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EXHIBIT 10.1
SHARE PURCHASE AGREEMENT
BY AND BETWEEN
COMMERCE ONE, INC.
AND
SAP AG
JUNE 14, 2000
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TABLE OF CONTENTS
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ARTICLE PAGE
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1. Agreement To Sell And Purchase Shares......................1
1.1 Sale and Purchase of Shares.........................1
1.2 Closings............................................1
1.3 Legends; Stop Transfer Orders.......................2
2. Representations and Warranties of Commerce One.............3
2.1 Organization, Standing and Power....................3
2.2 Authority; Binding Nature of Agreements.............3
2.3 Non-Contravention; Consents.........................4
2.4 Capital Structure...................................4
2.5 Litigation..........................................5
2.6 Brokers.............................................5
2.7 SEC Filings; Financial Statements...................5
2.8 No Undisclosed Liabilities, Absence of
Certain Events and Changes..........................6
2.9 Intellectual Property...............................6
2.10 Material Contracts..................................7
2.11 Sufficiency of Assets...............................7
2.12 Compliance with Applicable Law......................7
3. Representations and Warranties of SAP AG...................7
3.1 Organization and Good Standing......................7
3.2 Authority; Binding Nature of Agreements.............8
3.3 Non-Contravention; Consents.........................8
3.4 Litigation..........................................8
3.5 Brokers.............................................8
3.6 Investment Representations..........................8
3.7 Disclosure..........................................9
4. Conditions to Closing.....................................10
4.1 Conditions to SAP AG's Obligations.................10
4.2 Conditions to Commerce One's Obligations...........11
5. Additional Agreements.....................................12
5.1 Filings and Consents...............................12
5.2 Covenant to Satisfy Conditions.....................12
5.3 Further Assurances.................................12
5.4 Adjustment to Number and Type of Securities
and Purchase Price.................................12
5.5 No Impairment of Rights............................13
5.6 Notification of Certain Matters....................14
5.7 Public Announcements...............................14
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ARTICLE PAGE
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5.8 Execution of Other Agreements......................14
6. Termination...............................................14
6.1 Termination Events.................................14
6.2 Effect of Termination..............................15
7. Miscellaneous.............................................15
7.1 Interpretation.....................................15
7.2 Fees and Expenses..................................15
7.3 Governing Law; Jurisdiction and Venue..............15
7.4 Specific Enforcement...............................16
7.5 No Third Party Beneficiaries.......................17
7.6 Entire Agreement...................................17
7.7 Severability.......................................17
7.8 Amendment and Waiver...............................17
7.9 Assignment and Successors..........................17
7.10 Relationship of the Parties........................17
7.11 Notices............................................18
7.12 Facsimile; Counterparts............................18
7.13 Survival of Representations and Warranties.........18
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EXHIBIT A - CERTAIN DEFINITIONS
EXHIBIT B - FORM OF OPINION OF WSGR
EXHIBIT C - FORM OF OPINION OF SAP AG INDEPENDENT COUNSEL
EXHIBIT D - FORM OF SAP AG REGISTRATION RIGHTS AGREEMENT
EXHIBIT E - FORM OF STANDSTILL AGREEMENT
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EXECUTION COPY
SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (this "AGREEMENT") is entered into as of
June 14, 2000, by and between Commerce One, Inc., a Delaware corporation
("COMMERCE ONE"), and SAP Aktiengellschaft, a stock corporation incorporated
under the laws of the Federal Republic of Germany ("SAP AG").
WHEREAS, SAP AG wishes to purchase from Commerce One, and Commerce One
wishes to issue and sell to SAP AG, certain shares of the Common Stock, par
value $0.0001 per share, of Commerce One (the "COMMON STOCK");
WHEREAS, SAP AG and Commerce One wish to provide for additional rights
with respect to the shares of Common Stock to be purchased pursuant to this
Agreement and to make certain representations, warranties and covenants in
connection with the purchase and sale of such shares of Common Stock;
WHEREAS, certain defined terms used herein are defined in EXHIBIT A to
this Agreement; and
WHEREAS, SAP AG and Commerce One agree and acknowledge that Commerce One
may, at its discretion, issue and sell shares of Common Stock to Microsoft
Corporation and Andersen Consulting LLC (and investment affiliates thereof)
following the date of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. AGREEMENT TO SELL AND PURCHASE SHARES.
1.1 SALE AND PURCHASE OF SHARES. Subject to the terms and conditions
hereof, Commerce One agrees to issue and sell to SAP AG shares of Common
Stock in exchange for up to $250,000,000 (the "Aggregate Purchase Price"),
and SAP AG, subject to the terms and conditions hereof, agrees to purchase
shares of Common Stock in exchange for the Aggregate Purchase Price.
1.2 CLOSINGS.
(a) The initial closing of the purchase and sale of Common Stock
hereunder (the "INITIAL CLOSING") shall take place at 10 a.m. on June 14,
2000 the ("INITIAL CLOSING DATE") at the offices of Wilson Sonsini Goodrich &
Rosati, 650 Page Mill Road, Palo Alto, California 94304, or at such other
time and place as Commerce One and SAP AG shall mutually agree. Subject to
the terms and conditions of this Agreement, at the Initial Closing, SAP AG
shall deliver to Commerce One a check or a wire transfer of immediately
available funds in the amount of $175,000,000; and Commerce One shall deliver
to SAP AG one or more stock certificates (as
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requested by SAP AG) representing the Initial Shares. The "Initial Shares"
shall mean 3,851,233 shares of Common Stock.
(b) The second closing of the purchase and sale of Common Stock
hereunder (the "Second Closing") shall take place on the effective date of
the Strategic Alliance Agreement (the "Second Closing Date"); it being
understood, however, that in the event the Strategic Alliance Agreement is
not executed and delivered prior to the termination of this Agreement
pursuant to Section 6.1 herein, the parties hereto have no obligation to
effect the Second Closing. At the Second Closing, subject to the terms and
conditions of this Agreement, SAP AG shall deliver to Commerce One a check or
a wire transfer of immediately available funds in the amount of $75,000,000
the "Second Purchase Price"; and Commerce One shall deliver to SAP AG one or
more stock certificates (as requested by SAP AG) representing the Second
Shares. The "Second Shares" shall mean the number of shares of Common Stock
determined by dividing the Second Purchase Price by an amount equal to the
lesser of (i) the average of the daily closing prices of Common Stock as
reported on the Nasdaq Stock Market for the last 20 full trading days
preceding the date of the Second Closing, and (ii) in the event that, prior
to the Second Closing, Commerce One enters into a definitive agreement
providing for the sale of Common Stock to Microsoft Corp., the price per
share of the Common Stock to be sold to Microsoft Corp. pursuant to such
definitive agreement.
