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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF
THE SECURITIES ACT OF 1934
For the Quarter Ended March 31, 2000
Commission File Number 000-26299
ARIBA, INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0439730
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1565 Charleston Road
Mountain View, California 94043
(Address of principal executive offices)
(650) 930-6200
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes X No
---- ----
On April 28, 2000, 235,802,957 shares of the registrant's common stock were
issued and outstanding.
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<PAGE>
Ariba, Inc.
Index
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets at March 31, 2000 and September 30, 1999 3
Condensed Consolidated Statements of Operations for the three and six-month periods ended March 31, 2000
and 1999 4
Condensed Consolidated Statements of Cash Flows for the six-month period ended March 31, 2000 and 1999 5
Notes to the Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 12
Item 3. Quantitative and Qualitative Disclosures About Market Risk 32
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 32
Item 2. Changes in Securities and Use of Proceeds 32
Item 3. Defaults Upon Senior Securities 34
Item 4. Submission of Matters to a Vote of Securities Holders 34
Item 5. Other Information 35
Item 6. Exhibits and Reports on Form 8-K 35
SIGNATURES 36
</TABLE>
2
<PAGE>
PART I: FINANCIAL INFORMATION
Item 1: Financial Statements
ARIBA, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
March 31, September 30,
2000 1999
----------- -------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 187,803 $ 50,284
Short-term investments 61,457 47,868
Restricted cash 1,500 800
Accounts receivable, net 9,790 5,157
Prepaid expenses and other current assets 7,693 1,936
----------- -------------
Total current assets 268,243 106,045
Property and equipment, net 23,484 9,402
Long-term investments 68,339 54,288
Other assets 276 286
Goodwill and other intangibles, net 3,386,418 -
----------- -------------
Total assets $ 3,746,760 $ 170,021
=========== =============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 8,541 $ 3,846
Accrued compensation and related liabilities 24,642 6,959
Accrued liabilities 43,509 4,834
Deferred revenue 84,608 30,733
Current portion of long-term debt 624 685
----------- -------------
Total current liabilities 161,924 47,057
----------- -------------
Long-term debt, net of current portion 664 781
----------- -------------
Total liabilities 162,588 47,838
----------- -------------
Stockholders' equity:
Common stock 468 364
Additional paid-in capital 3,778,660 191,150
Deferred stock-based compensation (16,307) (24,178)
Accumulated other comprehensive income (loss) 2,557 (221)
Accumulated deficit (181,206) (44,932)
----------- -------------
Total stockholders' equity 3,584,172 122,183
----------- -------------
Total liabilities and stockholders' equity $ 3,746,760 $ 170,021
=========== =============
</TABLE>
See accompanying notes to condensed consolidated financial statements.
3
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ARIBA, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended March 31, Six Months Ended March 31,
2000 1999 2000 1999
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Revenues:
License $ 26,187 $ 5,673 $ 41,971 $ 10,500
Maintenance and service 13,855 3,813 21,550 5,838
--------- --------- --------- ---------
Total revenues 40,042 9,486 63,521 16,338
--------- --------- --------- ---------
Cost of revenues:
License 1,920 197 2,241 250
Maintenance and service (exclusive of stock-based
compensation expense of $281 and $229 for the three months
ended March 31, 2000 and 1999 and $625 and $325 for the
six months ended March 31, 2000 and 1999, respectively) 4,527 1,607 7,648 2,509
--------- --------- --------- ---------
Total cost of revenues 6,447 1,804 9,889 2,759
--------- --------- --------- ---------
Gross profit 33,595 7,682 53,632 13,579
--------- --------- --------- ---------
Operating expenses:
Sales and marketing (exclusive of stock-based compensation
expense of $1,741 and $1,380 for the three months ended
March 31, 2000 and 1999 and $3,904 and $1,951 for the six
months ended March 31, 2000 and 1999, respectively) 35,020 6,903 54,794 11,302
Research and development (exclusive of stock-based
compensation expense of $637 and $788 for the three months
ended March 31, 2000 and 1999 and $1,531 and $1,038 for
the six months ended March 31, 2000 and 1999, respectively) 7,124 2,200 11,567 3,849
General and administrative (exclusive of stock-based
compensation expense of $712 and $535 for the three months
ended March 31, 2000 and 1999 and $2,030 and $731 for the
six months ended March 31, 2000 and 1999, respectively) 5,327 1,497 8,748 2,698
Amortization of goodwill and other intangibles 98,287 - 98,287 -
In-process research and development 12,750 - 12,750 -
Amortization of stock-based compensation 3,371 2,932 8,090 4,045
--------- --------- --------- ---------
Total operating expenses 161,879 13,532 194,236 21,894
--------- --------- --------- ---------
Loss from operations (128,284) (5,850) (140,604) (8,315)
Other income, net 2,713 81 4,772 187
--------- --------- --------- ---------
Net loss before income taxes (125,571) (5,769) (135,832) (8,128)
Provision for income taxes 369 - 442 -
--------- --------- --------- ---------
Net loss $(125,940) $ (5,769) $(136,274) $ (8,128)
========= ========= ========= =========
Basic and diluted net loss per share $ (0.70) $ (0.14) $ (0.81) $ (0.21)
========= ========= ========= =========
Shares used in computing basic and diluted net loss per share 179,241 41,307 167,610 38,778
========= ========= ========= =========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
4
<PAGE>
ARIBA, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Six Months Ended March 31,
2000 1999
--------- ---------
<S> <C> <C>
OPERATING ACTIVITIES:
Net loss $(136,274) $ (8,128)
Adjustments to reconcile net loss to net cash provided by operating activities:
In-process research and development 12,750 -
Depreciation and amortization 2,163 496
Amortization of stock-based compensation 8,090 4,045
Amortization of goodwill and other intangibles 98,287 -
Non-cash warrant expense 14 13
Changes in operating assets and liabilities:
Accounts receivable 4,441 (4,187)
Prepaid expenses and other assets (5,652) (674)
Accounts payable 4,377 483
Accrued compensation and related liabilities 13,168 2,055
Accrued liabilities 6,244 1,116
Deferred revenue 24,389 14,821
--------- ---------
Net cash provided by operating activities 31,997 10,040
INVESTING ACTIVITIES:
Purchases of property and equipment, net (12,254) (2,033)
Purchases of investments, net (22,879) (1,255)
Cash acquired in purchase transactions 99,638 -
Direct costs of purchase transactions (11,939) -
Allocation to restricted cash (700) (800)
--------- ---------
Net cash provided by (used in) investing activities 51,866 (4,088)
FINANCING ACTIVITIES:
Repayments under long-term debt (444) (219)
Proceeds from sale of common stock 54,141 598
Repurchase of common stock - (5)
--------- ---------
Net cash provided by financing activities 53,697 374
EFFECT OF FOREIGN EXCHANGE RATES ON CASH AND CASH EQUIVALENTS (41) (16)
--------- ---------
Net increase in cash and cash equivalents 137,519 6,310
Cash and cash equivalents at beginning of period 50,284 8,305
--------- ---------
Cash and cash equivalents at end of period $ 187,803 $ 14,615
========= =========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
5
<PAGE>
ARIBA, INC. AND SUBSIDIARIES
NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
Note 1. Basis of Presentation
The unaudited condensed consolidated financial statements have been
prepared by the Company and reflect all adjustments (all of which are normal
and recurring in nature) that, in the opinion of management, are necessary
for a fair presentation of the interim periods presented. Certain amounts in
the prior year financial statements have been reclassified to conform to the
current year presentation. The results of operations for the interim periods
presented are not necessarily indicative of the results to be expected for
any subsequent quarter or for the entire year ending September 30, 2000.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted under the Securities and Exchange
Commission's rules and regulations. These unaudited condensed consolidated
financial statements and notes included herein should be read in conjunction
with the Company's audited consolidated financial statements and notes for
the year ended September 30, 1999, included in the Company's Form 10-K filed
December 23, 1999 with the Securities and Exchange Commission.
On both November 16, 1999 and March 2, 2000 the Board of Directors
authorized a two-for-one stock split of the Company's common stock, in the
form of a stock dividend thus effecting an overall four-for-one split stock
split as of March 31, 2000. The financial information included in the
accompanying financial statements has been restated to give effect to these
stock splits.
Accounts receivable includes amounts due from customers for which
revenue has been recognized. Deferred revenue includes amounts received from
customers for which revenue has not been recognized.
Long-term investments include equity holdings in both public and
private technology companies, which have been classified as available for
sale. Public equity securities with a readily determinable fair value, are
stated at fair value, which is determined based upon the quoted market price
of the securities. Other equity securities are stated at the lesser of cost
or the net realizable value.
Note 2. Net Loss Per Share
The following table presents the calculation of basic and diluted
net loss per common share (in thousands, except per share data):
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31, SIX MONTHS ENDED MARCH 31,
2000 1999 2000 1999
--------- ------- --------- ---------
<S> <C> <C> <C> <C>
Net loss $(125,940) $(5,769) $(136,274) $ (8,128)
========= ======= ========= =========
Basic and diluted:
Weighted-average common shares outstanding 202,273 73,840 192,721 73,794
Less: Weighted-average common shares subject to repurchase (23,032) (32,533) (25,111) (35,016)
--------- ------- --------- ---------
Weighted-average common shares used in computing basic and diluted net
loss per common share 179,241 41,307 167,610 38,778
========= ======= ========= =========
Basic and diluted net loss per common share $ (0.70) $ (0.14) $ (0.81) $ (0.21)
========= ======= ========= =========
</TABLE>
Diluted net loss per share does not include the effect of the following
potential common shares at March 31(in thousands):
<TABLE>
<CAPTION>
2000 1999
---- ----
<S> <C> <C>
Shares issuable under stock options 49,112 32,661
Shares of unvested stock subject to repurchase 21,017 32,782
Shares issuable pursuant to warrants to purchase common and convertible preferred stock 58 2,284
Shares of convertible preferred stock on an "as if converted" basis - 71,381
</TABLE>
The weighted-average exercise price of stock options outstanding was
$16.12 and $0.50 as of March 31, 2000 and 1999,
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respectively. The weighted average repurchase price of unvested stock was
$0.24 and $0.07 as of March 31, 2000 and 1999, respectively. The weighted
average exercise price of warrants was $0.83 and $0.82 as of March 31, 2000
and 1999, respectively.
Note 3. Comprehensive Income
SFAS No. 130 REPORTING COMPREHENSIVE INCOME, establishes standards
of reporting and display of comprehensive income and its components of net
income and other comprehensive income. Other comprehensive income refers to
revenues, expenses, gains and losses that are not included in net income but
rather are recorded directly in stockholders' equity. The components of
comprehensive loss for the three and six months ended March 31, 2000 and 1999
were as follows (in thousands):
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31, SIX MONTHS ENDED MARCH 31,
2000 1999 2000 1999
--------- ------- --------- -------
<S> <C> <C> <C> <C>
Net loss $(125,940) $(5,769) $(136,274) $(8,128)
Unrealized gain (loss) on securities 3,190 (55) 2,819 (80)
Foreign currency translation adjustments (29) (9) (41) (16)
--------- ------- --------- -------
Comprehensive loss $(122,779) $(5,833) $(133,496) $(8,224)
========= ======= ========= =======
</TABLE>
Tax effects of comprehensive loss are not considered material.
The components of accumulated other comprehensive loss at March 31, 2000 and
September 30, 1999 were as follows (in thousands):
<TABLE>
<CAPTION>
MARCH 31, SEPTEMBER 30,
2000 1999
------ -----
<S> <C> <C>
Unrealized gain (loss) on securities $2,597 $(222)
Foreign currency translation adjustments (40) 1
------ -----
Accumulated other comprehensive income (loss) $2,557 $(221)
====== =====
</TABLE>
Note 4. Acquisitions
On January 20, 2000, the Company completed its acquisition of
TradingDynamics, Inc. ("TradingDynamics"). TradingDynamics provides
business-to-business Internet trading applications, including
business-to-business auction, request for quote (RFQ), reverse auction, and
bid/ask-style exchange mechanisms. Pursuant to the terms of the Agreement and
Plan of Merger each share of TradingDynamics common stock was converted into
the right to receive 0.6869094 shares of Ariba common stock. In addition, the
Company assumed each issued and outstanding option and warrant to purchase
shares of TradingDynamics common stock which was converted into an option or
warrant to purchase Ariba common stock using an exchange ratio of 0.6869094.
Pursuant to the exchange ratios applied in the acquisition, the
Company issued 7,274,656 shares of Ariba common stock with a fair market
value of $371.9 million and exchanged options and warrants to purchase
2,151,394 shares of Ariba common stock with a fair market value of $91.7
million. The fair market value of the exchanged options and warrants to
purchase 2,151,394 shares of Ariba's common stock was valued using the
Black-Scholes option pricing model with the following assumptions: 1)
expected volatility of 0.9572, 2) weighted-average risk-free interest rate of
6.53%, 3) expected term of approximately 3 years and 4) no expected
dividends. In connection with the acquisition, the Company incurred
transaction costs consisting primarily of professional fees of $1.4 million,
resulting in a total purchase price of $465.0 million. 829,660 shares of the
stock issued are being held in an escrow account to secure and collateralize
the indemnification obligations of TradingDynamics stockholders to Ariba. The
results of operations of TradingDynamics have been included with the
Company's results of operations since January 20, 2000, the date of
acquisition.
On March 8, 2000, the Company completed its acquisition of Tradex
Technologies, Inc. ("Tradex"). Tradex was a provider of solutions for net
markets. Pursuant to the terms of the Agreement and Plan of Reorganization
each share of Tradex common stock was converted into the right to receive
1.36712 shares of Ariba common stock. In addition, the Company assumed each
issued and outstanding option to purchase shares of Tradex common stock which
was converted into an option to purchase Ariba common stock using an exchange
ratio of 1.36712.
Pursuant to the exchange ratios applied in the acquisition, the
Company issued 34,059,336 shares of Ariba common stock with a fair market
value of $2.1 billion and exchanged options to purchase 4,018,804 shares of
Ariba common stock with a fair market value of $207.5 million. The fair
market value of the exchanged options and warrants to purchase 4,018,804
shares of Ariba's common stock was valued using the Black-Scholes option
pricing model with the following assumptions: 1) expected volatility of
0.9572, 2)
7
<PAGE>
weighted-average risk-free interest rate of 6.55%, 3) expected term of
approximately 3 years and 4) no expected dividends. In connection with the
acquisition, the Company incurred transaction costs consisting primarily of
professional fees of $28.8 million, resulting in a total purchase price of
$2.3 billion. 3,374,738 shares of the stock issued are being held in an
escrow account to secure and collateralize the indemnification obligations of
Tradex stockholders to Ariba. The results of operations of Tradex have been
included with the Company's results of operations since March 8, 2000, the
date of acquisition.
The acquisitions were accounted for as purchase business
combinations which means that the purchase price was allocated to the assets
acquired and liabilities assumed based on the estimated fair values on the
date of acquisition.
The total purchase price paid for the TradingDynamics acquisition
was allocated as follows (in thousands):
<TABLE>
<CAPTION>
TRADINGDYNAMICS
---------------
<S> <C>
Property and equipment $224
Net liabilities acquired, excluding property and equipment (13,447)
Identifiable intangible assets 6,800
In-process research and development 950
Goodwill 470,477
---------------
Total $465,004
===============
</TABLE>
There was one project included in in-process research and
development for TradingDynamics. The applications from this project will be
integrated into the Company's products. The efforts required to complete the
acquired in-process technology include the completion of all planning,
designing and testing activities that are necessary to establish that the
product can be produced to meet its design requirements, including functions,
features and technical performance requirements.
The value of the acquired in-process technology was computed using a
discounted cash flow analysis on the anticipated income stream of the related
product revenues. The discounted cash flow analysis was based on management's
forecast of future revenues, cost of revenues, and operating expenses related
to the products and technologies purchased from TradingDynamics. The
calculation of value was then adjusted to reflect only the value creation
efforts of TradingDynamics prior to the close of the acquisition. At the time
of the acquisition, the product was approximately 90% complete, and the cost
to complete the project will not be material. The resultant value of
in-process technology was further reduced by the estimated value of core
technology. The Company charged the $950,000 for in-process research and
development to operations in the three months ended March 31, 2000. A total
of approximately $6.8 million of the purchase consideration was allocated to
other intangible assets, including core technology ($4.4 million), assembled
workforce ($1.1 millon) and non-compete covenants ($1.3 million) with these
amounts being amortized over three years. The Company is still refining its
purchase price allocation and there could be some adjustments in the future.
The discount rates selected for estimating future discounted cash
flows for the core and in-process technology were 20% and 25%, respectively.
In the selection of the appropriate discount rates, consideration was given
to the Company's estimated weighted average return on working capital and the
Company's estimated weighted average return on assets. The discount rate
utilized for the in-process technology was determined to be higher than the
Company's estimated weighted average return on working capital due to the
fact that the technology had not yet reached technological feasibility as of
the date of valuation. In utilizing a discount rate greater than the
Company's weighted average return on working capital, the Company has
reflected the risk premium associated with achieving and sustaining growth
rates and improved profitability as well as the increased rates of return
associated with intangible assets.
The total purchase price paid for the Tradex acquisition was
allocated as follows (in thousands):
<TABLE>
<CAPTION>
TRADEX
---------------
<S> <C>
Property and equipment $3,502
Net assets acquired, excluding property and equipment 75,679
Identifiable intangible assets 15,300
In-process research and development 11,800
Goodwill 2,205,199
---------------
Total $2,311,480
===============
</TABLE>
There was one project included in in-process research and
development for Tradex. The applications from this project will be integrated
into the Company's products. The efforts required to complete the acquired
in-process technology include the completion of all planning, designing and
testing activities that are necessary to establish that the product can be
produced to meet its design requirements, including functions, features and
technical performance requirements.
8
<PAGE>
The value of the acquired in-process technology was computed using a
discounted cash flow analysis on the anticipated income stream of the related
product revenues. The discounted cash flow analysis was based on management's
forecast of future revenues, cost of revenues, and operating expenses related
to the products and technologies purchased from Tradex. The calculation of
value was then adjusted to reflect only the value creation efforts of Tradex
prior to the close of the acquisition. At the time of the acquisition, the
product was approximately 33% complete with approximately $693,000 in
estimated costs remaining, the majority of which are expected to be incurred
in 2000. The resultant value of in-process technology was further reduced by
the estimated value of core technology. The Company charged the $11.8 million
for in-process research and development to operations in the three months
ended March 31, 2000. A total of approximately $15.3 million of the purchase
consideration was allocated to other intangible assets, including core
technology ($7.9 million), assembled workforce ($5.4 millon) and trade
name/trademarks ($2.0 million) with these amounts being amortized over three
years. The Company is still refining its purchase price allocation and there
could be some adjustments in the future.
The discount rates selected for estimating future discounted cash
flows for the core and in-process technology were 21% and 22%, respectively.
In the selection of the appropriate discount rates, consideration was given
to the Company's estimated weighted average return on working capital and the
Company's estimated weighted average return on assets. The discount rate
utilized for the in-process technology was determined to be higher than the
Company's estimated weighted average return on working capital due to the
fact that the technology had not yet reached technological feasibility as of
the date of valuation. In utilizing a discount rate greater than the
Company's weighted average return on working capital, the Company has
reflected the risk premium associated with achieving and sustaining growth
rates and improved profitability as well as the increased rates of return
associated with intangible assets.
At March 31, 2000, accumulated amortization related to the goodwill
and other intangible assets acquired in the TradingDynamics and Tradex
acquisitions totaled $80.3 million. The goodwill and other intangible assets
are being amortized over a three year period.
The following summary, prepared on an unaudited pro forma basis,
reflects the condensed consolidated results of operations for the six month
period ended March 31, 2000 and 1999 assuming TradingDynamics and Tradex had
been acquired at the beginning of the periods presented (in thousands, except
per share data):
<TABLE>
<CAPTION>
SIX MONTHS ENDED MARCH 31,
2000 1999
---- ----
<S> <C> <C>
Revenue $74,202 $18,165
Net loss (532,470) (462,559)
Basic and diluted net loss per share $(2.65) $(5.86)
</TABLE>
The pro forma results are not necessarily indicative of what would
have occurred if the acquisitions had been in effect for the periods
presented. In addition they are not intended to be a projection of future
results and do not reflect any synergies that might be affected from combined
operations. The charges for in-process research and development have not been
included in the unaudited pro forma results because they are nonrecurring.
Note 5. Intellectual Property Agreement
In the quarter ended March 31, 2000 the Company sold 5,142,858
shares of common stock with a fair market value of $834.4 million to an
outside party. As part of the sale the Company received intellectual property
and $47.5 million in cash. The intellectual property is valued at the
difference between the fair market value of the stock being exchanged and the
cash received, which is $786.9 million. This amount is classified within
other intangible assets on the balance sheet and is being amortized over
three years based on the terms of the related intellectual property
agreement. At March 31, 2000, accumulated amortization related to this item
totaled $18.0 million.
Note 6. Deferred Stock-Based Compensation
The Company uses the intrinsic value method of accounting for its
employee stock-based compensation plans. Accordingly, no compensation cost is
recognized for any of its stock options when the exercise price of each
option equals or exceeds the fair value of the underlying common stock as of
the grant date for each stock option. With respect to the stock options
granted since inception through March 31, 2000, the Company has recorded
deferred stock-based compensation of $38.0 million for the difference at the
grant date between the exercise price and the fair value of the common stock
underlying the options. This amount is being amortized in accordance
9
<PAGE>
with Financial Accounting Standards Board (FASB) Interpretation No. 28 over
the vesting period of the individual options, generally 4 years.
Note 7. Warrants
In January 2000, in connection with an alliance with EDS CoNext,
Inc., the Company issued warrants to purchase up to approximately 11,600,000
shares (0% to 4.9% of the Company's current stock outstanding) of the
Company's common stock, assuming the exercise of such warrants on a net
issuance basis at current market values, at various exercise prices. The
warrants vest upon attainment of certain milestones primarily related to
revenue targets and other sales related targets. The warrants generally
expire either upon the termination of the agreement, five years from their
vesting date or on December 31, 2008. The warrants can be earned over
approximately a five year period.
In February 2000, in connection with an alliance with Telefonica
S.A., the Company issued warrants to purchase up to 4,800,000 shares (0% to
2.0% of the Company's current stock outstanding) of the Company's common
stock at various exercise prices. The warrants vest upon attainment of
certain milestones related to revenue targets. The warrants generally expire
either upon termination of the agreement, when the milestone period expires
or one year after the specific milestone is met. The warrants can be earned
over approximately a five year period.
In March 2000, in connection with an alliance with International
Business Machines Corporation, the Company issued warrants to purchase up to
3,428,572 shares (0% to 1.5% of the Company's current stock outstanding) of
the Company's common stock at an exercise price of $87.50. The warrants vest
upon attainment of certain milestones related to revenue targets. The
warrants generally expire either upon termination of the agreement, when the
milestone period expires, or 18 months after the specific milestone is met.
The warrants can be earned over approximately a five year period.
If and when it becomes probable that the business partner will earn
any of the above warrants, the Company will recognize a non-cash expense for
these warrants. The amount of expense will be calculated using the
Black-Scholes option pricing model. The total expense associated with the
warrants will be measured at each subsequent balance sheet date until either
the milestones are achieved or the warrants expire. Future remeasurement
could result in substantial non-cash expense, which could fluctuate depending
on the fair market value of the Company's common stock at each measurement
date. At March 31, 2000 it was not considered probable that any of the
warrants would vest and therefore there has not been any expense recognized
for these warrants and no shares have been issued.
The Company also received warrants for the common stock of EDS
CoNext, Inc. in connection with the January alliance. The Company has
currently earned one of these warrants. The estimated fair value of this
warrant is included in the balance sheet under long-term investments with a
value of approximately $200,000. The Company is recognizing the revenue
related to this warrant on a straight-line basis over a five year period
which represents the life of the agreement. The other warrants, which may be
received by the Company, are based on performance milestones. They have not
been earned as of March 31, 2000 and therefore the Company has not recorded
any investment or revenue related to these warrants.
Subsequent to March 31, 2000, and in connection with an alliance
with Bank of America, N.A., the Company issued warrants to purchase up to
6,776,000 shares (0% to 2.9% of the Company's current stock outstanding) of
the Company's common stock at an exercise price based on the ten day average
of the Company's stock price up to and including the vesting date. Bank of
America, N.A has currently earned one warrant for 1,936,000 shares. The
Company will be calculating the expense of this warrant in the quarter ending
June 30, 2000 and recognizing the expense over the life of the agreement,
which is five years. This will be a substantial non-cash expense for the next
five years. The remaining warrants within this agreement vest upon attainment
of certain milestones, which have not yet been achieved.
Note 8. Line of Credit
In May 1999, the Company entered into a credit agreement with a
bank, which was originally scheduled to expire in March 2000 and is
collateralized by certain assets of the Company. In March this credit
agreement was extended until May 31, 2000. Under the provisions of the credit
agreement, the Company may borrow up to $7.0 million on a revolving line of
credit at the prime rate. At March 31, 2000 there were no amounts outstanding
under the revolving line of credit.
Note 9. Commitments
In March 2000, the Company entered into a new facilities operating
lease agreement. The lease term commences upon possession and is for 12
years. The Company currently expects possession to be in the quarter ending
June 30, 2001. Lease payments are going to be made on an escalating basis
with the total future minimum lease payments amounting to $386.8 million over
the lease term. The Company will also have to contribute a significant amount
towards construction costs of the facility. This amount is currently
estimated at approximately $116.0 million, but is subject to change. As part
of this agreement, in April 2000, the Company is required to hold a
10
<PAGE>
certificate of deposit as a form of security. This certificate of deposit is
for $25.7 million and it will be classified as restricted cash on our balance
sheet.
Note 10. Recent Pronouncements
In June 1998, the FASB issued SFAS No. 133, ACCOUNTING FOR
DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES. SFAS No. 133 establishes
accounting and reporting standards for derivative financial instruments and
hedging activities related to those instruments, as well as other hedging
activities. Because the Company does not currently hold any derivative
instruments and does not engage in hedging activities, the Company expects
the adoption of SFAS No. 133 will not have a material impact on its financial
position, results of operations or cash flows. The Company will be required
to adopt SFAS No. 133 in fiscal 2001 in accordance with SFAS No. 137, which
delays the required implementation of SFAS No. 133 for one year.
In December 1999, the Securities and Exchange Commission issued
Staff Accounting Bulletin No. 101, or SAB 101. This summarizes certain areas
of the Staff's views in applying generally accepted accounting principles to
revenue recognition in financial statements. The Company believes that its
current revenue recognition principles comply with SAB 101.
In March 2000, the FASB's Emerging Issues Task Force ("EITF")
reached a consensus on EITF 00-2, ACCOUNTING FOR WEB SITE DEVELOPMENT COSTS.
EITF 00-2 discusses how an entity should account for costs incurred to
develop a web site. We are currently evaluating EITF 00-2 and the potential
financial reporting impact of this issue.
In March 2000, the EITF reached a consensus on EITF 00-3,
APPLICATION OF AICPA STATEMENT OF POSITION 97-2 TO ARRANGEMENTS THAT INCLUDE
THE RIGHT TO USE SOFTWARE STORED ON ANOTHER ENTITY'S HARDWARE. EITF 00-3
discusses whether SOP 97-2 applies to arrangements that require the vendor to
host the software and whether SOP 97-2 applies to arrangements in which the
customer has an option to take delivery of the software and if so, when does
delivery of the software occur and how does the vendor's hosting obligation
impact revenue recognition. We are currently evaluating EITF 00-3 and the
potential financial reporting impact of this issue.
11
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The information in this discussion contains forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933,
as amended, and Section 21E of the Securities Exchange Act of 1934, as
amended. Such statements are based upon current expectations that involve
risks and uncertainties. Any statements contained herein that are not
statements of historical facts may be deemed to be forward-looking
statements. For example, words such as "may", "will", "should", "estimates",
"predicts", "potential", "continue", "strategy", "believes", "anticipates",
"plans", "expects", "intends", and similar expressions are intended to
identify forward-looking statements. Our actual results and the timing of
certain events may differ significantly from the results discussed in the
forward-looking statement. Factors that might cause or contribute to such a
discrepancy include, but are not limited to, those discussed under the
heading "Risk Factors" and the risks discussed in our other Securities
Exchange Commission ("SEC") filings, including our Registration Statement on
Form S-1 declared effective on June 22, 1999 by the SEC (File No. 333-76953)
and in our Annual Report on Form 10-K filed December 23, 1999 with the SEC.
OVERVIEW
Ariba is a leading business-to-business electronic commerce platform
provider. We were founded in September 1996 and from that date through March
1997 were in the development stage, conducting research and developing our
initial products. In March 1997, we began selling our products and related
services and currently market them in the United States, Latin America,
Europe, Canada, Australia and Asia primarily through our direct sales force
and to a lesser extent through indirect sales channels.
On January 20, 2000 and March 8, 2000 we acquired TradingDynamics,
Inc. ("TradingDynamics"), and Tradex Technologies, Inc. ("Tradex"),
respectively, primarily for their product offerings and research and
development teams. We accounted for these acquisitions as purchase business
combinations. Accordingly, TradingDynamics' and Tradex's results of
operations are included in our combined results from the date of the
acquisitions. Please see Note 4 in the Notes to the Condensed Consolidated
Financial Statements for more detailed information.
Through March 31, 2000, our revenues have been principally derived
from licenses of our products, from maintenance and support contracts and
from the delivery of implementation consulting and training services.
Customers who license our Ariba B2B Buyer or our other products also
generally purchase maintenance contracts which provide software upgrades,
technical support and connectivity to the Ariba Network over a stated term,
which is usually a twelve-month period. Customers may purchase implementation
services from us, but we expect to increasingly rely on third-party
consulting organizations to deliver these services directly to our customers.
We also offer fee-based training services to our customers.
On October 1, 1997, we adopted Statement of Position, or SOP, 97-2,
SOFTWARE REVENUE RECOGNITION, which supersedes SOP 91-1, SOFTWARE REVENUE
RECOGNITION. On October 1, 1999 we adopted Statement of Position, or SOP,
98-9, MODIFICATION OF SOP 97-2, SOFTWARE REVENUE RECOGNITION, WITH RESPECT TO
CERTAIN TRANSACTIONS, which amends SOP 97-2, Software Revenue Recognition,
and supercedes SOP 98-4. The adoption of SOP 97-2 and SOP 98-9 has not had a
material effect on our operating results. SOP 97-2 generally requires
revenues earned on software arrangements involving multiple elements to be
allocated to each element based on the relative fair values of the elements.
Revenue allocated to software licenses is generally recognized upon delivery
of the products or ratably over a contractual period if unspecified software
products are to be delivered during that period. Starting in fiscal 1999, our
standard license agreement provided customers the right to future unspecified
software licenses. Accordingly, payments received from our customers upon the
signing of these license agreements are deferred, and the revenue is
recognized ratably over the contract period. Revenue allocated to maintenance
is recognized ratably over the maintenance term and revenue allocated to
training and other service elements is recognized as the services are
performed.
When we manage the implementation process for our customers, the
services are considered essential to the functionality of the software
products. Accordingly, both the software license revenue and service revenue
is recognized using the percentage of completion method in accordance with
the provisions of SOP 81-1, ACCOUNTING FOR PERFORMANCE OF CONSTRUCTION TYPE
AND CERTAIN PRODUCTION TYPE CONTRACTS. The implementation of our products can
take several months or more depending on the objectives of the customers, the
complexity of the customers' information technology environments and the
resources directed by the customers to the implementation projects.
The majority of our customers who license our software products
generally receive a server capacity license, one or more of the Ariba B2B
Buyer modules and adapters to interface with financial, human resource and
other existing enterprise systems. The fee for the server capacity license is
based on the customers' estimated annual volume of line items of purchasing
transactions. The license fees for the software modules and adapters consist
of individual prices for each module or adapter.
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<PAGE>
The volume licensing of the server capacity allows customers to
scale the total cost of their purchase of our products to their needs. The
server capacity license entitles customers to execute the licensed volume of
line items of purchasing transactions during any annual period following
their purchase of the server license. Our customers generally purchase
estimated server capacity at the time of the purchase of the server license.
Following the initial implementation of our products, and based on the
reporting and analysis tools available through our products, our customers
are able to understand their annual transaction volume more fully. Customers
who exceed their estimated volume can purchase additional server capacity.
However, there are no recurring annual license fees.
Our cost of license revenues includes royalties due to third parties
for integrated technology, certain reseller sales commissions, the cost of
manuals and product documentation, the cost of production media used to
deliver our products and shipping costs, including the costs associated with
the electronic transmission of software to new customers. Our cost of
maintenance and service revenues includes salaries and related expenses for
our customer support, implementation and training services organizations,
costs of third parties contracted to provide consulting services to customers
and an allocation of our facilities, communications and depreciation expenses.
Our operating expenses are classified into general categories: sales
and marketing, research and development and general and administrative. We
classify all charges to these operating expense categories based on the
nature of the expenditures. Although each category includes expenses that are
unique to the category type, there are commonly recurring expenditures that
are typically included in these categories in our operating expenses, such as
salaries, employee benefits, incentive compensation, bonuses, sales
commissions, travel and entertainment costs, telephone, communication, rent
and facilities costs, and third-party professional services fees. The sales
and marketing category of operating expenses includes expenditures specific
to the marketing group, such as public relations and advertising, trade
shows, marketing collateral materials and customer advisory council meetings.
We allocate the total costs for overhead and facilities to each of
the functional areas that use the overhead and facilities services based on
their headcount. These allocated charges include facility rent for the
corporate office, communication charges and depreciation expense for office
furniture and equipment.
Also included in our operating expenses is the amortization of
goodwill and other intangible assets. These expenses are for the amortization
of goodwill and other intangible assets we have purchased in our acquisitions
of TradingDynamics and Tradex and for the amortization of an intellectual
property agreement we have entered into with an outside party. In the quarter
ended March 31, 2000 we also had a charge related to the purchase of
in-process technology related to the acquisitions. Please see Notes 4 and 5
in the Notes to the Condensed Consolidated Financial Statements for more
detailed information.
Although revenues consistently increased from quarter to quarter, we
incurred significant costs to develop our technology and products, to recruit
and train personnel for our engineering, sales, marketing, professional
services and administration departments, and for the amortization of our
goodwill and other intangible assets. As a result, we have incurred
significant losses since inception, and, as of March 31, 2000, had an
accumulated deficit of $181.2 million. We believe our success is contingent
on increasing our customer base and developing our products and services. We
intend to continue to invest heavily in sales, marketing, research and
development and, to a lesser extent, support infrastructure. We also will
have significant expenses going forward related to the amortization of our
goodwill and other intangible assets, and we may have substantial expenses
related to the issuance of warrants to purchase our common stock. These
warrant related expenses will not be recognized until the warrants are earned
and will fluctuate depending on the market value of our common stock. We
therefore expect to continue to incur substantial operating losses for the
foreseeable future.
We had 1,002 full-time employees as of March 31, 2000 and intend to
hire a significant number of employees in the future. This expansion places
significant demands on our management and operational resources. To manage
this rapid growth and increased demand, we must invest in and implement
scalable operational systems, procedures and controls. We must also be able
to recruit qualified candidates to manage our expanding operations. We expect
future expansion to continue to challenge our ability to hire, train, manage
and retain our employees.
In connection with the granting of stock options to our employees,
we recorded deferred stock-based compensation totaling approximately $38.0
million from inception up to March 31, 2000. This amount represents the
difference between the exercise price and the deemed fair value of our common
stock for accounting purposes on the date these stock options were granted.
This amount is included as a component of stockholders' equity and is being
amortized on an accelerated basis by charges to operations over the vesting
period of the options, consistent with the method described in Financial
Accounting Standards Board Interpretation No. 28. During fiscal 1999 and
1998, we recorded $13.5 million and $830,000, respectively, of related
stock-based compensation amortization expense and during the six months ended
March 31, 2000, we recorded $7.9 million of related stock-based compensation
amortization expense. As of March 31, 2000, we had an aggregate of $15.8
million of related deferred compensation to be amortized. The amortization of
the remaining deferred stock-based compensation will result in additional
charges to operations through fiscal 2003. The amortization of stock-based
compensation is presented as a separate component of operating expenses in
our consolidated statements of operations.
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<PAGE>
In the quarter ended March 31, 2000 in connection with our recent
acquisitions and our entering into an intellectual property agreement with an
outside party, we recorded goodwill and other intangible assets of $3.5
billion. These assets are being amortized over their useful lives, which is
three years. During the three months ended March 31, 2000, we recorded $98.3
million of amortization expense for these assets. As of March 31, 2000, we
had an aggregate of $3.4 billion of goodwill and other intangible assets
remaining to be amortized. The amortization of the remaining goodwill and
other intangible assets will result in additional charges to operations
through the quarter ending March 31, 2003. The amortization of goodwill and
other intangible assets is presented as a separate component of operating
expenses in our consolidated statements of operations. We also had a
non-recurring charge of $12.8 million in the quarter ending March 31, 2000
for in-process research and development related to our recent acquisitions.
Please see Notes 4 and 5 in the Notes to the Condensed Consolidated Financial
Statements for more detailed information.
Our limited operating history makes the prediction of future
operating results very difficult. We believe that period-to-period
comparisons of operating results should not be relied upon as predictive of
future performance. Our operating results are expected to vary significantly
from quarter to quarter and are difficult or impossible to predict. Our
prospects must be considered in light of the risks, expenses and difficulties
encountered by companies at an early stage of development, particularly
companies in new and rapidly evolving markets. We may not be successful in
addressing such risks and difficulties. Although we have experienced
significant percentage growth in revenues in recent periods, we do not
believe that prior growth rates are sustainable or indicative of future
operating results. Please refer to the "Risk Factors" section for additional
information.
RECENT EVENTS
On March 2, 2000 the Board of Directors authorized a two-for-one
stock split of our common stock, to be effected in the form of a stock
dividend. The stock split was effected on or about March 31, 2000 by
distribution to each stockholder of record as of March 20, 2000 of one share
of common stock for each share of common stock held. The financial
information included in this report has been restated to give effect to the
stock split.
In January 2000, in connection with an alliance with EDS CoNext
Inc., we issued warrants to purchase up to approximately 11,600,000 shares
(0% to 4.9% of our current stock outstanding) of our common stock, assuming
the exercise of such warrants on a net issuance basis at current market
values, at various exercise prices. The warrants vest upon attainment of
certain milestones related to revenue targets and other sales related
targets. The warrants expire either upon the termination of the agreement,
five years from their vesting date or on December 31, 2008. The warrants can
be earned over approximately a five year period.
In February 2000, in connection with an alliance with Telefonica
S.A., we issued warrants to purchase up to 4,800,000 shares (0% to 2.0% of
our current stock outstanding) of our common stock at various exercise
prices. The warrants vest upon attainment of certain milestones related to
revenue targets. The warrants expire either upon termination of the
agreement, when the milestone period expires or one year after the specific
milestone is met. The warrants can be earned over approximately a five year
period.
In March 2000, in connection with an alliance with International
Business Machines Corporation, we issued warrants to purchase up to 3,428,572
shares (0% to 1.5% of our current stock outstanding) of our common stock at
an exercise price of $87.50. The warrants vest upon attainment of certain
milestones related to revenue targets. The warrants expire either upon
termination of the agreement, when the milestone period expires, or 18 months
after the specific milestone is met. The warrants can be earned over
approximately a five year period.
If and when it becomes probable that the business partner will earn
any of the above warrants, we will recognize a non-cash expense for these
warrants. The amount of expense will be calculated using the Black-Scholes
option pricing model. The total expense associated with the warrants will be
measured at each subsequent balance sheet date until either the milestones
are achieved or the warrants expire. Future remeasurement could result in
substantial non-cash expense, which could flucutate depending on the fair
market value of our common stock at each measurement date. At March 31, 2000,
it was not considered probable that any of the warrants would vest and
therefore there has not been any expense recognized for these warrants and no
shares have been issued.
Subsequent to the quarter ended March 31, 2000, and in connection
with an alliance with Bank of America N.A., we issued warrants to purchase up
to 6,776,000 shares (0% to 2.9% of our current stock outstanding) of our
common stock at an exercise price based on the ten day average of our stock
price up to and including the vesting date. The business partner has
currently earned one warrant for 1,936,000 shares. We will be calculating the
expense of this warrant in the quarter ending June 30, 2000 and recognizing
the expense over the life of the agreement, which is five years. This will be
a substantial non-cash expense for the next five years. The remaining
warrants within this agreement vest upon attainment of certain milestones,
which have not yet been achieved.
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RESULTS OF OPERATIONS
The following table sets forth certain statements of operations data
in absolute dollars for the periods indicated. The data has been derived from
the unaudited condensed consolidated financial statements contained in this
Form 10-Q which, in the opinion of management include all adjustments,
consisting only of normal recurring adjustments, necessary to present fairly
the financial position and results of operations for the interim periods. The
operating results for any period should not be considered indicative of
results for any future period. This information should be read in conjunction
with the Financial Statements and Notes thereto included in the Company's
Form 10-K.
<TABLE>
<CAPTION>
Three Months Ended March 31, Six Months Ended March 31,
2000 1999 2000 1999
--------- ------- --------- -------
<S> <C> <C> <C> <C>
Revenues:
License $26,187 $5,673 $41,971 $10,500
Maintenance and service 13,855 3,813 21,550 5,838
--------- ------- --------- -------
Total revenues 40,042 9,486 63,521 16,338
--------- ------- --------- -------
Cost of revenues:
License 1,920 197 2,241 250
Maintenance and service (exclusive of stock-based
compensation expense of $281 and $229 for the three months
ended March 31, 2000 and 1999 and $625 and $325 for the
six months ended March 31, 2000 and 1999, respectively) 4,527 1,607 7,648 2,509
--------- ------- --------- -------
Total cost of revenues 6,447 1,804 9,889 2,759
--------- ------- --------- -------
Gross profit 33,595 7,682 53,632 13,579
--------- ------- --------- -------
Operating expenses:
Sales and marketing (exclusive of stock-based compensation
expense of $1,741 and $1,380 for the three months ended
March 31, 2000 and 1999 and $3,904 and $1,951 for the six
months ended March 31, 2000 and 1999, respectively) 35,020 6,903 54,794 11,302
Research and development (exclusive of stock-based
compensation expense of $637 and $788 for the three months
ended March 31, 2000 and 1999 and $1,531 and $1,038 for
the six months ended March 31, 2000 and 1999, respectively) 7,124 2,200 11,567 3,849
General and administrative (exclusive of stock-based
compensation expense of $712 and $535 for the three months
ended March 31, 2000 and 1999 and $2,030 and $731 for the
six months ended March 31, 2000 and 1999, respectively) 5,327 1,497 8,748 2,698
Amortization of goodwill and other intangibles 98,287 - 98,287 -
In-process research and development 12,750 - 12,750 -
Amortization of stock-based compensation 3,371 2,932 8,090 4,045
--------- ------- --------- -------
Total operating expenses 161,879 13,532 194,236 21,894
--------- ------- --------- -------
Loss from operations (128,284) (5,850) (140,604) (8,315)
Other income, net 2,713 81 4,772 187
--------- ------- --------- -------
Net loss before income taxes (125,571) (5,769) (135,832) (8,128)
Provision for income taxes 369 - 442 -
--------- ------- --------- -------
Net loss $(125,940) $(5,769) $(136,274) $(8,128)
========= ======= ========= =======
Basic and diluted net loss per share $(0.70) $(0.14) $(0.81) $(0.21)
========= ======= ========= =======
Shares used in computing basic and diluted net loss per share 179,241 41,307 167,610 38,778
========= ======= ========= =======
</TABLE>
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COMPARISON OF THE THREE MONTHS ENDED MARCH 31, 2000 AND 1999
REVENUES
LICENSE. License revenues for the quarter ended March 31, 2000 were
$26.2 million, a 362% increase over license revenues of $5.7 million for the
quarter ended March 31, 1999. This increase was primarily attributable to
continued market acceptance of our products, an increase in sales to new
customers resulting from increased headcount in our sales force along with an
increasing demand for business-to-business electronic commerce solutions
across a broad range of industries, having new strategic products and
solutions available, including those resulting from our acquisitions, having
more business partners to help promote and sell our product domestically and
internationally, and the increased acceptance of our products internationally.
MAINTENANCE AND SERVICE. Maintenance and service revenues for the
quarter ended March 31, 2000 were $13.9 million, a 263% increase over
maintenance and service revenues of $3.8 million for the quarter ended March
31, 1999. This increase is attributable to increased licensing activity as
discussed above, which has resulted in increased revenues from customer
implementations and maintenance contracts and, to a lesser extent,
accelerated customer implementations and renewals of recurring maintenance
have also contributed to the increase.
During the quarter ended March 31, 2000, no individual customers
accounted for more than 10% of total revenues, and, in the quarter ended
March 31, 1999, two individual customers each accounted for more than 10% of
total revenues. Revenues from international sales were $7.1 million in the
quarter ended March 31, 2000 and were $936,000 for the quarter ended March
31, 1999.
We plan to continue to add services and other functionality to the
Ariba Network. As such, we expect to charge fees for these services. The
revenues associated may be a combination of transaction and/or annual
subscription fees. Examples of such services include electronic payment,
bid/quote and sourcing, among others. We expect these network related
revenues to be a significant contributor to total revenues over time.
However, we cannot predict whether these services and other functionality
will be commercially successful or whether they will adversely impact
revenues from our Ariba B2B Buyer products and services. We would be
seriously harmed if the Ariba Network is not commercially successful,
particularly if we experience a decline in the growth or growth rate of
revenues from our B2B Buyer solution. In general, we expect that total
revenue will fluctuate in future periods depending on the timing and
acceptance of new product and service introductions, customer buying
patterns, pricing actions taken by us, competition and other factors.
COST OF REVENUES
LICENSE. Cost of license revenues were $1.9 million in the quarter
ended March 31, 2000, an increase of 875% over cost of license revenues of
$197,000 for the quarter ended March 31, 1999. The increase in the cost of
license revenues was primarily attributable to royalties due to third parties
for integrated technology and certain reseller sales commissions.
MAINTENANCE AND SERVICE. Cost of maintenance and service revenues
were $4.5 million in the quarter ended March 31, 2000, an increase of 182%
over cost of maintenance and service revenues of $1.6 million for the quarter
ended March 31, 1999. Our cost of maintenance and service revenues includes
salaries and related expenses for our customer support, implementation and
training services organizations, costs of third parties contracted to provide
consulting services to customers and an allocation of our facilities,
communications and depreciation expenses. The increase was primarily
attributable to increases in the areas described above because of increases
in the number of implementation, training and technical support personnel
from our internal growth and as a result of our acquisitions and because of
increased licensing activity in the current quarter resulting in increased
implementation, customer support and training costs.
During the quarter ended March 31, 2000, cost of maintenance and
service revenues including related stock-based amortization increased to $4.8
million from $1.8 million for the quarter ended March 31, 1999. In addition
to the factors mentioned above, this increase was also due to a greater
number of stock options being subject to amortization during the more recent
quarter where the original exercise price of the option was below the deemed
fair value of our common stock for accounting purposes. The amortization of
stock-based compensation primarily represents the difference between the
exercise price and the deemed fair value of our common stock for accounting
purposes on the date certain stock options were granted. This amount is
included as a component of stockholders' equity and is being amortized on an
accelerated basis by charges to operations over the vesting period of the
options, consistent with the method described in Financial Accounting
Standards Board Interpretation No. 28. As of March 31, 2000, we had an
aggregate of $1.3 million of deferred compensation relating to cost of
maintenance and service revenues still to be amortized.
16
<PAGE>
OPERATING EXPENSES
SALES AND MARKETING. During the quarter ended March 31, 2000, sales
and marketing expenses were $35.0 million, an increase of 407% over sales and
marketing expenses of $6.9 million for the quarter ended March 31, 1999. The
increase was primarily attributable to increased sales commissions as a
result of increased sales, an increase in salaries, travel costs and related
expenses because of an increase in the number of sales and marketing
employees from continued expansion and our acquisitions, an increase in fees
paid to outside professional service providers, expanded marketing programs
for trade shows and customer advisory council meetings and increased facility
costs related to the expansion of our corporate headquarters and
international sales offices. We believe these expenses will continue to
increase in absolute dollar amounts in future periods as we expect to
continue to expand our sales and marketing efforts.
During the quarter ended March 31, 2000, sales and marketing
expenses including related stock-based amortization increased to $36.8
million from $8.3 million for the quarter ended March 31, 1999. In addition
to the factors mentioned above, this increase was also due to a greater
number of stock options being subject to amortization during the more recent
quarter where the original exercise price of the option was below the deemed
fair value of our common stock for accounting purposes. As of March 31, 2000,
we had an aggregate of $7.7 million of deferred compensation relating to
sales and marketing expense still to be amortized.
RESEARCH AND DEVELOPMENT. During the quarter ended March 31, 2000,
research and development expenses were $7.1 million, an increase of 224% over
research and development expenses of $2.2 million for the quarter ended March
31, 1999. The increase was primarily attributable to an increase in salaries
and related expenses because of an increase in the number of research and
development personnel from continued expansion and our acquisitions and, to a
lesser extent, to increased facility costs related to the expansion of our
corporate headquarters and our international sales offices. To date, all
software development costs have been expensed in the period incurred. We
believe that continued investment in research and development is critical to
attaining our strategic objectives. As a result, we expect research and
development expenses to increase in absolute dollar amounts in future periods.
During the quarter ended March 31, 2000, research and development
expenses including related stock-based amortization increased to $7.8 million
from $3.0 million for the quarter ended March 31, 1999. This increase is
because of the reasons mentioned in the above paragraph. This increase was
partially offset by a decrease in the amortization of our stock-based
compensation during the more recent quarter where the original exercise price
of the option was below the deemed fair value of our common stock for
accounting purposes. As of March 31, 2000, we had an aggregate of $3.5
million of deferred compensation relating to research and development expense
still to be amortized.
GENERAL AND ADMINISTRATIVE. During the quarter ended March 31, 2000,
general and administrative expenses were $5.3 million, an increase of 256%
over general and administrative expenses of $1.5 million for the quarter
ended March 31, 1999. The increase was primarily attributable to an increase
in the number of finance, accounting, legal, human resources and information
technology personnel from continued expansion and our acquisitions, an
increase in fees paid to outside professional service providers, an increase
in our allowance for doubtful accounts related to our domestic and
international growth, increased facility costs related to the expansion of
our corporate headquarters and international sales offices and to increased
communication costs, particularly to remote offices. We believe general and
administrative expenses will increase in absolute dollars, as we expect to
add personnel to support our expanding operations, and to incur additional
costs related to the growth of our business and our responsibilities as a
public company.
During the quarter ended March 31, 2000, general and administrative
expenses including related stock-based amortization increased to $6.0 million
from $2.0 million for the quarter ended March 31, 1999. In addition to the
factors mentioned above, this increase was also due to a greater number of
stock options being subject to amortization during the more recent quarter
where the original exercise price of the option was below the deemed fair
value of our common stock for accounting purposes. As of March 31, 2000, we
had an aggregate of $3.8 million of deferred compensation relating to general
and administrative expense still to be amortized.
AMORTIZATION OF GOODWILL AND OTHER INTANGIBLES. We acquired
TradingDynamics and Tradex in the quarter ended March 31, 2000 primarily for
their product offerings and research and development teams. We accounted for
the acquisitions as purchase business combinations. We also entered an
intellectual property agreement with an outside party in the quarter ended
March 31, 2000. As a result of these transactions we recorded goodwill and
other intangible assets on our balance sheet of $3.5 billion. Amortization of
goodwill and other intangible assets was $98.3 million in the quarter ended
March 31, 2000. We will be amortizing the remaining $3.4 billion of our
goodwill and other intangible assets on a straight-line basis through the
quarter ended March 31, 2003. Please see Notes 4 and 5 in the Notes to the
Condensed Consolidated Financial Statements for a more detailed discussion of
our goodwill and other intangible assets.
IN-PROCESS RESEARCH AND DEVELOPMENT. In connection with the
TradingDynamics and Tradex acquisitions we recorded a charge of $12.8 million
in the quarter ended March 31, 2000. Please see Note 4 in the Notes to the
Condensed Consolidated Financial Statements for a more detailed discussion of
the charge for in-process research and development.
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OTHER INCOME, NET
Other income, net consists of interest income, interest expense and
other non-operating expenses. During the quarter ended March 31, 2000, other
income, net was $2.7 million, an increase of 3,249% over other income, net of
$81,000 for the quarter ended March 31, 1999. This increase is primarily
attributable to interest income resulting from higher average cash balances
during the more recent period.
PROVISION FOR INCOME TAXES
We incurred operating losses for all periods from inception through
March 31, 2000. We have recorded a valuation allowance for the full amount of
our net deferred tax assets, as the future realization of the tax benefit is
not currently likely. We recorded income tax expense of $369,000 primarily
relating to our international subsidiaries during the quarter ended March 31,
2000.
COMPARISON OF THE SIX MONTHS ENDED MARCH 31, 2000 AND 1999
REVENUES
LICENSE. License revenues for the six months ended March 31, 2000
were $42.0 million, a 300% increase over license revenues of $10.5 million
for the six months ended March 31, 1999. This increase was primarily
attributable to continued market acceptance of our products, an increase in
sales to new customers resulting from increased headcount in our sales force
along with an increasing demand for business-to-business electronic commerce
solutions across a broad range of industries, having new strategic products
and solutions available, including those resulting from our acquisitions,
having more business partners to help promote and sell our product
domestically and internationally, and the increased acceptance of our
products internationally.
MAINTENANCE AND SERVICE. Maintenance and service revenues for the
six months ended March 31, 2000 were $21.6 million, a 269% increase over
maintenance and service revenues of $5.8 million for the six months ended
March 31, 1999. This increase is attributable to increased licensing activity
as discussed above, which has resulted in increased revenues from customer
implementations and maintenance contracts and, to a lesser extent,
accelerated customer implementations and renewals of recurring maintenance
have also contributed to the increase.
During the six months ended March 31, 2000 no individual customers
accounted for more than 10% of total revenues, and, in the six months ended
March 31, 1999, two individual customers each accounted for more than 10% of
total revenues. Revenues from international sales were $15.1 million in the
six months ended March 31, 2000 and were $1.1 million for the six months
ended March 31, 1999.
COST OF REVENUES
LICENSE. Cost of license revenues were $2.2 million in the six
months ended March 31, 2000, an increase of 796% over cost of license
revenues of $250,000 for the six months ended March 31, 1999. The increase in
the cost of license revenues was primarily attributable to royalties due to
third parties for integrated technology and certain reseller sales
commissions.
MAINTENANCE AND SERVICE. Cost of maintenance and service revenues
were $7.6 million in the six months ended March 31, 2000, an increase of 205%
over cost of maintenance and service revenues of $2.5 million for the six
months ended March 31, 1999. Our cost of maintenance and service revenues
includes salaries and related expenses for our customer support,
implementation and training services organizations, costs of third parties
contracted to provide consulting services to customers and an allocation of
our facilities, communications and depreciation expenses. The increase was
primarily attributable to increases in the areas described above because of
increases in the number of implementation, training and technical support
personnel from our internal growth and a result of our acquisitions and
because of increased licensing activity in the period resulting in increased
implementation, customer support and training costs.
During the six months ended March 31, 2000, cost of maintenance and
service revenues including related stock-based amortization increased to $8.3
million from $2.8 million for the six months ended March 31, 1999. In
addition to the increases mentioned above, the increase was also due to a
greater number of stock options being subject to amortization during the more
recent period where the original exercise price of the option was below the
deemed fair value of our common stock for accounting purposes.
OPERATING EXPENSES
SALES AND MARKETING. During the six months ended March 31, 2000,
sales and marketing expenses were $54.8 million, an increase of 385% over
sales and marketing expenses of $11.3 million for the six months ended March
31, 1999. The increase was primarily attributable to increased sales
commissions as a result of increased sales, an increase in salaries, travel
costs and related expenses
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because of an increase in the number of sales and marketing employees from
continued expansion and our acquisitions, an increase in fees paid to outside
professional service providers, expanded marketing programs for trade shows
and customer advisory council meetings and increased facility costs related
to the expansion of our corporate headquarters and international sales
offices. We believe these expenses will continue to increase in absolute
dollar amounts in future periods as we expect to continue to expand our sales
and marketing efforts.
During the six months ended March 31, 2000, sales and marketing
expenses including related stock-based amortization increased to $58.7
million from $13.3 million for the six months ended March 31, 1999. In
addition to the increases mentioned above, the increase was also due to a
greater number of stock options being subject to amortization during the more
recent period where the original exercise price of the option was below the
deemed fair value of our common stock for accounting purposes.
RESEARCH AND DEVELOPMENT. During the six months ended March 31,
2000, research and development expenses were $11.6 million, an increase of
201% over research and development expenses of $3.8 million for the six
months ended March 31, 1999. The increase was primarily attributable to an
increase in salaries and related expenses because of an increase in the
number of research and development personnel from continued expansion and our
acquisitions and, to a lesser extent, the increase is also due to increased
facility costs related to the expansion of our corporate headquarters and our
international sales offices. To date, all software development costs have
been expensed in the period incurred. We believe that continued investment in
research and development is critical to attaining our strategic objectives,
and, as a result, we expect research and development expenses to increase in
absolute dollar amounts in future periods.
During the six months ended March 31, 2000, research and development
expenses including related stock-based amortization increased to $13.1
million from $4.9 million for the six months ended March 31, 1999. In
addition to the increases mentioned above, the increase was also due to a
greater number of stock options being subject to amortization during the more
recent period where the original exercise price of the option was below the
deemed fair value of our common stock for accounting purposes.
GENERAL AND ADMINISTRATIVE. During the six months ended March 31,
2000, general and administrative expenses were $8.7 million, an increase of
224% over general and administrative expenses of $2.7 million for the six
months ended March 31, 1999. The increase was primarily attributable to an
increase in the number of finance, accounting, legal, human resources and
information technology personnel from continued expansion and our
acquisitions, an increase in fees paid to outside professional service
providers, an increase in our allowance for doubtful accounts related to our
domestic and international growth, increased facility costs related to the
expansion of our corporate headquarters and international sales offices and
to increased communication costs, particularly to remote offices. We believe
general and administrative expenses will increase in absolute dollars, as we
expect to add personnel to support our expanding operations, and to incur
additional costs related to the growth of our business and our
responsibilities as a public company.
During the six months ended March 31, 2000, general and
administrative expenses including related stock-based amortization increased
to $10.8 million from $3.4 million for the six months ended March 31, 1999.
In addition to the increases mentioned above, the increase was also due to a
greater number of stock options being subject to amortization during the more
recent period where the original exercise price of the option was below the
deemed fair value of our common stock for accounting purposes.
AMORTIZATION OF GOODWILL AND OTHER INTANGIBLES. We acquired
TradingDynamics and Tradex in the quarter ended March 31, 2000 primarily for
their product offerings and research and development teams. We accounted for
the acquisitions as purchase business combinations. We also entered an
intellectual property agreement with an outside party in the quarter ended
March 31, 2000. As a result of these transactions we recorded goodwill and
other intangible assets on our balance sheet of $3.5 billion. Amortization of
goodwill and other intangible assets was $98.3 million in the quarter ended
March 31, 2000. We will be amortizing the remaining $3.4 billion of our
goodwill and other intangible assets on a straight-line basis through the
quarter ended March 31, 2003. Please see Notes 4 and 5 in the Notes to the
Condensed Consolidated Financial Statements for a more detailed discussion of
our goodwill and other intangible assets.
IN-PROCESS RESEARCH AND DEVELOPMENT. In connection with the
TradingDynamics and Tradex acquisitions we recorded a charge of $12.8 million
in the quarter ended March 31, 2000. Please see Note 4 in the Notes to the
Condensed Consolidated Financial Statements for a more detailed discussion of
the charge for in-process research and development.
OTHER INCOME, NET
Other income, net consists of interest income, interest expense and
other non-operating expenses. During the six months ended March 31, 2000,
other income, net was $4.8 million, an increase of 2,452% over other income,
net of $187,000 for the six months ended March 31, 1999. This increase is
primarily attributable to interest income resulting from higher average cash
balances during the more recent period.
PROVISION FOR INCOME TAXES
We incurred operating losses for all periods from inception through
March 31, 2000. We have recorded a valuation allowance for
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the full amount of our net deferred tax assets, as the future realization of
the tax benefit is not currently likely. We recorded income tax expense of
$442,000 primarily relating to our international subsidiaries during the six
months ended March 31, 2000.
LIQUIDITY AND CAPITAL RESOURCES
As of March 31, 2000, we had $317.6 million in cash, cash
equivalents and investments, and $106.3 million in working capital. In the
quarter ended March 31, 2000, we received $99.6 million in cash and cash
equivalents from the acquisitions of TradingDynamics and Tradex. In March
2000, we received $47.5 million in cash as part of a transaction with an
outside party. Please see Note 5 in the Notes to the Condensed Consolidated
Financial Statements. In June 1999, we completed the initial public offering
of our common stock and realized net proceeds from the offering of
approximately $121.2 million. Prior to the offering we had financed our
operations through private sales of preferred stock, with net proceeds of
$23.2 million, bank loans and equipment leases. We also continue to fund our
operations through our cash from operating activities. As of March 31, 2000,
we had outstanding lease liabilities of $1.3 million and we have a line of
credit of $7.0 million that can be used for working capital purposes. At
March 31, 2000, no amounts were outstanding under the line of credit. The
line of credit contains covenants that require the Company to maintain
certain financial ratios and levels of net worth. The line of credit also
does not permit the payment of dividends to stockholders.
Net cash provided by operating activities was $32.0 million in the
six months ended March 31, 2000 and $10.0 in the six months ended March 31,
1999. Net cash flows provided by operating activities in the six months ended
March 31, 2000 was primarily attributed to deferred revenue from customer
payments that were not recognized as revenue, and, to a lesser extent, by
increases in accounts payable, accrued compensation and related liabilities
and accrued liabilities and by customer payments on our accounts receivable.
These cash flows provided by operating activities were partially offset by
the net loss for the period and, to a lesser extent, an increase in prepaid
expenses and other assets for the six months ended March 31, 2000. Net cash
flows provided by operating activities in the six months ended March 31, 1999
was primarily attributed to deferred revenue from customer payments that were
not recognized as revenue, and, to a lesser extent, by increases in accounts
payable, accrued compensation and related liabilities and accrued
liabilities. These cash flows provided by operating activities were partially
offset by the net loss for the period and, to a lesser extent, an increases
in accounts receivable and prepaid expenses and other assets for the six
months ended March 31, 1999.
