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


 


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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.


 


5.                                       Additional
Agreements.  The Seller hereby
acknowledges, agrees and confirms that:


 


(a)                                  Waiver.  The Seller hereby waives any right that the
undersigned may have 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;


 


(b)                                 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


 


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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;


 


(c)                                  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


 


(d)                                 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 (collectively “Claims”),
which such Releasor or its heirs, legal representatives, successors or assigns
ever had, now has or may have against any Releasee on or by reason of any
matter, cause or thing whatsoever.  The
Releasor agrees not to, and agrees to cause its respective Affiliates and
subsidiaries not to, assert any Claim, directly or indirectly, against the
Releasees.  Notwithstanding the
foregoing, each Releasor and its respective heirs, legal representatives,
successors and assigns retain, and do not release, their rights and interests
under the terms of this Agreement or under the terms of the Asset Purchase
Agreement solely to the extent of the Releasor’s right to receive that portion
of any amounts that may hereafter become payable out of the escrow established
thereunder (other than with respect to any Claims related to the issuance,
registration or repurchase of the Repurchased Shares).


 


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


 


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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
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


 


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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:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commerce 5, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Rob Hagen

  	
   

  
	
   

  	
   

  	
  Name: Rob Hagen

  
	
   

  	
   

  	
  Title: CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CLICK COMMERCE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ John M. Tuhey

  	
   

  
	
   

  	
   

  	
  Name: John M. Tuhey

  
	
   

  	
   

  	
  Title: General Counsel