(c) Collectively, the Initial Shares and the Second Shares shall
be the "Shares." When issued pursuant to the terms and conditions of this
Agreement, the shares shall be free and clear of any and all Liens (other
than any Liens created by the Related Equity Agreements and any restrictions
imposed by applicable securities laws).
(d) Unless the context herein requires otherwise, the Initial
Closing and the Second Closing shall each be a "Closing" and the Initial
Closing Date and the Second Closing Date shall each be a "Closing Date."
1.3 Legends; Stop Transfer Orders.
(a) All certificates representing the Shares shall bear the
following legends:
(i) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"). SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM. COMMERCE ONE MAY
REQUIRE AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT THAT A PROPOSED
TRANSFER OR SALE IS IN COMPLIANCE WITH THE ACT."
(ii) "THE SALE OR TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED BY THE TERMS OF
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A STANDSTILL AND STOCK RESTRICTION AGREEMENT, DATED JUNE 14, 2000, BY AND
BETWEEN COMMERCE ONE, INC. AND SAP AG. COPIES OF THE AGREEMENT MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDERS OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF COMMERCE ONE AT THE PRINCIPAL EXECUTIVE
OFFICES OF COMMERCE ONE."
(iii) Any legend required by the blue sky or securities laws
of any state or jurisdiction to the extent such laws are applicable to the
shares represented by the certificate so legended.
(b) The certificates representing the Shares will be subject to a
stop transfer order with Commerce One's transfer agent that restricts the
transfer of the Shares except in compliance with this Agreement and the
Standstill Agreement.
(c) Upon request of SAP AG at any time when any of the Shares are
no longer subject to the restrictions set forth in any of the legends
described in Section 1.3(a), Commerce One shall, and shall cause its transfer
agent to, remove such restrictive legends from the certificates representing
such Shares and to cancel the stop order referred to in Section 1.3(b) with
respect to such Shares.
2. REPRESENTATIONS AND WARRANTIES OF COMMERCE ONE.
Commerce One hereby represents and warrants to SAP AG as follows:
2.1 ORGANIZATION, STANDING AND POWER. Commerce One is, and on the
Closing Date will be, a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Commerce One has, and
on the Closing Date will have, the corporate power and authority to own its
properties and to carry on its business as now being conducted (or as being
conducted on the Closing Date) and is, and on the Closing Date will be, duly
qualified as a foreign corporation to do business and is, and on the Closing
Date will be, in good standing in each jurisdiction in which the failure to
be so qualified would have a Material Adverse Effect on Commerce One.
2.2 AUTHORITY; BINDING NATURE OF AGREEMENTS. Commerce One has all
requisite corporate power and authority to enter into this Agreement and any
Related Equity Agreements to which it is a party and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of
this Agreement and any Related Equity Agreements to which it is a party and
the consummation of the transactions contemplated hereby and thereby have
been duly authorized by all necessary corporate action on the part of
Commerce One. No vote or approval of the stockholders of Commerce One is
necessary in connection with the execution, delivery and performance by
Commerce One of this Agreement or any Related Equity Agreement to which it is
a party. This Agreement and any Related Equity Agreement to which Commerce
One is a party have been duly executed and delivered by Commerce One and
constitute the valid and binding obligations of Commerce One, enforceable in
accordance with their terms, except as such enforceability may be
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limited by principles of public policy and subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies.
2.3 NON-CONTRAVENTION; CONSENTS.
(a) Neither the execution and delivery by Commerce One, nor the
consummation or performance by Commerce One of any of the transactions to be
consummated or performed by it under this Agreement or any Related Equity
Agreement, will directly or indirectly (with or without notice or lapse of
time): (i) violate any provision of Commerce One's Certificate of
Incorporation or Bylaws, (ii) constitute or result in a breach or default by
Commerce One or any of its subsidiaries, or give rise to a right of
termination, amendment, cancellation or acceleration on the part of any other
party, or result in the creation or imposition of any Lien on Commerce One's
assets, under any agreement or instrument to which Commerce One or any of its
subsidiaries is a party or by which Commerce One or any of its subsidiaries
is bound, which breach, default, termination or Lien would have a Material
Adverse Effect on Commerce One, or (iii) constitute a violation by Commerce
One or any of its subsidiaries of any Requirement of Law.
(b) No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
Governmental Authority or other Person on the part of Commerce One or any of
its subsidiaries is required in connection with the execution, delivery and
performance by Commerce One of this Agreement and the Related Equity
Agreements or the consummation of the transactions contemplated hereby and
thereby.
(c) Commerce One is not in violation of any provision of its
Certificate of Incorporation or Bylaws or any other agreement, contract,
obligation or commitment, which violation would materially affect its ability
to perform its obligations under this Agreement or any of the Related Equity
Agreements or has, or could reasonably be expected to have, a Material
Adverse Effect on Commerce One.
