\n24. Term and Termination……………………………………………..18
\n 24.1 Term…………………………………………………18
\n 24.2 Termination…………………………………………..18
\n 24.3 Continuing Liability…………………………………..19<\/p>\n25. Incidental and Consequential Damages……………………………….19<\/p>\n
26. Miscellaneous……………………………………………………19
\n 26.1 Governing Law; Dispute Resolution……………………….19
\n 26.2 Notices and Other Communications………………………..20
\n 26.3 Language……………………………………………..21
\n 26.4 Severability………………………………………….21
\n 26.5 References; Subject Headings……………………………22
\n 26.6 Further Assurances…………………………………….22
\n 26.7 Expenses……………………………………………..22
\n 26.8 No Waiver…………………………………………….22
\n 26.9 Entire Agreement; Amendments……………………………22
\n 26.10 Assignment……………………………………………22
\n 26.11 No Agency…………………………………………….23
\n 26.12 No Beneficiaries………………………………………23
\n 26.13 Counterparts………………………………………….23
\n<\/c><\/s><\/table>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission. <\/p>\n
ii<\/p>\n
This Shareholders Agreement (this “AGREEMENT”) is made as of October
\n19, 2000, by and among Nihon Ariba K.K., a Japanese corporation (the
\n“COMPANY”), Ariba, Inc., a Delaware corporation (“ARIBA”), SOFTBANK Corp., a
\nJapanese corporation (“SOFTBANK PARENT”), and SOFTBANK E-Commerce Corp., a
\nJapanese corporation and direct wholly owned subsidiary of SOFTBANK Parent
\n(“SOFTBANK”). The Company, Ariba, SOFTBANK Parent and SOFTBANK are hereunder
\nalso referred to collectively as the “PARTIES” and individually as a “PARTY”.<\/p>\n
RECITALS<\/p>\n
A. Ariba is a leading provider of electronic commerce products
\nand services.<\/p>\n
B. Ariba has formed the Company to provide electronic commerce
\nproducts and services generally provided by Ariba to Persons whose primary
\nplace of business is located in Japan.<\/p>\n
C. SOFTBANK Parent and SOFTBANK are leading providers of
\ninformation and distribution services in Japan and worldwide as
\ninfrastructure for the digital information industry.<\/p>\n
D. SOFTBANK Parent and SOFTBANK wish to invest in and form a
\nstrategic relationship with the Company.<\/p>\n
NOW THEREFORE, for valuable consideration, the receipt and adequacy
\nof which are hereby acknowledged, the Parties hereby agree as follows:<\/p>\n
AGREEMENT<\/p>\n
1. DEFINITIONS.<\/p>\n
1.1 “[*]” shall mean a Person, of which securities
\nrepresenting at least [*] of the ordinary voting power is or, in the case of
\na partnership, at least [*] of the general partnership interests are,
\ndirectly or indirectly owned, controlled or held by the Party on such date.<\/p>\n
1.2 “[*]” shall mean a Person that directly or
\nindirectly owns, controls, or holds securities representing at least [*] of
\nthe ordinary voting power or, in the case of a partnership, at least [*] of
\nthe general partnership interests of the Party on such date.<\/p>\n
1.3 “AFFILIATE” of a Person means any Person that is
\ncontrolled by, controls, or is under common control with the first Person, in
\neach case for so long as such control continues; PROVIDED, HOWEVER, that
\nAffiliates of any Person shall include Persons in which the first Person
\nowns, directly or indirectly, shares representing at least [*] of the voting
\npower represented by such Affiliates’ outstanding shares, regardless of
\nwhether such control actually exists. For purposes of this definition,
\n“CONTROL” shall mean the possession, directly or indirectly, of power to
\ndirect or cause the direction of management or policies of a <\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
Person (whether through ownership of securities or other ownership interests,
\nby contract or otherwise).<\/p>\n
1.4 “ANNUAL BUSINESS PLAN” means the Company’s annual
\nbusiness plan, as approved by the Board each year for the Company’s next
\nsucceeding year including, among other things, (i) a budget for the upcoming
\nfiscal year for anticipated revenues and expenses of the Company, (ii) an
\nexpenditure budget, (iii) a cash-flow forecast and (iv) the [*].<\/p>\n
1.5 “ARIBA” is defined in the preambles of this
\nAgreement.<\/p>\n
1.6 “ARIBA COMPANY INTEREST” means the Company
\nInterest of Ariba.<\/p>\n
1.7 “ARIBA INVESTOR” means Ariba and each Person that
\nis an Affiliate of Ariba to whom Securities owned by Ariba at the close of
\nbusiness on the Effective Date and subsequently acquired by Ariba pursuant to
\nSection 11 or 18 of this Agreement have been Transferred pursuant to this
\nAgreement.<\/p>\n
1.8 “ARIBA NON-DISCLOSURE AGREEMENT” means the
\nNon-Disclosure Agreement by and between Ariba, SOFTBANK Parent and SOFTBANK
\ndated October 19, 2000.<\/p>\n
1.9 “ARTICLES” means the articles of incorporation of
\nthe Company in the form of attached EXHIBIT 2.1 to the Stock Purchase
\nAgreement, as the same may be amended from time to time in accordance with
\nthis Agreement and the Commercial Code.<\/p>\n
1.10 “BOARD” means the board of directors of the
\nCompany.<\/p>\n
1.11 “BUSINESS” generally means [*] and (iii) any
\nbusiness ancillary thereto.<\/p>\n
1.12 “BUSINESS DAY” means a day on which commercial
\nbanks in the United States and Japan are generally open to conduct their
\nregular banking business.<\/p>\n
1.13 “COMPANY” is defined in the preambles of this
\nAgreement.<\/p>\n
1.14 “CHIEF EXECUTIVE OFFICER” means the Chief
\nExecutive Officer of the Company.<\/p>\n
1.15 “CO-SALE SHAREHOLDER” is defined in Section 16(a).<\/p>\n
1.16 “COMMERCIAL CODE” means the Commercial Code of
\nJapan, as amended and in effect from time to time.<\/p>\n
1.17 “COMMITTEE” is defined in Section 18(b).<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
2<\/p>\n
1.18 “COMMON STOCK” means common stock of the Company
\nas authorized by the Articles.<\/p>\n
1.19 “COMPANY INTEREST” shall mean, for a Party, the
\npercentage interest represented by the number of Securities then held by such
\nParty (assuming that such Party has not Transferred any Securities) divided
\nby the number of then outstanding Fully Diluted Securities.<\/p>\n
1.20 “[*]” is defined in Section 21(a).<\/p>\n
1.21 “DIRECTOR” means a member of the Board.<\/p>\n
1.22 “EFFECTIVE DATE” means the Closing Date (as
\ndefined in the Stock Purchase Agreement).<\/p>\n
1.23 “FULLY DILUTED SECURITIES” means the number of
\nSecurities outstanding on a fully diluted basis after (i) giving effect to
\nthe exchange, exercise and conversion of all outstanding exchangeable,
\nexercisable and convertible Securities and (ii) including all shares of
\nCommon Stock reserved and available for the grant of options and or stock
\npurchase rights to employees, officers, directors and consultants of the
\nCompany that are not subject to outstanding options.<\/p>\n
1.24 “INVESTOR” means each [*] and each [*].<\/p>\n
1.25 “IPO” is defined in Section 18(a).<\/p>\n
1.26 “KEY OFFICERS” means those Company officers who
\nare in management positions reporting directly to the Chief Executive Officer.<\/p>\n
1.27 “LICENSE AGREEMENT” means the License Agreement
\nentered into between Ariba and the Company in the form [*], as amended from
\ntime to time.<\/p>\n
1.28 “[*]” is defined in Section 15(a).<\/p>\n
