{"id":40903,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/class-b-common-stock-purchase-warrant-ariba-inc-and-eds-conext.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"class-b-common-stock-purchase-warrant-ariba-inc-and-eds-conext","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/class-b-common-stock-purchase-warrant-ariba-inc-and-eds-conext.html","title":{"rendered":"Class B Common Stock Purchase Warrant &#8211; Ariba Inc. and EDS CoNext Inc."},"content":{"rendered":"<pre>\nTHIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT\nBEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE\nTRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE\nREGISTRATION STATEMENT UNDER SAID ACT OR ON OPINION OF COUNSEL SATISFACTORY TO\nTHE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.\n\n                                   ARIBA, INC.\n\n                                     CLASS B\n\n                          COMMON STOCK PURCHASE WARRANT\n\n\n\n                                                       Mountain View, California\n                                                                 January 1, 2000\n\n         ARIBA, INC., a Delaware corporation (the 'Company'), for value\nreceived, hereby certifies that EDS CoNext, Inc. ('EDS CoNext'), or its\nregistered assigns, is entitled to purchase from the Company [*] duly\nauthorized, validly issued, fully paid and nonassessable shares (the 'Shares')\nof Common Stock of the Company, par value $.002 per share (the 'Common Stock'),\nat the Initial Warrant Price (as defined herein), all subject to the terms,\nconditions and adjustments set forth below in this Warrant.\n\n         This Warrant is one of the Common Stock Purchase Warrants (the\n'Warrants,' such term to include any warrants issued in substitution therefor)\noriginally issued in connection with the execution and delivery of the Alliance\nAgreement dated as of December 31, 1999 (as from time to time in effect, the\n'Alliance Agreement') between the Company and EDS CoNext. Certain capitalized\nterms used in this Warrant are defined in Section 13 hereof.\n\n1.  VESTING OF WARRANTS.\n\n         1.1 VESTING AMOUNTS AND DATES. The Revenue Targets, the maximum number\nof Shares as to which the Warrant may vest and become exercisable for each\nTarget Year, and the Vesting Date for such Shares are as follows:\n\n\n\n\n                                 Revenue            Maximum Number\n             Target Year         Target            of Shares Vested         Vesting Date\n             -----------         ------            ----------------         ------------\n                                                                   \n                    [*]           [*]                     [*]                     [*]\n                    [*]           [*]                     [*]                     [*]\n                    [*]           [*]                     [*]                     [*]\n                    [*]           [*]                     [*]                     [*]\n\n\nThis Warrant will vest and become exercisable on an annual basis as of the\nVesting Date and become exercisable for the following which occur during such\nTarget Year: (i) upon the Company receiving Revenues equal to [*] of the Revenue\nTarget for the corresponding Target \n\n\n* Represents confidential information for\n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n\n\nYear, this Warrant shall vest and become exercisable for [*] of the maximum \nnumber of Shares as to which the Warrant may vest and become exercisable for \nsuch Target Year as of the Vesting Date for such Target Year (based on the \npercentages set forth above), and (ii) in the event the Company receives \nRevenues in excess of [*] of such Revenue Target, this Warrant shall vest and \nbecome exercisable for [*] of the maximum number of Shares as to which the \nWarrant may vest and become exercisable for such Target Year (based on the \npercentages set forth above). The number of shares of Common Stock set forth \nabove shall be adjusted to the extent and in the same manner as the aggregate \nnumber of Shares is adjusted under the provisions of Sections 4 and 5 hereof.\n\n         1.2 [*]\n\n         1.3 [*]\n\n         1.4 NOTICE OF VESTING. Within sixty (60) days after the end of each of\nthe Target Years and the Cumulative Make-Up Period, EDS CoNext will prepare and\ndeliver to the Company (a) a revenue statement, prepared in accordance with\ngenerally accepted accounting principles, setting out the Revenue for the\nperiod, together with all appropriate supporting documentation and (b) a\ncomputation of the number of Shares that have vested and become exercisable as\nof the Vesting Date with respect to such period in accordance with the terms\nhereof (the 'Vesting Notice').\n\n         1.5 NOTICE OF OBJECTION. The Company shall have ten (10) Business Days\nfrom the Vesting Notice having been given in accordance with Section 15 (the\n'Objection Notice Period') to give EDS CoNext written notice that the Company\nobjects to all or a portion of the vesting of this Warrant as set forth in the\nVesting Notice (the 'Objection Notice'). Any portion of the vesting set forth in\nthe Vesting Notice as to which no objection is made shall be immediately vested.\nUpon the giving of the Objection Notice with regard to any portion of the\nvesting as to which an objection is made, the Company and EDS CoNext will use\nreasonable efforts to resolve any objections. If the Company and EDS CoNext are\nunable to resolve the dispute, the Company and EDS CoNext will jointly select an\naccounting firm of national standing to resolve the dispute. If the Company and\nEDS CoNext are unable to agree on the choice of such an accounting firm, they\nwill select an accounting firm of national standing by lot which has not\nprovided services to either the Company or EDS CoNext during the preceding\ntwenty-four (24) months (the 'Accountant') which shall determine the Revenue for\nthe period. The Accountant shall deliver to each of the Company and EDS CoNext\nits determination within ten (10) Business Days after being selected, and the\ndetermination of the Accountant shall be binding upon the Company and EDS\nCoNext. The expenses of the Accountant shall be borne equally by the Company and\nEDS CoNext. Any additional portion of the Warrant that shall vest as a result of\n\n\n* Represents confidential information for\n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                      -2-\n\n\nthe agreement of the Company and EDS CoNext or the determination of the\nAccountant shall be vested as of the Vesting Date for such shares upon such\nagreement or determination.