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