September 5, 2006
Exhibit (e)(2)
September 5, 2006
Xxxxxxx X. Xxxxx, Xx.
c/o Click Commerce, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
c/o Click Commerce, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Xx. Xxxxx:
This letter (the “Agreement”) is to confirm our agreement regarding all of the shares,
$.001 par value per share, (“Common Stock”) of Click Commerce, Inc., a Delaware corporation
(the “Company”), beneficially owned (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended) by you as of the date hereof and any other shares of Common Stock
as to which you may hereafter acquire beneficial ownership (the “Shares”). In order to
induce Illinois Tool Works Inc., a Delaware corporation (“Parent”), to enter into an
Agreement and Plan of Merger, dated as of the date hereof (the “Merger Agreement”), among
the Company, Parent and ITW Leap Corp., a Delaware corporation and wholly owned subsidiary of
Parent (“Sub”), you hereby agree as follows (capitalized terms used herein but not
otherwise defined shall have the meanings ascribed to them in the Merger Agreement):
Subject to the terms and conditions hereof, as soon as practicable after the commencement of
the tender offer to be commenced by Sub pursuant to the Merger Agreement (the “Tender
Offer”), but in no event later than the second Business Day prior to the initial expiration
date of the Tender Offer, you will tender, or cause to be tendered, to the Paying Agent, all of the
issued and outstanding Shares, regardless of whether a higher offer for such Shares has been made
by any Person. If you withdraw your tender of Shares in the Tender Offer, you shall immediately,
but in no event later than the expiration date of the Tender Offer, re-tender such Shares to Sub in
accordance with the Tender Offer. Notwithstanding anything to the contrary contained herein, your
obligation to tender or re-tender the Shares shall automatically terminate and be of no further
force and effect upon the termination of this Agreement in accordance with its terms.
You hereby agree that, except for tendering the Shares in accordance with this Agreement and
for the granting of the proxy and power of attorney pursuant to this Agreement, you shall not and
shall cause your Affiliates (which term for purposes of this Agreement shall not include the
Company or any Company Subsidiary) not to (i) sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other agreement with respect to, or
consent to, the sale, transfer, tender, pledge, encumbrance, assignment or other disposition of,
any or all of the Shares; provided, however, that you will be allowed to transfer any or all of the
Shares by gift, or on your death by will or intestacy, to (A) your “immediate family” (as defined
below), (B) a trust for the benefit of you or your immediate family or (C) a charitable trust,
organization or foundation (public or private); provided that each transferee agrees in writing to
be bound by the terms of this Agreement to the same extent as you; (iv) except with respect to
matters not covered by this Agreement, grant any proxies or powers of attorney in respect of the
Shares, deposit any of the Shares into a voting trust or enter into a voting agreement with respect
to any of the Shares and (v) take any action that would have the effect of preventing or disabling
(A) you from performing your obligations under this Agreement or (B) Parent, Sub or their designees
from exercising their rights under this Agreement. “Immediate Family” shall mean your
spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild, or the
spouse of any of your children, adopted children, grandchildren or adopted grandchildren.
You hereby represent and warrant as to the Shares issued, outstanding and beneficially owned
by you as of the date of this Agreement that (i) you are the sole beneficial owner of and have full
right, power and authority to sell and vote the Shares, or if you are not the sole beneficial
owner, you have the full right, power and authority to sell the Shares, and in either event, this
Agreement is a valid and binding agreement, enforceable against you, in accordance with its terms;
(ii) neither the execution of this Agreement nor the consummation by you of the transactions
contemplated hereby will constitute a violation of, or conflict with, or default under, any
contract, commitment, agreement, understanding, arrangement or restriction of any kind to which you
are a party or by which you or the Shares are bound; and (iii) Sub or its subsidiary shall, upon
purchase of the Shares, receive good and marketable title to the Shares, free and clear of all
liens, claims, encumbrances and security interests of any kind imposed by or through you.
Parent hereby represents and warrants that it has the corporate power, and it is duly
authorized, to enter into this Agreement.
You hereby agree to vote or cause to be voted all of the issued and outstanding Shares (i) in
favor of approval and adoption of the Merger Agreement, the Merger and the transactions
contemplated by this Agreement and the Merger Agreement and (ii) against any Alternative
Acquisition, or any other matters which would reasonably be expected to impede, interfere, delay or
materially adversely affect the Offer, the Merger and the transactions contemplated by
this Agreement and the Merger Agreement. In furtherance of your voting agreement in this paragraph,
you hereby revoke any and all previous proxies with respect to any of the Shares and grant to
Parent and such individuals or corporations as Parent may designate an irrevocable proxy to vote
all of the Shares owned by you in accordance with this paragraph on any matters which may be
presented to shareholders of the Company with respect to the matters referred to in (i) and (ii)
above in this paragraph. You hereby acknowledge that the proxy granted by the foregoing is coupled
with an interest and is irrevocable. In addition, you hereby agree to execute such additional
documents as Parent may reasonably request to effectuate its proxy and voting rights under this
paragraph. Notwithstanding anything to the contrary contained herein, the obligation for you to
vote the Shares and the proxy granted to Parent hereby shall automatically terminate and be of no
further force and effect upon the termination of this Agreement in accordance with its terms.
We each hereby agree that you are not making any agreement or understanding herein in any
capacity other than in your capacity as a stockholder of the Company. If you are, or any of your
Affiliates, employees or agents is, a member of the Board of Directors or an officer of the
Company, nothing herein shall in any way limit or affect actions taken by you or them in such
capacity, and no action taken in furtherance of your or their fiduciary duties shall be deemed to
be a breach of the provisions of this Agreement.
Nothing contained in this Agreement shall obligate you to exercise any options or other right
to acquire shares.
We each hereby agree that this Agreement creates legally binding commitments, enforceable in
accordance with their terms. This Agreement (i) constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof and (ii) supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the subject matter
hereof. This Agreement is not intended to confer upon any other person any rights or remedies
hereunder.
This Agreement will terminate upon the earliest of (i) the Effective Time, (ii) the mutual
written consent of the parties hereto, (iii) the termination of the Merger Agreement in accordance
with its terms and (iv) at your option, upon notice by you to Sub from and after any amendment or
modification of the Merger Agreement or the Tender Offer that, without your written consent, (x)
extends the Outside Date, (y) decreases the amount of, or otherwise changes the form of, the Merger
Consideration or (z) otherwise materially adversely affects you as a stockholder of the Company.
Notwithstanding the foregoing, such right of termination shall not be available to any party whose
breach of any representation, warranty, agreement or obligation hereunder has been the cause of or
resulted in the failure of the transactions contemplated hereunder to be consummated. No such
termination shall relieve any party from liability for any breach of this Agreement.
Each party shall be entitled, without prejudice to the rights and remedies otherwise available
to such party, to specific performance of all of the other party’s obligations hereunder. This
Agreement shall be governed by and construed in accordance with the internal laws (and not the law
of conflicts) of the State of Delaware. Each of the parties shall pay its own expenses in
connection with the execution and performance of this Agreement.
If any term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
[Intentionally Blank]
Please indicate your agreement to the foregoing by signing this Agreement in the space
provided below, whereupon a binding agreement will have been formed between us in respect of the
foregoing.
| Sincerely, ILLINOIS TOOL WORKS INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President | |||
Acknowledged and agreed as of the date first written above:
/s/ Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx, Xx.
/s/ Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx, Xx.