\n\n         1.6 EXERCISE OF WARRANT FOLLOWING SALE OF THE COMPANY. In the event of\nthe consummation of any transaction which would result in the holders of Common\nStock or any shares of common stock received in exchange for the Common Stock\nreceiving cash or non-marketable securities, the Warrant, (i) as to that portion\nof the Warrant that is then exercisable, shall be exercised prior to the\ncommencement of such transaction, and (ii) [*]\n\n2. EXPIRATION OF WARRANT. This Warrant, as to each portion thereof that vests\nand becomes exercisable pursuant to Section 1, shall expire on the fifth\nanniversary date of the Vesting Date for such exercisable portion of the Warrant\n(the 'Expiration Date'). The Warrant shall cease to vest upon the termination of\nthe Alliance Agreement.\n\n3. EXERCISE OF WARRANT. This Warrant shall only be exercisable with respect to\nShares as to which the Warrant has vested and become exercisable pursuant to the\nterms of Sections 1 and 3 hereof.\n\n         3.1 MANNER OF EXERCISE. This Warrant may only be exercised by the\nholder hereof, in accordance with the terms and conditions hereof, in whole or\nin part with respect to any vested portion of the Warrant, into shares of Common\nStock, during normal business hours on any Business Day on or prior to the\nExpiration Date with respect to such vested portion of the Warrant, by surrender\nof this Warrant to the Company at its office maintained pursuant to Section\n12.2(a) hereof, accompanied by an exercise notice in substantially the form\nattached to this Warrant (or a reasonable facsimile thereof) duly executed by\nthe holder, and the holder shall thereupon be entitled to receive a number of\nduly authorized, validly issued, fully paid and nonassessable shares of Common\nStock (or Other Securities) equal to:\n\n                           (a)  an amount equal to:\n\n                                    (i) an amount equal to (x) the number of\n                           shares of Common Stock (or Other Securities)\n                           determined as provided in Sections 4 and 5 hereof\n                           which the holder would be entitled to receive upon\n                           exercise of this Warrant for the number of shares of\n                           Common Stock designated in the exercise notice\n                           MULTIPLIED BY (y) the Current Market Price of each\n                           share of Common Stock (or Other Securities) so\n                           receivable upon exercise\n\n                                    MINUS\n\n\n* Represents confidential information for\n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                      -3-\n\n\n                                    (ii) an amount equal to (x) the number of\n                           shares of Common Stock (without giving effect to any\n                           adjustment thereof) designated in the exercise notice\n                           MULTIPLIED BY (y) the Initial Warrant Price\n\n                           DIVIDED BY\n\n                           (b) the Current Market Price of each share of Common\n                  Stock (or Other Securities);\n\n         PROVIDED, HOWEVER, that the holder may not exercise this Warrant for\n         shares of Common Stock (or Other Securities) until [*]\n\n         3.2 WHEN EXERCISE EFFECTIVE. Each exercise of this Warrant shall be\ndeemed to have been effected immediately prior to the close of business on the\nBusiness Day on which this Warrant shall have been surrendered to the Company as\nprovided in Section 3.1 hereof, and at such time the Person or Persons in whose\nname or names any certificate or certificates for shares of Common Stock (or\nOther Securities) shall be issuable upon exercise as provided in Section 3.3\nhereof shall be deemed to have become the holder or holders of record thereof.\n\n         3.3 DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable after\neach exercise of this Warrant, in whole or in part, and in any event within\nfifteen (15) Business Days thereafter, the Company at its expense (including the\npayment by it of any applicable issue taxes) will cause to be issued in the name\nof and delivered to the holder hereof or, subject to Section 10 hereof, as the\nholder (upon payment by the holder of any applicable transfer taxes) may direct:\n\n                           (a) a certificate or certificates (with appropriate\n                  restrictive legends, as applicable) for the number of duly\n                  authorized, validly issued, fully paid and nonassessable\n                  shares of Common Stock (or Other Securities) to which the\n                  holder shall be entitled upon exercise plus, in lieu of any\n                  fractional share to which the holder would otherwise be\n                  entitled, cash in an amount equal to the same fraction of the\n                  Market Price per share on the Business Day immediately prior\n                  to the date of exercise; and\n\n                           (b) in case exercise is in part only, a new Warrant\n                  of like tenor, dated the date hereof and calling in the\n                  aggregate on the face thereof for the number of shares of\n                  Common Stock equal (without giving effect to any adjustment\n                  thereof) to the number of shares called for on the face of\n                  this Warrant minus the number of shares designated by the\n                  holder upon exercise as provided in Section 3.1 hereof.