{"id":40906,"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-d-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-d-common-stock-purchase-warrant-ariba-inc-and-eds-conext","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/class-d-common-stock-purchase-warrant-ariba-inc-and-eds-conext.html","title":{"rendered":"Class D 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 D\n\n                          COMMON STOCK PURCHASE WARRANT\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 the number of 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'),\nas herein set forth, at the purchase price per share of [*] (the 'Initial\nWarrant Price'), all subject to the terms, conditions and adjustments set forth\nbelow 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.  NUMBER OF SHARES.\n\n         1.1 VESTING EVENT. This Warrant shall vest and become exercisable upon\nthe Company receiving prior to the Vesting Date [*]\n\n         1.2 NUMBER OF SHARES. The number of Shares that shall vest and become\nexercisable pursuant to this Warrant shall be equal to [*] The maximum number \nof shares of Common Stock issuable under this Warrant shall not exceed \n[*] The number of shares of Common Stock determined as set forth in \nthis Section 1.2 and the maximum number of shares of Common Stock issuable \nunder this Warrant shall be adjusted as set forth in the provisions of \nSections 4 and 5 hereof.\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         1.3 NOTICE OF NUMBER OF SHARES. Within sixty (60) days after the\nVesting Date, EDS CoNext will prepare and deliver to the Company (a) a revenue\nstatement, prepared in accordance with generally accepted accounting principles,\nsetting out the Class B and the Class C Revenues prior to the Vesting Date,\ntogether with all supporting documentation and (b) a computation of the number\nof shares of Common Stock that may be acquired upon exercise of this Warrant in\naccordance with the terms hereof (the 'Vesting Notice').\n\n         1.4 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\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         1.5 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 shall expire on December 31, 2008 (the\n'Expiration Date').\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\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 this Warrant, into shares of\nCommon Stock, during normal business hours on any Business Day on or prior to\nthe Expiration Date, by surrender of this Warrant to the Company at its office\nmaintained pursuant to Section 12.2(a) hereof, accompanied by an exercise notice\nin substantially the form attached to this Warrant (or a reasonable facsimile\nthereof) duly executed by the holder, and the holder shall thereupon be entitled\nto receive a number of duly authorized, validly issued, fully paid and\nnonassessable shares of Common Stock (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                                    (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 \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\nCompany at its expense (including the payment by it of any applicable issue \ntaxes) will cause to be issued in the name of and delivered to the holder \nhereof or, subject to Section 10 hereof, as the holder (upon payment by the \nholder 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 the holder of this Warrant shall fail to\nmake a request, the failure shall not affect the continuing obligation of the\nCompany to afford the rights to such 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 Vesting Date 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, \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 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         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 \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\nall Common Stock or Other Securities issuable upon exercise immediately prior \nto the comsummation), in lieu of the Common Stock or Other Securities \nissuable upon exercise prior to the comsummation, the greatest amount of \nsecurities, cash or other property to which the holder would actually have \nbeen entitled as a stockholder upon such consummation if the holder had \nexercised the rights represented by this Warrant (to the extent then \nexercisable pursuant to Section 1) immediately prior thereto, subject to \nadjustments (subsequent to the consummation) as nearly equivalent as possible \nto the adjustments provided for in Sections 4 and 5 hereof.\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 \nor any other voluntary action, avoid or seek to avoid the observance or \nperformance of any of the terms of this Warrant, but will at all times in \ngood faith assist in the carrying out of all of the terms and in the taking \nof all actions necessary or appropriate in order to protect the rights of the \nholder of this Warrant. Without limiting the generality of the foregoing, the \nCompany (a) will not permit the par value of any shares of stock receivable \nupon the exercise of this Warrant to exceed the amount payable therefor upon \nexercise, (b) will take all actions necessary or appropriate in order that \nthe Company may validly and legally issue fully paid and nonassessable shares \nof stock on the exercise of the Warrant and (c) will not take any action \nwhich results in any adjustment of the Warrant Price if the total number of \nshares of Common Stock (or Other Securities) issuable after the action upon \nthe exercise of the Warrant would exceed the total number of shares of Common \nStock (or Other Securities) then authorized by the Company's certificate of \nincorporation and available for the purpose of issuance upon exercise.