EXHIBIT 10.24
CERTAIN INFORMATION FROM THIS DOCUMENT HAS BEEN REDACTED PURSUANT TO A
CONFIDENTIAL TREATMENT REQUEST BY CLICKSOFTWARE TECHNOLOGIES LTD. UNDER 17
C.F.R.SS.SS.200.80(B)(4), 200.83 AND 240.24B-2 AND SUBMITTED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of the 30th day of June, 2004 (the "Effective Date"), by and among
ClickSoftware Technologies Ltd. (the "Company") and IBM United Kingdom Ltd.
("IBM"). The Company and IBM are referred to collectively herein as "Parties"
and each separately as a "Party".
WHEREAS, concurrent with the execution of this Agreement, the Parties
have entered into a teaming agreement (the "Teaming Agreement") pursuant to
which IBM and the Company have established a teaming relationship for the
marketing of jointly delivered solutions to their respective customers and for
IBM's and the Company's joint operation of a Project Office (as such term is
defined in the Teaming Agreement); and
WHEREAS, as consideration for IBM's agreement to enter into the Project
Office's activities, the Company shall issue to IBM an aggregate of 200,000
Ordinary Shares in the Company, in addition to a cash payment of $***1 (to be
paid in British Pounds based on the U.S. Dollar representative rate of exchange
published by the Federal Reserve Bank of New York on the date of the invoice
issued by IBM to the Company) to be paid by the Company to IBM as set forth in
the Teaming Agreement;
NOW THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, and intending to be legally bound hereby, the
Parties agree as follows:
1. ISSUANCE AND PURCHASE OF SHARES. Subject to and in accordance with the
terms and conditions hereof, the Company shall issue and allot to IBM, and IBM
shall purchase from the Company:
1.1 Upon the First Closing (as defined herein) - (i) 100,000 (one
hundred thousand) Ordinary Shares (the "First Tranche of Shares") at a price per
share of NIS 0.02 (2/100 New Israel Sheqels) per share for an aggregate
additional purchase price of NIS 2,000 (or the U.S. dollar equivalent) (the
"Initial Consideration") and in consideration for IBM's agreement to enter into
the Project Office's activities; and
--------------------------
1 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
-1-
1.2 At the Subsequent Closing (as defined herein below) - an
additional 100,000 (one hundred thousand) Ordinary Shares (the "Second Tranche
of Shares") at a price per share of NIS 0.02 (2/100 New Israel Sheqels) per
share for an aggregate additional purchase price of NIS 2,000 (or the U.S.
dollar equivalent) (the "Subsequent Consideration"); provided, however, that (i)
the Teaming Agreement has not been duly terminated by either of the Parties and
(ii) no Change of Control (as defined below) has been consummated. For the
purposes of this Agreement, the First Tranche of Shares and the Second Tranche
of Shares shall collectively be referred to as the "Shares."
2. CLOSINGS OF ISSUANCE AND PURCHASE.
2.1 FIRST CLOSING. Provided that all the conditions set forth in
Section 2.2 below have been satisfied or waived, the issue and allotment of the
First Tranche of Shares and the delivery of the share certificates evidencing
IBM's ownership of the First Tranche of Shares, all duly and validly approved,
shall take place at a first closing (the "First Closing") to be held at such
date, time and place as the Company and IBM shall mutually agree but no later
than July 1, 2004.
2.2 TRANSACTIONS AT FIRST CLOSING. At the First Closing, the
following transactions shall occur, which transactions shall be deemed to take
place simultaneously and no transactions shall be deemed to have been completed
or any document delivered until all such transactions have been completed and
all required documents delivered:
2.2.1 The Company shall deliver to IBM the following documents:
(a) True and correct copies of resolutions of the Company's
Board of Directors in the form attached hereto as SCHEDULE 2.2.1(A) (i)
approving the terms of the transactions contemplated hereby; (ii) issuing and
allotting the First Tranche of Shares to IBM as contemplated hereunder; and (ii)
reserving a sufficient number of Ordinary Shares to enable issuance of the
Second Tranche of Shares. Such resolutions shall be so delivered together with a
duly completed notice to the Israeli Registrar of Companies of the issuance of
the First Tranche of Shares and a check in full payment of the stamp duty on the
issuance of such shares, all of the foregoing in form and substance acceptable
for immediate filing with the Israeli Registrar of Companies.