\n\n         3.4 COMPANY TO REAFFIRM OBLIGATIONS. The Company will, at the time of\neach exercise of this Warrant, upon the written request of the holder hereof,\nacknowledge in writing its continuing obligation to afford to the holder all\nrights (including without limitation any rights to registration, pursuant to the\nRegistration Agreement referred to in Section 9 hereof, of the shares of Common\nStock or Other Securities issued upon exercise) to which the holder shall\ncontinue to be entitled after exercise in accordance with the terms of this\nWarrant; PROVIDED, HOWEVER, that if \n\n\n* Represents confidential information for\n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                      -4-\n\n\nthe holder of this Warrant shall fail to make a request, the failure shall \nnot affect the continuing obligation of the Company to afford the rights to \nsuch holder.\n\n4. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.\n\n         4.1 GENERAL; NUMBER OF SHARES; WARRANT PRICE. The number of shares of\nCommon Stock which the holder of this Warrant shall be entitled to receive upon\neach-exercise hereof shall be determined by multiplying the number of shares of\nCommon Stock which would otherwise (but for the provisions of this Section 4) be\nissuable upon exercise, as designated by the holder hereof pursuant to Section\n3.1 hereof, by the fraction of which (a) the numerator is the Initial Warrant\nPrice and (b) the denominator is the Warrant Price in effect on the date of such\nexercise. The 'Warrant Price' shall initially be the Initial Warrant Price,\nshall be adjusted and re-adjusted from time to time as provided in this Section\n4 and, as so adjusted or re-adjusted, shall remain in effect until a further\nadjustment or re-adjustment thereof is required by this Section 4.\n\n         4.2 TREATMENT OF STOCK DIVIDENDS, STOCK SPLITS, ETC. In case the\nCompany at any time or from time to time after the date hereof shall declare or\npay any dividend on the Common Stock payable in Common Stock, or shall effect a\nsubdivision of the outstanding shares of Common Stock into a greater number of\nshares of Common Stock (by reclassification or otherwise than by payment of a\ndividend in Common Stock), then, and in each case, subject to Section 4.4\nhereof, the Warrant Price shall be reduced, concurrently with the dividend or\nsubdivision, to a price determined by multiplying the Warrant Price by a\nfraction:\n\n                           (a) the numerator of which shall be the number of\n                  shares of Common Stock outstanding immediately prior to the\n                  dividend or subdivision; and\n\n                           (b) the denominator of which shall be the number of\n                  shares of Common Stock outstanding immediately after the\n                  dividend or subdivision.\n\n         Additional shares of Common Stock shall be deemed to have been issued\nand to be outstanding (a) in the case of any dividend, immediately after the\nclose of business on the record date for the determination of holders of any\nclass of securities entitled to receive the dividend, or (b) in the case of any\nsubdivision, at the close of business on the day immediately prior to the day\nupon which the corporate action becomes effective. Additional shares of Common\nStock deemed to have been issued pursuant to this Section 4.2 shall be deemed to\nhave been issued for no consideration.\n\n         4.3 ADJUSTMENTS FOR COMBINATIONS, ETC. In case the outstanding shares\nof Common Stock shall be combined or consolidated, by reclassification or\notherwise, into a lesser number of shares of Common Stock, the Warrant Price in\neffect immediately prior to the combination or consolidation shall, concurrently\nwith the effectiveness of such combination or consolidation, be proportionately\nincreased. Adjustment under this Section 4.3 shall become effective at the close\nof business on the day immediately prior to the day upon which the corporate\naction becomes effective.\n\n\n* Represents confidential information for\n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                      -5-\n\n\n         4.4 MINIMUM ADJUSTMENT OF WARRANT PRICE. If the amount of any\nadjustment of the Warrant Price required pursuant to this Section 4 would be\nless than one-tenth (1\/10) of one percent (1%) of the Warrant Price in effect at\nthe time of the adjustment is otherwise so required to be made, the amount shall\nbe carried forward and adjustment with respect thereto made at the time of and\ntogether with any subsequent adjustment which, together with the amount and any\nother amount or amounts so carried forward, shall aggregate at least one tenth\n(1\/10) of one percent (1%) of the Warrant Price.\n\n5. ADJUSTMENTS FOR CONSOLIDATION, MERGER, SALE OF ASSETS, REORGANIZATION, ETC.\nIn case the Company after the date hereof (a) shall consolidate with or merge\ninto any other Person and shall not be the continuing or surviving corporation\nfollowing the consolidation or merger, or (b) shall permit any other Person to\nconsolidate with or merge into the Company and the Company shall be the\ncontinuing or surviving Person but, in connection with the consolidation or\nmerger, the Common Stock or Other Securities shall be changed into or exchanged\nfor stock or other securities of any other Person or cash or any other property,\nor (c) shall transfer all or substantially all of its properties or assets to\nany other Person, or (d) shall effect a capital reorganization or\nreclassification of the Common Stock or Other Securities then, and in the case\nof each such transaction, proper provision shall be made so that, upon the basis\nand the terms and in the manner provided in this Warrant, the holder of this\nWarrant, upon the exercise hereof at any time after the consummation of the\ntransaction, shall be entitled to receive (at the aggregate Warrant Price in\neffect at the time of such consummation for all Common Stock or Other Securities\nissuable upon exercise immediately prior to the consummation), in lieu of the\nCommon Stock or Other Securities issuable upon exercise prior to the\nconsummation, the greatest amount of securities, cash or other property to which\nthe holder would actually have been entitled as a stockholder upon such\nconsummation if the holder had exercised the rights represented by this Warrant\n(to the extent then exercisable pursuant to Section 1) immediately prior\nthereto, subject to adjustments (subsequent to the consummation) as nearly\nequivalent as possible to the adjustments provided for in Sections 4 and 5\nhereof.