\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\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\noutstanding 108,847,771 shares of Common Stock (after giving effect to the \nstock dividend paid on December 17, 1999), including the number of shares of \nCommon 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\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 \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\n                           opinion shall state the basis of the legal \n                           conclusions reached therein), the holder shall\n                           thereupon be entitled to transfer the Restricted\n                           Securities in accordance with the terms of the\n                           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 Securities Act, \nor (b) when, in the opinions of both counsel for the holder thereof and \ncounsel for the Company, such restrictions are no longer required in order to \ninsure compliance with the Securities Act or Section 12 hereof. Whenever such \nrestrictions shall cease and terminate as to any Restricted Securities, the \nholder thereof shall be entitled to receive from the Company, without expense \n(other than applicable transfer taxes, if any), new securities of like tenor \nnot bearing the applicable legends required by Section 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 \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\nhereof, this Warrant, if properly assigned, may be exercised by a new holder \nwithout 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                  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\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         ACCOUNTANT:  As defined in Section 1.3 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         AVERAGE MARKET PRICE: The average daily Market Price during the ten \n(10) days ending on and including the Vesting Date on which the national \nsecurities exchanges or the national market system of the NASD were open for \ntrading, except that if no class of the Common Stock is then listed or \nadmitted to trading on a national securities exchange or the national market \nsystem of the NASD, the Average Market Price shall be the Market Price on the \nVesting Date.\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         [*] REVENUES: The aggregate amount of fee revenue described \nbelow that are received by the Company in accordance with the Alliance \nAgreement:\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                                     -10-\n\n\n\n                  [*]\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* 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\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 any\nstock resulting from any reclassification of the Common Stock, and all other\nstock of any class or classes (however designated) of the Company the holders of\nwhich have the right, without limitation as to amount, either to all, or to a\nshare of the balance of, current dividends and liquidating dividends after the\npayment of dividends and distributions on any shares entitled to preference.\n\n         COMPANY: As defined in the introduction to this Warrant and including\nany corporation which shall succeed to or assume the obligations of the Company\nhereunder in compliance with Section 5 hereof.\n\n         CONSORTIUM: A group of entities organized by EDS CoNext that desire to\npool their purchasing for certain products and services, whether existing on the\ndate hereof or subsequently organized.\n\n         EXCHANGE ACT: The Securities Exchange Act of 1934, or any similar\nfederal statute, and the rules and regulations of the Commission thereunder, all\nas 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 defined in the introduction to this Warrant.\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 such\nentity's most recent fiscal year), between [*] and [*] Revenues of consolidated\nentities shall not be included in the annual revenues of a Participant to the \nextent that such revenues are included in the annual revenues of any other \nParticipant.\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 or,\nif no such sale takes place on such date, the average of the closing bid and\nasked prices thereof on such date, in each case as officially reported on the\nprincipal national securities exchange on which the Common Stock is then listed\nor admitted to trading, or (b) if the Common Stock is not then listed or\nadmitted to trading on a national securities exchange but is designated as a\nnational market system security by the NASD, the last closing price of the\nCommon Stock on such date, (c) if there shall have \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\nbeen no trading on such date or if the Common Stock is not so designated, the \naverage of the closing bid and asked prices of the Common Stock on such date \nas shown by the NASD automated quotation system or (d) if the Common Stock is \nnot then listed or admitted to trading on any national exchange or the \nnational market system of the NASD, the fair value thereof determined in good \nfaith by the Board of Directors of the Company as of a date which is within \nfifteen (15) days of the 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 1.4 hereof.