1.29 “LITIGATION COMMITTEE” is defined in Section 20.<\/p>\n
1.30 “MEETING NOTICE” is defined in Section 4(c).<\/p>\n
1.31 “MODIFICATION EVENT” means the occurrence of the
\nevents specified in Section 21(c).<\/p>\n
1.32 “NOTICE” is defined in Section 18(b).<\/p>\n
1.33 “[*]” is defined in Section 16(a).<\/p>\n
1.34 “OFFERED SECURITIES” is defined in Section 18(b).<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
3<\/p>\n
1.35 “PARTY” and “PARTIES” are defined in the preamble
\nof this Agreement.<\/p>\n
1.36 “PERCENTAGE INTEREST” is defined in Section 15(b).<\/p>\n
1.37 “PERFORMANCE CRITERIA” is defined in Section 21(d).<\/p>\n
1.38 “PERSON” means a natural individual, partnership,
\nfirm, corporation, or other entity or form of business association.<\/p>\n
1.39 “RELATED PARTY TRANSACTION” is defined in Exhibit
\n4(d).<\/p>\n
1.40 “REPRESENTATIVE DIRECTOR” means a representative
\ndirector of the Company with the powers and duties specified for a
\nrepresentative director of a corporation in the Commercial Code or the
\nArticles.<\/p>\n
1.41 “[*]” is defined in Section 7.1 of the Stock
\nPurchase Agreement.<\/p>\n
1.42 “SCHEDULE” is defined in Section 15(a).<\/p>\n
1.43 “SECURITIES” means all outstanding shares of
\nCommon Stock and any other equity securities of the Company or instruments
\nexercisable or exchangeable for or convertible into Common Stock or other
\nequity securities of the Company.<\/p>\n
1.44 “SOFTBANK” is defined in the preambles of this
\nAgreement.<\/p>\n
1.45 “SOFTBANK COMPANY INTEREST” means the sum of the
\nCompany Interests of SOFTBANK and SOFTBANK Parent.<\/p>\n
1.46 “SOFTBANK INVESTOR” means SOFTBANK, SOFTBANK
\nParent and each Person that is an Affiliate of SOFTBANK Parent to whom
\nSecurities acquired by SOFTBANK and SOFTBANK Parent on the Effective Date
\npursuant to the Stock Purchase Agreement and subsequently acquired by
\nSOFTBANK and SOFTBANK Parent pursuant to Section 11 or 18 of this Agreement
\nhave been Transferred pursuant to this Agreement.<\/p>\n
1.47 “SOFTBANK PARENT” is defined in the preambles of
\nthis Agreement.<\/p>\n
1.48 “SPECIAL EXCEPTIONS LAW” means the law pertaining
\nto special exceptions to the Commercial Code concerning auditors of companies
\n(Kabushiki Kaisha).<\/p>\n
1.49 “STATUTORY AUDITOR” means a statutory auditor
\n(Kansa-yaku) of the Company with powers and duties as specified in the
\nCommercial Code.<\/p>\n
1.50 “STOCK PURCHASE AGREEMENT” means the Stock
\nPurchase Agreement dated as of October 19, 2000 among the Company, Ariba,
\nSOFTBANK Parent and SOFTBANK.<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
4<\/p>\n
1.51 “SUBJECT AFFILIATE” is defined in Section 15(a).<\/p>\n
1.52 “TERM” is defined in Section 24.1.<\/p>\n
1.53 “TRANSACTION AGREEMENTS” is defined in the Stock
\nPurchase Agreement.<\/p>\n
1.54 “TRANSFER” is defined in Section 13(a).<\/p>\n
2. THE COMPANY. The Parties hereby acknowledge that the
\npurpose of the Company shall be to establish and develop the Business.<\/p>\n
3. OPERATION OF THE COMPANY. Each Party agrees to take all
\nactions necessary to ensure that the Company shall be operated in accordance
\nwith the terms of this Agreement and the other Transaction Agreements,
\nincluding, without limitation, to vote all Securities held by it (and to
\ncause all Securities held by any of its Affiliates and permitted transferees
\nunder Section 13 to be voted) to effect the terms hereof.<\/p>\n
4. BOARD.<\/p>\n
(a) BOARD OF DIRECTORS. The Company will be
\nmanaged by the Board in accordance with the terms of this Agreement and
\napplicable law. The Board shall consist of [*] Directors, [*] of whom shall
\nbe nominated by [*] and [*] of whom shall be nominated by [*]. One of the
\nDirectors nominated by [*] shall be the [*]. If the [*] at any time decreases
\nto less than [*], the Parties shall upon written notice from [*] cause the
\nBoard constituency to be adjusted so that only [*] nominated by [*] within
\nthirty (30) days of such written notice. If the [*] at any time decreases to
\nless than [*], the Parties shall upon written notice from [*] cause the Board
\nconstituency to be adjusted so that [*] nominated by [*], within thirty (30)
\nBusiness Days of such written notice, unless the [*] shall continue to hold
\nat least [*] of the Securities acquired by the [*] pursuant to the Stock
\nPurchase Agreement and pursuant to Sections 11 and 18 of this Agreement.<\/p>\n
(b) REMOVAL; REAPPOINTMENT OF DIRECTORS. Any
\nDirector may be removed for cause in accordance with applicable law. In
\naddition, each Party having the right to appoint a Director pursuant to this
\nSection 4 shall also have the right, in its sole discretion, to remove such
\nDirector at any time by a written notice to the Company and the other Party,
\nin which event the Party which nominated the Director in question shall cause
\nsuch Director to deliver a written resignation to the Company. In the case of
\na vacancy in the office of a Director for any reason (including removal
\npursuant to the preceding sentence), the vacancy shall be filled by the Party
\nthat nominated or has the right to nominate the Director in question, subject
\nto obtaining the approval of a majority of the remaining Directors.<\/p>\n
(c) BOARD MEETINGS. Each Director shall have
\nthe authority to convene Board meetings, including the authority to specify
\nthe time and place of such meetings (with video conference or any other
\nlegally permitted means of meeting under the Commercial Code to be permitted
\nat the request of any Director); PROVIDED, HOWEVER, that (i) the Board shall <\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
5<\/p>\n
meet at least once during each calendar quarter and (ii) written notice of
\neach Board meeting (a “MEETING NOTICE”) shall be given not less than ten (10)
\nBusiness Days in advance of the meeting date (which ten (10) Business Day
\nperiod may be shortened if each Director either (A) grants a written waiver
\nof notice of such meeting or (B) actually attends such meeting, without
\nobjection). All Meeting Notices shall include a proposed agenda listing the
\nitems to be discussed at such Board meeting. Board meetings shall be
\nconducted in the English language (with Japanese interpretation) and minutes
\nof such meetings shall be prepared by the Company in English and Japanese and
\ndistributed to each Director promptly following a meeting. In the event of
\nconflict or controversy between versions, the English version of the minutes
\nshall control. Proposals or reports brought before any Board or shareholders’
\nmeeting for information or action (including without limitation the Company’s
\nannual and semi-annual financial statements) shall be prepared in English and
\nJapanese. In the event of conflict or controversy, the English version
\nthereof shall control. Any and all reasonable travel costs (including without
\nlimitation business class air travel) and expenses incurred for purposes of
\nattendance by a Party’s Directors at Board meetings held outside the country
\nwhere the Party’s corporate headquarters is located shall be reimbursed by