Net cash provided by investing activities was $51.9 million in the
six months ended March 31, 2000. The cash provided relates to the cash
acquired in our acquisitions of TradingDynamics and Tradex less direct
transaction costs for the mergers. This is partially offset by purchases of
property and equipment and purchases of investments. Net cash used in
investing activities was $4.1 million in the six months ended March 31, 1999.
Cash used in investing activities primarily reflects purchases of property
and equipment and purchases of investments in the six months ended March 31,
1999.
Net cash provided by financing activities was $53.7 million in the
six months ended March 31, 2000, primarily from the proceeds of our sale of
common stock to an outside party, and to a lesser extent, exercises of
employee stock options and stock purchased through our employee stock
purchase plan. This was partially offset by payments on capital lease
obligations. Net cash provided by financing activities was $374,000 in the
six months ended March 31, 1999, from the proceeds of stock purchased through
our employee stock option program. This was partially offset by payments on
capital lease obligations.
Capital expenditures purchases, including capital leases, were $12.5
million in the six months ended March 31, 2000 and $2.4 million in the six
months ended March 31, 1999. Our capital expenditures consisted of purchases
of operating resources to manage our operations, including computer hardware
and software, office furniture and equipment and leasehold improvements. We
expect that our capital expenditures will continue to increase in the future.
In March 2000, we entered into a new facilities operating lease agreement.
The lease term commences upon possession and is for 12 years. The Company
currently expects possession to be in the quarter ending June 30, 2001. Lease
payments are going to be made on an escalating basis with the total future
minimum lease payments amounting to $386.8 million over the lease term. We
will also have to contribute a significant amount towards construction costs
of the facility. This amount is currently estimated at approximately $116.0
million, but is subject to change. As part of this agreement, we are required
to hold a certificate of deposit as a form of security. This certificate of
deposit purchased in April is for $25.7 million and it will be classified as
restricted cash on our balance sheet. Since inception, we have generally
funded capital expenditures either through the use of working capital or with
capital leases. We will also need to purchase additional operating resources.
We expect to fund these commitments from our existing cash and cash
equivalents and our future cash flows from operations.
We expect to experience significant growth in our operating
expenses, particularly research and development and sales and marketing
expenses, for the foreseeable future in order to execute our business plan.
As a result, we anticipate that such operating expenses, as well as planned
capital expenditures, will constitute a material use of our cash resources.
In addition, we may utilize cash resources to fund acquisitions or
investments in complementary businesses, technologies or product lines. We
believe that our existing cash and cash equivalents and our anticipated cash
flow from operations will be sufficient to meet our working capital and
operating resource expenditure requirements for at least the next year.
Thereafter, we may find it necessary to obtain additional equity or debt
financing. In the event additional financing is required, we may not be able
to raise it on acceptable terms or at all.
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YEAR 2000 COMPLIANCE
We have tested our products and believe that they are year 2000
compliant. We have also inquired of significant vendors of our internal
systems as to their year 2000 readiness, and we have also tested our material
internal systems. We believe that, based on these tests and assurances of our
vendors, we will not incur material costs to resolve year 2000 issues for our
products and internal systems. Furthermore, to date we have not experienced
any year 2000 problems and our customers or vendors have not informed us of
any material year 2000 problems. If it comes to our attention that there are
any year 2000 problems with our products or that some of our third-party
hardware and software used in our internal systems are not year 2000
compliant, then we will endeavor to make modifications to our products and
internal systems, or purchase new internal systems, to quickly respond to the
problem. The costs already incurred by us to date related to year 2000
compliance are not material, and we do not anticipate incurring additional
material costs related to year 2000 compliance.
RISK FACTORS
In addition to other information in this Form 10-Q, the following
risk factors should be carefully considered in evaluating Ariba and its
business because such factors currently may have a significant impact on
Ariba's business, operating results and financial condition. As a result of
the risk factors set forth below and elsewhere in this Form 10-Q, and the
risks discussed in Ariba's other Securities and Exchange Commission filings,
actual results could differ materially from those projected in any
forward-looking statements.
ARIBA IS AN EARLY-STAGE COMPANY. OUR LIMITED OPERATING HISTORY MAKES
IT DIFFICULT TO EVALUATE OUR FUTURE PROSPECTS.
Ariba was founded in September 1996 and has a limited operating
history. Our limited operating history makes an evaluation of our future
prospects very difficult. We began shipping our first product, the Ariba B2B
Buyer, in June 1997 and began to operate the Ariba Network in April 1999. We
will encounter risks and difficulties frequently encountered by early-stage
companies in new and rapidly evolving markets. Many of these risks are
described in more detail in this "Risk Factors" section. We may not
successfully address any of these risks. If we do not successfully address
these risks, our business would be seriously harmed.
THE MARKET FOR OUR SOLUTIONS IS AT AN EARLY STAGE. WE NEED A
CRITICAL MASS OF LARGE BUYING ORGANIZATIONS AND THEIR SUPPLIERS TO
IMPLEMENT OUR SOLUTIONS.
The market for Internet-based business-to-business applications and
services is at an early stage of development. Our success depends on a
significant number of large buying organizations implementing Ariba products
and services. The implementation of Ariba products by large buying
organizations is complex, time consuming and expensive. In many cases, these
organizations must change established business practices and conduct business
in new ways. Our ability to attract additional customers for our Ariba
products and services will depend on using our existing customers as
reference accounts. Unless a critical mass of large buying organizations and
their suppliers join the Ariba Network, our solutions may not achieve
widespread market acceptance and our business would be seriously harmed.
WE HAVE A HISTORY OF LOSSES AND EXPECT TO INCUR LOSSES IN THE FUTURE.
We incurred net losses of $4.7 million in fiscal 1997, $11.0 million
in fiscal 1998, $29.3 million in fiscal 1999 and $136.3 million for the six
months ended March 31, 2000. We expect to derive substantially all of our
revenues for the foreseeable future from licensing our products and, to a
lesser extent, from transaction based revenue. Although our licensing
revenues have grown in recent quarters, we may not be able to sustain these
growth rates. In fact, we may not have any revenue growth, and our revenues
could decline. Over the longer term, we expect to derive more of our revenues
from revenues related to network access, network services and independent
internet marketplaces, which are based on unproven business models. Moreover,
we expect to incur significant sales and marketing, research and development,
and general and administrative expenses. In the future, we will incur
substantial non-cash costs relating to the amortization of deferred
compensation, and amortization of our goodwill and other intangible assets
and we may incur significant non-cash costs related to the issuance of
warrants to purchase our common stock. These non-cash costs will contribute
significantly to our net losses in future periods. As of March 31, 2000, we
had an aggregate of $16.3 million of deferred compensation and $3.4 billion
of goodwill and other intangible assets to be amortized. As a result, we
expect to incur significant losses for the foreseeable future. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations." and the "Notes to the Condensed Consolidated Financial
Statements."
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OUR QUARTERLY OPERATING RESULTS ARE VOLATILE AND DIFFICULT TO PREDICT.
IF WE FAIL TO MEET THE EXPECTATIONS OF PUBLIC MARKET ANALYSTS OR
INVESTORS, THE MARKET PRICE OF OUR COMMON STOCK MAY DECREASE
SIGNIFICANTLY.
Our quarterly operating results have varied significantly in the
past and will likely vary significantly in the future. We believe that
period-to-period comparisons of our results of operations are not meaningful
and should not be relied upon as indicators of future performance. Our
operating results will likely fall below the expectations of securities
analysts or investors in some future quarter or quarters. Our failure to meet
these expectations would likely adversely affect the market price of our
common stock.
Our quarterly operating results may vary depending on a number of
factors, including:
- Demand for Ariba products and services;
- Actions taken by our competitors, including new product
introductions and enhancements;
- Ability to scale our network and operations to support large
numbers of customers, suppliers and transactions;
- Ability to develop, introduce and market new products and
enhancements to our existing products on a timely basis;
- Changes in our pricing policies or those of our competitors;
- Integration of our recent acquisitions and any future
acquisitions;
- Ability to expand our sales and marketing operations,
including hiring additional sales personnel;
- Size and timing of sales of our products and services;
- Success in maintaining and enhancing existing relationships
and developing new relationships with strategic partners,
including systems integrators and other implementation
partners;
- Compensation policies that compensate sales personnel based on
specific objectives;
- Ability to control costs;
- Technological changes in our markets;
- Deferrals of customer orders in anticipation of product
enhancements or new products;
- Customer budget cycles and changes in these budget cycles; and
- General economic factors.
Our quarterly revenues are especially subject to fluctuation because
they depend on the sale of relatively large orders for our Ariba products and
related services. As a result, our quarterly operating results may fluctuate
significantly if we are unable to complete one or more substantial sales in
any given quarter. In some cases, we recognize revenues from product sales on
a percentage of completion basis. Accordingly, our ability to recognize these
revenues is subject to delays associated with our customers' ability to
complete the implementation of Ariba products in a timely manner. In some
cases, we recognize revenues on a subscription basis over the life of the
subscriptions specified in the contract, which is typically 12 to 24 months.
Therefore, if we do not book a sufficient number of large orders in a
particular quarter, our revenues in future periods could be lower than
expected. We also continue to develop our business model for the Ariba
Network and related services. As this business model evolves, the potential
for fluctuations in our quarterly results could increase and our revenues
could be lower than expected. Furthermore, other revenue recognition policies
and procedures may affect our quarterly revenues significantly. These
policies and procedures may evolve or change over time based on applicable
accounting standards and how these standards are interpreted. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
We plan to continue to increase our operating expenses to expand our
sales and marketing operations, fund greater levels of research and
development, develop new partnerships, make tenant improvements to our new
facilities, increase our professional services and support capabilities and
improve our operational and financial systems. Moreover, non-cash expenses
related to the issuance of warrants to purchase our common stock could
fluctuate significantly as a result of fluctuations in the fair market value
of our common stock. If our revenues do not increase along with these
expenses or if we experience significant fluctuations in non-cash expenses
related to these warrants, our
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business, operating results and financial condition could be seriously harmed
and net losses in a given quarter could be even larger than expected.
In addition, because our expense levels are relatively fixed in the
near term and are based in part on expectations of our future revenues, any
decline in our revenues to a level that is below our expectations would have
a disproportionately adverse impact on our operating results.
IMPLEMENTATION OF OUR ARIBA PRODUCTS BY CUSTOMERS IS COMPLEX, TIME
CONSUMING AND EXPENSIVE. WE FREQUENTLY EXPERIENCE LONG SALES AND
IMPLEMENTATION CYCLES.
Ariba B2B Buyer is an enterprise-wide solution that must be deployed
with many users within a buying organization. Its implementation by buying
organizations is complex, time consuming and expensive. In many cases, our
customers must change established business practices and conduct business in
new ways. In addition, they must generally consider a wide range of other
issues before committing to purchase our product, including product benefits,
ease of installation, ability to work with existing computer systems, ability
to support a larger user base, functionality and reliability. Furthermore,
because we are one of the first companies to offer an Internet-based
operating resource management system, many customers will be addressing these
issues for the first time in the context of managing and procuring operating
resources. As a result, we must educate potential customers on the use and
benefits of our products and services. In addition, we believe that the
purchase of our products is often discretionary and generally involves a
significant commitment of capital and other resources by a customer. It
frequently takes several months to finalize a sale and requires approval at a
number of management levels within the customer organization. The
implementation and deployment of our products requires a significant
commitment of resources by our customers and third-party and/or our
professional services organizations. Because we target different sized
customers, our sales cycles average approximately two to nine months for our
different product offerings.
BUSINESS-TO-BUSINESS ELECTRONIC COMMERCE PURCHASING NETWORKS,
INCLUDING THE ARIBA NETWORK, ARE AT AN EARLY STAGE OF DEVELOPMENT
AND MARKET ACCEPTANCE
We began operating the Ariba Network in April 1999. Broad and timely
acceptance of the Ariba Network and other electronic purchasing networks,
which is critical to our future success, is subject to a number of
significant risks. These risks include:
- Operating resource management and procurement on the Internet
is a new market;
- Our network's ability to support large numbers of buyers and
suppliers is unproven;
- Our need to enhance the interface between our Ariba B2B Buyer
product and the Ariba Network;
- Our need to significantly enhance the features and services of
the Ariba Network to achieve widespread commercial acceptance
of our network; and
- Our need to significantly expand our internal resources to
support planned growth of the Ariba Network.
Although we expect to derive a significant portion of our long-term
future revenue from the Ariba Network, we have not yet fully evolved our
revenue model for services associated with the Ariba Network. The revenues
associated may be a combination of transaction and/or annual subscription
fees. Examples of such services might include electronic payment, bid/quote
and sourcing, among others. However, we cannot predict whether these services
and other functionality will be commercially successful or whether they will
adversely impact revenues from our Ariba B2B Buyer products and services. We
would be seriously harmed if the Ariba Network is not commercially
successful, particularly if we experience a decline in the growth or growth
rate of revenues from our Ariba B2B Buyer solution.
WE DEPEND ON SUPPLIERS FOR THE SUCCESS OF THE ARIBA NETWORK.
We depend on suppliers joining the Ariba Network. Any failure of
suppliers to join the Ariba Network in sufficient and increasing numbers
would make our network less attractive to buyers and consequently other
suppliers. In order to provide buyers on the Ariba Network an organized
method for accessing operating resources, we rely on suppliers to maintain
web-based catalogs, indexing services and other content aggregation tools.
Our inability to access and index these catalogs and services would result in
our customers having fewer products and services available to them through
our solution, which would adversely affect the perceived usefulness of the
Ariba Network.
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WE RELY ON THIRD PARTIES TO EXPAND, MANAGE AND MAINTAIN THE COMPUTER
AND COMMUNICATIONS EQUIPMENT AND SOFTWARE NEEDED FOR THE DAY-TO-DAY
OPERATIONS OF THE ARIBA NETWORK.
We rely on several third parties to provide hardware, software and
services required to manage, maintain and expand the computer and
communications equipment and software needed for the day-to-day operations of
the Ariba Network. Services provided by these parties will include managing
the Ariba Network web server, maintaining communications lines and managing
network data centers, which are the locations on our network where data is
stored. We may not successfully obtain these services on a timely and cost
effective basis. Since the installation of the computer and communications
equipment and software needed for the day-to-day operations of the Ariba
Network to a significant extent will be managed by third parties, we will be
dependent on those parties to the extent that they manage, maintain and
provide security for it.
WE DEPEND ON STRATEGIC RESELLING RELATIONSHIPS WITH OUR PARTNERS
We have established strategic reselling relationships with some
outside companies. These companies are entitled to resell our products to
their customers. These relationships are new and this strategy is unproven.
We cannot be assured that any of these resellers, or those we may contract
with in the future, will be able to resell our products to an adequate number
of customers. If our current or future strategic partners are not able to
successfully resell our products our business could be seriously harmed.
THE BUSINESS-TO-BUSINESS ELECTRONIC COMMERCE INDUSTRY IS VERY
COMPETITIVE, AND WE FACE INTENSE COMPETITION FROM MANY PARTICIPANTS
IN THIS INDUSTRY. IF WE ARE UNABLE TO COMPETE SUCCESSFULLY, OUR
BUSINESS WILL BE SERIOUSLY HARMED.
The market for our solutions are intensely competitive, evolving and
subject to rapid technological change. The intensity of competition has
increased and is expected to further increase in the future. This increased
competition is likely to result in price reductions, reduced gross margins
and loss of market share, any one of which could seriously harm our business.
Competitors vary in size and in the scope and breadth of the products and
services offered. We also increasingly encountered competition with respect
to different aspects of our solution from Captura Software, Clarus, Commerce
One, Concur Technologies, Extensity, GE Information Services, Intelisys,
Netscape Communications, a subsidiary of America Online and VerticalNet. We
also encounter significant competition from several major enterprise software
developers, such as Oracle, PeopleSoft and SAP. In addition, because there
are relatively low barriers to entry in the business-to-business exchange
market, we expect additional competition from other established and emerging
companies, as the business-to-business electronic commerce market continues
to develop and expand. For example, third parties that currently help
implement Ariba B2B Buyer and our other products could begin to market
products and services that compete with our own. We could also face
competition from new companies who introduce an Internet-based management
solution.
Many of our current and potential competitors have longer operating
histories, significantly greater financial, technical, marketing and other
resources than us, significantly greater name recognition and a larger
installed base of customers. In addition, many of our competitors have
well-established relationships with our current and potential customers and
have extensive knowledge of our industry. In the past, we have lost potential
customers to competitors for various reasons, including lower prices and
incentives not matched by us. In addition, current and potential competitors
have established or may establish cooperative relationships among themselves
or with third parties to increase the ability of their products to address
customer needs. Accordingly, it is possible that new competitors or alliances
among competitors may emerge and rapidly acquire significant market share. We
also expect that competition will increase as a result of industry
consolidations.
We may not be able to compete successfully against our current and
future competitors.
REVENUES COULD BE CONCENTRATED IN A RELATIVELY SMALL NUMBER OF
CUSTOMERS.
In the six months ended March 31, 2000, no individual customers
accounted for more than 10% of our total revenues; however, in fiscal 1999,
one customer accounted for more than 10% of our total revenues and, in fiscal
1998, five individual customers each accounted for more than 10% of our total
revenues. We may continue to derive a significant portion of our revenues
from a relatively small number of customers in the future. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
WE WILL INCUR INCREASED NET LOSSES WHEN WE ARE REQUIRED TO RECORD A
SIGNIFICANT NON-CASH ACCOUNTING EXPENSE UPON THE VESTING OF WARRANTS.
Since January 1, 2000, in connection with alliances with different
business partners, we have issued warrants to purchase shares of our common
stock at various exercise prices. The warrants generally vest upon attainment
of certain milestones. If and when it becomes probable that any of the above
warrants will be earned we will recognize a non-cash expense for these
warrants. This expense would be calculated using the Black-Scholes option
pricing model. The potential expense underlying the milestones will be
measured at each
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subsequent balance sheet date until the milestones are achieved or the
warrants expire. Future remeasurement could result in a substantial potential
non-cash expense, which could increase or decrease over time depending on the
fair market value of our common stock. At March 31, 2000 it was not
considered probable that any of the warrants would vest and therefore there
has not been any expense recognized for these warrants and no shares have
been issued. However subsequent to the quarter ended March 31, 2000 a
business partner has currently earned one warrant for 1,936,000 shares of our
common stock. We will be calculating the non-cash expense of this warrant in
the quarter ending June 30, 2000 and recognizing the expense over the life of
the agreement, which is five years. This will be a substantial non-cash
expense for the next five years. We could be required to record additional
significant non-cash accounting expenses if it becomes probable that any
warrants will vest in the future. In addition, from time to time we may enter
into similar arrangements with, and issue additional warrants to, other third
parties that could require us to record significant non-cash accounting
expenses based upon the value of such warrants. See "Management's Discussion
and Analysis of Financial Condition and Results of Operations." and the
"Notes to the Condensed Consolidated Financial Statements."
OUR FUTURE RESULTS MAY DEPEND SIGNIFICANTLY ON THE USE OF OUR
ELECTRONIC COMMERCE PLATFORM IN INDEPENDENT INTERNET MARKETPLACES
We have entered into agreements to partner with independent internet
marketplaces that will be powered by our business-to-business electronic
commerce platform. These marketplaces are recently formed and at an early
stage of development. Our future results may depend significantly on the
success of these marketplaces and the use of our electronic commerce platform
by them. There is no guarantee regarding the level of activity of different
companies in these marketplaces, the effectiveness of the interaction among
companies using our business-to-business electronic commerce platform and of
the attractiveness of offerings of our competitors. If these marketplaces are
not successful, our business, operating results and financial position will
be seriously harmed.
WE HAVE ENTERED INTO STRATEGIC ALLIANCES TO CREATE A LARGER MARKET FOR
OUR PRODUCT OFFERINGS
We have established strategic alliances with various companies to
create a larger market for our product offerings both domestically and
internationally. These companies will be promoting our products to their
potential customer base. As part of these agreements we will be deploying
critical employee resources to help promote these alliances. There is no
guarantee that these alliances will be successful in creating a larger market
for our product offerings. If these alliances are not successful, our
business, operating results and financial position could be seriously harmed.
WE RELY ON THIRD PARTIES TO IMPLEMENT ARIBA PRODUCTS.
We rely, and expect to rely increasingly, on a number of third
parties to implement Ariba B2B Buyer and our other products at customer
sites. If we are unable to establish and maintain effective, long-term
relationships with our implementation providers, or if these providers do not
meet the needs or expectations of our customers, our business would be
seriously harmed. This strategy will also require that we develop new
relationships with additional third-party implementation providers to provide
these services if the number of Ariba B2B Buyer and other product
implementations continues to increase. Our current implementation partners
are not contractually required to continue to help implement Ariba B2B Buyer
and our other products. As a result of the limited resources and capacities
of many third-party implementation providers, we may be unable to establish
or maintain relationships with third parties having sufficient resources to
provide the necessary implementation services to support our needs. If these
resources are unavailable, we will be required to provide these services
internally, which would significantly limit our ability to meet our
customers' implementation needs. A number of our competitors, including
Oracle, SAP and PeopleSoft, have significantly more well-established
relationships with these third parties and, as a result, these third parties
may be more likely to recommend competitors' products and services rather
than our own. In addition, we cannot control the level and quality of service
provided by our current and future implementation partners.
WE MUST INTEGRATE RECENT ACQUISITIONS, AND WE MAY NEED TO MAKE
ADDITIONAL FUTURE ACQUISITIONS TO REMAIN COMPETITIVE. OUR BUSINESS
COULD BE ADVERSELY AFFECTED AS A RESULT OF THESE ACQUISITIONS.
In the quarter ended March 31, 2000, we completed our acquisitions
of TradingDynamics, a leading provider of business-to-business Internet
trading applications, and Tradex, a leading provider of solutions for net
markets, respectively. We may find it necessary or desirable to acquire
additional businesses, products, or technologies. If we identify an
appropriate acquisition candidate, we may not be able to negotiate the terms
of the acquisition successfully, finance the acquisition, or integrate the
acquired business, products or technologies into our existing business and
operations. If our efforts are not successful, it could seriously harm our
business.
Completing any potential future acquisitions, and integrating
TradingDynamics, Tradex or other acquisitions will cause significant
diversions of management time and resources. In particular, the acquisition
of Tradex requires the integration of two large, geographically distant
organizations. If we consummate one or more significant future acquisitions
in which the consideration consists of stock or other securities, our equity
could be significantly diluted. If we were to proceed with one or more
significant future acquisitions in which the consideration included cash, we
could be required to use a substantial portion of our available cash, to
consummate any
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acquisition. Financing for future acquisitions may not be available on
favorable terms, or at all. In addition, in connection with our pending and
possibly with future acquisitions we will be required to amortize significant
amounts of goodwill and other intangible assets, which will negatively effect
the operating income of our business. As of March 31, 2000, we had an
aggregate of $3.4 billion of goodwill and other intangible assets remaining
to be amortized. The amortization of the remaining goodwill and other
intangible assets will result in additional charges to operations through the
quarter ending March 31, 2003.
WE DEPEND ON THE INTRODUCTION OF NEW VERSIONS OF ARIBA PLATFORMS AND
NETWORK SERVICES AND ON ENHANCING THE FUNCTIONALITY AND SERVICES
OFFERED THROUGH THE ARIBA NETWORK.
If we are unable to develop new software products or enhancements to
our existing products on a timely and cost-effective basis, or if new
products or enhancements do not achieve market acceptance, our business would
be seriously harmed. The life cycles of our products are difficult to predict
because the market for our products is new and emerging, and is characterized
by rapid technological change, changing customer needs and evolving industry
standards. The introduction of products employing new technologies and
emerging industry standards could render our existing products or services
obsolete and unmarketable.
To be successful, our products and services must keep pace with
technological developments and emerging industry standards, address the
ever-changing and increasingly sophisticated needs of our customers and
achieve market acceptance.
In developing new products and services, we may:
- Fail to develop and market products that respond to
technological changes or evolving industry standards in a
timely or cost-effective manner;
- Encounter products, capabilities or technologies developed by
others that render our products and services obsolete or
noncompetitive or that shorten the life cycles of our existing
products and services;
- Experience difficulties that could delay or prevent the
successful development, introduction and marketing of these
new products and services; or
- Fail to develop new products and services that adequately meet
the requirements of the marketplace or achieve market
acceptance.
IF WE FAIL TO RELEASE OUR PRODUCTS IN A TIMELY MANNER, OR IF OUR
PRODUCTS DO NOT ACHIEVE MARKET ACCEPTANCE, OUR BUSINESS WOULD BE
SERIOUSLY HARMED.
We may fail to introduce or deliver new potential offerings on a
timely basis or at all. In the past, we have experienced delays in the
commencement of commercial shipments of our new releases. If new releases or
potential new products are delayed or do not achieve market acceptance, we
could experience a delay or loss of revenues and customer dissatisfaction.
Customers may delay purchases of Ariba B2B Buyer or other products in
anticipation of future releases. If customers defer material orders of Ariba
B2B Buyer or other products in anticipation of new releases or new product
introductions, our business would be seriously harmed.
NEW VERSIONS AND RELEASES OF ARIBA B2B BUYER AND OUR OTHER PRODUCTS
MAY CONTAIN ERRORS OR DEFECTS.
Ariba B2B Buyer and our other products are complex and, accordingly,
may contain undetected errors or failures when first introduced or as new
versions are released. This may result in loss of, or delay in, market
acceptance of our products. We have in the past discovered software errors in
our new releases and new products after their introduction. In the past, we
discovered problems with respect to the ability of software written in Java
to scale to allow for large numbers of concurrent users of Ariba B2B Buyer.
We have experienced delays in release, lost revenues and customer frustration
during the period required to correct these errors. We may in the future
discover errors and additional scalability limitations, in new releases or
new products after the commencement of commercial shipments. In addition, a
delay in the commercial release of the next version of Ariba B2B Buyer could
also slow the growth of the Ariba Network.
WE COULD BE SUBJECT TO POTENTIAL PRODUCT LIABILITY CLAIMS AND THIRD
PARTY LIABILITY CLAIMS RELATED TO PRODUCTS AND SERVICES PURCHASED
THROUGH THE ARIBA NETWORK.
Our customers use our products and services to manage their
operating resources. Any errors, defects or other performance problems could
result in financial or other damages to our customers. A product liability
claim brought against us, even if not successful, would likely be time
consuming and costly and could seriously harm our business. Although our
customer license agreements typically contain provisions designed to limit
our exposure to product liability claims, existing or future laws or
unfavorable judicial decisions could negate these limitation of liability
provisions.
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The Ariba Network provides our customers with indices of products
that can be purchased from suppliers participating in the Ariba Network. The
law relating to the liability of providers of listings of products and
services sold over the Internet for errors, defects or other performance
problems with respect to those products and services is currently unsettled.
We do not pre-screen the types of products and services that may be purchased
through the Ariba Network. Some of these products and services could contain
performance or other problems. We may not successfully avoid civil or
criminal liability for problems related to the products and services sold
through the Ariba Network. Any claims or litigation could still require
expenditures in terms of management time and other resources to defend
ourselves. Liability of this sort could require us to implement measures to
reduce our exposure to this liability, which may require us, among other
things, to expend substantial resources or to discontinue certain product or
service offerings or to take precautions to ensure that certain products and
services are not available through the Ariba Network.
OUR SUCCESS DEPENDS ON RETAINING OUR CURRENT KEY PERSONNEL AND
ATTRACTING ADDITIONAL KEY PERSONNEL, PARTICULARLY IN THE AREAS OF
DIRECT SALES AND RESEARCH AND DEVELOPMENT.
Our future performance depends on the continued service of our
senior management, product development and sales personnel, in particular
Keith Krach, our Chief Executive Officer and Chairman of the Board of
Directors. None of these persons, including Mr. Krach, is bound by an
employment agreement, and we do not carry key person life insurance. The loss
of the services of one or more of our key personnel could seriously harm our
business. Our future success also depends on our continuing ability to
attract, hire, train and retain a substantial number of highly skilled
managerial, technical, sales, marketing and customer support personnel. We
are particularly dependent on hiring additional personnel to increase our
direct sales and research and development organizations. In addition, new
hires frequently require extensive training before they achieve desired
levels of productivity. Competition for qualified personnel is intense, and
we may fail to retain our key employees or to attract or retain other highly
qualified personnel.
IF THE PROTECTION OF OUR INTELLECTUAL PROPERTY IS INADEQUATE, OUR
COMPETITORS MAY GAIN ACCESS TO OUR TECHNOLOGY, AND WE MAY LOSE
CUSTOMERS.
We depend on our ability to develop and maintain the proprietary
aspects of our technology. To protect our proprietary technology, we rely
primarily on a combination of contractual provisions, intellectual property
agreements, confidentiality procedures, trade secrets, and patent, copyright
and trademark laws.
We license rather than sell Ariba B2B Buyer and our other products
and require our customers to enter into license agreements, which impose
restrictions on their ability to utilize the software. In addition, we seek
to avoid disclosure of our trade secrets through a number of means, including
but not limited to, requiring those persons with access to our proprietary
information to execute confidentiality agreements with us and restricting
access to our source code. We seek to protect our software, documentation and
other written materials under trade secret and copyright laws, which afford
only limited protection. We cannot assure you that any of our proprietary
rights with respect to the Ariba Network will be viable or of value in the
future because the validity, enforceability and type of protection of
proprietary rights in Internet-related industries are uncertain and still
evolving.
We have no patents, and none may be issued from our existing patent
applications. Our future patents, if any, may be successfully challenged or
may not provide us with any competitive advantages. We may not develop
proprietary products or technologies that are patentable.
In the quarter ended March 31, 2000, we entered into an intellectual
property agreement with an outside party as part of an alliance. This
intellectual property agreement protects our products against any patents of
this outside party that are currently issued, pending and are to be issued
over the three year period subsequent to the date of the agreement.
Despite our efforts to protect our proprietary rights, unauthorized
parties may attempt to copy aspects of our products or to obtain and use
information that we regard as proprietary. Policing unauthorized use of our
products is difficult, and while we are unable to determine the extent to
which piracy of our software products exists, software piracy can be expected
to be a persistent problem. In addition, the laws of some foreign countries
do not protect our proprietary rights to as great an extent as do the laws of
the United States. Our means of protecting our proprietary rights may not be
adequate and our competitors may independently develop similar technology,
duplicate our products or design around patents issued to us or our other
intellectual property.
There has been a substantial amount of litigation in the software
industry and the Internet industry regarding intellectual property rights. It
is possible that in the future, third parties may claim that we or our
current or potential future products infringe their intellectual property. We
expect that software product developers and providers of electronic commerce
solutions will increasingly be subject to infringement claims as the number
of products and competitors in our industry segment grows and the
functionality of products in different industry segments overlaps. Any
claims, with or without merit, could be time-consuming, result in costly
litigation, cause product shipment delays or require us to enter into royalty
or licensing agreements. Royalty or licensing agreements, if required, may
not be available on
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terms acceptable to us or at all, which could seriously harm our business.
We must now, and may in the future have to, license or otherwise
obtain access to intellectual property of third parties. For example, we are
currently dependent on developers' licenses from enterprise resource
planning, database, human resource and other system software vendors in order
to ensure compliance of our Ariba B2B Buyer products with their management
systems. We may not be able to obtain any required third party intellectual
property in the future.
IN ORDER TO MANAGE OUR GROWTH AND EXPANSION, WE WILL NEED TO IMPROVE
AND IMPLEMENT NEW SYSTEMS, PROCEDURES AND CONTROLS.
We have recently experienced a period of significant expansion of
our operations that has placed a significant strain upon our management
systems and resources. If we are unable to manage our growth and expansion,
our business will be seriously harmed. In addition, we have recently hired a
significant number of employees and plan to further increase our total
headcount. We also plan to expand the geographic scope of our customer base
and operations. This expansion has resulted, and will continue to result, in
substantial demands on our management resources. Our ability to compete
effectively and to manage future expansion of our operations, if any, will
require us to continue to improve our financial and management controls,
reporting systems and procedures on a timely basis, and expand, train and
manage our employee work force. We have implemented new systems to manage our
financial and human resources infrastructure. We may find that this system,
our personnel, procedures and controls may be inadequate to support our
future operations.
OUR BUSINESS COULD BE ADVERSELY AFFECTED IF THE SYSTEMS WE USE ARE NOT
YEAR 2000 COMPLIANT
We have tested our products and believe that they are year 2000
compliant. We have also inquired of significant vendors of our internal
systems as to their year 2000 readiness, and we have also tested our material
internal systems. We believe that, based on these tests and assurances of our
vendors, we will not incur material costs to resolve year 2000 issues for our
products and internal systems. Furthermore, to date we have not experienced
any year 2000 problems and our customers or vendors have not informed us of
any material year 2000 problems. If it comes to our attention that there are
any year 2000 problems with our products or that some of our third-party
hardware and software used in our internal systems are not year 2000
compliant, then we will endeavor to make modifications to our products and
internal systems, or purchase new internal systems, to quickly respond to the
problem. The costs already incurred by us to date related to year 2000
compliance are not material, and we do not anticipate incurring additional
material costs related to year 2000 compliance.
AS WE EXPAND OUR INTERNATIONAL SALES AND MARKETING ACTIVITIES, OUR
BUSINESS WILL BE SUSCEPTIBLE TO NUMEROUS RISKS ASSOCIATED WITH
INTERNATIONAL OPERATIONS.
To be successful, we believe we must continue to expand our
international operations and hire additional international personnel.
Therefore, we expect to commit significant resources to expand our
international sales and marketing activities. If successful, we will be
subject to a number of risks associated with international business
activities. These risks generally include:
- Currency exchange rate fluctuations;
- Seasonal fluctuations in purchasing patterns;
- Unexpected changes in regulatory requirements;
- Tariffs, export controls and other trade barriers;
- Longer accounts receivable payment cycles and difficulties in
collecting accounts receivable;
- Difficulties in managing and staffing international
operations;
- Potentially adverse tax consequences, including restrictions
on the repatriation of earnings;
- The burdens of complying with a wide variety of foreign laws;
- The risks related to the recent global economic turbulence and
adverse economic circumstances in Asia; and
- Political instability.
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IN THE FUTURE WE MAY NEED TO RAISE ADDITIONAL CAPITAL IN ORDER TO
REMAIN COMPETITIVE IN THE BUSINESS-TO-BUSINESS ELECTRONIC COMMERCE
INDUSTRY. THIS CAPITAL MAY NOT BE AVAILABLE ON ACCEPTABLE TERMS, IF
AT ALL.
We believe that our existing cash and cash equivalents and our
anticipated cash flow from operations will be sufficient to meet our working
capital and operating resource expenditure requirements for at least the next
year. After that, we may need to raise additional funds and we cannot be
certain that we will be able to obtain additional financing on favorable
terms, if at all. If we cannot raise funds on acceptable terms, if and when
needed, we may not be able to develop or enhance our products and services,
take advantage of future opportunities, grow our business or respond to
competitive pressures or unanticipated requirements, which could seriously
harm our business.
OUR STOCK PRICE IS VOLATILE.
Our stock price has fluctuated significantly. The market price of
the common stock may decrease significantly in the future in response to the
following factors, some of which are beyond our control:
- Variations in our quarterly operating results;
- Announcements that our revenue or income are below analysts'
expectations;
- Changes in analysts' estimates of our performance or industry
performance;
- Changes in market valuations of similar companies;
- Sales of large blocks of our common stock;
- Announcements by us or our competitors of significant
contracts, acquisitions, strategic partnerships, joint
ventures or capital commitments;
- Loss of a major customer or failure to complete significant
license transactions;
- Additions or departures of key personnel; and
- Fluctuations in stock market price and volume, which are
particularly common among highly volatile securities of
software and Internet-based companies.
WE ARE AT RISK OF SECURITIES CLASS ACTION LITIGATION DUE TO OUR STOCK
PRICE VOLATILITY.
In the past, securities class action litigation has often been
brought against a company following periods of volatility in the market price
of its securities. We may in the future be the target of similar litigation.
Securities litigation could result in substantial costs and divert
management's attention and resources, which could seriously harm our business.
WE HAVE IMPLEMENTED CERTAIN ANTI-TAKEOVER PROVISIONS THAT COULD MAKE
IT MORE DIFFICULT FOR A THIRD PARTY TO ACQUIRE US.
Provisions of our amended and restated certificate of incorporation
and bylaws, as well as provisions of Delaware law, could make it more
difficult for a third party to acquire us, even if doing so would be
beneficial to our stockholders.
WE DEPEND ON INCREASING USE OF THE INTERNET AND ON THE GROWTH OF
ELECTRONIC COMMERCE. IF THE USE OF THE INTERNET AND ELECTRONIC
COMMERCE DO NOT GROW AS ANTICIPATED, OUR BUSINESS WILL BE SERIOUSLY
HARMED.
Our business depends on the increased acceptance and use of the
Internet as a medium of commerce. Rapid growth in the use of the Internet is
a recent phenomenon. As a result, acceptance and use may not continue to
develop at historical rates and a sufficiently broad base of business
customers may not adopt or continue to use the Internet as a medium of
commerce. Demand and market acceptance for recently introduced services and
products over the Internet are subject to a high level of uncertainty, and
there exist few proven services and products.
Our business would be seriously harmed if:
- Use of the Internet and other online services does not
continue to increase or increases more slowly than expected;
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- The technology underlying the Internet and other online
services does not effectively support any expansion that may
occur; or
- The Internet and other online services do not create a viable
commercial marketplace, inhibiting the development of
electronic commerce and reducing the need for our products and
services.
WE DEPEND ON THE ACCEPTANCE OF THE INTERNET AS A COMMERCIAL MARKETPLACE
AND THIS ACCEPTANCE MAY NOT OCCUR ON A TIMELY BASIS.
The Internet may not be accepted as a viable long-term commercial
marketplace for a number of reasons. These include:
- Potentially inadequate development of the necessary
communication and computer network technology, particularly if
rapid growth of the Internet continues;
- Delayed development of enabling technologies and performance
improvements;
- Delays in the development or adoption of new standards and
protocols; and
- Increased governmental regulation.
SECURITY RISKS AND CONCERNS MAY DETER THE USE OF THE INTERNET FOR
CONDUCTING ELECTRONIC COMMERCE.
A significant barrier to electronic commerce and communications is
the secure transmission of confidential information over public networks.
Advances in computer capabilities, new discoveries in the field of
cryptography or other events or developments could result in compromises or
breaches of our security systems or those of other web sites to protect
proprietary information. If any well-publicized compromises of security were
to occur, it could have the effect of substantially reducing the use of the
web for commerce and communications. Anyone who circumvents our security
measures could misappropriate proprietary information or cause interruptions
in our services or operations. The Internet is a public network, and data is
sent over this network from many sources. In the past, computer viruses,
software programs that disable or impair computers, have been distributed and
have rapidly spread over the Internet. Computer viruses could be introduced
into our systems or those of our customers or suppliers, which could disrupt
the Ariba Network or make it inaccessible to customers or suppliers. We may
be required to expend significant capital and other resources to protect
against the threat of security breaches or to alleviate problems caused by
breaches. To the extent that our activities may involve the storage and
transmission of proprietary information, such as credit card numbers,
security breaches, could expose us to a risk of loss or litigation and
possible liability. Our security measures may be inadequate to prevent
security breaches, and our business would be harmed if we do not prevent them.
THE ARIBA NETWORK MAY EXPERIENCE PERFORMANCE PROBLEMS OR DELAYS AS A
RESULT OF HIGH VOLUMES OF TRAFFIC.
If the volume of traffic on the web site for the Ariba Network
increases, the Ariba Network may in the future experience slower response
times or other problems. In addition, users will depend on Internet service
providers, telecommunications companies and the efficient operation of their
computer networks and other computer equipment for access to the Ariba
Network. Each of these has experienced significant outages in the past and
could experience outages, delays and other difficulties due to system
failures unrelated to our systems. Any delays in response time or performance
problems could cause users of the Ariba Network to perceive this service as
not functioning properly and therefore cause them to use other methods to
procure their operating resources.
INCREASING GOVERNMENT REGULATION COULD LIMIT THE MARKET FOR, OR
IMPOSE SALES AND OTHER TAXES ON THE SALE OF, OUR PRODUCTS AND
SERVICES OR ON PRODUCTS AND SERVICES PURCHASED THROUGH THE ARIBA
NETWORK.
As Internet commerce evolves, we expect that federal, state or
foreign agencies will adopt regulations covering issues such as user privacy,
pricing, content and quality of products and services. It is possible that
legislation could expose companies involved in electronic commerce to
liability, which could limit the growth of electronic commerce generally.
Legislation could dampen the growth in Internet usage and decrease its
acceptance as a communications and commercial medium. If enacted, these laws,
rules or regulations could limit the market for our products and services.
We do not collect sales or other similar taxes in respect of goods
and services purchased through the Ariba Network. However, one or more states
may seek to impose sales tax collection obligations on out-of-state companies
like us that engage in or facilitate electronic commerce. A number of
proposals have been made at the state and local level that would impose
additional taxes on the sale of goods and services over the Internet. These
proposals, if adopted, could substantially impair the growth of electronic
commerce and could adversely affect our opportunity to derive financial
benefit from such activities. Moreover, a successful assertion by one or more
states or
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any foreign country that we should collect sales or other taxes on the
exchange of goods and services through the Ariba Network could seriously harm
our business.
Legislation limiting the ability of the states to impose taxes on
Internet-based transactions has been proposed in the U.S. Congress. This
legislation could ultimately be enacted into law or this legislation could
contain a limited time period in which this tax moratorium will apply. In the
event that the tax moratorium is imposed for a limited time period,
legislation could be renewed at the end of this period. Failure to enact or
renew this legislation could allow various states to impose taxes on
electronic commerce, and the imposition of these taxes could seriously harm
our business.
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ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
FOREIGN CURRENCY RISK
We develop products in the United States and market our products in
North America, Europe, Australia and the Asia-Pacific region. As a result,
our financial results could be affected by factors such as changes in foreign
currency exchange rates or weak economic conditions in foreign markets. As
all sales are currently made in U.S. dollars, a strengthening of the dollar
could make our products less competitive in foreign markets.
INTEREST RATE RISK
The Company's exposure to market risk for changes in interest rates
relate primarily to the Company's investment portfolio. The Company does not
use derivative financial instruments in its investment portfolio. The primary
objective of the Company's investment activities is to preserve principal
while maximizing yields without significantly increasing risk. This is
accomplished by investing in widely diversified investments, consisting
primarily of investment grade securities. Due to the nature of our
investments, we believe that there is no material risk exposure. All
investments in the table below are carried at market value, which
approximates cost.
The table below represents principal (or notional) amounts and
related weighted-average interest rates by year of maturity of the Company's
investment portfolio.
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED YEAR ENDED YEAR ENDED YEAR ENDED
(IN THOUSANDS, EXCEPT MARCH 31, MARCH 31, MARCH 31, MARCH 31, MARCH 31,
INTEREST RATES) 2001 2002 2003 2004 20005 THEREAFTER TOTAL
---------- ----------- ---------- ---------- ---------- ---------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Cash equivalents $193,712 - - - - - $193,712
Average interest rate 5.80% - - - - - 5.80%
Investments $61,457 $45,649 $10,915 - - - $118,021
Average interest rate 6.12% 6.74% 6.23% - - - 6.46%
Total investment securities $255,169 $45,649 $10,915 - - - $311,733
</TABLE>
OTHER INVESTMENTS
We have made four equity investments during the six months ended
March 31, 2000 of $6.3 million in four privately held companies. We also
acquired one equity investment of $571,000 as a result of our merger with
Tradex. We account for these investments under the cost basis of accounting,
valuing these investments at their original cost. Also as part of the Tradex
acquisition we acquired common stock in a publicly traded internet company.
The value of this common stock at March 31, 2000 was $1.0 million. This
investment in the publicly traded internet company is subject to significant
risk based on the historical volatility of internet stocks. We also currently
have a warrant for common stock in a software company being publicly traded
in Germany. The value of this warrant is $3.7 million and is included in our
long-term investments on the balance sheet. This warrant for common stock is
subject to significant risk based on the recent volatility of stock markets
around the world. We also received warrants in connection with an alliance
with a business partner. We have currently earned one of these warrants. The
estimated fair value of this warrant is included in the balance sheet under
long-term investments with a value of approximately $200,000. None of these
specific investments discussed are included in the table above.
PART II OTHER INFORMATION
ITEM 1. Legal Proceedings
Not applicable.
ITEM 2. Changes in Securities and Use of Proceeds
(a) Modification of Constituent Instruments
Not applicable.
(b) Change in Rights
32
<PAGE>
Not applicable.
(c) Changes in Securities
On January 1, 2000, we issued warrants to purchase shares of our
common stock in connection with the establishment of an alliance with an
outside party and our receipt of warrants to purchase shares of that party's
common stock constituting five percent of the fully-diluted equity of that
party. The warrants to purchase our common stock become exercisable upon that
party meeting significant predetermined performance targets. We also issued
that party an additional warrant that becomes exercisable in the event that
these performance targets are significantly exceeded. These warrants expire
five years after they become exercisable and have exercise prices ranging
from a fixed exercise price of $88.69 to exercise prices that adjust based on
the price of our common stock at the time they become exercisable. In
addition, they may be exercised only on a net issuance basis such that, if
exercised in full, the warrants would result in the issuance of approximately
11,600,000 shares of common stock, assuming the exercise of all shares
subject to the warrants at current market values of our common stock. The
offer and sale of the warrants to purchase Common Stock was exempt from the
registration requirements of the Securities Act of 1933, as amended, pursuant
to Section 4(2) thereof. The Company relied on the following criteria to make
such exemption available: the number of offerees, the size and manner of the
offering, the sophistication of the offerees and the availability of material
information.
On February 10, 2000, we issued warrants to purchase up to 4,800,000
shares of our common stock in connection with the establishment of an
alliance with an outside party. The warrants to purchase our common stock
become exercisable upon the outside party meeting significant predetermined
performance targets. These warrants generally expire one year after they
become exercisable, have different exercise prices and they may be exercised
only on a net issuance basis thus the number of shares actually issued will
be less than 4,800,000. The offer and sale of the warrants to purchase Common
Stock was exempt from the registration requirements of the Securities Act of
1933, as amended, pursuant to Section 4(2) thereof. The Company relied on the
following criteria to make such exemption available: the number of offerees,
the size and manner of the offering, the sophistication of the offerees and
the availability of material information.
On March 2, 2000 the Board of Directors authorized a two-for-one
stock split of our common stock, to be effected in the form of a stock
dividend. The stock split was effected on or about March 31, 2000 by
distribution to each stockholder of record as of March 20, 2000 of one share
of common stock for each share of common stock held.
On March 7, 2000, we issued 5,142,858 shares of our common stock in
connection with entering into an intellectual property agreement with an
outside party. The consideration received was $47.5 million in cash and an
intellectual property agreement with this outside party. The offer and sale
of our Common Stock was exempt from the registration requirements of the
Securities Act of 1933, as amended, pursuant to Section 4(2) thereof. The
Company relied on the following criteria to make such exemption available:
the number of offerees, the size and manner of the offering, the
sophistication of the offerees and the availability of material information.
On March 7, 2000, we issued warrants to purchase up to 3,428,572
shares of our common stock in connection with the establishment of an
alliance with an outside party. The warrants to purchase our common stock
become exercisable upon the outside party meeting significant predetermined
performance targets. These warrants generally expire 18 months after they
become exercisable, have an exercise price of $87.50 and they may be
exercised only on a net issuance basis thus the number of shares actually
issued will be less than 3,428,572. The offer and sale of the warrants to
purchase Common Stock was exempt from the registration requirements of the
Securities Act of 1933, as amended, pursuant to Section 4(2) thereof. The
Company relied on the following criteria to make such exemption available:
the number of offerees, the size and manner of the offering, the
sophistication of the offerees and the availability of material information.
During the quarter, in connection with the acquisitions of
TradingDynamics, Inc. and Tradex Technologies, Inc. we issued an aggregate of
approximately 41.3 million shares of our common stock to former stockholders
of those companies and granted options and warrants to purchase an aggregate
of approximately 6.2 million shares of our common stock. The shares, options
and warrants were issued pursuant to an exemption by reason of Section
3(a)(10) of the Securities Act of 1933. The terms and conditions of such
issuances and grants were approved after a hearing upon the fairness of such
terms and conditions by a government authority expressly authorized by the
law to grant such approval.
During the quarter, we issued an aggregate of 2,916,956 shares of
our common stock upon the exercise of outstanding options to purchase our
common stock. A portion of those shares were issued pursuant to an exemption
by reason of Rule 701 under the Securities Act of 1933.
All of the above amounts in this Item 2 (c) give effect to the
aforementioned two-for-one stock split.
33
<PAGE>
(d) Use of Proceeds
On June 28, 1999, Ariba completed the initial public offering of its
common stock, The managing underwriters in the offering were Morgan Stanley
Dean Witter, Dain Rauscher Wessels (a division of Dain Rauscher
Incorporated), Deutsche Banc Alex. Brown and Merrill Lynch & Company. The
shares of the common stock sold in the offering were registered under the
Securities Act of 1933, as amended, on a Registration Statement on Form S-1
(No. 333-76953). The Securities and Exchange Commission declared the
Registration Statement effective on June 22, 1999.
The offering commenced on June 23, 1999 and terminated on June 28,
1999 after we had sold all of the 23,000,000 shares of common stock
registered under the Registration Statement (including 3,000,000 shares sold
in connection with the exercise of the underwriters' over-allotment option).
The initial public offering price was $5.75 per share for an aggregate
initial public offering of $132.3 million.
We paid a total of $9.3 million in underwriting discounts and
commissions and approximately $1.8 million has been paid for costs and
expenses related to the offering. None of the costs and expenses related to
the offering were paid directly or indirectly to any director, officer,
general partner of Ariba or their associates, persons owning 10 percent or
more of any class of equity securities of Ariba or an affiliate of Ariba.
After deducting the underwriting discounts and commissions and the
offering expenses the estimated net proceeds to Ariba from the offering were
approximately $121.2 million. The net offering proceeds have been used for
general corporate purposes, to provide working capital to develop products
and to expand the Company's operations. Funds that have not been used have
been invested in money market funds, certificate of deposits and other
investment grade securities. We also may use a portion of the net proceeds to
acquire or invest in businesses, technologies, products or services.
Concurrent with the offering we also sold 28,800 shares of common
stock to our Canadian employees at $5.75 per share. The offering costs
associated with the offering of shares to our Canadian employees were not
material.
The information in the above paragraphs in this Item 2 (d) gives
effect to two-for-one stock splits on December 3, 1999 and March 20, 2000.
ITEM 3. Defaults Upon Senior Securities
Not applicable.
ITEM 4. Submission of Matters to a Vote of Securities Holders
The Company held its annual meeting of stockholders in Mountain
View, California on February 28, 2000, which meeting was adjourned until
March 17, 2000 when it was completed. Of the 184,006,676 shares outstanding
as of the record date, 140,157,886 shares were present or represented by
proxy at the meeting on February 28, 2000 and 157,546,516 shares were present
or represented by proxy at the adjourned meeting on March 17, 2000. At these
meetings the following actions were voted upon:
a. To elect the following directors to serve for a term ending upon the 2003
Annual Meeting of Stockholders or until their successors are elected and
qualified:
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
--------------------------------------------------------------
<S> <C> <C> <C>
Keith J. Krach 157,430,936 119,124 0
Robert C. Kagle 157,428,062 121,998 0
</TABLE>
b. To approve an amendment to the Company's Certificate of Incorporation to
increase the number of shares of Common Stock that the Company is authorized
to issue from 200,000,000 to 600,000,000:
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
--------------------------------------------------------------
<S> <C> <C> <C>
137,475,124 19,944,102 130,834
</TABLE>
34
<PAGE>
c. To ratify the appointment of KPMG LLP as the Company's independent public
accountants for the fiscal year ending September 30, 2000:
<TABLE>
<CAPTION>
FOR AGAINST ABSTAIN
--------------------------------------------------------------
<S> <C> <C> <C>
157,381,556 56,624 111,880
</TABLE>
ITEM 5. Other information
Not applicable.
ITEM 6. Exhibits and Reports on Form 8-K
(a) Exhibits
4.4* Registration Rights Agreement, dated January 1, 2000, by and
between EDS CoNext, Inc. and the Registrant
10.10 Lease agreement, dated March 15, 2000, by and between Moffet
Park Drive LLC and the Registrant.
10.11* Class A Common Stock Purchase Warrant, dated January 1, 2000,
issued by the Registrant to EDS CoNext, Inc.
10.12* Class B Common Stock Purchase Warrant, dated January 1, 2000,
issued by the Registrant to EDS CoNext, Inc.
10.13* Class C-1 Common Stock Purchase Warrant, dated January 1, 2000,
issued by the Registrant to EDS CoNext, Inc.
10.14* Class C-2 Common Stock Purchase Warrant, dated January 1, 2000,
issued by the Registrant to EDS CoNext, Inc.
10.15* Class D Common Stock Purchase Warrant, dated January 1, 2000,
issued by the Registrant to EDS CoNext, Inc.
27.1 Financial Data Schedule.
* Confidential treatment has been requested with respect to certain
portions of this exhibit. Omitted portions have been filed separately
with the Securities and Exchange Commission.
(b) Reports on Form 8-K
A current report on Form 8-K was filed with the Securities
and Exchange Commission by Ariba on January 25, 2000 to report the
consummation of our merger with TradingDynamics, Inc. An amendment
to this current report on Form 8-K was filed with the Securities and
Exchange Commission by Ariba on April 4, 2000 with the required
financial information.
A current report on Form 8-K was filed with the Securities
and Exchange Commission by Ariba on March 21, 2000 to report the
consummation of our merger with Tradex Technologies, Inc. and to
report a two-for-one stock split, to be effected in the form of a
stock dividend.
35
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ARIBA, INC.
Date: May 15, 2000 By: /s/ Edward P. Kinsey
---------------------------------
Edward P. Kinsey
Chief Financial Officer, Executive
Vice-President-Finance and Administration
and Secretary (Principal Financial and
and Accounting Officer)
36
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT TITLE
- ----------- -------------
4.4* Registration Rights Agreement, dated January 1, 2000, by and
between EDS CoNext, Inc. and the Registrant
10.10 Lease agreement, dated March 15, 2000, by and between Moffet
Park Drive LLC and the Registrant.
10.11* Class A Common Stock Purchase Warrant, dated January 1, 2000,
issued by the Registrant to EDS CoNext, Inc.
10.12* Class B Common Stock Purchase Warrant, dated January 1, 2000,
issued by the Registrant to EDS CoNext, Inc.
10.13* Class C-1 Common Stock Purchase Warrant, dated January 1, 2000,
issued by the Registrant to EDS CoNext, Inc.
10.14* Class C-2 Common Stock Purchase Warrant, dated January 1, 2000,
issued by the Registrant to EDS CoNext, Inc.
10.15* Class D Common Stock Purchase Warrant, dated January 1, 2000,
issued by the Registrant to EDS CoNext, Inc.
27.1 Financial Data Schedule.
* Confidential treatment has been requested with respect to certain
portions of this exhibit. Omitted portions have been filed separately
with the Securities and Exchange Commission.
37
<PAGE>
ARIBA, INC.
REGISTRATION RIGHTS AGREEMENT
JANUARY 1, 2000
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. Registration Rights.......................................................................................1
1.1 Definitions........................................................................................1
1.2 Form S-3 Registration..............................................................................2
1.3 Obligations of the Company.........................................................................3
1.4 Furnish Information................................................................................4
1.5 Delay of Registration..............................................................................5
1.6 Indemnification....................................................................................5
1.7 Reports under Securities Exchange Act of 1934......................................................7
1.8 Assignment of Registration Rights..................................................................7
1.9 Termination of Registration Rights.................................................................8
2. Covenants of the Company..................................................................................8
2.1 Election of Director...............................................................................8
2.2 Take Along.........................................................................................8
3. Ownership and Control Restrictions........................................................................9
3.1 Standstill Agreement...............................................................................9
3.2 Acts in Concert with Others........................................................................9
3.3 Agreement to Vote on Certain Matters...............................................................9
3.4 Termination........................................................................................9
4. Miscellaneous.............................................................................................9
4.1 Successors and Assigns.............................................................................9
4.2 Governing Law.....................................................................................10
4.3 Counterparts......................................................................................10
4.4 Titles and Subtitles..............................................................................10
4.5 Notices...........................................................................................10
4.6 Expenses..........................................................................................10
4.7 Amendments and Waivers............................................................................10
4.8 Severability......................................................................................10
4.9 Aggregation of Stock..............................................................................10
4.10 Entire Agreement..................................................................................11
</TABLE>
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-i-
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of January 1,
2000, by and between Ariba, Inc., a Delaware corporation (the "Company"), and
EDS CoNext, Inc., a Delaware corporation ("EDS CoNext").
RECITALS
WHEREAS, EDS CoNext and the Company are party to an Alliance
Agreement dated December 31, 1999 (the "Alliance Agreement"), pursuant to which
the Company issued the Ariba Warrants (as defined herein) to EDS CoNext and EDS
CoNext issued the EDS CoNext Warrants (as defined herein) to the Company; and
WHEREAS, EDS CoNext and the Company desire that EDS CoNext and
its assignees have certain rights to require the Company to register the resale
of the shares of Common Stock of the Company that are issued upon exercise of
the Ariba Warrants or delivered to EDS CoNext in connection with the exercise by
the Company of the EDS CoNext Warrants.
NOW, THEREFORE, in consideration of the promises, covenants,
and conditions set forth herein, the parties hereto hereby agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The term "1934 Act" shall mean the Securities Exchange Act
of 1934, as amended.
(b) The term "Act" means the Securities Act of 1933, as
amended.
(c) The term "Ariba Warrants" shall mean the Ariba Class A
Warrants, the Ariba Class B Warrants, the Ariba Class C Warrants and the Ariba
Class D Warrants, each as issued to EDS CoNext pursuant to the Alliance
Agreement.
(d) The term "Common Stock" means the Company's Common Stock,
$.002 par value, that the Company may be authorized to issue from time to time
and any other securities into which such Common Stock may hereafter be changed
or for which such Common Stock may be exchanged after giving effect to the terms
of such change or exchange (by way of reorganization, recapitalization, merger,
consolidation or otherwise).
(e) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC that permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
(f) The term "Holder" means EDS CoNext or any assignee thereof
in accordance with Section 1.8 hereof.
(g) The terms "register," "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(h) The term "Registrable Securities" means (i) the Common
Stock issuable or issued upon the cashless exercise of the Ariba Warrants, (ii)
any Common Stock issued and transferred by the Company to EDS CoNext in
connection with the exercise of the EDS CoNext Warrants and (iii) any Common
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security that is issued as) a dividend or other
distribution with respect to, or in exchange for, or in replacement of the
shares referenced in (i) and (ii) above, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which his rights
under this Section 1 are not assigned.
(i) The number of shares of "Registrable Securities then
outstanding" shall include the number of shares of Common Stock issuable or
issued upon the cashless exercise of then exercisable Ariba Warrants.
(j) The term "EDS CoNext Warrants" shall mean the EDS CoNext
Class A Warrant and the EDS CoNext Class B Warrant, each as issued to the
Company pursuant to the Alliance Agreement.
(k) The term "SEC" shall mean the Securities and Exchange
Commission.
1.2 FORM S-3 REGISTRATION. In case the Company shall receive from
the Holders of a majority of the Registrable Securities then outstanding a
written request that the Company effect a registration on Form S-3 and any
related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.2: (1) if
Form S-3 is not available for such offering by the Holders; (2) if the Holders,
together with the holders of any other securities of the Company entitled to
inclusion in such
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-2-
<PAGE>
registration, propose to sell Registrable Securities and such other
securities (if any) which constitute less than [*] of the issued and
outstanding shares of Common Stock unless such Registrable Securities consist
of shares of Common Stock which have been issued and delivered to EDS CoNext
during the preceding twelve (12) months in exercise of EDS CoNext Warrants;
(3) if the Company shall furnish to the Holders a certificate signed by the
President of the Company stating that in the good faith judgment of the Board
of Directors of the Company, it would be seriously detrimental to the Company
and its stockholders for such Form S-3 Registration to be effected at such
time, in which event the Company shall have the right to defer the filing of
the Form S-3 registration statement for a period of not more than sixty (60)
days after receipt of the request of the Holder or Holders under this Section
1.2; provided, however, that the Company shall not utilize this right more
than twice in any twelve (12) month period; (4) in any particular
jurisdiction in which the Company would be required to qualify to do business
or to execute a general consent to service of process in effecting such
registration, qualification or compliance; (5) if the Company has, within the
[*] period preceding the date of such request, already effected [*] of From
S-3 for the Holders pursuant to this Section 1.2; (6) if all Registrable
Securities proposed to be sold under the Form S-3 may be sold under Rule
144(k); or (7) at any time prior to the [*] anniversary of the date of this
Agreement.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of a majority of the Holders. All expenses other than
underwriting discounts and commissions incurred in connection with a
registration requested pursuant to Section 1.2, including (without limitation)
all registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of one counsel for the selling Holder or
Holders and counsel for the Company shall be borne by the Company; provided,
however, that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to this Section 1.2 if the registration
request is subsequently withdrawn at the request of the Holders of a majority of
the Registrable Securities to be registered (in which case all participating
Holders shall bear such expenses pro rata).
1.3 OBLIGATIONS OF THE COMPANY. Whenever required under this Section
1 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use commercially reasonable
efforts to cause such registration statement to become effective, and, upon the
request of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for a period of up to
forty-five (45) days or, if earlier, until the distribution contemplated in the
Registration Statement has been completed; provided, however, that the Company
shall have the right to notify the Holders that all offers and sales under such
registration statement must be suspended for a period of not more than sixty
(60) days in which case the Company will keep such registration statement
effective for an additional period of time equal to the suspension period.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-3-
<PAGE>
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Holders; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
1.4 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-4-
<PAGE>
1.5 DELAY OF REGISTRATION. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.6 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the partners, members or officers, directors and
shareholders of each Holder, legal counsel and accountants for each Holder, any
underwriter (as defined in the Act) for such Holder, and each person, if any,
who controls such Holder or underwriter within the meaning of the Act or the
1934 Act, against any losses, claims, damages, or liabilities (joint or several)
to which they may become subject under the Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively, a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Act, the 1934
Act, any state securities law or any rule or regulation promulgated under the
Act, the 1934 Act or any state securities law; and the Company will pay to such
Holder, underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this subsection 1.6(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation that occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder, underwriter or
controlling person; provided further, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Holder or underwriter, or any person controlling such Holder or
underwriter, from whom the person asserting any such losses, claims, damages or
liabilities purchased shares in the offering, if a copy of the prospectus (as
then amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of such Holder or
underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the shares to such person, and
if the prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, legal
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-5-
<PAGE>
counsel and accountants for the Company, any underwriter, any other Holder
selling securities in such registration statement and any controlling person
of any such underwriter or other Holder, against any losses, claims, damages
or liabilities (joint or several) to which any of the foregoing persons may
become subject under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay,
as incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 1.6(b) in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
subsection 1.6(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided that, in no event shall any indemnity under this
subsection 1.6(b) exceed the gross proceeds from the offering received by
such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.6, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.6, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.6.