\n\n         OBJECTION NOTICE PERIOD:  As defined in Section 1.4 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 the\nholders of the Warrants at any time shall be entitled to receive, or shall have\nreceived, upon the exercise of the Warrants, in lieu of or in addition to Common\nStock, or which at any time shall be issuable or shall have been issued in\nexchange for or in replacement of Common Stock or Other Securities pursuant to\nSection 3 hereof or otherwise.\n\n         PARTICIPANT: An entity that [*]\n\n         PERSON:  A corporation, an association, a partnership, an organization,\na business, an individual, a government or political subdivision thereof or a\ngovernmental agency.\n\n         REGISTRATION AGREEMENT: The Registration Rights Agreement dated as of\nDecember 31, 1999, between the Company and EDS CoNext, as from time to time in\neffect.\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 the\nexercise of the Warrant and which are evidenced by a certificate or certificates\nbearing the applicable legend or legends referred to in Section 10.1.\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 the\nsame shall be in effect at the time.\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         VERY LARGE PARTICIPANT: A Participant with annual revenues, including\nrevenues of the consolidated entities for which it is performing purchasing \n(as determined in accordance with generally accepted accounting principles \nfor such entity's most recent fiscal year), in excess of [*] 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         VESTING DATE:  December 31, 2003.\n\n         VESTING NOTICE:  As defined in Section 1.3 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 Warrant\nshall be construed as conferring upon the holder hereof any rights as a\nstockholder 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 asserted\nby the Company or by creditors of the Company.\n\n15. NOTICES. Any notice or other communication in connection with this Warrant\nshall be deemed to be given if in writing (or in the form of a facsimile)\naddressed as hereinafter provided and actually delivered at said address: (a) if\nto any holder of any Warrant, at the registered address of such holder as set\nforth in the register kept at the office of the Company maintained pursuant to\nSection 12.2(a) hereof, or (b) if to the Company, to the attention of its\nPresident at its office maintained pursuant to Section 12.2(a) hereof; PROVIDED,\nHOWEVER, that the exercise of any Warrant shall be effective in the manner\nprovided 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 enforcement of the change, waiver, discharge or termination is\nsought. This Warrant shall be construed and enforced in accordance with and\ngoverned by the laws of the State of Delaware. The section headings in this\nWarrant are for purposes of convenience only and shall not constitute a part\nhereof.\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                                      -14-\n\n\n         IN WITNESS WHEREOF, the Company has caused this Class D 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                             FORM OF EXERCISE NOTICE\n\n                [To be executed only upon conversion of Warrant]\n\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\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\n\n\n\n\n\n______________________\n(1) Insert here the number of shares called for on the face of this Warrant (or,\nin the case of a partial exercise, the portion thereof as to which this Warrant\nis being exercised), in either case without making any adjustment of shares of\nCommon Stock or any other stock or other securities or property or cash which,\npursuant to the adjustment provisions of this Warrant, may be delivered upon\nexercise. In the case of a partial exercise, a new Warrant or Warrants will be\nissued and delivered, representing the unconverted portion of the Warrant, to\nthe holder surrendering the Warrant.\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                               FORM OF ASSIGNMENT\n\n                 [To be executed only upon transfer of Warrant]\n\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 of\n[ISSUER] to which the Warrant relates, and appoints __________ Attorney to make\nsuch transfer on the books of [ISSUER] maintained for the purpose, with full\npower of substitution in the premises.\n\n\nDated:                                    ______________________________________\n                                          (Signature must conform in all\n                                          respects to name of holder as\n                                          specified on the 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(1) Insert here the number of shares called for on the face of this Warrant (or,\nin the case of a partial exercise, the portion thereof as to which this Warrant\nis being exercised), in either case without making any adjustment of shares of\nCommon Stock or any other stock or other securities or property or cash which,\npursuant to the adjustment provisions of this Warrant, may be delivered upon\nexercise. In the case of a partial exercise, a new Warrant or Warrants will be\nissued and delivered, representing the unexercised portion of the Warrant, to\nthe holder surrendering the Warrant.\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<\/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-40906","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\/40906","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=40906"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40906"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40906"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40906"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}