2.4 CAPITAL STRUCTURE.
(a) As of May 15, 2000, the authorized capital stock of
Commerce One consists of 250,000,000 shares of Common Stock, $.0001 par
value, of which 155,657,799 shares are issued and outstanding on such date,
and 10,000,000 shares of undesignated Preferred Stock, $.0001 par value, none
of which are issued or outstanding on such date. All such shares of Commerce
One have been duly authorized, and all such issued and outstanding shares
have been validly issued, are fully paid and nonassessable and are free of
any Liens or encumbrances other than any Liens or encumbrances created by or
imposed upon the holders thereof. Commerce One has also reserved 66,060,944
shares of Common Stock for issuance pursuant to its employee and director
stock and option and stock purchase plans (the "PLANS"), 28,289,507 of which
were issuable upon exercise of such outstanding stock options as of May 15,
2000. In addition, 38,000,000 other shares of Common Stock are issuable
pursuant to outstanding stock options (other than those described above),
warrants, rights, convertible or exchangeable securities or other agreements
as of May 15, 2000. Except as contemplated by this Agreement, there are no
other options, warrants, rights,
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convertible or exchangeable securities, commitments, or agreements of any
character to which Commerce One is a party or by which it is bound obligating
Commerce One to issue, deliver, sell, repurchase or redeem, or cause to be
issued, delivered, sold, repurchased or redeemed, any shares of the capital
stock of Commerce One or any securities convertible into or exchangeable for
capital stock of Commerce One or obligating Commerce One to grant, extend or
enter into any such option, warrant, right, commitment or agreement. There
are no outstanding bonds, debentures, notes or other obligations issued by
Commerce One which permit the holders thereof to vote with the stockholders
of Commerce One on any matter. On May 31, 2000, Commerce One stockholders
approved (i) an increase of 3,500,000 in the number of shares authorized
under the Commerce One 1997 Incentive Stock Option Plan, (ii) an increase of
3,700,000 in the number of shares authorized under the Commerce One 1999
Employee Stock Purchase Plan, (iii) an increase in the number of authorized
shares of Common Stock to 950,000,000 and (iv) an increase in the number of
authorized shares of Preferred Stock to 50,000,000. With the exception of
the previous sentence, no material change in the capitalization of Commerce
One has occurred since May 15, 2000.
(b) The shares of Common Stock to be issued pursuant to this
Agreement have been duly authorized, and when issued to SAP AG in accordance
with the terms hereof, will be validly issued, fully paid and non-assessable,
free of any Liens except as provided in this Agreement or any of the Related
Equity Agreements or applicable securities laws.
2.5 LITIGATION. As of the date hereof, there are no claims,
actions, suits, proceedings or investigations pending or, to the knowledge of
Commerce One, threatened against Commerce One or any of its subsidiaries or
any of their properties or assets before any Governmental Authority which (i)
in any manner challenge or seek to prevent, enjoin, alter or materially delay
the transactions contemplated by this Agreement or (ii) could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
on Commerce One. None of the Company or any of its subsidiaries or any of
their assets or properties (whether leased or owned) are subject to any
orders, judgments, injunctions or decrees which could reasonably be expected
to have a Material Adverse Effect on Commerce One.
2.6 BROKERS. Except for the investment bank previously disclosed
to SAP AG, whose fees and expenses will be paid by Commerce One, Commerce One
has not granted or become obligated to pay, or taken any action that likely
would result in any Person claiming to be entitled to receive from Commerce
One, any brokerage commission, finder's fee or similar commission or fee in
connection with any of the transactions contemplated by this Agreement.
2.7 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Commerce One has timely and properly filed all forms,
schedules, reports, prospectuses, proxy statements and documents required to
be filed by Commerce One with the SEC (the "COMMERCE ONE SEC REPORTS") and
has made available true and correct copies thereof to SAP AG. The Commerce
One SEC Reports (i) at the time they were filed, complied in all material
respects with the requirements of the Securities Act or the Exchange Act, as
the case may be, and the rules and regulations promulgated thereunder, and
(ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such
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filing) contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Commerce One makes no representation or warranty whatsoever
concerning the Commerce One SEC Reports as of any time other than the time
they were filed. None of Commerce One's subsidiaries are required to file
any forms, reports or other documents with the SEC.
(b) Each of the consolidated financial statements (including,
in each case, any related notes thereto) (the "COMMERCE ONE FINANCIAL
STATEMENTS") contained in the Commerce One SEC Reports has been prepared in
accordance with GAAP applied on a consistent basis throughout the period
involved (except as may be indicated in the notes thereto) and complied in
all material respects with the rules and regulations of the SEC. Each of the
Commerce One Financial Statements fairly presents in all material respects
the consolidated financial position of Commerce One and its subsidiaries as
at the respective dates thereof and the consolidated results of its
operations and cash flows for the periods indicated, except that the
unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments which were not or are not expected to be,
individually or in the aggregate, materially adverse to Commerce One and its
subsidiaries taken as a whole.
2.8 NO UNDISCLOSED LIABILITIES, ABSENCE OF CERTAIN EVENTS AND
CHANGES. Except as otherwise disclosed in the Commerce One SEC Reports,
since March 31, 2000 neither Commerce One nor any of its subsidiaries has
incurred any liabilities or obligations (whether absolute or contingent)
other than those arising from operations in the ordinary course of business
consistent with past practice. Since December 31, 1999, except as disclosed
in the Commerce One SEC Reports filed with the SEC and publicly available
prior to the date hereof, there has not been any event, occurrence,
development or circumstances and there has been no change in or development
with respect to the business, condition (financial or otherwise), assets,
liabilities, properties, operations or results of operations of Commerce One
and its subsidiaries except events, occurrences, developments, circumstances
and changes in and developments with respect to the ordinary course of
business of Commerce One consistent with past practice which have not had or
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Commerce One.
2.9 INTELLECTUAL PROPERTY. Commerce One and its subsidiaries own,
free and clear of all Liens, and have good and marketable title to, or hold
adequate licenses or otherwise possess all such rights as are necessary to
use all patents (and applications therefor), patent disclosures, trademarks,
service marks, trade names, copyrights (and applications therefor),
inventions, discoveries, processes, know-how, scientific, technical,
engineering and marketing data, formulae and techniques (collectively,
"Intellectual Property") necessary for the conduct of their business as now
conducted. To Commerce One's knowledge, the business of Commerce One as
presently conducted does not infringe upon or violate any Intellectual
Property rights of others except where such infringement or violation,
individually or in the aggregate, would not have a Material Adverse Effect on
Commerce One.
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2.10 MATERIAL CONTRACTS. Except as disclosed in the Commerce One
SEC Reports, neither Commerce One nor any of its subsidiaries is, nor to the
knowledge of Commerce One is any other party, in material default under, or
in material breach or material violation of any "material contracts" within
the meaning of Item 601 of Regulation S-K of the SEC to which Commerce One or
any of its subsidiaries is a party or any material contracts concerning
Commerce One's Intellectual Property (collectively, "Commerce One Material
Contracts"). All of the Commerce One Material Contracts are valid, binding
and in full force and effect in all material respects and enforceable by
Commerce One in accordance with their respective terms. No event has
occurred which, with the giving of notice or passage of time or both, would
constitute a material default by Commerce One or, to the knowledge of
Commerce One, any of its subsidiaries or any other party under any Commerce
One Material Contract.
