EXHIBIT C
SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT (the "Agreement"), dated as of December 6, 2002 by
and among Xxx Xxxxxxxx (the "Seller"), and Xxxxxx X. Xxxxxxxx and Xxxx X.
XxXxxxxx (each, a "Purchaser" and collectively, the "Purchasers").
WITNESSETH:
WHEREAS, the Seller owns 649,100 shares of common stock, par value $.001
per share (the "Perficient Stock") of Perficient, Inc., a Delaware corporation
(the "Company"); and
WHEREAS, the Seller desires to sell to Xxxxxx X. Xxxxxxxx 266,667 shares of
Perficient Stock and to Xxxx X. XxXxxxxx 133,333 shares of Perficient Stock and
each Purchaser desires to purchase such Perficient Stock from such Seller on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
set forth below and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
The following terms used in this Agreement shall have the meaning set forth
below:
Section 1.1 "Closing" shall have the meaning set forth in Section 3.1
hereof.
Section 1.2 "Closing Date" shall mean January 2, 2003.
Section 1.3 "Escrow Agent" shall mean XxXxxxxx & English, LLP, counsel to
the Company.
ARTICLE 2
PURCHASE AND SALE OF SHARES
Section 2.1 Purchase and Sale of Perficient Stock. At the Closing, the
Seller shall sell to each Purchaser and each Purchaser shall purchase from each
Seller the number of shares of Perficient Stock indicated in the recitals
hereto. The Seller shall transfer all of its right, title and interest in and to
such Perficient Stock to the such Purchasers free and clear of any lien,
security interest, or other encumbrance of any nature and free of any claim by
any person or entity to or against the Perficient Stock.
Section 2.2 Purchase Price. The purchase price for the Perficient Stock is
$.375 per share.
Section 2.3 Payment of Purchase Price. As payment for the Perficient Stock,
each Purchaser shall deliver, for the benefit of the Seller to the Seller at the
Closing, a check or wire transfer (at
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Seller's option) in the amount equal to the number of shares purchased by such
Purchaser from such Seller, times (b) $.375 (the "Closing Payment").
ARTICLE 3
CLOSING
Section 3.1 Closings. The consummation of the sale of Perficient stock
contemplated herein (the "Closing") shall take place on the Closing Date.
Section 3.2 Items To Be Delivered by the Seller. On the date of this
Agreement, the Seller shall deliver to the Escrow Agent share certificates, duly
endorsed representing the Perficient Stock to be purchased by each Purchaser. In
addition, the parties shall execute the Escrow Agreement attached hereto as
Exhibit A (the "Escrow Agreement"). At the Closing, the Escrow Agent, upon
receipt of a notice by the Purchasers that the Closing Payment has been wired to
the Seller, including federal funds wire transfer confirmation number in
accordance with the Purchase Agreement, shall deliver to each Purchaser a share
certificate duly endorsed representing the Perficient Stock purchased by such
Purchaser hereunder. The Escrow Agent shall have no other responsibilities other
than as specifically set forth in the Escrow Agreement, and shall make such
deliveries without question upon receipt of such notice. All of the
above-mentioned documents shall be in form and substance satisfactory to such
Purchasers.
Section 3.3 Items to be Delivered by Purchasers. At the Closing and subject
to the terms and conditions contained herein, each Purchaser shall deliver to
the Seller the Closing Payment for the Perficient Stock purchased by such
Purchaser.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller hereby represents and warrants to each Purchaser as follows:
Section 4.1 Ownership of Perficient Stock. The Seller is the sole record
and beneficial owner of all of the issued and outstanding Perficient Stock, and
it has good and valid title to such Perficient Stock free and clear of any lien,
security interest or encumbrance of any nature and free of any claim by any
person to or against such Perficient Stock. Seller has the full right, power and
authority to sell, assign, transfer and convey the Perficient Stock to Purchaser
as provided herein.
Section 4.2 Authorization, Validity and Enforceability. Each of this
Agreement and the Escrow Agreement has been duly authorized by the Seller. Each
of this Agreement and the Escrow Agreement constitutes the valid and binding
obligation of the Seller, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement and the Escrow Agreement
will not violate or result in a default under any provision of any material
commitment, agreement or instrument to which the Seller is a party or by which
the Seller is
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bound and will not contravene any law, rule or regulation any administrative
agency or governmental body, or any order, writ, injunction or decree of any
court, administrative agency or governmental agency applicable to the Seller.
Section 4.3 Litigation. There are no proceedings pending or threatened, and
there is no order, writ, judgment or decree affecting the Seller which, if
adversely determined, would have a material adverse effect on the transactions
contemplated hereby.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Each Purchaser hereby represents and warrants to the Seller as follows:
Section 5.1 Validity and Enforceability. Each of this Agreement and the
Escrow Agreement has been duly authorized by each Purchaser. Each of this
Agreement and the Escrow Agreement constitutes the binding obligation of such
Purchaser, enforceable in accordance with its terms, and the execution, delivery
and performance of this Agreement and the Escrow Agreement will not violate or
result in a default under any provisions of any material commitment, agreement
or instrument to which such Purchaser is a party or by which such Purchaser is
bound, and will not contravene any law, rule or regulation of any administrative
agency or governmental body or any order, writ, injunction or decree of any
court, administrative agency or governmental agency applicable to Purchaser.
