0000950131-01-503510.txt : 20011009 0000950131-01-503510.hdr.sgml : 20011009 ACCESSION NUMBER: 0000950131-01-503510 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010925 EFFECTIVENESS DATE: 20010925 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CLICK COMMERCE INC CENTRAL INDEX KEY: 0001107050 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 364088644 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-70084 FILM NUMBER: 1744001 BUSINESS ADDRESS: STREET 1: 200 E. RANDOLPH DR. STREET 2: SUITE 4900 CITY: CHICAGO STATE: IL ZIP: 60601 BUSINESS PHONE: 3123773110 MAIL ADDRESS: STREET 1: 200 E. RANDOLPH DR. STREET 2: SUITE 4900 CITY: CHICAGO STATE: IL ZIP: 60601 S-8 1 ds8.txt FORM S-8 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CLICK COMMERCE, INC. --------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 36-4088644 ------------------------ ----------------------------------- (State of incorporation) (I.R.S. Employer Identification No.) 200 East Randolph Drive, Suite 4900 Chicago, Illinois 60601 ------------------------ (Address of principal executive offices) CLICK COMMERCE, INC. -------------------- DIRECTORS' STOCK OPTION AND --------------------------- STOCK AWARD PLAN ---------------- (Full title of the Plan) Michael W. Ferro, Jr. Chief Executive Officer Click Commerce, Inc. 200 East Randolph Drive, Suite 4900 Chicago, Illinois 60601 (312) 482-9006 (Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE ============================================================================================================= Title of Each Class Amount to be Proposed Proposed Amount of of Securities to be Registered Maximum Maximum Registration Fee Registered Offering Price per Aggregate Offering Share/(1)/ Price/(1)/ ------------------------------------------------------------------------------------------------------------- Common Stock, 500,000 shares $4.12 $2,060,000 $515 par value $.001 per share =============================================================================================================
(1) The offering price for such shares is estimated pursuant to Rule 457(c) and (h) solely for the purpose of calculating the registration fee and is based upon the average of the high and low prices of the shares of Common Stock as quoted on the Nasdaq National Stock Market on September 21, 2001. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference. ------ We incorporate by reference the following documents: (1) Our Annual Report on Form 10-K for the year ended December 31, 2000 and all other reports filed by us pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since March 31, 2001; and (2) The description of our Common Stock contained in the Form 8-A filed by us on June 22, 2000. If we file any documents with the SEC pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, then those documents shall be deemed to be incorporated by reference in this registration statement and to be a part thereof from the date of filing such documents. We refer to those documents which are subsequently filed, and the documents listed above, as "Incorporated Documents." To the extent information contained in this registration statement or any Incorporated Document differs from information contained in an earlier-filed Incorporated Document, rely on the different information in this registration statement or the later-filed Incorporated Document. Item 5. Interests of Named Experts and Counsel ------ The validity of the shares of common stock offered hereby will be passed on for us by Seyfarth Shaw, Chicago, Illinois. David S. Stone, a partner in Seyfarth Shaw, is our Secretary and the beneficial owner of 628,599 shares of our common stock. Certain attorneys and a former attorney of Seyfarth Shaw, beneficially own in the aggregate 25,500 shares of our common stock. Item 6. Indemnification of Directors and Officers. ------ Our Amended and Restated Certificate of Incorporation in effect as of the date hereof (the "Certificate") provides that, except to the extent prohibited by the Delaware General Corporation Law, as amended (the "DGCL"), our directors shall not be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty as directors. Under the DGCL, our directors have a fiduciary duty to us which is not eliminated by this provision of the Certificate and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available. In addition, each director will continue to be subject to liability under the DGCL for breach of the director's duty of loyalty to us, for acts or omissions which are found by a court of competent jurisdiction to be not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are prohibited by the DGCL. This provision also does not affect the directors' responsibilities under any other laws, such as the Federal securities laws. We have obtained, and may continue to obtain, liability insurance for our officers and directors. Section 145 of the DGCL empowers a corporation to indemnify its directors and officers and to purchase insurance with respect to liability arising out of their capacity or status as directors and officers, provided that this provision shall not eliminate or limit the liability of a director: (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) arising under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. The DGCL provides further that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporation's bylaws, any agreement, a vote of stockholders or otherwise. The Certificate eliminates the personal liability of directors to the fullest extent permitted by Section 102(b)(7) of the DGCL and provides that we may fully indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person is or was a director or officer of this corporation, or is or was serving at our request as a director or officer of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Item 8. Exhibits ------ Reference is made to the Exhibit Index. Item 9. Undertakings ------ We hereby undertake: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Chicago, Illinois, this 25th day of September, 2001. CLICK COMMERCE, INC. By: /s/ Michael W. Ferro, Jr. ------------------------------- Michael W. Ferro, Jr. Chief Executive Officer POWER OF ATTORNEY We, the undersigned officers and directors of Click Commerce, Inc., hereby severally constitute Michael W. Ferro, Jr. and Rebecca S. Maskey, and each of them alone, our true and lawful attorneys with full power to them, and each of them alone, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all amendments (including post-effective amendments) to the registration statement, and generally to do all such things in our name and behalf in the capacities indicated below to enable Click Commerce, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or either of them, to the registration statement and any and all amendments thereto. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated this 25th day of September, 2001. Signature Title --------- ----- /s/ Michael W. Ferro, Jr. Chief Executive Officer and --------------------------------- Michael W. Ferro, Jr. Chairman of the Board (principal executive officer) /s/ Rebecca S. Maskey Executive Vice President, Chief --------------------------------- Rebecca S. Maskey Financial Officer and Treasurer (principal financial and accounting officer) /s/ Michael Hammer Director --------------------------------- Michael Hammer Director --------------------------------- Gregg Hartemayer /s/ Emmanuel Kampouris Director -------------------------------- Emmanuel Kampouris /s/ Peter Larson Director -------------------------------- Peter Larson /s/ Andrew J. McKenna Director --------------------------------- Andrew J. McKenna /s/ Jerry Murdock Director --------------------------------- Jerry Murdock /s/ John F. Sander Director ------------------------------- John F. Sander /s/ Leslie Shroyer Director --------------------------------- Leslie Shroyer /s/ Edwina Woodbury Director --------------------------------- Edwina Woodbury EXHIBITS The following exhibits are filed as part of this registration statement. Exhibit Number Description -------------- ----------- 5.1 Legal opinion of Seyfarth Shaw. 10.1 Amended Directors' Stock Option and Stock Award Plan 23.1 Consent of KPMG LLP. 23.2 Consent of Seyfarth Shaw (included in the opinion filed as Exhibit 5.1). EX-5.1 3 dex51.txt LEGAL OPINION OF SEYFARTH SHAW Exhibit 5.1 Legal Opinion of Seyfarth Shaw ------------------------------ (312) 346-8000 September 25, 2001 The Board of Directors Click Commerce, Inc. 200 East Randolph Drive, Suite 4900 Chicago, Illinois 60601 Re: Registration Statement on Form S-8; 500,000 shares of Common Stock to be Issued Pursuant to the Directors' Stock Option and Stock Award Plan Gentlemen: We have acted as counsel for Click Commerce, Inc., a Delaware corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission (the "Registration Statement") with respect to the registration under the Securities Act of 1933, as amended, of 500,000 shares of the Company's common stock, par value $.001 per share (the "Common Stock"), which may be issued pursuant to the Click Commerce, Inc. Directors' Stock Option and Stock Award Plan (the "Plan"). We have examined the Certificate of Incorporation of the Company, as amended, the bylaws of the Company, as amended, certain resolutions of the Company's Board of Directors, a copy of the Plan and such other corporate records, certificates, documents and matters of law as we have deemed necessary to render this opinion. In such examination we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified or photostatic copies. Based on the foregoing, we are of the opinion that (i) the issuance of the Common Stock has been duly authorized by the Company, and (ii) that when issued in accordance with the terms of the Plan, the shares of Common Stock will be validly issued, fully paid and non-assessable. We are members of the bar of the State of Illinois and we express no opinions as to laws other than applicable federal law and the laws of the State of Illinois and the corporate law of the State of Delaware. We hereby consent to the references to our firm in the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, SEYFARTH SHAW DDS/MEB EX-10.1 4 dex101.txt AMENDED DIRECTORS' STOCK OPTION AND AWARD PLAN Exhibit 10.1 CLICK COMMERCE, INC. DIRECTORS' STOCK OPTION AND STOCK AWARD PLAN 1. PREAMBLE. Click Commerce, Inc., a Delaware corporation (the "Company"), hereby establishes the Click Commerce, Inc. Directors' Stock Option and Stock Award Plan (the "Plan") to provide automatic grants of non-qualified stock options and the payment of non-employee directors' retainers and meeting fees in common stock of the Company ("Common Stock"), from and after the Company's initial public offering of Common Stock. The Plan is intended to promote the long-term growth and financial success of the Company by attracting and retaining non- employee directors of outstanding ability and assisting the Company in promoting a greater identity of interest between the Company's non-employee directors and its stockholders. 