2.11 SUFFICIENCY OF ASSETS. Commerce One has good and marketable
title to its property and assets, free and clear of all Liens, except such
Liens which arise in accordance with the ordinary course of business and do
not materially impair Commerce One's ownership or use of such property or
assets. With respect to the property and assets it leases, Commerce One is
in compliance with such leases and, to its knowledge, holds a valid leasehold
interest free of any Liens. The assets and properties of Commerce One and
its subsidiaries (including Commerce One's Intellectual Property), whether
owned, leased, licensed or otherwise held, constitute (i) all of the material
assets and rights that are used by Commerce One and its subsidiaries in the
operation of their business as it is being conducted as of the date hereof
and (ii) all the property, real and personal, tangible and intangible,
necessary for Commerce One and its subsidiaries to conduct such business as
it is being conducted as of the date hereof.
2.12 COMPLIANCE WITH APPLICABLE LAW. Commerce One and its
subsidiaries are in compliance in all material respects with all Requirements
of Law of any Governmental Authority, including those relating to
environmental, occupational health and safety, fair employment and equal
opportunity, and no claims or complaints from any Governmental Authorities or
other parties have been received by Commerce One or any of its subsidiaries,
and, to the knowledge of Commerce One, no claims or complaints are threatened
alleging that Commerce One or any of its subsidiaries is in violation of any
such Requirement of Law except for such claims or complaints which could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Commerce One.
3. REPRESENTATIONS AND WARRANTIES OF SAP AG.
SAP AG hereby represents and warrants to Commerce One as follows:
3.1 ORGANIZATION AND GOOD STANDING. SAP AG is a corporation duly
organized, validly existing and in good standing under the laws of the
Federal Republic of Germany. SAP AG has the corporate power and authority to
own its properties and to carry on its business as now being conducted and is
duly qualified to do business and is in good standing in each jurisdiction in
which the failure to be so qualified would have a Material Adverse Effect on
SAP AG.
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3.2 AUTHORITY; BINDING NATURE OF AGREEMENTS. SAP AG has all
requisite corporate power and authority to enter into this Agreement and any
Related Equity Agreements to which it is a party and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of
this Agreement and any Related Equity Agreements to which it is a party and
the consummation of the transactions contemplated hereby and thereby have
been duly authorized by all necessary corporate action on the part of SAP AG.
This Agreement and any Related Equity Agreements to which SAP AG is party
have been duly executed and delivered by SAP AG and constitute the valid and
binding obligations of SAP AG, enforceable in accordance with their terms,
except as such enforceability may be limited by principles of public policy
and subject to the laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies.
3.3 NON-CONTRAVENTION; CONSENTS.
(a) Neither the execution and delivery by SAP AG, nor the
consummation or performance by SAP AG of any of the transactions to be
consummated or performed by it under this Agreement or the Related Equity
Agreements, will directly or indirectly (with or without notice or lapse of
time): (i) violate any provision of SAP AG's charter documents, (ii)
constitute or result in a breach or default by SAP AG, or give rise to a
right of termination, amendment, cancellation or acceleration on the part of
any other party, or result in the creation or imposition of any Lien on SAP
AG's assets, under any agreement or instrument to which SAP AG is a party or
by which SAP AG is bound which breach, default, termination or Lien would
have a Material Adverse Effect on SAP AG, or (iii) constitute a violation by
SAP AG of any Requirement of Law.
(b) No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
Governmental Authority on the part of SAP AG is required in connection with
the consummation of the transactions contemplated by this Agreement and the
Related Equity Agreements except for any filings to be made after the Initial
Closing as required by the German Competition Act, European Community Treaty
Act and Council Regulation 4064/89.
3.4 LITIGATION. As of the date hereof, there are no actions,
suits, proceedings or investigations pending or, to the knowledge of SAP AG,
threatened against SAP AG or any of its property or assets before any
Governmental Authority which (i) in any manner challenge or seek to prevent,
enjoin, alter or materially delay the transactions contemplated by this
Agreement or (ii) could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect on SAP AG.
3.5 BROKERS. Except for the investment bank previously disclosed
to Commerce One, whose fees and expenses will be paid by SAP AG, SAP AG has
not granted or become obligated to pay, or taken any action that likely would
result in any Person claiming to be entitled to receive from SAP AG, any
brokerage commission, finder's fee or similar commission or fee in connection
with any of the transactions contemplated by this Agreement.
3.6 INVESTMENT REPRESENTATIONS.
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(a) SAP AG understands that none of the Shares has been
registered under the Securities Act. SAP AG also understands that the Shares
are being offered and sold pursuant to an exemption from registration
contained in the Securities Act based in part upon SAP AG's representations
contained in this Agreement, and that Commerce One is relying upon the truth
and accuracy of SAP AG's representations, warranties, acknowledgements and
understandings with respect to the material facts set forth herein.
(b) SAP AG is acquiring the Shares for SAP AG's own account for
investment purposes only, and not with the current intention of making a
public distribution thereof.
(c) SAP AG has substantial experience in evaluating and
investing in private placement transactions of securities in companies
similar to Commerce One so that it is capable of evaluating the merits and
risks of its investment in Commerce One and has the capacity to protect its
own interests. SAP AG, by reason of its business or financial experience, has
the capacity to protect its own interests in connection with the transactions
contemplated by this Agreement and the Related Equity Agreements. SAP AG is
an "accredited investor" as that term is defined in Rule 501(a) of Regulation
D under the Securities Act.
(d) SAP AG acknowledges that the Shares may be required to be
held indefinitely and that SAP AG must bear the economic risk of this
investment indefinitely unless the Shares are subsequently registered under
the Securities Act or an exemption from such registration is available. SAP
AG understands that Commerce One's obligations to register the Shares are set
forth in the SAP Registration Rights Agreement. SAP AG also understands that
there is no assurance that any exemption from registration under the
Securities Act will be available and that, even if available, such exemption
may not allow SAP AG to transfer all or any portion of the Shares under the
circumstances, in the amounts or at the times SAP AG might propose.
