Common use of Modification of Transaction Agreements Clause in Contracts

Modification of Transaction Agreements. (a) If at anytime on or after December 1, 2002, the Performance Criteria are not satisfied for at least the four (4) immediately preceding full calendar quarters, Ariba may at its sole discretion cause (i) three (3) of the five (5) Directors nominated by it pursuant to Section 4(a) hereof (or such larger number of Directors as would, together with the Directors then appointed by SOFTBANK, constitute a majority of the members of the Board) to be removed and (ii) at SOFTBANK’s election, the resulting vacancies to be filled by the same number of individuals designated by SOFTBANK at its sole discretion (such change in the composition of Board pursuant to clause (i) of this sentence being herein referred to as a “Control Shift,” regardless of whether SOFTBANK shall elect to fill the resulting vacancies pursuant to clause (ii) of this sentence). While any Control Shift is in effect, SOFTBANK or SOFTBANK Parent may exercise all of the rights otherwise granted to Ariba pursuant to Sections 5 and 6 hereof. (b) At any time after two full calendar quarters after a Control Shift, but in no event prior to April 1, 2004, Ariba may at its sole discretion by written notice to SOFTBANK effect a Modification Event, unless (i) the Company is then satisfying the Performance Criteria and (ii) the Company has made up any failure to satisfy the Performance Criteria during the two (2) consecutive full calendar quarters prior to the Control Shift. Notwithstanding the foregoing, Ariba may not effect a Modification Event if during the period the Control Shift is in effect Ariba has either (i) replaced any Director nominated by it pursuant to Section 21(a) hereof or (ii) voted as a shareholder of the Company (or permitted any of its Affiliates to vote as a shareholder of the Company) against any written proposals submitted for shareholder approval that have been approved by a majority of the Directors during the period of the Control Shift (other than any matters set forth on attached Exhibit 21(b), which shall require the affirmative vote of at least one Director appointed by Ariba other than pursuant to Section 21(a)). (c) Upon the occurrence of a Modification Event: (i) pursuant to Section 2.6 of the Distribution Agreement, (A) the license granted to the Company pursuant to the Distribution Agreement shall become a non-exclusive license rather than an exclusive license and (B) the Company shall cease to have the right to use certain tradenames and trademarks; (ii) the Control Shift shall remain in effect permanently, (iii) SOFTBANK and SOFTBANK Parent may exercise indefinitely all of the rights otherwise granted to Ariba pursuant to Sections 5 and 6 hereof; (iv) Section 10 hereof shall apply to Ariba and not to SOFTBANK, SOFTBANK Parent or any other Softbank Investor; and (v) the exclusivity provisions set forth in Section 15 hereof and in Section 5 of the Letter Agreement shall terminate and be of no further force or effect. (d) For purposes of this Agreement, “Performance Criteria” means criteria for the performance of the Company, which (i) are specified by the Chief Executive Officer and included as part of the Annual Business Plan and (ii) if not achieved, indicate that the Company is failing in significant respects to achieve the Annual Business Plan to which such Performance Criteria relate.

Modification of Transaction Agreements. (a) If at anytime on or after December 1, 2002, the Performance Criteria are not satisfied for at least the four (4) immediately preceding full calendar quarters, Ariba may at its sole discretion cause (i) three (3) of the five (5) Directors nominated by it pursuant to Section 4(a) hereof (or such larger number of Directors as would, together with the Directors then appointed by SOFTBANK, constitute a majority of the members of the Board) to be removed and (ii) at SOFTBANK’s election, the resulting vacancies to be filled by the same number of individuals designated by SOFTBANK at its sole discretion (such change in the composition of Board pursuant to clause (i) of this sentence being herein referred to as a “Control Shift,” regardless of whether SOFTBANK shall elect to fill the resulting vacancies pursuant to clause (ii) of this sentence). While any Control Shift is in effect, SOFTBANK or SOFTBANK Parent may exercise all of the rights otherwise granted to Ariba pursuant to Sections 5 and 6 hereof. (b) At any time after two full calendar quarters after a Control Shift, but in no event prior to April 1, 2004, Ariba may at its sole discretion by written notice to SOFTBANK effect a Modification Event, unless (i) the Company is then satisfying the Performance Criteria and (ii) the Company has made up any failure to satisfy the Performance Criteria during the two (2) consecutive full calendar quarters prior to the Control Shift. Notwithstanding the foregoing, Ariba may not effect a Modification Event if during the period the Control Shift is in effect Ariba has either (i) replaced any Director nominated by it pursuant to Section 21(a) hereof or (ii) voted as a shareholder of the Company (or permitted any of its Affiliates to vote as a shareholder of the Company) against any written proposals submitted for shareholder approval that have been approved by a majority of the Directors during the period of the Control Shift (other than any matters set forth on attached Exhibit 21(b), which shall require the affirmative vote of at least one Director appointed by Ariba other than pursuant to Section 21(a)). (c) Upon the occurrence of a Modification Event: (i) pursuant to Section 2.6 of the Distribution License Agreement, (A) the license granted to the Company pursuant to the Distribution License Agreement shall become a non-non exclusive license rather than an exclusive license and (B) the Company shall cease to have the right to use certain tradenames and trademarks; (ii) the Control Shift shall remain in effect permanently, (iii) SOFTBANK and SOFTBANK Parent may exercise indefinitely all of the rights otherwise granted to Ariba pursuant to Sections 5 and 6 hereof; (iv) Section 10 hereof shall apply to Ariba and not to SOFTBANK, SOFTBANK Parent or any other Softbank Investor; and (v) the exclusivity provisions set forth in Section 15 hereof (and in Section 5 of the Letter Agreement any other Transaction Agreement) shall terminate and be of no further force or effect. (d) For purposes of this Agreement, “Performance Criteria” means criteria for the performance of the Company, which (i) are specified by the Chief Executive Officer and included as part of the Annual Business Plan and (ii) if not achieved, indicate that the Company is failing in significant respects to achieve the Annual Business Plan to which such Performance Criteria relate.