\nthe Company.<\/p>\n
(d) BOARD QUORUM, RESOLUTIONS. A quorum shall
\nbe deemed to exist for purposes of Board actions so long as at least four (4)
\nDirectors are present, including one (1) Director appointed by SOFTBANK and
\none (1) Director appointed by Ariba. If no Director nominated by SOFTBANK or
\nno Director nominated by Ariba attends a duly noticed Board meeting, such
\nmeeting shall be immediately adjourned and rescheduled, and written notice of
\nsuch rescheduled meeting shall be delivered to the Directors not less than
\nfive (5) Business Days in advance of the rescheduled meeting. If the number
\nof Directors who attend such rescheduled meeting is not sufficient to
\nconstitute a quorum under the first sentence of this Section 4(d), a quorum
\nshall be deemed to exist for purposes of the rescheduled meeting
\nnotwithstanding such non-attending Directors’ absence so long as there is a
\nsufficient number of directors present to constitute a valid quorum pursuant
\nto the Commercial Code. Any action, determination or resolution of the Board
\nshall require the affirmative vote of a majority of Directors present at a
\nmeeting at which a valid quorum pursuant to this Section 4(d) is present.
\nNotwithstanding the foregoing, the matters set forth on [*] shall additionally
\nrequire the affirmative vote of at least [*] appointed by [*] or [*], provided
\nthat at the time such vote is sought the [*] hold at least [*] of the
\nSecurities acquired by the [*] pursuant to the Stock Purchase Agreement and
\npursuant to Sections 11 and 18 of this Agreement.<\/p>\n
5. REPRESENTATIVE DIRECTOR; KEY OFFICERS. [*] shall designate
\n[*] Representative Directors of the Company in accordance with the Commercial
\nCode, one of whom shall be the [*]. [*] shall have the right to approve the
\n[*] and the [*] in its sole discretion upon prior consultation with [*]. [*]
\nshall also have the right, exercisable in its sole discretion upon prior
\nconsultation with [*], (i) to remove and replace the [*] or any [*] at any
\ntime and (ii) to appoint a successor [*] or [*] in the event a vacancy arises
\nfor any reason, in each case effective upon the delivery of written notice to
\nthe [*] or the [*] and the other Parties. Each Party agrees to cause the
\nDirectors nominated by it to take appropriate action by the Board to effect
\nany such removal, replacement or appointment.<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
6<\/p>\n
6. STATUTORY AUDITORS. The Company shall have three (3)
\nStatutory Auditors whom shall be nominated by Ariba. A Statutory Auditor may
\nbe removed for cause in accordance with applicable law. Ariba shall also have
\nthe right, exercisable in its sole discretion, to remove and replace a
\nStatutory Auditor at any time, effective upon the delivery of written notice
\nto the Statutory Auditor to be removed and the other Parties. Ariba shall
\nalso further have the right to appoint a successor Statutory Auditor in the
\nevent a vacancy arises for any reason.<\/p>\n
7. SHAREHOLDERS’ MEETINGS. Shareholders of the Company shall
\nreceive notice of each shareholders’ meeting at least ten (10) Business Days
\nbefore the scheduled date of such meeting. The Company shall have at least
\none shareholders’ meeting each calendar year. Such meeting will take place at
\nsuch time and place as is determined by the Board. Meetings shall be
\nconducted in the English language (with Japanese translation to the extent
\nrequested by SOFTBANK paid for by the Company), and minutes of such meetings
\nshall be prepared by the Company in English and Japanese. In the event of
\nconflict or controversy, the English version of the minutes shall control.<\/p>\n
8. FINANCIAL STATEMENTS AND ACCOUNTING RECORDS. Financial
\nstatements for the Company, including without limitation a balance sheet,
\nincome statement, statement of cash flows and statement of shareholders’
\nequity, shall be submitted by the Company to each of the other Parties (i)
\nwithin sixty (60) days after the end of each fiscal quarter for such quarter,
\nand (ii) within ninety (90) days after the end of each fiscal year for such
\nyear. Each of the annual financial statements shall be audited and certified
\nby an internationally recognized accounting firm (which will act as an
\nindependent auditor under the Special Exceptions Law) retained by the
\nCompany. All financial statements shall be (i) prepared in accordance with
\ngenerally accepted accounting principles in Japan and (ii) in reasonable
\ndetail and shall contain such financial data as Ariba, SOFTBANK Parent and
\nSOFTBANK reasonably request in order to keep each of them advised of the
\nCompany’s financial status (although quarterly statements need not include
\nfootnotes and may be subject to year-end adjustments).<\/p>\n
9. RIGHT OF INSPECTION. During office hours of the Company,
\nand upon reasonable notice to the Company, each of SOFTBANK, SOFTBANK Parent
\nand Ariba shall have full access to all properties, books of account, and
\nrecords of the Company, and each such Party shall have the right to make
\ncopies from such books and records at its own expense. Any information
\nobtained by SOFTBANK, SOFTBANK Parent or Ariba through exercise of rights
\ngranted under this Section 9 shall, to the extent constituting Confidential
\nInformation under Section 7.2 of the Stock Purchase Agreement, be subject to
\nthe confidentiality provisions set forth in such Section 7.2.<\/p>\n
10. SOFTBANK RIGHTS. [*]<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
7<\/p>\n
11. COMPANY INTERESTS. The Parties agree to implement the
\nCompany’s capital structure and the terms of this Agreement so that at all
\ntimes during the term hereof, [*].<\/p>\n
12. ANNUAL BUSINESS PLAN. The Company’s management shall
\ndiscuss its proposed Annual Business Plan with SOFTBANK before submitting
\nsuch Annual Business Plan to the Board for approval.<\/p>\n
13. TRANSFER RESTRICTIONS.<\/p>\n
(a) Neither SOFTBANK Parent nor SOFTBANK
\nshall, except as otherwise specifically provided in this Agreement, sell,
\ntransfer, assign, hypothecate or in any way alienate (“TRANSFER”) any of its
\nSecurities.<\/p>\n
(b) Notwithstanding Section 13(a), SOFTBANK
\nParent and SOFTBANK may Transfer all or any portion of its Securities (i) to
\nany [*] or [*] of such Party or (ii) after the closing of [*], to any Person
\nupon the completion of such Party’s compliance with the restrictions imposed
\nby Section 14 of this Agreement; PROVIDED <\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
8<\/p>\n
that the following conditions shall be satisfied in the case of a Transfer
\npursuant to clause (i) above of this Section 13(b):<\/p>\n
A. (x) in the case of a Transfer to
\nan [*], such Party covenants that such [*] shall remain an [*] of such Party
\nso long as the transfer restrictions set forth in this Section 13 are in
\neffect and the [*] owns the Transferred shares; and (y) in the case of a
\nTransfer to an [*], such [*] covenants that it shall remain an [*] of such