(e) SAP AG has been advised or is aware of the provisions of
Rule 144 under the Securities Act ("RULE 144"), which permit limited resale
of shares purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things: (i) the availability of
certain current public information about Commerce One, (ii) the resale
occurring not less than one year after a party has purchased and paid for the
security to be sold, (iii) the sale being through an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Exchange Act) and (iv) the number of shares being sold
during any three-month period not exceeding specified limitations.
(f) SAP AG did not receive any information regarding such
purchase and sale through any general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act.
3.7 DISCLOSURE. SAP AG has received copies of all Commerce One
filings with the SEC that SAP AG has requested. Without limiting Commerce
One's obligations with respect to any representations or warranties made by
Commerce One in this Agreement, SAP AG has been afforded the opportunity to
obtain any additional information deemed necessary by SAP AG to verify the
accuracy of any representations made or information conveyed to SAP AG. SAP AG
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confirms that all documents, records and books pertaining to its investment
in Common Stock and requested by SAP AG have been made available or delivered
to SAP AG. SAP AG has had an opportunity to ask questions of and receive
answers from Commerce One, or from a person or persons acting on Commerce
One's behalf, concerning the terms and conditions of this investment.
4. CONDITIONS TO CLOSING.
4.1 CONDITIONS TO SAP AG'S OBLIGATIONS. SAP AG's obligation to
purchase the Shares, is subject to the satisfaction, at or prior to the
purchase of the Shares, of the following respective conditions (any of which
may be waived by SAP AG, in whole or in part):
(a) The representations and warranties of Commerce One contained in
Sections 2.1, 2.2 and 2.4 shall be true and correct in all material respects,
in each case as of the date of this Agreement and on the Closing Date with
the same force and effect as though such representations and warranties had
been made on and as of the date of this Agreement and the Closing Date,
except for the representations and warranties in Section 2.4 which address
matters only as a particular date, which shall be true and correct in all
material respects as of such date. The other representations and warranties
of Commerce One contained in this Agreement shall be true and correct in all
respects, in each case as of the date of this Agreement and on and as of the
Closing Date with the same force and effect as though such representations
and warranties had been made on and as of the date of this Agreement and the
Closing Date (other than representations and warranties made specifically
with reference to a particular date, which, subject to the following proviso
shall have been true and correct as of such date), except in each case, or in
the aggregate, as does not constitute a Material Adverse Effect on Commerce
One (it being understood that, for purposses of determining the accuracy of
such representations and warranties, all "Material Adverse Effect"
qualifications and other qualifications based on the word "material" or
similar phrases contained in such representations and warranties shall be
disregarded); and SAP AG shall have received a certificate signed by a duly
authorized executive officer of Commerce One confirming the foregoing as of
the Closing Date with respect to the representations and warranties made by
Commerce One.
(b) Commerce One shall have performed and complied with all of its
covenants and agreements contained in this Agreement in all material respects
through the Closing; and SAP AG shall have received a certificate signed by a
duly authorized executive officer of Commerce One confirming the foregoing as
of the Closing Date.
(c) There shall not exist, and there shall not have been any event,
occurrence, change, development or circumstance, which has had or could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on Commerce One.
(d) There shall be no injunction, writ, preliminary restraining
order or other order in effect of any nature issued by a court or
governmental agency of competent jurisdiction directing that the transactions
contemplated by this Agreement or any Related Equity Agreement not be
consummated in the manner provided for in this Agreement or a Related Equity
Agreement.
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(e) Commerce One shall have duly executed and delivered to SAP AG
the SAP Registration Rights Agreement.
(f) With respect to the Second Closing only, Commerce One and SAP
AG each shall have duly executed and delivered the Strategic Alliance
Agreement.
(g) SAP AG shall have received the opinion of independent counsel
to Commerce One, dated the date of each Closing Date of the purchase and sale
of the Shares, in the form of EXHIBIT B hereto.
4.2 CONDITIONS TO COMMERCE ONE'S OBLIGATIONS. Commerce One's obligation
to sell the Shares, is subject to the satisfaction, at or prior to the
delivery of the Shares, of the following respective conditions (any of which
may be waived by Commerce One, in whole or in part):
(a) The representations and warranties of SAP AG contained in this
Agreement shall be true and correct in all respects, in each case as of the
date of this Agreement and on and as of the Closing Date with the same force
and effect as though such representations and warranties had been made on and
as of the date of this Agreement and the Closing Date, (other than
representations and warranties made specifically with reference to a
particular date, which, subject to the following provisions, shall have been
true and correct as of such date) except in each case, or in the aggregate,
as does not constitute a Material Adverse Effect on SAP AG (it being
understood that, for purposses of determining the accuracy of such
representations and warranties, all "Material Adverse Effect" qualifications
and other qualifications based on the word "material" or similar phrases
contained in such representations and warranties shall be disregarded); and
Commerce One shall have received a certificate signed by a duly authorized
executive officer of SAP AG confirming the foregoing as of the Closing Date.
(b) SAP AG shall have performed and complied with all of its
covenants and agreements contained in this Agreement in all material respects
through the Closing; and Commerce One shall have received a certificate
signed by a duly authorized executive officer of SAP AG confirming the
foregoing as of the Closing Date.
(c) There shall be no injunction, writ, preliminary restraining
order or other order in effect of any nature issued by a court or
governmental agency of competent jurisdiction directing that the transactions
contemplated in this Agreement or any Related Equity Agreement not be
consummated in the manner provided for in this Agreement or a Related Equity
Agreement.
(d) SAP AG shall have duly executed and delivered the Standstill
Agreement to Commerce One.
(e) With respect to the Second Closing only, Commerce One and SAP
AG each shall have duly executed and delivered the Strategic Alliance
Agreement.
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(f) Commerce One shall have received the opinion of independent
counsel to SAP AG, dated the date of the Initial Closing of the purchase and
sale of Shares, in the form of EXHIBIT C hereto.
(g) SAP AG is not at such time, or would not be after giving effect
to the sale of the Shares, in breach of the provisions of Section 2.1 of the
Standstill Agreement (in which event, Commerce One shall not be obligated to
sell the Shares until such time as SAP AG is no longer in breach, or would be
in breach as a result of the issuance of such shares, of any such provisions).
