability of a
person subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the IRS.


 


12.           Federal
and State Income Tax Withholding. After written notice to the Seller, the
Company may withhold federal and state income tax required to be withheld under
applicable law from the amounts payable under this Agreement.


 


13.           Entire
Agreement; Amendment. This Agreement constitutes the entire agreement, and
supersedes all other prior agreements and understandings, both written and
oral, among the parties hereto and their affiliates with respect to the matters
set forth in this Agreement. This Agreement may not be amended except by an
instrument in writing signed by the Company and the Seller to which the
amendment relates.


 


14.           Confidentiality/Public
Announcements. The Seller shall make no public announcements or otherwise
communicate with any news media or any other person (other than the other
party), with respect to this Agreement or any of the transactions contemplated
hereby, without prior written consent of the Company. The Company shall make
such public announcements or filings with the Commission as it believes are
required by applicable law, the Commission or the Nasdaq National Market or
deemed by it to be necessary or appropriate under the circumstances. Nothing
contained herein shall prevent (a) the Company from promptly making all
filings with governmental authorities or disclosures with the Nasdaq National
Market, as may, in its judgment, be required in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby or (b) either party from disclosing the terms of this
Agreement to such party’s legal counsel, financial advisors or accountants in
furtherance of the transactions contemplated by this Agreement; provided,
however, that each such person shall be obligated to maintain the
confidentiality of this Agreement in accordance herewith.


 


15.           Expenses.
Whether or not the transactions contemplated hereby are consummated, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby and thereby shall be paid by the party incurring such
expenses.


 


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IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed and
delivered as of the date first above written.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  Elance,
  Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Fabio Rosati

  
	
   

  	
  Name:      Fabio
  Rosati

  
	
   

  	
  Title:  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  CLICK
  COMMERCE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John M. Tuhey

  
	
   

  	
  Name:  John
  M. Tuhey

  
	
   

  	
  Title:  General
  Counsel

  
				



 

















 


	
  SUBSTITUTE

   

  Form W-9

   

  Department
  of the

  Treasury

  Internal Revenue Service

   

  Request
  for Taxpayer

  Identification Number (TIN)

  and Certification

  	
   

  	
  Name:

  Address:

  	
   

  	
  Individual
  o

  Partnership
  o

  Corporation
  o

  Other
  (specify) o

  Exempt
  from backup withholding o

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PART I.
  TAXPAYER IDENTIFICATION NUMBER (TIN)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Please
  provide your Taxpayer Identification Number in the space at right and certify
  by signing and dating below. If awaiting TIN, write “Applied For.”

  	
   

  	
  SSN:                                      

  or

  EIN:                                      

  
	
   

  	
   

  	
   

  
	
  PART II.
  CERTIFICATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Under
  penalties of perjury, I certify that:

  
	
  (1)           The number shown on this form is my correct
  Taxpayer Identification Number (or I am waiting for a number to be issued to
  me); and

  
	
  (2)           I am not subject to backup withholding
  either because: (a) I am exempt from backup withholding, or (b) I
  have not been notified by the IRS that I am subject to backup withholding as
  a result of a failure to report all interest or dividends, or (c) the
  IRS has notified me that I am no longer subject to backup withholding;

  
	
  (3)           I am a U.S. person (including a U.S.
  resident alien); and

  
	
  (4)           any other information provided on this form
  is true, correct and complete.

  
	
   

  
	
  CERTIFICATION
  INSTRUCTIONS—You
  must cross out item (2) above if you have been notified by the IRS that you
  are currently subject to backup withholding because of underreporting
  interest or dividends on your tax return.

  
	
   

  
	
  The
  IRS does not require your consent to any provision of this document other
  than the certifications required to avoid backup withholding.

  
	
   

  
	
  Signature

  	
   

  	
   

  
	
   

  
	
  Date:                                 ,
  2005

  
							



 


NOTE:                                                          FAILURE
TO COMPLETE AND RETURN THIS FORM MAY RESULT IN IRS PENALTIES AND BACKUP
WITHHOLDING OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE MERGER. YOU MUST
COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING (OR WILL SOON APPLY FOR)
A TAXPAYER IDENTIFICATION NUMBER.


 


CERTIFICATE OF AWAITING TAXPAYER
IDENTIFICATION NUMBER


 


I certify under penalties of
perjury that a taxpayer identification number has not been issued to me, and
either (1) I have mailed or delivered an application to receive a taxpayer
identification number to the appropriate Internal Revenue Service Center or
Social Security Administration Office, or (2) I intend to mail or deliver
an application in the near future. I understand that if I do not provide a
taxpayer identification number by the time of payment, 28% of all reportable
payments made to me will be withheld until I provide a taxpayer identification
number to the Representative.


 


	
   

  	
   

  	
   

  
	
  Signature

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  (Please Print)

  	
   

  	
  Date:

  	
   

  	
  ,
  2005

  



 


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