(b) A validly executed share certificate covering the First
Tranche of Shares, issued in IBM's name, in the form attached hereto as SCHEDULE
2.2.1(B).
(c) An opinion of Gross Kleinhendler Xxxxx Halevy Xxxxxxxxx
& Co., counsel to the Company, dated as of the date of the First Closing, in the
form attached hereto as SCHEDULE 2.2.1(C) (the "Opinion").
(d) The written consent of the (i) Investment Center of the
Israel Ministry of Industry and Trade and the (ii) Office of the Chief Scientist
of the Israel Ministry of Industry and Trade to the execution of this Agreement
and the issuance of the Shares to the Buyer.
2.2.2 The Company shall register the allotment of the First Tranche of
Shares to IBM in the share transfer register of the Company, and shall provide
IBM with a confirmation of such entry.
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2.2.3 IBM shall cause the transfer to the Company of the Initial
Consideration by wire transfer, banker's check, or such other form of payment as
is mutually agreed by the Company and IBM. Such payment shall be made in NIS or
in the U.S. dollar or the British pound equivalent thereof in accordance with
the representative rate of exchange of the U.S. dollar or the British Pound, as
the case may be, last published by the Bank of Israel prior to the date of
payment, at IBM's sole discretion.
2.3 SUBSEQUENT CLOSING. Provided that (i) all the conditions set
forth in Section 2.4 below have been satisfied or waived and (ii) that no Change
of Control (as defined below) has been consummated, the issue and allotment of
the Second Tranche of Shares; the purchase thereof by IBM; the registration of
the Second Tranche of Shares in IBM's name in the share transfer register of the
Company, and the delivery of share certificates evidencing IBM's ownership of
the Second Tranche of Shares, all duly and validly approved, shall take place at
a subsequent closing (the "Subsequent Closing") to be held on the one year
anniversary of the First Closing, time and place as provided pursuant to Section
2.1 above, or as the Company and IBM shall mutually agree but no later than July
1, 2005. For purposes hereof, each of the First Closing and the Subsequent
Closing shall be deemed to be "Closings."
2.4 TRANSACTIONS AT SUBSEQUENT XXXXXXX.Xx the Subsequent Closing,
the following transactions shall occur, which transactions shall be deemed to
take place simultaneously and no transactions shall be deemed to have been
completed or any document delivered until all such transactions have been
completed and all required documents delivered:
2.4.1 The Company shall deliver to IBM the following documents:
(a) True and correct copies of resolutions of the Company's
Board of Directors issuing and allotting the Second Tranche of Shares to
IBM, in the form attached hereto as SCHEDULE 2.4.1(A), together with a
duly completed notice to the Israeli Registrar of Companies of the
issuance of the Second Tranche of Shares and a check in full payment of
the stamp duty on the issuance of such shares, all of the foregoing in
form and substance acceptable for immediate filing with the Israeli
Registrar of Companies.
(b) A validly executed share certificate covering the Second
Tranche of Shares, issued in IBM's name, substantially in the form
attached hereto as SCHEDULE 2.2.1 (B).
2.4.2 The Company shall register the allotment of the Second Tranche
of Shares to IBM in the share transfer register of the Company, and shall
provide IBM with a confirmation of such entry.
2.4.3 IBM shall cause the transfer to the Company of the Subsequent
Consideration by wire transfer, banker's check, or such other form of payment as
is mutually agreed by the Company and IBM. Such payment shall be made in NIS or
in the U.S. dollar equivalent thereof in accordance with the representative rate
of exchange of the U.S. dollar last published by the Bank of Israel prior to the
date of payment, at IBM's sole discretion.