\nParty so long as the transfer restrictions set forth in this Section 13 are
\nin effect and the [*] owns the Transferred shares; and<\/p>\n
B. such Party, or, in the case of a
\nTransfer to an [*] or an [*], such [*] or [*] represents and covenants that
\nthe shares transferred to the transferee are not, and will not be, subject to
\nany lien or other security interest, whether direct or indirect, unless such
\nlien or security interest is consented to by the Company.<\/p>\n
(c) Notwithstanding the provisions of this
\nSection 13, neither SOFTBANK Parent nor SOFTBANK may Transfer any of its
\nSecurities until [*].<\/p>\n
(d) In the case of any Transfer permitted
\nunder Section 13(b)(i), SOFTBANK Parent or SOFTBANK, as the case may be,
\nshall deliver to the Company and Ariba (i) at least ten (10) Business Days
\nprior to such Transfer, a written notice stating its intention to Transfer
\nthe Securities to be Transferred, the name of the transferee, whether such
\ntransferee is an Affiliate, the number of Securities to be Transferred, and
\nthe price and other material terms and conditions of the Transfer, (ii)
\nexcept as otherwise specifically provided herein, on or prior to the
\neffective date of the Transfer and in a form reasonably acceptable to the
\nCompany and its counsel, the transferee’s written acknowledgement of and
\nagreement to be bound by, and to vote the Transferred Securities at all times
\nin accordance with, the terms of this Agreement and any other Transaction
\nAgreement, and (iii) if reasonably requested by the Company, an opinion of
\ncounsel, reasonably satisfactory to the Company that such Transfer will not
\nrequire registration of such shares under any applicable securities laws.<\/p>\n
(e) [*] shall not, except as otherwise
\nspecifically provided in this Agreement, Transfer any of its Securities.<\/p>\n
(f) Notwithstanding Section 13(e), [*] may
\nTransfer all or any portion of its Securities (i) to any Person, PROVIDED
\nthat [*] and its Affiliates continue to own at least [*] of the Securities
\nowned by [*] at the close of business on the Effective Date and subsequently
\nacquired by [*] pursuant to Sections 11 and 18 of this Agreement, or (ii)
\nafter the closing of [*], to any Person upon the completion of such Party’s
\ncompliance with the restrictions imposed by Section 14 of this Agreement.<\/p>\n
(g) In the case of any Transfer permitted
\nunder Section 13(f)(i), [*] shall deliver to [*] (i) at least ten (10)
\nbusiness days prior to such Transfer, a written notice stating its intention
\nto Transfer the Securities to be Transferred, the name of the transferee,
\nwhether such transferee is an Affiliate, the number of Securities to be <\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
9<\/p>\n
Transferred, and the price and other material terms and conditions of the
\nTransfer, (ii) except as otherwise specifically provided herein, on or prior
\nto the effective date of the Transfer and in a form reasonably acceptable to
\nthe Company and its counsel, the transferee’s written acknowledgement of and
\nagreement to be bound by, and to vote the Transferred Securities at all times
\nin accordance with, the terms of this Agreement and any other Transaction
\nAgreement and (iii) if reasonably requested by the Company, an opinion of
\ncounsel, reasonably satisfactory to the Company that such Transfer will not
\nrequire registration of such shares under any applicable securities laws.<\/p>\n
14. “MARKET STAND-OFF” AGREEMENT. Each of Ariba, SOFTBANK
\nParent and SOFTBANK hereby agrees that it will not, without the prior written
\nconsent of the managing underwriter, during the period commencing on the date
\nof the final prospectus relating to the Company’s IPO and ending on the date
\nspecified by the Company and the managing underwriter(s) (such period not to
\nexceed one hundred eighty (l80) days) (i) lend, offer, pledge, sell, contract
\nto sell, sell any option or contract to purchase, purchase any option or
\ncontract to sell, grant any option, right or warrant to purchase, or
\notherwise Transfer, directly or indirectly, any Securities, or (ii) enter
\ninto any swap or other arrangement that transfers to another, in whole or in
\npart, any of the economic consequences of ownership of the Securities,
\nwhether any such transaction described in clause (i) or (ii) above is to be
\nsettled by delivery of Securities, in cash or otherwise. The underwriters in
\nconnection with the Company’s initial public offering are intended third
\nparty beneficiaries of this Section 14 and shall have the right, power and
\nauthority to enforce the provisions hereof as though they were a Party hereto.<\/p>\n
Notwithstanding the foregoing provisions of this Section 14, the
\nobligations of Ariba, SOFTBANK Parent and SOFTBANK under this Section 14
\nshall not be more restrictive than the least restrictive “market standoff”
\nobligations to which any of the Company’s executive officers, directors or
\n10% or greater shareholders are subject. In order to enforce the foregoing
\ncovenant, the Company may to the extent permitted by applicable law impose
\nstop-transfer instructions with respect to the Shares owned by the Investor
\n(and the shares or securities of every other person subject to the foregoing
\nrestriction) until the end of such period.<\/p>\n
15. EXCLUSIVITY.<\/p>\n
(a) During the term of this Agreement, [*]
\nagrees that it will not, and will not permit any Affiliate in which [*]
\ndirectly or indirectly holds a fifty percent (50%) or greater ownership
\ninterest (a “Subject Affiliate”), to do any of the following:<\/p>\n
(i) [*]<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
10<\/p>\n
(ii) [*]<\/p>\n
(iii) [*]<\/p>\n
(iv) [*]<\/p>\n
(b) [*]<\/p>\n
(c) For purposes of this SECTION 15, [*]
\nshall not be deemed an investment fund or investment vehicle or a Subject
\nAffiliate.<\/p>\n
(d) This SECTION 15 shall terminate at such
\ntime as [*].<\/p>\n
16. CO-SALE RIGHTS.<\/p>\n
(a) If any [*] desires to Transfer any of its
\nSecurities (the “Offered Co-Sale Securities”) to any Person (other than [*])
\nand <\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
11<\/p>\n
such Offered Co-Sale Securities, together with any Securities previously
\nTransferred by [*] to Persons (other than [*]) represent [*] or more of the
\noutstanding Fully Diluted Securities measured at the time of such Transfer,
\nthe [*] (each, a “CO-SALE SHAREHOLDER”) shall have the right and option to
\ninclude a pro rata portion of the Securities to be sold in the proposed sale
\nat the same price per share and on the same other terms and conditions that
\napply to [*] in the proposed sale. Each Co-Sale Shareholder’s pro rata
\nportion shall be equal to the product of (i) the outstanding Securities owned
\nby such Co-Sale Shareholder divided by the outstanding Securities owned by [*]
\nand all Co-Sale Shareholders who duly elect to sell Securities in the
\ntransaction, multiplied by (ii) the total number of Securities proposed to be
\nsold in the transaction. The number of Offered Co-Sale Securities to be sold