Section 5.2 Litigation. There are no proceedings pending or threatened, and
there is no order, writ, judgment or decree affecting such Purchaser, which, if
adversely determined, would have a material adverse effect on the transactions
contemplated hereby.
ARTICLE 6
CONDITIONS TO CLOSING
Section 6.1 Purchaser's Obligations. Each Purchaser's obligations to
consummate the transactions contemplated hereby is conditioned upon the
satisfaction by Seller of Section 3.2 hereof.
Section 6.2 Seller's Obligations. The Seller's obligation to consummate the
transactions contemplated hereby is conditioned upon the satisfaction by each
Purchaser of Section 3.3 hereof.
ARTICLE 7
ARBITRATION
Section 7.1 Arbitration. All disputes under this Agreement shall be settled
by arbitration in Austin, Texas pursuant to the rules of the American
Arbitration Association Commercial Arbitration Rules which rules are deemed to
be incorporated by reference herein, and judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
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ARTICLE 8
MISCELLANEOUS
Section 8.1 Survival of Agreements. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the sale and delivery of the Perficient Stock
pursuant hereto. The foregoing provision with regard to the survival of the
warranties and representations of the parties in this Agreement is meant only to
establish the period of time within which a claim for breach of such warranties
and representations may be brought, and is not intended to extend the
applicability of such warranties and representations to events or circumstances
which may occur after the Closing Date.
Section 8.2 Expenses. Each party hereto shall pay its own expenses in
connection with the transactions contemplated hereby.
Section 8.3 Price Match. Anything contained in this Agreement to the
contrary notwithstanding, if between the date of this Agreement and March 15,
2003, (i) any Purchaser, the Company and/or any designee of the Company, as
applicable, consummate a transaction, subject to the limitation set forth in the
last line of this Section 8.3, whereby any of them purchase Perficient Stock (a
"Sale") and (ii) the aggregate proceeds per share to the seller in the Sale
exceeds $.375 per share sold (as appropriately adjusted to take into account any
stock splits, stock dividends or similar recapitalizations) (the highest such
excess per share resulting from any Sale being referred to herein as the "Excess
Amount"), then, on March 17, 2003, Seller shall be paid by each Purchaser by
check or wire transfer (at Seller's option) cash in the amount equal to the
product of the Excess Amount multiplied by the number of Perficient Shares
purchased by such Purchaser from Seller under this Agreement. Notwithstanding
the above, a Sale as defined herein shall only include transaction that result
in the purchase of up to 600,000 additional shares of Perficient Stock, in the
aggregate. Accordingly, the Seller shall only be entitled to receive the payment
of any Excess Amount as a result of the purchase by the Purchaser, in one or
more transactions, of the first 600,000 shares of Perficient Stock (if any)
purchased after the date of the Closing.
Section 8.4 Notices. All notices, requests, consents, or other
communication hereunder shall be in writing and shall be delivered personally or
by courier or mailed by first class registered or certified mail.
Section 8.5 Captions and Section Headings. As used herein, captions and
section headings are for convenience only and are not a part of this Agreement
and shall not be used in construing it.
Section 8.6 Entire Agreement. This Agreement and the other documents
delivered pursuant hereto and thereto, or incorporated by reference herein,
contain the entire agreement between the parties hereto concerning the
transactions contemplated herein and supersede all prior agreements or
understandings between the parties hereto relating to the subject matter hereof.
Section 8.7 Additional Documents. The parties hereto will, at any time
after the date hereof, sign, execute and deliver, or cause others so to do, all
such powers of attorney, deeds, assignments,
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documents and instruments and do or cause to be done all such other acts and
deeds as may be necessary or proper to carry out the transactions contemplated
by this Agreement.
Section 8.8 Amendment. This Agreement may be amended, supplemented or
interpreted at any time, but only by a written agreement executed by the parties
hereto.
Section 8.9 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.
Section 8.10 Severability. If any one or more of the provisions of this
agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent permitted by applicable law, each party
waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
Section 8.11 Governing Law. This Agreement shall be governed by the laws of
the State of Texas.
Section 8.12 Waiver of rights. The Seller and each of the Purchasers hereby
waives any rights of first refusal, co-sale or similar rights they may have
regarding the sale by Seller of shares of Perficient Stock pursuant hereto and
hereby consent to all transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
SELLER
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Xxx Xxxxxxxx
PURCHASERS:
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Xxxxxx X. Xxxxxxxx
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Xxxx X. XxXxxxxx
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