5. ADDITIONAL AGREEMENTS.
5.1 FILINGS AND CONSENTS. Each party hereto will cooperate with each
other with respect to obtaining, as promptly as practicable, and in any event
prior to the Closing, all necessary consents, approvals, authorizations and
agreements of, and the giving of all notices and making of all other filings
with, any third parties, including Governmental Authorities, necessary to
authorize, approve or permit the transactions contemplated by this Agreement
and the Related Equity Agreements.
5.2 COVENANT TO SATISFY CONDITIONS. Subject to the terms and conditions
of this Agreement and applicable law, each party agrees to use all
commercially reasonable efforts to ensure that the conditions to the other
party's obligations hereunder set forth in Section 4, insofar as such matters
are within the control of such party, are satisfied as promptly as
practicable.
5.3 FURTHER ASSURANCES. Each party shall execute and deliver such
additional instruments, documents or other writings as may be reasonably
requested by any other party in order to confirm and carry out and to
effectuate fully the intent and purposes of this Agreement.
5.4 ADJUSTMENT TO NUMBER AND TYPE OF SECURITIES AND PURCHASE PRICE. The
type and number of securities of Commerce One issuable hereunder and the
Purchase Price per share of such securities are subject to adjustment as set
forth below:
(a) Upon any reclassification, exchange, substitution or other event
that results in a change of the number and/or class of the securities
issuable hereunder or upon the payment of a dividend in securities or
property other than Common Stock, SAP AG shall be entitled to receive the
number and kind of securities and property that SAP AG would have received if
SAP AG had made a purchase hereunder immediately before the record date for
such reclassification, exchange, substitution or other event or dividend,
subject to further adjustments as provided in this Section 5.4. The
provisions of this Section 5.4(a) shall similarly apply to successive
reclassifications, exchanges, substitutions or other events or dividends.
(b) If Commerce One is a party to any transaction (including any
consolidation or merger of Commerce One with or into any other corporation,
entity or person in which Commerce One shall not be the continuing or
surviving entity, statutory share exchange, sale of all or substantially all
of the assets of Commerce One or a recapitalization or reorganization or
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other transaction) in each case as a result of which shares of Common Stock
are converted into the right, or the holders of Common Stock are otherwise
entitled, to receive stock, securities or other property (including cash or
any combination thereof) (any such transaction being hereinafter referred to
as a "REORGANIZATION"), then, in each such case, SAP AG, at any time after
the consummation or effective date of such Reorganization, shall receive, in
lieu of or in addition to (as the case may be) the Common Stock otherwise
issuable hereunder prior to the date of such Reorganization and the stock and
other securities and property (including cash or any combination thereof) to
which SAP AG would have been entitled upon the date of such Reorganization if
SAP AG had purchased shares of Common Stock hereunder immediately prior
thereto. Commerce One shall not be a party to any Reorganization unless the
terms thereof are consistent with the provisions of this Section 5.4 and any
successor or acquiring entity has expressly assumed by written instrument the
obligations of Commerce One hereunder. The provisions of this Section 5.4(b)
shall similarly apply to successive Reorganizations.
(c) In case of any adjustment in the type of securities issuable
hereunder, Commerce One will promptly give written notice thereof to SAP AG
in the form of a certificate, certified and confirmed by an officer of
Commerce One, setting forth such adjustment and showing in reasonable detail
the facts upon which such adjustment is based.
(d) Commerce One shall at all times reserve and keep available out
of its authorized but unissued shares of Common Stock, solely for the purpose
of meeting its obligations under this Agreement, a sufficient number of
shares of Common Stock to meet its obligations under this Agreement. If at
any time the number of authorized but unissued shares of Common Stock shall
not be sufficient to meet the obligations of Commerce One under this
Agreement, in addition to such other remedies as shall be available to SAP
AG, Commerce One shall use its reasonable efforts to take such corporate
action as may, in the opinion of its legal counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares
as shall be sufficient for such purposes.
(e) If at any time, as a result of an adjustment made pursuant to
this Section 5.4, SAP AG shall become entitled hereunder to receive any
shares of capital stock of other than Common Stock, the number of such other
shares so receivable shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions
with respect to the shares of Common Stock contained in this Section 5.4 and
the provisions of this Agreement shall apply on like terms to any other such
shares.
5.5 NO IMPAIRMENT OF RIGHTS. Commerce One hereby agrees that it will
not, through the amendment of its Certificate of Incorporation, or through a
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or otherwise, avoid or seek to avoid the observance or
performance of any of the terms of this Agreement, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of
all such actions as may be necessary or appropriate in order to protect the
rights of the holder of the Shares against impairment. Without limiting the
generality of the foregoing, Commerce One will (i) take all such action as
may be necessary or appropriate in order that Commerce One may validly and
legally issue hereunder fully paid and nonassessable shares of Common Stock,
free and clear of any liens, encumbrances
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and restrictions, and (ii) use its best efforts to obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction as may be necessary to enable Commerce One to perform its
obligations hereunder.
5.6 NOTIFICATION OF CERTAIN MATTERS. Between the date hereof and the
Closing Date, each party hereto will give prompt notice in writing to the
other party of: (i) the occurrence or non-occurrence of any event which will
result, or has a reasonable prospect of resulting, in the failure of any
condition, covenant or agreement contained in this Agreement to be complied
with or satisfied, (ii) any failure of such party to comply with or satisfy
any condition, covenant or agreement to be complied with or satisfied by it
hereunder, and (iii) any notice or other communication from any third party
alleging that the consent of such third party is or may be required in
connection with the transactions contemplated by this Agreement or any
Related Equity Agreement or that such transactions otherwise may violate the
rights of or confer remedies upon such third party.
5.7 PUBLIC ANNOUNCEMENTS. Except to the extent otherwise required by
applicable law or any listing agreement concerning Commerce One's or SAP AG's
publicly traded securities, none of the parties hereto will disclose to any
Person, issue any press release or make any public announcements concerning
the transactions contemplated by this Agreement or any Related Equity
Agreement or the contents of any thereof without the prior written consent of
Commerce One and SAP AG; it being understood and agreed, however, that
Commerce One currently expects to file with the SEC complete unredacted
copies of this Agreement and the Related Equity Agreements as exhibits to a
Form 8-K. Commerce One hereby agrees to provide a copy of such Form 8-K
(including exhibits) to SAP AG prior to its filing.
