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:
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Print Name:
----------------------------
Title:
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TRADEX TECHNOLOGIES, INC.
By:
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Daniel Aegerter
President and Chief Executive
Officer
APACHE MERGER CORPORATION
By:
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Edward P. Kinsey
President
SIGNATURE PAGE TO AMENDMENT NO. 1 OF THE
AGREEMENT AND PLAN OF REORGANIZATION
Agreement and Plan of Reorganization (Amendment) - Ariba Inc. and Tradex Technologies Inc.
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