(d) If the indemnification provided for in this Section 1.6 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-6-
<PAGE>
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 1.6 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.7 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after the effective
date of the first registration statement filed by the Company for the offering
of its securities to the general public;
(b) take such action, including the voluntary registration of
its Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering of
its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at any
time after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC that permits the
selling of any such securities without registration or pursuant to such form.
1.8 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned (but only
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-7-
<PAGE>
with all related obligations) by a Holder to a transferee or assignee of such
securities, provided: (a) the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions of
this Agreement; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act.
1.9 TERMINATION OF REGISTRATION RIGHTS. No Holder shall be entitled
to exercise any right provided for in this Section 1 at such time at which all
Registrable Securities held by such Holder (and any affiliate of the Holder with
whom such Holder must aggregate its sales under Rule 144) can be sold in any
three (3) month period without registration in compliance with Rule 144 of the
Act.
2. COVENANTS OF THE COMPANY.
2.1 ELECTION OF DIRECTOR. The Company shall use commercially
reasonable efforts to cause its Board of Directors to designate one member of
the Company's Board of Directors nominated by EDS CoNext, which nominee shall be
acceptable to the Company at its sole discretion, so long as either:
(a) EDS CoNext holds shares of Common Stock, which shares
shall include the number of shares of Common Stock that could be issued after
giving effect to the cashless exercise of vested and exercisable Ariba Warrants,
constituting greater than [*] of the issued and outstanding shares of Common
Stock, calculated using the treasury stock method, or
(b) the Company holds shares of EDS CoNext's common stock,
which shares shall include the maximum number of shares of EDS CoNext's common
stock issuable upon the exercise of vested and exercisable EDS CoNext Warrants,
constituting greater than [*] of the issued and outstanding shares of EDS
CoNext's common stock, calculated using the treasury stock method.
EDS CoNext shall also be entitled to require that the director designated by it
pursuant to this Section 2.1 be removed or replaced by another designee of EDS
CoNext (which designee is acceptable to the Company at its sole discretion).
2.2 TAKE ALONG. If the Company enters into a merger or other agreement
pursuant to which all of the shares of Common Stock shall be acquired by a third
party, each Holder shall be obligated to, and shall (i) sell, transfer and
deliver, or cause to be sold, transferred and delivered, to such third party,
all of his shares of Common Stock in the same transaction at the closing thereof
(and will deliver certificates for all of his shares of Common Stock at the
closing, free and clear of all claims, liens and encumbrances), and each Holder
shall receive the same consideration per share of Common Stock upon such sale as
the other shareholders of the Common Stock and (ii) if shareholder approval of
the transaction is required, vote his shares of Common Stock in favor thereof.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-8-
<PAGE>
3. OWNERSHIP AND CONTROL RESTRICTIONS.
3.1 STANDSTILL AGREEMENT. Notwithstanding any other provision of
this Agreement, without the approval of the Board of Directors of the Company,
neither a Holder, nor any affiliated entities, will acquire beneficial ownership
(which term shall include for the purposes of this Agreement, without
limitation, direct or indirect ownership or any direct or indirect ability to
influence voting) of any securities of the Company entitled to vote with respect
to the election of any directors of the company ("Voting Securities"), any
security convertible into, exchangeable for or exercisable for, or that may
become, any Voting Securities, or any other right to acquire Voting Securities
(such Voting Securities and rights to acquire Voting Securities are collectively
referred to herein as "Securities"); PROVIDED, HOWEVER, that this Section 3.1
shall not prevent a Holder from acquiring shares of Common Stock issuable upon
the exercise of the Ariba Warrants.
3.2 ACTS IN CONCERT WITH OTHERS. Neither a Holder nor any affiliated
entities will join a partnership, limited partnership, syndicate or other group,
or otherwise act in concert with, any third person, for the purpose of
acquiring, holding, voting or disposing of Securities.
3.3 AGREEMENT TO VOTE ON CERTAIN MATTERS. Each Holder shall take
such actions as may be required that all Voting Securities beneficially owned by
such Holder are voted in favor of all matters approved by the Board of Directors
of the Company and put to a vote of the stockholders at all meetings of
stockholders of the Company. Furthermore, each Holder, as holders of shares of
Voting Securities, shall be present, in person or by proxy, at all meetings of
stockholders of the Company so that all shares of Voting Securities beneficially
owned by the Holders may be counted for purposes of determining the presence of
a quorum at such meetings. No Holder shall deposit any Voting Securities in a
voting trust or subject any Voting Securities to any arrangement or agreement
with respect to the voting of such Voting Securities.
3.4 TERMINATION. The provisions of this Section 3 shall terminate
when the Alliance Agreement is terminated.
4. MISCELLANEOUS.
4.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-9-
<PAGE>
4.2 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely within Delaware.
4.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.4 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
4.5 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given (i) upon personal delivery to the party to be notified, (ii)
upon delivery by nationally recognized overnight courier service addressed to
the party to be notified at the address indicated for such party on the
signature page hereof or (iii) upon delivery by facsimile transmission to the
party to be notified at the facsimile number indicated for such party on the
signature page hereof, or at such other address or facsimile number as such
party may designate by ten (10) days' advance written notice to the other
parties.
4.6 EXPENSES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
4.7 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities, and the Company.
4.8 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
4.9 AGGREGATION OF STOCK. All shares of Registrable Securities held
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-10-
<PAGE>
4.10 ENTIRE AGREEMENT. This Agreement (including the Exhibits
hereto, if any) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
* * * * *
(Signature pages follow)
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-11-
<PAGE>
REGISTRATION RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ARIBA, INC.
1565 Charleston Road
Mountain View, California 94043
By: /s/ Edward P. Kinsey
-------------------------------
Name: E. Kinsey
-----------------------------
Title: EVP, CFO
----------------------------
Facsimile:
------------------------
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
REGISTRATION RIGHTS AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EDS CONEXT, INC.
222 West Adams
Chicago, Illinois 60606
By: /s/ Richard deNey
-------------------------------
Name: Richard L. deNey
-----------------------------
Title: President
----------------------------
Facsimile:
------------------------
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
Exhibit 10.10
TECHNOLOGY CORNERS
TRIPLE NET MULTIPLE BUILDING LEASE
Between
MOFFETT PARK DRIVE LLC
a California limited liability company
as
LESSOR
and
ARIBA, INC.
a Delaware corporation
as
LESSEE
for
PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California 94089
<PAGE>
ARTICLE I
PARTIES
Section 1.01. Parties. This Lease, dated for reference purposes, and
effective as of March 15, 2000, is made by and between MOFFETT PARK DRIVE LLC, a
California limited liability company, or assignee, ("Lessor") and ARIBA, INC., a
Delaware corporation ("Lessee").
ARTICLE II
PREMISES
Section 2.01. Demise of Premises. Lessor hereby leases to Lessee and
Lessee leases from Lessor for the term, at the rental, and upon all of the terms
and conditions set forth herein, Premises consisting of four free standing, four
story office and research and development buildings (shown as Buildings "One,
"Two," "Three," and "Four" on Exhibit "A" hereto) and one ancillary building to
be used for such service and/or food purposes such as fitness spa, a day care,
dry cleaners and cafeteria for the benefit of Lessee's employees as determined
by Lessee but subject to Lessor's consent which shall not be unreasonably
withheld and subject to Lessor determining that it can obtain all City permit
and approval requirements pertaining to same ("Amenity Building") (collectively
"Buildings") to be constructed by Lessor on real property situated in the City
of Sunnyvale, County of Santa Clara, State of California and commonly known as
1111 Lockheed Martin Way, Sunnyvale, California (the "Property"). Each office
and research and development Building will consist of approximately one hundred
seventy five thousand (175,000) rentable square feet and the Amenity Building of
approximately fifteen thousand (15,000) rentable square feet, as more
particularly described and depicted herein in Exhibit "A" for a total of seven
hundred fifteen thousand (715,000) rentable square feet. The actual rentable
square footage of the Buildings (the "Rentable Area") will be determined and
certified by Lessor's architect by a method described as "dripline," whereby the
measurement encompasses the outermost perimeter of each constructed building,
including every projection thereof and all area beneath each such projection,
whether or not enclosed, with no deduction for any inward deviation of structure
and with the measurement being made floor by floor, beginning from the top of
the Building. The Buildings, including the Amenity Building, and appurtenances
described herein, the Property, and all other improvements to be built on the
Property including a parking structure are together designated as the "Project."
Each Building for which the Delivery Date as provided in Section 3.01(b) (or
any earlier deemed Delivery Date as provided in Section 4.01) has occurred, and
those portions of the Project (other than the Buildings) as to which possession
has been tendered to Lessee following substantial completion of all improvements
to be constructed thereon by Lessor, shall collectively be referred to herein as
the "Premises."
Section 2.02. Outside Area. During the Lease Term, Lessee shall have the
right to use the Outside Area defined herein surrounding the Buildings. Lessor
reserves the right to modify the Outside Area, including reducing the size or
changing the configuration and elements thereof in its sole discretion and to
close or restrict access from time-to-time for repair, maintenance or to prevent
a dedication thereof, provided that Lessee nonetheless shall have access to
parking and the Premises (including all Buildings) at all times. Lessor further
reserves the right to
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establish, repeal and amend from time-to-time rules and regulations for the use
of the Outside Area and to grant reciprocal easements or other rights to use the
Outside Area to owners of other property, which shall not unreasonably interfere
with use or enjoyment of the Premises.
Section 2.03. Parking. Lessor shall provide Lessee with parking as
required by the City of Sunnyvale at the Premises. In the event Lessor elects or
is required by any law to limit or control parking at the Premises, whether by
validation of parking tickets or any other method of assessment, Lessee agrees
to participate in such validation or assessment program under such reasonable
rules and regulations as are from time-to-time established by Lessor.
Section 2.04. Construction.
(a) Government Approvals. Lessor shall diligently pursue obtaining
governmental approval of a Site Plan and Buildings designs and elevations with
respect to the development of the Premises, copies of which are attached hereto
as Exhibit "A." The parties acknowledge and agree that the final footprint and
elevations of the Buildings may vary from those attached as Exhibit "A" because
the plans and specifications will undergo a plancheck process with the City of
Sunnyvale and Lessor will make such revisions as are required or are otherwise
deemed necessary or appropriate by Lessor, provided however, that nothing herein
shall be deemed to relieve Lessor from the duty to develop the Buildings
substantially in compliance with Exhibit "A".
(b) Construction of Building Shells. Lessor, utilizing Rudolph & Sletten
(or such alternate as Lessor in its sole discretion may select) as general
contractor ("General Contractor"), shall construct the "Building Shell" (as
defined in the attached Exhibit "D") for each Building in accordance with (i)
plans and specifications to be attached as Exhibit "B" and (ii) all existing
applicable municipal, local, state and federal laws, statutes, rules,
regulations and ordinances: Lessor shall pay all costs of constructing the
Building Shells. Lessor and Lessee acknowledge and agree that the definition of
"Building Shell" includes all required landscaping and site improvements for the
Project as set forth in plans approved by the Lessor and the City of Sunnyvale.
(c) Construction of Tenant Improvements. All improvements not included
within the scope of the Building Shells shall be deemed "Tenant Improvements."
Lessor, using the General Contractor, shall construct the Tenant Improvements
and Lessee shall pay all costs associated with same.
(d) Tenant Improvement Plans and Cost Estimate. Lessee shall work with
Lessee's architect to develop interior schematic drawings and Lessee shall
approve final interior schematic drawings for the Tenant Improvements for all
Buildings and obtain Lessor's approval thereof (which approval shall not be
unreasonably withheld or delayed) no later than May 15, 2000. Lessee shall work
with Lessor's architect to develop working drawings outlining, among other
things, Lessee's wall layout, detailed electrical, plumbing and air conditioning
requirements and finishes ("Working Drawings") and Lessee shall approve final
Working Drawings for the Buildings on or before July 1, 2000 for Building Three
and the Amenity Building, July 21, 2000 for Building Four, August 5, 2000 for
Building Two and September 8, 2000 for Building One. The cost of the interior
schematic drawings and Working Drawings shall
2
<PAGE>
be a Tenant Improvement cost and Lessor agrees that Lessor's architect's fees
shall not vary materially from the range of fees charged for similar work for
similar tenant improvements under similar time constraints by architects of
similar ability, experience and expertise in the Silicon Valley community. Based
on this information, Lessor shall cause the General Contractor to prepare and
deliver to Lessee a budget for the Tenant Improvements ("Budget"). Lessee shall
approve the Budget (or modify the same with Lessor's consent), in writing,
within ten (10) business days thereafter. The Working Drawings and Budget must
be approved by Lessor in writing and be of quality equal to or greater than the
Interior Specifications standards set forth in Exhibit "C." Once the Budget is
approved, Lessor shall enter into a guaranteed maximum price contract with the
General Contractor for the construction of the Tenant Improvements consistent
with the approved Budget. A Lessee representative may attend construction
meetings between Lessor and its General Contractor concerning Tenant
Improvements, but nothing herein shall either (i) create or imply a duty on the
part of Lessor to notify Lessee of such meetings, or (ii) invalidate or
otherwise affect in any manner anything which takes place at or as a result of
any such meeting which Lessee's representative fails to attend, whether or not
it had notice of same.
(e) Construction Plans. The complete, detailed plans and specifications
for the construction of the Shell Buildings shall be attached as Exhibit "B" and
incorporated into this Lease. Attached as Exhibit "C" to this Lease is a Work
Letter Agreement for Tenant Improvements, and Exhibit "D," Cost Responsibilities
of Lessor and Lessee, which together with this Section 2.04, describe the
planning and payment responsibilities of Lessor and Lessee with respect to the
construction of the Building Shells and Tenant Improvements at the Premises. All
approved Tenant Improvements shall be constructed in accordance with a
construction schedule approved by Lessor and no portion of any Building shall
remain unimproved.
(f) Tenant Improvement Costs. Lessor shall provide to Lessee semi-improved
"cold" shell facilities as described in Exhibit "D" attached. Lessor shall cause
the General Contractor to construct the Tenant Improvements outlined in Exhibit
"D," as further outlined in the Tenant Improvement Work Letter attached as
Exhibit "C" and Lessee shall pay all costs and expenses of same. Subcontracts
for all Tenant Improvement Work shall be obtained by a sealed competitive bid
process (involving at least two qualified bidders) wherever practical and as to
work done without such process, Lessor or the General Contractor shall provide
reasonable assurance to Lessee that the cost and expense of same is competitive
in the industry for first-class workmanship and materials. Lessor shall use good
faith efforts (and instruct the General Contractor to do same) to keep Lessee
generally informed as to all aspects of the pricing, bidding, contracting and
construction processes with respect to the Tenant Improvements.
(g) Payment for Tenant Improvements. Within six (6) months after execution
of this Lease by both parties, Lessee shall deposit with Lessor an
unconditional, irrevocable standby letter of credit in the amount of Fourteen
Million, Three Hundred Thousand Dollars ($14,300,000), with Lessor as
beneficiary and providing for payment on presentation of Lessor's draft(s) on
sight, without documents, drawable in whole or in part on a money center bank in
San Francisco acceptable to Lessor with a twelve (12) month term and in all
other ways in form acceptable to Lessor, with, in all cases, Lessor's approval
being in its sole discretion. Within ten (10) business days after the Budget is
approved by Lessor and Lessee, Lessee shall deposit cash in an amount equal to
twenty-five (25%) percent of the amount budgeted for Tenant Improvements
(together with the cost of any Tenant Improvements already made) with Lessor's
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<PAGE>
construction lender to be held in an interest bearing escrow account. Said
construction lender shall issue payments from said account pursuant to the
construction contract for the Tenant Improvements until the account is
exhausted, whereupon any remaining payments shall be made 100% directly by
Lessee. Lessor shall manage the construction of the Tenant Improvements for a
supervision fee of 3% of the Budget (as the same may change by agreement of the
parties) due and payable in nine equal monthly installments beginning on the
first day of the calendar month following the calendar month in which the Budget
is first approved. Lessor may draw down on the letters of credit in whole or in
part and in such amounts as it deems appropriate in its sole discretion if
Lessee fails to comply with any of its obligations under this Lease including,
without limitation, full and timely payments of amounts due under the
construction contract for Tenant Improvements. Lessor shall return the aforesaid
letter of credit upon the lien free completion of Tenant Improvements, payment
of all amounts due to the General Contractor for the Tenant Improvements,
acceptance of same by Lessee and commencement of payment of rent as to all
Buildings, provided that if those events have not occurred prior to expiration
of the letter of credit, Lessor shall be entitled to draw on said letter of
credit in an amount equal to any amount then outstanding with respect to the
construction or installation of Tenant Improvements or for any other amount then
due or unpaid under this Lease.
(h) Lessee's Fixturing Period. Lessor shall provide Lessee access to each
Building during the thirty (30) day period prior to the Delivery Date for such
Building ("Lessee's Fixturing Period") for the purpose of installing furnishings
and equipment, e.g. security system, furniture system and phone and data system,
provided, that Lessee and Lessee's employees and contractors shall at all times
avoid interfering with Lessor's ongoing work to bring the Premises to a
substantially completed condition. Except for payment of Base Rent, all terms
and provisions of this Lease shall apply during Lessee's Fixturing Period,
including, without limitation, Lessee's indemnity and other obligations set
forth in Sections 7.07., 7.08. and 17.22. hereof and payment of Additional Rent
pursuant to Section 4.05 hereof.
ARTICLE III
TERM
Section 3.01. Lease Term.
(a) Commencement Date. The term of this Lease ("Lease Term") shall be for
at least twelve (12) years beginning on the earlier of (i) the date Lessee first
occupies any part of any Building (other than by the fixturing activities
authorized under Section 2.04.(h) or conducts business at the Premises or (ii)
the date a Certificate of Occupancy first is issued affecting any Building (the
"Commencement Date") provided that, (i) for each day of delay by Lessee in
failing to approve the interior schematic drawings or the Working Drawings when
required under Section 2.04(d), (ii) for each day of delay by Lessee in failing
to approve the Budget, in writing, within seven (7) days after delivery by the
General Contractor as provided in Section 2.04(d), or (iii)) for each day of
delay caused by any changes to the approved Working Drawings requested by Lessee
or (iv)) for each day that any other act or omission by Lessee causes the
construction schedule for Tenant Improvements to be delayed (collectively
"Lessee Delay"), the Commencement Date shall occur one (1) day in advance of the
date of issuance of the first Certificate of Occupancy for each day of delay
provided that Lessor shall give Lessee written notice of any such Lessee Delay
described in clause (iii), or (iv) within seven (7)
4
<PAGE>
business days after commencement of the alleged delay. For example, if seven (7)
days of Lessee Delay causes the date of issuance of the Certificate of Occupancy
to occur on January 8, 2001 rather than January 1, 2001, the Commencement Date
shall be January 1, 2001 for all purposes, including payment of Base Rent and
Additional Rent. The Lease Term shall expire, unless sooner terminated or
extended as provided herein, on the date which completes twelve (12) years after
the Commencement Date ("Expiration Date"). The parties shall execute a
"Memorandum of Commencement of Lease Term" when the Commencement Date becomes
known, which shall include a certification of the actual Rentable Area of the
Buildings determined by the methodology described in Section 2.01. and the
actual monthly installments of Base Rent to be paid pursuant to Section 4.01.,
and shall be substantially in the form attached hereto as Exhibit "E."
Certificate of Occupancy means a document so titled or its equivalent,
signifying that the Building in question can be legally occupied.
(b) Scheduled Delivery Dates. Lessor shall use commercially reasonable
efforts to cause Certificates of Occupancy to be issued for Building Three no
later than January 25, 2001, ("First Scheduled Delivery Date"); then February
15, 2001 for Building Four; March 8, 2001 for Building Two; and March 29, 2001
for Building One and March 29, 2001 for the Amenity Building. If a Certificate
of Occupancy is not issued for any one or more Buildings on or before its
Scheduled Delivery Date, this failure shall not affect the validity of this
Lease or the obligations of Lessee under it. If the Commencement Date is
adjusted for delay from any cause, the Expiration Date shall be likewise
adjusted for a like period. It is understood and agreed that the Amenity
Building may be delayed by the particular permitting, planning and finishing
needs of the use(s) desired by Lessee. The actual delivery date for each
Building shall be the date on which Lessor tenders possession of the Building to
Lessee after a Certificate of Occupancy is issued for such Building ("Delivery
Date").
(c) Termination in Event of Delay. If for any reason Lessor is unable to
cause the issuance of a Certificate of Occupancy for any Building, on or before
the date which is one hundred eighty (180) days after the Scheduled Delivery
Date for such Building (for a reason other than Lessee Delay or delay excused
under Section 17.21.), Lessee, at its sole election, may terminate this Lease
upon giving notice within ten (10) days thereafter. Failure to give such notice
within said time period constitutes an irrevocable waiver of the foregoing right
to terminate under this Section 3.01 (c).
(d) Occupancy. Lessee shall commence occupancy of each Building no later
than thirty (30) days after its Delivery Date.
Section 3.02. Option to Extend.
(a) Exercise. Lessee is given one (1) option to extend the Lease Term
("Option to Extend") for a five (5) year period ("Extended Term") following the
date on which the initial Lease Term would otherwise expire, which option may be
exercised only by written notice ("Option Notice") from Lessee to Lessor given
not less than twelve (12) months prior to the Expiration Date of the initial
Lease Term ("Option Exercise Date"); provided, however, if Lessee is in material
default under this Lease (after written notice and beyond the expiration of any
applicable notice period) on the Option Exercise Date or on any day thereafter
on or before the last day of the initial Lease Term, the Option Notice shall be
totally ineffective) and this
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Lease shall expire on the last day of the initial Lease Term, if not sooner
terminated in accordance with the terms of this Lease.
(b) Extended Term Rent. In the event Lessee exercises its Option to Extend
set forth herein, all the terms and conditions of this Lease shall continue to
apply except that the Base Rent payable by Lessee during the Option Term shall
be equal to one hundred percent (100%) of Fair Market Rent (defined below), as
determined under subparagraph (c) below. A "Fair Market Rent" shall mean the
effective rate being charged (including periodic adjustments thereto as
applicable during the period of the Extended Term), for comparable space in
similar buildings in the vicinity, i.e. of a similar age and quality considering
any recent renovations or modernization, and floor plate size or, if such
comparable space is not available, adjustments shall be made in the
determination of Fair Market Rent to reflect the age and quality of the
Buildings and Premises as contrasted to other buildings used for comparison
purposes, with similar amenities, taking into consideration: size, location,
floor level, leasehold improvements or allowances provided or to be provided,
term of the lease, extent of services to be provided, the time that the
particular rate under consideration became or is to become effective, and any
other relevant terms or conditions applicable to both new and renewing tenants,
but in no event less than the monthly Base Rent prevailing during the last year
of the initial Lease Term and without any downward adjustment in rent for the
Amenity Building which shall be deemed to be of identical Fair Market Rent value
as the four office and research and development Buildings.
(c) Determination of Fair Market Rent.
(i) Negotiation. If Lessee so exercises the Option to Extend in a
timely manner, the parties shall then meet in good faith to negotiate the Base
Rent for the Premises for the Extended Term, during the first thirty (30) days
after the date of the delivery by Lessee of the Option Notice (the "Negotiation
Period"). If, during the Negotiation Period, the parties agree on the Base Rent
applicable to the Premises for the Extended Term, then such agreed amount shall
be the Base Rent payable by Lessee during the Extended Term.
(ii) Arbitration. In the event that the parties are unable to agree
on the Base Rent for the Premises within the Negotiation Period, then within ten
(10) days after the expiration of the Negotiation Period, each party shall
separately designate to the other in writing an appraiser to make this
determination. Each appraiser designated shall be a member of MAI and shall have
at least ten (10) years experience in appraising commercial real property in
Santa Clara County. The failure of either party to appoint an appraiser within
the time allowed shall be deemed equivalent to appointing the appraiser
appointed by the other party, who shall then determine the Fair Market Rent for
the Premises for the Extended Term. Within five (5) business days of their
appointment, the two designated appraisers shall jointly designate a third
similarly qualified appraiser. Within thirty (30) days after their appointment,
each of the two appointed appraisers shall submit to the third appraiser a
sealed envelope containing such appointed appraiser's good faith determination
of the Fair Market Rent for the Premises for the Extended Term; concurrently
with such delivery, each such appraiser shall deliver a copy of his or her
determination to the other appraiser. The third appraiser shall within ten (10)
days following receipt of such submissions, then determine which of the two
appraisers' determinations most closely reflects Fair Market Rent as defined
above. The determination most closely reflecting the third appraiser's
determination shall be the Base Rent for the Premises
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during the Extended Term; the third appraiser shall have no rights to adjust,
amend or otherwise alter the determinations made by the appraiser selected by
the parties, but must select one or the other of such appraisers' submissions.
The determination by such third appraiser shall be final and binding upon the
parties. Said third appraiser shall, upon selecting the determination which most
closely resembles Fair Market Rent, concurrently notify both parties hereto. The
parties shall share the appraisal expenses equally. If the Extended Term begins
prior to the determination of Fair Market Rent, Lessee shall pay monthly
installments of Base Rent equal to one hundred ten percent (110%) of the monthly
installment of Base Rent in effect for the last year of the initial Lease Term
(in lieu of "holdover rent" payable under Section 17.09(b)). Once a
determination is made, any over payment or under payment shall be reimbursed as
a credit against, or paid by adding to, the monthly installment of Base Rent
next falling due.
Section 3.03. Financing Contingency. Notwithstanding any other provision
hereof it is understood and agreed that this Lease may be terminated by Lessor
on five (5) days advance written notice to Lessee if Lessor determines that it
is unable to obtain financing of the Project on terms and conditions
satisfactory to Lessor in its sole discretion, provided, that if Lessor has not
exercised its right to terminate under this Section 3.03 on or before March 31,
2000, it shall be deemed to have waived such right and this provision shall
automatically expire and become null and void.
ARTICLE IV
RENT: TRIPLE NET LEASE
Section 4.01. Base Rent. Subject to adjustment of Rentable Area pursuant
to Section 2.01(a) and concomitant adjustment to Base Rent, Lessee shall pay to
Lessor as Base Rent an initial monthly installment of Three Dollars ($3.00) per
square foot of Rentable Area of the Premises as determined under Section 2.01.,
in advance, on the first day of each calendar month of the Lease Term,
commencing on the Commencement Date. Base Rent for any period during the Lease
Term which is for less than one month shall be a pro rata portion of the monthly
installment (based on the actual days in that month). It is expected that Base
Rent will be calculated initially on the first Building on its Delivery Date and
that it will be increased by the Rentable Area of each other Building as of the
Delivery Date for such Building (or as to each Building, such earlier deemed
Delivery Date as may result from Lessee Delay with respect to such Building,
calculated in the same manner as the advancement of the Commencement Date is
calculated, i.e. advanced by one day for each day of delay in completion of the
subject Building caused by Lessee Delay).
Section 4.02. Rent Adjustment. The Base Rent set forth in Section 4.01.
above shall be adjusted upward by an annual compounded increase of four percent
(4%), as of the first day of the thirteenth (13th) full calendar month following
the Commencement Date and as of the first day of every thirteenth (13th)
calendar month thereafter during the Lease Term, as shown on Exhibit "E"
attached hereto.
Section 4.03. Advance Rental. Lessee shall pay to Lessor upon execution
hereof an advance payment equal to one month of estimated Base Rent for all
Buildings in the sum of Two Million One Hundred Forty-Five Thousand Dollars and
no Cents ($2,145,000.00), subject to
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being adjusted upon final measurement of each of the Buildings on or before the
Delivery Date for such Building, said payment to be applied to the first monthly
installments of Base Rent (and Base Rent for the following months, to the extent
this advance payment exceeds the first monthly installments of Base Rent as a
result of said final measurement of the Buildings). If the Commencement Date is
other than the first day of a calendar month, the first installment of Base Rent
shall be paid on the first day of the calendar month immediately succeeding the
Commencement Date and shall include pro rata payment for the calendar month in
which the Commencement Date occurs, less credit for the advance payment.
Section 4.04. Absolute Triple Net Lease.
(a) This Lease is what is commonly called a "Absolute Triple Net Lease,"
it being understood that Lessor shall receive the Base Rent set forth in Section
4.01. free and clear of any and all expenses, costs, impositions, taxes,
assessments, liens or charges of any nature whatsoever. Lessee shall pay all
rent in lawful money of the United States of America to Lessor at the notice
address stated herein or to such other persons or at such other places as Lessor
may designate in writing on or before the due date specified for same without
prior demand, set-off or deduction of any nature whatsoever. It is the intention
of the parties hereto that this Lease shall not be terminable for any reason by
Lessee, and that except as herein expressly provided in Articles III, VIII and
XIII, concerning delay, destruction and condemnation, Lessee shall in no event
be entitled to any abatement of or reduction in rent payable under this Lease.
Any present or future law to the contrary shall not alter this agreement of the
parties.
(b) To the extent not paid pursuant to other provisions of this Lease, and
at Lessor's sole election, Lessor may submit invoices and Lessee shall pay
Additional Rent in monthly installments on the first day of each month in
advance in an amount to be estimated by Lessor, based on Lessor's experience in
managing office/research and development projects. Within ninety (90) days
following the end of the period used by Lessor in estimating Additional Rent,
Lessor shall furnish to Lessee a statement (hereinafter referred to as "Lessor's
Statement") of the actual amount of Lessee's proportionate share of such
Additional Rent, or Lessor shall remit or credit to Lessee, as the case may be,
the difference between the estimated amounts paid by Lessee and the actual
amount of Lessee's Additional Rent for such period as shown by such statement.
Monthly installments for the ensuing year shall be adjusted upward or downward
as set forth in Lessor's Statement.
Section 4.05. Additional Rent. In addition to the Base Rent reserved by
Section 4.01., Lessee shall pay (with respect to the Premises), as Additional
Rent, all taxes, assessments, fees and other impositions in accordance with the
provisions of Article IX, insurance premiums in accordance with the provisions
of Article VII, operating charges, maintenance, repair and replacement costs and
expenses in accordance with the provisions of Article VI and any other charges,
costs and expenses (including appropriate reserves therefor) which are
contemplated or which may arise under any provision of this Lease during the
Lease Term, plus a Management Fee to Lessor equal to 3% of the Base Rent. The
Management Fee is due and payable, in advance, with each installment of Base
Rent. All of such charges, costs, expenses, Management Fee and all other amounts
payable by Lessee hereunder, shall constitute Additional Rent, and upon the
failure of Lessee to pay any of such charges, costs or expenses, Lessor shall
have the
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same rights and remedies as otherwise provided in this Lease for the failure of
Lessee to pay Base Rent. Notwithstanding any other provision of this Lease,
Additional Rent shall not include: (i) depreciation, interest, or amortization
on mortgages or ground lease payments, (ii) legal fees incurred in negotiating
and enforcing tenant leases, (iii) real estate brokers' leasing commissions,
(iv) initial improvements to tenant spaces, or alterations thereto requested by
tenants, (v) costs of any items to the extent Lessor receives reimbursement for
same from insurance proceeds or a third party, (vi) interest, principal,
depreciation, attorney fees, costs of environmental investigations or reports,
points, fees, and other lender costs and closing costs on any mortgage or
mortgages, ground lease payments, or other debt instrument encumbering any
portion of the Property, (vii) costs of (a) partnership or corporate accounting
and legal matters; defending or prosecuting any lawsuit with any mortgagee,
lender, ground lessor, broker, tenant, occupant, or prospective tenant or
occupant; selling or syndicating any of Lessor's interest in the Property; and
disputes between Lessor and Lessor's property manager; (b) the salaries of
management personnel who are not directly related to the Property and primarily
engaged in the operation, maintenance, and repair of the Property, except to the
extent that those costs and expenses are included in the management fees; (c)
wages, salaries, and other compensation paid to any executive employee of Lessor
or Lessor's property manager above the grade of building manager for the
Property; (viii) costs incurred because any Building or Outside Areas violate
any valid, applicable building code, regulation, or law in effect and as
interpreted by government authorities before the date on which this Lease is
signed for fines, penalties, interest, and the costs of repairs, replacements,
alterations, or improvements necessary to make any Building or Outside Areas
comply with applicable past laws in effect and as interpreted by government
authorities before the date on which this Lease is signed, such as sprinkler
installation or requirements under the Americans With Disabilities Act of 1990
(42 USC ss.ss.12101-12213); (ix) costs of initial construction of the Buildings
and other improvements to the Property; (x) charitable or political
contributions made by Lessor.
Section 4.06. Security Deposit. Within five (5) business days after the
date on which this Lease is executed by Lessee and Lessor, Lessee shall deposit
with Lessor a Security Deposit equal to twelve (12) months of Base Rent
estimated in the amount of Twenty Five Million Seven Hundred Forty Thousand
Dollars and no Cents ($25,740,000.00) in the form of cash or an unconditional,
irrevocable standby letter of credit, with Lessor as beneficiary and providing
for payment on presentation of Lessor's drafts on sight without documents and
drawable in whole or in part on a money center bank in San Francisco approved by
Lessor and otherwise in a form acceptable to Lessor, all in its sole discretion,
with a term of at least twelve (12) months and with a term during the last year
of the Lease Term which includes at least one full month following the
Expiration Date (the "Security Deposit"). The Security Deposit shall be held by
Lessor as security for the faithful performance by Lessee of all of the terms,
covenants, and conditions of this Lease applicable to Lessee. If Lessee defaults
with respect to any provision of this Lease, including but not limited to, the
provisions relating to the construction of Tenant Improvements and the condition
of the Premises upon Lease Termination, Lessor may (but shall not be required
to) use, apply or retain all or any part of the Security Deposit for the payment
of any amount which Lessor may spend by reason of Lessee's default or to
compensate Lessor for any loss or damage which Lessor may suffer by reason of
Lessee's default and if all or any part of the Security Deposit is in the form a
of a letter of credit, Lessor may draw on all or any part of same and thereafter
retain any unapplied portion as a cash Security Deposit. If any portion of the
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Security Deposit is so used or applied, Lessee Shall, within ten (10) days after
written demand therefor, deposit cash with Lessor in an amount sufficient to
restore the Security Deposit to its original amount. Lessee's failure to do so
shall be a material default and breach of this Lease by Lessee. The rights of
Lessor pursuant to this Section 4.06. are in addition to any rights which Lessor
may have pursuant to Article XII below. If Lessee fully and faithfully performs
every provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned (without interest) to Lessee (or, at Lessor's
option, to the last assignee of Lessee's interests hereunder) at Lease
expiration or termination and after Lessee has vacated the Premises. Lessor
shall not be required to keep the Security Deposit separate from Lessor's
general funds or be deemed a trustee of same. If the Security Deposit is in
whole or in part in the form of a Letter of Credit, failure of Lessee to deliver
a replacement Letter of Credit to Lessor at least forty-five (45) business days
prior to the expiration date of any current Letter of Credit shall constitute a
separate default entitling Lessor to draw down immediately and entirely on the
current Letter of Credit and the proceeds shall constitute a cash Security
Deposit. The amount of the Security Deposit shall be reduced to a cash amount
equal to three months of Base Rent at the rate scheduled for the final year of
the initial Lease Term, in cash, upon Lessee's achievement of four (4)
consecutive calendar quarters of an annualized run rate of $750,000,000.00 in
revenue and $100,000,000.00 in net income.
ARTICLE V USE
Section 5.01. Permitted Use and Limitations on Use. The Premises shall be
used and occupied only for office, research and development, together with such
ancillary uses which do not cause excessive wear of the Premises or increase the
potential liability of Lessor, and for no other use, without Lessor's prior
written consent. Lessee shall not use, suffer or permit the use of the Premises
in any manner that will tend to create waste, nuisance or unlawful acts. In no
event shall it be unreasonable for Lessor to withhold its consent as to uses
which it determines would tend to increase materially the wear of the Premises
or any part thereof or increase the potential liability of Lessor or decrease
the marketability, financability, leasability or value of the Premises. Lessee
shall not do anything in or about the Premises which will (i) cause structural
injury to any Building, or (ii) cause damage to any part of any Building except
to the extent reasonably necessary for the installation of Lessee's trade
fixtures and Lessee's Alterations, and then only in a manner which has been
first approved by Lessor in writing. Lessee shall not operate any equipment
within the Premises which will (i) materially damage any Building or the Outside
Area, (ii) overload existing electrical systems or other mechanical equipment
servicing any Building, (iii) impair the efficient operation of the sprinkler
system or the heating, ventilating or air conditioning ("HVAC") equipment within
or servicing any Building, or (iv) damage, overload or corrode the sanitary
sewer system. Lessee shall not attach, hang or suspend anything from the
ceiling, roof, walls or columns of any Building or set any load on the floor in
excess of the load limits for which such items are designed nor operate hard
wheel forklifts within the Premises. Any dust, fumes, or waste products
generated by Lessee's use of the Premises shall be contained and disposed so
that they do not (i) create an unreasonable fire or health hazard, (ii) damage
the Premises, or (iii) result in the violation of any law. Except as approved by
Lessor, Lessee shall not change the exterior of any Building, or install any
equipment or antennas on or make any penetrations of the exterior or roof of any
Building.
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Lessee shall not conduct on any portion of the Premises any sale of any kind,
including any public or private auction, fire sale, going-out-of-business sale,
distress sale or other liquidation sale. No materials, supplies, tanks or
containers, equipment, finished products or semifinished products, raw
materials, inoperable vehicles or articles of any nature shall be stored upon or
permitted to remain within the Outside Areas of the Premises except in fully
fenced and screened areas outside the Buildings which have been designed for
such purpose and have been approved in writing by Lessor for such use by Lessee.
Section 5.02. Compliance with Law.
(a) Lessor shall deliver: each Building to Lessee free of violations of
any covenants or restrictions of record, or any applicable-law, building code,
regulation or ordinance in effect on the date of delivery, including without
limitation, the Americans with Disability Act.
(b) Except as provided in Section 5.02.(a), Lessee shall, at Lessee's cost
and expense, comply promptly with all statutes, ordinances, codes, rules,
regulations and orders, and all covenants and restrictions of record, and
requirements applicable to the Premises and Lessee's use and occupancy of same
in effect during any part of the Lease Term, whether the same are presently
foreseeable or not, and without regard to the cost or expense of compliance.
(c) By executing this Lease, Lessee acknowledges that it has reviewed and
satisfied itself as to its compliance, or intended compliance with the
applicable zoning and permit laws, hazardous materials and waste requirements,
and all other statutes, laws, or ordinances relevant to the uses stated in
Section 5.01., above.
Section 5.03. Condition of Premises at Delivery of Possession. Subject to
all of the terms of this Lease for the construction of Tenant Improvements.
Lessor shall deliver each Building to Lessee with the plumbing, lighting,
heating, ventilating, air conditioning, gas, electrical, and sprinkler systems
and loading doors as set forth in Exhibit "D" in proper operating condition and
built substantially in accordance with the approved plans therefor, and in a
workmanlike manner. Except as otherwise provided in this Lease, Lessee hereby
accepts the Premises in their condition existing as of the Commencement Date,
subject to all applicable zoning, municipal, county and state laws, ordinances
and regulations governing and regulating the use and condition of the Premises,
and any covenants or restrictions, liens, encumbrances and title exceptions of
record, and accepts this Lease subject thereto and to all matters disclosed
thereby and by any exhibits attached hereto. Lessee acknowledges that neither
Lessor nor any agent of Lessor has made any representation or warranty as to the
present or future suitability of the Premises for the conduct of Lessee's
business.
Section 5.04. Defective Condition at Commencement Date. In the event that
it is determined, and Lessee notifies Lessor in writing, as to each Building
within one year after delivery of such Building to Tenant, that any of the
obligations of Lessor set forth in Section 5.02.(a) or Section 5.03.(a) were not
performed with respect to such Building, then it shall be the obligation of
Lessor, and the sole right and remedy of Lessee, after receipt of written notice
from Lessee setting forth with specificity the nature of the failed performance,
to promptly, within a reasonable time and at Lessor's sole cost, correct same.
Lessee's failure to give such written
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notice to Lessor within each such one year period shall constitute a conclusive
presumption that Lessor has complied with all of Lessor's obligations under the
foregoing Sections 5.02. and 5.03., and any required correction after that date
shall be performed by Lessee, at its sole cost and expense except for those
express obligations of Lessor under Section 6.01 (b). As each Building is
delivered, Lessor shall promptly assign to Lessee all of Lessor's contractor's
and manufacturer's guarantees, warranties and causes of action with respect to
the subject Building except those pertaining to Lessor obligations which could
arise under this Section 5.04. and at the end of each one year period described
above of the Lease Term, Lessor shall promptly assign to Lessee all of Lessor's
remaining contractor's and/or manufacturer's guarantees, warranties, and causes
of action with respect to the subject Building except those pertaining to Lessor
obligations which could arise under Section 6.01 (b).
Section 5.05. Building Security. Lessee acknowledges and agrees that it
assumes sole responsibility for security at the Premises for its agents,
employees, invitees, licensees, contractors, guests and visitors and will
provide such systems and personnel for same including, without limitation, the
Outside Area as it deems necessary or appropriate and at its sole cost and
expense. Lessee acknowledges and agrees that Lessor does not intend to provide
any security system or security personnel at the Premises, including, without
limitation, at the Outside Areas.
Section 5.06. Rules and Regulations. Lessor may from time-to-time
promulgate reasonable and nondiscriminatory rules and regulations applicable for
the care and orderly management of the Premises. Such rules and regulations
shall be binding upon Lessee upon delivery of a copy thereof to Lessee, and
Lessee agrees to abide by such rules and regulations. A copy of the initial
Rules and Regulations is attached hereto as Exhibit "L." If there is a conflict
between the rules and regulations and any of the provisions of this Lease, the
provisions of this Lease shall prevail. Lessor shall not be responsible for the
violation of any such rules and regulations by any person, including, without
limitation, Lessee or its employees, agents, invitees, licensees, guests,
visitors or contractors.
Section 5.07. Moffett Park TDM Plan. Lessee has reviewed and analyzed the
Moffett Park Transportation Demand Management Plan (a copy of which is attached
hereto as Exhibit M), and understands that it is obligated to comply fully and
timely with same (and any revisions, supplements or successor plans thereto) at
Lessee's sole cost and expense to achieve the specified goal, and that failure
to do so will (i) constitute a material default hereunder, and (ii) expose
Lessor to possible penalties and damages to which Lessee's indemnity obligations
under this Lease shall apply, provided, that, Lessee shall have no obligation
with respect to the construction of the Light Rail Station and Lessor shall, at
its own cost and expense comply with the obligation to (i) design and designate
parking spaces for exclusive use of carpools and vanpools, (ii) install bicycle
racks and lockers, (iii) install a carpool/vanpool/shuttle pickup area, and (iv)
install pedestrian, bike circulation links, perimeter walking and jogging paths,
and meditation gardens and seating areas required under Part II of the TDM Plan,
as well as any other site improvement work (i.e. with respect to the Project
exterior but not to the Buildings), required by amendment to the TDM Plan prior
to the Commencement Date. Lessor shall construct shower and clothing lockers
required under the TDM Plan (and any other interior improvements required by
amendment to the TDM Plan) at Lessee cost and expense as part of the Tenant
Improvements.
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ARTICLE VI
MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.01. Maintenance of Premises.
(a) Throughout the Lease Term (except as provided in 6.01.(b)), Lessee, at
its sole cost and expense, shall keep, maintain, repair and replace the Premises
and all improvements and appurtenances in or serving the Premises, including,
without limitation, all interior and exterior-walls, all doors and windows, all
roof membranes, all elevators and stairways, all wall surfaces and floor
coverings, all Tenant Improvements and alterations, additions and improvements
installed during the Lease Term, all sewer, plumbing, electrical, lighting,
heating, ventilation and cooling systems, fire sprinklers, fire safety and
security systems, fixtures and appliances and all wiring and glazing, in the
same good order, condition and repair as they are in on the Commencement Date,
or any later date of installation, reasonable wear excepted, provided that wear
which could be prevented by first class maintenance shall not be deemed
reasonable.
(b) Lessor, at its sole cost and expense, shall repair defects in the
exterior walls (including all exterior glass which is damaged by structural
defects in such exterior walls), supporting pillars, structural walls, roof
structure and foundations of the Buildings and sewer storm drainage and plumbing
systems outside the Buildings but within the Project, provided that the need for
repair is not caused by Lessee, in which event Lessor shall repair same and
Lessee shall reimburse Lessor for the cost and expense of same except to the
extent of insurance proceeds received for same. Lessor shall replace the roof
membrane of each Building, the parking lot surface, landscaping, drainage,
irrigation, sprinkler systems as well as sewer and plumbing systems outside the
Buildings when the useful life of each has expired, and Lessee shall pay that
portion of the cost of each replacement, together with annual interest at the
Agreed Rate which shall be amortized over the useful life of each such
replacement applicable to the balance of the Lease Term, in equal monthly
installments due and payable with installments of Base Rent. Lessee shall give
Lessor written notice of any need of repairs which are the obligation of Lessor
hereunder and Lessor shall have a reasonable time to perform same. Should Lessor
default as provided in Section 12.03 with respect to its obligation to make any
of the repairs assumed by it hereunder, Lessee shall have the right to perform
such repairs and Lessor agrees that within thirty (30) days after written demand
accompanied by detailed invoice(s), it shall pay to Lessee the cost of any such
repairs together with accrued interest from the date of Lessee's payment at the
Agreed Rate. Lessor shall not be liable to Lessee, its employees, invitees, or
licensees for any damage to person or property, and Lessee's sole right and
remedy shall be the performance of said repairs by Lessee with right of
reimbursement from Lessor of the reasonable fair market cost of said repairs,
not exceeding the sum actually expended by Lessee, together with accrued
interest from the date of Lessee's payment at the Agreed Rate, provided that
nothing herein shall be deemed to create a right of setoff or withholding by
Lessee of Base Rent or Additional Rent or any other amounts due herein. Lessee
hereby expressly waives all rights under and benefits of Sections 1941 and 1942
of the California Civil Code or under any similar law, statute or ordinance now
or hereafter in effect to make repairs and offset
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the cost of same against rent or to withhold or delay any payment of rent or any
other of its obligations hereunder as a result of any default by Lessor under
this Section 6.01(b).
(c) Lessee agrees to keep the Premises, both inside and out, clean and in
sanitary condition as required by the health, sanitary and police ordinances and
regulations of any political subdivision having jurisdiction and to remove all
trash and debris which may be found in or around the Premises. Lessee further
agrees to keep the interior surfaces of each Building, including, without
limitation, windows, floors, walls, doors, showcases and fixtures, clean and
neat in appearance.
(d) If Lessee refuses or neglects to commence such repairs and/or
maintenance for which Lessee is responsible under this Article VI within a
thirty (30) day period (or as soon as practical and in no event later than ten
(10) days if the failure to initiate the repair threatens to cause further
damage to the Premises) after written notice from Lessor and thereafter
diligently prosecute the same to completion, then Lessor may (i) enter the
Premises (except in an emergency, upon at least twenty-four (24) hours advanced
written notice) during Lessor's business hours and cause such repairs and/or
maintenance to be made and shall not be responsible to Lessee for any loss or
damage occasioned thereby and Lessee agrees that upon demand, it shall pay to
Lessor the reasonable cost of any such repairs, not exceeding the sum actually
expended by Lessor, together with accrued interest from the date of Lessor's
payment at the Agreed Rate, and (ii) elect to enter into a maintenance contract
at a market rate for first-rate maintenance with a third party for the
performance of all or a part of Lessee's maintenance obligations, whereupon,
Lessee shall be relieved from its obligations to perform those maintenance
obligations expressly covered by such maintenance contract, and Lessee shall
bear the entire cost of such maintenance contract which shall be due and paid in
advance, as Additional Rent, on a monthly basis with Lessee's Base Rent
payments.
Section 6.02. Maintenance of Outside Areas. Subject to 6.01.(c) and
subject to Lessee paying the cost and expense for same pursuant to Section 4.05,
Lessor shall maintain, repair and replace all improvements on the Property and
outside of the Buildings, including, without limitation, landscaping, sidewalks,
walkways, driveways, curbs, parking lots (including striping), parking
structure, sprinkler systems, lighting (per City of Sunnyvale requirements), and
surface water drainage systems ("Outside Areas").
Section 6.03. Alterations, Additions and Improvements. No alterations,
additions, or improvements ("Alterations") shall be made to the Premises by
Lessee without the prior written consent of Lessor which Lessor will not
unreasonably withhold, provided, however, that Lessee may make Alterations which
do not affect any Building system, exterior appearance, structural components or
structural integrity and which do not exceed, with respect to each Building,
collectively Fifty Thousand Dollars ($50,000) in cost within any twelve (12)
month period, without Lessor's prior written consent. As a condition to Lessor's
obligation to consider any request for consent hereunder, Lessee shall pay
Lessor upon demand for the reasonable costs and expenses of consultants,
engineers, architects and others for reviewing plans and specifications and for
monitoring the construction of any proposed Alterations. Lessor may require
Lessee to remove any such Alterations at the expiration or termination of the
Lease Term and to restore the Premises to their prior condition by written
notice given on or before the earlier of (i) the
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expiration of the Lease Term, or (ii) thirty (30) days after termination of the
Lease, or (iii) thirty (30) days after a written request from Lessee for such
notice from Lessor provided, that, if Lessee requests same from Lessor, Lessor
will notify Lessee within five (5) business days after receipt of Lessee's
request and a copy of all plans and specifications for the proposed Alteration
whether it will require removal. All Alterations to be made to the Premises
shall be made under the supervision of a competent, California licensed
architect and/or competent California licensed structural engineer (each of whom
has been reasonably approved by Lessor and such approval will not be
unreasonably withheld) and shall be made in accordance with plans and
specifications which have been furnished to and approved by Lessor in writing
prior to commencement of work. All Alterations shall be designed, constructed
and installed at the sole cost and expense of Lessee by California licensed
architects, engineers, and contractors approved by Lessor, in compliance with
all applicable law, and in good and workmanlike manner. Any Alteration except
furniture and trade fixtures, shall become the property of Lessor at the
expiration, or sooner termination of the Lease, unless Lessor directs otherwise,
provided that Lessee shall retain title to all furniture and trade fixtures
placed on the Premises. All heating, lighting, electrical, air conditioning,
full height partitioning (but not moveable, free standing cubicle-type
partitions which do not extend to the ceiling or connect to Building walls),
drapery and carpeting installations made by Lessee together with all property
that has become an integral part of the Premises, shall be and become the
property of Lessor upon the expiration, or sooner termination of the Lease, and
shall not be deemed trade fixtures. Within sixty (60) days after completion of
any Alteration, Lessee shall provide Lessor with a complete set of "as built"
plans for same.
Section 6.04. Covenant Against Liens. Lessee shall not allow any liens
arising from any act or omission of Lessee to exist, attach to, be placed on, or
encumber Lessor's or Lessee's interest in the Premises or any part thereof, or
any portion thereof, by operation of law or otherwise. Lessee shall not suffer
or permit any lien of mechanics, material suppliers, or others to be placed
against the Premises or any portion thereof with respect to work or services
performed or claimed to have been performed for Lessee or materials furnished or
claimed to have been furnished to Lessee or the Premises. Lessor has the right
at all times to post and keep posted on the Premises any notice that it
considers necessary for protection from such liens. At least seven (7) days
before beginning construction of any Alteration, Lessee shall give Lessor
written notice of the expected commencement date of that construction to permit
Lessor to post and record a notice of nonresponsibility. If any such lien
attaches or Lessee receives notice of any such lien, Lessee shall cause the lien
to be promptly released and removed of record. Despite any other provision of
this Lease, if the lien is not released and removed within twenty (20) days
after Lessor delivers notice of the lien to Lessee, Lessor may immediately take
all action necessary to release and remove the lien, without any duty to
investigate the validity of it. All expenses (including reasonable attorney fees
and the cost of any bond) incurred by Lessor in connection with a lien incurred
by Lessee or its removal shall be considered Additional Rent under this Lease
and be immediately due and payable by Lessee.
Section 6.05 Reimbursable Capital Expenditures. Except for items of
capital expenditures which are to be made at Lessor's sole cost and expense
pursuant to the first sentence of Section 6.01 (b) above, capital expenditures,
together with interest thereon at the Agreed Rate, for any replacement item at
the Premises for which Lessor is responsible hereunder
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made by Lessor in excess of One Hundred Thousand Dollars ($100,000.00) during
the Lease Term shall be amortized over the remaining Lease Term for the useful
life of such replacement item with the numerator being the number of months
remaining in the Lease Term and the denominator being the number of months of
the useful life of the improvements as determined by Lessor in its sole
discretion. Lessee shall be obligated for such amortized portion of any such
expenditure in equal monthly installments due and payable with each installment
of Base Rent during the Lease Term.
ARTICLE VII
INSURANCE
Section 7.01. Property/Rental Insurance for Premises. At all times during
the Lease Term, Lessor shall keep the Premises insured against loss or damage by
fire and those risks normally included in the term "all risk," including,
without limitation, coverage for (i) earthquake and earthquake sprinkler
leakage, (ii) flood, (iii) loss of rents and extra expense for eighteen (18)
months, including scheduled rent increases, (iv) boiler and machinery, (v)
Tenant Improvements, and (vi) fire damage legal liability form, including waiver
of subrogation. Any deductibles shall be paid by Lessee. The amount of such
insurance shall not be less than 100% of replacement cost. Insurance shall
include a Building Ordinance and Increased Cost of Construction Endorsement
insuring the increased cost of reconstructing the Premises incurred due to the
need to comply with applicable statutes, ordinances and requirements of all
municipal, state and federal authorities now in force, which or may be in force
hereafter. Any recovery received from said insurance policy shall be paid to
Lessor and thereafter applied by Lessor to the reconstruction of the Premises in
accordance with the provisions of Article VIII below. Lessee, in addition to the
rent and other charges provided herein, shall reimburse Lessor for the cost of
the premiums for all such insurance covering the Premises in accordance with
Article IV. Such reimbursement and shall be made within (15) days of Lessor's
delivery of a copy of Lessor's statement therefor. Lessee shall pay to Lessor
any deductible (subject to the above conditions) owing within fifteen (15) days
after delivery of notice from Lessor of the amount owing. To the extent
commercially available, Lessor's insurance shall have a deductible not greater
than fifteen percent (15%) for earthquake and five percent (5%) for the basic
"all risk" coverage.
Section 7.02. Property Insurance for Fixtures and Inventory. At all times
during the Lease Term, Lessee shall, at its sole expense, maintain insurance
with "all risk, coverage on any fixtures, furnishings, merchandise, equipment or
personal property in or on the Premises, whether in place as of the date hereof
or installed hereafter. The amount of such insurance shall not be less than one
hundred percent (100%) of the replacement cost thereof, and Lessor shall not
have any responsibility nor pay any cost for maintaining any types of such
insurance. Lessee shall pay all deductibles.
Section 7.03. Lessor's Liability Insurance. At all times during the Lease
Term, Lessor shall maintain a policy of policies of comprehensive general
liability insurance naming Lessor (and such others as designated by Lessor)
against liability for bodily injury, property damage on our about the Premises,
with combined single limit coverage in an amount determined by Lessor in its
sole discretion and which amount is presently in excess of Thirty Million
Dollars
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($30,000,000.00). Lessee, in addition to the rent and other charges provided
herein, agrees to pay to Lessor the premiums for all such insurance. The
insurance premiums shall be paid in accordance with Article IV, within (15) days
of Lessor's delivery of a copy of Lessor's statement therefore.
Section 7.04. Liability Insurance Carried by Lessee. At all times during
the Lease Term (and any holdover period) Lessee shall obtain and keep in force a
commercial general liability policy of insurance protecting Lessee, Lessor and
any Lender(s) whose names are provided to Lessee as Additional Insureds against
claims from bodily injury, personal injury and property damage based upon
involving or arising out of ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be on an
occurrence basis providing a single limit coverage in amount of not less than
Ten Million Dollars ($10,000,000) per occurrence with an Additional Lessors or
Premises Endorsements and containing an "Amendment of the Pollution Exclusion
Endorsement" for damage caused by heat, smoke, fumes from a hostile fire. The
limits of said insurance required by this Lease as carried by Lessee shall not,
however limit the liability of Lessee nor relieve Lessee of any obligation
hereunder. All insurance to be carried by the Lessee shall be primary to and not
contributory with, any similar insurance carried by Lessor whose insurance shall
be considered excess insurance only.
Section 7.05. Lessee to Furnish Proof of Insurance. Lessee shall furnish
to Lessor prior to the Commencement Date, and at least thirty (30) days prior to
the expiration date of any policy, certificates indicating that the property
insurance and liability insurance required to be maintained by Lessee is in full
force and effect for the twelve (12) month period following such expiration
date; that Lessor has been named as an additional insured to the extent of
contractual liability assumed in Section 7.07. "Indemnification" and Section
7.08. "Lessor as Party Defendant"; and that all such policies will not be
canceled unless thirty (30) days prior written notice of the proposed
cancellation has been given to Lessor. The insurance shall be with insurers
approved by Lessor, provided, however, that such approval shall not be
unreasonably withheld so long as Lessee's insurance carrier has a Best's
Insurance Guide rating not less than A+ VIII. Lessor shall furnish to Lessee,
prior to the Commencement Date, and at least ten (10) days prior to the
expiration date of any policy, or if later in each case, within ten (10)
business days after receipt of a written request for same, certificates
indicating that the property insurance and liability insurance required to be
maintained by Lessor is in full force and effect for the twelve (12) month
period following such expiration date.
Section 7.06. Mutual Waiver of Claims and Subrogation Rights. Lessor and
Lessee hereby release and relieve the other, and waive their entire claim of
recovery for loss or damage to property arising out of or incident to fire,
lightning, and the other perils included in a standard "all risk" insurance
policy when such property constitutes the Premises, or is in, on or about the
Premises, whether or not such loss or damage is due to the negligence of Lessor
or Lessee, or their respective agents, employees, guests, licensees, invitees,
or contractors. Lessee and Lessor waive all rights of subrogation against each
other on behalf of, and shall obtain a waiver of all subrogation rights from,
all property and casualty insurers referenced above.
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Section 7.07. Indemnification and Exculpation.
(a) Except as otherwise provided in Section 7.07.(b), Lessee shall
indemnify and hold Lessor free and harmless from any and all liability, claims,
loss, damages, causes of action (whether in tort or contract, law or equity, or
otherwise), expenses, charges, assessments, fines, and penalties of any kind,
including without limitation, reasonable attorney fees, expert witness fees and
costs, arising by reason of the death or injury of any person, including any
person who is an employee, agent, invitee, licensee, permittee, visitor, guest
or contractor of Lessee, or by reason of damage to or destruction of any
property, including property owned by Lessee or any person who is an employee,
agent, invitee, permitee, visitor, or contractor of Lessee, caused or allegedly
caused (1) while that person or property is in or about the Premises; (2) by
some condition of the Premises; (3) by some act or omission by Lessee or its
agent, employee, licensee, invitee, guest, visitor or contractor or any person
in, adjacent, on, or about the Premises with the permission, consent or
sufferance of Lessee; (4) by any matter connected to or arising out of Lessee's
occupation or use of the Premises, or any breach or default in timely observance
or performance of any obligation on Lessee's part to be observed or performed
under this Lease.
(b) Notwithstanding the provisions of Section 7.07.(a) of this Lease,
Lessee's duty to indemnify and hold Lessor harmless shall not apply to any
liability, claims, loss or damages to the extent caused solely by Lessor's
active negligence or willful acts of misconduct.
(c) Lessee hereby waives all claims against Lessor for damages to goods,
wares and merchandise and all other personal property in, on, or about the
Premises and for injury or death to persons in, on, or about the Premises from
any cause arising at any time to the fullest extent permitted by law and in no
event shall Lessor be liable for lost profits or other consequential damages
arising from any cause or for any damage which is or could be covered by the
insurance Lessee is required to carry under this Lease.
Section 7.08. Lessor as Party Defendant. If by reason of an act or
omission of Lessee or any of its employees, agents, invitees, licensee,
visitors, guests or contractors, Lessor is made a party defendant or a
cross-defendant to any action involving the Premises or this Lease, Lessee shall
hold harmless and indemnify Lessor from all liability or claims of liability,
including all damages, attorney fees and costs of suit.
ARTICLE VIII
DAMAGE OR DESTRUCTION
Section 8.01. Destruction of the Premises.
(a) In the event of a partial destruction of the Premises during the Lease
Term from any cause, Lessor, upon receipt of, and to the extent of, insurance
proceeds paid in connection with such casualty, shall forthwith repair the same,
provided the repairs can be made within a reasonable time under state, federal,
county and municipal applicable law, but such partial destruction shall in no
way annul or void this Lease, (except as provided in Section 8.01.(b) below)
provided that Lessee shall be entitled to a proportionate credit for rent equal
to the payment of rental income insurance received by Lessor. Lessor shall use
diligence in making
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such repairs within a reasonable time period, acts of God, strikes and delays
beyond Lessor's control excepted, in which instance the time period shall be
extended accordingly, and this Lease shall remain in full force and effect, with
the rent to be proportionately reduced as provided in this Section. If the
Premises are damaged by any peril within twelve (12) months prior to the last
day of the Lease Term and, in the reasonable opinion of the Lessor's architect
or construction consultant, the restoration of the Premises cannot be
substantially completed within ninety (90) days after the date of such damage
and such damage renders unusable more than thirty percent (30%) of the Premises,
Lessor may terminate this Lease on sixty (60) days written notice to Lessee.
(b) If the Premises are damaged or destroyed by any cause to the extent of
more than fifty percent (50%) of the total Rentable Area of all office/research
and development Buildings which are then part of the Premises during the Lease
Term, Lessor shall notify Lessee within sixty (60) days after such damage or
destruction whether it will repair the same within twelve (12) months (subject
to force majeure) from the date of such notice and if Lessor states that it will
not repair within said twelve (12) months (subject to force majeure) this Lease
shall terminate ten (10) business days after Lessor gives its notice. In the
event Lessor elects to repair, Lessor shall commence repairs within a reasonable
time and diligently proceed to complete such repairs, in each instance subject
to force majeure delays. In the event of termination, Lessor shall pay to Lessee
all insurance proceeds, if any, received by Lessor as a result of the damage or
destruction to the extent allocable to unamortized Tenant Improvements or other
Alterations installed in the damaged Buildings at Lessee's sole cost and
expense, using an amortization schedule of equal monthly installments over the
first sixty (60) months following the delivery of each damaged Building, but
only to the extent such payment will not violate the terms and conditions of any
trust deed recorded against the Project or Premises or constitute a default
thereunder.
