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Published: 2008-03-26

Agreement and Plan of Reorganization (Amendment) - Ariba Inc. and Tradex Technologies Inc.



                             AMENDMENT NO. 1 OF THE
                      AGREEMENT AND PLAN OF REORGANIZATION


         THIS AMENDMENT NO. 1 OF THE AGREEMENT AND PLAN OF REORGANIZATION
('Amendment') is entered into as of January 24th, 2000, by and among Ariba,
Inc., a Delaware corporation ('Acquiror'), Apache Merger Corporation, a Delaware
corporation and wholly-owned subsidiary of Acquiror ('Merger Sub'), and Tradex
Technologies, Inc., a Delaware corporation ('Target'). Capitalized terms not
otherwise defined in this Amendment have the meaning given them in the Agreement
and Plan of Reorganization, dated December 16, 1999, by and among Acquiror,
Merger Sub and Target (the 'Agreement').

                                    RECITALS

         A.       Pursuant to Section 7.4 of the Agreement, the Agreement may be
amended at any time prior adoption of the Agreement by the stockholders of
Target by execution of an instrument in writing signed on behalf of each of the
parties thereto.

         B.       Acquiror, Merger Sub and Target desire to amend certain
provisions of the Agreement.

         NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, Acquiror, Merger Sub and Target hereby agree as follows:

         1.       Pursuant to Section 7.4 of the Agreement, Section 2.2 of the
Agreement is hereby amended in its entirety to read as follows:

         CAPITAL STRUCTURE. The authorized capital stock of Target consists of
         30,000,000 shares of Common Stock and 10,000,000 shares of Preferred
         Stock, of which there were issued and outstanding as of the date of
         this Agreement, 5,447,213 shares of Common Stock, 119,965 shares of
         Series A-1 Preferred Stock (the 'Series A-1 Preferred'), 92,500 shares
         of Series A-2 Preferred Stock (the 'Series A-2 Preferred') and 45,000
         shares of Series A-3 Preferred Stock (the 'Series A-3 Preferred' and
         together with the Series A-1 Preferred and Series A-2 Preferred, the
         'Series A Preferred'), 566,658 shares of Series B Preferred Stock (the
         'Series B Preferred') and 8,284,651 shares of Series C Preferred Stock
         (the 'Series C Preferred,' together with the Series A Preferred and
         Series B Preferred, the 'Target Preferred Stock'). Each share of Series
         A Preferred is convertible into eight (8) shares of Common Stock, each
         share of Series B Preferred is convertible into eight (8) shares of
         Common Stock and each share of Series C Preferred is convertible into
         one (1) share of Common Stock. There are no other outstanding shares of
         capital stock or voting securities and no outstanding commitments to
         issue any shares of capital stock or voting securities after the date
         of this Agreement other than (i) as specifically set forth in this
         Section 2.2 or (ii) pursuant to the Strategic Investment (as defined
         below). All outstanding shares of Target Capital Stock are duly
         authorized, validly issued, fully paid and non-assessable and are free
         of any liens or encumbrances other than any liens or encumbrances
         created by or imposed upon the holders thereof, and except as set



