{"id":43478,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/mutual-termination-agreement-and-release-ariba-inc-and-agile.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"mutual-termination-agreement-and-release-ariba-inc-and-agile","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/mutual-termination-agreement-and-release-ariba-inc-and-agile.html","title":{"rendered":"Mutual Termination Agreement and Release &#8211; Ariba Inc. and Agile Software Corp."},"content":{"rendered":"<pre>\n                   MUTUAL TERMINATION AGREEMENT AND RELEASE\n\n\n          This MUTUAL TERMINATION AGREEMENT AND RELEASE dated as of April 2,\n2001 (this \"Agreement\") is made and entered into by and among Ariba, Inc., a\nDelaware corporation (\"Parent\"), Silver Merger Corporation, a Delaware\ncorporation and a wholly owned subsidiary of Parent (\"Merger Sub\"), and Agile\nSoftware Corporation, a Delaware corporation (\"Company\").  Parent, Merger Sub\nand Company are collectively referred to herein as the \"Parties\" and each\nindividually as a \"Party.\"  Unless defined herein, capitalized terms have the\nmeaning given them in the Merger Agreement (as defined below).\n\n          WHEREAS, the Parties entered into an Agreement and Plan of Merger and\nReorganization dated as of January 29, 2001 (the \"Merger Agreement\") and an\namendment to the Merger Agreement dated as of March 20, 2001 (the \"Amendment\")\npursuant to which, subject to the terms and conditions stated therein, Merger\nSub was to merge with and into Company and Company was to continue as the\nsurviving corporation and a wholly-owned subsidiary of Parent;\n\n          WHEREAS, contemporaneously with the execution of the Merger Agreement,\nParent, Company and certain stockholders or employees of each of Parent and\nCompany, as the case may be, entered into (i) a Company Stock Option Agreement,\n(ii) Parent Voting Agreements, (iii) Company Voting Agreements, (iv) Affiliate\nAgreements and (v) Employment Agreements (collectively, the \"Ancillary\nAgreements\");\n\n          WHEREAS, Section 8.01(a) of the Merger Agreement provides that the\nMerger Agreement may be terminated at any time prior to the Effective Time by\nmutual written consent duly authorized by the Boards of Directors of Parent and\nCompany; and\n\n          WHEREAS, the Boards of Directors of each of Parent and Company have\ndetermined to terminate each of the Merger Agreement, the Amendment and each of\nthe Ancillary Agreements as provided herein and release each other from all\nduties, rights, claims, obligations and liabilities arising from, in connection\nwith, or relating to, the Merger Agreement, the Amendment and the Ancillary\nAgreements, all as provided herein;\n\n          NOW, THEREFORE, in consideration of the mutual covenants and\nagreements set forth in this Agreement, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the\nParties, intending to be legally bound, agree as follows:\n\n          1.  Termination of Merger Agreement. The Parties agree that, effective\n              -------------------------------\nimmediately, (i) the Merger Agreement and the Amendment are hereby terminated\npursuant to \n\n \nSection 8.01(a) of the Merger Agreement and (ii) the Ancillary Agreements are\nhereby terminated, and none of such agreements will be of any further force or\neffect as of the date hereof.\n\n          2.  Release of Company by Parent and Merger Sub. Parent and Merger Sub\n              -------------------------------------------\ndo hereby unequivocally release and discharge Company and any of its officers,\ndirectors, agents, managers, employees, representatives, stockholders, legal and\nfinancial advisors, parents, subsidiaries, affiliates, principals or partners,\nand any heirs, executors, administrators, successors or assigns of any said\nperson or entity (the \"Company Releasees\"), from any and all actions, causes of\naction, choses in action, cases, claims, suits, debts, dues, sums of money,\naccounts, reckonings, bonds, bills, specialties, covenants, contracts,\ncontroversies, agreements, promises, variances, trespasses, injuries, harms,\ndamages, judgments, remedies, extents, executions, demands, liens and\nliabilities whatsoever, in law, equity or otherwise (collectively, \"Actions\"),\narising under, in connection with or relating to the Merger Agreement, the\nAmendment or the Ancillary Agreements or the transactions contemplated thereby,\nor any action or failure to act under the Merger Agreement, the Amendment, the\nAncillary Agreements or in connection therewith, or in connection with the\nevents leading to the abandonment of the Merger and the termination of the\nMerger Agreement, the Amendment and the Ancillary Agreements, or in connection\nwith any press release, public disclosure or private communication relating to\nthe Merger Agreement, the Amendment or the Ancillary Agreements or the\ntransactions contemplated thereby, which have been asserted against the Company\nReleasees or which, whether currently known or unknown, Parent or Merger Sub, or\nany successors or assigns of any said entities, ever could have asserted or ever\ncould assert, in any capacity, against the Company Releasees, relating to any\nclaims, or any transactions and occurrences from any time in connection with the\nforegoing; provided, however, the Company Releasees are not released from any\nActions which may arise under this Agreement.\n\n          3.  