\nby [*] in the transaction shall be reduced to the extent that Co-Sale
\nShareholders elect to participate in the transaction.<\/p>\n
(b) [*] shall give notice to each Co-Sale
\nShareholder of the proposed sale. Such notice shall contain the proposed
\nsales price per share and the other material terms and conditions on which [*]
\ndesires to sell the Offered Co-Sale Securities. Each Co-Sale Shareholder may
\nexercise its right to participate in the sale pursuant to this Section 16 by
\ngiving notice to [*] and each other Co-Sale Shareholder within fifteen (15)
\ndays after receipt of such notice from [*]. If on any proposed sale, [*]
\nshall be provided a proposed sale notice and the opportunity to exercise
\ntheir co-sale rights hereunder subject to paying the entire remaining portion
\nof the [*] prior to the closing of the proposed sale.<\/p>\n
17. ADDITIONAL CAPITAL. If the Company seeks to raise
\nadditional capital primarily for financing rather than strategic purposes,
\nthe Company shall [*] provided that [*] shall be determined by the Board in
\nits sole good faith discretion.<\/p>\n
18. RIGHT OF FIRST OFFER.<\/p>\n
(a) Subject to the terms and conditions
\nspecified in this Section 18, the Company hereby grants to each Investor a
\nright of first offer with respect to future sales by the Company of its
\nSecurities. Each time the Company proposes to offer any Securities, the
\nCompany shall first make an offering of the Securities to the Investors in
\naccordance with the following provisions.<\/p>\n
(b) The Company shall deliver a notice in
\naccordance with Section 26.2 (“Notice”) to each Investor stating (i) its bona
\nfide intention to offer the Securities, (ii) the number of Securities to be
\noffered (the “Offered Securities”), and (iii) the price and terms upon which
\nit proposes to offer the Offered Securities.<\/p>\n
(c) By written notification received by the
\nCompany, within twenty (20) calendar days after receipt of the Notice, the
\nInvestor may elect to purchase or <\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
12<\/p>\n
obtain, at the price and on the terms specified in the Notice, up to that
\nportion of the Offered Securities that equals the proportion that the number
\nof shares of Securities issued and held by the Investor, after giving effect
\nto the exchange, exercise and conversion of all Securities held by Investor
\nthat are exchangeable and exercisable for and convertible into Securities,
\nbears to the total number of shares of Securities then outstanding, after
\ngiving effect to the exchange, exercise and conversion of all securities then
\noutstanding that are exchangeable and exercisable for and convertible into
\nSecurities.<\/p>\n
(d) Notwithstanding Section 18(c), [*].<\/p>\n
(e) If all Offered Securities that Investors
\nare entitled to obtain pursuant to Sections 18(c) and (d) are not elected to
\nbe obtained as provided in Sections 18(c) and (d) hereof, the Company may,
\nduring the one hundred twenty (120) day period following the expiration of
\nthe period provided in subsection 18(c) hereof, offer the remaining
\nunsubscribed portion of such Offered Securities to any person or persons at a
\nprice not less than, and upon terms no more favorable to the offeree than
\nthose specified in the Notice. If the Company does not enter into an
\nagreement for the sale of the Offered Securities within such period, or if
\nsuch agreement is not consummated within sixty (60) days of the execution
\nthereof, the right provided hereunder shall be deemed to be revived and such
\nOffered Securities shall not be offered unless first reoffered to the
\nInvestor in accordance herewith.<\/p>\n
(f) The right of first offer in this Section
\n18 shall not be applicable to (i) the issuance or sale of shares of Common
\nStock (or options therefor) to employees, directors and consultants for the
\nprimary purpose of soliciting or retaining their services; (ii) the issuance
\nof Securities pursuant to a bona fide public offering of shares of Common
\nStock, (iii) the issuance of Securities in connection with a bona fide
\nbusiness acquisition of or by the Company, whether by merger, consolidation,
\nsale of assets, sale or exchange of stock or otherwise, (iv) the issuance of
\nstock, warrants or other Securities or rights not primarily for equity
\nfinancing purposes to persons or entities with which the Company has business
\nrelationships or will have a strategic business relationship following such
\nissuance, (vi) [*]. The right of first offer in Section 18(c) [*] shall
\nterminate upon the closing of the IPO.<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
13<\/p>\n
19. IPO COMMITMENT.<\/p>\n
(a) The Parties intend that, on or prior to
\nthe [*] anniversary of the Effective Date, the Company will seek to conduct
\nan initial public offering of shares of its Common Stock (“IPO”), subject to
\nprevailing market conditions and the condition and performance of the Company.<\/p>\n
(b) [*]<\/p>\n
(c) Each shareholder agrees to enter into a
\ncustomary market standoff agreement with the underwriter(s) in the IPO with
\nsubstantially the same terms and conditions as set forth in Section 14.<\/p>\n
20. CERTAIN BREACHES. If [*] alleges in writing to the Company,
\nafter consultation with its outside counsel, that it is probable that [*] has
\nbreached any contract between [*], on the one hand, and the Company or any of
\nits controlled Affiliates, on the other hand, the Board shall at the request
\nof [*] form a committee of the Board (the “Litigation Committee”) consisting
\nof [*]. The Committee shall have the sole and exclusive authority to (i)
\ndetermine whether to assert on behalf of the Company that [*] has breached
\nany such contract and (ii) if any such assertion is made, to control the
\nresolution of any such dispute, but only if such dispute is resolved through
\nthe dispute resolution process set forth in Section 26.1 hereof as if
\napplicable to disputes referred to in this Section 20. [*] agrees, upon
\nbehalf of itself and [*] and the Company agrees on behalf of itself and its
\ncontrolled Affiliates to submit any such dispute to the dispute resolution
\nprocess set forth in Section 26.1 hereof.<\/p>\n
21. MODIFICATION OF TRANSACTION AGREEMENTS.<\/p>\n
(a) [*]<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
14<\/p>\n
(b) [*]<\/p>\n
(c) [*]<\/p>\n
(d) [*]<\/p>\n
22. REPRESENTATIONS AND WARRANTIES OF SOFTBANK AND SOFTBANK
\nPARENT. Each of SOFTBANK and SOFTBANK Parent hereby represents and warrants
\nto Ariba and the Company that, as of the Effective Date, the following
\nstatements are and shall be true and correct:<\/p>\n
(a) ORGANIZATION. Each of SOFTBANK and
\nSOFTBANK Parent is a corporation duly organized and validly existing under
\nthe laws of Japan, and has the <\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
15<\/p>\n
corporate power and authority to enter into and perform this Agreement and
\nthe other Transaction Agreements to which it is a party.<\/p>\n
(b) PERMITS; APPROVALS. Each of SOFTBANK and
\n‘ SOFTBANK Parent holds all licenses, permits, certifications and other