-3-
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to IBM, and acknowledges that IBM is entering
into this Agreement in reliance thereon, as follows:
3.1 ORGANIZATION. The Company is duly organized and validly existing
under the laws of the State of Israel, and has full corporate power and
authority to own, lease and operate its properties and assets and to conduct its
business as now being conducted and as proposed to be conducted. The Company has
all requisite power and authority to execute and deliver this Agreement and
other agreements contemplated hereby or which are ancillary hereto and to
consummate the transactions contemplated hereby and thereby. The Company has all
franchises, permits, licenses, and any similar authority necessary for the
conduct of its business as now being conducted and as proposed to be conducted
by it, the lack of which could materially and adversely affect the business,
properties, prospects, or condition (financial or otherwise) of the Company
("Material Adverse Effect"), and the Company believes that it can obtain,
without undue burden or expense, any similar authority for the conduct of its
business as planned to be conducted. Neither the nature of the Company's
business as now conducted or as proposed to be conducted nor its ownership or
leasing of property require that the Company be qualified to do business or in
good standing in any jurisdiction other than the State of Israel, except where
such failure to be qualified or in good standing would not cause a Material
Adverse Effect. The Company is not in default under any of such franchises,
permits, licenses, or other similar authority.
3.2 SHARE CAPITAL. The registered share capital of the Company as of
the Closing shall be New Israeli Shekels two million one hundred thousand (NIS
2,100,000) divided into ninety seven million 97,000,000) Ordinary Shares of a
nominal value of two Agorot (NIS 0.02) each, of which twenty seven million two
hundred forty four thousand three hundred seventy one (27,244,371) ordinary
shares are issued and outstanding and thirty-nine thousand (39,000) are reserved
as treasury shares; three million (3,000,000) Non-Voting Ordinary Shares of a
nominal value of two Agorot (NIS 0.02) each, none of which are issued and
outstanding; and five million (5,000,000) Preferred Shares of a nominal value of
two Agorot (NIS 0.02) each, none of which are issued and outstanding. All issued
and outstanding share capital of the Company has been duly authorized, and is
validly issued and outstanding and fully paid and nonassessable. The Shares,
when issued and allotted in accordance with this Agreement, will be duly
authorized, validly issued, fully paid, nonassessable, and free of any
preemptive rights, and will be free and clear of any liens, claims, encumbrances
or third party rights of any kind and duly registered respectively in the name
of IBM in the Company's share transfer register.
3.3 AUTHORIZATION; APPROVALS. All corporate action on the part of
the Company necessary for the authorization, execution, delivery, and
performance of all the of Company's obligations under this Agreement and for the
authorization, issuance, and sale of the Shares has been (or will be) taken
prior to the Closing. This Agreement, when executed and delivered by or on
behalf of the Company, shall constitute the valid and legally binding
obligations of the Company, legally enforceable against the Company in
accordance with its terms. No consent, approval, order, license, permit, action
by, or authorization of or designation, declaration, or
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filing with any governmental authority on the part of the Company is required
that has not been, or will not have been, obtained by the Company prior to the
Closing in connection with the valid execution, delivery and performance of this
Agreement or the offer, sale, or issuance of the Shares, except for the filing
of a Form D under United States federal and New York state securities laws.
3.4 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in default
under its Memorandum of Association, Articles of Association or other formative
documents, or under any note, indenture, mortgage, lease, agreement, contract,
purchase order or other instrument, document or agreement to which the Company
is a party or by which it or any of its property is bound or affected. The
Company is not a party to or bound by any order, judgment, decree or award of
any governmental authority, agency, court, tribunal or arbitrator.
3.5 NO BREACH. Neither the execution and delivery of this Agreement
nor compliance by the Company with the terms and provisions hereof, will
conflict with, or result in a breach or violation of, any of the terms,
conditions and provisions of: (i) the Company's Memorandum of Association,
Articles of Association or other governing instruments of the Company, (ii) any
judgment, order, injunction, decree, or ruling of any court or governmental
authority, domestic or foreign, (iii) any agreement, contract, lease, license or
commitment to which the Company is a party or to which it is subject, or (iv)
applicable law. Such execution, delivery and compliance will not (a) give to
others any rights, including rights of termination, cancellation or
acceleration, in or with respect to any agreement, contract or commitment
referred to in this paragraph, or to any of the properties of the Company or (b)
otherwise require the consent or approval of any person, which consent or
approval has not heretofore been obtained.