Release of Parent and Merger Sub by Company. Company does hereby\n              -------------------------------------------\nunequivocally release and discharge Parent and Merger Sub and any of their\nrespective officers, directors, agents, managers, employees, representatives,\nstockholders, legal and financial advisors, parents, subsidiaries, affiliates,\nprincipals or partners, and any heirs, executors, administrators, successors or\nassigns of any said person or entity (the \"Parent Releasees\"), from any and all\nActions arising under, in connection with or relating to the Merger Agreement,\nthe Amendment or the Ancillary Agreements or the transactions contemplated\nthereby, or any action or failure to act under the Merger Agreement, the\nAmendment, the Ancillary Agreements or in connection therewith, or in connection\nwith the events leading to the abandonment of the Merger and the termination of\nthe Merger Agreement, the Amendment and the Ancillary Agreements, or in\nconnection with any press release, public disclosure or private communication\nrelating to the Merger Agreement, the Amendment or the Ancillary Agreements or\nthe transactions contemplated thereby, which have been asserted against the\nParent Releasees or which, whether currently known or unknown, Company, or any\nsuccessors or assigns of any said entities, ever could have asserted or ever\ncould assert, in any capacity, against the Parent Releasees, relating to any\nclaims, or any transactions and occurrences from any time in connection with the\nforegoing; provided, however, the Parent Releasees are not released from any\nActions which may arise under this Agreement.\n\n \n          4.  Publicity. Attached hereto as Exhibit A is the form of joint press\n              ---------\nrelease to be issued by Parent and Company on signing of this Agreement with\nrespect to this Agreement and the termination of the Merger Agreement, the\nAmendment and the Ancillary Agreements. Except as required by law or applicable\nlisting agreement with a stock exchange, no other press release shall be issued\nregarding the termination of the Merger Agreement by either Parent or Company\nwithout the prior written consent of the other.\n\n          5.  Representations of the Parties. Parent and Merger Sub, on the one\n              ------------------------------\nhand, and the Company, on the other hand, represents to the other Party that:\n(a) it is duly organized and validly existing under the laws of the jurisdiction\nof its incorporation and in good standing; (b) it has power to execute and\nperform its obligations under this Agreement and has taken all necessary action\nto authorize such execution, delivery and performance; (c) such execution,\ndelivery and performance do not violate or conflict with any law applicable to\nit, any provision of its charter or bylaws, any order or judgment of any court\nor other agency of government applicable to it or any of its assets or any\ncontractual restriction binding on or affecting it or any of its assets; (d) all\ngovernmental and other consents that are required to have been obtained by it\nwith respect to this Agreement have been obtained and are in full force and\neffect and all conditions of any such consents have been complied with; (e) its\nobligations under this Agreement constitute its legal, valid and binding\nobligations, enforceable in accordance with their respective terms; and (f) it\nbeneficially owns no shares of any other Party (except that Parent owns all of\nthe shares of Merger Sub).\n\n          6.  Waiver. Any term of this Agreement may be waived at any time by\n              ------\nthe Party that is entitled to the benefit thereof, but no such waiver shall be\neffective unless set forth in a written instrument duly executed by or on behalf\nof the Party waiving such term or condition. No waiver by any Party of any term\nor condition of this Agreement, in any one or more instances, shall be deemed to\nbe or construed as a waiver of the same or any other term or condition of this\nAgreement on any future occasion. All remedies, either under this Agreement or\nby any laws or otherwise afforded, will be cumulative and not alternative.\n\n          7.  Amendment. This Agreement may be amended, supplemented or modified\n              ---------\nonly by a written instrument duly executed by or on behalf of each Party hereto.\n\n          8.  No Assignment; Binding Effect. Neither this Agreement nor any\n              -----------------------------\nright, interest or obligation hereunder may be assigned by any Party hereto\nwithout the prior written consent of the other Parties hereto and any attempt to\ndo so will be void, except for assignments and transfers by operation of any\nlaws. Subject to the preceding sentence, this Agreement is binding upon, inures\nto the benefit of and is enforceable by the Parties and their respective\nsuccessors and assigns.\n\n          9.  Entire Agreement. This Agreement supercedes all prior discussions,\n              ----------------\nrepresentations, warranties and agreements, both written and oral, among the\nParties with respect to the subject matter hereof, and contains the sole and\nentire agreement among the Parties with respect to the subject matter hereof. No\nprior drafts of this Agreement and no words or phrases from any such prior\ndrafts shall be admissible into evidence in any action, suit or other proceeding\ninvolving this Agreement. \n\n \nNotwithstanding the foregoing, this Agreement does not terminate the Non-\nDisclosure Agreement dated January 22, 2001 between the Company and Parent.