\nauthorizations, the absence of which would have a material adverse effect on
\nits financial condition or business, and there has been no default or
\nviolation under any such authorization and there is no proceeding or
\ninvestigation that is pending or, to each such Party’s knowledge, threatened
\nunder which any such authorization may be revoked, terminated or suspended.<\/p>\n
(c) AUTHORIZATION. All corporate action on
\nthe part of each of SOFTBANK and SOFTBANK Parent necessary for the
\nauthorization, execution and delivery of this Agreement and the other
\nTransaction Agreements to which it is a party and for the performance of all
\nof its obligations hereunder and thereunder has been taken, and this
\nAgreement and the other Transaction Agreements to which it is a party when
\nfully executed and delivered, shall each constitute a valid, legally binding
\nand enforceable obligation of each such Party.<\/p>\n
(d) GOVERNMENT AND OTHER CONSENTS. No
\nconsent, authorization, license, permit, registration or approval of, or
\nexemption or other action by, any governmental or public body or authority,
\nor any other Person, is required in connection with the execution, delivery
\nand performance by each of SOFTBANK and SOFTBANK Parent of this Agreement and
\nthe other Transaction Agreements to which it is a party, or if any such
\nconsent is required, each such Party has satisfied the applicable
\nrequirements.<\/p>\n
(e) EFFECT OF AGREEMENT. The execution,
\ndelivery and performance of this Agreement and the other Transaction
\nAgreements to which SOFTBANK or SOFTBANK Parent is a party will not (i)
\nviolate the Articles of Incorporation of such party or any provision of any
\nlaw, statute, rule or regulation to which such party is subject, (ii) violate
\nany judgment, order, writ, injunction or decree of any court applicable to
\nsuch party, (iii) have any effect on the compliance of such party with any
\napplicable licenses, permits or authorizations which would materially and
\nadversely affect such party, (iv) result in the breach of, give rise to a
\nright of termination, cancellation or acceleration of any obligation with
\nrespect to (presently or with the passage of time), or otherwise be in
\nconflict with any term of, or affect the validity or enforceability of, any
\nagreement or other commitment to which such party is a party and which would
\nmaterially and adversely affect such party or (v) result in the creation of
\nany lien, pledge, mortgage, claim, charge or encumbrance upon any assets of
\nsuch party.<\/p>\n
(f) LITIGATION. There are no actions, suits
\nor proceedings pending or, to such party’s knowledge, threatened, against
\nsuch party before any court or governmental agency which question such
\nparty’s right to enter into or perform its obligations under this Agreement
\nor the other Transaction Agreements to which it is a party, or which question
\nthe validity of this Agreement or any of the other Transaction Agreements.<\/p>\n
(g) DISCLOSURE. No representation or warranty
\nby SOFTBANK or SOFTBANK Parent contained in this Agreement or in any other
\nTransaction Agreements to which such party is a party, and no exhibit,
\nwriting or other instrument required to be furnished <\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission. <\/p>\n
16<\/p>\n
by such party pursuant hereto or thereto contains any untrue statement of a
\nmaterial fact or omits any material fact necessary in order to make the
\nstatements and information contained herein or therein not misleading.<\/p>\n
23. REPRESENTATIONS AND WARRANTIES OF ARIBA. Ariba hereby
\nrepresents and warrants to SOFTBANK Parent and SOFTBANK that, as of the
\nEffective Date, the following statements are true and correct:<\/p>\n
(a) ORGANIZATION. Ariba is a corporation duly
\norganized and validly existing under the laws of Delaware. Ariba has the
\ncorporate power and authority to enter into and perform this Agreement and
\nthe other Transaction Agreements to which it is a party.<\/p>\n
(b) PERMITS; APPROVALS. Ariba holds all
\nlicenses, permits, certifications and other authorizations, including without
\nlimitation any such authorizations required under U.S. federal securities
\nlaws, the absence of which would have a material adverse effect on the
\nfinancial condition or business of Ariba, and there has been no default or
\nviolation under any such authorization and there is no proceeding or
\ninvestigation that is pending or, to Ariba’s knowledge, threatened under
\nwhich any such authorization may be revoked, terminated or suspended.<\/p>\n
(c) AUTHORIZATION. All corporate action on
\nthe part of Ariba necessary for the authorization, execution and delivery of
\nthis Agreement and the other Transaction Agreements to which it is a party
\nand for the performance of all of its obligations hereunder and thereunder
\nhas been taken, and this Agreement, the License Agreement and the other
\nTransaction Agreements to which it is a party, when fully executed and
\ndelivered, shall each constitute a valid, legally binding and enforceable
\nobligation of Ariba.<\/p>\n
(d) GOVERNMENT AND OTHER CONSENTS. Except as
\ndisclosed in the Transaction Agreements, no consent, authorization, license,
\npermit, registration or approval of, or exemption or other action by, any
\ngovernmental or public body or authority, or any other Person, is required in
\nconnection with Ariba’s execution, delivery and performance of this Agreement
\nor the other Transaction Agreements to which it is a party, or if any such
\nconsent is required, Ariba has satisfied any applicable requirements.<\/p>\n
(e) EFFECT OF AGREEMENT. Ariba’s execution,
\ndelivery and performance of this Agreement and the other Transaction
\nAgreements to which it is a party will not (i) violate the Certificate of
\nIncorporation of Ariba or any provision of any law, statue, rule or
\nregulation to which it is subject, (ii) violate any judgment, order, writ,
\ninjunction or decree of any court applicable to Ariba, (iii) have any effect
\non the compliance of Ariba with any applicable licenses, permits or
\nauthorizations which would materially and adversely affect Ariba, (iv) result
\nin the breach of, give rise to a right of termination, cancellation or
\nacceleration of any obligation with respect to (presently or with the passage
\nof time), or otherwise be in conflict with, any term of, or affect the
\nvalidity or enforceability of any agreement or other commitment to which
\nAriba is a party and which would materially and adversely affect Ariba, or
\n(v) result in the creation of any lien, pledge, mortgage, claim, charge or
\nencumbrance upon any assets of Ariba.<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission. <\/p>\n
17<\/p>\n
(f) LITIGATION. There are no actions, suits
\nor proceedings pending or, to Ariba’s knowledge, threatened, against Ariba
\nbefore any court or governmental agency which question Ariba’s right to enter
\ninto or perform this Agreement or other Transaction Agreements to which it is