\n\n6. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its\ncertificate of incorporation or through any consolidation, merger,\nreorganization, transfer of assets, dissolution, issue or sale of securities or\nany other voluntary action, avoid or seek to avoid the observance or performance\nof any of the terms of this Warrant, but will at all times in good faith assist\nin the carrying out of all of the terms and in the taking of all actions\nnecessary or appropriate in order to protect the rights of the holder of this\nWarrant. Without limiting the generality of the foregoing, the Company (a) will\nnot permit the par value of any shares of stock receivable upon the exercise of\nthis Warrant to exceed the amount payable therefor upon exercise, (b) will take\nall actions necessary or appropriate in order that the Company may validly and\nlegally issue fully paid and nonassessable shares of stock on the exercise of\nthe Warrant and (c) will not take any action which results in any adjustment of\nthe Warrant Price if the total number of shares of Common Stock (or Other\nSecurities) issuable after the action upon the exercise of the Warrant would\nexceed the total number of shares of Common Stock (or Other Securities) then\nauthorized by the Company's certificate of incorporation and available for the\npurpose of issuance upon exercise.\n\n\n* Represents confidential information for\n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                      -6-\n\n\n\n7. CHIEF FINANCIAL OFFICER'S REPORT AS TO ADJUSTMENTS. In the case of any \nadjustment or re-adjustment in the shares of Common Stock (or Other \nSecurities) issuable upon the exercise of this Warrant, the Company at its \nexpense will promptly compute the adjustment or re-adjustment in accordance \nwith the terms of this Warrant and, if requested by the holder, cause its \nChief Financial Officer to certify the computation (other than any \ncomputation of the fair value of property as determined in good faith by the \nBoard of Directors of the Company) and prepare a report setting forth the \nadjustment or re-adjustment and showing in reasonable detail the method of \ncalculation thereof and the facts upon which the adjustment or re-adjustment \nis based, including a statement of (a) the number of shares of Common Stock \noutstanding or deemed to be outstanding and (b) the Warrant Price in effect \nimmediately prior to the deemed issuance or sale and as adjusted and \nre-adjusted (if required by Section 4 hereof) on account thereof. The Company \nwill forthwith mail a copy of each report to each holder of a Warrant and \nwill, upon the written request at any time of any holder of a Warrant, \nfurnish to the holder a like report setting forth the Warrant Price at the \ntime in effect and showing in reasonable detail how it was calculated. The \nCompany will also keep copies of all reports at its office maintained \npursuant to Section 12.2(a) hereof and will cause them to be available for \ninspection at the office during normal business hours upon reasonable notice \nby any holder of a Warrant or any prospective purchaser of a Warrant \ndesignated by the holder thereof.\n\n8. REPRESENTATION AS TO NUMBER OF OUTSTANDING SHARES. The Company represents \nand warrants to EDS CoNext that, as of December 7, 1999, there were issued \nand outstanding 108,847,771 shares of Common Stock (after giving effect to \nthe stock dividend paid on December 17, 1999), including the number of shares \nof Common Stock issuable upon the exercise of all outstanding options and \nwarrants, calculated using the treasury stock method. Other than the stock \ndividend paid on December 17, 1999, from December 7, 1999 until the date \nhereof, no event has occurred which would have resulted in any adjustment \npursuant to Sections 4 or 5 hereof.\n\n9. REGISTRATION OF COMMON STOCK. The shares of Common Stock (and Other \nSecurities) issuable upon exercise of this Warrant shall constitute \nRegistrable Securities (as such term is defined in the Registration \nAgreement). The original holder of this Warrant, and any valid transferees \nthereof pursuant to the Registration Agreement, shall be entitled to all of \nthe benefits afforded to a holder of any Registrable Securities under the \nRegistration Agreement and such holder, by its acceptance of this Warrant, \nagrees to be bound by and to comply with the terms and conditions of the \nRegistration Agreement applicable to the holder as a holder of Registrable \nSecurities. At any time when the Common Stock is listed on any national \nsecurities exchange, the Company will, at its expense, obtain promptly and \nmaintain the approval for listing on each exchange, upon official notice of \nissuance, any shares of Common Stock issued upon exercise of the then \noutstanding Warrants and maintain the listing of the shares after their \nissuance; and the Company will also list on such national securities \nexchange, will register under the Exchange Act and will maintain the listing \nof any Other Securities that at any time are issued upon exercise of the \nWarrants, if and at the time that any securities of the same class shall be \nlisted on a national securities exchange by the Company.\n\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                     -7-\n\n\n\n10.  RESTRICTIONS ON TRANSFER.\n\n         10.1 RESTRICTIVE LEGENDS. This Warrant and each Warrant issued upon \ntransfer or in substitution for this Warrant pursuant to Section 12, each \ncertificate for Common Stock (or Other Securities) issued upon the exercise \nof any Warrant and each certificate issued upon the transfer of any such \nCommon Stock (or Other Securities) shall be transferable only upon \nsatisfaction of the conditions specified in this Section 10 and Section 12.4. \nEach of the foregoing securities shall be stamped or otherwise imprinted with \na legend reflecting the restrictions on transfer set forth in Sections 10 and \n12.4 hereof and any restrictions required under the Securities Act.