\n\n          10.  Third Party Beneficiaries. There are no third party beneficiaries\n               -------------------------\nto this Agreement except for the Parent Releasees, the Company Releasees and\nparties to the Ancillary Documents that are not parties to this Agreement.\n\n          11.  Headings. The headings used in this Agreement have been inserted\n               --------\nfor convenience of reference only and do not define or limit the provisions\nhereof.\n\n          12.  Invalid Provisions. If any provision of this Agreement is held to\n               ------------------\nbe illegal, invalid or unenforceable under any present or future laws, and if\nthe rights or obligations of any Party hereto under this Agreement will not be\nmaterially and adversely affected thereby, (a) such provision will be fully\nseverable, (b) this Agreement will be construed and enforced as if such illegal,\ninvalid or unenforceable provision had never comprised a part hereof, and (c)\nthe remaining provisions of this Agreement will remain in full force and effect\nand will not be affected by the illegal, invalid or unenforceable provision or\nby its severance herefrom. Notwithstanding anything in this Agreement to the\ncontrary, if for any reason any of the releases contained in Sections 2 or 3\nhereof are avoided, nullified or otherwise rendered ineffective, then all\nreleases in Section 2 or 3 hereof shall be rendered invalid and unenforceable\nand this Agreement shall be automatically reformed to delete Sections 2 and 3\nherefrom.\n\n          13.  Injunctive Relief. The Parties agree that irreparable damage\nwould occur in the event that any of the provisions of this Agreement was not\nperformed in accordance with its specified terms or was otherwise breached and\nthat money damages would not be an adequate remedy for any breach of this\nAgreement. It is accordingly agreed that in any proceeding seeking specific\nperformance each of the Parties will waive the defense of adequacy of a remedy\nat law. Each of the Parties shall be entitled to an injunction or injunctions to\nprevent breaches of this Agreement and to enforce specifically the terms and\nprovisions hereof in any court of competent jurisdiction, this being in addition\nto any other remedy to which they are entitled at law or in equity.\n\n          14.  Governing Law. This Agreement shall be interpreted under the laws\n               -------------\nof the State of Delaware without reference to Delaware conflicts of law\nprovisions.\n\n          15.  Waiver of Jury Trial. Each of Parent, Company and Merger Sub\n               --------------------\nhereby irrevocably waives all right to trial by jury in any action, proceeding\nor counterclaim (whether based on contract, tort or otherwise) arising out of or\nrelating to this Agreement or the actions of Parent, Company or Merger Sub in\nthe negotiation, administration, performance and enforcement thereof.\n\n          16.  Counterparts. This Agreement may be executed in any number of\ncounterparts, each of which will be deemed an original, but all of which\ntogether will constitute one and the same instrument.\n\n \n          IN WITNESS WHEREOF, Parent, Merger Sub and Company have caused this\nMutual Termination Agreement and Release to be duly executed as of the date\nfirst above written by their respective officers duly authorized.\n\n\n                                           ARIBA, INC.\n\n                                           By:  \/s\/ Keith Krach\n                                              -----------------------------\n                                                Keith Krach,\n                                                Chief Executive Officer and \n                                                Chairman of the Board\n\n  \n                                           SILVER MERGER CORPORATION\n\n                                           By:  \/s\/ Robert Calderoni\n                                              -----------------------------\n                                                Robert Calderoni\n                                                Chief Executive Officer\n\n\n                                           AGILE SOFTWARE CORPORATION\n\n                                           By:  \/s\/ Bryan D. Stolle\n                                              -----------------------------\n                                                Bryan D. Stolle\n                                                Chief Executive Officer and \n                                                President\n\n \n                                   Exhibit A\n\n                              Joint Press Release\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6594,6749],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9622,9626],"class_list":["post-43478","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-agile-software-corp","corporate_contracts_companies-ariba-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43478","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=43478"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43478"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43478"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43478"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}