         forth in that certain Fourth Amended and Restated Stockholders'
         Agreement dated as of July 19, 1999 by and among Target and the other
         parties thereto ('Target Stockholders Agreement') are not subject to
         preemptive rights, rights of first refusal, rights of first offer or
         similar rights created by statute, the Certificate of Incorporation or
         Bylaws of Target or any agreement to which Target is a party or by
         which it is bound. As of the date of this Agreement, Target has
         reserved (i) 2,059,720 shares of Common Stock for issuance upon
         conversion of the Series A Preferred, (ii) 4,533,265 shares of Common
         Stock for issuance upon conversion of the Series B Preferred, (iii)
         8,450,322 shares of Common Stock for issuance upon conversion of the
         Series C Preferred, (iv) 4,568,250 shares of Common Stock for issuance
         to employees, directors and consultants pursuant to the Target's 1997
         Employee Stock Option Plan, Target's 1997 Non-Employee Stock Option
         Plan and the Target's 1999 Employee Stock Option/Issuance Plan
         (together, 'Target Stock Option Plans'), (of which 528,000 shares have
         been issued pursuant to option exercises or direct stock purchases, and
         3,140,750 shares are subject to outstanding, unexercised options), (v)
         91,248 shares for issuance upon exercise of the Target Warrants, (vi)
         165,671 shares of Series C Preferred for issuance under certain bridge
         warrants issued on February 26, 1999 and (vii) 243,456 shares of Common
         Stock for issuance under other stock option agreements and warrants (in
         addition to those set forth in (iv), (v) and (vi) above). Except for
         (i) the outstanding and reserved shares of Target Capital Stock and
         outstanding and reserved options and warrants to purchase shares of
         Target Capital Stock specifically set forth in this Section 2.2, (ii)
         the rights created pursuant to this Agreement, (iii) Target's right to
         repurchase any unvested shares under each of the Target Stock Option
         Plans and (iv) the Strategic Investment (as defined below), there are
         no other outstanding shares of capital stock or voting securities, no
         outstanding commitments to issue any shares of capital stock or voting
         securities after the date of this Agreement, and no other options,
         warrants, calls, rights, commitments or agreements of any character to
         which Target is a party or by which it is bound obligating Target to
         issue, deliver, sell, repurchase or redeem, or cause to be issued,
         delivered, sold, repurchased or redeemed, any shares of Target Capital
         Stock or obligating Target to grant, extend, accelerate the vesting of,
         change the price of, or otherwise amend or enter into any such option,
         warrant, call, right, commitment or agreement. There are no contracts,
         commitments or agreements relating to the voting, purchase or sale of
         Target Capital Stock (i) between or among Target and any of its
         stockholders and (ii) to the best of Target's knowledge, among any of
         Target's stockholders or between any of Target's stockholders and any
         third party, except for the stockholders delivering the Stockholder
         Agreement and those stockholders of Target who are parties to the
         Target Stockholders Agreement. The terms of the Target Stock Option
         Plans permit the assumption of such Target Stock Option Plans by
         Acquiror provided in this Agreement, without the consent or approval of
         the holders of the outstanding options, the Target stockholders, or
         otherwise and without any acceleration of the exercise schedule or
         vesting provisions in effect for such options. True and complete copies
         of all agreements and instruments relating to or issued under the
         Target Stock Option Plans have been made


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         available to Acquiror, and such agreements and instruments have not
         been amended, modified or supplemented, and there are no agreements to
         amend, modify or supplement such agreements or instruments from the
         form made available to Acquiror. All outstanding shares of Target
         Capital Stock and options to purchase shares of Target Capital Stock
         were issued in compliance with all applicable federal and state
         securities laws.

         2.       Pursuant to Section 7.4 of the Agreement, the first sentence
of Section 5.2(b) of the Agreement is hereby amended to read as follows:

         If despite Target's and Acquiror's commercially reasonable efforts to
         obtain a permit, Acquiror and Target are unable to obtain a date for
         the Hearing ('Hearing Date') within 30 days after the filing of the
         Application with the Department or the Application is denied; or the
         Department refuses to set a Hearing Date or issue the permit; or the
         Permit is otherwise determined to be unavailable in the judgment of
         counsel to Target and Acquiror, then Acquiror shall use all
         commercially reasonable efforts to effect as soon as practicable but in
         no event later than 15 business days after events stated in this
         Section 5.2(b) a Registration Statement (the 'Registration Statement')
         on Form S-4 (or such other or successor form as shall be appropriate)
         with respect to the shares of Acquiror Common Stock to be issued in
         the, Merger, which complies in form with applicable SEC requirements
         and shall use all reasonable efforts to cause the Registration
         Statement to become effective as soon thereafter as practicable.

         3.       Pursuant to Section 7.4 of the Agreement, Section 5.22 of the
Agreement is hereby amended in its entirety to read as follows:

         STRATEGIC INVESTMENT. Target shall use its best efforts to close prior
         to the Effective Time a total of at least fifty million dollars of
         additional investment in its Class B Common Stock (the 'Class B Common
         Stock') by certain institutional accredited investors (the 'Strategic
         Investors') previously identified to Acquiror at a pre-money valuation
         of $650 million (the 'Strategic Investment').

