EXHIBIT E
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SHARE PURCHASE AGREEMENT
SHARE PURCHASE AGREEMENT (the "Agreement"), dated as of
December 10, 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 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 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.
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, 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SELLER
/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
PURCHASERS:
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xxxx X. XxXxxxxx
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Xxxx X. XxXxxxxx