2. DEFINITIONS. 2.01 "Award" means an Option or an award of Common Stock. 2.02 "Board" or "Board of Directors" means the board of directors of the Company. 2.03 "Committee" means the Board of Directors or a committee appointed by the Board to administer the Plan. Once appointed, the Committee shall continue to serve until otherwise directed by the Board of Directors. 2.04 "Common Stock" means the common stock of the Company, $0.001 par value. 2.05 "Company" means Click Commerce, Inc., a Delaware corporation, and any successor thereto. 2.06 "Director" means a member of the Board who is not otherwise an employee of the Company and, after the Company registers shares of Common Stock under either the Securities Act of 1933, as amended, or the Exchange Act. 2.07 "Effective Date" means the effective date of the Company's underwritten initial public offering of Common Stock. 2.08 "Exchange Act" means the Securities Exchange Act of 1934, as it exists now or from time to time may hereafter be amended. 2.09 "Fair Market Value" means for the relevant day: (a) If shares of Common Stock are listed or admitted to unlisted trading privileges on any national or regional securities exchange, the average between the high and low sales prices reported, on the composite tape of that exchange (provided that, if the shares are listed or admitted on more than one exchange, then on the exchange designated by the Board from time to time) on the day Fair Market Value is to be determined; (b) If the Common Stock is not listed or admitted to unlisted trading privileges as provided in paragraph (a), and if sales prices for shares of Common Stock are reported by the Nasdaq Stock Market ("Nasdaq"), then the average of the high and low sales price for Common Stock reported as of the close of business on the day Fair Market Value is to be determined, or if Common Stock is not traded on that day, the next preceding day on which such stock was traded; or (c) If trading of the Common Stock is not reported by the Nasdaq or on a stock exchange, Fair Market Value will be determined by the Committee in its discretion based upon the best available data. 2.10 "Option" means the right of a Participant to purchase a specified number of shares of Common Stock, subject to the terms and conditions of the Plan. 2.11 "Option Date" means the date upon which an Option is awarded to a Participant under the Plan. 2.12 "Option Price" means the price per share at which an Option may be exercised. 2.13 "Participant" means an individual to whom an Option has been granted under the Plan. 2.14 "Plan" means the Click Commerce, Inc. Directors' Stock Option and Stock Award Plan, as set forth herein and as from time to time amended. 2.15 "Subsidiary" means any corporation or other entity of which the majority voting power or equity interest is owned directly or indirectly by the Company. 2.16 Rules of Construction. (a) Governing Law. The construction and operation of this Plan are governed by the laws of the State of Delaware. (b) Headings. All headings in this Plan are for reference only and are not to be utilized in construing the Plan. 2 (c) Gender. Unless clearly appropriate, all nouns of whatever gender refer to persons of either gender. (d) Singular and Plural. Unless clearly inappropriate, singular terms refer also to the plural and vice versa. (e) Severability. If any provision of this Plan is determined to be illegal or invalid for any reason, the remaining provisions shall continue in full force and effect and shall be construed and enforced as if the illegal or invalid provision did not exist, unless the continuance of the Plan in such circumstances is not consistent with its purposes. 3. STOCK SUBJECT TO THE PLAN. Except as otherwise provided in Section 10, the aggregate number of shares of Common Stock that may be issued, or subject to Options granted under this Plan, may not exceed 500,000 shares of Common Stock. Reserved shares may be either authorized but unissued shares or shares reacquired by the Company and held in its treasury, in the Board's discretion. If any Options hereunder shall terminate or expire, as to any number of shares, new Options or shares may thereafter be awarded with respect to such shares. 