5.8 EXECUTION OF OTHER AGREEMENTS. On or prior to the Closing, each of
Commerce One and SAP AG shall execute and deliver the Related Equity
Agreements.
6. TERMINATION.
6.1 TERMINATION EVENTS. Without prejudice to other remedies which may
be available to the parties by law or this Agreement, this Agreement may be
terminated and the transactions contemplated hereby may be abandoned at any
time prior to the Closing:
(a) by mutual written consent of Commerce One and SAP AG;
(b) by either Commerce One or SAP AG by giving written notice to the
other party if the Second Closing shall not have occurred prior to July 1,
2000, unless extended by written agreement of the parties; PROVIDED that the
party seeking termination pursuant to this subsection (b) is not in default
or breach hereunder and PROVIDED, FURTHER, that the right to terminate this
Agreement under this clause (b) shall not be available (i) to any party whose
failure to fulfill any obligation under this Agreement has been the cause of,
or resulted in, the failure of the Second Closing to occur on or before such
date or (ii) in the event that the Second Closing shall not have occurred as
a result of a failure of any representation to be true and correct and the
party seeking termination knew of such breach prior to the date of this
Agreement; or
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(c) by either Commerce One or SAP AG by giving written notice to the
other party if any Governmental Authority shall have issued an injunction or
other ruling prohibiting the consummation of any of the transactions
contemplated by this Agreement or any Related Equity Agreement and such
injunction or other ruling shall not be subject to appeal or shall have
become final and unappealable.
6.2 EFFECT OF TERMINATION. In the event of any termination of this
Agreement pursuant to Section 6.1, all rights and obligations of the parties
hereunder shall terminate without any liability on the part of either party
or its respective subsidiaries and affiliates in respect thereof, except that
(a) the obligations of the parties under Section 5.7 and Section 7 (other
than Section 7.4) of this Agreement shall remain in full force and effect and
(b) such termination shall not relieve Commerce One or SAP AG of any
liability for any breach of this Agreement.
7. MISCELLANEOUS.
7.1 INTERPRETATION.
(a) The various section headings are inserted for purposes of
reference only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof. The definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of
such terms.
(b) Each party hereto acknowledges that it has been represented by
competent counsel and participated in the drafting of this Agreement, and
agrees that any applicable rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be
applied in connection with the construction or interpretation of this
Agreement.
(c) When a reference is made in this Agreement to a Section, Exhibit
or Schedule, such reference shall be to a Section of, Exhibit to or Schedule
to this Agreement unless otherwise indicated.
7.2 FEES AND EXPENSES. Each party shall be solely responsible for the
payment of the fees and expenses of its advisers, counsel, accountants and
other experts, if any, and all other expenses incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this
Agreement, except to the extent expressly set forth in this Agreement.
Without limiting the generality of the foregoing, each of SAP AG and Commerce
One shall pay 50% of all stamp and other transfer taxes, if any, which may be
payable in respect of the issuance, sale and delivery to SAP AG of Common
Stock pursuant to the terms of this Agreement.
7.3 GOVERNING LAW; JURISDICTION AND VENUE.
(a) This Agreement is to be construed in accordance with and
governed by the internal laws of the State of Delaware without giving effect
to any choice of law rule that would cause the application of the laws of any
jurisdiction other than the internal laws of the State of Delaware to the
rights and duties of the parties.
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(b) Any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this Agreement may be
brought or otherwise commenced in any state or federal court located in the
States of California or Delaware. Each party to this Agreement:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the States of
California or Delaware (and each appellate court located in the States of
California or Delaware in connection with any such legal proceeding,
including to enforce any settlement, order or award;
(ii) agrees that each state and federal court located in the
States of California or Delaware shall be deemed to be a convenient forum; and
(iii) waives and agrees not to assert (by way of motion, as a
defense or otherwise), in any such legal proceeding commenced in any state or
federal court located in the States of California or Delaware any claim that
such party is not subject personally to the jurisdiction of such court, that
such legal proceeding has been brought in an inconvenient forum, that the
venue of such proceeding is improper or that this Agreement or the subject
matter hereof or thereof may not be enforced in or by such court.
(c) Each party hereto agrees to the entry of an order to enforce any
resolution, settlement, order or award made pursuant to this Section by the
state and federal courts located in the States of California or Delaware and
in connection therewith hereby waives, and agrees not to assert by way of
motion, as a defense, or otherwise, any claim that such resolution,
settlement, order or award is inconsistent with or violative of the laws or
public policy of the laws of the States of California or Delaware or any
other jurisdiction.
(d) In the event of any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this
Agreement, the prevailing party shall be entitled to payment by the
non-prevailing party of all costs and expenses (including reasonable
attorneys' fees) incurred by the prevailing party.
7.4 SPECIFIC ENFORCEMENT. The parties hereto acknowledge and agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached and that such damage would not be compensable in money
damages and that it would be extremely difficult or impracticable to measure
the resultant damages. It is accordingly agreed that any party hereto shall
be entitled to an injunction or injunctions to prevent breaches of the
provisions of the Agreement and to enforce specifically the terms and
provisions hereof, in addition to any other remedy to which it may be
entitled at law or equity, and such party that is sued for breach of this
Agreement expressly waives any defense that a remedy in damages would be
adequate and expressly waives any requirement in an action for specific
performance for the posting of a bond by the party bringing such action.
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7.5 NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and are not for the benefit of, nor may any provision hereof or
thereof be enforced by, any other Person.
7.6 ENTIRE AGREEMENT. This Agreement, the Related Equity Agreements,
the Commercial Agreement and the agreements referred to in the Commercial
Agreement and the other documents delivered pursuant hereto and thereto,
constitute the full and entire understanding and agreement between the
parties with regard to the subject matter hereof and no party shall be liable
or bound to any other in any manner by any representations, warranties,
covenants and agreements except as specifically set forth herein and therein.
