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EXHIBIT 10.19
AGREEMENT
between:
POET SOFTWARE CORPORATION
("POET")
- and -
ARIBA, INC.
("ARIBA")
This Agreement ("Agreement") is entered into as of April 30, 1999, ("Effective
Date") by and between POET Software Corporation, a Massachusetts corporation,
having its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇ ("POET"), and Ariba, Inc., a Delaware corporation having its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Ariba").
RECITALS.
A. Whereas POET has developed over the past two (2) years expertise in XML
technology by developing, marketing and licensing the Content Management
Suite (CMS). This product manages XML content and forms the foundation
for an expanded XML product line that can manage electronic catalogs
(e-Catalogs).
B. Whereas POET is developing an e-Catalog Suite (e-CS) which will enable
Suppliers to [*] input the catalog information into an "XML e-Catalog
Server" and format the XML catalog information to enable an "e-Commerce
Adapter" [*] to provide the XML catalog information in a [*] format
consistent with the requirements of procurement application (e.g., Ariba
ORMS). The XML e-Catalog information is then transmitted to the Buyer
via the Internet to enable the application (e.g., Ariba ORMS) to perform
an aggregation function of the Supplier e-Catalog information.
C. Whereas Ariba currently markets, develops and licenses a software
product (Ariba ORMS) which is an electronic procurement system that is
focused on connecting business consumers ("Buyers") to "Suppliers" to
automate the procurement process of Operating Resource products and
services. Ariba has a solution that includes a complex workflow and
approval process for procurement. The Ariba system builds both the
aggregation server that aggregates and indexes catalog information from
all of their suppliers, and the client software that interfaces with
buyers.
D. Whereas Ariba currently receives Supplier information that has been
manually converted into an Ariba specified Catalog Information File
(CIF) which is in a comma delimited
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the Commission. Confidential treatment has been requested with respect to the
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format. Ariba has a desire to work with POET so that POET can develop an
XML e-Catalog Server product that enables Suppliers to generate the
e-Catalog automatically in an XML format which is compatible with the
Ariba ORMS. Once developed, Ariba has a desire to promote POET's XML
e-Catalog Server product to Ariba's customers, the Buyers and also to
the Buyer's Suppliers.
Now, therefore, the parties agree as follows:
1. POET RESPONSIBILITIES
1.1 PRODUCT DEVELOPMENT: POET agrees to develop a software product,
"POETe-Catalog Suite", [*] and store it in the POET XML
e-Catalog Server. [*] which Ariba has provided POET and this
information will be available in [*] format and available for
transmission via the Internet. There will be a set of
administrative tools which enable the Supplier to update the
POET e-Catalog Suite as information changes in the [*]. The [*]
information will be transmitted to the Ariba Supplier Load
Server and will be available to the Ariba ORMS system as
illustrated in Figure 1.1-1.
[*]
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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1.2 PRODUCT ARCHITECTURE: The POET e-Catalog Suite will [*] as
illustrated in Figure 1.2-1. [*] The [*] Supplier Catalog
information is available to be transmitted via the Internet.
[*]
1.3 POET agrees to develop the e-Catalog Suite in accordance to the
schedule outlined in Attachment A. This schedule may be modified
and updated from time to time and amended upon mutual written
agreement.
1.4 POET agrees to provide Ariba's Development Representative
(identified in Section 7 of this Agreement) with monthly
conference calls or status reports on the progress which is
being made to deliver the e-Catalog Suite. The aforementioned
conference calls or status reports may occur more frequently as
reasonably requested by the Ariba technical representative.
1.5 POET agrees to develop a "Starter Kit" for Ariba that POET can
distribute to ASL Members. The "Starter Kit" consists [*] These
components are illustrated in Figure 1.5-1. POET may at its sole
discretion provide a limited number of "Starter Kits" to key
strategic ASL Members who are considered "Lighthouse" Accounts.
This would be provided to "Lighthouse" Members [*]. To ensure
high quality implementation, the strategic ASL members may
purchase an annual
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omitted portions.
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[*]
Maintenance and Support Agreement. Ariba agrees to provide a
link from the Ariba website to the appropriate POET web site
location to enable Suppliers to license and download the
"Starter Kit" from POET.
1.6 POET agrees to pay Ariba [*].
1.7 POET agrees to work with Ariba to establish a delivery schedule
for additional Input/Extraction Modules developed by POET which
represents a rank order priority of the Input/Extraction Modules
required by the Suppliers.
1.8 POET agrees to grant to Ariba a Warrant to purchase up to 35,000
shares of common stock A in accordance to the provisions of
Attachment B to this Agreement.
1.9 POET hereby grants to Ariba a perpetual, royalty free worldwide
license of the POET e-Catalog Suite for internal use and the
requisite training solely to enable Ariba to validate the
e-Catalog Suite product, subject to any and all restrictions as
set forth in POET's standard license agreement attached hereto.
POET further agrees to provide up to 3 days of training on the
POET e-Catalog Suite for Ariba personnel.
2. ARIBA RESPONSIBILITIES
2.1. Ariba agrees to provide POET with access to Buyers and Suppliers
so that POET can develop a product, which reflects the
Supplier's requirements.
2.2 Ariba agrees to provide POET with a "Customer Requirements"
document, which has been prepared by Ariba which specifies the
Supplier requirements for an XML e-Catalog system including user
interface.
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the Commission. Confidential treatment has been requested with respect to the
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2.3 [*]
2.4 Ariba agrees to grant to POET a perpetual, royalty free
worldwide license of the Ariba ORMS software for internal use
and the requisite training solely to enable POET to validate the
e-Catalog information being transmitted to the Ariba ORMS system
subject to any and all restrictions as set forth in Ariba's
standard license agreement attached hereto. Ariba further agrees
to provide up to 3 days of training on the Ariba ORMS product
for POET personnel.