3.6 BROKERS. No agent, broker, investment banker, person or firm
acting in a similar capacity on behalf of or under the authority of IBM is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee, directly or indirectly, on account of any action taken by IBM in
connection with any of the transactions contemplated under this Agreement.
3.7 EFFECTIVENESS; SURVIVAL; INDEMNIFICATION. Each representation
and warranty herein is deemed to be made on the date of this Agreement, at the
Closing and the Subsequent Closing, and shall survive and remain in full force
and effect after the Subsequent Closing. Notwithstanding the foregoing, no claim
or claims shall be brought against the Company in the event of any material
breach or misrepresentation of any covenant, warranty or representation made by
the Company under this Agreement unless the aggregate amount of such claims
exceeds $50,000 (fifty thousand U.S. dollars).
4. REPRESENTATIONS AND WARRANTIES OF IBM. IBM hereby represents and
warrants to the Company as follows:
4.1 ENFORCEABILITY. This Agreement and the agreements to be executed
by IBM under this Agreement, when executed and delivered by IBM, will constitute
the valid, binding and enforceable obligations of IBM.
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4.2 AUTHORIZATION. The execution, delivery and performance of the
obligations of IBM hereunder have been duly authorized by all necessary
corporate action.
4.3 EXPERIENCE. IBM is an accredited investor as defined under
Regulation D as promulgated by the United States Securities and Exchange
Commission and that IBM's acquisition of the Shares is for investment and not
with a view to or for offer or sale in connection with, any distribution (within
the meaning of the Securities Act of 1933 (the "Securities Act") or the Israeli
Securities Law-1968 or any other applicable securities law) thereof or any part
thereof, that would be in violation of the securities laws of the United States
of America, the State of Israel, or any state thereof, or any other State
without prejudice, however, to its right at all times to sell or otherwise
dispose of all or any part of the Shares pursuant to a registration statement
under the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act.
4.4 RESTRICTED SECURITIES. IBM acknowledges that the Company has
indicated that the Shares have not been registered under the Securities Act by
reason of their issuance in a transaction exempt from the registration
requirements thereof, and that the Shares will bear a legend stating that such
securities have not been registered under the Securities Act and may not be sold
or transferred in the absence of such registration or an exemption from such
registration.
5. CONDITIONS OF CLOSING OF IBM. The obligations of IBM to purchase
Shares and transfer funds at the Closing are subject to the fulfillment at or
before the Closing of the following conditions precedent, any one or more of
which may be waived in whole or in part by IBM, which waiver shall be at the
sole discretion of IBM:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Company in this Agreement shall have been true and
correct in all material aspects when made, and shall be true and correct in all
material aspects as of the Closing and the Subsequent Closing, as if made on the
date of the Closing and the Subsequent Closing, as the case may be.
5.2 COVENANTS. All covenants, agreements, and conditions contained
in this Agreement to be performed or complied with by the Company prior to the
Closing and the Subsequent Closing shall have been performed or complied with by
the Company, prior to or at the Closing and prior to or at the Subsequent
Closing, as the case may be.
5.3 CONSENTS, ETC. The Company shall have secured all permits,
consents and authorizations that shall be necessary or required lawfully to
consummate this Agreement and to issue the Shares at the Closing and at the
Subsequent Closing.
5.4 DELIVERY OF DOCUMENTS. All of the documents to be delivered by
the Company pursuant to this Agreement shall be in a form and substance
reasonably satisfactory to IBM and its counsel, and shall have been delivered to
IBM.
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5.5 ABSENCE OF ADVERSE CHANGES. From the date hereof until the
Closing, there will have been no material adverse change in the financial or
business condition of the Company.