\na party, or which question the validity of this Agreement or any of the other
\nTransaction Agreements.<\/p>\n
(g) DISCLOSURE. No representation or warranty
\nby Ariba contained in this Agreement or any other Transaction Agreement to
\nwhich it is a party, and no exhibit, writing or other instrument required to
\nbe furnished pursuant hereto contains any untrue statement of a material fact
\nor omits any material fact necessary in order to make the statements and
\ninformation contained herein or therein not misleading.<\/p>\n
24. EFFECTIVENESS, TERM AND TERMINATION.<\/p>\n
24.1 TERM. This Agreement shall be effective as of the
\nEffective Date and shall continue in effect until and unless terminated
\npursuant to Section 24.2.<\/p>\n
24.2 TERMINATION. This Agreement may be terminated as
\nfollows:<\/p>\n
(a) Upon the Parties’ mutual written agreement.<\/p>\n
(b) By either Ariba or the Company, effective
\nimmediately upon written notice to the other Parties, if either SOFTBANK
\nParent or SOFTBANK breaches any material provision of this Agreement or of
\nany of the other Transaction Agreements in any material respect and such
\nbreach continues for a period of thirty (30) days after the delivery of
\nwritten notice of the default, describing the default in reasonable detail.<\/p>\n
(c) By either SOFTBANK Parent or SOFTBANK,
\neffective immediately upon written notice to the other Parties, if Ariba or
\nthe Company breaches any material provision of this Agreement or of any of
\nthe other Transaction Agreements in any material respect and such breach
\ncontinues for a period of thirty (30) days after the delivery of written
\nnotice of the default, describing the default in reasonable detail.<\/p>\n
(d) By either SOFTBANK Parent or SOFTBANK,
\neffective immediately upon written notice to Ariba and the Company, in the
\nevent that either Ariba or the Company terminates or elects to terminates [*]
\nin accordance with its terms.<\/p>\n
(e) Ariba, effective immediately upon written
\nnotice to the other Parties in the event that either Ariba or the Company has
\nelected to terminate [*] in accordance with its terms.<\/p>\n
(f) By either SOFTBANK Parent, SOFTBANK,
\nAriba or the Company, effective immediately upon written notice to the other
\nParties, in the event that any other Party is dissolved, liquidated or
\ndeclared bankrupt or a filing for voluntary or involuntary.<\/p>\n
(g) Notwithstanding the foregoing, the right
\nof SOFTBANK and SOFTBANK Parent to terminate this Agreement pursuant to
\nSection 24.2(c), as a result of a breach by the Company, or pursuant to
\nSection 24.2(d), as a result of a termination of [*],<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
18<\/p>\n
shall exist only if [*] and only if no [*] is in effect.<\/p>\n
24.3 CONTINUING LIABILITY. Notwithstanding the
\nforegoing, Article 25 and Article 26 (except for Section 26.6, which shall
\nnot survive termination) shall survive a termination of the Agreement.
\nTermination of this Agreement for any reason shall not release any Party from
\nany liability or obligation which has already accrued as of the effective
\ndate of such termination, and shall not constitute a waiver or release of, or
\notherwise be deemed to prejudice or adversely affect, any rights, remedies or
\nclaims, whether for damages or otherwise, which a Party may have hereunder,
\nat law, equity or otherwise or which may arise out of or in connection with
\nsuch termination.<\/p>\n
25. INCIDENTAL AND CONSEQUENTIAL DAMAGES.<\/p>\n
NO PARTY NOR ITS AFFILIATES WILL BE LIABLE TO THE OTHER PARTIES UNDER ANY
\nCONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY INDIRECT,
\nINCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST
\nPROFITS) WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT.<\/p>\n
EACH PARTY AGREES AND ACKNOWLEDGES THAT MONEY DAMAGES MAY NOT BE AN ADEQUATE
\nREMEDY FOR ANY BREACH OF THE PROVISIONS OF THIS AGREEMENT AND THAT EACH PARTY
\nMAY, IN ITS SOLE DISCRETION, APPLY FOR SPECIFIC PERFORMANCE AND INJUNCTIVE
\nRELIEF IN ORDER TO ENFORCE OR PREVENT ANY VIOLATIONS OF THE PROVISIONS OF
\nTHIS AGREEMENT.<\/p>\n
26. MISCELLANEOUS.<\/p>\n
26.1 GOVERNING LAW; DISPUTE RESOLUTION. The validity,
\nconstruction and enforceability of this Agreement shall be governed by and
\nconstrued in accordance with the laws of the State of California. All
\ndisputes between the Parties arising out of this Agreement shall be settled
\nby the Parties amicably through good faith discussions upon the written
\nrequest of any Party. In the event that any such dispute cannot be resolved
\nthereby within a period of sixty (60) days after such notice has been given,
\nsuch dispute shall be finally settled by arbitration in San Francisco,
\nCalifornia, using the English language in accordance with the Rules of
\nArbitration of the American Arbitration Association then in effect, by one or
\nmore arbitrators appointed in accordance with such Rules. The arbitrator(s)
\nshall have the authority to grant specific performance and to allocate
\nbetween the Parties the costs of arbitration in such equitable manner as the
\narbitrator(s) may determine. The prevailing Party in the arbitration shall be
\nentitled to receive reimbursement of its reasonable expenses incurred in
\nconnection therewith. Judgment upon the award so rendered may be entered in
\nany court having jurisdiction or application may be made to such court for
\njudicial acceptance of any award and an order of enforcement, as the case may
\nbe. Notwithstanding the foregoing, each Party shall have the right to
\ninstitute a legal action in a court of proper jurisdiction for injunctive
\nrelief and\/or a decree for specific performance to enforce such Party’s
\nrights hereunder pending final settlement by arbitration.<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
19<\/p>\n
26.2 NOTICES AND OTHER COMMUNICATIONS. Unless otherwise
\nprovided, any notice required or permitted under this Agreement shall be
\ngiven in writing and in English and shall be deemed effectively given (i)
\nupon personal delivery to the party to be notified, (ii) by delivery by
\nconfirmed facsimile or (iii) three (3) Business Days after being provided to
\nan internationally recognized courier service with an expected delivery of no
\nmore than three (3) business days, in each case to the party to be notified
\nat the address indicated for such party on the signature page hereof, or at
\nsuch other address as such party may designate by ten (10) days’ advance
\nwritten notice to the other Parties:<\/p>\n
(a) If to SOFTBANK Parent<\/p>\n
[*]<\/p>\n
with a copy to:<\/p>\n
[*]<\/p>\n
(b) If to SOFTBANK<\/p>\n
[*]<\/p>\n
with a copy to:<\/p>\n
[*]<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
20<\/p>\n
(c) If to the Company<\/p>\n
[*]<\/p>\n
with a copy to:<\/p>\n
[*]<\/p>\n
(d) If to Ariba<\/p>\n
[*]<\/p>\n
with a copy to:<\/p>\n
[*]<\/p>\n
26.3 LANGUAGE. This Agreement is in the English
\nlanguage only, which language shall be controlling in all respects, and all
\nversions hereof in any other language shall be for accommodation only and