Section 8.02. Waiver of Civil Code Remedies. Lessee hereby expressly
waives any rights to terminate this Lease upon damage or destruction to the
Premises, including without limitation any rights pursuant to the provisions of
Section 1932, Subdivision 2 and Section 1933, Subdivision 4, of the California
Civil Code, as amended from time-to-time, and the provisions of any similar law
hereinafter enacted.
Section 8.03. No Abatement of Rentals. The Rentals and other charges due
under this Lease shall not be reduced or abated by reason of any damage or
destruction to the Premises (except to the extent of proceeds received by Lessor
from the rental loss insurance), and Lessor shall be entitled to all proceeds of
the insurance maintained pursuant to Section 7.01. above during the period of
rebuilding pursuant to Section 8.01.(a) above, or if the Lease is terminated
pursuant to Section 8.01.(a) above. Lessee shall have no claim against Lessor,
including, without limitation, for compensation for inconvenience or loss of
business, profits or goodwill during any period of repair or reconstruction.
Section 8.04. Liability for Personal Property. In no event shall Lessor
have any liability for, nor shall it be required to repair or restore, any
injury or damage to Lessee's personal property or to any other personal property
or to Alterations in or upon the Premises by Lessee.
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ARTICLE IX
REAL PROPERTY TAXES
Section 9.01. Payment of Taxes. Lessee shall pay the real property tax,
including any escaped or supplemental tax and any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any license, fee,
charge, excise or imposition ("real property tax"), imposed, assessed or levied
on or with respect to the Premises by any Federal, State, County, City or other
political subdivision or public authority having the direct or indirect power to
tax, including any improvement district thereof or any community facilities
district, as against any legal or equitable interest of Lessor in the Premises
or against the Premises or any part thereof applicable to the Premises for a
period of time included within the Lease Term. All such payments shall be made
at least ten (10) days prior to the delinquency date for such payment or ten
(10) days after Lessee's receipt of the tax bill, whichever is later.
Notwithstanding the foregoing, Lessee shall not be required to pay any net
income taxes, franchise taxes, or any succession or inheritance taxes of Lessor.
If any anytime during the Lease Term, the State of California or any political
subdivision of the state, including any county, city, city and county, public
corporation, district, or any other political entity or public corporation of
this state, levies or assesses against Lessor a tax, fee, charge or imposition,
excise on rents under the Lease, the square footage of the Premises, the act of
entering into this Lease, or the occupancy of Lessee, or levies or assesses
against Lessor any other tax, fee, or excise, however described, including,
without limitation, a so-called value added, business license, transit,
commuter, environmental or energy tax fee, charge or excise or imposition
related to the Premises as a direct substitution in whole or in part for, or in
addition to, any real property taxes on the Premises, Lessee shall pay ten (10)
days before delinquency or ten (10) days after receipt of the tax bill,
whichever is later, that tax, fee, charge, excise or imposition.
Section 9.02. Pro Ration for Partial Years. If any such taxes paid by
Lessee shall cover any period prior to the Commencement Date or after the
Expiration Date of the Lease Term, Lessee's share of such taxes shall be
equitably prorated to cover only the period of time within the tax fiscal year
during which this Lease shall be in effect, and Lessor shall reimburse Lessee to
any extent required. If Lessee shall fail to pay any such taxes, Lessor shall
have the right to pay the same in which case Lessee shall repay such amount to
Lessor within ten (10) days after written demand, together with interest at the
Agreed Rate.
Section 9.03. Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes imposed, assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere at the
Project. When possible, Lessee shall cause said trade fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes attributable to Lessee
within ten (10) days after receipt of a written statement setting forth the
taxes applicable to Lessee's property.
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(c) If Lessee shall fail to pay any such taxes, Lessor shall have the
right to pay the same, in which case Lessee shall repay such amount to Lessor
with Lessee's next rent installment together with interest at the Agreed Rate.
ARTICLE X
UTILITIES
Section 10.01. Lessee to Pay. Lessee shall pay prior to delinquency and
throughout the Lease Term, all charges for water, gas, heating, cooling, sewer,
telephone, electricity, garbage, air conditioning and ventilation, janitorial
service, landscaping and all other materials and utilities supplied to the
Premises. The disruption, failure, lack or shortage of any service or utility
due to any cause whatsoever shall not affect any obligation of Lessee hereunder,
and Lessee shall faithfully keep and observe all the terms, conditions and
covenants of this Lease and pay all rent due hereunder, all without diminution,
credit or deduction.
ARTICLE XI
ASSIGNMENT AND SUBLETTING
Section 11.01. Lessor's Consent Required. Except as provided in Section
11.02, Lessee shall not voluntarily or by operation of law assign, transfer,
mortgage, sublet, license or otherwise transfer or encumber all or any part of
Lessee's interest in this Lease or in the Premises or any part thereof, without
Lessor's prior written consent which Lessor shall not unreasonably withhold or
delay. Lessor shall respond in writing to Lessee's request for consent hereunder
in a timely manner and any attempted assignment, transfer, mortgage,
encumbrance, subletting or licensing without such consent shall be void, and
shall constitute a breach of this Lease. By way of example, but not limitation,
reasonable grounds for denying consent include: (i) poor credit history or
insufficient financial strength of transferee, (ii) transferee's intended use of
the Premises is inconsistent with the permitted use or will materially and
adversely affect Lessor's interest. Lessee shall reimburse Lessor upon demand
for Lessor's reasonable costs and expenses (including attorneys' fees, architect
fees and engineering fees) involved in renewing any request for consent whether
or not consent is granted.
Section 11.02. Lessee Affiliates. Without the approval of Lessor, Lessee
may assign or sublet the Premises, or any portion thereof, to any corporation
which controls, is controlled by, or is under common control with Lessee, or to
any corporation resulting from the merger or consolidation with Lessee, or to
any person or entity which acquires all, or substantially all of the assets of
Lessee as a going concern of the business that is being conducted on the
Premises ("Affiliates"), provided that said assignee or sublessee assumes, in
full, the obligations of Lessee under this Lease and provided further that the
use to which the Premises will be put does not materially change and provided
further, Lessee shall provide Lessor at least ten (10) business days advance
written notice of any such assignment or sublease, including fully executed
assignment or sublease documents and evidence that the transaction is of a type
described in this Section 11.02. Any such assignment or sublease shall not, in
any way, affect or limit the liability of Lessee under the terms of this Lease.
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Section 11.03. No Release of Lessee. Regardless of Lessor's consent, no
subletting or assignment shall release Lessee of Lessee's obligation or alter
the primary liability of Lessee to pay the rent and to perform all other
obligations to be performed by Lessee hereunder. The acceptance of rent by
Lessor from any other person shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by any assignee of Lessee or
any successor of Lessee, in the performance of any of the terms hereof, Lessor
may proceed directly against Lessee without the necessity of exhausting remedies
against said assignee.
Section 11.04. Excess Rent. In the event Lessor shall consent to a
sublease or an assignment, Lessee shall pay to Lessor with its regularly
scheduled Base Rent payments, fifty percent (50%) of all sums and the fair
market value of all consideration collected or received by Lessee from a
sublessee or assignee which are in excess of the Base Rent and Additional Rent
due and payable with respect to the subject space pursuant to Article IV for the
time period encompassed by the sublease or assignment term, after first
deducting reasonable leasing commissions, provided that this provision shall not
apply to consideration for the first twelve (12) months of the first sublease of
any space within any office/research development Building (and not to any
subsequent sublease of such space) so long as such sublease is for at least
twenty four (24) months and that the consideration for the second and any
subsequent twelve (12) month period of such sublease (including extension
options) is not less than the consideration for the first twelve (12) months.
Section 11.05. No Impairment of Security. Lessee's written request to
Lessor for consent to an assignment or subletting or other form of transfer
shall be accompanied by (a) the name and legal composition of the proposed
transferee; (b) the nature of the proposed transferee's business to be carried
on in the Premises; (c) the terms and provisions of the proposed transfer
agreement; and (d) such financial and other reasonable information as Lessor may
request concerning the proposed transferee.
Section 11.06. Lessor's Recapture Rights.
(a) Lessor's Recapture Rights. Notwithstanding any other provision of this
Article 11, in the event that Lessee proposes to sublease or assign or otherwise
transfer any interest in this Lease or the Premises or any part thereof
affecting (collectively with all other such subleases, assignments, or transfers
then in effect) more than sixty percent (60%) of the square footage of the total
Rentable Area of the four (4) office/research and development Buildings
("Recapture Space"), then Lessor shall have the option to recapture the
Recapture Space by written notice to Lessee ("Recapture Notice") given within
ten (10) business days after Lessor receives any notice of such proposed
assignment or sublease or other transfer ("Transfer Notice"). A timely Recapture
Notice terminates this Lease for the Recapture Space, effective as of the date
specified in the Transfer Notice. If Lessor declines or fails timely to deliver
a Recapture Notice, Lessor shall have no further right under this Section 11.06
to the Recapture Space unless it becomes available again after such transfer by
Lessee or unless Lessee proposes another such transfer. For purposes of this
Section 11.05, the Rentable Area of the Amenity Building shall not be utilized
in the calculation of Recapture Space. This Section 11.06 shall not apply to the
sublease of space or assignment of this Lease to an Affiliate as defined in
Section 11.02 above.
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(b) Consequences of Recapture. To determine the new Base Rent under this
Lease if Lessor recaptures the Recapture Space, the then current Base Rent
(immediately before Lessor's recapture) under the Lease shall be multiplied by a
fraction, numerator of which is the square feet of the Rentable Area retained by
Lessee after Lessor's recapture and the denominator of which is the total square
feet of the Rentable Area before Lessor's recapture. The Additional Rent, to the
extent that it is calculated on the basis of the square feet within the affected
Building, shall be reduced to reflect Lessee's proportionate share based on the
square feet of the Building retained by Lessee after Lessor's recapture. This
Lease as so amended shall continue thereafter in full force and effect. Either
party may require written confirmation of the amendments to this Lease
necessitated by Lessor's recapture of the Recapture Space. If Lessor recaptures
the Recapture Space, Lessor shall, at Lessor's sole expense, construct, paint,
and furnish any partitions required to segregate the Recapture Space from the
remaining Premises retained by Lessee.
ARTICLE XII
DEFAULTS; REMEDIES
Section 12.01. Defaults. The occurrence of any one or more of the
following events shall constitute a material default and breach of this Lease by
Lessee:
(a) The abandonment of the Premises by Lessee or the commission of waste
at the Premises or the making of an assignment or subletting in violation of
Article XI, provided however, abandonment shall be considered to not occur if
the Premises are maintained and occupied to the extent necessary to maintain the
insurance on each and every portion of the Premises;
(b) The failure by Lessee to make any payment of rent or any other payment
required to be made by Lessee hereunder, as and when due, if such failure
continues for a period of five (5) business days after written notice thereof
from Lessor to Lessee. In the event that Lessor serves Lessee with a Notice to
Pay Rent or Quit in the form required by applicable Unlawful Detainer statutes
such Notice shall constitute the notice required by this paragraph, provided
that the cure period stated in the Notice shall be five (5) business days rather
than the statutory three (3) days;
(c) Lessee's failure to provide, (i) any instrument or assurance as
required by Section 7.05, or (ii) estoppel certificate as required by Section
15.01, or (iii) any document which Lessee is obligated to provide under Section
17.13 subordinating this Lease to a Lender's deed of trust if such failure
continues for five (5) business days after written notice of the failure from
Lessor to Lessee. In the event Lessor serves Lessee with a Notice to Perform
Covenant or Quit in the form required by applicable Unlawful Detainer Statutes,
such Notice shall constitute the notice required by this paragraph, provided
that the cure period stated in the Notice shall be five (5) business days rather
than the statutory three (3) days;
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(d) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Lessee,
other than described in paragraph (a) (b) or (c) above, if such failure
continues for a period of ten (10) days after written notice thereof from Lessor
to Lessee; provided, however, that if the nature of Lessee's default is such
that more than ten (10) days are reasonably required for its cure, then Lessee
shall not be deemed to be in default if Lessee commences such cure within said
ten (10) day period and thereafter diligently prosecutes such cure to
completion;
(e) (i) The making by Lessee of any general arrangement or assignment for
the benefit of creditors; (ii) the filing by Lessee of a voluntary petition in
bankruptcy under Title 11 U.S.C. or the filing of an involuntary petition
against Lessee which remains uncontested for a period of sixty (60) days; (iii)
the appointment of a trustee or receiver to take possession of substantially all
of Lessee's assets located at the Premises or of Lessee's interest in this
Lease; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, provided, however, in the event that any provisions of
this Section 12.01(e) is contrary to any applicable law, such provision shall be
of no force or effect;
(f) The discovery by Lessor that any financial statement given to Lessor
by Lessee, or any guarantor of Lessee's obligations hereunder, was materially
false;
(g) The failure by Lessee to timely observe and perform any obligation
under the City of Sunnyvale TDM Plan or any successor or similar plan or
requirement if such failure continues for five (5) business days (or if longer,
any cure period provided by the City of Sunnyvale before it levies any penalty,
fines or taxes or any other action adverse to Lessor) after written notice of
the failure from Lessor to Lessee;
(h) The failure by Lessee to deposit timely any letters of credit or to
fail to timely pay the General Contractor for costs of Tenant Improvements as
required by Sections 2.04(g) if such failure continues for five (5) business
days after written notice of the failure from Lessor to Lessee.
Section 12.02. Remedies. In the event of any such material default and
breach by Lessee, Lessor may at any time thereafter, and without limiting Lessor
in the exercise of any right or remedy which Lessor may have by reason of such
default and breach:
(a) Terminate Lessee's right to possession of the Premises by any lawful
means including by way of unlawful detainer (and without any further notice if a
notice in compliance with the unlawful detainer statutes and in compliance with
paragraphs (b), (c) (d) (g) or (h) of Section 12.01 above has already been
given), in which case this Lease shall terminate and Lessee shall immediately
surrender possession of the Premises to Lessor. In such event Lessor shall be
entitled to recover from Lessee all damages incurred by Lessor by reason of
Lessee's default including, but not limited to, (i) the cost of recovering
possession of the Premises including reasonable attorneys' fees related thereto;
(ii) the worth at the time of the award of any unpaid rent that had been earned
at the time of the termination, to be computed by allowing interest at the
Agreed Rate but in no case greater than the maximum amount of interest permitted
by law,
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(iii) the worth at the time of the award of the amount by which the unpaid rent
that would have been earned between the time of the termination and the time of
the award exceeds the amount of unpaid rent that Lessee proves could reasonably
have been avoided, to be computed by allowing interest at the Agreed Rate but in
no case greater than the maximum amount of interest permitted by law, (iv) the
worth at the time of the award of the amount by which the unpaid rent for the
balance of the Lease Term after the time of the award exceeds the amount of
unpaid rent that Lessee proves could reasonably have been avoided, to be
computed by discounting that amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of the award plus one per cent (1%), (v) any
other amount necessary to compensate Lessor for all the detriment proximately
caused by Lessee's failure to perform obligations under this Lease, including
brokerage commissions and advertising expenses, expenses of remodeling the
Premises for a new tenant (whether for the same or a different use), and any
special concessions made to obtain a new tenant, and (vi) any other amounts, in
addition to or in lieu of those listed above, that may be permitted by
applicable law.
(b) Maintain Lessee's right to possession as provided in Civil Code
Section 1951.4 in which case this Lease shall continue in effect whether or not
Lessee shall have abandoned the Premises. In such event Lessor shall be entitled
to enforce all of Lessor's rights and remedies under this Lease, including the
right to recover the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under the
laws or judicial decisions of the State of California. Unpaid amounts of rent
and other unpaid monetary obligations of Lessee under the terms of this Lease
shall bear interest from the date due at the Agreed Rate.
Section 12.03. Default by Lessor. Lessor shall not be in default under
this Lease unless Lessor fails to perform obligations required of Lessor within
a reasonable time, but in no event later than thirty (30) days after written
notice by Lessee to Lessor and to the holder of any first mortgage or deed of
trust covering the Premises whose name and address shall have theretofore been
furnished to Lessee in writing, specifying that Lessor has failed to perform
such obligation; provided, however, that if the nature of Lessor's obligation is
such that more than thirty (30) days are required for performance then Lessor
shall not be in default if Lessor commences performance within such thirty (30)
day period and thereafter diligently prosecutes the same to completion. In the
event Lessor does not commence performance within the thirty (30) day period
provided herein, Lessee may perform such obligation and will be reimbursed for
its expenses by Lessor together with interest thereon at the Agreed Rate
provided, however, that if the parties are in dispute as to what constitutes
Lessor's obligations under this Lease, any such dispute shall be resolved by
arbitration in a manner identical to that provided in Section 8.02 above. Lessee
waives any right to terminate this Lease or to vacate the Premises on Lessor's
default under this Lease. Lessee's sole remedy on Lessor's default is an action
for damages or injunctive or declaratory relief. Notwithstanding the foregoing,
nothing herein shall be deemed applicable in the event of Lessor's delay in
delivery of the Premises. In that situation, all rights and remedies shall be
determined under Section 3.01 above.
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Section 12.04. Late Charges. Lessee hereby acknowledges that late payment
by Lessee to Lessor of rent and other sums due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Lessee shall
not be received by Lessor or Lessor's designated agent within five (5) days
after such amount is due and owing, Lessee shall pay to Lessor a late charge
equal to five percent (5%) of such overdue amount. The parties hereby agree that
such late charge represents a fair and reasonable estimate of the costs Lessor
will incur by reason of late payment by Lessee. Acceptance of such late charge
by Lessor shall in no event constitute a waiver of Lessee's default with respect
to such overdue amount, nor prevent Lessor from exercising any of the other
rights and remedies granted hereunder. In the event that a late charge is
payable hereunder, whether or not collected, for three (3) consecutive
installments of rent, then rent shall automatically become due and payable
quarterly in advance, rather than monthly, notwithstanding Section 4.01 or any
other provision of this Lease to the contrary.
ARTICLE XIII
CONDEMNATION OF PREMISES
Section 13.01. Total Condemnation. If the entire Premises, whether by
exercise of governmental power or the sale or transfer by Lessor to any
condemnor under threat of condemnation or while proceedings for condemnation are
pending, at any time during the Lease Term, shall be taken by condemnation such
that there does not remain a portion suitable for occupation, this Lease shall
then terminate as of the date transfer of possession is required. Upon such
condemnation, all rent shall be paid up to the date transfer of possession is
required, and Lessee shall have no claim against Lessor or the award for the
value of the unexpired portion of this Lease Term.
Section 13.02. Partial Condemnation. If any portion of the Premises is
taken by condemnation during the Lease Term, whether by exercise of governmental
power or the sale for transfer by Lessor to an condemnor under threat of
condemnation or while proceedings for condemnation are pending, this Lease shall
remain in full force and effect except that in the event a partial taking leaves
the Premises unfit for the conduct of the business of Lessee, then Lessee shall
have the right to terminate this Lease effective upon the date transfer of
possession is required. Moreover, Lessor shall have the right to terminate this
Lease effective on the date transfer of possession is required if more than
thirty-three percent (33%) of the total square footage of the Premises is taken
by condemnation. Lessee and Lessor may elect to exercise their respective rights
to terminate this Lease pursuant to this Section by serving written notice to
the other within thirty (30) days after receipt of notice of condemnation. All
rent shall be paid up to the date of termination, and Lessee shall have no claim
against Lessor for the value of any unexpired portion of the Lease Term. If this
Lease shall not be canceled, the rent after such partial taking shall be that
percentage of the adjusted base rent specified herein, equal to the percentage
which the square footage of the untaken part of the Premises, immediately after
the taking, bears to the square footage of the entire Premises immediately
before the taking. If Lessee's continued use of the Premises requires
alterations and repair by reason of a partial
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taking, all such alterations and repair shall be made by Lessee at Lessee's
expense. Lessee waives all rights it may have under California Code of Civil
Procedure Section 1265.130 or otherwise, to terminate this Lease based on
partial condemnation.
Section 13.03. Award to Lessee. In the event of any condemnation, whether
total or partial, Lessee shall have the right to claim and recover from the
condemning authority such compensation as may be separately awarded or
recoverable by Lessee for loss of its business fixtures, or equipment belonging
to Lessee immediately prior to the condemnation. The balance of any condemnation
award shall belong to Lessor (including, without limitation, any amount
attributable to any excess of the market value of the Premises for the remainder
of the Lease Term over the then present value of the rent payable for the
remainder of the Lease Term) and Lessee shall have no further right to recover
from Lessor or the condemning authority for any claims arising out of such
taking. Except as provided below, in connection with a condemnation: (a) Lessor
shall be entitled to receive all compensation and anything of value awarded,
paid, or received in settlement or otherwise ("Award"); and (b) Lessee
irrevocably assigns and transfers to Lessor all rights to and interests in the
Award and fully releases and relinquishes any claim to, right to make a claim
on, or interest in the Award. Notwithstanding the foregoing, Lessee shall have
the right to make a separate claim in the condemnation proceeding for: (a)
reasonable removal and relocation costs for any leasehold improvements that
Lessee has the right to remove and elects to remove (if condemnor approves of
the removal), (b) loss of goodwill, (c) relocation costs under Government Code
section 7262, the claim for which Lessee may pursue by separate action
independent of this Lease, but (d) only to the extent that any of the foregoing
does not reduce the amount of the Award payable to Lessor. Lessee shall also be
entitled to receive, if the Award expressly provides for same, an amount equal
to the unamortized cost of the Tenant Improvements or other Alterations
installed in any condemned Building at Lessee's sole cost and expense, using an
amortization schedule of equal monthly amounts for the first sixty (60) months
following the Delivery Date (or deemed Delivery Date) for such Building, but
only to the extent such payment will not violate the terms and conditions of any
trust deed recorded against the Project or Premises or constitute a default
thereunder.
ARTICLE XIV
ENTRY BY LESSOR
Section 14.01. Entry by Lessor Permitted. Lessee shall permit Lessor and
its employees, agents and contractors to enter the Premises and all parts
thereof (i) upon forty-eight (48) hours notice (or without notice in an
emergency), including, without limitation, the Building and all parts thereof at
all reasonable times for any of the following purposes: to inspect the Premises;
to maintain the Premises; to make such repairs to the Premises as Lessor is
obligated or may elect to make; to make repairs, alterations or additions to any
other portion of the Premises, and (ii) upon twenty-four (24) hours notice to
show the Premises and post "To Lease" signs for the purposes of reletting during
the last twelve (12) months of the Lease Term (provided that Lessee has failed
to exercise its option to extend) or extended Lease Term to show the Premises as
part of a prospective sale by Lessor or to post notices of nonresponsibility.
With respect to any such entry which is not an emergency entry, Lessor agrees
not to unreasonably disturb Lessee's use or enjoyment of the Premises, and to
minimize disruption to Lessee as much
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as reasonably practical, Lessor shall have such right of entry without any
rebate of rent to Lessee for any loss of occupancy or quiet enjoyment of the
Premises hereby occasioned.
ARTICLE XV
ESTOPPEL CERTIFICATE
Section 15.01. Estoppel Certificate.
(a) Each party ("Certifying Party") shall at any time upon not less than
fifteen (15) days' prior written notice from the other execute, acknowledge and
deliver to the other a statement in writing (i) certifying, if true, that this
Lease is unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying, if true, that this Lease, as so
modified, is in full force and effect) and the date to which the rent and other
charges are paid in advance, if any, and (ii) acknowledging, if true, that there
are not, to Certifying Party's knowledge, any uncured defaults on the part of
the other party, or specifying such defaults if any are claimed. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises.
(b) Each party's failure to deliver such statement within such time shall
be conclusive upon such party (i) that this Lease is in full force and effect,
without modification except as may be represented by the other party on the
notice, (ii) that there are no uncured defaults in the other party's
performance, and (iii) that not more than one month's rent has been paid in
advance.
ARTICLE XVI
LESSOR'S LIABILITY
Section 16.01. Limitations on Lessor's Liability. The term "Lessor" as
used herein shall mean only the owner or owners at the time in question of the
fee title of the Premises. In the event of any transfer of such title or
interest, Lessor herein named (and in case of any subsequent transfers then the
grantor) shall be relieved from and after the date of such transfer of all
liability as respects Lessor's obligations thereafter to be performed, provided
that any funds in the hands of Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be delivered to the grantee.
The obligations contained in this Lease to be performed by Lessor shall, subject
as aforesaid, be binding on Lessor's successors and assigns, only during their
respective periods of ownership. For any breach of this Lease by Lessor, the
liability of Lessor (including all persons and entities that comprise Lessor,
and any successor Lessor) and any recourse by Lessee against Lessor shall be
limited to the interest of Lessor, and Lessor's successors in interest, in and
to the Premises. On behalf of itself and all persons claiming by, through, or
under Lessee, Lessee expressly waives and releases Lessor and each member, agent
and employee of Lessor from any personal liability for breach of this Lease.
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ARTICLE XVII
GENERAL PROVISIONS
Section 17.01. Severability. The invalidity of any provision of this Lease
as determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
Section 17.02. Agreed Rate Interest on Past-Due Obligations. Except as
expressly herein provided, any amount due to either party not paid when due
shall bear interest at the Bank of America prime rate plus one percent (1%)
("Agreed Rate"). Payment of such interest shall not excuse or cure any default
by Lessee under this Lease. Despite any other provision of this Lease, the total
liability for interest payments shall not exceed the limits, if any, imposed by
the usury laws of the State of California. Any interest paid in excess of those
limits shall be refunded to the payor by application of the amount of excess
interest paid against any sums outstanding in any order that payee requires. If
the amount of excess interest paid exceeds the sums outstanding, the portion
exceeding those sums shall be refunded in cash to the payor by the payee. To
ascertain whether any interest payable exceeds the limits imposed, any
nonprincipal payment (including late charges) shall be considered to the extent
permitted by law to be an expense or a fee, premium, or penalty rather than
interest.
Section 17.03. Time of Essence. Time is of the essence in the performance
of all obligations under this Lease.
Section 17.04. Additional Rent. Any monetary obligations of Lessee to
Lessor under the terms of this Lease shall be deemed to be Additional Rent and
Lessor shall have all the rights and remedies for the nonpayment of same as it
would have for nonpayment of Base Rent, except that the one year requirement of
Code of Civil Procedure Section 1161(2) shall apply only to scheduled
installments of Base Rent and not to any Additional Rent. All references to
"rent" (except specific references to either Base Rent or Additional Rent) shall
mean Base Rent and Additional Rent.
Section 17.05. Incorporation of Prior Agreements, Amendments and Exhibits.
This Lease (including Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M and N
contains all agreements of the parties with respect to any matter mentioned
herein. No prior agreement or understanding pertaining to any such matter shall
be effective. This Lease may be modified in writing only, signed by the parties
in interest at the time of the modification. Except as otherwise stated in this
Lease, Lessee hereby acknowledges that neither the Lessor nor any employees or
agents of the Lessor has made any oral or written warranties or representations
to Lessee relative to the condition or use by Lessee of said Premises and Lessee
acknowledges that Lessee assumes all responsibility regarding the Occupational
Safety Health Act, the legal use and adaptability of the Premises and the
compliance thereof with all applicable laws and regulations in effect during the
Lease Term except as otherwise specifically stated in this Lease. Neither party
has been induced to enter into this Lease by, and neither party is relying on,
any representation or warranty outside those expressly set forth in this Lease.
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Section 17.06. Notices.
(a) Written Notice. Any notice required or permitted to be given hereunder
shall be in writing and shall be given by a method described in paragraph (b)
below and shall be addressed to Lessee or to Lessor at the addresses noted
below, next to the signature of the respective parties, as the case may be.
Either party may by notice to the other specify a different address for notice
purposes. A copy of all notices required or permitted to be given to Lessor
hereunder shall be concurrently transmitted to such party or parties at such
addresses as Lessor may from time-to-time hereafter designate by notice to
Lessee, but delay or failure of delivery to such person shall not affect the
validity of the delivery to Lessor or Lessee.
(b) Methods of Delivery:
(i) When personally delivered to the recipient, notice is effective
on delivery. Delivery to the person apparently designated to receive deliveries
at the subject address is personally delivered if made during business hours
(e.g. receptionist).
(ii) When mailed by certified mail with return receipt requested,
notice is effective on receipt if delivery is confirmed by a return receipt.
(iii) When delivery by overnight delivery Federal
Express/Airborne/United Parcel Service/DHL WorldWide Express with charges
prepaid or charged to the sender's account, notice is effective on delivery if
delivery is confirmed by the delivery service.
(c) Refused, Unclaimed or Undeliverable Notices. Any correctly addressed
notice that is refused, unclaimed, or undeliverable because of an act or
omission of the party to be notified shall be considered to be effective as of
the first date that the notice was refused, unclaimed, or considered
undeliverable by the postal authorities, messenger, or overnight delivery
service.
Section 17.07. Waivers. No waiver of any provision hereof shall be deemed
a waiver of any other provision hereof or of any subsequent breach of the same
or any other provisions. Any consent to, or approval of, any act shall not be
deemed to render unnecessary the obtaining of consent to or approval of any
subsequent act. The acceptance of rent hereunder by Lessor shall not be a waiver
of any preceding breach by Lessee of any provision hereof, other than the
failure of Lessee to pay the particular rent so accepted, regardless of Lessor's
knowledge of such preceding breach at the time of acceptance of such rent.
Section 17.08. Recording. Either Lessor or Lessee shall, upon request of
the other, execute, acknowledge and deliver to the other a "short form"
memorandum of this Lease for recording purposes, provided that Lessee shall also
simultaneously execute in recordable form and deliver to Lessor a Quit Claim
Deed as to its leasehold and any other interest in the Premises and hereby
authorizes Lessor to date and record the same only upon the expiration or sooner
termination of this Lease.
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Section 17.09. Surrender of Possession; Holding Over.
(a) At the expiration of the Lease, Lessee agrees to deliver up and
surrender to Lessor possession of the Premises and all improvements thereon
broom clean and, in as good order and condition as when possession was taken by
Lessee, excepting only ordinary wear and tear (wear and tear which could have
been avoided by first class maintenance practices and in accordance with
industry standards shall not be deemed "ordinary"). Upon expiration or sooner
termination of this Lease, Lessor may reenter the Premises and remove all
persons and property therefrom. If Lessee shall fail to remove any personal
property which it is entitled or obligated to remove from the Premises upon the
expiration or sooner termination of this Lease, for any cause whatsoever,
Lessor, at its option, may remove the same and store or dispose of them, and
Lessee agrees to pay to Lessor on demand any and all expenses incurred in such
removal and in making the Premises free from all dirt, litter, debris and
obstruction, including all storage and insurance charges. If the Premises are
not surrendered at the end of the Lease Term, Lessee shall indemnify Lessor
against loss or liability resulting from delay by Lessee in so surrendering the
Premises, including, without limitation, actual damages for lost rent and with
respect to any claims of a successor occupant.
(b) If Lessee, with Lessor's prior written consent, remains in possession
of the Premises after expiration of the Lease Term and if Lessor and Lessee have
not executed an express written agreement as to such holding over, then such
occupancy shall be a tenancy from month to month at a monthly Base Rent
equivalent to 125% (for the first three months of holdover) and thereafter 150%
of the monthly rental in effect immediately prior to such expiration, such
payments to be made as herein provided for Base Rent. In the event of such
holding over, all of the terms of this Lease, including the payment of
Additional Rent all charges owing hereunder other than rent shall remain in
force and effect on said month to month basis.
Section 17.10. Cumulative Remedies. No remedy or election hereunder by
Lessor shall be deemed exclusive but shall, wherever possible, be cumulative
with all other remedies at law or in equity, provided that notice and cure
periods set forth in Article XII are intended to extend and modify statutory
notice provisions to the extent expressly stated in Section 12.01.
Section 17.11. Covenants and Conditions. Each provision of this Lease to
be observed or performed by Lessee shall be deemed both a covenant and a
condition.
Section 17.12. Binding Effect; Choice of Law. Subject to any provisions
hereof restricting assignment or subletting by Lessee and subject to the
provisions of Article XVI, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State of California and any legal or equitable action or proceeding
brought with respect to the Lease or the Premises shall be brought in Santa
Clara County, California.
Section 17.13. Lease to be Subordinate. Lessee agrees that this Lease is
and shall be, at all times, subject and subordinate to the lien of any mortgage
or other encumbrances which Lessor may create during the Lease Term against the
Premises including all renewals, replacements and extensions thereof provided,
however, that regardless of any default under any
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such mortgage or encumbrance or any sale of the Premises under such mortgage, so
long as Lessee timely performs all covenants and conditions of this Lease and
continues to make all timely payments hereunder, this Lease and Lessee's
possession and rights hereunder shall not be disturbed by the mortgagee or
anyone claiming under or through such mortgagee. Lessee shall execute any
documents subordinating this Lease within ten (10) days after delivery of same
by Lessor so long as the Lender agrees therein that this Lease will not be
terminated if Lessee is not in default following a foreclosure, including,
without limitation, any Subordination Non-Disturbance and Attornment Agreement
("SNDA") which is substantially in the form attached hereto as Exhibit "F."
Lessor shall also utilize its commercially reasonable efforts to obtain a
non-disturbance agreement from any existing lender.
Section 17.14. Attorneys' Fees. If either party herein brings an action to
enforce the terms hereof or to declare rights hereunder, the prevailing party in
any such action, on trial or appeal, shall be entitled to recover its reasonable
attorneys' fees, expert witness fees and costs as fixed by the Court.
Section 17.15. Signs. Lessee shall not place any sign upon the exterior of
any Building without Lessor's prior written consent, which consent shall not be
unreasonably withheld and which consent is hereby given to the signage described
in Exhibit "G" hereto. Lessee, at its sole cost and expense, after obtaining
Lessor's prior written consent, shall install, maintain and remove prior to
expiration of this Lease (or within ten (10) days after any earlier termination
of this Lease) all signage in full compliance with (i) all applicable law,
statutes, ordinances and regulations and (ii) all provisions of this Lease
concerning Alterations.
Section 17.16. Merger. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, or a termination by Lessor, shall not
work a merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to Lessor
of any or all of such subtenancies.
Section 17.17. Guarantor. [Intentionally Omitted] [Exhibit H]
Section 17.18. Quiet Possession. Upon Lessee timely paying the rent for
the Premises and timely observing and performing all of the covenants,
conditions and provisions on Lessee's part to be observed and performed
hereunder, Lessee shall have quiet possession of the Premises for the entire
Lease Term, subject to all of the provisions of this Lease.
Section 17.19. Easements. Lessor reserves to itself the right, from
time-to-time, to grant such easements, rights and dedications that Lessor deems
necessary or desirable, and to cause the recordation of Parcel Maps and
restrictions, so long as such easements, rights, dedications, Maps and
restrictions do not unreasonably interfere with the use of the Premises by
Lessee. Lessee shall sign any of the aforementioned or other documents, and take
such other actions, which are reasonably necessary or appropriate to accomplish
such granting and recordation, upon request of Lessor, and failure to do so
within ten (10) business days of a written request to do so shall constitute a
material breach of this Lease.
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Section 17.20. Authority. Each individual executing this Lease on behalf
of a corporation, limited liability company or partnership represents and
warrants that he or she is duly authorized to execute and deliver this Lease on
behalf of such entity in accordance with a duly adopted resolution of the
governing group of the entity empowered to grant such authority, and that this
Lease is binding upon said entity in accordance with its terms. Each party shall
provide the other with a certified copy of its resolution within ten (10) days
after execution hereof, but failure to do so shall in no manner (i) be evidence
of the absence of authority or (ii) affect the representation or warranty. It is
understood that this Lease shall not be binding on Lessor unless and until
Lessor shall have executed same and delivered a fully executed copy of this to
Lessee.
Section 17.21. Force Majeure Delays. In any case where either party hereto
is required to do any act (other than the payment of money), delays caused by or
resulting from Acts of God or Nature, war, civil commotion, fire, flood or other
casualty, labor difficulties, shortages of labor or materials or equipment,
unplanned delays in governmental permitting or approval process, government
regulations, unusually severe weather, or other causes beyond such party's
reasonable control the time during which act shall be completed, shall be deemed
to be extended by the period of such delay, whether such time be designated by a
fixed date, a fixed time or "a reasonable time."
Section 17.22. Hazardous Materials.
(a) Definition of Hazardous Materials and Environmental Laws. "Hazardous
Materials" means any (a) substance, product, waste or other material of any
nature whatsoever which is or becomes listed regulated or addressed pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. sections 9601, et seq. ("CERCLA"); the Hazardous Materials Transportation
Act ("HMTA") 49 U.S.C. section 1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. section 6901, et seq. ("RCRA"); the Toxic Substances
Control Act, 15 U.S.C. sections 2601, et seq. ("TSCA"); the Clean Water Act, 33
U.S.C. sections 1251, et seq.; the California Hazardous Waste Control Act,
Health and Safety Code sections 25100, et seq.; the California Hazardous
Substances Account Act, Health and Safety Code sections 26300, et seq.; the
California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code
sections 25249.5, et seq.; California Health and Safety Code sections 25280, et
seq.; (Underground Storage of Hazardous Substances); the California Hazardous
Waste Management Act, Health and Safety Code sections 25170.1, et seq.;
California Health and Safety Code sections 25501. et seq. (Hazardous Materials
Response Plans and Inventory); or the Porter-Cologne Water Quality Control Act,
California Water Code sections 13000, et seq., all as amended, or any other
federal, state or local statute, law, ordinance, resolution, code, rule,
regulation, order or decree regulating, relating to or imposing liability
(including, but not limited to, response, removal and remediation costs) or
standards of conduct or performance concerning any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereafter may be in effect
(collectively, "Environmental Laws"); (b) any substance, product, waste or other
material of any nature whatsoever whose presence in and of itself may give rise
to liability under any of the above statutes or under any statutory or common
law theory based on negligence, trespass, intentional tort, nuisance, strict or
absolute liability or under any reported decisions of a state or federal court,
(c) petroleum or crude oil, including but
33
<PAGE>
not limited to petroleum and petroleum products contained within regularly
operated motor vehicles and (d) asbestos.
(b) Lessor's Representations and Disclosures. Lessor represents that it
has provided Lessee with a description of the Hazardous Materials on or beneath
the Property as of the date hereof, attached hereto as Exhibit I and
incorporated herein by reference. Lessee acknowledges that in providing the
attached Exhibit I, Lessor has satisfied its obligations of disclosure pursuant
to California Health & Safety Code Section 25359.7 which requires:
"Any owner of nonresidential real property who knows, or has reasonable
cause to believe, that any release of hazardous substances has come to be
located on or beneath that real property shall, prior to the sale, lease or
rental of the real property by that owner, give written notice of that condition
to the buyer, lessee or renter of the real property."
(c) Use of Hazardous Materials. Lessee shall not cause or permit any
Hazardous Materials to be brought upon, kept or used in, on or about the
Property by Lessee, its agents, employees, contractors, licensee, guests,
visitors or invitees without the prior written consent of Lessor. Lessor shall
not unreasonably withhold such consent so long as Lessee demonstrates to
Lessor's reasonable satisfaction that such Hazardous Materials are necessary or
useful to Lessee's business and will be used, kept and stored in a manner that
complies with all applicable Environmental Laws. Lessee shall, at all times,
use, keep, store, handle, transport, treat or dispose all such Hazardous
Materials in or about the Property in compliance with all applicable
Environmental Laws. Lessee shall remove all Hazardous Materials used or brought
onto the Property during the Lease Term from the Property prior to the
expiration or earlier termination of the lease.
(d) Use of Property. Lessee shall not use the Property in any manner that
could cause or contribute to the migration or release of any existing
contamination and shall not interfere with response actions taken on or around
the Property.
(e) Lessee's and Lessor's Environmental Indemnity. Lessee agrees to
indemnify and hold Lessor harmless from any liabilities, losses, claims,
damages, penalties, fines, attorney fees, expert fees, court costs, remediation
costs, investigation costs, or other expenses resulting from or arising out of
the use, storage, treatment, transportation, release, presence, generation, or
disposal of Hazardous Materials on, from or about the Property, and/or
subsurface or ground water, after the Commencement Date from an act or omission
of Lessee (or Lessee's successor), its agents, employees, invitees, vendors,
contractors, guests or visitors. Lessor agrees to indemnify and hold Lessee
harmless from any liabilities, losses, claims, damages, penalties, fines,
attorney fees, expert fees, court costs, remediation costs, investigation costs,
or other expenses resulting from or arising out of the use, storage, treatment,
transportation, release, presence, generation, or disposal of Hazardous
Materials on, from or about the Property, and/or subsurface or ground water,
prior to the Commencement Date from an act or omission of Lessor (or Lessor's
predecessor), its agents, employees, invitees, vendors, contractors, guests or
visitors.
34
<PAGE>
(f) Lessee's Obligation to Promptly Remediate. If the presence of
Hazardous Materials on the Premises after the Commencement Date results from an
act or omission of Lessee (or Lessee's successors), its agents, employees,
invitees, vendors, contractors, guests, or visitors results in contamination or
deterioration of the Property or any water or soil beneath the Property, Lessee
shall promptly take all action necessary or appropriate to investigate and
remedy that contamination, at its sole cost and expense, provided that Lessor's
approval of such action shall first be obtained. Lessor's approval shall not be
unreasonably withheld.
(g) Notification. Lessor and Lessee each agree to promptly notify the
other of any communication received from any governmental entity concerning
Hazardous Materials or the violation of Environmental Laws that relate to the
Property.
Section 17.23. Modifications Required by Lessor's Lender. If any lender of
Lessor requires a modification of this Lease that will not increase Lessee's
cost or expense or materially and adversely change Lessee's rights and
obligations, this Lease shall be so modified and Lessee shall execute whatever
documents are required by such lender and deliver them to Lessor within ten (10)
days after the request.
Section 17.24. Brokers. Lessor and Lessee each represents to the other
that it has had no dealings with any real estate broker or agent in connection
with the negotiation of this Lease, except for the real estate brokers or agents
identified on the signature page hereof ("Brokers") and that they know of no
other real estate broker or agent who is entitled to a commission or finder's
fee in connection with this Lease. Each party shall indemnify, protect, defend,
and hold harmless the other party against all claims, demands, losses,
liabilities, lawsuits, judgments, and costs and expenses (including reasonable
attorney fees) for any leasing commission, finder's fee, or equivalent
compensation alleged to be owning on account of the indemnifying party's
dealings with any real estate broker or agent other than the Brokers. The terms
of this Section 17.24 shall survive the expiration or earlier termination of the
Lease Term.
Section 17.25. Right of First Offer to Lease Adjacent Project.
(a) If Lessor enters into a Purchase and Sale Agreement to purchase
certain real property which is adjacent to the Project and which is depicted on
Exhibit "N" hereto and on which Lessor desires to develop an additional
office/research and development project "Adjacent Project," Lessee shall have a
right of first offer ("Right of First Offer") to lease the Adjacent Project
subject to paragraphs (b) through (g) below.
(b) This Section 17.25 shall automatically and permanently become null and
void if at the time Lessor enters into the aforesaid Purchase and Sale Agreement
or at the time Lessee exercises the Right of First Offer: (i) this Lease is not
in full force and effect, (ii) Lessee is in default beyond any expressly notice
and cure period provided under this Lease, and (iii) Lessee's then current
financial condition, as revealed by its most recent financial statements (which
shall include quarterly and annual financial statements, including income
statements, balance sheets, and cash flow statements), fail to demonstrate that
either: (1) Lessee's net worth is at least equal to its net worth at the time
this Lease was signed; or (2) Lessee meets other financial criteria acceptable
to Lessor in its sole discretion.
35
<PAGE>
(c) If Lessee is not in default beyond any express notice and cure period
provided under this Lease when Lessor enters into said Purchase and Sale
Agreement or at the time Lessee exercises its Right of First Offer, Lessor shall
not lease the Adjacent Project to another lessee unless and until Lessor has
first offered it to Lessee in writing (the "Offer Notice") and either (i) Lessee
rejects such offer or (ii) a period of five (5) business days has elapsed from
the date that Lessor has delivered the Offer Notice to Lessee, without Lessee
having notified Lessor in writing of its acceptance of such Offer Notice,
delivered a signed Lease and supplied Lessor with current financial statements
pursuant to Section 17.25 (b), whichever event occurs first. The Offer Notice
shall contain the following information: (a) a general description of the number
of buildings to be built and the approximate rentable square feet of each, (b)
the date on which the Lessor expects the lease term to commence, (c) the base
rent. There shall be attached to the Offer Notice a form of written Lease
containing such other terms and conditions upon which Lessor wishes to lease the
Adjacent Project.
(d) If Lessee timely delivers to Lessor, in accordance with the conditions
of this Section 17.25, written notice of Lessee's acceptance of the Offer Notice
together with a signed Lease (without modification of any kind) and Lessee's
financial statements and Lessor determines pursuant to Section 17.25(b) that
Lessee meets all of the conditions provided in this Section 17.25, then Lessee
shall be deemed to have duly exercised its right hereunder and Lessor shall
execute the Lease.
(e) If Lessee declines or fails to duly and timely accept the Offer Notice
and to return same with the signed Lease and financial statements as provided in
Section 17.25(d), or fails to meet all of the conditions provided in Section
17.25(b), this Section 17.25 shall automatically become null and void and have
no further force and effect and Lessor shall thereafter be free to lease the
Adjacent Project in portions or in its entirety to any tenant at any time
without regard to the restrictions in this Section 17.25 and on whatever terms
and conditions Lessor may decide in its sole discretion, without again complying
with all the provisions of this Section 17.25.
(f) This Right of First Offer is personal to the Lessee signing this Lease
and shall become null and void upon the occurrence of an assignment of the Lease
or a sublet of all or more than fifty percent (50%) of the Rentable Area of the
Premises for the remainder of the Lease Term other than to an Affiliate of said
Lessee.
(g) This Right of First Offer shall become null and void upon the
occurrence of any transfer of title to the Premises or Project by Lessor,
including without limitation, by foreclosure or otherwise.
Section 17.26. Right of First Offer to Purchase Premises. Should Lessor
determine at any time during the Lease Term that it intends to sell the
Premises, and Lessee is not then in default beyond any express notice and cure
period provided under this Lease, it shall notify Lessee of the terms and
conditions on which it wishes to sell in the form of a Purchase and Sale
Agreement which shall have terms and conditions sufficient to constitute a
binding contract (once signed by both parties) to accomplish the purchase and
sale and which terms and conditions shall otherwise be in the sole discretion of
Lessor. If Lessee does not sign and hand-
36
<PAGE>
deliver the signed Purchase and Sale Agreement to Lessor (without modification
of any kind) within five (5) business days after Lessor delivers same to Lessee,
or if Lessee fails to provide with said signed Purchase and Sale Agreement
financial statements demonstrating that Lessee's net worth is at least equal to
its net worth at the time this Lease is executed, or if Lessee fails to timely
perform all of its obligations under the Purchase and Sale Agreement or the
escrow established thereunder is terminated for any reason, this Section 17.26
shall automatically become null and void and have no further force and effect
and Lessor shall thereafter be free to sell the Premises or Project in portions
or in its entirety to any buyer at any time without regard to the restrictions
in this Section 17.26 and on whatever terms and conditions Lessor may decide in
its sole discretion, without again complying with any of the provisions of this
Section 17.26. This Right of First Offer is personal to the Lessee signing this
Lease and shall become null and void upon the occurrence of an assignment of the
Lease or a sublet of all or more than fifty percent (50%) of the Premises for
the remainder of the Lease Term other than to an Affiliate of said Lessee. This
Right of First Offer shall become null and void upon the occurrence of any
transfer of title to the Premises or Project by Lessor, including without
limitation, by foreclosure or otherwise. This Right of First Offer shall be
subordinate to the lien of any deed of trust recorded against the Project or
Premises at any time. This Right of First Offer shall not apply with respect to
any transfer of title or other interest in the Project or Premises to an entity
which is an "Affiliate" of Lessor (as that Lessor is used herein Section 11.02
to describe entity relationships of Lessee) or to Lehman Brothers or any entity
related to Lehman Brothers.
Section 17.27 List of Exhibits.
Ref. Page
EXHIBIT A: Real Property Legal Description,
Site Plan, and Building Elevations
EXHIBIT B: Plans and Specifications for Shell Buildings
EXHIBIT C: Work Letter Agreement for Tenant.
Improvements and Interior Specification Standards
EXHIBIT D: Cost Responsibilities of Lessor and Lessee
EXHIBIT E: Memorandum of Commencement of Lease
Term and Schedule of Base Rent
EXHIBIT F: SNDA
EXHIBIT G: Signage Exhibit
EXHIBIT H: Guaranty of Lease [Intentionally Omitted]
EXHIBIT I: Hazardous Materials Disclosure
37
<PAGE>
EXHIBIT J: [Intentionally omitted]
EXHIBIT K: [Intentionally omitted]
EXHIBIT L: Rules and Regulations
EXHIBIT M: Moffett Park TDM Plan
EXHIBIT N: Adjacent Project
38
<PAGE>
LESSOR AND LESSEE EACH HAS CAREFULLY READ AND HAS REVIEWED THIS LEASE AND BEEN
ADVISED BY LEGAL COUNSEL OF ITS OWN CHOOSING AS TO EACH TERM AND PROVISION
CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOWS ITS INFORMED AND
VOLUNTARY CONSENT THERETO. EACH PARTY HEREBY AGREE THAT, AT THE TIME THIS LEASE
IS EXECUTED, THE TERMS AND CONDITIONS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
Executed at San Jose, California, as of the reference date.
LESSOR: ADDRESS:
MOFFET PARK DRIVE LLC, c/o Jay Paul Company
a California limited liability 353 Sacramento Street, Suite 1740
company San Francisco, California 94111
By: GATEWAY LAND COMPANY, INC.
A California corporation,
Managing Member With a copy to:
By:___________________________ Thomas G. Perkins, Esq.
Jay Paul, President 99 Almaden Blvd., 8th Floor
San Jose, CA 95113
Telephone: 408/993-9911
Facsimile: 408-286.3312
LESSEE: ADDRESS:
ARIBA, INC.
a Delaware corporation
1565 Charleston Road
Mountain View, CA 94041
By: /s/ Edward P. Kinsey ATTN: Chief Financial Officer
-----------------------------------
Edward P. Kinsey 1111 Lockheed Martin Way
(Type or print name) Sunnyvale, CA 94089
Its: Edward P. Kinsey
----------------------------------
Vice President- Finance
Chief Financial Officer (After Commencement Date)
Copies to:
Ariba - Real Estate Dept. and
Ariba - Legal Dept.
1111 Lockheed Martin Way
Sunnyvale, CA 94089
39
<PAGE>
BROKER EXECUTION
By signing below, the indicated real estate broker or agent is not being
made a party hereto but is signifying its agreement with the provisions hereof
concerning brokerage.
LESSOR's BROKER: ADDRESS:
Cornish & Carey Commercial 2804 Mission College Boulevard
Suite 120
Santa Clara, California 95054
By:
---------------------------
Phil Mahoney
(Type or print name)
Its: Executive Vice President
-------------------------
LESSEE's BROKER: ADDRESS:
Cushman & Wakefield 2055 Gateway Place, Suite 550
San Jose, California 95110
By:
---------------------------
John McMann
(Type or print name)
Its: Associate Director
40
<PAGE>
EXHIBIT A
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin, Way
Sunnyvale, California
REAL PROPERTY LEGAL DESCRIPTION,
SITE PLAN AND BUILDING ELEVATIONS
(See Attached)
<PAGE>
[Moffett Park
Sunnyvale, California]
[site plan]
<PAGE>
Lockheed Way Elevation
Moffett park drive Elevation
[Moffett Park
Sunnyvale, California]
<PAGE>
Order No. 617852
Page No. 7
LEGAL DESCRIPTION
REAL PROPERTY in the City of Sunnyvale, County of Santa Clara, State of
California, described as follows:
PARCEL ONE:
Commencing at the point of intersection of the Westerly line of that certain
parcel of land conveyed to Lockheed Aircraft Corporation, by Deed recorded
February 1, 1956 in Book 3403, at page 27, Official Records of Santa Clara
County, with the Northerly line of the existing State Highway in Santa Clara
County, Road IV-SC1-88-B (Bayshore Highway); thence along said Westerly line,
North 15(degrees) 22' 44" East 811.7 feet to the true point of beginning of the
parcel to be described; thence from said true point of beginning, leaving said
line and going along the line of lands to be acquired by the Division of
Highways, South 5(degrees) 45' 46" West 230.86 feet; thence along a curve to the
left with a radius of 284.00 feet, through a central angle of 1(degree) 16' 18",
an arc distance of 55.87 feet to a point of compound curvature; thence along the
arc of a curve to the left with a radius of 41.00 feet, through a central angle
of 63(degrees) 58' 31", an arc distance of 45.78 feet; thence South 69(degrees)
29' 03" East 185.61 feet; thence on the arc of a curve, to the left with a
radius of 410.00 feet (the tangent to said curve at the point of beginning bears
South 60(degrees) 69' 31" East), through a central angle of 20(degrees) 55' 04",
an arc distance of 149.68 feet; thence North 78(degrees) 05' 25" East 269.53
feet; thence on the arc of a curve to the left with a radius of 1924.00 feet,
through a central angle of 5(degrees) 24' 34", an arc distance of 181.65 feet;
thence North 72(degrees) 40' 51" East 601.58 feet; thence on the arc of a curve
to the left with radius of 960.00 feet, through a central angle of 6(degrees)
52' 02", an arc distance of 115.06 feet; thence continuing along said line to be
conveyed to the Division of Highways, North 65(degrees) 48' 49" East 146.38 feet
to a point in the Easterly line of said parcel, said point bears North
14(degrees) 52' 20" East 359.40 feet from the center line of the existing State
Highway in Santa Clara County, Road 4-SC1-113-A; thence along said Easterly line
of said parcel, North 14(degrees) 52' 20" East 454.56 feet to the Southeasterly
corner of that certain 82.703 acre tract shown on Record of Survey of a portion
of Lot 5A of the Murphy Partition of the Rancho Pastoria De Las Borregas, filed
for record February 7, 1957 in Book 78 of Maps, at page 32, Santa Clara County
Records; thence along the Southwesterly line of said 82.703 acre parcel, North
75(degrees) 07' 40" West (called North 76(degrees) 08' West on said Record of
Survey), 1520.01 feet to the Westerly line of that certain tract of land
hereinabove referred to, a description of which was recorded in Book 3403, at
page 27, Official Records of Santa Clara County; thence along the Westerly line
of said tract, South 15(degrees) 22' 44" West 860.31 feet to the true point of
beginning.
EXCEPTING THEREFROM that portion thereof described in the deed to the United
States of America, recorded September 18, 1968 in Book 8265, page 381, Official
Records, and more particularly described as follows:
Beginning at the intersection of the Northerly line of the lands conveyed to the
State of California and recorded in Book 4035 of Official Records, at page 591,
in the Office of the County Recorder of the County of Santa Clara, State of
California with the Easterly line of Lot 5A of the "Partition of that part of
the Rancho Pastoria De Las Borregas patented to Martin Murphy, Jr." and recorded
in volume G of Maps, at pages 74 and 76 in the Office of the County Recorder,
County of Santa Clara, State of California; thence along the Northerly line of
the lands conveyed to the State of California, South 65(degrees) 49' 50" West
147.52 feet; thence along the arc of a tangent curve to the right, having a
radius of 960.00 feet, through a central angle of 6(degrees) 52' 02", a distance
of 115.06 feet; thence South 72(degrees) 41' 52" West 133.33 feet; thence
leaving said Northerly line, North 14(degrees) 52' 20" East 636.00 feet; thence
South 75(degrees) 07' 40" East 320.92 feet to a point on the Easterly line of
the above mentioned Lot 5A; thence along said Easterly line of Lot 5A, South
14(degrees) 52' 20" West 455.22 feet to the point of beginning.
(LEGAL DESCRIPTION CONTINUED NEXT PAGE)
<PAGE>
Order No. 517852
Page No. 8
LEGAL DESCRIPTION: (Continued)
ALSO EXCEPTING THEREFROM that portion thereof described as "PARCEL 2101-A" in
the deed to the Santa Clara County Transit District recorded September 26, 1997,
Document No. 13874485, Official Records, and more particularly described as
follows:
Beginning at the Southerly terminus of the Easterly line of that certain 27.765
acre parcel as said parcel is shown on that certain Record of Survey filed in
Book 283 of Maps, page 10; Records of Santa Clara County, California; thence
Northerly along said Easterly line of said 27.755 acre parcel, the following two
(2) described courses: 1) North 15(degrees) 45' 47" East 0.73 feet to the true
point of beginning of this description; 2) continuing North 15(degrees) 45' 47"
East 45.87 feet to the beginning of a nontangent curve concave Northerly with a
radius of 2739.00 feet; thence leaving said Easterly line of said 27.755 acre
parcel from a tangent bearing of South 74(degrees) 51' 31" West along said curve
(with a radius of 2739.00 feet) through a central angle of 12(degrees) 37' 47"
and an arc length of 603.76 feet to the beginning of a compound curve concave
Northerly with a radius of 3655.70 feet; thence Westerly along the last said
curve (with a radius of 3655.70 feet) through a central angle of 1(degree) 33'
45" and an arc length of 99.70 feet; thence South 89(degrees) 03' 03" West
552.58 feet to the Westerly line of said 27.755 acre parcel and to Point "A";
thence Southerly along said Westerly line of said 27.755 acre parcel, the
following two (2) described courses: 1) South 6(degrees) 41' 08" West 10.31 feet
to the beginning of a curve concave Easterly with a radius of 284.00 feet) 2)
Southerly along the last said curve (with a radius of 284.00 feet) through a
central angle of 5(degrees) 49' 42" and an arc length of 28.89 feet; thence
leaving said Westerly line of said 27.755 acre parcel North 89(degrees) 03' 03"
East 597.76 feet to the beginning of a curve concave Northerly (with a radius of
2647.00 feet); thence Easterly along the last said curve (with a radius of
2647.00 feet) through a central angle of 14(degrees) 02' 05" and an arc length
of 648.39 feet to the true point of beginning.
ALSO EXCEPTING THEREFROM that portion thereof described in the deed to The City
of Sunnyvale recorded December 23, 1998, Document No. 14567148, Official Records
and more particularly described as follows:
Beginning at the most Southeasterly corner of said 27.755 acre parcel of land,
as said parcel is shown on that certain Record of Survey filed in Book 263 of
Maps, page 10, Records of Santa Clara County, California, said corner also being
on the Northerly right-of-way line of the lands described in the Deed to the
State of California, recorded on March 21, 1958 in Book 4035 of Official
Records, page 591, Records of Santa Clara County; thence along the Southerly
line of said 27.755 acre parcel of land, and along said Northerly right-of-way
line, the following seven (7) courses: 1) South 72(degrees) 40' 61" West 467.92
feet to the beginning of a curve to the right having a radius of 1924.00 feet;
2) along said curve through a central angle of 05(degrees) 24' 34" for an arc
length of 181.65 feet; 3) South 78(degrees) 05' 25" West 269.53 feet to the
beginning of a curve to the right having a radius of 410.00 feet; 4) along said
curve through a central angle of 20(degrees) 55' 04" for an arc length of 149.68
feet; 5) North 69(degrees) 29' 03" West 185.61 feet to the beginning of a curve
to the right having a radius of 41.00 feet; 6) along said curve through a
central angle of 63(degrees) 68' 31" for an arc length of 45.78 feet to the
beginning of a curve to the right having a radius of 284,00 feet; 7) along said
curve through a central angle of 05(degrees) 27' 01" for an arc length of 27.02
feet; thence leaving last said lines along the Southerly proposed acquisition
line for the area designated as 2101-A, as shown on the Santa Clara County
Transportation Agency Tasman Corridor Project Appraisal Map, dated March 22,
1998, the following two (2) courses: 1) North 88(degrees) 09' 49" East 597.97
feet to the beginning of a curve to the left, having a radius of 2647.00 feet;
2) along said curve, through a central angle of 14(degrees) 02' 05" for an arc
length of 648.39 feet to a point on the Easterly line of said 27.755 acre parcel
of land; thence along said Easterly line South 14(degrees) 52' 20" West 0.72
feet to the point of beginning of this description.
(LEGAL DESCRIPTION CONTINUED NEXT PAGE)
<PAGE>
Order No. 517852
Page No. 9
LEGAL DESCRIPTION: (Continued)
PARCEL TWO:
All that certain real property, being a portion of that certain Relinquishment
from the State of California to the City of Sunnyvale (Request 40500) recorded
as Segment 1 in Document 14249920 in the Official Records of Santa Clara County,
California, and being more particularly described as follows:
Beginning at the most Northerly point of Parcel 1, as said Parcel 1 is described
in that certain Relinquishment No. 22171 as said Relinquishment is recorded in
Book 6174, pages 121-125, Official Records of Santa Clara County, California,
said point being on the Westerly line of said Segment 1 of said Relinquishment
to the City of Sunnyvale; thence Southerly along the generally Easterly line of
said Parcel 1 (generally Westerly line of said Segment 1) the following seven
(7) courses: 1) South 15(degrees) 18' 06" West 106.20 feet; 2) North 73(degrees)
43' 54" West 18.26 feet to the beginning of a nontangent curve concave Southerly
with a radius of 19.00 feet; 3) from a tangent bearing of North 63(degrees) 58'
29" West along said curve (with a radius of 19.00 feet) through a central angle
of 67(degrees) 23' 17" and an arc length of 22.35 feet to the beginning of a
compound curve concave Southeasterly with a radius of 74.00 feet; 4)
Southwesterly along the last said curve (with a radius of 74.00 feet) through a
central angle of 50(degrees) 48' 34" and an arc length of 65.62 feet; 5) South
2(degrees) 10' 20" East 150.75 feet to the beginning of a curve concave Westerly
with a radius of 118.00 feet; 6) Southerly along the last said curve (with a
radius of 118.00 feet) through a central angle of 18(degrees) 26' 26" and an arc
length of 37.98 feet; 7) South 16(degrees) 16' 06" West 316.73 feet; thence
leaving said generally Easterly line of Parcel 1 (generally Westerly line of
Segment 1) North 89(degrees) 03' 03" East 74.12 feet to the Westerly line of
that certain 27.755 acre parcel of land shown on that certain Record of Survey
filed in Book 263 of Maps, page 10, Records of Santa Clara County and to the
Easterly line of said Segment 1 of said Relinquishment to the City of Sunnyvale;
thence Northerly along said Westerly line of said 27.755 acre parcel (Easterly
line of Segment 1) the following two (2) described courses: 1) North 6(degrees)
41' 08" East 133.77 feet; 2) North 16(degrees) 16' 11" East 683.38 feet; thence
leaving said Westerly line of said 27.755 acre parcel (Easterly line of Segment
1) Westerly along the Northerly line of said Segment 1, North 73(degrees) 43'
49" West 40.00 feet to said generally Westerly line of Segment 1; thence
Southerly along said generally Westerly line of Segment 1 South 22(degrees) 16'
03" West 163.27 feet to the point of beginning.