6. CONDITIONS OF CLOSING OF THE COMPANY. The Company's obligations to sell
and issue the Shares at the Closing are subject to the fulfillment at or before
the Closing of the conditions that (a) all covenants, agreements and conditions
contained in this Agreement to be performed, or complied with, by IBM prior to
the Closing shall have been performed or complied with by IBM prior to or at the
Closing; (b) the representations and warranties made by IBM in this Agreement
shall have been true and correct when made, and shall be true and correct as of
the date of the Closing, which conditions may be waived in whole or in part by
the Company, and which waiver shall be at the sole discretion of the Company;
and (c), with respect to the Subsequent Closing, that the Teaming Agreement has
not previously been duly terminated by either of the Parties.
7. CHANGE OF CONTROL. If (i) a Change of Control (as defined below) occurs
subsequent to the First Closing and prior to the occurrence of the Subsequent
Closing, (ii) the Company Acquiror has assumed the obligations of the Company
under the Teaming Agreement AND (iii) the Teaming Agreement has not been duly
terminated by any Party within one year after the First Closing, the Company
Acquiror shall pay IBM the product of (i) 100,000 and (ii) the Deal Value on the
one year anniversary of the First Closing or on such date as the Company
Acquiror or IBM shall mutually agree (the "Subsequent Cash Consideration").
Provided that the Subsequent Cash Consideration is paid pursuant to the terms of
this section, the Company Acquiror shall not be obligated to issue IBM shares of
the Company or the Company Acquiror pursuant hereto.
For purposes of this Section 7:
(i) "Change of Control" shall mean (i) the sale, lease or other
transfer, in one or a series of related transactions, of all or
substantially all of the Company's assets to any person or group
(as defined in Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended), or (ii) a consolidation or merger of the
Company with or into any other corporation or corporations (or
entity or entities) (unless the Company's shareholders of record
immediately prior to such transaction will, immediately after
such transaction, hold (solely in respect of their equity
interests in the Company before the transaction) at least a
majority of the voting power of the surviving or successor
entity to the business and assets of the Corporation;
(ii) "COMPANY ACQUIROR" shall mean the person or group to whom the
Company's assets are transferred as described in the definition
of Change of Control or (ii) the successor entity as described
in clause (ii) of such definition.
(iii) "Deal Value" shall mean the per share consideration to be paid
to and/or received by shareholders of the Company in connection
with the Change of Control.
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8. MISCELLANEOUS
8.1 FURTHER ASSURANCES. Each of the parties hereto shall perform
such further acts and execute such further documents as may reasonably be
necessary to carry out and give full effect to the provisions of this Agreement
and the intentions of the parties as reflected thereby.
8.2 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by
and construed according to the laws of the State of New York, without regard to
the conflict of laws provisions thereof. Any dispute arising under or in
relation to this Agreement shall be resolved in the competent courts of New
York, and each of the parties hereby submits irrevocably to the jurisdiction of
such court.
8.3 SUCCESSORS AND ASSIGNS; ASSIGNMENT. Except as otherwise
expressly limited herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the transferees, successors, assigns, heirs, executors, and
administrators of the parties hereto. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective transferees, successors and assignees, any rights, remedies,
obligations, or liabilities under or by reason of this Agreement or the schedule
and exhibits hereto, except as expressly provided in this Agreement. Subject to
compliance with transfer restrictions under securities and other applicable law,
the Shares are freely transferable, in whole or in part, to any entity, whether
incorporated or not.
8.4 ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement and the
Schedules hereto, together with the Teaming Agreement, constitute the full and
entire understanding and agreement between the parties with regard to the
subject matters hereof and thereof. Any term of this Agreement may be amended
and the observance of any term hereof may be waived (either prospectively or
retroactively and either generally or in a particular instance) only with the
written consent of all of the parties to this Agreement.
8.5 NOTICES, ETC. All notices and other communications required or
permitted hereunder to be given to a party to this Agreement shall be in writing
and shall be telecopied or mailed by registered or certified mail, postage
prepaid, or otherwise delivered by hand or by messenger, addressed to such
party's address as set forth below or at such other address as the party shall
have furnished to each other party in writing in accordance with this provision:
if to IBM: ***2
with a copy to:
The Company Secretary
IBM United Kingdom Limited
Law Department
IBM Xxxxx Xxxx
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
***3
-----------------------
2 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
-8-
if to the Company:
ClickSoftware Technologies Ltd.