7.7 SEVERABILITY. The provisions of this Agreement shall be severable,
and any invalidity, unenforceability or illegality of any provision or
provisions of this Agreement shall not affect any other provision or
provisions of this Agreement, and each term and provision of this Agreement
shall be construed to be valid and enforceable to the full extent permitted
by law.
7.8 AMENDMENT AND WAIVER.
(a) This Agreement may be modified only pursuant to a writing
executed by authorized representatives of SAP AG and Commerce One.
(b) No failure to exercise and no delay in exercising any right,
power or privilege granted under this Agreement shall operate as a waiver of
such right, power or privilege. No single or partial exercise of any right,
power or privilege granted under this Agreement shall preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided in this Agreement are cumulative
and are not exclusive of any rights or remedies provided by law.
7.9 ASSIGNMENT AND SUCCESSORS. SAP AG may transfer or assign its rights
and obligations hereunder to any Person to which SAP AG would then be
entitled to transfer shares of Common Stock under the Standstill Agreement;
provided, that such rights are transferred in accordance with the terms of
the Standstill Agreement, and such transferee executes and delivers a
counterpart copy of this Agreement thereby agreeing to be bound by the terms
and provisions set forth herein. Except as permitted herein, any assignment
of rights or delegation of duties under this Agreement by a party without the
prior written consent of the other parties shall be void ab initio. This
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
7.10 RELATIONSHIP OF THE PARTIES. For all purposes of this Agreement
and the Related Equity Agreements, each of the parties hereto and their
respective Affiliates shall be deemed to be independent entities and,
anything in this Agreement to the contrary notwithstanding, nothing herein
shall be deemed to constitute the parties hereto or any of their respective
Affiliates as partners, joint venturers, co-owners, an association or any
entity separate and apart from each party itself, nor shall this Agreement
make any party hereto an employee or agent, legal or otherwise, of the other
parties for any purposes whatsoever. This Agreement does not create or
constitute, and
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shall not be construed as creating or constituting, a voting trust agreement
under the Delaware General Corporation Law or any other applicable
corporation law. None of the parties to this Agreement is authorized to make
any statements or representations on behalf of any other party or in any way
to obligate any other party, except as expressly authorized in writing by the
other parties. Anything in this Agreement to the contrary notwithstanding, no
party hereto or thereto shall assume nor shall be liable for any liabilities
or obligations of the other parties, whether past, present or future.
7.11 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be given, and deemed effectively given, if given in
accordance with the applicable section of the Strategic Alliance Agreement.
7.12 FACSIMILE; COUNTERPARTS. This Agreement may be executed by
facsimile in any number of counterparts, each of which shall be an original,
but all of which together shall constitute one instrument.
7.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the parties contained in this Agreement shall survive until
the date which is one (1) year following the Initial Closing Date; provided,
however, that the representations and warranties set forth in Sections 2.2
and 2.4(b) shall continue in perpetuity.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
SAP AG
By: /s/ Prof. Dr. Henning Kagermann
--------------------------------
Name: Prof. Dr. Henning Kagermann
Title: Member of the Executive Board
By: /s/ Werner Sinzig
--------------------------------
Name: Werner Sinzig
Title: Prokurist
COMMERCE ONE, INC.
By: /s/ Robert M. Tarkoff
--------------------------------
Name: Robert M. Tarkoff
Title: Senior Vice President, Corporate
Development and General Counsel
[SHARE PURCHASE AGREEMENT]
<PAGE>
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this EXHIBIT A):
"Business Day" shall mean any day other than a Saturday or Sunday or
other day on which commercial banks in California are authorized or required
by law to close.
"Common Stock" shall mean the common stock, par value $0.0001 per share,
of Commerce One, Inc., a Delaware corporation.
"DGCL" shall mean the Delaware General Corporation Law.
"Dollars" or "$" shall mean United States dollars.
"Entity" shall mean any corporation (including any non profit
corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, cooperative, foundation, society,
political party, union, company (including any limited liability company or
joint stock company), firm or other enterprise, association, organization or
entity.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof or court, arbitral or other tribunal and
any Entity properly exercising executive, legislative, judicial, regulatory
or administrative functions of government.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Lien" shall mean any charge, equitable interest, lien, encumbrance,
claim, option, proxy by way of security, pledge, security interest, mortgage,
right of first refusal, right of preemption, transfer or retention of title
agreement, or restriction by way of security of any kind or nature, including
any restriction on use, voting, transfer, receipt of income or exercise of
any other attribute of ownership.
"Material Adverse Effect" shall mean, with respect to Commerce One or
SAP AG, any change event or effect that is materially adverse to (a) the
business, assets, financial condition, operations or results of operations of
such company and its subsidiaries taken as a whole; or (b) the ability of
such Company to consummate the transactions contemplated by this Agreement or
the Related Equity Agreements or perform its obligations with respect
thereto; provided, however, that in no event shall a decline in the market
price of an entity's publicly traded securities, in and of itself, constitute
a Material Adverse Effect.
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"Person" shall mean any individual, Entity or Governmental Authority.
"Preferred Stock" shall mean the preferred stock, par value $0.0001 per
share, of Commerce One, Inc., a Delaware corporation.
"Purchase Price" shall have the meaning specified in Section 1 of the
Agreement.
"Related Equity Agreements" shall mean the Standstill Agreement and the
SAP Registration Rights Agreement.
"Requirements of Law" shall mean, as to any Person, the certificate of
incorporation and bylaws or other organizational or governing documents of
such Person, and all federal, state, local and foreign laws, rules and
regulations, including, without limitation, securities, antitrust,
communications, licensing, health, safety, labor and trade laws, rules and
regulations, and all orders, judgments, decrees and other determinations of
any Governmental Authority or arbitrator, applicable to or binding upon such
Person or any of its property or to which such Person or any of its property
is subject.
"SAP Registration Rights Agreement" shall mean the SAP Registration
Rights Agreement in the form attached hereto as EXHIBIT D.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"Standstill Agreement" shall mean the Standstill and Stock Restriction
Agreement to be entered into by and between Commerce One and SAP AG, in the
form attached hereto as EXHIBIT E.
"Strategic Alliance Agreement" shall mean the Strategic Alliance
Agreement to be entered into by and among Commercial One, SAP AG and certain
other parties.
A-2