\n\n         10.2 NOTICE OF PROPOSED TRANSFER, OPINION OF COUNSEL. Prior to any \ntransfer of any Restricted Securities which are not registered under an \neffective registration statement under the Securities Act, the holder thereof \nwill give written notice to the Company of the holder's intention to effect a \ntransfer and to comply in all other respects with this Section 10.2. Each \nnotice (a) shall describe the manner and circumstances of the proposed \ntransfer, and (b) shall designate counsel for the holder giving the notice \n(who may be in-house counsel for the holder). The holder giving notice will \nsubmit a copy thereof to the counsel designated in the notice. The following \nprovisions shall then apply:\n\n                                    (i) If in the opinion of counsel for the\n                           holder reasonably satisfactory to the Company the\n                           proposed transfer may be effected without\n                           registration of Restricted Securities under the\n                           Securities Act (which opinion shall state the basis\n                           of the legal conclusions reached therein), the holder\n                           shall thereupon be entitled to transfer the\n                           Restricted Securities in accordance with the terms of\n                           the notice delivered by the holder to the Company.\n                           Each certificate representing the Restricted\n                           Securities issued upon or in connection with any\n                           transfer shall bear the restrictive legends required\n                           by Section 10.1 hereof.\n\n                                    (ii) If the opinion called for in (i) above\n                           is not delivered, the holder shall not be entitled to\n                           transfer the Restricted Securities until either (x)\n                           receipt by the Company of a further notice from such\n                           holder pursuant to the foregoing provisions of this\n                           Section 10.2 and fulfillment of the provisions of\n                           clause (i) above or (y) such Restricted Securities\n                           have been effectively registered under the Securities\n                           Act.\n\n         Notwithstanding any other provision of this Section 10, no opinion \nof counsel shall be necessary for a transfer of Restricted Securities by the \nholder thereof to an Affiliate of a holder, if the transferee agrees in \nwriting to be subject to the terms hereof to the same extent as if the \ntransferee were the original Purchaser hereof and such transfer is permitted \nunder applicable securities laws.\n\n         10.3 TERMINATION OF RESTRICTIONS. The restrictions imposed by this \nSection 10 upon the transferability of Restricted Securities shall cease and \nterminate as to any particular Restricted Securities (a) which Restricted \nSecurities shall have been effectively registered under the \n\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                      -8-\n\n\n\nSecurities Act, or (b) when, in the opinions of both counsel for the holder \nthereof and counsel for the Company, such restrictions are no longer required \nin order to insure compliance with the Securities Act or Section 12 hereof. \nWhenever such restrictions shall cease and terminate as to any Restricted \nSecurities, the holder thereof shall be entitled to receive from the Company, \nwithout expense (other than applicable transfer taxes, if any), new \nsecurities of like tenor not bearing the applicable legends required by \nSection 10.1 hereof.\n\n11. RESERVATION OF STOCK, ETC. The Company will at all times reserve and keep \navailable, solely for issuance and delivery upon exercise of the Warrant, the \nnumber of shares of Common Stock of each class (or Other Securities) from \ntime to time issuable upon exercise of the Warrant at the time outstanding. \nAll shares of Common Stock (or Other Securities) issuable upon exercise of \nthe Warrant shall be duly authorized and, when issued upon exercise, shall be \nvalidly issued and, in the case of shares, fully paid and nonassessable.\n\n12.  OWNERSHIP, TRANSFER AND SUBSTITUTION OF WARRANT.\n\n         12.1 OWNERSHIP OF WARRANT. The Company may treat the person in whose \nname this Warrant is registered on the register kept at the office of the \nCompany maintained pursuant to Section 12.2(a) hereof as the owner and holder \nthereof for all purposes, notwithstanding any notice to the contrary, except \nthat, if and when any Warrant is properly assigned in blank, the Company may \n(but shall not be obligated to) treat the bearer thereof as the owner of such \nWarrant for all purposes, notwithstanding any notice to the contrary. Subject \nto Section 10 hereof, this Warrant, if properly assigned, may be exercised by \na new holder without a new Warrant first having been issued.\n\n         12.2  OFFICE; TRANSFER AND EXCHANGE OF WARRANT.\n\n                           (a) The Company will maintain an office (which may be\n                  an agency maintained at a bank) in Mountain View, California\n                  where notices, presentations and demands in respect of this\n                  Warrant may be made upon it. The office shall be maintained at\n                  1565 Charleston Road, Mountain View, California 94043 until\n                  the Company notifies the holders of the Warrant of any change\n                  of location of the office.\n\n                           (b) The Company shall cause to be kept at its office\n                  maintained pursuant to Section 12.2(a) hereof a register for\n                  the registration and transfer of the Warrant. The names and\n                  addresses of holders of the Warrant, the transfers thereof and\n                  the names and addresses of transferees of the Warrant shall be\n                  registered in such register. The Person in whose name any\n                  Warrant shall be so registered shall be deemed and treated as\n                  the owner and holder thereof for all purposes of this Warrant,\n                  and the Company shall not be affected by any notice or\n                  knowledge to the contrary.