PARCEL THREE:
All of that certain property being a portion of the Lands of the Santa Clara
Valley Transportation Authority, being more particularly described as follows:
Beginning at the most Northerly point of Parcel 1, as said Parcel 1 is described
in that certain Relinquishment No. 22171 as said Relinquishment is recorded in
Book 6174, Pages 121-125, Official Records of Santa Clara County, California,
thence Southerly along the generally Easterly line of said Parcel 1 the
following seven (7) described courses: 1) South 16(degrees) 16' 06" West 106.20
feet; 2) North 73(degrees) 43' 54" West 18.26 feet to the beginning of a
nontangent curve concave Southerly with a radius of 19.00 feet 3) from a tangent
bearing of North 63(degrees) 58' 29" West along said curve (with a radius of
19.00 feet) through a central angle of 67(degrees) 23' 17" and an arc length of
22.35 feet to the beginning of a compound curve concave Southeasterly with a
radius of 74.00 feet; 4) Southwesterly along the last said curve (with a radius
of 74.00 feet) through a central angle of 50(degrees) 48' 34" and an arc length
of 65.62 feet; 5) South 2(degrees) 10' 20" East 150.75 feet to the beginning of
a curve concave Westerly with a radius of 118.00 feet; 6) Southerly along the
last said curve (with a radius of 118.00 feet) through a central angle of
18(degrees) 26' 28" and an arc length of 37.98 feet; 7) South 16(degrees) 16'
06" West 376.41 feet; thence leaving said generally Easterly line of Parcel 1
South 89(degrees) 03' 03" West 48.38 feet to the
(LEGAL DESCRIPTION CONTINUED NEXT PAGE)
<PAGE>
Order No. 517852
Page No. 10
LEGAL DESCRIPTION: (Continued)
beginning of a nontangent curve concave Westerly with a radius of 92.00 feet and
to the generally Northerly (and Westerly) line of said Parcel 1; thence
Northerly along said generally Northerly (and Westerly) line of Parcel 1, the
following six (6) described courses: 1) from a tangent bearing of North
20(degrees) 11" 22" East along the last said curve (with a radius of 92.00 feet)
through a central angle of 3(degrees) 55' 16" and an arc length of 6.30 feet; 2)
North 16(degrees) 16' 06" East 384.44 feet to the beginning of a curve concave
Westerly with a radius of 72.00 feet; 3) Northerly along the last said curve
(with a radius of 72.00 feet) through a central angle of 18(degrees) 26' 26" and
an arc length of 23.17 feet; 4) North 2(degrees) 10' 20" West 185.68 feet to the
beginning of a curve concave Southeasterly with a radius of 90.00 feet; 5)
Northeasterly along the last said curve (with a radius of 90.00 feet) through a
central angle of 93(degrees) 51' 33" and an arc length of 147.43 feet to the
beginning of a reverse curve concave Northwesterly with a radius of 50.00 feet;
6) Northeasterly along the last said curve (with a radius of 50.00 feet) through
a central angle of 69(degrees) 58' 05" and an arc length of 61.05 feet to the
point of beginning.
PARCEL FOUR:
A non-exclusive easement 30 feet in width for the purpose of ingress and egress
and utilities, as reserved in the Deed to the United States of America, recorded
September 18, 1968 in Book 8265 of Official Records, page 381, more particularly
described as follows:
Commencing at the beginning of the Parcel Two described in said Deed; thence
along the Northerly Iine of the lands conveyed to the State of California, South
65(degrees) 49' 50" West 147.52 feet; thence along the arc of a tangent curve to
the right, having a radius of 960.00 feet, through a central angle of 6(degrees)
52' 02", a distance of 116.06 feet; thence South 72(degrees) 41' 52" West 97.89
feet to the true point of beginning of the reservation; thence from said true
point of beginning of the reservation, South 72(degrees) 41' 52" West 35.44
feet; thence leaving said Northerly line, North 14(degrees) 52' 20" East 686.09
feet; thence South 75(degrees) 07' 40" East 30.00 feet; thence South 14(degrees)
52' 20" West 667.22 feet to the true point of beginning of the reservation.
PARCEL FIVE:
Storm drain easements with the right of encroachment and access for operation,
maintenance and related functions, as reserved in the Deed to the United States
of America recorded September 18, 1968 in Book 8265 of Official Records, page
381, more particularly described as follows:
Storm Drain Easement No. 1
Commencing at the beginning of Parcel Two described in said Deed; thence along
the Northerly line of the lands conveyed to the State of California, South
63(degrees) 49' 50" West 147.52 feet; thence along the arc of a tangent curve to
the right having a radius of 960.00 feet, through a central angle of 6(degrees)
52' 02", a distance of 115.06 feet; thence South 72(degrees) 41' 52" West 133.33
feet; thence leaving said Northerly line, North 14(degrees) 52' 20" East 78.00
feet to the centerline of the 10-ft. wide storm drain easement which is the true
point of beginning of the reservation of Storm Drain Easement No. 1; thence from
true point of beginning of the reservation of Storm Drain Easement No. 1. South
62(degrees) 30' 00" East 50 feet, more or less, along the centerline of the
10-ft. wide easement to the 45-ft. wide drainage easement conveyed to the Santa
Clara County Flood Control and Water Conservation District and recorded in Book
4562 of Official Records, at page 11, in the Office of the County Recorder of
the County of Santa Clara, State of California.
(LEGAL DESCRIPTION CONTINUED NEXT PAGE)
<PAGE>
Order No. 517852
Page No. 11
LEGAL DESCRIPTION: (Continued)
Storm Drain Easement No. 2
Commencing at the beginning of Parcel Two described in said Deed; thence along
the Northerly line of the lands conveyed to the State of California, South
65(degrees) 49' 50" West 147.52 feet; thence along the arc of a tangent curve to
the right, having a radius of 960.00 feet, through a central angle of 6(degrees)
52' 02", a distance of 115.06 feet; thence South 72(degrees) 41' 52" West 133.33
feet; thence leaving said Northerly line, North 14(degrees) 52' 20" East 686.09
feet; thence South 75(degrees) 07' 40" East 40.00 feet to the true point of
beginning of the reservation of Storm Drain Easement No, 2; thence from said
true point of beginning of the reservation of Storm Drain Easement No. 2, South
14(degrees) 52' 20" West 35.00 feet; thence North 75(degrees) 07' 40" West 40.00
feet; thence North 14(degrees) 52' 20" East 15.00 feet; thence South 75(degrees)
07' 40" East 30.00 feet; thence North 14(degrees) 52' 20" East 20.00 feet;
thence South 75(degrees) 07' 40" East 10.00 feet to the true point of beginning
of the reservation of Storm Drain Easement No. 2.
PARCEL SIX:
Easements described in and according to the terms and provisions set forth in
the DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS, AND RECIPROCAL
EASEMENTS (BAYSHORE/JAGELS/MANILA PARCELS) by Lockheed Martin Corporation
recorded November 9, 1999 as Instrument No. 15053464, Official Records.
APN: 110-02-067
ARB: 110-1-24; 110-2-x61, 64
<PAGE>
EXHIBIT B
TO
MOFFETT PARK DRIVE LLC
LEASE TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martino Way
Sunnyvale, California
SHELL BUILDING PLANS AND SPECIFICATIONS
(To be provided)
<PAGE>
[EXHIBIT "B" ARIBA LEASE p. 1 of 4
[FIRST FLOOR PLAN]
<PAGE>
[EXHIBIT "B" ARIBA p. 2 of 4
[SECOND FLOOR PLAN]
<PAGE>
[EXHIBIT "B" ARIBA LEASE p. 3 of 4
[THIRD FLOOR PLAN]
<PAGE>
[EXHIBIT "B" ARIBA LEASE
[FOURTH FLOOR PLAN]
<PAGE>
EXHIBIT C
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
WORK LETTER AGREEMENT FOR TENANT IMPROVEMENTS
AND INTERIOR SPECIFICATION STANDARDS
This agreement supplements the above referenced Lease executed concurrently
herewith and is as follows:
1. Lessee shall devote such time as may be necessary to enable Lessor to
complete and obtain by the respective dates specified in Section 2.04(d) of the
Lease Lessee's written approval, and approval by appropriate government
authorities, of the final Working Drawings. The Working Drawings, as they may be
modified or provided herein, shall be prepared by Lessor in accordance with the
design specified by Lessee and reasonably approved by Lessor. Lessee shall be
responsible for the suitability, for Lessee's needs and business, of the design
and function of all Tenant Improvements. All improvements to be constructed by
Lessor as shown on the Working Drawings, standard or special, shall be defined
as "Tenant Improvements." All Tenant Improvements materials shall be of a
quality equal to or greater than the quality of materials described on the
Interior Specification Standards attached hereto as Schedule One.
2. Lessor shall cause General Contractor to complete the construction of
the Tenant Improvements in a good and workmanlike manner and in substantial
accordance with the Working Drawings. Lessor shall not, however, be responsible
for procuring or installing in the Premises any trade fixtures, equipment,
furniture, furnishings, telephone equipment or other personal property
("Personal Property") to be used in the Premises by Lessee, and the cost of such
Personal Property shall be paid by Lessee. Lessee shall conform to all Project
standards in installing any Personal Property and shall be subject to any and
all rules of the site during construction.
3. Payment for the Tenant Improvements shall be pursuant to Section 2.04(g) of
the Lease.
4. Lessee shall, by signing the Working Drawings within the time set forth
in Section 2.04 (d) of the Lease, give Lessor authorization to complete the
Tenant Improvements in accordance with such Working Drawings. If Lessee shall
request any change, addition or alteration in the approved Working Drawings,
Lessor shall promptly give Lessee a written
<PAGE>
estimate of the cost of engineering and design services to prepare a change
order (the "Change Order") in accordance with such request and the time delay
expected because of such request. If Lessee, in writing, approves such written
estimate, Lessor shall have the Change Order prepared and Lessee shall
concurrently reimburse Lessor for the cost thereof. Promptly upon the completion
of such Change Order, Lessor shall notify Lessee in writing of the cost and
delay which will be chargeable to Lessee by reason of such change, addition or
deletion. Lessee shall within three (3) business days notify Lessor in writing
whether it desires to proceed with such change, addition or deletion, and in the
absence of such written authorization, the Change Order will be deemed canceled
and Lessee shall be chargeable with any delay in the completion of the Premises
resulting from the processing of such Change Order, including the three (3)
business day approval period.
5. If the completion of the Tenant Improvements in the Premises is delayed
(i) at the request of Lessee, (ii) by Lessee's failure to comply with the
forgoing provisions and time frames set forth in Section 2:04(d), or (iii) by
changes in the work ordered by Lessee or by extra work ordered by Lessee, or
(iv) because Lessee chooses to have additional work performed by Lessor, then
Lessee shall be responsible for all costs and any expenses occasioned by such
delay including, without limitation, any costs and expenses attributable to
increases in labor or materials; and there shall be no delay in the commencement
of Lessee's obligation to pay Rent because of Lessor's failure to complete the
Tenant Improvements on time and any such delay in completion shall constitute
Lessee Delay for purposes of Section 3.01 (a) of the Lease.
Each person executing this Work Letter Agreement certifies that he or she
is authorized to do so on behalf of and as the act of the entity indicated.
Executed as of March __, 2000, at ____________ (___________ County), California.
MOFFETT PARK DRIVE LLC, ARIBA INC.,
A California limited liability company a Delaware corporation
By: By: /s/ Edward Kinsey
--------------------------- -----------------------------
Jay Paul Edward P. Kinsey
Its: Manager (Type or print name)
Its: Edward Kinsey
----------------------------
Vice President - Finance
By: Chief Financial Officer
-----------------------------
-----------------------------
(Type or print name)
Its:
----------------------------
<PAGE>
SCHEDULE ONE
TO
EXHIBIT C
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
INTERIOR SPECIFICATION STANDARDS
ABBREVIATED BUILDING STANDARDS
Note: The Tenant Improvements shall be Class "A" and their quality must be at a
minimum, per the following standards:
GENERAL OFFICE
CUSTOM CABINETRY
SCOPE: All materials and labor for the construction and installation of
Cabinetry and all related accessories per WIC Standards.
A. Trade Standards: Woodworking Institute of California (WIC) latest edition
Section 15 and 16 for plastic laminated casework and plastic laminated
countertops. Color of plastic laminate to be selected by Architect
B. All cabinetry to be constructed to "Custom-Grade" Specifications.
Cabinetry to be flush overlay construction.
C. Plastic Laminate: High Pressure thermoset laminated plastic surfacing
material to equal or surpass NEMA LD3, Nevamar, WilsonArt or approved
equal.
1. Countertops, shelf-tops, splashes, and edges: Grade GP 50, 0.050
inches thick.
2. All other exposed vertical surfaces: Grade GP 28, 0.028 inches thick
3. Semi-exposed backing sheet: Grade CL 20, 0.020 inches thick
4. Concealed backing sheet; Grade BK 20, 0.020 inches thick
D. Adhesives: Bond surfaces to Type 11 as recommend by Plastic Laminate
Manufacturer.
<PAGE>
E. Hinges: Heavy-duty concealed self-closing hinges. Amount of hinges per
Door per WIC. Stanley or approved equal
F. Door and Drawer Pulls: Wire-pull with 4-inch centers; Dull Chrome finish;
Stanley 4483 or approved equal.
G. Drawer slides: Heavy-duty grade with ball-bearings. Stanley, Klein, or
approved equal
H. Door Catches: Heavy-duty commercial friction type.
1. Recessed Adjustable Shelf Standards: Aluminum or zinc-plated
recessed type; Knape & Vogt with clips or approved equal.
J. Base and Wall Cabinets including doors: 3/4-inch thick medium density
particleboard:
1. Conceal all fastenings.
2. Provide clear spaces as required for mechanical and electrical
fittings
3. Plastic laminate and self-edge all shelves.
4. Provide 3/4-inch thick doors and drawer faces.
5. Unless indicated otherwise, all shelving to be adjustable.
6. Provide back and ends on all cabinets.
7. All exposed cabinet faces to be plastic-laminated.
K. Countertops and Shelving: 3/4-inch thick medium density particleboard.
Backsplash to be 3/4 inches thick, glued and screwed into top with scribed
edges. Joints in countertop to be not closer than 24 inches from sinks.
Joints shall be shop fitted, splined, glued and mechanically fastened.
L. Installation of Cabinetry shall be per WIC instructions, Custom Grade.
WOOD DOORS
SCOPE: All materials and labor necessary for the installation of Wood Doors,
required accessories and preparations for hardware.
A. Non-rated Wood Doors: 1-3/4 inch thick, flush, solid core, plain sliced
Birch veneer with Birch edge. Cores may be either of the following: Glued
block Hardwood Core per NWMA or Particleboard Core per NWMA. Manufacturer:
Algoma, Weyerhaeuser, or approved equal.
B. Fire-rated Wood Doors: 1-3/4 inch thick, flush, solid core, plain sliced
Birch face veneer with Birch Edge with mineral core per rating.
Manufacturer: Algoma, Weyerhaeuser, or approved equal. Doors shall have a
permanent UL label.
C. Vision Panels (where applies): Fire rated vision panel where required: Set
in square metal stop to match metal doorstops as provided by doorframe
manufacturer.
D. Doors shall be 8'- 0" x 3'-0" leafs typical.
ALUMINUM DOOR AND WINDOW FRAMES
SCOPE: All materials and labor necessary for the installation of Aluminum Door
Frames.
A. Frame Manufacturers: Raco, or Ragland Manufacturing Company, Inc.
B. Door Frames: Non-rated and 20-minute label, Raco "Trimstyle" frame with
Trim 700 (3/8 inch by 1- 1/2 inch) with no exposed fasteners.
C. Finish, Door and Window Frame Extrusions, Wall Trim:
1. Painted and oven-cured with "Duralaq" finish.
2. Color: Clear.
3. Finish shall meet or exceed requirements of AAMA Specifications 603.
4. Coat inside of frame profile with bituminous coating to a thickness
of 1/16 inch where in contact with dissimilar materials.
DOOR HARDWARE
SCOPE: All materials and labor for the installation of all Door Hardware,
Iocksets, closers, hinges,
<PAGE>
miscellaneous door hardware.
A. Swinging Door Lockset and Cylinder: Schlage "L" series with lever handle
with 6 pin cylinder.
B. Keyway: Furnish blank keyways to match existing master-key system. Match
existing keyways.
C. Finishes: Satin Chrome, 626 finish. Paint closers to match.
D. Kickplates: 16 gauge stainless steel; 10 inches high: width to equal door
width less 2 inches.
HARDWARE SCHEDULE
Hardware Group A (Typical, rated, single door)
1 Lockset Schlage L9050PD
1-1/2 pair Butt Hinges Hager BB1279
1 Closer Norton 700 Series
1 Stop Quality (332 @ carpet)
1 Smoke Seal Pemko
Hardware Group B (Typical, rated, closet/service door)
1 Lockset Schlage L9080PD
1-1/2 pair Butt Hinges Hager BB1279
1 Closer Norton 700 Series w/ hold-open
1 Stop Quality (332 @ carpet)
1 Smoke Seal Pemko
Hardware Group C (Typical, non-rated door)
1 Lockset Schlage L9050PD
1-1/2 pair Butt Hinges Hager BB1279
1 Stop Quality (332 @ carpet)
Hardware Group D (Typical, non-rated, closet/service door)
1 Lockset Schlage L9080PD
1-1/2 pair Butt Hinges Hager BB1279
1 Stop Quality (332 @ carpet)
Hardware Group E (Card-access door)
1 Electric Lockset Schlage L9080PDGU
1-1/2 pair Butt Hinges Hager BB1279 - NRP
(2 pr @ 8' door)
1 Electric Butt Hager
1 Closer Norton 700 Series w/ hold-open
1 Stop Quality (332 @ carpet)
Hardware Group F (Typical, double door)
1 Electric Lockset Schlage L9050PD
3 pair Butt Hinges Hager BB1270
1 Auto Flush Bolt Glyn Johnson FB-8
1 Dustproof Strike Glyn Johnson DP2
2 Closer Norton 7700 Series
2 Stop Quality (332 @ carpet)
1 Astragal Pemko
1 Coordinator Glyn Johnson
1 Smoke Seal Pemko
<PAGE>
GLAZING
SCOPE: All materials and labor for the installation of Glass.
A. Manufacturers: PPG Industries, or Viracon, Inc. See glazing schedule
below.
B. Shop prepares all glazing. Edges to have no chips or fissures.
C. Glazing Materials:
1. Safety Glass: ASTM C1048, fully tempered with horizontal tempering,
Condition A uncoated, Type 1 transparent fiat, Class 1 clear,
Quality q3 glazing select, conforming to ANSI Z97.1
2. Mirror Glass: Clear float type with copper and silver coating,
organic overcoating, square polished edges, 1/4-inch thick,
3. Wire Glass: Clear, polished both sides, square wire mesh of woven
stainless steel wire 1/2 inch x 1/2 inch grid; 1/4 inch thick.
4. Tempered Glass: 1/4 inch thick, no tong marks. UL rated for 1 -hour
rating.
5. Spacers: Neoprene.
6. Tape to be poly-iso-butylene.
D. Schedule:
1. Type A: 1/4-inch thick mirror, annealed, heat strengthened, or full
tempered as required.
2. Type B: 1/4 inch thick clear float glass, annealed, heat
strengthened, or full tempered as required.
3. Type C: 1/4-inch thick wire glass plate, square pattern "Baroque"
LIGHT GAUGE METAL FRAMING
SCOPE: All materials and labor necessary for the installation of metal framing
and related accessories.
A. Structural Studs: 14 gauge punched channel studs with knurled screw-type
flanges, prime-coated steel. Manufacturer: United States Gypsum SJ or
approved equal. Submit cut-sheet of material.
B. Partition Studs: 20 gauge studs with key-hole shaped punch-outs at 24
inches on center. Manufacturer: United States Gypsum ST or approved equal.
C. Fasteners for Structural Studs: Metal screws as recommended by metal
system manufacturer. Weld at all structural connection points.
D. Reinforce framed door and window openings with double studs at each jamb
(flange-to-flange and weld) and fasten to runners with screws and weld.
Reinforce head with 14 gauge double stud same width as wall. Screw and
weld.
E. Provide all accessories as required to fasten metal-framing per
manufacturers recommendations.
F. Provide and install fiat-strapping at all structural walls (walls with
concrete footings beneath the walls). Minimum bracing shall be 25 % of
structural walls shall be braced with fiat-strapping per Manufacturers
recommendations. Weld at all strap ends and at all intermediate studs.
G. Provide foundation clips at 4'-0" on center at structural walls. Anchor
with 1/2 inch diameter by 10 inch long anchor bolts.
H. Non-structural interior partitions shall be anchored with power-driven
fasteners at 4'-0" on center at the concrete slab.
ACOUSTIC CEILING SYSTEM
SCOPE: All materials and labor for the installation of the Acoustic Ceiling
System including T-Bar system, Acoustic Ceiling Panels, Suspension wiring
and fastening devices and Glued-down Ceiling Panels.
<PAGE>
A. Manufacturer: Armstrong, or approved equal. Exposed T-bar system; factory
painted; steel construction; rated for intermediate duty.
D. Acoustical Tile: "Second Look", conforming to the following:
1. Size: 24 x 48 inches.
2. Thickness: 3/4 inches.
3. Composition: Mineral.
4. NRC Range: .55 to .60.
5. STC Range: 35 to 39.
6. Flame Spread: ASTME84,0-25. UL Label, 25 or under.
7. Edge: Tegular, Lay-in.
8. Surface Color: White.
9. Surface Finish: Factory-applied washable vinyl latex paint.
G. Installation to be per ASTM C636 structural testing. Lateral support for
each 96 square feet of ceiling flared at 45 degrees in 4 directions.
H. Provide clips for panel uplift restraints at all panels, 2 per panel.
GYPSUM WALLBOARD
SCOPE: Provide all materials and labor for the installation of Gypsum Wallboard
including all accessories and finishes.
A. Standard Gypsum Wallboard: ASTM C36;. Ends square cut, tapered edges.
B. Fire Resistant Gypsum Wallboard: ASTM C36, 5/8 inches thick Type X. Ends
square cut, tapered edges. See Drawings for locations.
C. Moisture-resistant gypsum wallboard: ASTM C630-90.
D. Joint-reinforcing Tape and Joint Compound: ASTM C475, as manufactured by
or recommended by wallboard manufacturer. Minimum 3 coat application for a
smooth finish.
E. Corner Bead: Provide at all exposed outside corners;
F. L-shaped edge trim: Provide at all exposed intersections with different
materials.
G. All work shall be done in accordance with the USG recommended method of
installation.
1. Finish: smooth.
PAINTING
A. Paint Manufacturers: ICI, Dunn-Edwards Corporation, Kelly Moore.
B. Paint colors shall be selected by the Architect.
C. Painting Schedule: Provide for 4 different color applications
1. P-l: "Field". Color to be selected.
2. P-2: "Accent". Color to be selected.
3. P-3: "Accent". Color to be selected.
4. P-4: "Accent". Color to be selected.
D. Interior Gypsum Wallboard:
1. Primer: Vinyl Wall Primer/Sealer.
2. 1 stand 2nd Coat: Eggshell Acrylic Latex.
E. Metal Framing:
1. Primer: Red Oxide, shop-primed (for non-galvanized) if exposed.
F. Wood Work, Wood Doors:
1. Two coats of transparent finish. Sand lightly between coats with
steel wool.
INSULATION
A. R-15 in exterior walls.
B. R-25 on Roof.
<PAGE>
C. Sound batts in conference, restroom and lobby walls.
ROOF EQUIPMENT
A. Stainless steel mechanical platform and associated access stairs and guard
rail system
B. EIFS roof screen to match detail of exterior GFRC Panel.
FULL HEIGHT GLAZED PARTITION
A. 1/4" glazed partition, in building standard aluminum frame
FINISHES
A. Vinyl Composite Tile: Armstrong stonetex, 12"x 12"
B. Resilient Base: Burke rubber wall base, 4" top set or cove, as appropriate
for VCT or carpet.
C. Window Coverings: Miniblinds, Levelor, color: TBD
D. Carpet:
Option 1: Designweave, Windswept Classic 30 oz. (Direct glue
installation) or equal
Option 2: (cut pile) Designweave, Tempest Classic 32 oz. (Direct
Upgrade glue installation) or equal.
Option 3: (cut pile) Designweave, Sabre Classic, 38 oz. (Direct glue
Upgrade installation) or equal.
KITCHEN FIXTURES
A. Sink: Ekkay stainless steel, GECR-2521-L&R, 20 gauge, 25"w x 21 1/4" D x 5
3/8" D, ADA compliant.
B. Kitchen Faucet: American Standard, Silhouette Single control, #4205
series, spout 9 3/4"
KITCHEN APPLIANCES
A. Dishwasher:
Option 1: GE GSD463DZWW, 24'W x 24 3/4" D x 34-35" H, 9 gallons/wash
Option 2: Bosch, SHU5300 series, 5.4 gallons/wash-with water heater
B. Refrigerator:
Full Size: GE, "S" series top-mount, TBX16SYZ, 16.4 cubic
feet, recessed, recessed handles, 28" W x 29 1/8" D x
66 3/4" H, white, optional factory installed
ice-maker.
Under-counter:
Option 1: U-Line, #29R, 3.5 cubic feet, white
Option 2: U-Line, Combo 29FF, Frost Free with factory installed
icemaker, 2.1 cubic feet, white
C. Microwave: GE, Spacemaker II JEM25WY, Midsize, 9 cubic feet, 800 watts,
23 13/-16" W x 11 13/16"D x 12 5/16" H
<PAGE>
Option 1: Under counter Mounting Kit, #4AD19-4
Option 2: Accessory Trim Kit # JXB37WN, 26 1/8" W X 18 1/4" H
(built-in application)
D. Garbage Disposal: ISE #77, 3/4" horsepower
E. Water Heater: To be selected by DES.
PUBLIC SPACES
FRONT BUILDING LOBBY
Walk Off Matts: Design Materials, Sisel, Calcetta #68. Natural,
100% coir
Floor Tile: 3/8" x 18" x 18" Stone or Marble set in mortar bed in
recessed slab as approved by Owner
Transition Strips: 5/16" x 11/4" x random length strips, cherry wood
flooring
Corridor Carpeting: Carpet over pad, Atlas, New Vista or as approved by
Owner
Lobby Ceiling: Suspended gypsum board ceiling, Painted
Building Lobby: Akarl shades hanging #J1-9 3/4" x 5'-2" or equal as
approved Pendant Fixture by owner.
Stairs & P & P Railing, Modesto with custom cherry guard rail
Mezzanine Railing: Rep: Oliver Capp (805) 241-8810. Hand and guard
railing P & P Railings, Modesto stainless steel
railing with horizontal spirals and custom cherry
guard rail cap by others, fittings dark gray metallic
or equal as approved by Owner.
BACK BUILDING LOBBY & EMERGENCY STAIRS
Walk Off Matts: Design Materials, Sisal, Calcutta #68, Natural, 100%
coir.
Treads & Landings: Carpet covered concrete, as approved by Owner
Stringers, Risers Painted steel stringer, eggshell finish & enamel.
Handrails
Ceiling: Suspended gypsum board ceiling.
ELEVATORS
Cars: (1) 3800 Ib, (t) 3500 lb 150 ft/min by Otis
Elevator Doors: Stainless Steel
Elevator
Interior Paneling: Cherry veneer with stainless steel reveals and
railing
Elevator Floor: Slate 3/8" x 18" x 18" tile as approved by Owner.
<PAGE>
RESTROOMS
Counter tops: Stone/marble or equal as approved by Owner
Walls at Lavatories: Eggshell finish, latex paint, Benjamin Moore
Floor at Toilets: 2" x 2" matte porcelain ceramic floor tiles, thin
set, Dal-tile.
Walls at Toilets: 2" x 2" matte porcelain ceramic floor tiles, thin
set, Dal-tile.
Ceiling: Suspended gypsum board ceiling.
Toilet compartments:
A. Manufactured floor-anchored metal toilet compartments and
wall-hung urinal screens.
B. Approved Manufacturer, Global Steel Products Corp, or approved
equal.
C. Toilet Partitions; Stainless Steel finish.
D. Hardware: Hinges: Manufacturer's standard self-closing type
that can be adjusted to hold door open at any angle up to 90
degrees. Latch and Keeper: Surface-mounted latch unit,
designed for emergency access, with combination rubber-faced
door strike and keeper. Coat Hook: Combination hook and
rubber-tipped bumper. Door Pull: Manufacturer's standard.
Ceramic Tile
A. Manufacturer: DaI-Tile or approved equal.
B. Size: 4-1/4" x 4-1/4" for walls, 8 x 8 for floors, 3/4" liner
Strip as accent.
C. Glaze: Satin glaze for walls, unglazed tile for floors.
D. Color: As selected by Architect.
E. Accessories: Base, corners, coved cap and glazed to match
F. Wall and floor installation: per applicable TCA
G. Waterproof Membrane: Chloraloy or approved equal.
H. Tile Backer Board: 1/2 inch thick wonderboard
I. Grout: Commercial Portland Cement Grout; Custom Building
Products or approved equal
J. Mortar: Latex-Portland cement mortar; Custom Building Products
or approved equal.
RESTROOM:
Toilet: Kohler/American Standard, commercial quality.
Urinal: Kohler/American Standard, commercial quality.
Lavatory: Kohler/American Standard, undercounter.
Lavatory Faucet: Kroin handicap lavatory faucet #HV1LH, polished
chrome.
Soap Dispenser Bobrick, 8226, Lavatory mounted for soaps, 34 fl oz.
Counter:
Toilet accessories:
A. Manufacturer: Bobrick Washroom Equipment, or approved equal.
<PAGE>
B. Schedule: Model numbers used in this schedule are Bobrick
(134) unless otherwise noted.
C. Combination Paper Towel Dispenser/Waste Receptacle: Recessed,
Model B-3944, one per restroom #7151 and 7152, and two per
restroom #7050 and 7061.
D. Feminine Napkin Vendor: Recessed, combination napkin/tampon
vendor, Model B-3500, with 25 cent operation, one per each
women's toilet room.
E. Soap Dispenser: Lavatory mounted dispenser, Model B-822, one
per each lavatory.
F. Toilet Paper Dispenser: Surface-mounted, Model JRT, JR Escort,
"In-Sight" by Scott Paper Company, one per stall.
G. Toilet Seat Cover Dispenser: Recessed, wall-mounted, Model
B-301, one per stall.
H. Sanitary Napkin Disposal: Recessed, wall-mounted, Model B-353,
one per each women's handicapped and odd stall.
I. Sanitary Napkin Disposal: Partition-mounted, Model B-354
(serves two stalls).
J. Grab Bars: Horizontal" 36, B6206-36: 42", B62-6-42: one per
each handicapped stall.
K. Mop/Broom Holders: B223-24 (one per janitor closet).
L. Paper Towel Dispensers: Recessed mounted, Model B-359, one at
side wall adjacent to sink.
TENANT CORRIDORS
Walls: Eggshell finish, latex paint, Benjamin Moore.
Floors: Level loop carpet over pad with 4" resilient base as
approved by Owner.
Ceiling: 24" x 24" x 3/4" thick fine fissured type mineral
fiber, Armstrong Cirus acoustical tile (beveled
regular edge) in a 24" x 24" Donn Fineline suspended
grid, white finish.
Water Fountain: Haws Model #1114 Stainless Steel #4.
Cross Corridor 3'-6" x full height, 20 minute rated, pocket
Smoke Detector: assembly, on magnetic hold opens.
Corridor Carpyen "Berta" 35cm x 33 cm, engraved curved opaque
Wall Sconce glass, 2 x 7-9W, #G-23 or equal as approved by owner
ELECTRICAL
A. 50 foot candles at working surface.
B. 3 Bulb 2x4 parbolic fixtures
C. 1/2 20 Amp circuit for each hard wall office
D. Electrical Devices: Recessed wall mounted devices with plastic cover
plate. Color: white, multi-gang plate 80400 Series duplex wall outlets.
E. Telephone/Data Outlets: Recessed wall mounted, Standard 2x4 wall box
with 3/4" EMT conduit from box to sub out above ceiling walls pull string,
cabling, terminations and cover-plates, color: white, provided by tenant's
vendor. Tenant shall furnish telephone backboard.
F. Light Switches: Dual level rocker type, mounted at standard locations,
with plastic cover plate, 5325-W cover plate single switch B0401-W, double
switch B0409-W. Decors by Leviton, colors: white, and will comply With
Title 24 Energy Codes. Decors by Leviton.
<PAGE>
MECHANICAL
A. VAV Reheat system - design/build. Each floor to have a minimum of thirty
zones. Provide reheat boxes on all zones on top floor and at all exterior
zones on lower floor. System shall meet T-24 for ventilation.. Design
shall be for 73 deg. Ambient interior temperature and 2 1/2 watts per sq.
ft. min.
FIRE SPRINKLER SYSTEM
As required by NFPA & factory mutual standard hazard, seismically braced.
END
<PAGE>
EXHIBIT D
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA INC.
FOR
Premises
At
1111 Lockheed Martin Way
Sunnyvale, California
COST RESPONSIBILITIES OF LESSOR AND LESSEE
FOR SHELL TENANT IMPROVEMENTS
A. Lessor is responsible for the construction of the building shell
improvements which shall include the following items:
Soils Engineer
Civil Engineer
Architectural and Structural Engineer
Landscaping
Empty Electrical Conduits will be provided from the street to
the future electrical room for a 2500 Amp. Service 277/480
volt service capability for each building. The electrical
conduits will be stubbed up above the floor level.
Lessor to provide two vertical risers for fire sprinklers.
Testing and Inspection for the shell.
Building Permits for the Shell and exterior Premises.
Utility Connection Fee (Fire Protection).
Area Fees
Construction Insurance
Construction Interest
Construction Taxes
Land Interest (if any)
Temporary Facilities
All site work to include:
Site clearing and grading
Excavating/Fill
Soil compaction
Site drainage
Site utilities
Paving
<PAGE>
Curbs and gutters
Sidewalks
Parking lot lights
Curb painting and parking lot striping and markings as
required by the City.
Fences, to include special enclosures for trash Irrigation System
Lawns and planting
Building Shells to include:
Concrete Formwork
Concrete Reinforcement (if used)
Cast in pace concrete (if used)
Metal decking (if used)
Metal framing (if used)
Rough carpentry as related to shell
Millworks as related to Shell
Glue-Lam structure (if used)
Building roof installation
Roofing tiles
Flashing
Drainage Systems for Roof
Roof Pitch Pans
Caulking/Sealants
Exterior Metal Door/Frames related to the Shell
Wood or Glass Doors as designated as related to the
Exterior Shell
Overhead Doors
Anodized Aluminum Windows
Finish Hardware as related to the Shell Doors
Glass Glazing as specific on plans
Storefront if desired
Gutters over front and rear entrances
Exterior Loading Docks as specific on plans
Water Supply stubbed to the ground floor (first floor of each
Building only)
Roof drainage
Gas piping to face of building at First Floor
Telephone and computer conduits between Buildings
All Government fees applying to the exterior premises and shell.
B. The following shall be considered interior improvements costs and shall
be the responsibility of the Lessee as provided in the Lease:
Interior Building Permits
Gypsum drywall
Ceramic Tile or elate Tile in Lobbies
Quarry Tile as specified
<PAGE>
Quarry Tile as specified
Flag Pole
Meal door framing
All interior Wood doors and Hardware
Custom Woodwork
Specialized Security construction
Interior Glass doors 2nd windows
Acoustical Treatment (suspended ceiling)
Resilient flooring
Any special flooring
Carpeting
Sprayed fire proofing if required by the code on structural
Steel and metal deck surfaces
Lift and Lift Operator
Interior Painting
Wall Coverings including Ceramic Tiles
Grease Interceptor if required
Drapery, Blinds or Shades
Pedestal floors
Toilet Compartments
Demountable partitions
Firefighting devices (Extinguishers)
Toilet and bath accessories
Lift (Dock levelers)
Plumbing fixtures, trims and vertical piping
Interior electrical distribution
Lighting
Electrical controls
Electrical Power Equipment
Built in Audio-Visual facilities
Built-in Projection screens
Water Treatment Discharge
Sinks in Coffee Rooms
Lunch Room plumbing for vending machines
Specialized security systems
Specialized Halon Fire Extinguishing systems
Fire sprinkler head drops and horizontal distribution
Piping off owner-installed vertical risers
Specialized caging
Special piping for Tank Farm (If installed)
Hot water heating system
Cool water system
HVAC units
Ducting controls
Air Tempering Systems
Elevators and elevator pits (Otis Elevator Lessor Specs)
<PAGE>
Mechanical platforms, screens and associated roof accessories
Stairs
Electrical service (Lessor to provide exterior conduits)
<PAGE>
EXHIBIT E
TO
MOFFETT PARK DRIVE LLC
LEASE TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
MEMORANDUM
OF
COMMENCEMENT OF LEASE TERM
Pursuant to Article III, Section 3.01, paragraph (a) of the
above-referenced Lease, the parties to said Lease agree to the following:
1. The Commencement Date of the Lease is ________________, 2001 and the
Lease Term commenced on said date. The Expiration Date for the
initial Lease Term is ______________, 2013.
2. The date for commencement of rent for Building Three is
_____________, 2001; for Building 2 is _______,2001; for Building 1
is ________________,2001; for Building 4 is ___________, 2001; and
for the Amenity Building is _____________, 2001.
3. Attached hereto as a part hereof is a true and correct schedule of
Base Rent.
4. The total Rentable Area of all of the Buildings is ____________
( ) rentable square feet.
Each person executing this Memorandum certifies that he or she is
authorized to do so on behalf of and as the act of the entity indicated.
Executed as of ___________, 2001, at Sunnyvale (Santa Clara County), California.
MOFFETT PARK DRIVE LLC, ARIBA INC. [SEAL]
a California limited a Delaware corporation
liability company
By: By:
-------------------------- ----------------------------------
Jay Paul ----------------------------------
Its: Manager (Type or print name)
Its:_________________________________
By:__________________________________
__________________________________
(Type or print name)
Its:_________________________________
<PAGE>
- --------------------------------------------------------------------------------
SCHEDULE TO EXHIBIT E
ARIBA LEASE
MEMORANDUM AND COMMENCEMENT OF RENT
TERM AND SCHEDULE OF BASE RENT
Building 3
- --------------------------------------------------------------------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- --------------------------------------------------------------------------------
1/25/01 $3.00 175,000 $525,000.00 $6,300,000.00
1/25/02 $3.11 175,000 $543,375.00 $6,520,500.00
1/25/03 $3.21 175,000 $562,393.13 $6,748,717.50
1/25/04 $3.33 175,000 $582,078.88 $6,984,922.81
1/25/05 $3.44 175,000 $602,449.58 $7,229,394.90
1/25/06 $3.56 175,000 $623,535.31 $7,482,423.73
1/25/07 $3.69 175,000 $645,359.05 $7,744,308.56
1/25/08 $3.82 175,000 $667,946.61 $8,015,359.38
1/25/09 $3.95 175,000 $691,324.74 $8,295,896.93
1/25/10 $4.09 175,000 $715,521.11 $8,586,253.33
1/25/11 $4.23 175,000 $740,564.35 $8,886,772.19
1/25/12 $4.38 175,000 $766,484.10 $9,197,809.22
Building 4
- --------------------------------------------------------------------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- --------------------------------------------------------------------------------
2/15/01 $3.00 175,000 $525,000.00 $6,300,000.00
2/15/02 $3.11 175,000 $543,375.00 $6,520,500.00
2/15/03 $3.21 175,000 $562,393.13 $6,748,717.50
2/15/04 $3.33 175,000 $582,076.88 $6,984,922.61
2/15/05 $3.44 175,000 $602,449.58 $7,229,394.90
2/15/06 $3.56 175,000 $623,535.31 $7,482,423.73
2/15/07 $3.69 175,000 $645,359.05 $7,744,308.56
2/15/08 $3.82 175,000 $667,948.61 $8,015,359.36
2/15/09 $3.95 175,000 $691,324.74 $8,295,898.93
2/15/10 $4.09 175,000 $715,521.11 $8,586,253.33
2/15/11 $4.23 175,000 $740,564.35 $8,886,772.19
2/15/12 $4.38 175,000 $766,484.10 $9,197,808.22
<PAGE>
Building 2
- --------------------------------------------------------------------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- --------------------------------------------------------------------------------
3/8/01 $3.00 175,000 $525,000.00 $6,300,000.00
3/8/02 $3.11 175,000 $543,375.00 $6,520,500.00
3/8/03 $3.21 175,000 $562,383.13 $6,748,717.50
3/8/04 $3.33 175,000 $582,076.88 $6,984,922.61
3/8/05 $3.44 175,000 $602,449.58 $7,229,394.90
3/8/06 $3.56 175,000 $623,535.31 $7,482,423.73
3/8/07 $3,69 175,000 $645,359.05 $7,744,308.56
3/8/08 $3.82 175,000 $667,946.81 $8,015,359.36
3/8/09 $3.95 175,000 $691,324.74 $8,295,896.93
3/8/10 $4.09 175,000 $715,521.11 $8,586,253.33
3/8/11 $4.23 175,000 $740,564.35 $8,886,772.19
3/8/12 $4.38 175,000 $766,484.10 $9,197,809.22
Building 1
- --------------------------------------------------------------------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- --------------------------------------------------------------------------------
3/29/01 $3.00 175,000 $525,000.00 $6,300,000.00
3/29/02 $3.11 175,000 $543,375.00 $6,520,500.00
3/29/03 $3.21 175,000 $562,393.13 $6,748,717.50
3/29/04 $3.33 175,000 $582,076.88 $6,984,922.61
3/29/05 $3.44 175,000 $602,449.58 $7,229,394.90
3/29/06 $3.56 175,000 $623,535.31 $7,482,423.73
3/29/07 $3.69 175,000 $645,359.05 $7,744,308.56
3/29/08 $3.82 175,000 $667,946.61 $8,015,359.36
3/29/09 $3.95 175,000 $691,324.74 $8,295,896.93
3/29/10 $4.09 175,000 $715,521.11 $8,586,253.33
3/29/11 $4.23 175,000 $740,564.35 $8,886,772.19
3/29/12 $4.38 175,000 $766,484.10 $9,197,809.22
Amenity Building
- --------------------------------------------------------------------------------
Beginning Rental Rate Sq. Ft. Monthly Annually
- --------------------------------------------------------------------------------
3/29/01 $3.00 15,000 $45,000.00 $540,000.00
3/29/02 $3.11 15,000 $46,575.00 $558,900.00
3/29/03 $3.21 15,000 $48,205,13 $578,461.50
3/29/04 $3.33 15,000 $49,892.30 $598,707.65
3/29/05 $3.44 15,000 $51,638.54 $619,662.42
3/29/06 $3.56 15,000 $53,445.88 $641,350.61
3/29/07 $3.69 15,000 $55,316.49 $663,797.88
3/29/08 $3.82 15,000 $57,252.57 $687,030.80
3/29/09 $3.95 15,000 $59,256.41 $711,076.88
3/29/10 $4.09 15,000 $61,330.38 $735,964.57
3/29/11 $4.23 15,000 $63,476.94 $761,723.33
3/29/12 $4.38 15,000 $65,698.84 $788,383.65
Provided, actual square footage may be adjusted at final measurement per lease.
Provided, actual commencement date will be determined per lease,
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT F
TO
MOFFETT PARK DRIVE LLC
Lease
To
ARIBA INC.
For Premises
At
1111 Lockheed Martin Way
Sunnyvale, California
SNDA
----
(See Construction and Permanent SNDA Samples Attached as
Schedule One and Schedule Two; respectively)
<PAGE>
SCHEDULE ONE
TO
EXHIBIT F
TO
MOFFETT PARK DRIVE LLC
Lease
To
ARIBA INC.
For Premises
At
1111 Lockheed Martin Way
Sunnyvale, California
SNDA
(See Construction and Permanent SNDA Samples Attached)
<PAGE>
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
KEYBANK NATIONAL ASSOCIATION
Real Estate Division
Mailcode WA-31-10-5285
700 Fifth Avenue, 52nd Floor
Seattle, WA 98104-5099
Attn:____________________
Loan No.:________________
- -------------------------------------------------------------------------------
SUBORDINATION, ACKNOWLEDGMENT OF LEASE ASSIGNMENT,
NONDISTRUBANCE AND ATTORNMENT AGREEMENT
AND ESTOPPEL CERTIFICATE
(Lease to Deed of Trust)
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR
LEASE BECOMING SUBJECT TO AND OF LOWER
PRIORITY THAN THE LIEN OF THE DEED OF TRUST
(DEFINED BELOW).
THIS AGREEMENT AND CERTIFICATE is made this ______ day of ____ , 2000,
between KEYBANK NATIONAL ASSOCIATION, a national banking association ("Lender")
and ________________________, a ________________ ("Tenant").
RECITALS
A. _________________ ("Landlord"), is the owner of real property
("Property") located in ______________ County, California, and legally described
on Exhibit A.
B. Tenant is a tenant of a portion of the Property ("Premises") under a
lease ("Lease") with Landlord dated _____________.
C. Lender has agreed to make a loan ("Loan") to Landlord. In connection
therewith, Landlord has executed or proposes to execute, a Construction Deed of
Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing
("Deed of Trust") encumbering the Property and securing, among other things, a
promissory note ("Note") in the principal sum of __________DOLLARS ($_______ ),
of even date herewith, in favor of Lender, which Note is payable with interest
and upon the terms described therein. The Deed of Trust is to be recorded
concurrently herewith.
D. The Deed of Trust constitutes a present assignment to Lender of all
right, title,
<PAGE>
and interest of Landlord under the Lease.
E. Lender's agreement to make the Loan is conditioned on Tenant's specific
and unconditional subordination of the Lease to the lien of the Deed of Trust
such that the Deed of Trust at all times remains a lien on the Property, prior
and superior to all the rights of Lessee under the Lease, and Tenant's agreement
to attorn to Lender if Lender obtains possession of the Property by foreclosure
or deed in lieu of foreclosure. Tenant is willing to do so in consideration of
the benefits to Tenant from the Loan and the Lease and Lender's agreement not
to disturb Tenant's possession of the Premises under the Lease.
NOW, THEREFORE, Lender and Tenant agree as provided below.
1. Subordination. Tenant hereby intentionally and unconditionally
subordinates the Lease and all of Lessee's right, title and interest thereunder
and in and to the Property to the lien of the Deed of Trust and all of Lender's
rights thereunder, including any and all renewals, modifications and extensions
thereof and agrees that the Deed of Trust and any and all renewals,
modifications and extensions thereof shall unconditionally be and at all times
remain in lien on the Property prior and superior to the Lease. Without limiting
the generality of the foregoing, such subordination shall include all rights of
Tenant in connection with any insurance or condemnation proceeds with respect to
the Premises or Property.
2. Acknowledgment. Tenant understands that Lender would not make the Loan
without this Agreement and the subordination of the Lease to the lien of the
Deed of Trust as set forth herein and that in reliance upon, and in
consideration of, this subordination, specific loans and advances are being and
will be made by Lender and, as part and parcel thereof, specific monetary and
other obligations are being and will be entered into which would not be made or
entered into but for reliance upon this subordination. This Agreement is and
shall be the sole and only agreement with regard to the subordination of the
Lease to the lien of the Deed of Trust and shall supersede and cancel, but only
insofar as would affect the priority between the Deed of Trust and the Lease,
any prior agreement as to such subordination, including, without limitation,
those provisions, if any, contained in the lease which provide for the
subordination of the Lease to a deed or deeds of trust or to a mortgage or
mortgages.
3. Use of Proceeds. Lender, in making disbursements pursuant to the Note,
the Deed of Trust or any loan agreement with respect to the property, is under
no obligation or duty to, nor has Lender represented that it will, see to the
application of such proceeds by the person or persons to whom Lender disburses
such proceeds, and any application or use of such proceeds for purposes other
than those provided for in such agreement or agreements shall not defeat this
agreement to subordinate in whole or in party.
4. Nondisturbance. Lender agrees that Tenant's possession of the Premises
shall not be disturbed by Lender during the tern of the Lease, and Lender shall
not join Tenant in any action or proceeding for the purpose of terminating the
Lease, except upon the occurrence of a default by Tenant under the Lease and the
continuance of such default beyond any cure period given to Tenant under the
Lease.
<PAGE>
5. Attornment. If Lender obtains possession of the Property by foreclosure
or deed in lieu of foreclosure, Tenant shall attorn to Lender, be bound to
Lender in accordance with all of the provisions of the Lease for the balance of
the term thereof, and recognize Lender as the landlord under the Lease for the
unexpired term of the Lease. Such attornement shall be effective without Lender
being (i) subject to any offsets or defenses, or otherwise liable, for any prior
act or omission of Landlord, (ii) bound by any amendment, modification, or
waiver of any of the provisions of the Lease, or by any separate agreement
between Landlord and Tenant relating to the Premises or Property, unless any
such action was taken with the prior written consent of Lender, (iii) liable for
the return of any security or other deposit unless the deposit has been paid to
Lender, (iv) bound by any payment of rent or other monthly payment under the
Lease made by Tenant more than one (1) month in advance of the due date, or (v)
bound by any option, right of first refusal, or similar right of Tenant to lease
any portion of the Property (other than the Premises) or to purchase all or any
portion of the Property. Lender's obligations as landlord under the Lease after
obtaining possession of the Property by foreclosure or deed in lieu of
foreclosure shall terminate upon Lender's subsequent transfer of its interest in
the Property.
6. Termination of Lease. Notwithstanding any other provision of this
Agreement, in the event Lender obtains ownership of the Property by foreclosure
or deed in lieu of foreclosure and the Lease requires the landlord to construct
any improvements on the Premises or Property, the Lease shall terminate unless
(i) Lender delivers written notice to Tenant expressly assuming such obligation
within ten (10) days after the foreclosure sale or acceptance of the deed in
lieu of foreclosure, or (ii) Tenant waives such obligation by delivery of
written notice to Lender within ten (10) days after receiving notice of the
foreclosure or deed in lieu of foreclosure.
7. Covenants of Tenant. Tenant covenants and agrees with Lender as
follows:
(a) Tenant shall pay to Lender all rent and other payments otherwise
payable to Landlord under the Lease upon written demand from Lender. The consent
and approval of Landlord to this Agreement shall constitute an express
authorization for Tenant to make such payments to Lender and a release and
discharge of all liability of Tenant to Landlord for any such payments made to
Lender.
(b) Tenant shall enter into no material amendment or modification of
any of the provisions of the Lease without Lender's prior written consent.
(c) Tenant shall not subordinate its rights under the Lease to any
other mortgage, deed of trust, or other security instrument without the prior
written consent of Lender.
(d) In the event the Lease is rejected or deemed rejected in any
bankruptcy proceeding with respect to Landlord, Tenant shall not exercise its
option to treat the Lease as terminated under 11 U.S.C. ss. 365(h), as amended.
(e) Tenant shall not accept any waiver or release of Tenant's.
obligations under the Lease by Landlord, or any termination of the Lease by
Landlord, without Lender's prior written consent.
<PAGE>
(f) Tenant shall promptly deliver written notice to Lender of any
default by Landlord under the Lease. Lender shall have the right to cure such
default within thirty (30) days after the receipt of such notice. Tenant further
agrees not to invoke any of its remedies under the Lease until the thirty (30)
days have elapsed, or during any period that Lender is proceeding to cure the
default with due diligence, or is attempting to obtain the right to enter the
Premises and cure the default.
8. Effect of Assignment. Notwithstanding that Landlord has made a present
assignment of all of its rights under the Lease to Lender, Lender shall not be
liable for any of the obligations of Landlord to Tenant under the Lease until
Landlord has obtained possession of the Property by foreclosure or deed in lieu
of foreclosure, and then only to the extent provided in paragraph 3 above.
9. Estoppel Certifications. Tenant hereby certifies and represents to
Lender as provided below.
(a) The Lease constitutes the entire agreement between Landlord and
Tenant relating to the premises and the Property.
(b) The Lease is in full force and effect, and has not been amended,
modified, or assigned by Tenant, either orally or in writing.
(c) No payments to become due under the Lease have been paid more
than one (1) month in advance of the due date.
(d) Tenant has no present claim, offset or defense under the Lease,
and Tenant has no knowledge of any uncured breach or default by Landlord or
Tenant under the Lease or of any event or condition which, with the giving of
notice or the passage of time or both, would constitute a breach or default
under the lease.
(e) Tenant has no knowledge of any prior sale, transfer, assignment,
hypothecation or pledge of Landlord's interest under the Lease or of the rents
due under the Lease.
(f) Except as otherwise provided in the Lease, Tenant has made no
agreements with Landlord concerning free rent, partial rent, rebate of rental
payments, setoff, or any other type of rental concession.
10. Costs and Attorneys' Fees. In the event of any claim or dispute
arising out of this Agreement, the party that substantially prevails shall be
awarded, in addition to all other relief, all attorneys' fees and other costs
and expenses incurred in connection with such claim or dispute; including
without limitation those fees, costs, and expenses incurred before or after
suit, and in any arbitration, and any appeal, any proceedings under any present
or future bankruptcy act or state receivership, and any post-judgment
proceedings.
<PAGE>
11. Notices. All notices to be given under this Agreement shall be in
writing and personally delivered or mailed, postage prepaid, certified or
registered mail, return receipt requested, to Lender at the address indicated on
the first page of this Agreement, and to Tenant at its address indicated below.
All notices which are mailed shall be deemed given three (3) days after the
postmark thereof. Either party may change their address by delivery of written
notice to the other party.
12. Miscellaneous. This agreement may not be modified except in writing
and executed by the parties hereto or their successors in interest. This
agreement shall inure to the benefit of and by binding upon the parties hereto
and their successors and assigns. As used herein "Landlord" shall include
Landlord's predecessors and successors in interest under the Lease, and "Lender"
shall include any purchaser of the Property at any foreclosure sale. All rights
of Lender herein to collect rents on behalf of Landlord under the Lease are
cumulative and shall be in addition to any and all other rights and remedies
provided by law and by other agreements between Lender and Landlord or others.
If any provision of this Agreement is determined to be invalid, illegal or
unenforceable, such provision shall be considered severed from the rest of this
Agreement and the remaining provisions shall continue in full force and effect
as if such provision had not been included. This Agreement shall be governed by
the laws of the State of California. This Agreement may be executed in one or
more counterparts, all of which together shall constitute one and the same
original.
DATED this ________ day of __________________, 2000,
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR
LEASE BECOMING SUBJECT TO AND OF LOWER
PRIORITY THAN THE LIEN OF THE DEED OF TRUST
(DEFINED ABOVE). IT IS RECOMMENDED THAT, PRIOR
TO THE EXECUTION OF THIS AGREEMENT, THE
PARTIES CONSULT WITH THEIR ATTORNEYS WITH
RESPECT HERETO.
"LENDER"
KEYBANK NATIONAL ASSCIATION,
a National banking association
By:_________________________
Its:________________________
"TENANT"
___________________________,
a __________________________
<PAGE>
By:_________________________
Its:________________________
Address:
_________________________
_________________________
_________________________
CONSENTED AND AGREED TO:
"LANDLORD"
____________________________,
a ___________________________
By:__________________________
Its:_________________________
ALL SIGNATURES MUST BE ACKNOWLEDGED
<PAGE>
STATE OF CALIFORNIA )
) ss.
COUNTY OF_______________)
On ________________________, 2000, before me, ____________________ the
undersigned, a notary public in and for said state, personally appeared
_______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
<PAGE>
EXHIBIT A
TO
SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT AGREEMENT AND ESTOPPEL CERTIFICATE
Legal Description
The Property is located _________________in County, California and is
legally described as follows:
<PAGE>
SCHEDULE TWO
TO
EXHIBIT F
TO
MOFFETT PARK DRIVE LLC
Lease
To
ARIBA INC
For Premises
At
1111 Lockheed Martin Way
Sunnyvale, California
SNDA
(See Permanent SNDA Sample Attached)
<PAGE>
SUBORDINATION, NON-DISTURBANCE
AND ATTORNEMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") made as of the __________ day of ___________,2000, by and among
Nomura Asset Capital Corporation ("Lender"), ("Tenant") and _____________
("Landlord").
WITNESSETH:
----------
WHEREAS, Lender has agreed to make a loan (the "Loan") of up to
______________________ to Landlord;
WHEREAS, the Loan will be evidenced by a deed of trust note (the "Note")
of even date herewith made by Landlord to order of Lender and will be secured
by, among other things, a deed of trust, assignment of leases and rents and
security agreement (the "Deed of Trust") of even date herewith made by Landlord
to Lender covering the land (the "Land") described on Exhibit A attached hereto
and all improvements (the "Improvements") now or hereafter located on the land
(the Land and the Improvements hereinafter collectively referred to as the
"Property"); and
WHEREAS, by a lease dated as of ___________________(which lease, as the
same may have been amended and supplemented, is hereinafter called the "Lease"),
Landlord leased to Tenant approximately _____ square feet of space located in
the Improvements (the "Premises"); and
WHEREAS, the parties hereto desire to make the Lease subject and
subordinate to the Deed of Trust.
NOW, THEREFORE, the parties hereto, in consideration of the covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, hereby agree as follows:
1. The Lease, as the same may hereafter be modified, amended or extended,
and all of Tenant's right, title and interest in and to the Premises and all
rights, remedies and options of Tenant under the Lease, are and shall be
unconditionally subject and subordinate to the Deed of Trust and the lien
thereof, to all the terms, conditions and provisions of the Deed of Trust, to
each and every advance made or hereafter made under the Deed of Trust, and to
all renewals, modifications, consolidations, replacements, substitutions and
extensions of the Deed of Trust, so that at all times the Deed of Trust shall be
and remain a lien on the Property prior and superior to the Lease for all
purposes; provided, however, and Lender agrees, that so long as (A) no event has
occurred and no condition exists, which would entitle Landlord to terminate the
Lease or would cause, without further action of Landlord, the termination of the
Lease or would entitle Landlord to dispossess Tenant from the Premises, (B) the
term of the Lease has commenced and Tenant is in possession of the Premises, (C)
the Lease shall be in full force and effect and shall not have been otherwise
modified or supplemented in any way without Lender's prior written consent, (D)
Tenant shall duly confirm its attornment to Lender or its successor or assign by
<PAGE>
written instrument as set forth in Paragraph 3 hereof, (E) neither Lender nor
its successors or assigns shall be liable under any warranty of construction
contained in the Lease or any implied warranty of construction, and if all
representations and warranties made herein by Tenant shall be true and correct
as of the date of such attornement; then, and in such event Tenant's leasehold
estate under the Lease shall not be terminated, Tenant's possession of the
Premises shall not be disturbed by Lender and Lender will accept the attornement
of Tenant.
2. Notwithstanding anything to the contrary contained in the Lease, Tenant
hereby agrees that in the event of any act, omission or default by Landlord or
Landlord's agents, employees, contractors, licensees or invitees which would
give Tenant the right, either immediately or after the lapse of a period of
time, to terminate the Lease, or to claim a partial of total eviction, or to
reduce the rent payable thereunder or credit or offset any amounts against
future rents payable thereunder, Tenant will not exercise any such right (i)
until it has given written notice of such act, omission or default to Lender by
delivering notice of such act, omission or default, in accordance with Paragraph
8 hereof, and (ii) until a period of not less than sixty (60) days for remedying
such act, omission or default shall have elapsed following the giving of such
notice. Notwithstanding the foregoing, in the case of any default of Landlord
which cannot be cured within such sixty (60) day period, if Lender shall within
such period proceed promptly to cure the same (including such time as may be
necessary to acquire possession of the Premises if possession is necessary to
effect such cure) and thereafter shall prosecute the Curing of such default with
diligence, then the time within which such default may be cured by Lender shall
be extended for such period as may be necessary to complete the curing of the
same with diligence. Lender's cure of Landlord's default shall not be considered
an assumption by Lender of Landlord's other obligations under the Lease. Unless
Lender otherwise agrees in writing, Landlord shall remain solely liable to
perform Landlord's obligations under the Lease (but only to the extent required
by and subject to the limitation included with the Lease), both before and after
Lender's exercise of any right or remedy under this Agreement. If Lender or any
successor or assign becomes obligated to perform as Landlord under the Lease,
such person or entity will be released from those obligations when such person
or entity assigns, sells or otherwise transfers its interest in the Premises or
the Property.
3. Without limitation of any of the provisions of the Lease, in the event
that Lender succeeds to the interest of Landlord or any successor to Landlord,
then subject to the provisions of this Agreement including, without limitation,
Paragraph 1 above, the Lease shall nevertheless continue in full force and
effect and Tenant shall and does hereby agree to attorn to and accept Lender and
to recognize Lender as its Landlord under the Lease for the then remaining
balance of the term thereof, and upon request of Lender, Tenant shall execute
and deliver to Lender an. agreement of attornment reasonably satisfactory to
Lender.
4. If Lender succeeds to the interest of Landlord or any successor to
Landlord, in no event shall Lender have any liability for any act or omission of
any prior landlord under the Lease which occurs prior to the date Lender
succeeds to the rights of Landlord under the Lease, nor any liability for
claims, offsets or defenses which Tenant might have had against Landlord. In no
event shall Lender have any personal liability as successor to Landlord and
Tenant shall look only to the estate and property of Lender in the Land and the
Improvements for the satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial process)
<PAGE>
requiring the payment of money in the event of any default by Lender as Landlord
under the Lease, and no other property or assets, of Lender shall be subject to
levy, execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to the Lease.
5. Tenant agrees that no prepayment of rent or additional rent due under
the Lease of more than one month in advance, and no amendment, modification,
surrender or cancellation of the Lease, and no waiver or consent by Landlord
under the terms of the Lease, shall be binding upon or as against Lender, as
holder of the Deed of Trust, and as Landlord under the Lease if it succeeds to
that position, unless consented to in writing by Lender. In addition, and
notwithstanding anything to the contrary set forth in this Agreement, Tenant
agrees that Lender, as holder of the Deed of Trust, and as Landlord under the
Lease if it succeeds to that position, shall in no event have any liability for
the performance or completion of any initial work or installations or for any
loan or contribution or rent concession towards initial work, which are required
to be made by Landlord (A) under the Lease or under any related Lease documents
or (B) for any space which may hereafter become part of said Premises, and any
such requirement shall be inoperative in the event Lender succeeds to the
position of Landlord prior to the completion or performance thereof. Tenant
further agrees with Lender that Tenant will not voluntarily subordinate the
Lease to any lien or encumbrance without Lender's prior written consent.
6. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute and
be construed as one and the same instrument.
7. All remedies which Lender may have against Landlord provided herein, if
any, are cumulative and shall be in addition to any and all other rights and
remedies provided by law and by other agreements between Lender and Landlord or
others. If any party consists of multiple individuals or entities, each of same
shall be jointly and severally liable for the obligations of such party
hereunder.
8. All notices to be given under this Agreement shall be in writing and
shall be deemed served upon receipt by the addressee if served personally or, if
mailed, upon the first to occur Of receipt of the refusal of delivery as shown
on a return receipt, after deposit in the United States Postal Service certified
mail, postage prepaid, addressed to the address of Landlord, Tenant or Lender
appearing below, or, if sent by telegram, when delivered by or refused upon
attempted delivery by the telegraph office. Such addresses may be changed by
notice given in the same manner. If any party consists of multiple individuals
or entities, then notice to any one of same shall be deemed notice to pay such
party.
Lender's Address:
Nomura Asset Capital Corporation
Two World Financial Center, Building B
New York, New York 10281-1198
Attn: Ms. Sheryl McAfee
<PAGE>
Tenant's Address:
_______________________
_______________________
_______________________
_______________________
Attn:__________________
Landlord's Address:
_______________________
_______________________
_______________________
_______________________
Attn:__________________
9. This Agreement shall be interpreted and construed in accordance with
and governed by the laws of the State of California.
10. This Agreement shall apply to, bind and inure to the benefit of the
parties hereto and their respective successors and assigns. As used herein
"Lender" Shall include any subsequent holder of the Deed of Trust.
11. Tenant acknowledges that Landlord has assigned to Lender its right,
title and interest in the Lease and to the rents, issues and profits of the
Property and the Property pursuant to the Deed of Trust, and that Landlord has
been granted the license to collect such rents provided no Event of Default has
occurred under, and as defined in, the Deed of Trust. Tenant agrees to pay all
rents and other amounts due under the Lease directly to Lender upon receipt of
written demand by Lender, and Landlord hereby consents thereto. The assignment
of the Lease to Lender, or the collection of rents by Lender pursuant to such
assignment, shall not obligate Lender to perform Landlord's obligations under
the Lease.
[NO FURTHER TEXT ON THIS PAGE]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
NOMURA ASSET CAPITAL CORPORATION,
a Delaware corporation
By:_______________________________
Name:
Title:
[LANDLORD]
By:_______________________________
[TENANT]
By:_______________________________
<PAGE>
STATE OF CALIFORNIA )
) ss.
COUNTY OF_______________)
On _____________, 2000, before me, _________________ the undersigned, a
notary public in and for said state, personally appeared ____________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
<PAGE>
EXHIBIT G
TO
MOFFETT PARK DRIVE LLC
LEASE TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
SIGNAGE EXHIBIT
(To be provided)
<PAGE>
EXHIBIT H
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
Guaranty of Lease
[Intentionally Omitted]
<PAGE>
EXHIBIT I
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
HAZARDOUS MATERIALS DISCLOSURE
Lessor has provided Lessee, and Lessee acknowledges that it has received
and pursuant to Section 17.22(b) of the Lease, reviewed same, a copy of each of
those certain documents entitled: (i)PHASE I, ENVIRONMENTAL SITE ASSESSMENT OF
THE PROPERTY LOCATED AT 1111 LOCKHEED MARTIN WAY SUNNYVALE, CALIFORNIA, Prepared
for: Lockheed Martin Corporation, Missiles and Space, Sunnyvale, California,
Prepared by: McLaren/Hart, Inc.; Alameda, California, April 22, 1999, Job No.
04.0018178.001.001; and (ii) PHASE II, ENVIRONMENTAL SITE ASSESSMENT, LOCKHEED
MARTIN MISSILES AND SPACE FACILITY, BUILDINGS 104 AND 105, Sunnyvale,
CALIFORNIA, Prepared for: The Jay Paul Company, San Francisco, California,
Prepared by: IRIS ENVIRONMENTAL, Oakland, California, October 4, 1999, Job No.
99-108-B.
LESSEE
ARIBA INC.
a Delaware corporation
By:____________________________
____________________________
(Type or print name)
Its:__________________________
By:____________________________
____________________________
(Type or print name)
Its:__________________________
<PAGE>
EXHIBIT J
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
[INTENTIONALLY LEFT BLANK]
<PAGE>
EXHIBIT K
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
[INTENTIONALLY LEFT BLANK]
<PAGE>
EXHIBIT L
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
[INTENTIONALLY LEFT BLANK]
RULES AND REGULATIONS
1. Lessee and Lessee's employees shall not in any way obstruct the sidewalks,
entry passages, pedestrian passageways, driveways, entrances and exits to the
Project or the Buildings, and they shall use the same only as passageways to and
from their respective work areas.
2. Any sash doors, sashes, windows, glass doors, lights and skylights that
reflect or admit light into any Building shall not be covered or obstructed by
the Lessee. Water closets, urinals and wash basins shall not be used for any
purpose other than those for which they were constructed, and no rubbish,
newspapers, food or other substance of any kind shall be thrown into them.
Lessee shall not mark, drive nails, screw or drill into, paint or in any way
deface the exterior walls, roof, foundations, bearing walls or pillars without
the prior written consent of Lessor, which consent may be withheld in Lessor's
sole discretion. The expense of repairing any breakage, stoppage or damage
resulting from a violation of this rule shall be borne by Lessee.
3. No awning or shade shall be affixed or installed over or in the windows or
the exterior of the Premises except with the consent of Lessor, which may be
withheld in Lessor's discretion.
4. No boring or cutting for wires shall be allowed, except with the consent of
Lessor, which consent may be withheld in Lessor's discretion.
5. Lessee shall not do anything in the Premises, or bring or keep anything
therein, which will in any way increase or tend to increase the risk of fire or
the rate of fire insurance or which Shall conflict with the
<PAGE>
of fire or the rate of fire insurance or which shall conflict with the
regulations of the fire department or the law or with any insurance policy on
the Premises or any part thereof, or with any rules or regulations established
by any administrative body or official having jurisdiction, and it shall not use
any machinery therein, even though its installation may have been permitted,
which may cause any unreasonable noise, jar, or tremor to the floors or walls,
or which by its weight might injure the floors of the Premises.
6. Lessor may reasonably limit weight, size and position of all safes, fixtures
and other equipment used in the Premises. If Lessee shall require extra heavy
equipment, Lessee shall notify Lessor of such fact and shall pay the cost of
structural bracing to accommodate it. All damage done to the Premises or Project
by installing, removing or maintaining extra heavy equipment shall be repaired
at the expense of Lessee.
7. Lessee and Lessee's officers, agents and employees shall not make nor permit
any loud, unusual or improper noises nor interfere in any way with other Lessees
or those having business with them, nor bring into or keep within the Project
any animal or bird or any bicycle or other Vehicle, except such vehicle as
Lessor may from time to time permit.
8. No machinery of any kind will be allowed in the Premises without the written
consent of Lessor. This shall not apply, however, to customary office equipment
or trade fixtures or package handling equipment.
9. All freight must be moved into, within and out of the Project only during
such hours and according to such reasonable regulations as may be posted from
time to time by Lessor.
10. No aerial or satellite dish or similar device shall be erected on the roof
or exterior walls of the Premises, or on the grounds, without in each instance,
the written consent of Lessor. Any aerial so installed without such written
consent shall be subject to removal without notice at any time. Lessor may
withhold consent in its sole discretion.
11. All garbage, including wet garbage, refuse or trash shall be placed by the
Lessee in the receptacles appropriate for that purpose and only at locations
prescribed by the Lessor.
<PAGE>
12. Lessee shall not burn any trash or garbage at any time in or about the
Premises or any area of the Project.
13. Lessee shall observe all security regulations issued by the Lessor and
comply with instructions and/or directions of the duly authorized security
personnel for the protection of the Project and all tenants therein.
14. Any requirements of the Lessee will be considered only upon written
application to Lessor at Lessor's address set forth in the Lease.
15. No waiver of any rule or regulation by Lessor shall be effective unless
expressed in writing and signed by Lessor or its authorized agent.
16. Lessor reserves the right to exclude or expel from the Project any person
who, in the judgment of Lessor, is intoxicated or under the influence of liquor
or drugs, or who shall in any manner do any act in violation of the law or the
rules and regulations of the Project.
17. Lessor reserves the right at any time to change or rescind any one or more
of these rules and regulations or make such other and further reasonable rules
and regulations as in Lessor's judgment may from time to time be necessary for
the operation, management, safety, care and cleanliness of the Project and the
Premises, and for the preservation of good order therein, as well as for the
convenience of other occupants and tenants of the Project. Lessor shall not be
responsible to Lessee or the any other person for the non-observance or
violation of the rules and regulations by any other tenant or other person.
Lessee shall be deemed to have read these rules and have agreed to abide by them
as a condition to its occupancy of the Premises.
18. Lessee shall abide by any additional rules or regulations which are ordered
or requested by any governmental or military authority.
19. In the event of any conflict between these rules and regulations, or any
further or modified rules and regulations from time to time issued by Lessor,
and the Lease provisions, the Lease provisions shall govern and control.
20. Lessor specifically reserves to itself or to any person or firm it selects,
(i) the right to place in and upon the Project, coin-operated machines for the
<PAGE>
sale of cigarettes, candy and other merchandise or service, and (ii) the revenue
resulting therefrom.
<PAGE>
EXHIBIT M
TO
MOFFETT PARK DRIVE LLC LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
Moffett Park Drive TDM Plan
<PAGE>
Moffett Park Office Project
Transportation Demand Management Plan
Prepared for
Jay Paul Company
and
City of Sunnyvale
Prepared by:
Meyer, Mohaddes Associates
San Bruno, Calif.
February 22, 2000
<PAGE>
TABLE OF CONTENTS
Executive Summary iii
I. Project Description
A. Project Overview & Site Map 1
B. Transit Services 2
C. Bicycle Routes 4
II. TDM Site Facilities and Amenities
A. Light-Rail Station 5
B. Preferential Carpool/Vanpool Parking 5
C. Bicycle Storage 5
D. Showers and Clothing Lockers for Cyclocommuters 5
E. Carpool/Vanpool/Shuttle Pickup Areas 5
F. On-Site Services and Amenities 5
III. Commuter Information and Marketing
A. Ridematching Services 6
B. Transit Information 6
C. Cyclo-Commute Information 6
D. Special Events 6
E. Promotional Materials 6
F. Telecommute Assistance 6
G. Alternative-Work-Schedule Assistance 6
IV. Commuter Services Operation
A. Connection to Caltrain Station 7
B. Guaranteed-Ride-Home Service 7
V. Financial Incentives 8
VI. Program Monitoring, Reporting and Assurance of Success
A. Annual Commuter Survey 8
B. Annual Report to City 8
C. TDM Goal 8
D. Achievement of TDM Goal 8
VII. Summary and Concluding Comments 9
ii
<PAGE>
- Executive Summary -
Moffett Park Office Project TDM Plan
A comprehensive TDM Program will be implemented for the Moffett Park Office
project to meet the Transportation Demand Management (TDM) Goal-that at least
15% of all on-site employees are commuting via some means other than driving
alone. The overall strategy of the Moffett Park TDM Program is (1) Provide
personalized information about commute options, (2) offer incentives, (3) remove
barriers to use of commute alternatives, and (4) maintain awareness of the TDM
Program. The project will be occupied by a single tenant, who will carry out the
ongoing TDM Program activities. If necessary, this initial program will be
expanded or revised in order to achieve the TDM Goal in the most cost-effective
manner.
I. Project Description
The proposed project, located near Moffett Park Drive and Lockheed Way, will
replace an existing Lockheed-Martin research and development facility containing
approx. 456,400 square feet, with an office-park campus containing 636,562
square feet in four buildings, plus 15,000 square feet-in a separate Fitness
Center. With the new Tasman West light-rail line and station immediately
adjacent, the site will enjoy excellent transit service.
II. Site Facilities and Amenities
The project design will include a number of features and amenities to encourage
and support the use of alternative commute modes. This will include the
following physical elements:
A. Light-Rail Station - a new station will be constructed immediately
adjacent to the project site, with convenient pedestrian access to the
project buildings. In addition to serving the employees at the Moffett
Park Office Project, the new station will serve roughly 4,000 employees at
nearby sites.
B. Designated Carpool/Vanpool Parking - Minimum of 10% of all spaces; located
convenient to building entrance(s). These spaces will be designed for
full-sized vehicles. Additional spaces will be designated when current
spaces are fully utilized. Users must obtain a carpool parking permit
C. Bicycle storage - For 109 bicycles total, consisting of 82 bicycle lockers
plus 27 bicycle racks. This is consistent with VTA Bicycle Guidelines.
D. Showers and Clothing Lockers - At least 15 showers (10 men, 5 women), plus
82 clothing lockers (55 men, 27 women) guaranteed to cyclocommuters. Each
building will contain showers and lockers, but exact locations and numbers
will be determined in the final design, to best meet the needs of the
initial tenant.
E. Carpool/Vanpool/Shuttle Pickup Area - a convenient and safe area for
boarding and discharging passengers from carpools, vanpools, and shuttles.
F. On-Site Amenities - Pedestrian/bike circulation links to adjacent
properties, perimeter walking and jogging paths, plus meditation gardens
and seating areas. a restaurant/cafeteria and a fitness center will also
be included in the project, and will be built as a tenant improvement.
III. Commuter Information & Marketing
Information and marketing services will be offered to tenants and their
employees. This will include certain services to employees, and other services
to the tenants (employers). All tenants will be required to assist in the
delivery of these services to their employees who wish to participate. Services
to employees will include:
iii
<PAGE>
A. Ride-matching - Personalized carpool matching and vanpool information for
employees. This will either be performed on-site or off-site (e.g. by
RIDES).
B: Transit Information - General transit info (maps, schedules) for nearby
service, personalized transit info (routes & schedules) on request, plus
information on how to purchase transit passes via the Internet and by
mail.
C. Cyclo-Commute Information - General bike info (route maps, tips for new
cyclists, references to local bike organizations), plus "bike-buddy"
matching upon request.
D. Special Events - One or more on-site events per year promoting carpools,
vanpools, transit, bicycling, and/or other commuting options.
E. Promotional Materials - This will consist of posters, flyers, brochures or
other material describing TDM opportunities, distributed via bulletin
boards, paycheck stuffers, email, or other means.
The following services will also be provided to tenants, upon their request:
F. Alternative Work Schedule Assistance - Guidance to tenants wishing to
establish flextime or compressed-work-week programs for their
employees.
G. Telecommute Assistance - Guidance to tenants wishing to establish
telecommuting programs for their employees.
IV. Commuter Service Operation
To support the incentives and information elements of the TDM Program, a number
of ongoing services will be provided to commuters at the site:
A. Connection to Caltrain Station - The project will contribute to the
operating costs of the Moffett Park Area Shuttle, which currently offers 5
runs in the morning and 6 runs in the evening to/from the Sunnyvale
Caltrain Station. With the completion of the LRT station at Moffett Park,
improved access to Caltrain will be available via a transfer at the
Mountain View station to the LRT. At that time, the shuttle subsidy may be
discontinued, in order to shift those trips onto the LRT line.
B. Guaranteed Ride Home Service - GRH services will be provided either by VTA
or directly via subsidized taxi rides or rental cars. Reasonable usage
limitations on number of trips per month or year will apply to prevent
abuse.
V. Financial Incentives
All tenants will be required to either purchase a VTA Eco Pass for bus and light
rail for each full-time employee, or purchase a monthly pass (or equivalent) at
a cost of up to $65 per month for each employee who commutes via public
transportation on a substantially full-time basis. The tenant may elect to offer
both incentives.
VI. Program Monitoring, Reporting and Assurance of Success
Management and monitoring of the TDM Program will include the following:
A. Annual Commuter Survey - A survey of tenants' employees will be conducted
yearly, using City-approved methodology, to measure the employees on-site
who are commuting via alternative modes.
B. Annual TDM Report to City - A report will be prepared and submitted to
City each year, presenting the results of the Commuter Survey and
summarizing TDM Program activities.
C. TDM Goal - The Applicant has established a TDM Goal for this project, that
at least 15% of all on-site employees travel to work by some means other
than driving alone.
D. Achievement of TDM Goal - The Applicant understands that provisions will
be included in the Development Agreement defining remedies for failure to
attain the TDM Goal, and that such remedies may include financial
penalties proportional to any shortfall.
iv
<PAGE>
I. Project Description
A. Project Overview
The proposed project site is located near the intersection of Moffett Park Drive
and Lockheed Way, in the City of Sunnyvale. Please see Figure 1 for a map of the
project location The site now contains a Lockheed-Martin research and
development facility totaling approx. 456,400 square feet of space. The proposed
development will remove the existing facilities and construct an attractive,
office-park campus -consisting of four buildings containing 636,562 square feet
of space, plus a separate Fitness Center containing 15,000 square feet. Please
see Figure 2 for a preliminary Site Plan. The primary uses of this space will be
general office, intended to support the vibrant local economy that is uniquely
characterized by computer, software, and internet-related enterprises.
[Figure 1. Location Map]
1
<PAGE>
Figure 2. Preliminary Site Plan
2
<PAGE>
B. Transit Services
1. Light-Rail Transit - With the opening of the Tasman West light-rail line
extension, plus the new station immediately adjacent to the project site (and
with convenient pedestrian access to the project buildings), the site will
offer excellent light-rail transit service to the site's employees and
visitors.
2. Commuter Rail - The Sunnyvale Caltrain Station at Evelyn & Francis, offers
all-day commuter-rail service to points along the peninsula between San Jose
and San Francisco, plus commute-period service between Gilroy and San Jose.
The Sunnyvale station includes automobile parking and bicycle lockers, plus
is wheelchair-accessible. This Caltrain station is less than two miles from
the site, and may be reached via a shuttle service that currently makes five
trips in the morning and six trips in the afternoon. With the completion of
the LRT station adjacent to the project, convenient access to the Caltrain
station in Mountain View will be provided via the Tasman West line.
3. Bus Service - a number of VTA bus routes serve the project site, either
adjacent or within walking distance. These bus routes are shown in Figure 3,
along with the new light-rail line.
[Figure 3. VTA Transit Service Near Project Site -- Map]
3
<PAGE>
C. Bicycle Routes
Several bicycle routes are available in the vicinity of the project site. These
routes are shown in Figure 4.
[Figure 4. Bicycle Routes Near Project Site -- Map]
4
<PAGE>
II. Site Facilities and Amenities
The physical infrastructure and environment can have a substantial impact on the
success of a TDM Program, by making it easier (or harder) for employees to use
alternative transportation modes. Being a new development, the Moffett Park
Office Project offers the opportunity to optimize the elements of the physical
environment to fully support those who choose not to drive alone to work. Thus,
the project design will include a number of features and amenities to encourage
and support the use of alternative commute modes. This will include:
A. Light-Rail Station - To encourage transit usage by employees and visitors to
the site, a new station on the Tasman West light-rail line will be
constructed as part of the proposed project. The new station will be located
on Moffett Park Drive, immediately adjacent to the project site. The site
design will include convenient pedestrian access from the new station to the
project buildings. In addition to serving the employees at the Moffett Park
Office Project, the new station will also serve roughly 4,000 employees at
nearby sites.
B. Designated Carpool/Vanpool Parking - This will serve as a convenience
incentive to carpoolers and vanpoolers, and it will also be a visible
reminder to all employees of the benefits of ridesharing. A minimum of 10% of
all on-site parking spaces will be designated for exclusive use of carpools
and vanpools. These spaces will be located convenient and visible to the
building entrances, and will be designed for full-sized vehicles to make it
easier to enter/exit the carpool and vanpool vehicles. Additional
preferential spaces will be designated when the current spaces are fully
utilized. Users of these spaces will be required to obtain a carpool or
vanpool parking permit.
C. Bicycle storage - A concern among many bicyclists is the fear of theft of
their expensive bicycles. Secure bicycle storage facilities can largely
eliminate this deterrent to using their bikes to commute. The project design
will include 109 bicycle spaces -- 82 enclosed lockers for individual
bicycles plus 27 racks. The amount of bike storage is consistent with the VTA
Bicycle Guidelines.
D. Showers and Clothing Lockers - Riding a bike to work can be vigorous
exercise, and many cyclo-commuters work up a sweat. To insure workplace
harmony, at least 10 showers for men and at least 5 for women, plus 55
clothes lockers for men and 27 for women, will be available to full-time
cyclocommuters. Each building and the Fitness Center will contain some of
these 15 showers and 82 clothes lockers, but the exact locations and numbers
will be determined in the final design, to best meet the needs of the initial
tenant.
E. Carpool/Vanpool/Shuttle Pickup Area - Some people are concerned about waiting
for a carpool or vanpool in an unsafe place or one that is not sheltered from
adverse weather conditions. To allay this fear, a convenient and safe area
will be provided on the site for boarding and discharging passengers from
carpools, vanpools, and shuttles.
F. On-Site Amenities - Some commuters find it difficult to leave their car at
home because they may need it at work for lunch trips or other daytime travel
to meet personal or business needs. To reduce this concern, the site design
will incorporate pedestrian and bicycle circulation links to adjacent
properties, pleasant walking/jogging paths at the perimeter of the property,
plus attractive meditation gardens and seating areas. A restaurant/cafeteria
and a fitness center will be developed as a part of the project, and will be
built as a tenant improvement.
5
<PAGE>
III. Commuter Information & Marketing
To encourage the maximum use of commute alternatives, commuters must be fully
aware of all travel options available for their trip to/from work. To insure
that they are fully aware, the TDM Program must first gain their interest in
ridesharing, and then provide high-quality information about that option in a
timely and personalized manner. The TDM Program will deliver a range of
information and marketing services to tenants and employees. This will include
certain services targeted to employees, and other services to the tenants
(employers). All tenants will be required to assist in the delivery of these
services to all of their employees who wish to participate. Services to
employees will include the following:
A. Ride-matching - This will include personalized carpool-matching and vanpool
information for employees. Carpool-matching information will inform commuters
about other people who live and work nearby and have similar work schedules.
Vanpool information will inform commuters about any existing vanpools that
they could use to get to work. This information function may be performed
on-site via electronic or manual means, or may be performed off-site (for
example, by RIDES, the regional ridesharing agency).
B. Transit Information - This will include general transit information (maps and
timetables) for all transit routes near the project site, plus personalized
transit info (specific routes, schedules and fares) upon request by any
employee on-site for his/her commute trip. It will also include information
and assistance on how to purchase transit passes via the Internet and Postal
Service.
C. Cyclo-Commute Information - This will include general bike information (route
maps, tips for new cyclists, referrals to local bike organizations), plus
personalized assistance ("bike-buddy" matching) upon request.
D. Promotional Events - Research has shown that many commuters decide to adopt
an alternative mode in response to a specific occurrence (e.g. a car
breakdown). Promotional activities (events, materials, etc.) are important to
insure a high awareness of available commute options when that event occurs.
To maintain awareness of commute options and resources, the TDM Program will
include one or more on-site events each year promoting carpools, vanpools,
transit, bicycling, and/or other commuting options.
E. Promotional Materials - To maintain awareness between the periodic
promotional events, the TDM Program will maintain a continuing presence of
promotional materials. This will consist of posters, flyers, brochures or
other material describing TDM opportunities, distributed via bulletin boards,
paycheck stuffers, email, or other means.
Commuter Information and Marketing activities will also include the following
services to tenants, upon their request:
F. Alternative-Work-Schedule Assistance - This will consist of guidance and
assistance to tenants who wish to establish flextime or compressed-work-week
programs for their employees. The TDM Program will supply information
(publications, websites, etc.), and referrals to specialists (organizations,
consultants, etc.):
G. Telecommute Assistance - As before, this will consist of guidance and
assistance to tenants who wish to establish telecommute/telework programs for
their employees. The TDM Program will supply information resources, plus
referrals to appropriate specialists, if desired.
6
<PAGE>
IV. Commuter Services Operation
To support the incentives and information elements of the TDM Program, and to
remove barriers to ridesharing, a number of operational services will be
provided to commuters at the site:
A Connection to Caltrain Station - The project will contribute to the operating
Costs of the Moffett Park Area Shuttle, which currently offers 5 runs in the
morning and 6 runs in the evening to/from the Sunnyvale Caltrain Station. A
map of the Current route is shown in Figure 5. With the completion of the LRT
station adjacent to the project, convenient access to Caltrain will be
provided Via platform-to-platform transfer at the Mountain View Caltrain
station to the Tasman West LRT line on which the new station is located. At
that time, the shuffle subsidy may be discontinued, in order to shift those
trips off the local roadways and onto the light-rail service.
[Figure 5. Route of Moffett Park Area Shuttle -- Map]
B. Guaranteed Ride Home Service - Research on barriers to ridesharing has
revealed that many potential users of commute alternatives are prevented from
doing so because they fear that they would be stranded at work in case of a
daytime emergency or unexpected overtime work. Guaranteed-Ride-Home (GRH)
Services are a proven way to effectively respond to this concern by providing
a means to travel home in those instances. These GRH services will be
provided either by VTA (as part of the Eco Pass program, or directly via
subsidized taxi rides or rental cars. To prevent abuse, reasonable
limitations on number of trips per month or year may apply.
7
<PAGE>
V. Financial Incentives
Financial incentives have been shown to be strong motivators for use of public
transit for many commuters. Undercurrent federal law, it is relatively easy for
employers to subsidize the use of public transit for their employee's travel to
work, and these subsidies are exempt from federal income taxes if the monthly
subsidy does not exceed $65. It is much more difficult to subsidize the use of
carpools, bicycles, and other commute alternatives without incurring federal
income tax liabilities.
To take maximum advantage of the tax-exempt, transit subsidies now available,
all tenants will be required to either:
(1) purchase a VTA Eco Pass for each full-time employee, or
(2) purchase a monthly pass or equivalent ticket books at a cost of up to $65
per month for each employee who travels to work via public transportation
on a full-time basis.
The tenant may elect to do both.
The Santa Clara Valley Transportation Authority (VTA) Eco Pass program offers
unlimited use on all VTA buses and light rail lines, seven days a week. The $65
per month transit subsidy could be applied to any public transit service in the
Bay area, and to qualified vanpool services. In general, these transit subsidies
would not be subject to federal income taxes, yielding an equivalent after-tax
benefit of almost $100 per month to transit users.
VI. Program Monitoring, Reporting and Assurance of Success
The effectiveness of the Moffett Park Office Project TDM Program will be
regularly measured and documented, to assure achievement of the City's TDM Goal.
The following procedures will be used:
A. Annual Commuter Survey - A survey of tenant's employees will be conducted
yearly to measure the number of on-site employees who are commuting via
alternative modes. To insure accuracy, the survey will utilize City-approved
methodology and will be subject to audit by the City. This will serve as a
standardized "yardstick" by which the success of the TDM Program can be
measured.
B. Annual TDM Report to City - A TDM Report will be prepared and submitted to
the City each year. The TDM Report will present the results of the Commuter
Survey and also summarize current TDM Program activities. It will also
identify changes to the TDM Program to be made during the next year.
C. TDM Goal - The Applicant has defined a TDM Goal for the Moffett Park Office
Project - that at least 15% of all employees who regularly work at the site
are commuting via some means other than driving alone. This Goal includes
proportional credits for those employees who avoid driving as a result of
compressed work schedules (e.g. 4/40, 9/80) and part-time telecommuting by
those who normally work at the site.
D. Achievement of TDM Goal - The Applicant understands that provisions will be
included in the development agreement defining remedies for failure to attain
the TDM Goal, and that these remedies may include financial penalties
proportional to any shortfall. The Applicant reserves the right to expand or
revise this initial TDM program, if necessary, in order to achieve the TDM
Goal in the most cost-effective manner.
8
<PAGE>
VII. Summary and Concluding Comments
This TDM Plan proposes a comprehensive set of TDM actions that will be
implemented for the Moffett Park Office project to meet the TDM Goal - that at
least 15% of all on-site employees are commuting via some means other than
driving alone. The overall strategy of the Moffett Park TDM Program is:
o Provide full information about commute options,
o Offer incentives to those who use commute alternatives,
o Remove barriers to use of these commute alternatives, and
o Maintain high awareness of the TDM Program by employees at the site.
The Moffett Park Office Project will be occupied by a single tenant. This tenant
will operate and manage the TDM Program, and will deliver the ongoing services
described in this TDM Plan. The TDM Program Manager will also cooperate with the
TDM programs of nearby employers to maximize ridesharing opportunities.
The proposed TDM Program consists of a balanced set of measures, including:
(1) Site design (facilities and amenities) that reduce auto dependency,
(2) Information about the major commute alternatives available,
(3) Operation of transportation services to increase the attractiveness of
transit and ridesharing,
(4) Financial incentives to encourage the use of public transit, and
(5) Program monitoring, reporting and remedial measures to assure success.
9
<PAGE>
EXHIBIT N
TO
MOFFETT PARK DRIVE LLC
LEASE
TO
ARIBA, INC.
FOR PREMISES
at
1111 Lockheed Martin Way
Sunnyvale, California
Adjacent Project
(See Attached)
<PAGE>
[LOCKHEED MARTIN
LOCKHEED MARTIN MISSILES & SPACE CO.
SUNNYVALE, CALIFORNIA
PRELIMINARY LOT LINE ADJUSTMENT MAP]
<PAGE>
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR ON OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
ARIBA, INC.
CLASS A
COMMON STOCK PURCHASE WARRANT
Mountain View, California
January 1, 2000
ARIBA, INC., a Delaware corporation (the "Company"), for value
received, hereby certifies that EDS CoNext, Inc. ("EDS CoNext"), or its
registered assigns, is entitled to purchase from the Company [*] duly
authorized, validly issued, fully paid and nonassessable shares (the
"Shares") of Common Stock of the Company, par value $.002 per share (the
"Common Stock"), at the purchase price per share of [*] (the "Initial
Warrant Price"), all subject to the terms, conditions and adjustments set
forth below in this Warrant.
This Warrant is one of the Common Stock Purchase Warrants (the
"Warrants," such term to include any warrants issued in substitution therefor)
originally issued in connection with the execution and delivery of the Alliance
Agreement dated as of December 31, 1999 (as from time to time in effect, the
"Alliance Agreement") between the Company and EDS CoNext. Certain capitalized
terms used in this Warrant are defined in Section 13 hereof.
1. VESTING OF WARRANTS.
1.1 VESTING EVENTS AND AMOUNTS. This Warrant shall vest and become
exercisable only upon the occurrence of the following events (each, a "Vesting
Event") and only for the following number of shares of Common Stock set forth
opposite such event:
<TABLE>
<CAPTION>
Shares of
Vesting Event Common Stock
------------- ------------
<S> <C>
[*] [*]
[*]
[*]
[*]
[*]
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
[*] [*]
[*]
[*]
[*]
[*]
[*]
</TABLE>
Notwithstanding the provisions of this Section 1.1, the aggregate number of
shares of Common Stock issuable upon exercise of this Warrant shall not
exceed the aggregate number of Shares set forth in the introductory paragraph
hereof. The number of shares of Common Stock set forth in subsections (a)
through (k) above shall be adjusted to the extent and in the same manner as
the aggregate number of Shares is adjusted under the provisions of Sections 4
and 5 hereof. For purposes of each of subsections (a), (b) and (c) through
(f) above, [*]
1.2 EFFECTIVENESS OF VESTING. This Warrant shall be vested as to the
number of shares of Common Stock as set forth in Section 1.1 above on the
date that the Vesting Event occurs (the "Vesting Date" with respect to such
Vesting Event).
1.3 NOTICE OF VESTING. Following the occurrence of any Vesting
Event, but no sooner than the first day of the next proceeding fiscal quarter
of the Company, EDS CoNext shall give the Company written notice of the
Vesting Event and the Vesting Date, together with all necessary documentation
to establish the foregoing (the "Vesting Notice" with respect to such Vesting
Event).
1.4 NOTICE OF OBJECTION. The Company shall have ten (10) Business
Days from the Vesting Notice having been given in accordance with Section 15
(the "Objection Notice Period") to give EDS CoNext written notice that the
Company objects to all or a portion of the vesting of this Warrant as set
forth in the Vesting Notice (the "Objection Notice"). Any portion of the
vesting set forth in the Vesting Notice as to which no objection is made
shall be immediately vested. Upon the giving of the Objection Notice with
regard to any portion of the vesting as to which an objection is made, the
Company and EDS CoNext will use reasonable efforts to resolve any objections.
If the Company and EDS CoNext are unable to resolve the dispute, the Company
and EDS CoNext will jointly select an accounting firm of national standing to
resolve the dispute. If the Company and EDS CoNext are unable to agree on the
choice of such an
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-2-
<PAGE>
accounting firm, they will select an accounting firm of national standing by
lot which has not provided services to either the Company or EDS CoNext
during the preceding twenty-four (24) months (the "Accountant") which shall
determine whether the Vesting Event has occurred. The Accountant shall
deliver to each of the Company and EDS CoNext its determination within ten
(10) Business Days after being selected, and the determination of the
Accountant shall be binding upon the Company and EDS CoNext. The expenses of
the Accountant shall be borne equally by the Company and EDS CoNext. Any
additional portion of the Warrant that shall vest as a result of the
agreement of the Company and EDS CoNext or the determination of the
Accountant shall be vested as of the Vesting Date upon such agreement or
determination.
1.5 EXERCISE OF WARRANT FOLLOWING SALE OF THE COMPANY. In the event of
the consummation of any transaction which would result in the holders of Common
Stock or any shares of common stock received in exchange for the Common Stock
receiving cash or non-marketable securities, the Warrant, (i) as to that portion
of the Warrant that is then exercisable, shall be exercised prior to the
commencement of such transaction, and (ii) [*]
2. EXPIRATION OF WARRANT. This Warrant, as to each portion thereof that vests
and becomes exercisable pursuant to Section 1, shall expire on the fifth
anniversary date of the Vesting Date for such exercisable portion of the
Warrant (the "Expiration Date"). The Warrant shall cease to vest upon the
termination of the Alliance Agreement.
3. EXERCISE OF WARRANT. This Warrant shall be exercisable only with respect
to Shares as to which this Warrant has vested and become exercisable pursuant
to the terms of Sections 1 and 3 hereof.
3.1 MANNER OF EXERCISE. This Warrant may only be exercised by the
holder hereof, in accordance with the terms and conditions hereof, in whole
or in part with respect to any vested portion of the Warrant, into shares of
Common Stock, during normal business hours on any Business Day on or prior to
the Expiration Date with respect to such vested portion of the Warrant, by
surrender of this Warrant to the Company at its office maintained pursuant to
Section 12.2(a) hereof, accompanied by an exercise notice in substantially
the form attached to this Warrant (or a reasonable facsimile thereof) duly
executed by the holder, and the holder shall thereupon be entitled to receive
a number of duly authorized, validly issued, fully paid and nonassessable
shares of Common Stock (or Other Securities) equal to:
(a) an amount equal to:
(i) an amount equal to (x) the number of
shares of Common Stock (or Other Securities)
determined as provided in Sections 4 and 5 hereof
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-3-
<PAGE>
which the holder would be entitled to receive upon
exercise of this Warrant for the number of shares of
Common Stock designated in the exercise notice
MULTIPLIED BY (y) the Current Market Price of each
share of Common Stock (or Other Securities) so
receivable upon exercise
MINUS
(ii) an amount equal to (x) the number of
shares of Common Stock (without giving effect to any
adjustment thereof) designated in the exercise notice
MULTIPLIED BY (y) the Initial Warrant Price
DIVIDED BY
(b) the Current Market Price of each share of Common
Stock (or Other Securities);
PROVIDED, HOWEVER, that the holder may not exercise this Warrant for
shares of Common Stock (or Other Securities) until [*]
3.2 WHEN EXERCISE EFFECTIVE. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
Business Day on which this Warrant shall have been surrendered to the Company as
provided in Section 3.1 hereof, and, at such time, the Person or Persons in
whose name or names any certificate or certificates for shares of Common Stock
(or Other Securities) shall be issuable upon exercise as provided in Section 3.3
hereof shall be deemed to have become the holder or holders of record thereof.
3.3 DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable after
each exercise of this Warrant, in whole or in part, and in any event within
fifteen (15) Business Days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the holder hereof or, subject to Section 10 hereof, as the
holder (upon payment by the holder of any applicable transfer taxes) may direct:
(a) a certificate or certificates (with appropriate
restrictive legends, as applicable) for the number of duly
authorized, validly issued, fully paid and nonassessable
shares of Common Stock (or Other Securities) to which the
holder shall be entitled upon exercise plus, in lieu of any
fractional share to which the holder would otherwise be
entitled, cash in an amount equal to the same fraction of the
Market Price per share on the Business Day immediately prior
to the date of exercise; and
(b) in case exercise is in part only, a new Warrant
of like tenor, dated the date hereof and calling in the
aggregate on the face thereof for the number of shares of
Common Stock equal (without giving effect to any adjustment
thereof) to the number of shares called for on the face of
this Warrant minus the number of shares designated by the
holder upon exercise as provided in Section 3.1 hereof.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-4-
<PAGE>
3.4 COMPANY TO REAFFIRM OBLIGATIONS. The Company will, at the time of
each exercise of this Warrant, upon the written request of the holder hereof,
acknowledge in writing its continuing obligation to afford to the holder all
rights (including without limitation any rights to registration, pursuant to the
Registration Agreement referred to in Section 9 hereof, of the shares of Common
Stock or Other Securities issued upon exercise) to which the holder shall
continue to be entitled after exercise in accordance with the terms of this
Warrant; PROVIDED, HOWEVER, that if the holder of this Warrant shall fail to
make a request, the failure shall not affect the continuing obligation of the
Company to afford the rights to such holder.
4. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.
4.1 GENERAL; NUMBER OF SHARES; WARRANT PRICE. The number of shares of
Common Stock which the holder of this Warrant shall be entitled to receive upon
each exercise hereof shall be determined by multiplying the number of shares of
Common Stock which would otherwise (but for the provisions of this Section 4) be
issuable upon exercise, as designated by the holder hereof pursuant to Section
3.1 hereof, by the fraction of which (a) the numerator is the Initial Warrant
Price and (b) the denominator is the Warrant Price in effect on the date of such
exercise. The "Warrant Price" shall initially be the Initial Warrant Price,
shall be adjusted and re-adjusted from time to time as provided in this Section
4 and, as so adjusted or re-adjusted, shall remain in effect until a further
adjustment or re-adjustment thereof is required by this Section 4.
4.2 TREATMENT OF STOCK DIVIDENDS, STOCK SPLITS, ETC. In case the
Company at any time or from time to time after the date hereof shall declare or
pay any dividend on the Common Stock payable in Common Stock, or shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in Common Stock), then, and in each case, subject to Section 4.4
hereof, the Warrant Price shall be reduced, concurrently with the dividend or
subdivision, to a price determined by multiplying the Warrant Price by a
fraction:
(a) the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to the
dividend or subdivision; and
(b) the denominator of which shall be the number of
shares of Common Stock outstanding immediately after the
dividend or subdivision.
Additional shares of Common Stock shall be deemed to have been issued
and to be outstanding (a) in the case of any dividend, immediately after the
close of business on the record date for the determination of holders of any
class of securities entitled to receive the dividend, or (b) in the case of any
subdivision, at the close of business on the day immediately prior to the day
upon which the corporate action becomes effective. Additional shares of Common
Stock deemed to have been issued pursuant to this Section 4.2 shall be deemed to
have been issued for no consideration.
4.3 ADJUSTMENTS FOR COMBINATIONS, ETC. In case the outstanding shares
of Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-5-
<PAGE>
shares of Common Stock, the Warrant Price in effect immediately prior to the
combination or consolidation shall, concurrently with the effectiveness of
such combination or consolidation, be proportionately increased. Adjustment
under this Section 4.3 shall become effective at the close of business on the
day immediately prior to the day upon which the corporate action becomes
effective.
4.4 MINIMUM ADJUSTMENT OF WARRANT PRICE. If the amount of any
adjustment of the Warrant Price required pursuant to this Section 4 would be
less than one-tenth (1/10) of one percent (1%) of the Warrant Price in effect at
the time of the adjustment is otherwise so required to be made, the amount shall
be carried forward and adjustment with respect thereto made at the time of and
together with any subsequent adjustment which, together with the amount and any
other amount or amounts so carried forward, shall aggregate at least one tenth
(1/10) of one percent (1%) of the Warrant Price.
5. ADJUSTMENTS FOR CONSOLIDATION, MERGER, SALE OF ASSETS, REORGANIZATION,
ETC. In case the Company after the date hereof (a) shall consolidate with or
merge into any other Person and shall not be the continuing or surviving
corporation following the consolidation or merger, or (b) shall permit any
other Person to consolidate with or merge into the Company and the Company
shall be the continuing or surviving Person but, in connection with the
consolidation or merger, the Common Stock or Other Securities shall be
changed into or exchanged for stock or other securities of any other Person
or cash or any other property, or (c) shall transfer all or substantially all
of its properties or assets to any other Person, or (d) shall effect a
capital reorganization or reclassification of the Common Stock or Other
Securities then, and in the case of each such transaction, proper provision
shall be made so that, upon the basis and the terms and in the manner
provided in this Warrant, the holder of this Warrant, upon the exercise
hereof at any time after the consummation of the transaction, shall be
entitled to receive (at the aggregate Warrant Price in effect at the time of
such consummation for all Common Stock or Other Securities issuable upon
exercise immediately prior to the consummation), in lieu of the Common Stock
or Other Securities issuable upon exercise prior to the consummation, the
greatest amount of securities, cash or other property to which the holder
would actually have been entitled as a stockholder upon such consummation if
the holder had exercised the rights represented by this Warrant (to the
extent then exercisable pursuant to Section 1) immediately prior thereto,
subject to adjustments (subsequent to the consummation) as nearly equivalent
as possible to the adjustments provided for in Sections 4 and 5 hereof.
6. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all of the terms and in the taking
of all actions necessary or appropriate in order to protect the rights of the
holder of this Warrant. Without limiting the generality of the foregoing, the
Company (a) will not permit the par value of any shares of stock receivable
upon the exercise of this Warrant to exceed the amount payable therefor upon
exercise, (b) will take all actions necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares
of stock on the exercise of the Warrant and
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-6-
<PAGE>
(c) will not take any action which results in any adjustment of the Warrant
Price if the total number of shares of Common Stock (or Other Securities)
issuable after the action upon the exercise of the Warrant would exceed the
total number of shares of Common Stock (or Other Securities) then authorized
by the Company's certificate of incorporation and available for the purpose
of issuance upon exercise.
7. CHIEF FINANCIAL OFFICER'S REPORT AS TO ADJUSTMENTS. In the case of any
adjustment or re-adjustment in the shares of Common Stock (or Other
Securities) issuable upon the exercise of this Warrant, the Company at its
expense will promptly compute the adjustment or re-adjustment in accordance
with the terms of this Warrant and, if requested by the holder, cause its
Chief Financial Officer to certify the computation (other than any
computation of the fair value of property as determined in good faith by the
Board of Directors of the Company) and prepare a report setting forth the
adjustment or re-adjustment and showing in reasonable detail the method of
calculation thereof and the facts upon which the adjustment or re-adjustment
is based, including a statement of (a) the number of shares of Common Stock
outstanding or deemed to be outstanding and (b) the Warrant Price in effect
immediately prior to the deemed issuance or sale and as adjusted and
re-adjusted (if required by Section 4 hereof) on account thereof. The Company
will forthwith mail a copy of each report to each holder of a Warrant and
will, upon the written request at any time of any holder of a Warrant,
furnish to the holder a like report setting forth the Warrant Price at the
time in effect and showing in reasonable detail how it was calculated. The
Company will also keep copies of all reports at its office maintained
pursuant to Section 12.2(a) hereof and will cause them to be available for
inspection at the office during normal business hours upon reasonable notice
by any holder of a Warrant or any prospective purchaser of a Warrant
designated by the holder thereof.
8. REPRESENTATION AS TO NUMBER OF OUTSTANDING SHARES. The Company represents
and warrants to EDS CoNext that, as of December 7, 1999, there were issued
and outstanding 108,847,771 shares of Common Stock (after giving effect to
the stock dividend paid on December 17, 1999), including the number of shares
of Common Stock issuable upon the exercise of all outstanding options and
warrants, calculated using the treasury stock method. Other than the stock
dividend paid on December 17, 1999, from December 7, 1999 until the date
hereof, no event has occurred which would have resulted in any adjustment
pursuant to Sections 4 or 5 hereof.
9. REGISTRATION OF COMMON STOCK. The shares of Common Stock (and Other
Securities) issuable upon exercise of this Warrant shall constitute
Registrable Securities (as such term is defined in the Registration
Agreement). The original holder of this Warrant, and any valid transferees
thereof pursuant to the Registration Agreement, shall be entitled to all of
the benefits afforded to a holder of any Registrable Securities under the
Registration Agreement and such holder, by its acceptance of this Warrant,
agrees to be bound by and to comply with the terms and conditions of the
Registration Agreement applicable to the holder as a holder of Registrable
Securities. At any time when the Common Stock is listed on any national
securities exchange, the Company will, at its expense, obtain promptly and
maintain the approval for listing on each exchange, upon official notice of
issuance, any shares of Common Stock issued upon exercise of the then
outstanding Warrants and maintain the listing of the shares after their
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-7-
<PAGE>
issuance; and the Company will also list on such national securities exchange,
will register under the Exchange Act and will maintain the listing of any Other
Securities that at any time are issued upon exercise of the Warrants, if and at
the time that any securities of the same class shall be listed on a national
securities exchange by the Company.
10. RESTRICTIONS ON TRANSFER.
10.1 RESTRICTIVE LEGENDS. This Warrant and each Warrant issued upon
transfer or in substitution for this Warrant pursuant to Section 12, each
certificate for Common Stock (or Other Securities) issued upon the exercise of
any Warrant and each certificate issued upon the transfer of any such Common
Stock (or Other Securities) shall be transferable only upon satisfaction of the
conditions specified in this Section 10 and Section 12.4. Each of the foregoing
securities shall be stamped or otherwise imprinted with a legend reflecting the
restrictions on transfer set forth in Sections 10 and 12.4 hereof and any
restrictions required under the Securities Act.
10.2 NOTICE OF PROPOSED TRANSFER, OPINION OF COUNSEL. Prior to any
transfer of any Restricted Securities which are not registered under an
effective registration statement under the Securities Act, the holder thereof
will give written notice to the Company of the holder's intention to effect a
transfer and to comply in all other respects with this Section 10.2. Each notice
(a) shall describe the manner and circumstances of the proposed transfer, and
(b) shall designate counsel for the holder giving the notice (who may be
in-house counsel for the holder). The holder giving notice will submit a copy
thereof to the counsel designated in the notice. The following provisions shall
then apply:
(i) If in the opinion of counsel for the
holder reasonably satisfactory to the Company the
proposed transfer may be effected without
registration of Restricted Securities under the
Securities Act (which opinion shall state the basis
of the legal conclusions reached therein), the holder
shall thereupon be entitled to transfer the
Restricted Securities in accordance with the terms of
the notice delivered by the holder to the Company.
Each certificate representing the Restricted
Securities issued upon or in connection with any
transfer shall bear the restrictive legends required
by Section 10.1 hereof.
(ii) If the opinion called for in (i) above
is not delivered, the holder shall not be entitled to
transfer the Restricted Securities until either (x)
receipt by the Company of a further notice from such
holder pursuant to the foregoing provisions of this
Section 10.2 and fulfillment of the provisions of
clause (i) above or (y) such Restricted Securities
have been effectively registered under the Securities
Act.
Notwithstanding any other provision of this Section 10, no opinion of
counsel shall be necessary for a transfer of Restricted Securities by the holder
thereof to an Affiliate of a holder, if the transferee agrees in writing to be
subject to the terms hereof to the same extent as if the transferee were the
original Purchaser hereof and such transfer is permitted under applicable
securities laws.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-8-
<PAGE>
10.3 TERMINATION OF RESTRICTIONS. The restrictions imposed by this
Section 10 upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities (a) which Restricted
Securities shall have been effectively registered under the Securities Act, or
(b) when, in the opinions of both counsel for the holder thereof and counsel for
the Company, such restrictions are no longer required in order to insure
compliance with the Securities Act or Section 12 hereof. Whenever such
restrictions shall cease and terminate as to any Restricted Securities, the
holder thereof shall be entitled to receive from the Company, without expense
(other than applicable transfer taxes, if any), new securities of like tenor not
bearing the applicable legends required by Section 10.1 hereof.
11. RESERVATION OF STOCK, ETC. The Company will at all times reserve and keep
available, solely for issuance and delivery upon exercise of the Warrant, the
number of shares of Common Stock of each class (or Other Securities) from time
to time issuable upon exercise of the Warrant at the time outstanding. All
shares of Common Stock (or Other Securities) issuable upon exercise of the
Warrant shall be duly authorized and, when issued upon exercise, shall be
validly issued and, in the case of shares, fully paid and nonassessable.
12. OWNERSHIP, TRANSFER AND SUBSTITUTION OF WARRANT.
12.1 OWNERSHIP OF WARRANT. The Company may treat the person in whose
name this Warrant is registered on the register kept at the office of the
Company maintained pursuant to Section 12.2(a) hereof as the owner and holder
thereof for all purposes, notwithstanding any notice to the contrary, except
that, if and when any Warrant is properly assigned in blank, the Company may
(but shall not be obligated to) treat the bearer thereof as the owner of such
Warrant for all purposes, notwithstanding any notice to the contrary. Subject to
Section 10 hereof, this Warrant, if properly assigned, may be exercised by a new
holder without a new Warrant first having been issued.
12.2 OFFICE; TRANSFER AND EXCHANGE OF WARRANT.
(a) The Company will maintain an office (which may be
an agency maintained at a bank) in Mountain View, California
where notices, presentations and demands in respect of this
Warrant may be made upon it. The office shall be maintained at
1565 Charleston Road, Mountain View, California 94043 until
the Company notifies the holders of the Warrant of any change
of location of the office.
(b) The Company shall cause to be kept at its office
maintained pursuant to Section 12.2(a) hereof a register for
the registration and transfer of the Warrant. The names and
addresses of holders of the Warrant, the transfers thereof and
the names and addresses of transferees of the Warrant shall be
registered in such register. The Person in whose name any
Warrant shall be so registered shall be deemed and treated as
the owner and holder thereof for all purposes of this Warrant,
and the Company shall not be affected by any notice or
knowledge to the contrary.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-9-
<PAGE>
(c) Upon the surrender of this Warrant, properly
endorsed, for registration of transfer or for exchange at the
office of the Company maintained pursuant to Section 12.2(a)
hereof, the Company at its expense will (subject to compliance
with Section 10 hereof, if applicable) execute and deliver to
or upon the order of the holder thereof a new Warrant of like
tenor, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face thereof for the
number of shares of Common Stock called for on the face of the
Warrant so surrendered.
12.3 REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of the
Warrant and, in the case of any such loss, theft or destruction of the Warrant,
upon delivery of indemnity reasonably satisfactory to the Company in form and
amount or, in the case of any mutilation, upon surrender of the Warrant for
cancellation at the office of the Company maintained pursuant to Section 12.2(a)
hereof, the Company at its expense will execute and deliver, in lieu thereof, a
new Warrant of like tenor and dated the date hereof.
12.4 RESTRICTIONS ON TRANSFER. In addition to the restrictions on
transfer set forth in Section 10 hereof, neither the Warrant nor any portion of
the Warrant may be transferred without the consent of the Company unless the
Warrant has vested and become exercisable in accordance with Section 1 hereof as
to that portion of the Warrant that is to be transferred.
13. DEFINITIONS. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
ACCOUNTANT: As defined in Section 1.4 hereof.
ACTUAL SPEND: [*]
AFFILIATE: Any Person holding more than 50% of the equity of an entity
or any majority-owned subsidiary of such entity.
ALLIANCE AGREEMENT: As defined in the introduction to this Warrant.
ARIBA NETWORK: The business-to-business e-commerce network operated by
Ariba that enables buyers and suppliers to automate transactions on the
Internet.
BUSINESS DAY: Any day other than a Saturday or a Sunday or a day on
which commercial banking institutions in New York, New York are authorized by
law to be closed. Any reference to "days" (unless Business Days are specified)
shall mean calendar days.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-10-
<PAGE>
COMMISSION: The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
COMMON STOCK: As defined in the introduction to this Warrant and
including any stock into which the Common Stock shall have been changed or any
stock resulting from any reclassification of the Common Stock, and all other
stock of any class or classes (however designated) of the Company the holders of
which have the right, without limitation as to amount, either to all, or to a
share of the balance of, current dividends and liquidating dividends after the
payment of dividends and distributions on any shares entitled to preference.
COMPANY: As defined in the introduction to this Warrant and including
any corporation which shall succeed to or assume the obligations of the Company
hereunder in compliance with Section 5 hereof.
CONSORTIUM: A group of entities organized by EDS CoNext that desire to
pool their purchasing for certain products and services, whether existing on the
date hereof or subsequently organized.
CURRENT MARKET PRICE: On any date specified herein, the average daily
Market Price during the period of the most recent ten (10) days, ending on and
including such date, on which the national securities exchanges or the national
market system of the NASD were open for trading, except that if no class of the
Common Stock is then listed or admitted to trading on a national securities
exchange or the national market system of the NASD, the Current Market Price
shall be the Market Price on such date.
EDS CONEXT: EDS Conext, Inc., its subsidiaries and assigns.
EDS CONEXT CONSORTIUM MEMBER: An entity that [*]
EXCHANGE ACT: The Securities Exchange Act of 1934, or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
EXPIRATION DATE: As defined in Section 2 of this Warrant.
INITIAL WARRANT PRICE: As defined in the introduction to this Warrant.
LARGE PARTICIPANT: A Participant with annual revenues, including
revenues of the consolidated entities for which it is performing purchasing
(determined in accordance with generally accepted accounting principles for
such Participant's most recent fiscal year), between [*] and [*]. Revenues of
consolidated entities shall not be included in the annual
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-11-
<PAGE>
revenues of a Participant to the extent that such revenues are included in
the annual revenues of any other Participant.
MARKET PRICE: On any date specified herein, the amount per share of
Common Stock equal to (a) the closing price of the Common Stock on such date or,
if no such sale takes place on such date, the average of the closing bid and
asked prices thereof on such date, in each case as officially reported on the
principal national securities exchange on which the Common Stock is then listed
or admitted to trading, or (b) if the Common Stock is not then listed or
admitted to trading on a national securities exchange but is designated as a
national market system security by the NASD, the last closing price of the
Common Stock on such date, or (c) if there shall have been no trading on such
date or if the Common Stock is not so designated, the average of the closing bid
and asked prices of the Common Stock on such date as shown by the NASD automated
quotation system, or (d) if the Common Stock is not then listed or admitted to
trading on any national exchange or the national market system of the NASD, the
fair value thereof determined in good faith by the Board of Directors of the
Company as of a date which is within fifteen (15) days of the date as of which
the determination is to be made.
MEDIUM PARTICIPANT: A Participant with annual revenues, including
revenues of the consolidated entities for which it is performing purchasing
(determined in accordance with generally accepted accounting principles for such
Participant's most recent fiscal year), of less than [*]. Revenues of
consolidated entities shall not be included in the annual revenues of a
Participant to the extent that such revenues are included in the annual revenues
of any other Participant.
NASD: The National Association of Securities Dealers, Inc.
OBJECTION NOTICE: As defined in Section 1.4 hereof.
OBJECTION NOTICE PERIOD: As defined in Section 1.4 hereof.
OTHER SECURITIES: Any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or otherwise) which the
holders of the Warrants at any time shall be entitled to receive, or shall have
received, upon the exercise of the Warrants, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities pursuant to
Section 5 hereof or otherwise.
PARTICIPANT: An entity that meets all of the following requirements
(1) such entity has over [*] of annual revenues, as determined in accordance
with generally accepted accounting principles for such entity's most recent
fiscal year; (2) such entity has executed, either prior to or subsequent to
the date hereof, a Participant Agreement pursuant to which such entity [*](3)
such entity [*]
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
12
<PAGE>
[*] and (4) such entity is [*]
If within two years after an entity has been classified as a
Participant by satisfying the requirements of the preceding paragraph, such
entity shall cease to be considered a "Participant" for purposes of subsequent
Vesting Events if [*]
In addition, notwithstanding the previous two paragraphs, an entity
that has executed, either prior to or subsequent to the date hereof, a
Participant Agreement with EDS CoNext pursuant to which the entity has joined a
Consortium shall be deemed a Participant if [*]
If there is a reasonable basis to conclude that an entity that
initially satisfied the Actual Spend requirements set forth above subsequently
ceased to satisfy such requirement for [*] the parties shall in good faith
discuss whether such an entity should continue to be considered a Participant
despite [*], provided that
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
13
<PAGE>
[*]
PARTICIPANT AGREEMENT: An agreement whereby an entity agrees to
participate in a Consortium.
PERSON: A corporation, an association, a partnership, an organization,
a business, an individual, a government or political subdivision thereof or a
governmental agency.
REGISTRATION AGREEMENT: The Registration Rights Agreement dated as of
December 31, 1999, between the Company and EDS CoNext, as from time to time in
effect.
RESTRICTED SECURITIES: All of the following: (a) the Warrant and (b)
any shares of Common Stock (or Other Securities) which have been issued upon the
exercise of the Warrant and which are evidenced by a certificate or certificates
bearing the applicable legend or legends referred to in Section 10.1.
SECURITIES ACT: The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
VERY LARGE PARTICIPANT: A Participant with annual revenues, including
revenues for the consolidated entities for which it is performing purchasing
(as determined in accordance with generally accepted accounting principles
for such Participant's most recent fiscal year) in excess of [*] Revenues of
consolidated entities shall not be included in the annual revenues of a
Participant to the extent that such revenues are included in the annual
revenues of any other Participant.
VESTING DATE: As defined in Section 1.2 hereof.
VESTING EVENT: As defined in Section 1.1 hereof.
VESTING NOTICE: As defined in Section 1.3 hereof.
WARRANT PRICE: As defined in Section 4.1 hereof.
WARRANTS: As defined in the introduction to this Warrant.
14. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in this Warrant
shall be construed as conferring upon the holder hereof any rights as a
stockholder of the Company or as imposing any obligation on the holder to
purchase any securities or as imposing any liabilities on such holder as a
stockholder of the Company, whether such obligation or liabilities are asserted
by the Company or by creditors of the Company.
15. NOTICES. Any notice or other communication in connection with this Warrant
shall be deemed to be given if in writing (or in the form of a facsimile)
addressed as hereinafter provided
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
14
<PAGE>
and actually delivered at said address: (a) if to any holder of any Warrant,
at the registered address of such holder as set forth in the register kept at
the office of the Company maintained pursuant to Section 12.2(a) hereof, or
(b) if to the Company, to the attention of its Chief Financial Officer at its
office maintained pursuant to Section 12.2(a) hereof; PROVIDED, HOWEVER, that
the exercise of any Warrant shall be effective in the manner provided in
Section 3 hereof.
16. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware. The section headings in this
Warrant are for purposes of convenience only and shall not constitute a part
hereof.
* * * * *
(Signature page follows)
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-15-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Class A Common Stock
Purchase Warrant to be duly executed as of the date first above written
ARIBA, INC.
By: /s/ Edward P. Kinsey
-----------------------------
Title: EVP, CFO
--------------------------
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
FORM OF EXERCISE NOTICE
[To be executed only upon conversion of Warrant]
To [ISSUER]
The undersigned registered holder of the within Warrant hereby
irrevocably converts the Warrant pursuant to Section 3.1 of the Warrant with
respect to __________(1) shares of the Common Stock which the holder would be
entitled to receive upon the cash exercise hereof, and requests that the
certificates for the shares be issued in the name of, and delivered to, whose
address is
Dated: ________________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of Warrant)
________________________________________
(Street Address)
________________________________________
(City) (State) (Zip Code)
_______________________
(1) Insert here the number of shares called for on the face of this Warrant (or,
in the case of a partial exercise, the portion thereof as to which this Warrant
is being exercised), in either case without making any adjustment of shares of
Common Stock or any other stock or other securities or property or cash which,
pursuant to the adjustment provisions of this Warrant, may be delivered upon
exercise. In the case of a partial exercise, a new Warrant or Warrants will be
issued and delivered, representing the unconverted portion of the Warrant, to
the holder surrendering the Warrant.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
FORM OF ASSIGNMENT
[To be executed only upon transfer of Warrant]
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto __________ the right
represented by the Warrant to purchase __________(1) shares of Common Stock of
[ISSUER] to which the Warrant relates, and appoints __________ Attorney to make
such transfer on the books of [ISSUER] maintained for the purpose, with full
power of substitution in the premises.
Dated: ________________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of Warrant)
________________________________________
(Street Address)
________________________________________
(City) (State) (Zip Code)
Signed in the presence of:
________________________________________
(Signature of Transferee)
________________________________________
(Street Address)
________________________________________
(City) (State) (Zip Code)
Signed in the presence of:
_______________________
(1) Insert here the number of shares called for on the face of this Warrant (or,
in the case of a partial exercise, the portion thereof as to which this Warrant
is being exercised), in either case without making any adjustment of shares of
Common Stock or any other stock or other securities or property or cash which,
pursuant to the adjustment provisions of this Warrant, may be delivered upon
exercise. In the case of a partial exercise, a new Warrant or Warrants will be
issued and delivered, representing the unexercised portion of the Warrant, to
the holder surrendering the Warrant.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR ON OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
ARIBA, INC.
CLASS B
COMMON STOCK PURCHASE WARRANT
Mountain View, California
January 1, 2000
ARIBA, INC., a Delaware corporation (the "Company"), for value
received, hereby certifies that EDS CoNext, Inc. ("EDS CoNext"), or its
registered assigns, is entitled to purchase from the Company [*] duly
authorized, validly issued, fully paid and nonassessable shares (the "Shares")
of Common Stock of the Company, par value $.002 per share (the "Common Stock"),
at the Initial Warrant Price (as defined herein), all subject to the terms,
conditions and adjustments set forth below in this Warrant.
This Warrant is one of the Common Stock Purchase Warrants (the
"Warrants," such term to include any warrants issued in substitution therefor)
originally issued in connection with the execution and delivery of the Alliance
Agreement dated as of December 31, 1999 (as from time to time in effect, the
"Alliance Agreement") between the Company and EDS CoNext. Certain capitalized
terms used in this Warrant are defined in Section 13 hereof.