00 Xxxxxxxx Xxxxxx
Xxx Xxxx Xxxxxx
Facsimile: (000-0)-000-0000
ATTN: Chief Financial Officer
with a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000.
Facsimile: (0-000)-000-0000
or such other address with respect to a party as such party shall notify each
other party in writing as above provided. Any notice sent in accordance with
this Section 7.5 shall be effective (i) if mailed, seven (7) business days after
mailing, (ii) if sent by messenger, upon delivery, and (iii) if sent via
telecopier, upon transmission and electronic confirmation of receipt or (if
transmitted and received on a non-business day) on the first business day
following transmission and electronic confirmation of receipt (provided,
however, that any notice of change of address shall only be valid upon receipt).
8.6 REGISTRATION RIGHTS. The Shares shall have the Registration
Rights set forth in APPENDIX C to the warrant issued by the Company to IBM
attached hereto as Schedule 1.1.
8.7 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power, or remedy accruing to any party upon any breach or default under this
Agreement, shall be deemed a waiver of any other breach or default theretofore
or thereafter occurring. Any waiver, permit, consent, or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any of the parties, shall be
cumulative and not alternative.
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3 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
-9-
8.8 SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable under applicable law, then
such provision shall be excluded from this Agreement and the remainder of this
Agreement shall be interpreted as if such provision were so excluded and shall
be enforceable in accordance with its terms; provided, however, that in such
event this Agreement shall be interpreted so as to give effect, to the greatest
extent consistent with and permitted by applicable law, to the meaning and
intention of the excluded provision as determined by such court of competent
jurisdiction.
8.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and enforceable against
the parties actually executing such counterpart, and all of which together shall
constitute one and the same instrument.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF the parties have signed this Agreement as of the date
first hereinabove set forth.
______________________________
CLICKSOFTWARE TECHNOLOGIES LTD.
By: /s/ Xxxxxx Xxxxxx
Title: Chief Financial Officer
______________________________
IBM UNITED KINGDOM LTD.
By: __***4
Title: ***5
-----------------------------
4 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
5 Information redacted pursuant to a confidential treatment request by
ClickSoftware Technologies Ltd. under 17 C.F.R.ss.ss.200.80(b)(4), 200.83 and
240.24b-2 and submitted separately with the Securities and Exchange Commission.
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EXHIBIT 10.24
CERTAIN INFORMATION FROM THIS DOCUMENT HAS BEEN REDACTED PURSUANT TO A
CONFIDENTIAL TREATMENT REQUEST BY CLICKSOFTWARE TECHNOLOGIES LTD. UNDER 17
C.F.R.SS.SS.200.80(B)(4), 200.83 AND 240.24B-2 AND SUBMITTED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE 2.2.1 (A)
Resolutions
The following resolutions are to be adopted by the Board of Directors of the
Company:
1. TEAMING AGREEMENT
RESOLVED, to approve the terms of, and to enter into a Teaming
Agreement, substantially in the form attached hereto as EXHIBIT A (the
"TEAMING AGREEMENT"), and all other documents required in connection
with the Teaming Agreement, and to authorize either Xxxxx Xxx Xxxxxx or
Xxxxxx Xxxxxx, each of them individually, to execute this agreement on
behalf of the Company.
2. SHARE PURCHASE AGREEMENT
2.1 RESOLVED, to approve the terms of, and to enter into a Share
Purchase Agreement, substantially in the form attached hereto as
Exhibit B (the "Purchase Agreement"), and all other documents
required in connection with the Purchase Agreement including,
without limitation, the Warrants substantially in the form
attached hereto as Exhibit C, and to authorize either Xxxxx Xxx
Xxxxxx or Xxxxxx Xxxxxx, each of them individually, to execute
these agreements on behalf of the Company.