\n\n                           (c) Upon the surrender of this Warrant, properly\n                  endorsed, for registration of transfer or for exchange at the\n                  office of the Company maintained pursuant to Section 12.2(a)\n                  hereof, the Company at its expense will (subject to compliance\n\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                      -9-\n\n\n\n                  with Section 10 hereof, if applicable) execute and deliver to\n                  or upon the order of the holder thereof a new Warrant of like\n                  tenor, in the name of such holder or as such holder (upon\n                  payment by such holder of any applicable transfer taxes) may\n                  direct, calling in the aggregate on the face thereof for the\n                  number of shares of Common Stock called for on the face of the\n                  Warrant so surrendered.\n\n         12.3 REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably \nsatisfactory to the Company of the loss, theft, destruction or mutilation of \nthe Warrant and, in the case of any such loss, theft or destruction of the \nWarrant, upon delivery of indemnity reasonably satisfactory to the Company in \nform and amount or, in the case of any mutilation, upon surrender of the \nWarrant for cancellation at the office of the Company maintained pursuant to \nSection 12.2(a) hereof, the Company at its expense will execute and deliver, \nin lieu thereof, a new Warrant of like tenor and dated the date hereof.\n\n         12.4 RESTRICTIONS ON TRANSFER. In addition to the restrictions on \ntransfer set forth in Section 10 hereof, neither the Warrant nor any portion \nof the Warrant may be transferred without the consent of the Company unless \nthe Warrant has vested and become exercisable in accordance with Section 1 \nhereof as to that portion of the Warrant that is to be transferred.\n\n13. DEFINITIONS. As used herein, unless the context otherwise requires, the \nfollowing terms have the following respective meanings:\n\n         ACCOUNTANT:  As defined in Section 1.4 hereof.\n\n         ACTUAL SPEND:  [*]\n\n         AFFILIATE:  Any Person holding more than 50% of the equity of an \nentity or any majority-owned subsidiary of such entity.\n\n         ALLIANCE AGREEMENT:  As defined in the introduction to this Warrant.\n\n         ARIBA NETWORK:  The business-to-business e-commerce network operated \nby The Company that enables buyers and suppliers to automate transactions on \nthe Internet\n\n         BUSINESS DAY: Any day other than a Saturday or a Sunday or a day on \nwhich commercial banking institutions in New York, New York are authorized by \nlaw to be closed. Any reference to 'days' (unless Business Days are \nspecified) shall mean calendar days.\n\n         COMMISSION:  The Securities and Exchange Commission or any other \nfederal agency at the time administering the Securities Act.\n\n         COMMON STOCK: As defined in the introduction to this Warrant and \nincluding any stock into which the Common Stock shall have been changed or \nany stock resulting from any reclassification of the Common Stock, and all \nother stock of any class or classes (however \n\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                     -10-\n\n\n\ndesignated) of the Company the holders of which have the right, without \nlimitation as to amount, either to all, or to a share of the balance of, \ncurrent dividends and liquidating dividends after the payment of dividends \nand distributions on any shares entitled to preference.\n\n         COMPANY: As defined in the introduction to this Warrant and \nincluding any corporation which shall succeed to or assume the obligations of \nthe Company hereunder in compliance with Section 5 hereof.\n\n         CONSORTIUM: A group of entities organized by EDS CoNext that desire \nto pool their purchasing for certain products and services, whether existing \non the date hereof or subsequently organized.\n\n         [*]  As defined in Section 1.3 hereof.\n\n         CURRENT MARKET PRICE: On any date specified herein, the average \ndaily Market Price during the period of the most recent ten (10) days, ending \non and including such date, on which the national securities exchanges or the \nnational market system of the NASD were open for trading, except that if no \nclass of the Common Stock is then listed or admitted to trading on a national \nsecurities exchange or the national market system of the NASD, the Current \nMarket Price shall be the Market Price on such date.\n\n         EDS CONEXT:  EDS Conext, Inc., its subsidiaries and assigns.\n\n         EDS CONEXT FRAME AGREEMENTS: The agreements entered into between EDS \nCoNext and suppliers pursuant to which such suppliers agree to provide goods \nand\/or services to one or more Consortia.\n\n         EXCHANGE ACT: The Securities Exchange Act of 1934, or any similar \nfederal statute, and the rules and regulations of the Commission thereunder, \nall as the same shall be in effect at the time.\n\n         EXPIRATION DATE:  As defined in Section 2 of this Warrant.\n\n         INITIAL WARRANT PRICE: As to each portion of this Warrant that vests \nand becomes exercisable, [*] adjusted for any stock splits, stock dividends \nor other distributions retroactively back to the date of issuance of this \nWarrant.\n\n         LARGE PARTICIPANT: A Participant with annual revenues, including \nrevenues of the consolidated entities for which it is performing purchasing \n(determined in accordance with generally accepted accounting principles for \nsuch entity's most recent fiscal year), between [*] and [*]. Revenues of \nconsolidated entities shall not be included in the annual revenues of a \nParticipant to the extent that such revenues are included in the annual \nrevenues of any other Participant.