1. VESTING OF WARRANTS.
1.1 VESTING AMOUNTS AND DATES. The Revenue Targets, the maximum number
of Shares as to which the Warrant may vest and become exercisable for each
Target Year, and the Vesting Date for such Shares are as follows:
<TABLE>
<CAPTION>
Revenue Maximum Number
Target Year Target of Shares Vested Vesting Date
----------- ------ ---------------- ------------
<S> <C> <C> <C>
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
</TABLE>
This Warrant will vest and become exercisable on an annual basis as of the
Vesting Date and become exercisable for the following which occur during such
Target Year: (i) upon the Company receiving Revenues equal to [*] of the Revenue
Target for the corresponding Target
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
Year, this Warrant shall vest and become exercisable for [*] of the maximum
number of Shares as to which the Warrant may vest and become exercisable for
such Target Year as of the Vesting Date for such Target Year (based on the
percentages set forth above), and (ii) in the event the Company receives
Revenues in excess of [*] of such Revenue Target, this Warrant shall vest and
become exercisable for [*] of the maximum number of Shares as to which the
Warrant may vest and become exercisable for such Target Year (based on the
percentages set forth above). The number of shares of Common Stock set forth
above shall be adjusted to the extent and in the same manner as the aggregate
number of Shares is adjusted under the provisions of Sections 4 and 5 hereof.
1.2 [*]
1.3 [*]
1.4 NOTICE OF VESTING. Within sixty (60) days after the end of each of
the Target Years and the Cumulative Make-Up Period, EDS CoNext will prepare and
deliver to the Company (a) a revenue statement, prepared in accordance with
generally accepted accounting principles, setting out the Revenue for the
period, together with all appropriate supporting documentation and (b) a
computation of the number of Shares that have vested and become exercisable as
of the Vesting Date with respect to such period in accordance with the terms
hereof (the "Vesting Notice").
1.5 NOTICE OF OBJECTION. The Company shall have ten (10) Business Days
from the Vesting Notice having been given in accordance with Section 15 (the
"Objection Notice Period") to give EDS CoNext written notice that the Company
objects to all or a portion of the vesting of this Warrant as set forth in the
Vesting Notice (the "Objection Notice"). Any portion of the vesting set forth in
the Vesting Notice as to which no objection is made shall be immediately vested.
Upon the giving of the Objection Notice with regard to any portion of the
vesting as to which an objection is made, the Company and EDS CoNext will use
reasonable efforts to resolve any objections. If the Company and EDS CoNext are
unable to resolve the dispute, the Company and EDS CoNext will jointly select an
accounting firm of national standing to resolve the dispute. If the Company and
EDS CoNext are unable to agree on the choice of such an accounting firm, they
will select an accounting firm of national standing by lot which has not
provided services to either the Company or EDS CoNext during the preceding
twenty-four (24) months (the "Accountant") which shall determine the Revenue for
the period. The Accountant shall deliver to each of the Company and EDS CoNext
its determination within ten (10) Business Days after being selected, and the
determination of the Accountant shall be binding upon the Company and EDS
CoNext. The expenses of the Accountant shall be borne equally by the Company and
EDS CoNext. Any additional portion of the Warrant that shall vest as a result of
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-2-
<PAGE>
the agreement of the Company and EDS CoNext or the determination of the
Accountant shall be vested as of the Vesting Date for such shares upon such
agreement or determination.
1.6 EXERCISE OF WARRANT FOLLOWING SALE OF THE COMPANY. In the event of
the consummation of any transaction which would result in the holders of Common
Stock or any shares of common stock received in exchange for the Common Stock
receiving cash or non-marketable securities, the Warrant, (i) as to that portion
of the Warrant that is then exercisable, shall be exercised prior to the
commencement of such transaction, and (ii) [*]
2. EXPIRATION OF WARRANT. This Warrant, as to each portion thereof that vests
and becomes exercisable pursuant to Section 1, shall expire on the fifth
anniversary date of the Vesting Date for such exercisable portion of the Warrant
(the "Expiration Date"). The Warrant shall cease to vest upon the termination of
the Alliance Agreement.
3. EXERCISE OF WARRANT. This Warrant shall only be exercisable with respect to
Shares as to which the Warrant has vested and become exercisable pursuant to the
terms of Sections 1 and 3 hereof.
3.1 MANNER OF EXERCISE. This Warrant may only be exercised by the
holder hereof, in accordance with the terms and conditions hereof, in whole or
in part with respect to any vested portion of the Warrant, into shares of Common
Stock, during normal business hours on any Business Day on or prior to the
Expiration Date with respect to such vested portion of the Warrant, by surrender
of this Warrant to the Company at its office maintained pursuant to Section
12.2(a) hereof, accompanied by an exercise notice in substantially the form
attached to this Warrant (or a reasonable facsimile thereof) duly executed by
the holder, and the holder shall thereupon be entitled to receive a number of
duly authorized, validly issued, fully paid and nonassessable shares of Common
Stock (or Other Securities) equal to:
(a) an amount equal to:
(i) an amount equal to (x) the number of
shares of Common Stock (or Other Securities)
determined as provided in Sections 4 and 5 hereof
which the holder would be entitled to receive upon
exercise of this Warrant for the number of shares of
Common Stock designated in the exercise notice
MULTIPLIED BY (y) the Current Market Price of each
share of Common Stock (or Other Securities) so
receivable upon exercise
MINUS
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-3-
<PAGE>
(ii) an amount equal to (x) the number of
shares of Common Stock (without giving effect to any
adjustment thereof) designated in the exercise notice
MULTIPLIED BY (y) the Initial Warrant Price
DIVIDED BY
(b) the Current Market Price of each share of Common
Stock (or Other Securities);
PROVIDED, HOWEVER, that the holder may not exercise this Warrant for
shares of Common Stock (or Other Securities) until [*]
3.2 WHEN EXERCISE EFFECTIVE. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
Business Day on which this Warrant shall have been surrendered to the Company as
provided in Section 3.1 hereof, and at such time the Person or Persons in whose
name or names any certificate or certificates for shares of Common Stock (or
Other Securities) shall be issuable upon exercise as provided in Section 3.3
hereof shall be deemed to have become the holder or holders of record thereof.
3.3 DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable after
each exercise of this Warrant, in whole or in part, and in any event within
fifteen (15) Business Days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the holder hereof or, subject to Section 10 hereof, as the
holder (upon payment by the holder of any applicable transfer taxes) may direct:
(a) a certificate or certificates (with appropriate
restrictive legends, as applicable) for the number of duly
authorized, validly issued, fully paid and nonassessable
shares of Common Stock (or Other Securities) to which the
holder shall be entitled upon exercise plus, in lieu of any
fractional share to which the holder would otherwise be
entitled, cash in an amount equal to the same fraction of the
Market Price per share on the Business Day immediately prior
to the date of exercise; and
(b) in case exercise is in part only, a new Warrant
of like tenor, dated the date hereof and calling in the
aggregate on the face thereof for the number of shares of
Common Stock equal (without giving effect to any adjustment
thereof) to the number of shares called for on the face of
this Warrant minus the number of shares designated by the
holder upon exercise as provided in Section 3.1 hereof.
3.4 COMPANY TO REAFFIRM OBLIGATIONS. The Company will, at the time of
each exercise of this Warrant, upon the written request of the holder hereof,
acknowledge in writing its continuing obligation to afford to the holder all
rights (including without limitation any rights to registration, pursuant to the
Registration Agreement referred to in Section 9 hereof, of the shares of Common
Stock or Other Securities issued upon exercise) to which the holder shall
continue to be entitled after exercise in accordance with the terms of this
Warrant; PROVIDED, HOWEVER, that if
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-4-
<PAGE>
the holder of this Warrant shall fail to make a request, the failure shall
not affect the continuing obligation of the Company to afford the rights to
such holder.
4. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.
4.1 GENERAL; NUMBER OF SHARES; WARRANT PRICE. The number of shares of
Common Stock which the holder of this Warrant shall be entitled to receive upon
each-exercise hereof shall be determined by multiplying the number of shares of
Common Stock which would otherwise (but for the provisions of this Section 4) be
issuable upon exercise, as designated by the holder hereof pursuant to Section
3.1 hereof, by the fraction of which (a) the numerator is the Initial Warrant
Price and (b) the denominator is the Warrant Price in effect on the date of such
exercise. The "Warrant Price" shall initially be the Initial Warrant Price,
shall be adjusted and re-adjusted from time to time as provided in this Section
4 and, as so adjusted or re-adjusted, shall remain in effect until a further
adjustment or re-adjustment thereof is required by this Section 4.
4.2 TREATMENT OF STOCK DIVIDENDS, STOCK SPLITS, ETC. In case the
Company at any time or from time to time after the date hereof shall declare or
pay any dividend on the Common Stock payable in Common Stock, or shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in Common Stock), then, and in each case, subject to Section 4.4
hereof, the Warrant Price shall be reduced, concurrently with the dividend or
subdivision, to a price determined by multiplying the Warrant Price by a
fraction:
(a) the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to the
dividend or subdivision; and
(b) the denominator of which shall be the number of
shares of Common Stock outstanding immediately after the
dividend or subdivision.
Additional shares of Common Stock shall be deemed to have been issued
and to be outstanding (a) in the case of any dividend, immediately after the
close of business on the record date for the determination of holders of any
class of securities entitled to receive the dividend, or (b) in the case of any
subdivision, at the close of business on the day immediately prior to the day
upon which the corporate action becomes effective. Additional shares of Common
Stock deemed to have been issued pursuant to this Section 4.2 shall be deemed to
have been issued for no consideration.
4.3 ADJUSTMENTS FOR COMBINATIONS, ETC. In case the outstanding shares
of Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Warrant Price in
effect immediately prior to the combination or consolidation shall, concurrently
with the effectiveness of such combination or consolidation, be proportionately
increased. Adjustment under this Section 4.3 shall become effective at the close
of business on the day immediately prior to the day upon which the corporate
action becomes effective.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-5-
<PAGE>
4.4 MINIMUM ADJUSTMENT OF WARRANT PRICE. If the amount of any
adjustment of the Warrant Price required pursuant to this Section 4 would be
less than one-tenth (1/10) of one percent (1%) of the Warrant Price in effect at
the time of the adjustment is otherwise so required to be made, the amount shall
be carried forward and adjustment with respect thereto made at the time of and
together with any subsequent adjustment which, together with the amount and any
other amount or amounts so carried forward, shall aggregate at least one tenth
(1/10) of one percent (1%) of the Warrant Price.
5. ADJUSTMENTS FOR CONSOLIDATION, MERGER, SALE OF ASSETS, REORGANIZATION, ETC.
In case the Company after the date hereof (a) shall consolidate with or merge
into any other Person and shall not be the continuing or surviving corporation
following the consolidation or merger, or (b) shall permit any other Person to
consolidate with or merge into the Company and the Company shall be the
continuing or surviving Person but, in connection with the consolidation or
merger, the Common Stock or Other Securities shall be changed into or exchanged
for stock or other securities of any other Person or cash or any other property,
or (c) shall transfer all or substantially all of its properties or assets to
any other Person, or (d) shall effect a capital reorganization or
reclassification of the Common Stock or Other Securities then, and in the case
of each such transaction, proper provision shall be made so that, upon the basis
and the terms and in the manner provided in this Warrant, the holder of this
Warrant, upon the exercise hereof at any time after the consummation of the
transaction, shall be entitled to receive (at the aggregate Warrant Price in
effect at the time of such consummation for all Common Stock or Other Securities
issuable upon exercise immediately prior to the consummation), in lieu of the
Common Stock or Other Securities issuable upon exercise prior to the
consummation, the greatest amount of securities, cash or other property to which
the holder would actually have been entitled as a stockholder upon such
consummation if the holder had exercised the rights represented by this Warrant
(to the extent then exercisable pursuant to Section 1) immediately prior
thereto, subject to adjustments (subsequent to the consummation) as nearly
equivalent as possible to the adjustments provided for in Sections 4 and 5
hereof.
6. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all of the terms and in the taking of all actions
necessary or appropriate in order to protect the rights of the holder of this
Warrant. Without limiting the generality of the foregoing, the Company (a) will
not permit the par value of any shares of stock receivable upon the exercise of
this Warrant to exceed the amount payable therefor upon exercise, (b) will take
all actions necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of stock on the exercise of
the Warrant and (c) will not take any action which results in any adjustment of
the Warrant Price if the total number of shares of Common Stock (or Other
Securities) issuable after the action upon the exercise of the Warrant would
exceed the total number of shares of Common Stock (or Other Securities) then
authorized by the Company's certificate of incorporation and available for the
purpose of issuance upon exercise.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-6-
<PAGE>
7. CHIEF FINANCIAL OFFICER'S REPORT AS TO ADJUSTMENTS. In the case of any
adjustment or re-adjustment in the shares of Common Stock (or Other
Securities) issuable upon the exercise of this Warrant, the Company at its
expense will promptly compute the adjustment or re-adjustment in accordance
with the terms of this Warrant and, if requested by the holder, cause its
Chief Financial Officer to certify the computation (other than any
computation of the fair value of property as determined in good faith by the
Board of Directors of the Company) and prepare a report setting forth the
adjustment or re-adjustment and showing in reasonable detail the method of
calculation thereof and the facts upon which the adjustment or re-adjustment
is based, including a statement of (a) the number of shares of Common Stock
outstanding or deemed to be outstanding and (b) the Warrant Price in effect
immediately prior to the deemed issuance or sale and as adjusted and
re-adjusted (if required by Section 4 hereof) on account thereof. The Company
will forthwith mail a copy of each report to each holder of a Warrant and
will, upon the written request at any time of any holder of a Warrant,
furnish to the holder a like report setting forth the Warrant Price at the
time in effect and showing in reasonable detail how it was calculated. The
Company will also keep copies of all reports at its office maintained
pursuant to Section 12.2(a) hereof and will cause them to be available for
inspection at the office during normal business hours upon reasonable notice
by any holder of a Warrant or any prospective purchaser of a Warrant
designated by the holder thereof.
8. REPRESENTATION AS TO NUMBER OF OUTSTANDING SHARES. The Company represents
and warrants to EDS CoNext that, as of December 7, 1999, there were issued
and outstanding 108,847,771 shares of Common Stock (after giving effect to
the stock dividend paid on December 17, 1999), including the number of shares
of Common Stock issuable upon the exercise of all outstanding options and
warrants, calculated using the treasury stock method. Other than the stock
dividend paid on December 17, 1999, from December 7, 1999 until the date
hereof, no event has occurred which would have resulted in any adjustment
pursuant to Sections 4 or 5 hereof.
9. REGISTRATION OF COMMON STOCK. The shares of Common Stock (and Other
Securities) issuable upon exercise of this Warrant shall constitute
Registrable Securities (as such term is defined in the Registration
Agreement). The original holder of this Warrant, and any valid transferees
thereof pursuant to the Registration Agreement, shall be entitled to all of
the benefits afforded to a holder of any Registrable Securities under the
Registration Agreement and such holder, by its acceptance of this Warrant,
agrees to be bound by and to comply with the terms and conditions of the
Registration Agreement applicable to the holder as a holder of Registrable
Securities. At any time when the Common Stock is listed on any national
securities exchange, the Company will, at its expense, obtain promptly and
maintain the approval for listing on each exchange, upon official notice of
issuance, any shares of Common Stock issued upon exercise of the then
outstanding Warrants and maintain the listing of the shares after their
issuance; and the Company will also list on such national securities
exchange, will register under the Exchange Act and will maintain the listing
of any Other Securities that at any time are issued upon exercise of the
Warrants, if and at the time that any securities of the same class shall be
listed on a national securities exchange by the Company.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-7-
<PAGE>
10. RESTRICTIONS ON TRANSFER.
10.1 RESTRICTIVE LEGENDS. This Warrant and each Warrant issued upon
transfer or in substitution for this Warrant pursuant to Section 12, each
certificate for Common Stock (or Other Securities) issued upon the exercise
of any Warrant and each certificate issued upon the transfer of any such
Common Stock (or Other Securities) shall be transferable only upon
satisfaction of the conditions specified in this Section 10 and Section 12.4.
Each of the foregoing securities shall be stamped or otherwise imprinted with
a legend reflecting the restrictions on transfer set forth in Sections 10 and
12.4 hereof and any restrictions required under the Securities Act.
10.2 NOTICE OF PROPOSED TRANSFER, OPINION OF COUNSEL. Prior to any
transfer of any Restricted Securities which are not registered under an
effective registration statement under the Securities Act, the holder thereof
will give written notice to the Company of the holder's intention to effect a
transfer and to comply in all other respects with this Section 10.2. Each
notice (a) shall describe the manner and circumstances of the proposed
transfer, and (b) shall designate counsel for the holder giving the notice
(who may be in-house counsel for the holder). The holder giving notice will
submit a copy thereof to the counsel designated in the notice. The following
provisions shall then apply:
(i) If in the opinion of counsel for the
holder reasonably satisfactory to the Company the
proposed transfer may be effected without
registration of Restricted Securities under the
Securities Act (which opinion shall state the basis
of the legal conclusions reached therein), the holder
shall thereupon be entitled to transfer the
Restricted Securities in accordance with the terms of
the notice delivered by the holder to the Company.
Each certificate representing the Restricted
Securities issued upon or in connection with any
transfer shall bear the restrictive legends required
by Section 10.1 hereof.
(ii) If the opinion called for in (i) above
is not delivered, the holder shall not be entitled to
transfer the Restricted Securities until either (x)
receipt by the Company of a further notice from such
holder pursuant to the foregoing provisions of this
Section 10.2 and fulfillment of the provisions of
clause (i) above or (y) such Restricted Securities
have been effectively registered under the Securities
Act.
Notwithstanding any other provision of this Section 10, no opinion
of counsel shall be necessary for a transfer of Restricted Securities by the
holder thereof to an Affiliate of a holder, if the transferee agrees in
writing to be subject to the terms hereof to the same extent as if the
transferee were the original Purchaser hereof and such transfer is permitted
under applicable securities laws.
10.3 TERMINATION OF RESTRICTIONS. The restrictions imposed by this
Section 10 upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities (a) which Restricted
Securities shall have been effectively registered under the
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-8-
<PAGE>
Securities Act, or (b) when, in the opinions of both counsel for the holder
thereof and counsel for the Company, such restrictions are no longer required
in order to insure compliance with the Securities Act or Section 12 hereof.
Whenever such restrictions shall cease and terminate as to any Restricted
Securities, the holder thereof shall be entitled to receive from the Company,
without expense (other than applicable transfer taxes, if any), new
securities of like tenor not bearing the applicable legends required by
Section 10.1 hereof.
11. RESERVATION OF STOCK, ETC. The Company will at all times reserve and keep
available, solely for issuance and delivery upon exercise of the Warrant, the
number of shares of Common Stock of each class (or Other Securities) from
time to time issuable upon exercise of the Warrant at the time outstanding.
All shares of Common Stock (or Other Securities) issuable upon exercise of
the Warrant shall be duly authorized and, when issued upon exercise, shall be
validly issued and, in the case of shares, fully paid and nonassessable.
12. OWNERSHIP, TRANSFER AND SUBSTITUTION OF WARRANT.
12.1 OWNERSHIP OF WARRANT. The Company may treat the person in whose
name this Warrant is registered on the register kept at the office of the
Company maintained pursuant to Section 12.2(a) hereof as the owner and holder
thereof for all purposes, notwithstanding any notice to the contrary, except
that, if and when any Warrant is properly assigned in blank, the Company may
(but shall not be obligated to) treat the bearer thereof as the owner of such
Warrant for all purposes, notwithstanding any notice to the contrary. Subject
to Section 10 hereof, this Warrant, if properly assigned, may be exercised by
a new holder without a new Warrant first having been issued.
12.2 OFFICE; TRANSFER AND EXCHANGE OF WARRANT.
(a) The Company will maintain an office (which may be
an agency maintained at a bank) in Mountain View, California
where notices, presentations and demands in respect of this
Warrant may be made upon it. The office shall be maintained at
1565 Charleston Road, Mountain View, California 94043 until
the Company notifies the holders of the Warrant of any change
of location of the office.
(b) The Company shall cause to be kept at its office
maintained pursuant to Section 12.2(a) hereof a register for
the registration and transfer of the Warrant. The names and
addresses of holders of the Warrant, the transfers thereof and
the names and addresses of transferees of the Warrant shall be
registered in such register. The Person in whose name any
Warrant shall be so registered shall be deemed and treated as
the owner and holder thereof for all purposes of this Warrant,
and the Company shall not be affected by any notice or
knowledge to the contrary.
(c) Upon the surrender of this Warrant, properly
endorsed, for registration of transfer or for exchange at the
office of the Company maintained pursuant to Section 12.2(a)
hereof, the Company at its expense will (subject to compliance
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-9-
<PAGE>
with Section 10 hereof, if applicable) execute and deliver to
or upon the order of the holder thereof a new Warrant of like
tenor, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face thereof for the
number of shares of Common Stock called for on the face of the
Warrant so surrendered.
12.3 REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
the Warrant and, in the case of any such loss, theft or destruction of the
Warrant, upon delivery of indemnity reasonably satisfactory to the Company in
form and amount or, in the case of any mutilation, upon surrender of the
Warrant for cancellation at the office of the Company maintained pursuant to
Section 12.2(a) hereof, the Company at its expense will execute and deliver,
in lieu thereof, a new Warrant of like tenor and dated the date hereof.
12.4 RESTRICTIONS ON TRANSFER. In addition to the restrictions on
transfer set forth in Section 10 hereof, neither the Warrant nor any portion
of the Warrant may be transferred without the consent of the Company unless
the Warrant has vested and become exercisable in accordance with Section 1
hereof as to that portion of the Warrant that is to be transferred.
13. DEFINITIONS. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
ACCOUNTANT: As defined in Section 1.4 hereof.
ACTUAL SPEND: [*]
AFFILIATE: Any Person holding more than 50% of the equity of an
entity or any majority-owned subsidiary of such entity.
ALLIANCE AGREEMENT: As defined in the introduction to this Warrant.
ARIBA NETWORK: The business-to-business e-commerce network operated
by The Company that enables buyers and suppliers to automate transactions on
the Internet
BUSINESS DAY: Any day other than a Saturday or a Sunday or a day on
which commercial banking institutions in New York, New York are authorized by
law to be closed. Any reference to "days" (unless Business Days are
specified) shall mean calendar days.
COMMISSION: The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
COMMON STOCK: As defined in the introduction to this Warrant and
including any stock into which the Common Stock shall have been changed or
any stock resulting from any reclassification of the Common Stock, and all
other stock of any class or classes (however
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-10-
<PAGE>
designated) of the Company the holders of which have the right, without
limitation as to amount, either to all, or to a share of the balance of,
current dividends and liquidating dividends after the payment of dividends
and distributions on any shares entitled to preference.
COMPANY: As defined in the introduction to this Warrant and
including any corporation which shall succeed to or assume the obligations of
the Company hereunder in compliance with Section 5 hereof.
CONSORTIUM: A group of entities organized by EDS CoNext that desire
to pool their purchasing for certain products and services, whether existing
on the date hereof or subsequently organized.
[*] As defined in Section 1.3 hereof.
CURRENT MARKET PRICE: On any date specified herein, the average
daily Market Price during the period of the most recent ten (10) days, ending
on and including such date, on which the national securities exchanges or the
national market system of the NASD were open for trading, except that if no
class of the Common Stock is then listed or admitted to trading on a national
securities exchange or the national market system of the NASD, the Current
Market Price shall be the Market Price on such date.
EDS CONEXT: EDS Conext, Inc., its subsidiaries and assigns.
EDS CONEXT FRAME AGREEMENTS: The agreements entered into between EDS
CoNext and suppliers pursuant to which such suppliers agree to provide goods
and/or services to one or more Consortia.
EXCHANGE ACT: The Securities Exchange Act of 1934, or any similar
federal statute, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time.
EXPIRATION DATE: As defined in Section 2 of this Warrant.
INITIAL WARRANT PRICE: As to each portion of this Warrant that vests
and becomes exercisable, [*] adjusted for any stock splits, stock dividends
or other distributions retroactively back to the date of issuance of this
Warrant.
LARGE PARTICIPANT: A Participant with annual revenues, including
revenues of the consolidated entities for which it is performing purchasing
(determined in accordance with generally accepted accounting principles for
such entity's most recent fiscal year), between [*] and [*]. Revenues of
consolidated entities shall not be included in the annual revenues of a
Participant to the extent that such revenues are included in the annual
revenues of any other Participant.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-11-
<PAGE>
MARKET PRICE: On any date specified herein, the amount per share of
Common Stock equal to (a) the closing price of the Common Stock on such date
or, if no such sale takes place on such date, the average of the closing bid
and asked prices thereof on such date, in each case as officially reported on
the principal national securities exchange on which the Common Stock is then
listed or admitted to trading, or (b) if the Common Stock is not then listed
or admitted to trading on a national securities exchange but is designated as
a national market system security by the NASD, the last closing price of the
Common Stock on such date, (c) if there shall have been no trading on such
date or if the Common Stock is not so designated, the average of the closing
bid and asked prices of the Common Stock on such date as shown by the NASD
automated quotation system or (d) if the Common Stock is not then listed or
admitted to trading on any national exchange or the national market system of
the NASD, the fair value thereof determined in good faith by the Board of
Directors of the Company as of a date which is within fifteen (15) days of
the date as of which the determination is to be made.
MEDIUM PARTICIPANT: A Participant with annual revenues, including
revenues of the consolidated entities for which it is performing purchasing
(determined in accordance with generally accepted accounting principles for
such entity's most recent fiscal year), of less than [*]. Revenues of
consolidated entities shall not be included in the annual revenues of a
Participant to the extent that such revenues are included in the annual
revenues of any other Participant.
NASD: The National Association of Securities Dealers, Inc.
OBJECTION NOTICE: As defined in Section 1.5 hereof.
OBJECTION NOTICE PERIOD: As defined in Section 1.5 hereof.
OTHER SECURITIES: Any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or otherwise) which
the holders of the Warrants at any time shall be entitled to receive, or
shall have received, upon the exercise of the Warrants, in lieu of or in
addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 5 hereof or otherwise.
PARTICIPANT: An entity that [*]
PERSON: A corporation, an association, a partnership, an
organization, a business, an individual, a government or political
subdivision thereof or a governmental agency.
REGISTRATION AGREEMENT: The Registration Rights Agreement dated as
of December 31, 1999, between the Company and EDS CoNext, as from time to
time in effect.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-12-
<PAGE>
RESTRICTED SECURITIES: All of the following: (a) the Warrant and (b)
any shares of Common Stock (or Other Securities) which have been issued upon
the exercise of the Warrant and which are evidenced by a certificate or
certificates bearing the applicable legend or legends referred to in Section
10.1.
REVENUE TARGET: The respective level of Revenues with respect to a
Target Year as set forth in Section 1.1.
REVENUES: The aggregate amount of fee revenue described below that
are received by the Company in accordance with the Alliance Agreement:
[*]
[*]
[*]
[*]
[*]
[*]
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-13-
<PAGE>
[*]
SECURITIES ACT: The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as
the same shall be in effect at the time.
TARGET YEAR: The [*] twelve-month periods commencing on January 1,
2000 and ending on each of the [*] subsequent anniversaries of such date.
VERY LARGE PARTICIPANT: A Participant with annual revenues,
including revenues of the consolidated entities for which it is performing
purchasing (as determined in accordance with generally accepted accounting
principles for such entity's most recent fiscal year), in excess of [*].
Revenues of consolidated entities shall not be included in the annual
revenues of a Participant to the extent that such revenues are included in
the annual revenues of any other Participant.
VESTING DATE: The respective date of vesting with respect to a
Target Year as set forth in Section 1.1.
VESTING NOTICE: As defined in Section 1.4 hereof.
WARRANT PRICE: As defined in Section 4.1 hereof.
WARRANTS: As defined in the introduction to this Warrant.
14. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in this
Warrant shall be construed as conferring upon the holder hereof any rights as
a stockholder of the Company or as imposing any obligation on the holder to
purchase any securities or as imposing any liabilities on such holder as a
stockholder of the Company, whether such obligation or liabilities are
asserted by the Company or by creditors of the Company.
15. NOTICES. Any notice or other communication in connection with this
Warrant shall be deemed to be given if in writing (or in the form of a
facsimile) addressed as hereinafter provided and actually delivered at said
address: (a) if to any holder of any Warrant, at the registered address of
such holder as set forth in the register kept at the office of the Company
maintained pursuant to Section 12.2(a) hereof, or (b) if to the Company, to
the attention of its Chief Financial Officer at its office maintained
pursuant to Section 12.2(a) hereof; PROVIDED, HOWEVER, that the exercise of
any Warrant shall be effective in the manner provided in Section 3 hereof.
16. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-14-
<PAGE>
enforcement of the change, waiver, discharge or termination is sought. This
Warrant shall be construed and enforced in accordance with and governed by
the laws of the State of Delaware. The section headings in this Warrant are
for purposes of convenience only and shall not constitute a part hereof.
* * * * *
(Signature page follows)
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-15-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Class B Common Stock
Purchase Warrant to be duly executed as of the date first above written
ARIBA, INC.
By: /s/ Edward P. Kinsey
--------------------------------
Title: EVP, CFO
-----------------------------
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
FORM OF EXERCISE NOTICE
[To be executed only upon conversion of Warrant]
To [ISSUER]
The undersigned registered holder of the within Warrant hereby
irrevocably converts the Warrant pursuant to Section 3.1 of the Warrant with
respect to __________(1) shares of the Common Stock which the holder would be
entitled to receive upon the cash exercise hereof, and requests that the
certificates for the shares be issued in the name of, and delivered to, whose
address is
Dated: _____________________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
Warrant)
_____________________________________________
(Street Address)
_____________________________________________
(City) (State) (Zip Code)
________________________
(1) Insert here the number of shares called for on the face of this Warrant
(or, in the case of a partial exercise, the portion thereof as to which this
Warrant is being exercised), in either case without making any adjustment of
shares of Common Stock or any other stock or other securities or property or
cash which, pursuant to the adjustment provisions of this Warrant, may be
delivered upon exercise. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unconverted portion
of the Warrant, to the holder surrendering the Warrant.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
FORM OF ASSIGNMENT
[To be executed only upon transfer of Warrant]
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto __________ the right
represented by the Warrant to purchase __________(1) shares of Common Stock
of [ISSUER] to which the Warrant relates, and appoints __________ Attorney to
make such transfer on the books of [ISSUER] maintained for the purpose, with
full power of substitution in the premises.
Dated: ________________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of Warrant)
________________________________________
(Street Address)
________________________________________
(City) (State) (Zip Code)
Signed in the presence of:
________________________________________
(Signature of Transferee)
________________________________________
(Street Address)
________________________________________
(City) (State) (Zip Code)
Signed in the presence of:
________________________
(1) Insert here the number of shares called for on the face of this Warrant
(or, in the case of a partial exercise, the portion thereof as to which this
Warrant is being exercised), in either case without making any adjustment of
shares of Common Stock or any other stock or other securities or property or
cash which, pursuant to the adjustment provisions of this Warrant, may be
delivered upon exercise. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion
of the Warrant, to the holder surrendering the Warrant.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR ON OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
ARIBA, INC.
CLASS C-1
COMMON STOCK PURCHASE WARRANT
Mountain View, California
January 1, 2000
ARIBA, INC., a Delaware corporation (the "Company"), for value
received, hereby certifies that EDS CoNext, Inc. ("EDS CoNext"), or its
registered assigns, is entitled to purchase from the Company [*] duly
authorized, validly issued, fully paid and nonassessable shares (the
"Shares") of Common Stock of the Company, par value $.002 per share (the
"Common Stock"), at the Initial Warrant Price (as defined herein), all
subject to the terms, conditions and adjustments set forth below in this
Warrant.
This Warrant is one of the Common Stock Purchase Warrants (the
"Warrants," such term to include any warrants issued in substitution
therefor) originally issued in connection with the execution and delivery of
the Alliance Agreement dated as of December 31, 1999 (as from time to time in
effect, the "Alliance Agreement") between the Company and EDS CoNext. Certain
capitalized terms used in this Warrant are defined in Section 13 hereof.
1. VESTING OF WARRANTS.
1.1 VESTING AMOUNTS AND DATES. The Revenue Targets, the maximum
number of Shares as to which the Warrant may vest and become exercisable for
each Target Year, and the Vesting Date for such Shares are as follows:
<TABLE>
<CAPTION>
Maximum Number
Target Year Revenue Target of Shares Vested Vesting Date
----------- -------------- ---------------- ------------
<S> <C> <C> <C>
[*] [*] [*] [*]
</TABLE>
This Warrant will vest and become exercisable on an annual basis as of the
Vesting Date and become exercisable for the following which occur during such
Target Year: (i) upon the
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
Company receiving Revenues equal to [*] of the Revenue Target for the
corresponding Target Year, this Warrant shall vest and become exercisable for
[*] of the maximum number of Shares as to which the Warrant may vest and
become exercisable for such Target Year as of the Vesting Date for such
Target Year (based on the percentage set forth above), and (ii) in the event
the Company receives Revenues in excess of [*] of such Revenue Target, this
Warrant shall vest and become exercisable for [*] of the maximum number of
Shares as to which the Warrant may vest and become exercisable for such
Target Year (based on the percentage set forth above). The number of shares
of Common Stock set forth above shall be adjusted to the extent and in the
same manner as the aggregate number of Shares is adjusted under the
provisions of Sections 4 and 5 hereof.
1.2 [*]
1.3 [*]
1.4 NOTICE OF VESTING. Within sixty (60) days after the end of each
of the Target Years and the Cumulative Make-Up Period, EDS CoNext will
prepare and deliver to the Company (a) a revenue statement, prepared in
accordance with generally accepted accounting principles, setting out the
Revenue for the period, together with all appropriate supporting
documentation and (b) a computation of the number of Shares that have vested
and become exercisable as of the Vesting Date with respect to such period in
accordance with the terms hereof (the "Vesting Notice").
1.5 NOTICE OF OBJECTION. The Company shall have ten (10) Business
Days from the Vesting Notice having been given in accordance with Section 15
(the "Objection Notice Period") to give EDS CoNext written notice that the
Company objects to all or a portion of the vesting of this Warrant as set
forth in the Vesting Notice (the "Objection Notice"). Any portion of the
vesting set forth in the Vesting Notice as to which no objection is made
shall be immediately vested. Upon the giving of the Objection Notice with
regard to any portion of the vesting as to which an objection is made, the
Company and EDS CoNext will use reasonable efforts to resolve any objections.
If the Company and EDS CoNext are unable to resolve the dispute, the Company
and EDS CoNext will jointly select an accounting firm of national standing to
resolve the dispute. If the Company and EDS CoNext are unable to agree on the
choice of such an accounting firm, they will select an accounting firm of
national standing by lot which has not provided services to either the
Company or EDS CoNext during the preceding twenty-four (24) months (the
"Accountant") which shall determine the Revenue for the period. The
Accountant shall deliver to each of the Company and EDS CoNext its
determination within ten (10) Business Days after being selected, and the
determination of the Accountant shall be binding upon the Company and EDS
CoNext. The expenses of the Accountant shall be borne equally by the Company
and EDS CoNext. Any additional portion of the Warrant that shall vest as a
result of
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-2-
<PAGE>
the agreement of the Company and EDS CoNext or the determination of the
Accountant shall be vested as of the Vesting Date for such shares upon such
agreement or determination.
1.6 EXERCISE OF WARRANT FOLLOWING SALE OF THE COMPANY. In the event
of the consummation of any transaction which would result in the holders of
Common Stock or any shares of common stock received in exchange for the
Common Stock receiving cash or non-marketable securities, the Warrant, (i) as
to that portion of the Warrant that is then exercisable, shall be exercised
prior to the commencement of such transaction, and (ii) [*]
2. EXPIRATION OF WARRANT. This Warrant, as to each portion thereof that vests
and becomes exercisable pursuant to Section 1, shall expire on the fifth
anniversary date of the Vesting Date for such exercisable portion of the
Warrant (the "Expiration Date"). The Warrant shall cease to vest upon the
termination of the Alliance Agreement.
3. EXERCISE OF WARRANT. This Warrant shall only be exercisable with respect
to Shares as to which the Warrant has vested and become exercisable pursuant
to the terms of Sections 1 and 3 hereof.
3.1 MANNER OF EXERCISE. This Warrant may only be exercised by the
holder hereof, in accordance with the terms and conditions hereof, in whole
or in part with respect to any vested portion of the Warrant, into shares of
Common Stock, during normal business hours on any Business Day on or prior to
the Expiration Date with respect to such vested portion of the Warrant, by
surrender of this Warrant to the Company at its office maintained pursuant to
Section 12.2(a) hereof, accompanied by an exercise notice in substantially
the form attached to this Warrant (or a reasonable facsimile thereof) duly
executed by the holder, and the holder shall thereupon be entitled to receive
a number of duly authorized, validly issued, fully paid and nonassessable
shares of Common Stock (or Other Securities) equal to:
(a) an amount equal to:
(i) an amount equal to (x) the number of
shares of Common Stock (or Other Securities)
determined as provided in Sections 4 and 5 hereof
which the holder would be entitled to receive upon
exercise of this Warrant for the number of shares of
Common Stock designated in the exercise notice
MULTIPLIED BY (y) the Current Market Price of each
share of Common Stock (or Other Securities) so
receivable upon exercise
MINUS
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-3-
<PAGE>
(ii) an amount equal to (x) the number of
shares of Common Stock (without giving effect to any
adjustment thereof) designated in the exercise notice
MULTIPLIED BY (y) the Initial Warrant Price
DIVIDED BY
(b) the Current Market Price of each share of
Common Stock (or Other Securities);
PROVIDED, HOWEVER, that the holder may not exercise this Warrant for
shares of Common Stock (or Other Securities) until [*].
3.2 WHEN EXERCISE EFFECTIVE. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on
the Business Day on which this Warrant shall have been surrendered to the
Company as provided in Section 3.1 hereof, and at such time the Person or
Persons in whose name or names any certificate or certificates for shares of
Common Stock (or Other Securities) shall be issuable upon exercise as
provided in Section 3.3 hereof shall be deemed to have become the holder or
holders of record thereof.
3.3 DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable
after each exercise of this Warrant, in whole or in part, and in any event
within fifteen (15) Business Days thereafter, the Company at its expense
(including the payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the holder hereof or, subject to
Section 10 hereof, as the holder (upon payment by the holder of any
applicable transfer taxes) may direct:
(a) a certificate or certificates (with appropriate
restrictive legends, as applicable) for the number of duly
authorized, validly issued, fully paid and nonassessable
shares of Common Stock (or Other Securities) to which the
holder shall be entitled upon exercise plus, in lieu of any
fractional share to which the holder would otherwise be
entitled, cash in an amount equal to the same fraction of the
Market Price per share on the Business Day immediately prior
to the date of exercise; and
(b) in case exercise is in part only, a new Warrant
of like tenor, dated the date hereof and calling in the
aggregate on the face thereof for the number of shares of
Common Stock equal (without giving effect to any adjustment
thereof) to the number of shares called for on the face of
this Warrant minus the number of shares designated by the
holder upon exercise as provided in Section 3.1 hereof.
3.4 COMPANY TO REAFFIRM OBLIGATIONS. The Company will, at the time
of each exercise of this Warrant, upon the written request of the holder
hereof, acknowledge in writing its continuing obligation to afford to the
holder all rights (including without limitation any rights to registration,
pursuant to the Registration Agreement referred to in Section 9 hereof, of
the shares of Common Stock or Other Securities issued upon exercise) to which
the holder shall continue to be entitled after exercise in accordance with
the terms of this Warrant; PROVIDED, HOWEVER, that if
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-4-
<PAGE>
the holder of this Warrant shall fail to make a request, the failure shall
not affect the continuing obligation of the Company to afford the rights to
such holder.
4. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.
4.1 GENERAL; NUMBER OF SHARES; WARRANT PRICE. The number of shares
of Common Stock which the holder of this Warrant shall be entitled to receive
upon each-exercise hereof shall be determined by multiplying the number of
shares of Common Stock which would otherwise (but for the provisions of this
Section 4) be issuable upon exercise, as designated by the holder hereof
pursuant to Section 3.1 hereof, by the fraction of which (a) the numerator is
the Initial Warrant Price and (b) the denominator is the Warrant Price in
effect on the date of such exercise. The "Warrant Price" shall initially be
the Initial Warrant Price, shall be adjusted and re-adjusted from time to
time as provided in this Section 4 and, as so adjusted or re-adjusted, shall
remain in effect until a further adjustment or re-adjustment thereof is
required by this Section 4.
4.2 TREATMENT OF STOCK DIVIDENDS, STOCK SPLITS, ETC. In case the
Company at any time or from time to time after the date hereof shall declare
or pay any dividend on the Common Stock payable in Common Stock, or shall
effect a subdivision of the outstanding shares of Common Stock into a greater
number of shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in Common Stock), then, and in each case, subject to
Section 4.4 hereof, the Warrant Price shall be reduced, concurrently with the
dividend or subdivision, to a price determined by multiplying the Warrant
Price by a fraction:
(a) the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to the
dividend or subdivision; and
(b) the denominator of which shall be the number of
shares of Common Stock outstanding immediately after the
dividend or subdivision.
Additional shares of Common Stock shall be deemed to have been
issued and to be outstanding (a) in the case of any dividend, immediately
after the close of business on the record date for the determination of
holders of any class of securities entitled to receive the dividend, or (b)
in the case of any subdivision, at the close of business on the day
immediately prior to the day upon which the corporate action becomes
effective. Additional shares of Common Stock deemed to have been issued
pursuant to this Section 4.2 shall be deemed to have been issued for no
consideration.
4.3 ADJUSTMENTS FOR COMBINATIONS, ETC. In case the outstanding
shares of Common Stock shall be combined or consolidated, by reclassification
or otherwise, into a lesser number of shares of Common Stock, the Warrant
Price in effect immediately prior to the combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased. Adjustment under this Section 4.3 shall become
effective at the close of business on the day immediately prior to the day
upon which the corporate action becomes effective.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-5-
<PAGE>
4.4 MINIMUM ADJUSTMENT OF WARRANT PRICE. If the amount of any
adjustment of the Warrant Price required pursuant to this Section 4 would be
less than one-tenth (1/10) of one percent (1%) of the Warrant Price in effect
at the time of the adjustment is otherwise so required to be made, the amount
shall be carried forward and adjustment with respect thereto made at the time
of and together with any subsequent adjustment which, together with the
amount and any other amount or amounts so carried forward, shall aggregate at
least one tenth (1/10) of one percent (1%) of the Warrant Price.
5. ADJUSTMENTS FOR CONSOLIDATION, MERGER, SALE OF ASSETS, REORGANIZATION,
ETC. In case the Company after the date hereof (a) shall consolidate with or
merge into any other Person and shall not be the continuing or surviving
corporation following the consolidation or merger, or (b) shall permit any
other Person to consolidate with or merge into the Company and the Company
shall be the continuing or surviving Person but, in connection with the
consolidation or merger, the Common Stock or Other Securities shall be
changed into or exchanged for stock or other securities of any other Person
or cash or any other property, or (c) shall transfer all or substantially all
of its properties or assets to any other Person, or (d) shall effect a
capital reorganization or reclassification of the Common Stock or Other
Securities then, and in the case of each such transaction, proper provision
shall be made so that, upon the basis and the terms and in the manner
provided in this Warrant, the holder of this Warrant, upon the exercise
hereof at any time after the consummation of the transaction, shall be
entitled to receive (at the aggregate Warrant Price in effect at the time of
such consummation for all Common Stock or Other Securities issuable upon
exercise immediately prior to the consummation), in lieu of the Common Stock
or Other Securities issuable upon exercise prior to the consummation, the
greatest amount of securities, cash or other property to which the holder
would actually have been entitled as a stockholder upon such consummation if
the holder had exercised the rights represented by this Warrant (to the
extent then exercisable pursuant to Section 1) immediately prior thereto,
subject to adjustments (subsequent to the consummation) as nearly equivalent
as possible to the adjustments provided for in Sections 4 and 5 hereof.
6. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all of the terms and in the taking
of all actions necessary or appropriate in order to protect the rights of the
holder of this Warrant. Without limiting the generality of the foregoing, the
Company (a) will not permit the par value of any shares of stock receivable
upon the exercise of this Warrant to exceed the amount payable therefor upon
exercise, (b) will take all actions necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares
of stock on the exercise of the Warrant and (c) will not take any action
which results in any adjustment of the Warrant Price if the total number of
shares of Common Stock (or Other Securities) issuable after the action upon
the exercise of the Warrant would exceed the total number of shares of Common
Stock (or Other Securities) then authorized by the Company's certificate of
incorporation and available for the purpose of issuance upon exercise.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-6-
<PAGE>
7. CHIEF FINANCIAL OFFICER'S REPORT AS TO ADJUSTMENTS. In the case of any
adjustment or re-adjustment in the shares of Common Stock (or Other
Securities) issuable upon the exercise of this Warrant, the Company at its
expense will promptly compute the adjustment or re-adjustment in accordance
with the terms of this Warrant and, if requested by the holder, cause its
Chief Financial Officer to certify the computation (other than any
computation of the fair value of property as determined in good faith by the
Board of Directors of the Company) and prepare a report setting forth the
adjustment or re-adjustment and showing in reasonable detail the method of
calculation thereof and the facts upon which the adjustment or re-adjustment
is based, including a statement of (a) the number of shares of Common Stock
outstanding or deemed to be outstanding and (b) the Warrant Price in effect
immediately prior to the deemed issuance or sale and as adjusted and
re-adjusted (if required by Section 4 hereof) on account thereof. The Company
will forthwith mail a copy of each report to each holder of a Warrant and
will, upon the written request at any time of any holder of a Warrant,
furnish to the holder a like report setting forth the Warrant Price at the
time in effect and showing in reasonable detail how it was calculated. The
Company will also keep copies of all reports at its office maintained
pursuant to Section 12.2(a) hereof and will cause them to be available for
inspection at the office during normal business hours upon reasonable notice
by any holder of a Warrant or any prospective purchaser of a Warrant
designated by the holder thereof.
8. REPRESENTATION AS TO NUMBER OF OUTSTANDING SHARES. The Company represents
and warrants to EDS CoNext that, as of December 7, 1999, there were issued
and outstanding 108,847,771 shares of Common Stock (after giving effect to
the stock dividend paid on December 17, 1999), including the number of shares
of Common Stock issuable upon the exercise of all outstanding options and
warrants, calculated using the treasury stock method. Other than the stock
dividend paid on December 17, 1999, from December 7, 1999 until the date
hereof, no event has occurred which would have resulted in any adjustment
pursuant to Sections 4 or 5 hereof.
9. REGISTRATION OF COMMON STOCK. The shares of Common Stock (and Other
Securities) issuable upon exercise of this Warrant shall constitute
Registrable Securities (as such term is defined in the Registration
Agreement). The original holder of this Warrant, and any valid transferees
thereof pursuant to the Registration Agreement, shall be entitled to all of
the benefits afforded to a holder of any Registrable Securities under the
Registration Agreement and such holder, by its acceptance of this Warrant,
agrees to be bound by and to comply with the terms and conditions of the
Registration Agreement applicable to the holder as a holder of Registrable
Securities. At any time when the Common Stock is listed on any national
securities exchange, the Company will, at its expense, obtain promptly and
maintain the approval for listing on each exchange, upon official notice of
issuance, any shares of Common Stock issued upon exercise of the then
outstanding Warrants and maintain the listing of the shares after their
issuance; and the Company will also list on such national securities
exchange, will register under the Exchange Act and will maintain the listing
of any Other Securities that at any time are issued upon exercise of the
Warrants, if and at the time that any securities of the same class shall be
listed on a national securities exchange by the Company.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-7-
<PAGE>
10. RESTRICTIONS ON TRANSFER.
10.1 RESTRICTIVE LEGENDS. This Warrant and each Warrant issued upon
transfer or in substitution for this Warrant pursuant to Section 12, each
certificate for Common Stock (or Other Securities) issued upon the exercise
of any Warrant and each certificate issued upon the transfer of any such
Common Stock (or Other Securities) shall be transferable only upon
satisfaction of the conditions specified in this Section 10 and Section 12.4.
Each of the foregoing securities shall be stamped or otherwise imprinted with
a legend reflecting the restrictions on transfer set forth in Sections 10 and
12.4 hereof and any restrictions required under the Securities Act.
10.2 NOTICE OF PROPOSED TRANSFER, OPINION OF COUNSEL. Prior to any
transfer of any Restricted Securities which are not registered under an
effective registration statement under the Securities Act, the holder thereof
will give written notice to the Company of the holder's intention to effect a
transfer and to comply in all other respects with this Section 10.2. Each
notice (a) shall describe the manner and circumstances of the proposed
transfer, and (b) shall designate counsel for the holder giving the notice
(who may be in-house counsel for the holder). The holder giving notice will
submit a copy thereof to the counsel designated in the notice. The following
provisions shall then apply:
(i) If in the opinion of counsel for the
holder reasonably satisfactory to the Company the
proposed transfer may be effected without
registration of Restricted Securities under the
Securities Act (which opinion shall state the basis
of the legal conclusions reached therein), the holder
shall thereupon be entitled to transfer the
Restricted Securities in accordance with the terms of
the notice delivered by the holder to the Company.
Each certificate representing the Restricted
Securities issued upon or in connection with any
transfer shall bear the restrictive legends required
by Section 10.1 hereof.
(ii) If the opinion called for in (i) above
is not delivered, the holder shall not be entitled to
transfer the Restricted Securities until either (x)
receipt by the Company of a further notice from such
holder pursuant to the foregoing provisions of this
Section 10.2 and fulfillment of the provisions of
clause (i) above or (y) such Restricted Securities
have been effectively registered under the Securities
Act.
Notwithstanding any other provision of this Section 10, no opinion
of counsel shall be necessary for a transfer of Restricted Securities by the
holder thereof to an Affiliate of a holder, if the transferee agrees in
writing to be subject to the terms hereof to the same extent as if the
transferee were the original Purchaser hereof and such transfer is permitted
under applicable securities laws.
10.3 TERMINATION OF RESTRICTIONS. The restrictions imposed by this
Section 10 upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities (a) which Restricted
Securities shall have been effectively registered under the
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-8-
<PAGE>
Securities Act, or (b) when, in the opinions of both counsel for the holder
thereof and counsel for the Company, such restrictions are no longer required
in order to insure compliance with the Securities Act or Section 12 hereof.
Whenever such restrictions shall cease and terminate as to any Restricted
Securities, the holder thereof shall be entitled to receive from the Company,
without expense (other than applicable transfer taxes, if any), new
securities of like tenor not bearing the applicable legends required by
Section 10.1 hereof.
11. RESERVATION OF STOCK, ETC. The Company will at all times reserve and keep
available, solely for issuance and delivery upon exercise of the Warrant, the
number of shares of Common Stock of each class (or Other Securities) from
time to time issuable upon exercise of the Warrant at the time outstanding.
All shares of Common Stock (or Other Securities) issuable upon exercise of
the Warrant shall be duly authorized and, when issued upon exercise, shall be
validly issued and, in the case of shares, fully paid and nonassessable.
12. OWNERSHIP, TRANSFER AND SUBSTITUTION OF WARRANT.
12.1 OWNERSHIP OF WARRANT. The Company may treat the person in whose
name this Warrant is registered on the register kept at the office of the
Company maintained pursuant to Section 12.2(a) hereof as the owner and holder
thereof for all purposes, notwithstanding any notice to the contrary, except
that, if and when any Warrant is properly assigned in blank, the Company may
(but shall not be obligated to) treat the bearer thereof as the owner of such
Warrant for all purposes, notwithstanding any notice to the contrary. Subject
to Section 10 hereof, this Warrant, if properly assigned, may be exercised by
a new holder without a new Warrant first having been issued.
12.2 OFFICE; TRANSFER AND EXCHANGE OF WARRANT.
(a) The Company will maintain an office (which may be
an agency maintained at a bank) in Mountain View, California
where notices, presentations and demands in respect of this
Warrant may be made upon it. The office shall be maintained at
1565 Charleston Road, Mountain View, California 94043 until
the Company notifies the holders of the Warrant of any change
of location of the office.
(b) The Company shall cause to be kept at its office
maintained pursuant to Section 12.2(a) hereof a register for
the registration and transfer of the Warrant. The names and
addresses of holders of the Warrant, the transfers thereof and
the names and addresses of transferees of the Warrant shall be
registered in such register. The Person in whose name any
Warrant shall be so registered shall be deemed and treated as
the owner and holder thereof for all purposes of this Warrant,
and the Company shall not be affected by any notice or
knowledge to the contrary.
(c) Upon the surrender of this Warrant, properly
endorsed, for registration of transfer or for exchange at the
office of the Company maintained pursuant to Section 12.2(a)
hereof, the Company at its expense will (subject to compliance
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-9-
<PAGE>
with Section 10 hereof, if applicable) execute and deliver to
or upon the order of the holder thereof a new Warrant of like
tenor, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face thereof for the
number of shares of Common Stock called for on the face of the
Warrant so surrendered.
12.3 REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
the Warrant and, in the case of any such loss, theft or destruction of the
Warrant, upon delivery of indemnity reasonably satisfactory to the Company in
form and amount or, in the case of any mutilation, upon surrender of the
Warrant for cancellation at the office of the Company maintained pursuant to
Section 12.2(a) hereof, the Company at its expense will execute and deliver,
in lieu thereof, a new Warrant of like tenor and dated the date hereof.
12.4 RESTRICTIONS ON TRANSFER. In addition to the restrictions on
transfer set forth in Section 10 hereof, neither the Warrant nor any portion
of the Warrant may be transferred without the consent of the Company unless
the Warrant has vested and become exercisable in accordance with Section 1
hereof as to that portion of the Warrant that is to be transferred.
13. DEFINITIONS. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
ACCOUNTANT: As defined in Section 1.4 hereof.
AFFILIATE: Any Person holding more than 50% of the equity of an
entity or any majority-owned subsidiary of such entity.
ALLIANCE AGREEMENT: As defined in the introduction to this Warrant.
ARIBA NETWORK: The business-to-business e-commerce network operated
by the Company that enables buyers and suppliers to automate transactions on
the Internet.
BUSINESS DAY: Any day other than a Saturday or a Sunday or a day on
which commercial banking institutions in New York, New York are authorized by
law to be closed. Any reference to "days" (unless Business Days are
specified) shall mean calendar days.
COMMISSION: The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
COMMON STOCK: As defined in the introduction to this Warrant and
including any stock into which the Common Stock shall have been changed or
any stock resulting from any reclassification of the Common Stock, and all
other stock of any class or classes (however designated) of the Company the
holders of which have the right, without limitation as to amount, either to
all, or to a share of the balance of, current dividends and liquidating
dividends after the payment of dividends and distributions on any shares
entitled to preference.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-10-
<PAGE>
COMPANY: As defined in the introduction to this Warrant and including
any corporation which shall succeed to or assume the obligations of the Company
hereunder in compliance with Section 5 hereof.
CONSORTIUM: A group of entities organized by EDS CoNext that desire to
pool their purchasing for certain products and services, whether existing on the
date hereof or subsequently organized.
[*] As defined in Section 1.3 hereof.
CURRENT MARKET PRICE: On any date specified herein, the average daily
Market Price during the period of the most recent ten (10) days, ending on and
including such date, on which the national securities exchanges or the national
market system of the NASD were open for trading, except that if no class of the
Common Stock is then listed or admitted to trading on a national securities
exchange or the national market system of the NASD, the Current Market Price
shall be the Market Price on such date.
EDS CONEXT: EDS Conext, Inc., its subsidiaries and assigns.
EDS CONEXT FRAME AGREEMENTS: The agreements entered into between EDS
CoNext and suppliers pursuant to which such suppliers agree to provide goods
and/or services to one or more Consortia.
EXCHANGE ACT: The Securities Exchange Act of 1934, or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
EXPIRATION DATE: As defined in Section 2 of this Warrant.
INITIAL WARRANT PRICE: As to each portion of this Warrant that vests
and becomes exercisable, [*] adjusted for any stock splits, stock dividends or
other distributions retroactively back to the date of issuance of this Warrant.
MARKET PRICE: On any date specified herein, the amount per share of
Common Stock equal to (a) the closing price of the Common Stock on such date or,
if no such sale takes place on such date, the average of the closing bid and
asked prices thereof on such date, in each case as officially reported on the
principal national securities exchange on which the Common Stock is then listed
or admitted to trading, or (b) if the Common Stock is not then listed or
admitted to trading on a national securities exchange but is designated as a
national market system security by the NASD, the last closing price of the
Common Stock on such date, (c) if there shall have been no trading on such date
or if the Common Stock is not so designated, the average of the closing bid and
asked prices of the Common Stock on such date as shown by the NASD automated
quotation system or (d) if the Common Stock is not then listed or admitted to
trading
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-11-
<PAGE>
on any national exchange or the national market system of the NASD, the fair
value thereof determined in good faith by the Board of Directors of the
Company as of a date which is within fifteen (15) days of the date as of
which the determination is to be made.
NASD: The National Association of Securities Dealers, Inc.
OBJECTION NOTICE: As defined in Section 1.5 hereof.
OBJECTION NOTICE PERIOD: As defined in Section 1.5 hereof.
OTHER SECURITIES: Any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or otherwise) which the
holders of the Warrants at any time shall be entitled to receive, or shall have
received, upon the exercise of the Warrants, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities pursuant to
Section 5 hereof or otherwise.
PARTICIPANT: An entity that [*]
PERSON: A corporation, an association, a partnership, an organization,
a business, an individual, a government or political subdivision thereof or a
governmental agency.
REGISTRATION AGREEMENT: The Registration Rights Agreement dated as of
December 31, 1999, between the Company and EDS CoNext, as from time to time in
effect.
RESTRICTED SECURITIES: All of the following: (a) the Warrant and (b)
any shares of Common Stock (or Other Securities) which have been issued upon the
exercise of the Warrant and which are evidenced by a certificate or certificates
bearing the applicable legend or legends referred to in Section 10.1.
REVENUE TARGET: The respective level of Revenues with respect to a
Target Year as set forth in Section 1.1.
REVENUES: The aggregate amount of fee revenue described below that are
received by the Company in accordance with the Alliance Agreement:
[*]
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-12-
<PAGE>
[*]
SECURITIES ACT: The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
TARGET YEAR: The [*] twelve-month periods commencing on January 1, 2000
and ending on each of the [*] subsequent anniversaries of such date.
VESTING DATE: The respective date of vesting with respect a Target
Year as set forth in Section 1.1.
VESTING NOTICE: As defined in Section 1.4 hereof.
WARRANT PRICE: As defined in Section 4.1 hereof.
WARRANTS: As defined in the introduction to this Warrant.
14. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in this Warrant
shall be construed as conferring upon the holder hereof any rights as a
stockholder of the Company or as imposing any obligation on the holder to
purchase any securities or as imposing any liabilities on such holder as a
stockholder of the Company, whether such obligation or liabilities are asserted
by the Company or by creditors of the Company.
15. NOTICES. Any notice or other communication in connection with this Warrant
shall be deemed to be given if in writing (or in the form of a facsimile)
addressed as hereinafter provided and actually delivered at said address: (a) if
to any holder of any Warrant, at the registered address of such holder as set
forth in the register kept at the office of the Company maintained
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-13-
<PAGE>
pursuant to Section 12.2(a) hereof, or (b) if to the Company, to the
attention of its Chief Financial Officer at its office maintained pursuant to
Section 12.2(a) hereof; PROVIDED, HOWEVER, that the exercise of any Warrant
shall be effective in the manner provided in Section 3 hereof.
16. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware. The section headings in this
Warrant are for purposes of convenience only and shall not constitute a part
hereof.
* * * * *
(Signature page follows)
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-14-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Class C-1 Common Stock
Purchase Warrant to be duly executed as of the date first above written
ARIBA, INC.
By: /s/ Edward P. Kinsey
----------------------------
Title: EVP, CFO
-------------------------
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
FORM OF EXERCISE NOTICE
[To be executed only upon conversion of Warrant]
To [ISSUER]
The undersigned registered holder of the within Warrant hereby
irrevocably converts the Warrant pursuant to Section 3.1 of the Warrant with
respect to __________(1) shares of the Common Stock which the holder would be
entitled to receive upon the cash exercise hereof, and requests that the
certificates for the shares be issued in the name of, and delivered to, whose
address is
Dated: __________________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
Warrant)
__________________________________________
(Street Address)
__________________________________________
(City) (State) (Zip Code)
_______________________
(1) Insert here the number of shares called for on the face of this Warrant (or,
in the case of a partial exercise, the portion thereof as to which this Warrant
is being exercised), in either case without making any adjustment of shares of
Common Stock or any other stock or other securities or property or cash which,
pursuant to the adjustment provisions of this Warrant, may be delivered upon
exercise. In the case of a partial exercise, a new Warrant or Warrants will be
issued and delivered, representing the unconverted portion of the Warrant, to
the holder surrendering the Warrant.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
FORM OF ASSIGNMENT
[To be executed only upon transfer of Warrant]
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto __________ the right
represented by the Warrant to purchase __________(1) shares of Common Stock of
[ISSUER] to which the Warrant relates, and appoints __________ Attorney to make
such transfer on the books of [ISSUER] maintained for the purpose, with full
power of substitution in the premises.
Dated: _________________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of Warrant)
_________________________________________
(Street Address)
_________________________________________
(City) (State) (Zip Code)
Signed in the presence of:
_________________________________________
(Signature of Transferee)
_________________________________________
(Street Address)
_________________________________________
(City) (State) (Zip Code)
Signed in the presence of:
________________________
(1) Insert here the number of shares called for on the face of this Warrant (or,
in the case of a partial exercise, the portion thereof as to which this Warrant
is being exercised), in either case without making any adjustment of shares of
Common Stock or any other stock or other securities or property or cash which,
pursuant to the adjustment provisions of this Warrant, may be delivered upon
exercise. In the case of a partial exercise, a new Warrant or Warrants will be
issued and delivered, representing the unexercised portion of the Warrant, to
the holder surrendering the Warrant.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR ON OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
ARIBA, INC.
CLASS C-2
COMMON STOCK PURCHASE WARRANT
Mountain View, California
January 1, 2000
ARIBA, INC., a Delaware corporation (the "Company"), for value
received, hereby certifies that EDS CoNext, Inc. ("EDS CoNext"), or its
registered assigns, is entitled to purchase from the Company [*] duly
authorized, validly issued, fully paid and nonassessable shares (the
"Shares") of Common Stock of the Company, par value $.002 per share (the
"Common Stock"), at the purchase price per share of [*] (the "Initial Warrant
Price"), all subject to the terms, conditions and adjustments set forth below
in this Warrant.
