Exhibit 10.1
AMENDMENT NO. 1 TO
LIMITED WAIVER AND CONSENT AGREEMENT
THIS AMENDMENT NO. 1 TO LIMITED WAIVER AND CONSENT AGREEMENT, dated as of
May 4, 2001 ("Amendment"), amends the Limited Waiver and Consent Agreement dated
as of January 25, 2000 (the "Waiver and Consent"), and is entered into among
Xxxxxxx X. Xxxxx, Xx. (the "Seller"), Click Commerce, Inc., a Delaware
corporation formerly known as Click Interactive, Inc. (the "Company"), and
Compaq Computer Corporation, a Delaware corporation ("Compaq" and together with
the Company, the "Consenting Parties").
WITNESSETH
WHEREAS, the Seller and Consenting Parties entered into the Waiver and
Consent, which called for Compaq, along with certain other stockholders of the
Company, to enter into, among other provisions, the market stand-off provisions
set forth in Article IV to the Waiver and Consent;
WHEREAS, the Seller and Consenting Parties desire to amend Section 4.4 of
the Waiver and Consent as provided herein; and
WHEREAS, in consideration of Compaq's payments to the Company pursuant to
the terms of a Software License Purchase Agreement, of even date herewith, the
Company desires to grant a limited waiver of the market stand-off provisions set
forth in Section 4.4 of the Waiver and Consent in order for Compaq or its
affiliates (hereinafter also referred to as "Compaq") to commence an orderly
liquidation of a portion of the shares of the Company's common stock, par value
$0.001 per share ("Common Stock") that Compaq holds of record on the date
hereof; and
WHEREAS, in light of the consideration recited above, the Board of
Directors of the Company has authorized this limited waiver of the market
stand-off provisions for bona fide business reasons;
NOW, THEREFORE, in consideration of the premises and the other provisions
herein, the Seller and Consenting Parties hereto hereby agree as follows:
1.1 Limited Waiver. Notwithstanding the restrictions contained in
Section 4.4 of the Waiver and Consent, in consideration of the Compaq's payments
to the Company pursuant to the Software License Purchase Agreement, the Company
hereby agrees to waive the restrictions contained in Section 4.4 of the Waiver
and Consent with respect to the sale pursuant to Rule 144 ("Rule 144"), under
the Securities Act of 1933, as amended (the "Act") of an aggregate of 685,000
shares of Common Stock (the "Released Shares").
2.1 Sale of Released Shares. Effective on the date first above written,
for any of the Released Shares sold by Compaq pursuant to Rule 144, provided
that sales of the Released Shares satisfy all of the applicable requirements of
Rule 144, the Company shall consent to the sale of the Released Shares and shall
cooperate with the Company's transfer agent and selling brokers in order to
effectuate such sales pursuant to Rule 144. In connection with the sale of the
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Released Shares pursuant to Rule 144, Compaq shall, from time to time, provide
the Company with customary representations and warranties typically provided by
sellers effecting sales under Rule 144, which representations and warranties are
reasonable satisfactory to legal counsel for the Company, and the Company shall
not require a separate written opinion of legal counsel of Compaq with respect
to such sales.
3.1 Headings; Counterparts. The various headings of this Amendment
are inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or any provisions hereof. This Amendment may be
signed in any number of separate counterparts, each of which shall be an
original, and all of which taken together shall constitute one instrument.
3.2 Entire Agreement. This Amendment, together with the Waiver and
Consent and the Software License Purchase Agreement, constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersedes any prior agreements, written or oral, with respect thereto.
Except as amended by this Amendment, the Waiver and Consent shall remain in full
force and effect. This Amendment and the provisions contained herein may be
modified only by an instrument in writing executed by the Seller and the
Consenting Parties.
3.3 Definitions. Capitalized terms used herein but not otherwise
defined shall have the meaning ascribed to them in the Waiver and Consent.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first above written.
[SIGNATURE PAGES FOLLOW]
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SELLER:
/s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------
Xxxxxxx X. Xxxxx, Xx., individually
CONSENTING PARTIES:
CLICK COMMERCE, INC.,
a Delaware Corporation
By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------------------------
Xxxxxxx X. Xxxxx, Xx., Chairman and Chief
Executive Officer
COMPAQ COMPUTER CORPORATION, a Delaware
corporation
By: /s/ Xxx Xxxxxx
-----------------------------------------
Name: Xxx Xxxxxx
Title: Vice President Professional Services
Finance and Operation
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