\n\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                     -11-\n\n\n\n         MARKET PRICE: On any date specified herein, the amount per share of \nCommon Stock equal to (a) the closing price of the Common Stock on such date \nor, if no such sale takes place on such date, the average of the closing bid \nand asked prices thereof on such date, in each case as officially reported on \nthe principal national securities exchange on which the Common Stock is then \nlisted or admitted to trading, or (b) if the Common Stock is not then listed \nor admitted to trading on a national securities exchange but is designated as \na national market system security by the NASD, the last closing price of the \nCommon Stock on such date, (c) if there shall have been no trading on such \ndate or if the Common Stock is not so designated, the average of the closing \nbid and asked prices of the Common Stock on such date as shown by the NASD \nautomated quotation system or (d) if the Common Stock is not then listed or \nadmitted to trading on any national exchange or the national market system of \nthe NASD, the fair value thereof determined in good faith by the Board of \nDirectors of the Company as of a date which is within fifteen (15) days of \nthe date as of which the determination is to be made.\n\n         MEDIUM PARTICIPANT: A Participant with annual revenues, including \nrevenues of the consolidated entities for which it is performing purchasing \n(determined in accordance with generally accepted accounting principles for \nsuch entity's most recent fiscal year), of less than [*]. Revenues of \nconsolidated entities shall not be included in the annual revenues of a \nParticipant to the extent that such revenues are included in the annual \nrevenues of any other Participant.\n\n         NASD:  The National Association of Securities Dealers, Inc.\n\n         OBJECTION NOTICE:  As defined in Section 1.5 hereof.\n\n         OBJECTION NOTICE PERIOD:  As defined in Section 1.5 hereof.\n\n         OTHER SECURITIES: Any stock (other than Common Stock) and other \nsecurities of the Company or any other person (corporate or otherwise) which \nthe holders of the Warrants at any time shall be entitled to receive, or \nshall have received, upon the exercise of the Warrants, in lieu of or in \naddition to Common Stock, or which at any time shall be issuable or shall \nhave been issued in exchange for or in replacement of Common Stock or Other \nSecurities pursuant to Section 5 hereof or otherwise.\n\n         PARTICIPANT: An entity that [*]\n\n         PERSON:  A corporation, an association, a partnership, an \norganization, a business, an individual, a government or political \nsubdivision thereof or a governmental agency.\n\n         REGISTRATION AGREEMENT: The Registration Rights Agreement dated as \nof December 31, 1999, between the Company and EDS CoNext, as from time to \ntime in effect.\n\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                     -12-\n\n\n\n\n         RESTRICTED SECURITIES: All of the following: (a) the Warrant and (b) \nany shares of Common Stock (or Other Securities) which have been issued upon \nthe exercise of the Warrant and which are evidenced by a certificate or \ncertificates bearing the applicable legend or legends referred to in Section \n10.1.\n\n         REVENUE TARGET:  The respective level of Revenues with respect to a \nTarget Year as set forth in Section 1.1.\n\n         REVENUES: The aggregate amount of fee revenue described below that \nare received by the Company in accordance with the Alliance Agreement:\n\n                                      [*]\n\n                                      [*]\n\n                                      [*]\n\n                                      [*]\n\n                                      [*]\n\n                                      [*]\n\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                     -13-\n\n\n\n                                      [*]\n\n         SECURITIES ACT:  The Securities Act of 1933, or any similar federal \nstatute, and the rules and regulations of the Commission thereunder, all as \nthe same shall be in effect at the time.\n\n         TARGET YEAR: The [*] twelve-month periods commencing on January 1, \n2000 and ending on each of the [*] subsequent anniversaries of such date.\n\n         VERY LARGE PARTICIPANT: A Participant with annual revenues, \nincluding revenues of the consolidated entities for which it is performing \npurchasing (as determined in accordance with generally accepted accounting \nprinciples for such entity's most recent fiscal year), in excess of [*]. \nRevenues of consolidated entities shall not be included in the annual \nrevenues of a Participant to the extent that such revenues are included in \nthe annual revenues of any other Participant.\n\n         VESTING DATE:  The respective date of vesting with respect to a \nTarget Year as set forth in Section 1.1.\n\n         VESTING NOTICE:  As defined in Section 1.4 hereof.\n\n         WARRANT PRICE:  As defined in Section 4.1 hereof.\n\n         WARRANTS:  As defined in the introduction to this Warrant.\n\n14. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in this \nWarrant shall be construed as conferring upon the holder hereof any rights as \na stockholder of the Company or as imposing any obligation on the holder to \npurchase any securities or as imposing any liabilities on such holder as a \nstockholder of the Company, whether such obligation or liabilities are \nasserted by the Company or by creditors of the Company.\n\n15. NOTICES. Any notice or other communication in connection with this \nWarrant shall be deemed to be given if in writing (or in the form of a \nfacsimile) addressed as hereinafter provided and actually delivered at said \naddress: (a) if to any holder of any Warrant, at the registered address of \nsuch holder as set forth in the register kept at the office of the Company \nmaintained pursuant to Section 12.2(a) hereof, or (b) if to the Company, to \nthe attention of its Chief Financial Officer at its office maintained \npursuant to Section 12.2(a) hereof; PROVIDED, HOWEVER, that the exercise of \nany Warrant shall be effective in the manner provided in Section 3 hereof.\n\n16. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived, \ndischarged or terminated only by an instrument in writing signed by the party \nagainst which \n\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                     -14-\n\n\n\nenforcement of the change, waiver, discharge or termination is sought. This \nWarrant shall be construed and enforced in accordance with and governed by \nthe laws of the State of Delaware. The section headings in this Warrant are \nfor purposes of convenience only and shall not constitute a part hereof.\n\n                         *      *      *      *      *\n                           (Signature page follows)\n\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n                                     -15-\n\n\n\n\n\n\n         IN WITNESS WHEREOF, the Company has caused this Class B Common Stock \nPurchase Warrant to be duly executed as of the date first above written\n\n                                             ARIBA, INC.\n\n\n                                             By:     \/s\/ Edward P. Kinsey\n                                                --------------------------------\n\n                                             Title:      EVP, CFO\n                                                   -----------------------------\n\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n\n\n\n\n                             FORM OF EXERCISE NOTICE\n\n                [To be executed only upon conversion of Warrant]\n\nTo [ISSUER]\n\n         The undersigned registered holder of the within Warrant hereby \nirrevocably converts the Warrant pursuant to Section 3.1 of the Warrant with \nrespect to __________(1) shares of the Common Stock which the holder would be \nentitled to receive upon the cash exercise hereof, and requests that the \ncertificates for the shares be issued in the name of, and delivered to, whose \naddress is\n\nDated:                             _____________________________________________\n                                   (Signature must conform in all respects to\n                                   name of holder as specified on the face of\n                                   Warrant)\n\n                                   _____________________________________________\n                                   (Street Address)\n\n                                   _____________________________________________\n                                   (City)        (State)        (Zip Code)\n\n\n________________________\n(1) Insert here the number of shares called for on the face of this Warrant \n(or, in the case of a partial exercise, the portion thereof as to which this \nWarrant is being exercised), in either case without making any adjustment of \nshares of Common Stock or any other stock or other securities or property or \ncash which, pursuant to the adjustment provisions of this Warrant, may be \ndelivered upon exercise. In the case of a partial exercise, a new Warrant or \nWarrants will be issued and delivered, representing the unconverted portion \nof the Warrant, to the holder surrendering the Warrant.\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n\n\n\n\n                               FORM OF ASSIGNMENT\n\n                 [To be executed only upon transfer of Warrant]\n\n         For value received, the undersigned registered holder of the within \nWarrant hereby sells, assigns and transfers unto __________ the right \nrepresented by the Warrant to purchase __________(1) shares of Common Stock \nof [ISSUER] to which the Warrant relates, and appoints __________ Attorney to \nmake such transfer on the books of [ISSUER] maintained for the purpose, with \nfull power of substitution in the premises.\n\nDated:                                  ________________________________________\n                                        (Signature must conform in all respects\n                                        to name of holder as specified on the\n                                        face of Warrant)\n\n                                        ________________________________________\n                                        (Street Address)\n\n                                        ________________________________________\n                                        (City)        (State)      (Zip Code)\nSigned in the presence of:\n\n\n                                        ________________________________________\n                                        (Signature of Transferee)\n\n                                        ________________________________________\n                                        (Street Address)\n\n                                        ________________________________________\n                                        (City)        (State)      (Zip Code)\nSigned in the presence of:\n\n\n\n\n\n________________________\n(1) Insert here the number of shares called for on the face of this Warrant \n(or, in the case of a partial exercise, the portion thereof as to which this \nWarrant is being exercised), in either case without making any adjustment of \nshares of Common Stock or any other stock or other securities or property or \ncash which, pursuant to the adjustment provisions of this Warrant, may be \ndelivered upon exercise. In the case of a partial exercise, a new Warrant or \nWarrants will be issued and delivered, representing the unexercised portion \nof the Warrant, to the holder surrendering the Warrant.\n\n* Represents confidential information for \n  which Ariba, Incorporated is seeking confidential\n  treatment with the Securities and Exchange Commission.\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6749,7432],"corporate_contracts_industries":[9510,9513],"corporate_contracts_types":[9560,9572],"class_list":["post-40903","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-ariba-inc","corporate_contracts_companies-electronic-data-systems-corp","corporate_contracts_industries-technology__programming","corporate_contracts_industries-technology__software","corporate_contracts_types-finance","corporate_contracts_types-finance__warrant"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40903","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40903"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40903"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40903"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40903"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}