This Warrant is one of the Common Stock Purchase Warrants (the
"Warrants," such term to include any warrants issued in substitution
therefor) originally issued in connection with the execution and delivery of
the Alliance Agreement dated as of December 31, 1999 (as from time to time in
effect, the "Alliance Agreement") between the Company and EDS CoNext. Certain
capitalized terms used in this Warrant are defined in Section 13 hereof.
1. VESTING OF WARRANTS.
1.1 VESTING AMOUNTS AND DATES. The Revenue Targets, the maximum
number of Shares as to which the Warrant may vest and become exercisable for
each Target Year, and the Vesting Date for such Shares are as follows:
<TABLE>
<CAPTION>
Maximum Number
Target Year Revenue Target of Shares Vested Vesting Date
----------- -------------- ---------------- ------------
<S> <C> <C> <C>
[*] [*] [*] [*]
</TABLE>
This Warrant will vest and become exercisable on an annual basis as of the
Vesting Date and become exercisable for the following which occur during such
Target Year: (i) upon the
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
Company receiving Revenues equal to [*] of the Revenue Target for the
corresponding Target Year, this Warrant shall vest and become exercisable for
[*] of the maximum number of Shares as to which the Warrant may vest and
become exercisable for such Target Year as of the Vesting Date for such
Target Year (based on the percentage set forth above), and (ii) in the event
the Company receives Revenues in excess of [*] of such Revenue Target, this
Warrant shall vest and become exercisable for [*] of the maximum number of
Shares as to which the Warrant may vest and become exercisable for such
Target Year (based on the percentage set forth above). The number of shares
of Common Stock set forth above shall be adjusted to the extent and in the
same manner as the aggregate number of Shares is adjusted under the
provisions of Sections 4 and 5 hereof.
1.2 [*]
1.3 [*]
1.4 NOTICE OF VESTING. Within sixty (60) days after the end of each
of the Target Years and the Cumulative Make-Up Period, EDS CoNext will
prepare and deliver to the Company (a) a revenue statement, prepared in
accordance with generally accepted accounting principles, setting out the
Revenue for the period, together with all appropriate supporting
documentation and (b) a computation of the number of Shares that have vested
and become exercisable as of the Vesting Date with respect to such period in
accordance with the terms hereof (the "Vesting Notice").
1.5 NOTICE OF OBJECTION. The Company shall have ten (10) Business
Days from the Vesting Notice having been given in accordance with Section 15
(the "Objection Notice Period") to give EDS CoNext written notice that the
Company objects to all or a portion of the vesting of this Warrant as set
forth in the Vesting Notice (the "Objection Notice"). Any portion of the
vesting set forth in the Vesting Notice as to which no objection is made
shall be immediately vested. Upon the giving of the Objection Notice with
regard to any portion of the vesting as to which an objection is made, the
Company and EDS CoNext will use reasonable efforts to resolve any objections.
If the Company and EDS CoNext are unable to resolve the dispute, the Company
and EDS CoNext will jointly select an accounting firm of national standing to
resolve the dispute. If the Company and EDS CoNext are unable to agree on the
choice of such an accounting firm, they will select an accounting firm of
national standing by lot which has not provided services to either the
Company or EDS CoNext during the preceding twenty-four (24) months (the
"Accountant") which shall determine the Revenue for the period. The
Accountant shall deliver to each of the Company and EDS CoNext its
determination within ten (10) Business Days after being selected, and the
determination of the Accountant shall be binding upon the Company and EDS
CoNext. The expenses of the Accountant shall be borne equally by the Company
and EDS CoNext. Any additional portion of the Warrant that shall vest as a
result of
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-2-
<PAGE>
the agreement of the Company and EDS CoNext or the determination of the
Accountant shall be vested as of the Vesting Date for such shares upon such
agreement or determination.
1.6 EXERCISE OF WARRANT FOLLOWING SALE OF THE COMPANY. In the event
of the consummation of any transaction which would result in the holders of
Common Stock or any shares of common stock received in exchange for the
Common Stock receiving cash or non-marketable securities, the Warrant, (i) as
to that portion of the Warrant that is then exercisable, shall be exercised
prior to the commencement of such transaction, and (ii) [*]
2. EXPIRATION OF WARRANT. This Warrant, as to each portion thereof that vests
and becomes exercisable pursuant to Section 1, shall expire on the fifth
anniversary date of the Vesting Date for such exercisable portion of the
Warrant (the "Expiration Date"). The Warrant shall cease to vest upon the
termination of the Alliance Agreement.
3. EXERCISE OF WARRANT. This Warrant shall only be exercisable with respect
to Shares as to which the Warrant has vested and become exercisable pursuant
to the terms of Sections 1 and 3 hereof.
3.1 MANNER OF EXERCISE. This Warrant may only be exercised by the
holder hereof, in accordance with the terms and conditions hereof, in whole
or in part with respect to any vested portion of the Warrant, into shares of
Common Stock, during normal business hours on any Business Day on or prior to
the Expiration Date with respect to such vested portion of the Warrant, by
surrender of this Warrant to the Company at its office maintained pursuant to
Section 12.2(a) hereof, accompanied by an exercise notice in substantially
the form attached to this Warrant (or a reasonable facsimile thereof) duly
executed by the holder, and the holder shall thereupon be entitled to receive
a number of duly authorized, validly issued, fully paid and nonassessable
shares of Common Stock (or Other Securities) equal to:
(a) an amount equal to:
(i) an amount equal to (x) the number of
shares of Common Stock (or Other Securities)
determined as provided in Sections 4 and 5 hereof
which the holder would be entitled to receive upon
exercise of this Warrant for the number of shares of
Common Stock designated in the exercise notice
MULTIPLIED BY (y) the Current Market Price of each
share of Common Stock (or Other Securities) so
receivable upon exercise
MINUS
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-3-
<PAGE>
(ii) an amount equal to (x) the number of
shares of Common Stock (without giving effect to any
adjustment thereof) designated in the exercise notice
MULTIPLIED BY (y) the Initial Warrant Price
DIVIDED BY
(b) the Current Market Price of each share of
Common Stock (or Other Securities);
PROVIDED, HOWEVER, that the holder may not exercise this Warrant for
shares of Common Stock (or Other Securities) until [*].
3.2 WHEN EXERCISE EFFECTIVE. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on
the Business Day on which this Warrant shall have been surrendered to the
Company as provided in Section 3.1 hereof, and at such time the Person or
Persons in whose name or names any certificate or certificates for shares of
Common Stock (or Other Securities) shall be issuable upon exercise as
provided in Section 3.3 hereof shall be deemed to have become the holder or
holders of record thereof.
3.3 DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable
after each exercise of this Warrant, in whole or in part, and in any event
within fifteen (15) Business Days thereafter, the Company at its expense
(including the payment by it of any applicable issue taxes) will cause to be
issued in the name of and delivered to the holder hereof or, subject to
Section 10 hereof, as the holder (upon payment by the holder of any
applicable transfer taxes) may direct:
(a) a certificate or certificates (with appropriate
restrictive legends, as applicable) for the number of duly
authorized, validly issued, fully paid and nonassessable
shares of Common Stock (or Other Securities) to which the
holder shall be entitled upon exercise plus, in lieu of any
fractional share to which the holder would otherwise be
entitled, cash in an amount equal to the same fraction of the
Market Price per share on the Business Day immediately prior
to the date of exercise; and
(b) in case exercise is in part only, a new Warrant
of like tenor, dated the date hereof and calling in the
aggregate on the face thereof for the number of shares of
Common Stock equal (without giving effect to any adjustment
thereof) to the number of shares called for on the face of
this Warrant minus the number of shares designated by the
holder upon exercise as provided in Section 3.1 hereof.
3.4 COMPANY TO REAFFIRM OBLIGATIONS. The Company will, at the time
of each exercise of this Warrant, upon the written request of the holder
hereof, acknowledge in writing its continuing obligation to afford to the
holder all rights (including without limitation any rights to registration,
pursuant to the Registration Agreement referred to in Section 9 hereof, of
the shares of Common Stock or Other Securities issued upon exercise) to which
the holder shall continue to be entitled after exercise in accordance with
the terms of this Warrant; PROVIDED, HOWEVER, that if
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-4-
<PAGE>
the holder of this Warrant shall fail to make a request, the failure shall
not affect the continuing obligation of the Company to afford the rights to
such holder.
4. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.
4.1 GENERAL; NUMBER OF SHARES; WARRANT PRICE. The number of shares
of Common Stock which the holder of this Warrant shall be entitled to receive
upon each-exercise hereof shall be determined by multiplying the number of
shares of Common Stock which would otherwise (but for the provisions of this
Section 4) be issuable upon exercise, as designated by the holder hereof
pursuant to Section 3.1 hereof, by the fraction of which (a) the numerator is
the Initial Warrant Price and (b) the denominator is the Warrant Price in
effect on the date of such exercise. The "Warrant Price" shall initially be
the Initial Warrant Price, shall be adjusted and re-adjusted from time to
time as provided in this Section 4 and, as so adjusted or re-adjusted, shall
remain in effect until a further adjustment or re-adjustment thereof is
required by this Section 4.
4.2 TREATMENT OF STOCK DIVIDENDS, STOCK SPLITS, ETC. In case the
Company at any time or from time to time after the date hereof shall declare
or pay any dividend on the Common Stock payable in Common Stock, or shall
effect a subdivision of the outstanding shares of Common Stock into a greater
number of shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in Common Stock), then, and in each case, subject to
Section 4.4 hereof, the Warrant Price shall be reduced, concurrently with the
dividend or subdivision, to a price determined by multiplying the Warrant
Price by a fraction:
(a) the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to the
dividend or subdivision; and
(b) the denominator of which shall be the number of
shares of Common Stock outstanding immediately after the
dividend or subdivision.
Additional shares of Common Stock shall be deemed to have been
issued and to be outstanding (a) in the case of any dividend, immediately
after the close of business on the record date for the determination of
holders of any class of securities entitled to receive the dividend, or (b)
in the case of any subdivision, at the close of business on the day
immediately prior to the day upon which the corporate action becomes
effective. Additional shares of Common Stock deemed to have been issued
pursuant to this Section 4.2 shall be deemed to have been issued for no
consideration.
4.3 ADJUSTMENTS FOR COMBINATIONS, ETC. In case the outstanding
shares of Common Stock shall be combined or consolidated, by reclassification
or otherwise, into a lesser number of shares of Common Stock, the Warrant
Price in effect immediately prior to the combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased. Adjustment under this Section 4.3 shall become
effective at the close of business on the day immediately prior to the day
upon which the corporate action becomes effective.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-5-
<PAGE>
4.4 MINIMUM ADJUSTMENT OF WARRANT PRICE. If the amount of any
adjustment of the Warrant Price required pursuant to this Section 4 would be
less than one-tenth (1/10) of one percent (1%) of the Warrant Price in effect at
the time of the adjustment is otherwise so required to be made, the amount shall
be carried forward and adjustment with respect thereto made at the time of and
together with any subsequent adjustment which, together with the amount and any
other amount or amounts so carried forward, shall aggregate at least one tenth
(1/10) of one percent (1%) of the Warrant Price.
5. ADJUSTMENTS FOR CONSOLIDATION, MERGER, SALE OF ASSETS, REORGANIZATION, ETC.
In case the Company after the date hereof (a) shall consolidate with or merge
into any other Person and shall not be the continuing or surviving corporation
following the consolidation or merger, or (b) shall permit any other Person to
consolidate with or merge into the Company and the Company shall be the
continuing or surviving Person but, in connection with the consolidation or
merger, the Common Stock or Other Securities shall be changed into or exchanged
for stock or other securities of any other Person or cash or any other property,
or (c) shall transfer all or substantially all of its properties or assets to
any other Person, or (d) shall effect a capital reorganization or
reclassification of the Common Stock or Other Securities then, and in the case
of each such transaction, proper provision shall be made so that, upon the basis
and the terms and in the manner provided in this Warrant, the holder of this
Warrant, upon the exercise hereof at any time after the consummation of the
transaction, shall be entitled to receive (at the aggregate Warrant Price in
effect at the time of such consummation for all Common Stock or Other Securities
issuable upon exercise immediately prior to the consummation), in lieu of the
Common Stock or Other Securities issuable upon exercise prior to the
consummation, the greatest amount of securities, cash or other property to which
the holder would actually have been entitled as a stockholder upon such
consummation if the holder had exercised the rights represented by this Warrant
(to the extent then exercisable pursuant to Section 1) immediately prior
thereto, subject to adjustments (subsequent to the consummation) as nearly
equivalent as possible to the adjustments provided for in Sections 4 and 5
hereof.
6. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all of the terms and in the taking of all actions
necessary or appropriate in order to protect the rights of the holder of this
Warrant. Without limiting the generality of the foregoing, the Company (a) will
not permit the par value of any shares of stock receivable upon the exercise of
this Warrant to exceed the amount payable therefor upon exercise, (b) will take
all actions necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable shares of stock on the exercise of
the Warrant and (c) will not take any action which results in any adjustment of
the Warrant Price if the total number of shares of Common Stock (or Other
Securities) issuable after the action upon the exercise of the Warrant would
exceed the total number of shares of Common Stock (or Other Securities) then
authorized by the Company's certificate of incorporation and available for the
purpose of issuance upon exercise.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-6-
<PAGE>
7. CHIEF FINANCIAL OFFICER'S REPORT AS TO ADJUSTMENTS. In the case of any
adjustment or re-adjustment in the shares of Common Stock (or Other Securities)
issuable upon the exercise of this Warrant, the Company at its expense will
promptly compute the adjustment or re-adjustment in accordance with the terms of
this Warrant and, if requested by the holder, cause its Chief Financial Officer
to certify the computation (other than any computation of the fair value of
property as determined in good faith by the Board of Directors of the Company)
and prepare a report setting forth the adjustment or re-adjustment and showing
in reasonable detail the method of calculation thereof and the facts upon which
the adjustment or re-adjustment is based, including a statement of (a) the
number of shares of Common Stock outstanding or deemed to be outstanding and (b)
the Warrant Price in effect immediately prior to the deemed issuance or sale and
as adjusted and re-adjusted (if required by Section 4 hereof) on account
thereof. The Company will forthwith mail a copy of each report to each holder of
a Warrant and will, upon the written request at any time of any holder of a
Warrant, furnish to the holder a like report setting forth the Warrant Price at
the time in effect and showing in reasonable detail how it was calculated. The
Company will also keep copies of all reports at its office maintained pursuant
to Section 12.2(a) hereof and will cause them to be available for inspection at
the office during normal business hours upon reasonable notice by any holder of
a Warrant or any prospective purchaser of a Warrant designated by the holder
thereof.
8. REPRESENTATION AS TO NUMBER OF OUTSTANDING SHARES. The Company represents and
warrants to EDS CoNext that, as of December 7, 1999, there were issued and
outstanding 108,847,771 shares of Common Stock (after giving effect to the stock
dividend paid on December 17, 1999), including the number of shares of Common
Stock issuable upon the exercise of all outstanding options and warrants,
calculated using the treasury stock method. Other than the stock dividend paid
on December 17, 1999, from December 7, 1999 until the date hereof, no event has
occurred which would have resulted in any adjustment pursuant to Sections 4 or 5
hereof.
9. REGISTRATION OF COMMON STOCK. The shares of Common Stock (and Other
Securities) issuable upon exercise of this Warrant shall constitute Registrable
Securities (as such term is defined in the Registration Agreement). The original
holder of this Warrant, and any valid transferees thereof pursuant to the
Registration Agreement, shall be entitled to all of the benefits afforded to a
holder of any Registrable Securities under the Registration Agreement and such
holder, by its acceptance of this Warrant, agrees to be bound by and to comply
with the terms and conditions of the Registration Agreement applicable to the
holder as a holder of Registrable Securities. At any time when the Common Stock
is listed on any national securities exchange, the Company will, at its expense,
obtain promptly and maintain the approval for listing on each exchange, upon
official notice of issuance, any shares of Common Stock issued upon exercise of
the then outstanding Warrants and maintain the listing of the shares after their
issuance; and the Company will also list on such national securities exchange,
will register under the Exchange Act and will maintain the listing of any Other
Securities that at any time are issued upon exercise of the Warrants, if and at
the time that any securities of the same class shall be listed on a national
securities exchange by the Company.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-7-
<PAGE>
10. RESTRICTIONS ON TRANSFER.
10.1 RESTRICTIVE LEGENDS. This Warrant and each Warrant issued upon
transfer or in substitution for this Warrant pursuant to Section 12, each
certificate for Common Stock (or Other Securities) issued upon the exercise of
any Warrant and each certificate issued upon the transfer of any such Common
Stock (or Other Securities) shall be transferable only upon satisfaction of the
conditions specified in this Section 10 and Section 12.4. Each of the foregoing
securities shall be stamped or otherwise imprinted with a legend reflecting the
restrictions on transfer set forth in Sections 10 and 12.4 hereof and any
restrictions required under the Securities Act.
10.2 NOTICE OF PROPOSED TRANSFER, OPINION OF COUNSEL. Prior to any
transfer of any Restricted Securities which are not registered under an
effective registration statement under the Securities Act, the holder thereof
will give written notice to the Company of the holder's intention to effect a
transfer and to comply in all other respects with this Section 10.2. Each notice
(a) shall describe the manner and circumstances of the proposed transfer, and
(b) shall designate counsel for the holder giving the notice (who may be
in-house counsel for the holder). The holder giving notice will submit a copy
thereof to the counsel designated in the notice. The following provisions shall
then apply:
(i) If in the opinion of counsel for the
holder reasonably satisfactory to the Company the
proposed transfer may be effected without
registration of Restricted Securities under the
Securities Act (which opinion shall state the basis
of the legal conclusions reached therein), the holder
shall thereupon be entitled to transfer the
Restricted Securities in accordance with the terms of
the notice delivered by the holder to the Company.
Each certificate representing the Restricted
Securities issued upon or in connection with any
transfer shall bear the restrictive legends required
by Section 10.1 hereof.
(ii) If the opinion called for in (i) above
is not delivered, the holder shall not be entitled to
transfer the Restricted Securities until either (x)
receipt by the Company of a further notice from such
holder pursuant to the foregoing provisions of this
Section 10.2 and fulfillment of the provisions of
clause (i) above or (y) such Restricted Securities
have been effectively registered under the Securities
Act.
Notwithstanding any other provision of this Section 10, no opinion of
counsel shall be necessary for a transfer of Restricted Securities by the holder
thereof to an Affiliate of a holder, if the transferee agrees in writing to be
subject to the terms hereof to the same extent as if the transferee were the
original Purchaser hereof and such transfer is permitted under applicable
securities laws.
10.3 TERMINATION OF RESTRICTIONS. The restrictions imposed by this
Section 10 upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities (a) which Restricted
Securities shall have been effectively registered under the
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-8-
<PAGE>
Securities Act, or (b) when, in the opinions of both counsel for the holder
thereof and counsel for the Company, such restrictions are no longer required
in order to insure compliance with the Securities Act or Section 12 hereof.
Whenever such restrictions shall cease and terminate as to any Restricted
Securities, the holder thereof shall be entitled to receive from the Company,
without expense (other than applicable transfer taxes, if any), new
securities of like tenor not bearing the applicable legends required by
Section 10.1 hereof.
11. RESERVATION OF STOCK, ETC. The Company will at all times reserve and keep
available, solely for issuance and delivery upon exercise of the Warrant, the
number of shares of Common Stock of each class (or Other Securities) from time
to time issuable upon exercise of the Warrant at the time outstanding. All
shares of Common Stock (or Other Securities) issuable upon exercise of the
Warrant shall be duly authorized and, when issued upon exercise, shall be
validly issued and, in the case of shares, fully paid and nonassessable.
12. OWNERSHIP, TRANSFER AND SUBSTITUTION OF WARRANT.
12.1 OWNERSHIP OF WARRANT. The Company may treat the person in whose
name this Warrant is registered on the register kept at the office of the
Company maintained pursuant to Section 12.2(a) hereof as the owner and holder
thereof for all purposes, notwithstanding any notice to the contrary, except
that, if and when any Warrant is properly assigned in blank, the Company may
(but shall not be obligated to) treat the bearer thereof as the owner of such
Warrant for all purposes, notwithstanding any notice to the contrary. Subject to
Section 10 hereof, this Warrant, if properly assigned, may be exercised by a new
holder without a new Warrant first having been issued.
12.2 OFFICE; TRANSFER AND EXCHANGE OF WARRANT.
(a) The Company will maintain an office (which may be
an agency maintained at a bank) in Mountain View, California
where notices, presentations and demands in respect of this
Warrant may be made upon it. The office shall be maintained at
1565 Charleston Road, Mountain View, California 94043 until
the Company notifies the holders of the Warrant of any change
of location of the office.
(b) The Company shall cause to be kept at its office
maintained pursuant to Section 12.2(a) hereof a register for
the registration and transfer of the Warrant. The names and
addresses of holders of the Warrant, the transfers thereof and
the names and addresses of transferees of the Warrant shall be
registered in such register. The Person in whose name any
Warrant shall be so registered shall be deemed and treated as
the owner and holder thereof for all purposes of this Warrant,
and the Company shall not be affected by any notice or
knowledge to the contrary.
(c) Upon the surrender of this Warrant, properly
endorsed, for registration of transfer or for exchange at the
office of the Company maintained pursuant to Section 12.2(a)
hereof, the Company at its expense will (subject to compliance
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-9-
<PAGE>
with Section 10 hereof, if applicable) execute and deliver to
or upon the order of the holder thereof a new Warrant of like
tenor, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face thereof for the
number of shares of Common Stock called for on the face of the
Warrant so surrendered.
12.3 REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of the
Warrant and, in the case of any such loss, theft or destruction of the Warrant,
upon delivery of indemnity reasonably satisfactory to the Company in form and
amount or, in the case of any mutilation, upon surrender of the Warrant for
cancellation at the office of the Company maintained pursuant to Section 12.2(a)
hereof, the Company at its expense will execute and deliver, in lieu thereof, a
new Warrant of like tenor and dated the date hereof.
12.4 RESTRICTIONS ON TRANSFER. In addition to the restrictions on
transfer set forth in Section 10 hereof, neither the Warrant nor any portion of
the Warrant may be transferred without the consent of the Company unless the
Warrant has vested and become exercisable in accordance with Section 1 hereof as
to that portion of the Warrant that is to be transferred.
13. DEFINITIONS. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
ACCOUNTANT: As defined in Section 1.4 hereof.
AFFILIATE: Any Person holding more than 50% of the equity of an entity
or any majority-owned subsidiary of such entity.
ALLIANCE AGREEMENT: As defined in the introduction to this Warrant.
ARIBA NETWORK: The business-to-business e-commerce network operated by
the Company that enables buyers and suppliers to automate transactions on the
Internet.
BUSINESS DAY: Any day other than a Saturday or a Sunday or a day on
which commercial banking institutions in New York, New York are authorized by
law to be closed. Any reference to "days" (unless Business Days are specified)
shall mean calendar days.
COMMISSION: The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
COMMON STOCK: As defined in the introduction to this Warrant and
including any stock into which the Common Stock shall have been changed or any
stock resulting from any reclassification of the Common Stock, and all other
stock of any class or classes (however designated) of the Company the holders of
which have the right, without limitation as to amount, either to all, or to a
share of the balance of, current dividends and liquidating dividends after the
payment of dividends and distributions on any shares entitled to preference.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-10-
<PAGE>
COMPANY: As defined in the introduction to this Warrant and
including any corporation which shall succeed to or assume the obligations of
the Company hereunder in compliance with Section 5 hereof.
CONSORTIUM: A group of entities organized by EDS CoNext that desire
to pool their purchasing for certain products and services, whether existing
on the date hereof or subsequently organized.
[*] As defined in Section 1.3 hereof.
CURRENT MARKET PRICE: On any date specified herein, the average
daily Market Price during the period of the most recent ten (10) days, ending
on and including such date, on which the national securities exchanges or the
national market system of the NASD were open for trading, except that if no
class of the Common Stock is then listed or admitted to trading on a national
securities exchange or the national market system of the NASD, the Current
Market Price shall be the Market Price on such date.
EDS CONEXT: EDS Conext, Inc., its subsidiaries and assigns.
EDS CONEXT FRAME AGREEMENTS: The agreements entered into between EDS
CoNext and suppliers pursuant to which such suppliers agree to provide goods
and/or services to one or more Consortia.
EXCHANGE ACT: The Securities Exchange Act of 1934, or any similar
federal statute, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time.
EXPIRATION DATE: As defined in Section 2 of this Warrant.
INITIAL WARRANT PRICE: As defined in the introduction to this
Warrant.
MARKET PRICE: On any date specified herein, the amount per share of
Common Stock equal to (a) the closing price of the Common Stock on such date
or, if no such sale takes place on such date, the average of the closing bid
and asked prices thereof on such date, in each case as officially reported on
the principal national securities exchange on which the Common Stock is then
listed or admitted to trading, or (b) if the Common Stock is not then listed
or admitted to trading on a national securities exchange but is designated as
a national market system security by the NASD, the last closing price of the
Common Stock on such date, (c) if there shall have been no trading on such
date or if the Common Stock is not so designated, the average of the closing
bid and asked prices of the Common Stock on such date as shown by the NASD
automated quotation system or (d) if the Common Stock is not then listed or
admitted to trading on any national exchange or the national market system of
the NASD, the fair value thereof determined in good faith by the Board of
Directors of the Company as of a date which is within fifteen (15) days of
the date as of which the determination is to be made.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-11-
<PAGE>
NASD: The National Association of Securities Dealers, Inc.
OBJECTION NOTICE: As defined in Section 1.5 hereof.
OBJECTION NOTICE PERIOD: As defined in Section 1.5 hereof.
OTHER SECURITIES: Any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or otherwise) which
the holders of the Warrants at any time shall be entitled to receive, or
shall have received, upon the exercise of the Warrants, in lieu of or in
addition to Common Stock, or which at any time shall be issuable or shall
have been issued in exchange for or in replacement of Common Stock or Other
Securities pursuant to Section 5 hereof or otherwise.
PARTICIPANT: An entity that [*]
PERSON: A corporation, an association, a partnership, an
organization, a business, an individual, a government or political
subdivision thereof or a governmental agency.
REGISTRATION AGREEMENT: The Registration Rights Agreement dated as
of December 31, 1999, between the Company and EDS CoNext, as from time to
time in effect.
RESTRICTED SECURITIES: All of the following: (a) the Warrant and (b)
any shares of Common Stock (or Other Securities) which have been issued upon
the exercise of the Warrant and which are evidenced by a certificate or
certificates bearing the applicable legend or legends referred to in Section
10.1.
REVENUE TARGET: The respective level of Revenues with respect to a
Target Year as set forth in Section 1.1.
REVENUES: The aggregate amount of fee revenue described below that
are received by the Company in accordance with the Alliance Agreement:
[*]
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-12-
<PAGE>
[*]
[*]
[*]
SECURITIES ACT: The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as
the same shall be in effect at the time.
TARGET YEAR: The [*] twelve-month periods commencing on January 1,
2000 and ending on each of the [*] subsequent anniversaries of such date.
VESTING DATE: The respective date of vesting with respect a Target
Year as set forth in Section 1.1.
VESTING NOTICE: As defined in Section 1.4 hereof.
WARRANT PRICE: As defined in Section 4.1 hereof.
WARRANTS: As defined in the introduction to this Warrant.
14. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in this
Warrant shall be construed as conferring upon the holder hereof any rights as
a stockholder of the Company or as imposing any obligation on the holder to
purchase any securities or as imposing any liabilities on such holder as a
stockholder of the Company, whether such obligation or liabilities are
asserted by the Company or by creditors of the Company.
15. NOTICES. Any notice or other communication in connection with this
Warrant shall be deemed to be given if in writing (or in the form of a
facsimile) addressed as hereinafter provided and actually delivered at said
address: (a) if to any holder of any Warrant, at the registered address of
such holder as set forth in the register kept at the office of the Company
maintained pursuant to Section 12.2(a) hereof, or (b) if to the Company, to
the attention of its Chief Financial Officer at its office maintained
pursuant to Section 12.2(a) hereof; PROVIDED, HOWEVER, that the exercise of
any Warrant shall be effective in the manner provided in Section 3 hereof.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-13-
<PAGE>
16. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware. The section headings in this
Warrant are for purposes of convenience only and shall not constitute a part
hereof.
* * * * *
(Signature page follows)
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-14-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Class C-2 Common
Stock Purchase Warrant to be duly executed as of the date first above written
ARIBA, INC.
By: /s/ Edward P. Kinsey
-----------------------------
Title: EVP, CFO
--------------------------
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
FORM OF EXERCISE NOTICE
[To be executed only upon conversion of Warrant]
To [ISSUER]
The undersigned registered holder of the within Warrant hereby
irrevocably converts the Warrant pursuant to Section 3.1 of the Warrant with
respect to __________(1) shares of the Common Stock which the holder would be
entitled to receive upon the cash exercise hereof, and requests that the
certificates for the shares be issued in the name of, and delivered to, whose
address is
Dated: ________________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of Warrant)
________________________________________
(Street Address)
________________________________________
(City) (State) (Zip Code)
______________________
(1) Insert here the number of shares called for on the face of this Warrant
(or, in the case of a partial exercise, the portion thereof as to which this
Warrant is being exercised), in either case without making any adjustment of
shares of Common Stock or any other stock or other securities or property or
cash which, pursuant to the adjustment provisions of this Warrant, may be
delivered upon exercise. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unconverted portion
of the Warrant, to the holder surrendering the Warrant.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
FORM OF ASSIGNMENT
[To be executed only upon transfer of Warrant]
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto __________ the right
represented by the Warrant to purchase __________(1) shares of Common Stock
of [ISSUER] to which the Warrant relates, and appoints __________ Attorney to
make such transfer on the books of [ISSUER] maintained for the purpose, with
full power of substitution in the premises.
Dated: ________________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of Warrant)
________________________________________
(Street Address)
________________________________________
(City) (State) (Zip Code)
Signed in the presence of:
________________________________________
(Signature of Transferee)
________________________________________
(Street Address)
________________________________________
(City) (State) (Zip Code)
Signed in the presence of:
_______________________
(1) Insert here the number of shares called for on the face of this Warrant
(or, in the case of a partial exercise, the portion thereof as to which this
Warrant is being exercised), in either case without making any adjustment of
shares of Common Stock or any other stock or other securities or property or
cash which, pursuant to the adjustment provisions of this Warrant, may be
delivered upon exercise. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised portion
of the Warrant, to the holder surrendering the Warrant.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR ON OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
ARIBA, INC.
CLASS D
COMMON STOCK PURCHASE WARRANT
Mountain View, California
January 1, 2000
ARIBA, INC,. a Delaware corporation (the "Company"), for value
received, hereby certifies that EDS CoNext, Inc. ("EDS CoNext"), or its
registered assigns, is entitled to purchase from the Company the number of duly
authorized, validly issued, fully paid and nonassessable shares (the "Shares")
of Common Stock of the Company, par value $.002 per share (the "Common Stock"),
as herein set forth, at the purchase price per share of [*] (the "Initial
Warrant Price"), all subject to the terms, conditions and adjustments set forth
below in this Warrant.
This Warrant is one of the Common Stock Purchase Warrants (the
"Warrants," such term to include any warrants issued in substitution therefor)
originally issued in connection with the execution and delivery of the Alliance
Agreement dated as of December 31, 1999 (as from time to time in effect, the
"Alliance Agreement") between the Company and EDS CoNext. Certain capitalized
terms used in this Warrant are defined in Section 13 hereof.
1. NUMBER OF SHARES.
1.1 VESTING EVENT. This Warrant shall vest and become exercisable upon
the Company receiving prior to the Vesting Date [*]
1.2 NUMBER OF SHARES. The number of Shares that shall vest and become
exercisable pursuant to this Warrant shall be equal to [*] The maximum number
of shares of Common Stock issuable under this Warrant shall not exceed
[*] The number of shares of Common Stock determined as set forth in
this Section 1.2 and the maximum number of shares of Common Stock issuable
under this Warrant shall be adjusted as set forth in the provisions of
Sections 4 and 5 hereof.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
1.3 NOTICE OF NUMBER OF SHARES. Within sixty (60) days after the
Vesting Date, EDS CoNext will prepare and deliver to the Company (a) a revenue
statement, prepared in accordance with generally accepted accounting principles,
setting out the Class B and the Class C Revenues prior to the Vesting Date,
together with all supporting documentation and (b) a computation of the number
of shares of Common Stock that may be acquired upon exercise of this Warrant in
accordance with the terms hereof (the "Vesting Notice").
1.4 NOTICE OF OBJECTION. The Company shall have ten (10) Business Days
from the Vesting Notice having been given in accordance with Section 15 (the
"Objection Notice Period") to give EDS CoNext written notice that the Company
objects to all or a portion of the vesting of this Warrant as set forth in the
Vesting Notice (the "Objection Notice"). Any portion of the vesting set forth in
the Vesting Notice as to which no objection is made shall be immediately vested.
Upon the giving of the Objection Notice with regard to any portion of the
vesting as to which an objection is made, the Company and EDS CoNext will use
reasonable efforts to resolve any objections. If the Company and EDS CoNext are
unable to resolve the dispute, the Company and EDS CoNext will jointly select an
accounting firm of national standing to resolve the dispute. If the Company and
EDS CoNext are unable to agree on the choice of such an accounting firm, they
will select an accounting firm of national standing by lot which has not
provided services to either the Company or EDS CoNext during the preceding
twenty-four (24) months (the "Accountant") which shall determine the Revenue for
the period. The Accountant shall deliver to each of the Company and EDS CoNext
its determination within ten (10) Business Days after being selected, and the
determination of the Accountant shall be binding upon the Company and EDS
CoNext. The expenses of the Accountant shall be borne equally by the Company and
EDS CoNext. Any additional portion of the Warrant that shall vest as a result of
the agreement of the Company and EDS CoNext or the determination of the
Accountant shall be vested as of the Vesting Date for such shares upon such
agreement or determination.
1.5 EXERCISE OF WARRANT FOLLOWING SALE OF THE COMPANY. In the event of
the consummation of any transaction which would result in the holders of Common
Stock or any shares of common stock received in exchange for the Common Stock
receiving cash or non-marketable securities, the Warrant, (i) as to that portion
of the Warrant that is then exercisable, shall be exercised prior to the
commencement of such transaction, and (ii) [*]
2. EXPIRATION OF WARRANT. This Warrant shall expire on December 31, 2008 (the
"Expiration Date").
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-2-
<PAGE>
3. EXERCISE OF WARRANT. This Warrant shall only be exercisable with respect to
Shares as to which the Warrant has vested and become exercisable pursuant to the
terms of Sections 1 and 3 hereof.
3.1 MANNER OF EXERCISE. This Warrant may only be exercised by the
holder hereof, in accordance with the terms and conditions hereof, in whole or
in part with respect to any vested portion of this Warrant, into shares of
Common Stock, during normal business hours on any Business Day on or prior to
the Expiration Date, by surrender of this Warrant to the Company at its office
maintained pursuant to Section 12.2(a) hereof, accompanied by an exercise notice
in substantially the form attached to this Warrant (or a reasonable facsimile
thereof) duly executed by the holder, and the holder shall thereupon be entitled
to receive a number of duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock (or Other Securities) equal to:
(a) an amount equal to:
(i) an amount equal to (x) the number of
shares of Common Stock (or Other Securities)
determined as provided in Sections 4 and 5 hereof
which the holder would be entitled to receive upon
exercise of this Warrant for the number of shares of
Common Stock designated in the exercise notice
MULTIPLIED BY (y) the Current Market Price of each
share of Common Stock (or Other Securities) so
receivable upon exercise
MINUS
(ii) an amount equal to (x) the number of
shares of Common Stock (without giving effect to any
adjustment thereof) designated in the exercise notice
MULTIPLIED BY (y) the Initial Warrant Price
DIVIDED BY
(b) the Current Market Price of each share of Common
Stock (or Other Securities);
PROVIDED, HOWEVER, that the holder may not exercise this Warrant for
shares of Common Stock (or Other Securities) until [*]
3.2 WHEN EXERCISE EFFECTIVE. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
Business Day on which this Warrant shall have been surrendered to the Company as
provided in Section 3.1 hereof, and at such time the Person or Persons in whose
name or names any certificate or certificates for shares of Common Stock (or
Other Securities) shall be issuable upon exercise as provided in Section 3.3
hereof shall be deemed to have become the holder or holders of record thereof.
3.3 DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable after
each exercise of this Warrant, in whole or in part, and in any event within
fifteen (15) Business Days thereafter, the
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-3-
<PAGE>
Company at its expense (including the payment by it of any applicable issue
taxes) will cause to be issued in the name of and delivered to the holder
hereof or, subject to Section 10 hereof, as the holder (upon payment by the
holder of any applicable transfer taxes) may direct:
(a) a certificate or certificates (with appropriate
restrictive legends, as applicable) for the number of duly
authorized, validly issued, fully paid and nonassessable
shares of Common Stock (or Other Securities) to which the
holder shall be entitled upon exercise plus, in lieu of any
fractional share to which the holder would otherwise be
entitled, cash in an amount equal to the same fraction of the
Market Price per share on the Business Day immediately prior
to the date of exercise; and
(b) in case exercise is in part only, a new Warrant
of like tenor, dated the date hereof and calling in the
aggregate on the face thereof for the number of shares of
Common Stock equal (without giving effect to any adjustment
thereof) to the number of shares called for on the face of
this Warrant minus the number of shares designated by the
holder upon exercise as provided in Section 3.1 hereof.
3.4 COMPANY TO REAFFIRM OBLIGATIONS. The Company will, at the time of
each exercise of this Warrant, upon the written request of the holder hereof,
acknowledge in writing its continuing obligation to afford to the holder all
rights (including without limitation any rights to registration, pursuant to the
Registration Agreement referred to in Section 9 hereof, of the shares of Common
Stock or Other Securities issued upon exercise) to which the holder shall
continue to be entitled after exercise in accordance with the terms of this
Warrant; PROVIDED, HOWEVER, that if the holder of this Warrant shall fail to
make a request, the failure shall not affect the continuing obligation of the
Company to afford the rights to such holder.
4. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.
4.1 GENERAL; NUMBER OF SHARES; WARRANT PRICE. The number of shares of
Common Stock which the holder of this Warrant shall be entitled to receive upon
each-exercise hereof shall be determined by multiplying the number of shares of
Common Stock which would otherwise (but for the provisions of this Section 4) be
issuable upon exercise, as designated by the holder hereof pursuant to Section
3.1 hereof, by the fraction of which (a) the numerator is the Initial Warrant
Price and (b) the denominator is the Warrant Price in effect on the date of such
exercise. The "Warrant Price" shall initially be the Initial Warrant Price,
shall be adjusted and re-adjusted from time to time as provided in this Section
4 and, as so adjusted or re-adjusted, shall remain in effect until a further
adjustment or re-adjustment thereof is required by this Section 4.
4.2 TREATMENT OF STOCK DIVIDENDS, STOCK SPLITS, ETC. In case the
Company at any time or from time to time after the Vesting Date shall declare or
pay any dividend on the Common Stock payable in Common Stock, or shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in Common Stock), then, and in each case, subject to Section 4.4
hereof,
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-4-
<PAGE>
the Warrant Price shall be reduced, concurrently with the dividend or
subdivision, to a price determined by multiplying the Warrant Price by a
fraction:
(a) the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to the
dividend or subdivision; and
(b) the denominator of which shall be the number of
shares of Common Stock outstanding immediately after the
dividend or subdivision.
Additional shares of Common Stock shall be deemed to have been issued
and to be outstanding (a) in the case of any dividend, immediately after the
close of business on the record date for the determination of holders of any
class of securities entitled to receive the dividend, or (b) in the case of any
subdivision, at the close of business on the day immediately prior to the day
upon which the corporate action becomes effective. Additional shares of Common
Stock deemed to have been issued pursuant to this Section 4.2 shall be deemed to
have been issued for no consideration.
4.3 ADJUSTMENTS FOR COMBINATIONS, ETC. In case the outstanding shares
of Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Warrant Price in
effect immediately prior to the combination or consolidation shall, concurrently
with the effectiveness of such combination or consolidation, be proportionately
increased. Adjustment under this Section 4.3 shall become effective at the close
of business on the day immediately prior to the day upon which the corporate
action becomes effective.
4.4 MINIMUM ADJUSTMENT OF WARRANT PRICE. If the amount of any
adjustment of the Warrant Price required pursuant to this Section 4 would be
less than one-tenth (1/10) of one percent (1%) of the Warrant Price in effect at
the time of the adjustment is otherwise so required to be made, the amount shall
be carried forward and adjustment with respect thereto made at the time of and
together with any subsequent adjustment which, together with the amount and any
other amount or amounts so carried forward, shall aggregate at least one tenth
(1/10) of one percent (1%) of the Warrant Price.
5. ADJUSTMENTS FOR CONSOLIDATION, MERGER, SALE OF ASSETS, REORGANIZATION, ETC.
In case the Company after the date hereof (a) shall consolidate with or merge
into any other Person and shall not be the continuing or surviving corporation
following the consolidation or merger, or (b) shall permit any other Person to
consolidate with or merge into the Company and the Company shall be the
continuing or surviving Person but, in connection with the consolidation or
merger, the Common Stock or Other Securities shall be changed into or exchanged
for stock or other securities of any other Person or cash or any other property,
or (c) shall transfer all or substantially all of its properties or assets to
any other Person, or (d) shall effect a capital reorganization or
reclassification of the Common Stock or Other Securities then, and in the case
of each such transaction, proper provision shall be made so that, upon the basis
and the terms and in the manner provided in this Warrant, the holder of this
Warrant, upon the exercise hereof at any time after the consummation of the
transaction, shall be entitled to receive (at the aggregate Warrant Price in
effect at the time of such consummation for
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-5-
<PAGE>
all Common Stock or Other Securities issuable upon exercise immediately prior
to the comsummation), in lieu of the Common Stock or Other Securities
issuable upon exercise prior to the comsummation, the greatest amount of
securities, cash or other property to which the holder would actually have
been entitled as a stockholder upon such consummation if the holder had
exercised the rights represented by this Warrant (to the extent then
exercisable pursuant to Section 1) immediately prior thereto, subject to
adjustments (subsequent to the consummation) as nearly equivalent as possible
to the adjustments provided for in Sections 4 and 5 hereof.
6. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all of the terms and in the taking
of all actions necessary or appropriate in order to protect the rights of the
holder of this Warrant. Without limiting the generality of the foregoing, the
Company (a) will not permit the par value of any shares of stock receivable
upon the exercise of this Warrant to exceed the amount payable therefor upon
exercise, (b) will take all actions necessary or appropriate in order that
the Company may validly and legally issue fully paid and nonassessable shares
of stock on the exercise of the Warrant and (c) will not take any action
which results in any adjustment of the Warrant Price if the total number of
shares of Common Stock (or Other Securities) issuable after the action upon
the exercise of the Warrant would exceed the total number of shares of Common
Stock (or Other Securities) then authorized by the Company's certificate of
incorporation and available for the purpose of issuance upon exercise.
7. CHIEF FINANCIAL OFFICER'S REPORT AS TO ADJUSTMENTS. In the case of any
adjustment or re-adjustment in the shares of Common Stock (or Other
Securities) issuable upon the exercise of this Warrant, the Company at its
expense will promptly compute the adjustment or re-adjustment in accordance
with the terms of this Warrant and, if requested by the holder, cause its
Chief Financial Officer to certify the computation (other than any
computation of the fair value of property as determined in good faith by the
Board of Directors of the Company) and prepare a report setting forth the
adjustment or re-adjustment and showing in reasonable detail the method of
calculation thereof and the facts upon which the adjustment or re-adjustment
is based, including a statement of (a) the number of shares of Common Stock
outstanding or deemed to be outstanding and (b) the Warrant Price in effect
immediately prior to the deemed issuance or sale and as adjusted and
re-adjusted (if required by Section 4 hereof) on account thereof. The Company
will forthwith mail a copy of each report to each holder of a Warrant and
will, upon the written request at any time of any holder of a Warrant,
furnish to the holder a like report setting forth the Warrant Price at the
time in effect and showing in reasonable detail how it was calculated. The
Company will also keep copies of all reports at its office maintained
pursuant to Section 12.2(a) hereof and will cause them to be available for
inspection at the office during normal business hours upon reasonable notice
by any holder of a Warrant or any prospective purchaser of a Warrant
designated by the holder thereof.
8. REPRESENTATION AS TO NUMBER OF OUTSTANDING SHARES. The Company represents
and warrants to EDS CoNext that, as of December 7, 1999, there were issued
and
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-6-
<PAGE>
outstanding 108,847,771 shares of Common Stock (after giving effect to the
stock dividend paid on December 17, 1999), including the number of shares of
Common Stock issuable upon the exercise of all outstanding options and
warrants, calculated using the treasury stock method. Other than the stock
dividend paid on December 17, 1999, from December 7, 1999 until the date
hereof, no event has occurred which would have resulted in any adjustment
pursuant to Sections 4 or 5 hereof.
9. REGISTRATION OF COMMON STOCK. The shares of Common Stock (and Other
Securities) issuable upon exercise of this Warrant shall constitute
Registrable Securities (as such term is defined in the Registration
Agreement). The original holder of this Warrant, and any valid transferees
thereof pursuant to the Registration Agreement, shall be entitled to all of
the benefits afforded to a holder of any Registrable Securities under the
Registration Agreement and such holder, by its acceptance of this Warrant,
agrees to be bound by and to comply with the terms and conditions of the
Registration Agreement applicable to the holder as a holder of Registrable
Securities. At any time when the Common Stock is listed on any national
securities exchange, the Company will, at its expense, obtain promptly and
maintain the approval for listing on each exchange, upon official notice of
issuance, any shares of Common Stock issued upon exercise of the then
outstanding Warrants and maintain the listing of the shares after their
issuance; and the Company will also list on such national securities
exchange, will register under the Exchange Act and will maintain the listing
of any Other Securities that at any time are issued upon exercise of the
Warrants, if and at the time that any securities of the same class shall be
listed on a national securities exchange by the Company.
10. RESTRICTIONS ON TRANSFER.
10.1 RESTRICTIVE LEGENDS. This Warrant and each Warrant issued upon
transfer or in substitution for this Warrant pursuant to Section 12, each
certificate for Common Stock (or Other Securities) issued upon the exercise
of any Warrant and each certificate issued upon the transfer of any such
Common Stock (or Other Securities) shall be transferable only upon
satisfaction of the conditions specified in this Section 10 and Section 12.4.
Each of the foregoing securities shall be stamped or otherwise imprinted with
a legend reflecting the restrictions on transfer set forth in Sections 10 and
12.4 hereof and any restrictions required under the Securities Act.
10.2 NOTICE OF PROPOSED TRANSFER, OPINION OF COUNSEL. Prior to any
transfer of any Restricted Securities which are not registered under an
effective registration statement under the Securities Act, the holder thereof
will give written notice to the Company of the holder's intention to effect a
transfer and to comply in all other respects with this Section 10.2. Each
notice (a) shall describe the manner and circumstances of the proposed
transfer, and (b) shall designate counsel for the holder giving the notice
(who may be in-house counsel for the holder). The holder giving notice will
submit a copy thereof to the counsel designated in the notice. The following
provisions shall then apply:
(i) If in the opinion of counsel for the
holder reasonably satisfactory to the Company the
proposed transfer may be effected without
registration of Restricted Securities under the
Securities Act (which
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-7-
<PAGE>
opinion shall state the basis of the legal
conclusions reached therein), the holder shall
thereupon be entitled to transfer the Restricted
Securities in accordance with the terms of the
notice delivered by the holder to the Company.
Each certificate representing the Restricted
Securities issued upon or in connection with any
transfer shall bear the restrictive legends required
by Section 10.1 hereof.
(ii) If the opinion called for in (i) above
is not delivered, the holder shall not be entitled to
transfer the Restricted Securities until either (x)
receipt by the Company of a further notice from such
holder pursuant to the foregoing provisions of this
Section 10.2 and fulfillment of the provisions of
clause (i) above or (y) such Restricted Securities
have been effectively registered under the Securities
Act.
Notwithstanding any other provision of this Section 10, no opinion
of counsel shall be necessary for a transfer of Restricted Securities by the
holder thereof to an Affiliate of a holder, if the transferee agrees in
writing to be subject to the terms hereof to the same extent as if the
transferee were the original Purchaser hereof and such transfer is permitted
under applicable securities laws.
10.3 TERMINATION OF RESTRICTIONS. The restrictions imposed by this
Section 10 upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities (a) which Restricted
Securities shall have been effectively registered under the Securities Act,
or (b) when, in the opinions of both counsel for the holder thereof and
counsel for the Company, such restrictions are no longer required in order to
insure compliance with the Securities Act or Section 12 hereof. Whenever such
restrictions shall cease and terminate as to any Restricted Securities, the
holder thereof shall be entitled to receive from the Company, without expense
(other than applicable transfer taxes, if any), new securities of like tenor
not bearing the applicable legends required by Section 10.1 hereof.
11. RESERVATION OF STOCK, ETC. The Company will at all times reserve and keep
available, solely for issuance and delivery upon exercise of the Warrant, the
number of shares of Common Stock of each class (or Other Securities) from
time to time issuable upon exercise of the Warrant at the time outstanding.
All shares of Common Stock (or Other Securities) issuable upon exercise of
the Warrant shall be duly authorized and, when issued upon exercise, shall be
validly issued and, in the case of shares, fully paid and nonassessable.
12. OWNERSHIP, TRANSFER AND SUBSTITUTION OF WARRANT.
12.1 OWNERSHIP OF WARRANT. The Company may treat the person in whose
name this Warrant is registered on the register kept at the office of the
Company maintained pursuant to Section 12.2(a) hereof as the owner and holder
thereof for all purposes, notwithstanding any notice to the contrary, except
that, if and when any Warrant is properly assigned in blank, the Company may
(but shall not be obligated to) treat the bearer thereof as the owner of such
Warrant for all purposes, notwithstanding any notice to the contrary. Subject
to Section 10
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-8-
<PAGE>
hereof, this Warrant, if properly assigned, may be exercised by a new holder
without a new Warrant first having been issued.
12.2 OFFICE; TRANSFER AND EXCHANGE OF WARRANT.
(a) The Company will maintain an office (which may be
an agency maintained at a bank) in Mountain View, California
where notices, presentations and demands in respect of this
Warrant may be made upon it. The office shall be maintained at
1565 Charleston Road, Mountain View, California 94043 until
the Company notifies the holders of the Warrant of any change
of location of the office.
(b) The Company shall cause to be kept at its office
maintained pursuant to Section 12.2(a) hereof a register for
the registration and transfer of the Warrant. The names and
addresses of holders of the Warrant, the transfers thereof and
the names and addresses of transferees of the Warrant shall be
registered in such register. The Person in whose name any
Warrant shall be so registered shall be deemed and treated as
the owner and holder thereof for all purposes of this Warrant,
and the Company shall not be affected by any notice or
knowledge to the contrary.
(c) Upon the surrender of this Warrant, properly
endorsed, for registration of transfer or for exchange at the
office of the Company maintained pursuant to Section 12.2(a)
hereof, the Company at its expense will (subject to compliance
with Section 10 hereof, if applicable) execute and deliver to
or upon the order of the holder thereof a new Warrant of like
tenor, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may
direct, calling in the aggregate on the face thereof for the
number of shares of Common Stock called for on the face of the
Warrant so surrendered.
12.3 REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
the Warrant and, in the case of any such loss, theft or destruction of the
Warrant, upon delivery of indemnity reasonably satisfactory to the Company in
form and amount or, in the case of any mutilation, upon surrender of the
Warrant for cancellation at the office of the Company maintained pursuant to
Section 12.2(a) hereof, the Company at its expense will execute and deliver,
in lieu thereof, a new Warrant of like tenor and dated the date hereof.
12.4 RESTRICTIONS ON TRANSFER. In addition to the restrictions on
transfer set forth in Section 10 hereof, neither the Warrant nor any portion
of the Warrant may be transferred without the consent of the Company unless
the Warrant has vested and become exercisable in accordance with Section 1
hereof as to that portion of the Warrant that is to be transferred.
13. DEFINITIONS. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-9-
<PAGE>
ACCOUNTANT: As defined in Section 1.3 hereof.
ACTUAL SPEND: [*]
AFFILIATE: Any Person holding more than 50% of the equity of an
entity or any majority-owned subsidiary of such entity.
ALLIANCE AGREEMENT: As defined in the introduction to this Warrant.
ARIBA NETWORK: The business-to-business e-commerce network operated
by the Company that enables buyers and suppliers to automate transactions on
the Internet.
AVERAGE MARKET PRICE: The average daily Market Price during the ten
(10) days ending on and including the Vesting Date on which the national
securities exchanges or the national market system of the NASD were open for
trading, except that if no class of the Common Stock is then listed or
admitted to trading on a national securities exchange or the national market
system of the NASD, the Average Market Price shall be the Market Price on the
Vesting Date.
BUSINESS DAY: Any day other than a Saturday or a Sunday or a day on
which commercial banking institutions in New York, New York are authorized by
law to be closed. Any reference to "days" (unless Business Days are
specified) shall mean calendar days.
[*] REVENUES: The aggregate amount of fee revenue described
below that are received by the Company in accordance with the Alliance
Agreement:
[*]
[*]
[*]
[*]
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-10-
<PAGE>
[*]
[*] REVENUES: The aggregate amount of fee revenue described below that
are received by the Company in accordance with the Alliance Agreement:
[*]
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-11-
<PAGE>
[*]
COMMISSION: The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
COMMON STOCK: As defined in the introduction to this Warrant and
including any stock into which the Common Stock shall have been changed or any
stock resulting from any reclassification of the Common Stock, and all other
stock of any class or classes (however designated) of the Company the holders of
which have the right, without limitation as to amount, either to all, or to a
share of the balance of, current dividends and liquidating dividends after the
payment of dividends and distributions on any shares entitled to preference.
COMPANY: As defined in the introduction to this Warrant and including
any corporation which shall succeed to or assume the obligations of the Company
hereunder in compliance with Section 5 hereof.
CONSORTIUM: A group of entities organized by EDS CoNext that desire to
pool their purchasing for certain products and services, whether existing on the
date hereof or subsequently organized.
EXCHANGE ACT: The Securities Exchange Act of 1934, or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
EXPIRATION DATE: As defined in Section 2 of this Warrant.
INITIAL WARRANT PRICE: As defined in the introduction to this Warrant.
LARGE PARTICIPANT: A Participant with annual revenues, including
revenues of the consolidated entities for which it is performing purchasing
(determined in accordance with generally accepted accounting principles for such
entity's most recent fiscal year), between [*] and [*] Revenues of consolidated
entities shall not be included in the annual revenues of a Participant to the
extent that such revenues are included in the annual revenues of any other
Participant.
MARKET PRICE: On any date specified herein, the amount per share of
Common Stock equal to (a) the closing price of the Common Stock on such date or,
if no such sale takes place on such date, the average of the closing bid and
asked prices thereof on such date, in each case as officially reported on the
principal national securities exchange on which the Common Stock is then listed
or admitted to trading, or (b) if the Common Stock is not then listed or
admitted to trading on a national securities exchange but is designated as a
national market system security by the NASD, the last closing price of the
Common Stock on such date, (c) if there shall have
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-12-
<PAGE>
been no trading on such date or if the Common Stock is not so designated, the
average of the closing bid and asked prices of the Common Stock on such date
as shown by the NASD automated quotation system or (d) if the Common Stock is
not then listed or admitted to trading on any national exchange or the
national market system of the NASD, the fair value thereof determined in good
faith by the Board of Directors of the Company as of a date which is within
fifteen (15) days of the date as of which the determination is to be made.
MEDIUM PARTICIPANT: A Participant with annual revenues, including
revenues of the consolidated entities for which it is performing purchasing
(determined in accordance with generally accepted accounting principles for
such entity's most recent fiscal year), of less than [*] Revenues of
consolidated entities shall not be included in the annual revenues of a
Participant to the extent that such revenues are included in the annual
revenues of any other Participant.
NASD: The National Association of Securities Dealers, Inc.
OBJECTION NOTICE: As defined in Section 1.4 hereof.
OBJECTION NOTICE PERIOD: As defined in Section 1.4 hereof.
OTHER SECURITIES: Any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or otherwise) which the
holders of the Warrants at any time shall be entitled to receive, or shall have
received, upon the exercise of the Warrants, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities pursuant to
Section 3 hereof or otherwise.
PARTICIPANT: An entity that [*]
PERSON: A corporation, an association, a partnership, an organization,
a business, an individual, a government or political subdivision thereof or a
governmental agency.
REGISTRATION AGREEMENT: The Registration Rights Agreement dated as of
December 31, 1999, between the Company and EDS CoNext, as from time to time in
effect.
RESTRICTED SECURITIES: All of the following: (a) the Warrant and (b)
any shares of Common Stock (or Other Securities) which have been issued upon the
exercise of the Warrant and which are evidenced by a certificate or certificates
bearing the applicable legend or legends referred to in Section 10.1.
SECURITIES ACT: The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-13-
<PAGE>
VERY LARGE PARTICIPANT: A Participant with annual revenues, including
revenues of the consolidated entities for which it is performing purchasing
(as determined in accordance with generally accepted accounting principles
for such entity's most recent fiscal year), in excess of [*] Revenues of
consolidated entities shall not be included in the annual revenues of a
Participant to the extent that such revenues are included in the annual
revenues of any other Participant.
VESTING DATE: December 31, 2003.
VESTING NOTICE: As defined in Section 1.3 hereof.
WARRANT PRICE: As defined in Section 4.1 hereof.
WARRANTS: As defined in the introduction to this Warrant.
14. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in this Warrant
shall be construed as conferring upon the holder hereof any rights as a
stockholder of the Company or as imposing any obligation on the holder to
purchase any securities or as imposing any liabilities on such holder as a
stockholder of the Company, whether such obligation or liabilities are asserted
by the Company or by creditors of the Company.
15. NOTICES. Any notice or other communication in connection with this Warrant
shall be deemed to be given if in writing (or in the form of a facsimile)
addressed as hereinafter provided and actually delivered at said address: (a) if
to any holder of any Warrant, at the registered address of such holder as set
forth in the register kept at the office of the Company maintained pursuant to
Section 12.2(a) hereof, or (b) if to the Company, to the attention of its
President at its office maintained pursuant to Section 12.2(a) hereof; PROVIDED,
HOWEVER, that the exercise of any Warrant shall be effective in the manner
provided in Section 3 hereof.
16. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought. This Warrant shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware. The section headings in this
Warrant are for purposes of convenience only and shall not constitute a part
hereof.
* * * * *
(Signature page follows)
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
-14-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Class D Common Stock
Purchase Warrant to be duly executed as of the date first above written
ARIBA, INC.
By: /s/ Edward P. Kinsey
--------------------------------
Title: EVP, CFO
-----------------------------
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
FORM OF EXERCISE NOTICE
[To be executed only upon conversion of Warrant]
To [ISSUER]
The undersigned registered holder of the within Warrant hereby
irrevocably converts the Warrant pursuant to Section 3.1 of the Warrant with
respect to __________(1) shares of the Common Stock which the holder would be
entitled to receive upon the cash exercise hereof, and requests that the
certificates for the shares be issued in the name of, and delivered to, whose
address is
Dated: ____________________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
Warrant)
____________________________________________
(Street Address)
____________________________________________
(City) (State) (Zip Code)
______________________
(1) Insert here the number of shares called for on the face of this Warrant (or,
in the case of a partial exercise, the portion thereof as to which this Warrant
is being exercised), in either case without making any adjustment of shares of
Common Stock or any other stock or other securities or property or cash which,
pursuant to the adjustment provisions of this Warrant, may be delivered upon
exercise. In the case of a partial exercise, a new Warrant or Warrants will be
issued and delivered, representing the unconverted portion of the Warrant, to
the holder surrendering the Warrant.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<PAGE>
FORM OF ASSIGNMENT
[To be executed only upon transfer of Warrant]
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto __________ the right
represented by the Warrant to purchase __________(1) shares of Common Stock of
[ISSUER] to which the Warrant relates, and appoints __________ Attorney to make
such transfer on the books of [ISSUER] maintained for the purpose, with full
power of substitution in the premises.
Dated: ______________________________________
(Signature must conform in all
respects to name of holder as
specified on the face of Warrant)
______________________________________
(Street Address)
______________________________________
(City) (State) (Zip Code)
Signed in the presence of:
______________________________________
(Signature of Transferee)
______________________________________
(Street Address)
______________________________________
(City) (State) (Zip Code)
Signed in the presence of:
____________________
(1) Insert here the number of shares called for on the face of this Warrant (or,
in the case of a partial exercise, the portion thereof as to which this Warrant
is being exercised), in either case without making any adjustment of shares of
Common Stock or any other stock or other securities or property or cash which,
pursuant to the adjustment provisions of this Warrant, may be delivered upon
exercise. In the case of a partial exercise, a new Warrant or Warrants will be
issued and delivered, representing the unexercised portion of the Warrant, to
the holder surrendering the Warrant.
* Represents confidential information for
which Ariba, Incorporated is seeking confidential
treatment with the Securities and Exchange Commission.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM ARIBA INC.'S
QUARTERLY REPORT ON FORM 10-Q FOR THE PERIOD ENDED MARCH 31, 2000 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0001084755
<NAME> ARIBA, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-30-2000
<PERIOD-START> OCT-01-1999
<PERIOD-END> MAR-31-2000
<CASH> 189,303
<SECURITIES> 129,796
<RECEIVABLES> 14,155
<ALLOWANCES> (4,365)
<INVENTORY> 0
<CURRENT-ASSETS> 268,243
<PP&E> 27,302
<DEPRECIATION> (3,818)
<TOTAL-ASSETS> 3,746,760
<CURRENT-LIABILITIES> 161,924
<BONDS> 0
0
0
<COMMON> 468
<OTHER-SE> 3,583,704
<TOTAL-LIABILITY-AND-EQUITY> 3,746,760
<SALES> 41,971
<TOTAL-REVENUES> 63,521
<CGS> 2,241
<TOTAL-COSTS> 9,889
<OTHER-EXPENSES> 194,236
<LOSS-PROVISION> 1,227
<INTEREST-EXPENSE> 131
<INCOME-PRETAX> (135,832)
<INCOME-TAX> 442
<INCOME-CONTINUING> (136,274)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (136,274)
<EPS-BASIC> (0.81)<F1>
<EPS-DILUTED> (0.81)<F1>
<FN>
<F1>EPS Information has been restated to reflect a two for one stock split,
effected in the form of a stock dividend to each stockholder of record as of
March 20, 2000. Prior Financial Data Schedules have not been restated for the
Recapitalization.
</FN>
</TABLE>