\nshall not be binding upon the Parties. All communications and notices to be
\nmade or given pursuant to this Agreement shall be in the English language.<\/p>\n
26.4 SEVERABILITY. If any provision in this Agreement
\nshall be found or be held to be invalid or unenforceable (including, without
\nlimitation, as a result of objections by the Japanese Fair Trade Commission)
\nthen the meaning of said provision shall be construed, to the extent
\nfeasible, so as to render the provision enforceable, and if no feasible
\ninterpretation would save such provision, it shall be severed from the
\nremainder of this Agreement which shall remain in full force and effect
\nunless the severed provision is essential and material to the rights or
\nbenefits received by any Party. In such event, the Parties shall use
\ncommercially reasonable efforts to negotiate, in good faith, a substitute,
\nvalid and enforceable provision or agreement which most nearly affects the
\nParties’ intent in entering into this Agreement.<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
21<\/p>\n
26.5 REFERENCES; SUBJECT HEADINGS. Unless otherwise
\nindicated, references to Sections and Exhibits herein are to Sections of, and
\nExhibits to, this Agreement. The subject headings of the Sections of this
\nAgreement are included for the purpose of convenience of reference only, and
\nshall not affect the construction or interpretation of any of its provisions.<\/p>\n
26.6 FURTHER ASSURANCES. The Parties shall each perform
\nsuch acts, execute and deliver such instruments and documents, and do all
\nsuch other things as may be reasonably necessary to accomplish the
\ntransactions contemplated in this Agreement.<\/p>\n
26.7 EXPENSES. Each of the Parties will bear its own
\ncosts and expenses, including, without limitation, fees and expenses of legal
\ncounsel, accountants, brokers, consultants and other representatives used or
\nhired in connection with the negotiation and preparation of this Agreement
\nand consummation of the transactions contemplated hereby.<\/p>\n
26.8 NO WAIVER. No waiver of any term or condition of
\nthis Agreement shall be valid or binding on a Party unless the same shall
\nhave been set forth in a written document, specifically referring to this
\nAgreement and duly signed by the waiving Party. The failure of a Party to
\nenforce at any time any of the provisions of this Agreement, or the failure
\nto require at any time performance by the other Party of any of the
\nprovisions of this Agreement, shall in no way be construed to be a present or
\nfuture waiver of such provisions, nor in any way affect the ability of a
\nParty to enforce each and every such provision thereafter.<\/p>\n
26.9 ENTIRE AGREEMENT; AMENDMENTS. The terms and
\nconditions contained in this Agreement (including the Exhibits hereto) and
\nthe other Transaction Agreements constitute the entire agreement between the
\nParties and supersede all previous agreements and understandings, except for
\nthe Ariba Non-Disclosure Agreement, whether oral or written, between the
\nParties with respect to the subject matter hereof. No agreement or
\nunderstanding amending this Agreement shall be binding upon any Party unless
\nset forth in a written document in English which expressly refers to this
\nAgreement and which is signed and delivered by duly authorized
\nrepresentatives of each Party.<\/p>\n
26.10 ASSIGNMENT. No Party shall assign this Agreement
\n(or any right or obligation hereunder) without the other Parties’ prior
\nwritten consent, except that (i) [*] may assign this Agreement to a Person
\ninto which it has merged or which has otherwise succeeded to all or
\nsubstantially all of [*] business or assets and (ii) [*] may assign this
\nAgreement to a Person that is a wholly owned subsidiary of [*], respectively,
\nor a Person who has succeeded to all or substantially all of the business or
\nassets of [*], respectively. All assignees under this Section 26.10 must
\nassume in writing or by operation of law, the assigning Party’s obligations
\nunder this Agreement, provided, however, that the assigning Party shall
\nremain liable for the assignee’s performance of its obligations hereunder.
\nThis Agreement shall inure to the benefit of, and shall be binding upon, the
\nParties and their respective permitted successors and assigns.<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
22<\/p>\n
26.11 NO AGENCY. The Parties are independent
\ncontractors. Nothing contained herein or done in pursuance of this Agreement
\nshall constitute any Party the agent of any other Party for any purpose or in
\nany sense whatsoever.<\/p>\n
26.12 NO BENEFICIARIES. Nothing herein express or
\nimplied, is intended to or shall be construed to confer upon or give to any
\nperson, firm, corporation or legal entity, other than the Parties, any
\ninterests, rights, remedies or other benefits with respect to or in
\nconnection with any agreement or provision contained herein or contemplated
\nhereby.<\/p>\n
26.13 COUNTERPARTS. This Agreement may be executed in
\nany number of counterparts, and each counterpart shall constitute an original
\ninstrument, but all such separate counterparts shall constitute only one and
\nthe same instrument.<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission. <\/p>\n
23<\/p>\n
IN WITNESS WHEREOF, the Parties have caused their respective duly
\nauthorized representatives to execute this Agreement as of the date hereof.<\/p>\n
SOFTBANK CORP.<\/p>\n
By: \/s\/ MASAYOSHI SON
\n ——————————————–<\/p>\n
Title:
\n ——————————————–<\/p>\n
SOFTBANK E-COMMERCE CORP.<\/p>\n
By: \/s\/ KEN MIYAUCHI
\n ——————————————–<\/p>\n
Title:
\n ——————————————–<\/p>\n
ARIBA, INC.<\/p>\n
By: \/s\/ KEITH J. KRACH
\n ——————————————–<\/p>\n
Title: Chairman & CEO
\n ——————————————–<\/p>\n
NIHON ARIBA K.K.<\/p>\n
By: \/s\/ KEITH J. KRACH
\n ——————————————–<\/p>\n
Title: Chairman & CEO
\n ——————————————–<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission. <\/p>\n
Exhibit 1.27<\/p>\n
[*]<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
Exhibit 4(d)<\/p>\n
[*]<\/p>\n
[*]<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
Exhibit 21(b)<\/p>\n
[*]<\/p>\n
[*]<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n
SCHEDULE 15<\/p>\n
[*]<\/p>\n
* Represents confidential information for which Ariba, Inc. is seeking
\n confidential treatment with the Securities and Exchange Commission.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6749],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9629,9633],"class_list":["post-43928","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-ariba-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-securities","corporate_contracts_types-securities__shareholder"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43928","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=43928"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43928"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43928"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43928"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}