         4.       Pursuant to Section 7.4 of the Agreement, the first sentence
of Section 8.2 of the Agreement is hereby amended to read as follows:

         From and after the Effective Time of the Merger, and subject to the
         provisions of Section 8.1, Acquiror and the Surviving Corporation (on
         or after the Closing Date) shall be indemnified and held harmless by
         the Former Target Stockholders (other than the Strategic Investors
         holding Class B Common Stock) against, and reimbursed for, any actual
         liability, damage, loss, obligation, demand, judgment, fine, penalty,
         cost or expense, including reasonable attorneys' fees and expenses, and
         the costs of investigation incurred in defending against or settling
         such liability, damage, loss, cost or expense or claim therefor and any
         amounts paid in settlement thereof imposed on or reasonably incurred by
         Acquiror or the Surviving Corporation as a result of any breach of any
         representation, warranty,


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         agreement or covenant on the part of Target under this Agreement
         (collectively the 'Damages').

         5.       Pursuant to Section 7.4 of the Agreement, the second sentence
of Section 8.3 of the Agreement is hereby amended to read as follows:

         The Escrow Fund shall be allocated in equal proportions of Shares among
         the Former Target Stockholders (other than the Strategic Investors
         holding Class B Common Stock) on a pro-rata basis in accordance with
         the number of shares of Target Capital Stock held by the Former Target
         Stockholders (other than the Strategic Investors holding Class B Common
         Stock) at the Effective Time (excluding for purposes of this
         calculation any Dissenting Shares).

         6.       Pursuant to Section 7.4 of the Agreement, the last sentence of
Section 8.6(a)(B) of the Agreement is hereby amended to read as follows:

         All shares of Acquiror Common Stock subject to such claims shall remain
         in the Escrow Fund until Damages are actually incurred or paid or the
         Acquiror determines in its reasonably good faith judgment that no
         Damages will be required to be incurred or paid (in which event such
         shares shall be distributed to the Former Target Stockholders (other
         than the Strategic Investors holding Class B Common Stock) in
         accordance with Section 8.10 below).

         7.       Pursuant to Section 7.4 of the Agreement, Section 8.9(a) of
the Agreement is hereby amended in its entirety to read as follows:

         The parties will mutually agree on the identity of a Stockholder who
         will agree to be constituted and appointed as agent ('Stockholders'
         Agent') for and on behalf of the Target stockholders (other than the
         Strategic Investors holding Class B Common Stock) to give and receive
         notices and communications, to authorize delivery to Acquiror of the
         Acquiror Common Stock or other property from the Escrow Fund in
         satisfaction of claims by Acquiror, to object to such deliveries, to
         agree to, negotiate, enter into settlements and compromises of, and
         demand arbitration and comply with orders of courts and awards of
         arbitrators with respect to such claims, and to take all actions
         necessary or appropriate in the judgment of the Stockholders' Agent for
         the accomplishment of the foregoing. Such agency may be changed by the
         holders of a majority in interest of the Escrow Fund from time to time
         upon not less than 10 days' prior written notice to Acquiror. The
         Stockholder's Agent may resign upon thirty (30) days notice to the
         parties to this Agreement and the Former Target Stockholders (other
         than the Strategic Investors holding Class B Common Stock). No bond
         shall be required of the Stockholders' Agent, and the Stockholders'
         Agent shall receive no compensation for his services. Notices or
         communications to or from the Stockholders' Agent shall constitute
         notice to or from each of the Former Target Stockholders (other than
         the Strategic Investors holding Class B Common Stock).


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         8.       Pursuant to Section 7.4 of the Agreement, the last sentence of
Section 8.9(b) of the Agreement is hereby amended to read as follows:

         The Former Target Stockholders (other than the Strategic Investors
         holding Class B Common Stock) shall severally indemnify the
         Stockholders' Agent and hold him harmless against any loss, liability
         or expense incurred without gross negligence or bad faith on the part
         of the Stockholders' Agent and arising out of or in connection with the
         acceptance or administration of his duties hereunder.