4. ADMINISTRATION. The Plan shall be administered by the Committee. In addition to any other powers set forth in this Plan, the Committee has the exclusive authority: (a) to construe and interpret the Plan, and to remedy any ambiguities or inconsistencies therein; (b) to establish, amend and rescind appropriate rules and regulations relating to the Plan; (c) generally, to administer the Plan, and to take all such steps and make all such determinations in connection with the Plan and the Awards granted thereunder as it may deem necessary or advisable; (d) to determine, on an individual basis, or generally from time to time, the form in which payment on an Option exercise under Section 7, or tax withholding under Section 13, will be made; and (e) to take any action necessary, including amendment of the Plan or any Award, as required in order for a transaction to qualify for pooling of interest accounting treatment. 3 Notwithstanding the foregoing, to the extent necessary to satisfy Rule 16b- 3 under the Exchange Act, action otherwise within the authority of the Committee shall be taken by the full Board. 5. DIRECTOR STOCK OPTIONS. (a) Each Director shall be granted (i) if he is a Director on the Effective Date, an Option to purchase 10,000 shares of Common Stock at an Option Price equal to the per share initial offering price; (ii) if he is a Director on the date of an annual meeting of the Company's stockholders, an Option to purchase 10,000 shares of Common Stock at an Option Price equal to the Fair Market Value on such date; and (iii) on the date he first becomes a Director (if other than at an annual meeting of the Company's stockholders) an Option to purchase a number of shares of Common Stock equal to 10,000 multiplied by a fraction, the numerator of which is the number of days such individual will serve until the date that will be the next annual meeting of the Company's stockholders (as determined by the Committee) and the denominator of which is 365 at an Option Price equal to the Fair Market Value on such date. (b) An Option shall be granted hereunder only if as of each Option Date the Director (i) is not otherwise an employee of the Company or any Subsidiary, and (ii) has served on the Board continuously since the commencement of his or her term. (c) In the event that the number of shares of Common Stock available for grant under the Plan is insufficient to make all automatic grants required to be made on a given date, then the Options granted to Directors entitled to a grant on such date shall share ratably in the number of shares available for grant under the Plan. 6. OPTION PERIOD. An Option may not be exercised until six months after the Option Date. Each Option will expire as of the earliest of: (a) the date the Participant's membership on the Board is terminated for cause, as determined by the Committee; (b) the date one year after the Participant's death; or (c) ten years from the Option Date. 7. MANNER OF EXERCISE OF OPTIONS. To exercise an Option in whole or in part, a Participant (or, after his death, his executor or administrator) must give written notice to the Committee, stating the number of shares with respect to which he intends to exercise the Option. The Company will 4 issue the shares with respect to which the Option is exercised upon payment in full of the Option Price. The Option Price may be paid (i) in cash, (ii) in shares of Common Stock having an aggregate Fair Market Value, as determined on the date of delivery, equal to the Option Price, or (iii) by delivery of irrevocable instructions to a broker designated by the Company to promptly deliver to the Company the amount of sale or loan proceeds necessary to pay for all Common Stock acquired through such exercise and any tax withholding obligations resulting from such exercise. 8. DIRECTOR STOCK AWARDS In lieu of any retainer or meeting fees payable in cash to a Director from and after the Effective Date of the Plan, each Director shall receive, on the payment date thereof, a number of shares of Common Stock with a Fair Market Value equal to the retainer or meeting fees. The value of annual stock awards to each Director under the Plan shall initially be $25,000, subject to review and revision by the Committee at any time in its sole discretion. In addition, each Director who serves as the Chairman of the Audit Committee of the Board of Directors shall receive a number of shares of Common Stock with a Fair Market Value equal to $10,000 on the date of the annual meeting of the stockholders of the Company. Each Director who serves as the Chairman of the Human Resource and Compensation Committee or the Corporate Governance Committee of the Board of Directors shall receive a number of shares of Common Stock with a Fair Market Value equal to $5,000 on the date of the annual meeting of stockholders. The Board of Directors may determine, in its discretion, other additional amounts of grants of Common Stock for other additional committees of the Board of Directors that may be formed from time to time. [Amended by resolution of the Board of Directors dated March 31, 2000.] 9. DEFERRAL OF STOCK AWARD (a) A Director may elect to defer the ownership of the shares of Common Stock otherwise issuable pursuant to Section 8. Any such election shall be in writing in the form prescribed by the Committee. (b) An election to defer pursuant to (a) above with respect to shares of Common Stock issuable in a calendar year must be made prior to December 31st of the preceding year. Notwithstanding the foregoing, for the calendar year in which the Effective Date occurs, any election must be filed no later than 30 days after the Effective Date and shall be effective for shares issuable after the election is made. (c) At the time of deferral, a Director may select the date for the issuance of the deferred shares. If a Director does not select a date for the issuance of deferred shares, the deferred shares will be issued upon termination of his service as a Director. 