2.2 FURTHER RESOLVED, to authorize and direct either Xxxxx Xxx
Xxxxxx or Xxxxxx Xxxxxx, each of them individually, to perform
any and all actions as they shall deem necessary (and to execute
any documents) in connection with the execution, delivery and
performance of the Teaming Agreement and the Purchase Agreement,
including any related documents thereto and the transactions
contemplated thereunder.
3. ISSUANCE OF SHARES
3.1 FURTHER RESOLVED, subject to (i) the fulfillment of the
conditions for the First Closing (as defined in the Purchase
Agreement) and (ii) the payment of an aggregate amount of NIS
2,000 to the Company (the "Payment"), to issue to IBM at the
First Closing, 100,000 Ordinary Shares of the Company par value
NIS 0.02 (2/100 New Israel Sheqels) each.
3.2 FURTHER RESOLVED subject to (i) the fulfillment of the
conditions for the Subsequent Closing (as defined in the
Purchase Agreement) and (ii) the payment of an additional
aggregate amount of NIS 2,000 to the Company (the "PAYMENT"), to
issue to IBM at the Subsequent Closing, an additional 100,000
Ordinary Shares of the Company par value of NIS 0.02 (2/100 New
Israel Sheqels) each.
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4. GRANT OF WARRANT
FURTHER RESOLVED subject to the fulfillment of the conditions for the
First Closing and the Payment, to grant to IBM, at the First Closing, a
Warrant for the purchase of Ordinary Shares of the Company in a maximum
amount of 250,000 Ordinary Shares, all under such terms as set forth in
the form of Warrant attached hereto as Exhibit C (the "WARRANT"), and to
authorize the issue of the underlying Ordinary Shares upon exercise of
the Warrant, in accordance with its terms.
5. RESERVATION OF AUTHORIZED ORDINARY SHARES
FURTHER RESOLVED that immediately following the First Closing, the
Company will reserve sufficient number of authorized but unissued
Ordinary Shares, to enable the issuance of the Second Tranche of Shares
(as defined in the Purchase Agreement) and for the allocation to IBM
under the Warrant.
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EXHIBIT 10.24
CERTAIN INFORMATION FROM THIS DOCUMENT HAS BEEN REDACTED PURSUANT TO A
CONFIDENTIAL TREATMENT REQUEST BY CLICKSOFTWARE TECHNOLOGIES LTD. UNDER 17
C.F.R.SS.SS.200.80(B)(4), 200.83 AND 240.24B-2 AND SUBMITTED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE 2.2.1 (B)
Form of Share Certificate
[PICTURE]
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CERTAIN INFORMATION FROM THIS DOCUMENT HAS BEEN REDACTED PURSUANT TO A
CONFIDENTIAL TREATMENT REQUEST BY CLICKSOFTWARE TECHNOLOGIES LTD. UNDER 17
C.F.R.SS.SS.200.80(B)(4), 200.83 AND 240.24B-2 AND SUBMITTED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
SCHEDULE 2.2.1 (C)
Form of Opinion
IBM UNITED KINGDOM LTD.
Ladies and Gentlemen:
Reference is made to the Share Purchase Agreement, dated __________,
2004, (the "Agreement") entered into by and among ClickSoftware Technologies
Ltd. (the "Company") and IBM United Kingdom Ltd. ("IBM") which, inter alia,
provides for the issuance by the Company to IBM of ordinary shares of the
Company, par value NIS 0.02, (the "Shares"). This opinion is being rendered to
you pursuant to Section 2.2.1(c) of the Agreement, and all terms used herein
which are not otherwise defined herein shall have the meanings ascribed to them
in the Agreement.
We serve as Israeli counsel to the Company. We have not participated in
the negotiation of the Agreement. However, we have reviewed:
a. the Agreement;
b. the Stock Purchase Warrant, dated as of ________________, 2004,
granting International Business Machines Corporation and each of its successors
and assigns a warrant to purchase shares of the Company in accordance with the
terms and conditions set forth therein (the "Warrant"); and
c. the Memorandum of Association and Articles of Association of the
Company, in effect as of the First Closing, and the resolutions adopted by the
board of directors of the Company on ________________, 2004 which resolutions we
assume have not been amended or superseded.