         9.       Pursuant to Section 7.4 of the Agreement, Section 8.10 of the
Agreement is hereby amended in its entirety to read as follows:

         DISTRIBUTION UPON TERMINATION OF ESCROW PERIOD. Within five (5)
         business days following the Termination Date, the Escrow Agent shall
         deliver to the Former Target Stockholders (other than the Strategic
         Investors holding Class B Common Stock) all of the Escrow Shares in the
         Escrow Fund in excess of any amount of such Escrow Shares reasonably
         necessary to satisfy any unsatisfied or disputed claims for Damages
         specified in any Officer's Certificate delivered to the Escrow Agent on
         or before the Termination Date and any unsatisfied or disputed claims
         by the Stockholder's Agent under Section 8.9. As soon as all such
         claims have been resolved, the Escrow Agent shall deliver to the Former
         Target Stockholders (other than the Strategic Investors holding Class B
         Common Stock) all Escrow Shares remaining in the Escrow Fund and not
         required to satisfy such claims. Deliveries of Escrow Shares to the
         Former Target Stockholders (other than the Strategic Investors holding
         Class B Common Stock) pursuant to this section shall be made in
         proportion to the allocation set forth in Section 8.3.

         10.      Pursuant to Section 7.4 of the Agreement, the first sentence
of Section 8.11 of the Agreement is hereby amended to read as follows:

         A decision, act, consent or instruction of the Stockholders' Agent
         shall constitute a decision of all Former Target Stockholders (other
         than the Strategic Investors holding Class B Common Stock) for whom
         shares of Acquiror Common Stock otherwise issuable to them are
         deposited in the Escrow Fund and shall be final, binding and conclusive
         upon each such Former Target Stockholder (other than the Strategic
         Investors holding Class B Common Stock), and the Escrow Agent and
         Acquiror may rely upon any decision, act, consent or instruction of the
         Stockholders' Agent as being the decision, act, consent or instruction
         of each and every such Former Target Stockholder (other than the
         Strategic Investors holding Class B Common Stock).

         11.      Pursuant to Section 7.4 of the Agreement, the second sentence
of Section 8.12 of the Agreement is hereby amended to read as follows:

         In the event that the Stockholders' Agent has consented to any such
         settlement, neither the Former Target Stockholders nor the
         Stockholders' Agent shall have any power or authority to object under
         Section 8.7 or any other provision of this


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         Agreement to the amount of any claim by Acquiror against the Escrow
         Fund for indemnity with respect to such settlement.

         12.      Pursuant to Section 7.4 of the Agreement, the last sentence of
Section 8.12 of the Agreement is hereby amended to read as follows:

         The Stockholders' Agent or Acquiror, whichever is not controlling the
         defense of any matter, shall be entitled to participate in such
         defense, at the expense of Acquiror or the Former Target Stockholders
         (other than the Strategic Investors holding Class B Common Stock).

         13.      This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.

         14.      This Amendment when executed by Acquiror, Merger Sub and
Target as of the date hereof shall have been effected in accordance with Section
7.4 of the Agreement and accordingly shall be binding upon each such party.

         15.      This Amendment shall be governed by and construed in
accordance with the laws of the State of California without regard to applicable
principles of conflicts of law.

         16.      The Agreement and this Amendment and the documents referred to
therein and herein constitute the entire agreement between the parties hereto
pertaining to the subject matter thereof and hereof.


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         IN WITNESS WHEREOF, Acquiror, Merger Sub and Target have caused this
Agreement to be executed and delivered by their respective officers thereunto
duly authorized, all as of the date first written above.

                                         ARIBA, INC.


                                         By:
                                            ------------------------------------
                                         Print Name:
                                                    ----------------------------
                                         Title:
                                               ---------------------------------

                                         TRADEX TECHNOLOGIES, INC.


                                         By:
                                            ------------------------------------
                                              Daniel Aegerter
                                              President and Chief Executive
                                              Officer


                                         APACHE MERGER CORPORATION


                                         By:
                                            ------------------------------------
                                              Edward P. Kinsey
                                              President


                    SIGNATURE PAGE TO AMENDMENT NO. 1 OF THE
                      AGREEMENT AND PLAN OF REORGANIZATION