10. ADJUSTMENTS TO REFLECT CHANGES IN CAPITAL STRUCTURE. Subject to the following provisions of this Section 10, in the event of any change in the outstanding shares of Common Stock by reason of any share dividend, split, recapitalization, merger, consolidation, combination, exchange of shares or other similar 5 corporate change, the aggregate number and kind of shares of Common Stock reserved for issuance under the Plan or subject to Options outstanding or to be granted under the Plan shall be proportionately adjusted so that the value of each Option shall not be changed, and the terms of any outstanding Option may be adjusted by the Committee in such manner as it deems equitable; provided, however, that in no event shall the Option price for a share be adjusted below the par value of such share, nor shall any fraction of a share be issued upon the exercise of an Option. 11. NON-TRANSFERABILITY OF OPTIONS. The Options granted under the Plan are not transferable, voluntarily or involuntarily, other than by will or the laws of descent and distribution. During a Participant's lifetime, his Options may be exercised only by him; provided, however, that Options granted hereunder to Directors subject to third party policies against receiving individual compensation for serving as a director of companies in which such third party has an investment may be assigned to or issued directly to such third party, upon the written request of the Director. Options so assigned or issued may be exercised only by the recipient or a wholly-owned subsidiary thereof. [Amended by resolution of the Board of Directors on April 2, 2001.]. 12. RIGHTS AS STOCKHOLDER. A Participant has no rights whatsoever as a stockholder with respect to any shares covered by an Option until the date of the issuance of a stock certificate for the shares. No Common Stock may be delivered upon the exercise of any Option until full payment has been made and all income tax withholding requirements thereon, if any, have been satisfied. 13. WITHHOLDING TAX. The Company shall have the right to withhold in cash or shares of Common Stock with respect to any payments made to Directors under the Plan any taxes required by law to be withheld because of such payments. Any withholding of shares shall be made in a manner consistent with Rule 16b-3 under the Exchange Act 14. AMENDMENT OF THE PLAN. The Committee may from time to time amend or revise the terms of this Plan in whole or in part and may without limitation, adopt any amendment deemed necessary; provided, however, that unless, necessary to comply with any pooling of interest requirements, no change in any award previously granted to a Director may be made that would impair the rights of the Director without the Director's consent. All amendments shall be in writing and consented to by a majority of the members of the Committee. 6 15. CONDITIONS UPON ISSUANCE OF SHARES. The exercise of any Option and the issuance and delivery of such shares of Common Stock pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange upon which the shares of Common Stock may then be listed. As a condition to the exercise of an Option, the Company may require the person exercising such Option to (i) represent and warrant at the time of any such exercise that the Common Stock is being purchased only for investment and without any present intention to sell or distribute such shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned relevant provisions of law; and (ii) enter into a lock-up or similar agreement with respect to such shares, prohibiting, for up to 360 days in the case of the initial public offering or 90 days in the case of any other offering, the disposition of such shares. 16. TERMINATION OF THE PLAN. The Committee may terminate the Plan at any time with respect to any shares that have not been issued and are not then subject to Options. Termination of the Plan will not affect the rights and obligations of any Participant with respect to Options or shares of Common Stock, awarded before termination. 7 EX-23.1 5 dex231.txt CONSENT OF KPMG LLP Exhibit 23.1 The Board of Directors Click Commerce, Inc.: We consent to the incorporation by reference in this registration statement on Form S-8 of our reports dated January 26, 2001, with respect to the consolidated balance sheets of Click Commerce, Inc. as of December 31, 2000 and 1999, and the related consolidated statements of operations and comprehensive income, shareholders' equity (deficit), and cash flows and the related consolidated financial statement schedule for each of the years in the three-year period ended December 31, 2000, which reports appear in the annual report on Form 10-K of Click Commerce, Inc. for the year ended December 31, 2000. KPMG LLP Chicago, Illinois September, 25 2001