In such examination we have assumed the genuineness of all signatures on
original documents, the authenticity and completeness of all documents submitted
to us as originals, the conformity to original documents of all copies submitted
to us and the due execution and delivery of all documents (except as to due
execution and delivery by the Company) where due execution and delivery are a
prerequisite to the effectiveness thereof and the legal capacity of all
signatories to such documents.
The opinions hereinafter expressed are subject to the following further
qualifications:
(a) We express no opinion as to (i) the effect of any bankruptcy,
insolvency, reorganization, receivership, arrangement, moratorium or similar
laws relating to or affecting the rights of creditors and secured parties, or
(ii) the effect of general principles of equity, including without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific
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performance, injunctive relief or other equitable remedies whether considered in
a proceeding in equity or at law.
(b) We express no opinion as to compliance with the anti-fraud
provisions of applicable securities laws.
(c) We are members of the Bar of the State of Israel, we express no
opinion as to any matter relating to the laws of any jurisdiction other than the
laws of the State of Israel as the same are in force on the date hereof and we
have not, for the purpose of giving this opinion, made any investigation of the
laws of any other jurisdiction. In addition, we express no opinion as to any
documents, agreements or arrangements other than those subject to the laws of
the State of Israel, if any.
(d) We express no opinion as to the legality, validity, binding
nature or enforceability of any provision of any agreement providing for the
payment or reimbursement of costs or expenses or indemnifying a party, to the
extent such provisions may be excessive in amount or held to be unenforceable as
contrary to public policy.
(e) We have assumed that there are no agreements or understandings
between the Company and IBM or any third party entitled to rely thereon which
would expand, modify or otherwise affect the terms of the Agreement or Warrant
or the respective rights or obligations of the parties thereunder and that the
Agreement and Warrant correctly and completely set forth the intent of all
parties thereto.
Based upon and subject to the foregoing, we are of the opinion that:
The Shares to be issued to IBM pursuant to the Agreement shall, upon
issuance for the consideration and upon the terms set forth in the Agreement, be
duly and validly issued, fully paid and non-assessable, free and clear of any
third party preemptive rights.
The Shares underlying the Warrant have been duly authorized, reserved
for issuance, and shall, upon full payment of the Purchase Price and subject to
compliance with all terms of the Warrant, be duly and validly issued, fully paid
and non-assessable, free and clear of any third party preemptive rights.
The Company has all requisite corporate power and authority to execute,
deliver, and perform each of the Agreement and the Warrant (collectively: the
"Transaction Agreements"), and to issue and allot the Shares to IBM. All
necessary corporate proceedings of the Company have been duly taken to authorize
the execution, delivery, and performance of each of the Transaction Agreements
by the Company. Each of the Transaction Agreements is the legal, valid, and
binding obligation of the Company, and is enforceable against the Company in
accordance with its terms. To our knowledge, compliance with the terms of each
the Transaction Agreements does not require the consent or agreement of any
government or regulatory authority whose consent or agreement has not already
been obtained.
The execution and delivery of each of the Transaction Agreements by the
Company and the issuance of the Shares pursuant thereto do not violate any
provision of the Company's Articles of Association, and, to our knowledge, (i)
do not constitute a default under the provisions of any material agreement to
which the Company is a
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party(ii) do not violate or contravene any Israeli statute, rule or regulation
applicable to the Company; or (iii) do not violate or contravene any material
order, writ, judgment, injunction, decree, determination or award which has been
entered against the Company.
This opinion is furnished to you solely in connection with the execution
of the Agreement. This opinion may not be relied upon by you for any other
purpose nor may this opinion be provided to or relied upon by any other person
or entity or published, quoted or otherwise used for any other purpose without
our prior written consent. This opinion is based on the law (and the
interpretations thereof) and facts existing as of the date hereof. We disclaim
any obligation to advise you of any changes therein that may be brought to our
attention after the date hereof.
Very truly yours,
Gross, Kleinhendler, Hodak, Halevy,
Xxxxxxxxx & Co.
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