2.5 Ariba agrees to provide POET with contact information (including
names, e-mail addresses, telephone numbers and addresses) for
the ASL Supplier Members that agree to be contacted by POET.
2.6 Ariba also agrees to identify 2 Suppliers who would be willing
to participate in POET's Beta program for the "Starter Kit".
Ariba further agrees to schedule and participate in meetings to
introduce POET to these Pilot Suppliers and support POET in
obtaining information from these Suppliers that define the
product requirements for the e-Catalog Suite. This information
will be provided to POET by [*].
2.7 Ariba agrees to provide the Charter ASL Members with a survey
form that POET has prepared to begin to characterize their
environments. Ariba has provided this survey to the Charter ASL
Suppliers.
2.8 Ariba agrees to provide POET with [*], as appropriate, during
its [*] meetings. This will be [*] and will enable POET to meet
with key Suppliers and Buyers to discuss their requirements for
the XML e-Catalog product.
2.9 Ariba provided POET [*] with an opportunity to demonstrate the
XML e-Catalog Product during the March 2/3, 1999, Customer
Advisory Member Meeting.
2.10 Ariba agrees to provide POET [*] membership to the ASL Program
under Ariba's standard terms and conditions for such program.
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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2.11 Ariba agrees to promote the POET e-Catalog Suite product to the
Buyers, which license the Ariba ORMS product. [*]
2.12 Ariba agrees to include POET's products in the Supplier training
program.
2.13 [*]
2.14 Ariba agrees to provide POET with [*] of the relevant results of
the survey information that is obtained from Ariba's Web-based
Suppliers registration process.
2.15 Ariba agrees to support POET in mutually agreed upon joint press
releases promoting POET's focus on the e-Catalog marketplace.
Within 30 days of executing this Agreement, Ariba agrees to
issue a joint press release announcing the strategic partnership
between POET and Ariba on developing an e-Catalog product.
2.16 Ariba agrees to participate with POET and jointly present the
POET solution to Ariba's customers.
3. COSTS AND EXPENSES. Any and all costs and expenses incurred by either
party arising out of the preparation and performance of this Agreement
shall be borne by that party, unless expressly agreed otherwise herein
or in writing.
4. TERM AND TERMINATION OF AGREEMENT. This Agreement, which is effective on
the first date indicated above, [*] (or otherwise agreed to in writing)
and shall automatically expire and be deemed terminated effective upon
the date of the occurrence of any one of the following events, whichever
shall first occur:
a. mutual written agreement of the parties to terminate
this Agreement;
b. the insolvency, bankruptcy, reorganization under
bankruptcy laws, or assignment for the benefit of
creditors of either party; or
c. material breach of this Agreement by either party with
such breach remaining unremedied 30 days after receipt
of written notice of the breach.
d. [*]
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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5. LIMITATION OF LIABILITY. Neither party accepts any liability whatsoever
with respect to the products or services provided hereunder by the other
party. In no event shall either party have any liability whatsoever,
whether based in contract, tort (including, without limitation,
negligence), warranty or any other legal or equitable grounds, to each
other or to third parties for any consequential, indirect, incidental,
special, punitive or exemplary damages, including, without limitation,
loss of interest, data, profit or revenue, or failure to realize
expected savings, arising from or related to this Agreement, even if
such party has been advised of the possibility of such losses or
damages.
6. PUBLICITY/USE OF NAMES. Neither party has the right to use the other's
name, logo, trademark, insignia or other intellectual property without
the prior written consent of the other.
7. CONTACTS. The parties each will designate the following individuals
within their organizations as their representative(s) responsible for
the direct performance of the parties' efforts under this Agreement. To
assure continuity, the parties will in good faith endeavor to avoid
replacing representatives unnecessarily. The initial representative(s)
named for the purpose are:
POET REPRESENTATIVE ARIBA REPRESENTATIVE
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ (Business) [*]
▇▇. ▇▇▇▇▇ ▇▇▇▇▇ (Marketing) [*]
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (Development) [*]
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ (Development)
8. RELATIONSHIP OF THE PARTIES.
8.1. The parties shall be deemed to be independent contractors, and
the employees of one shall not be deemed to be employees of the
other by virtue of entering into this Agreement. Neither party
shall act as the agent of the other party, and neither party
shall have the authority to bind the other party except to the
extent expressly authorized herein.
8.2. This Agreement is not intended by the parties to constitute or
create a joint venture, partnership, or formal business
organization of any kind, other than a team arrangement, and the
rights and obligations of the parties shall be only those
expressly stated in this Agreement. More particularly, except as
expressly provided herein, nothing in this Agreement shall be
construed as providing for the sharing of profits or losses
arising out of the efforts of the parties under this Agreement.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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9. ASSIGNMENT. [*] This Agreement shall bind and inure to the
benefit of the successors and permitted assigns of the parties.
10. CONFIDENTIALITY. This Agreement and its contents may be disclosed by the
parties to their respective boards of directors, management, employees,
their legal, accounting and financial advisors on a "need to know"
basis. Neither party nor its agents, employees, or representatives shall
make any other disclosure with respect to the contents of this Agreement
without the prior written consent of the other party; provided, however,
that a party may disclose to others without the written consent of the
other party such Confidential Information if the disclosing party
reasonably believes upon the advice of counsel that such disclosure is
required by applicable law or regulation and the disclosing party
promptly notifies the non-disclosing party of such disclosure and the
reason therefore.
11. GENERAL.
11.1. SURVIVAL. Upon the termination of this Agreement for any reason
sections 5, 6 and 10 shall survive the expiration or other
termination of the Agreement, in addition to any other clauses
which survive by operation of law.
11.2. NOTICES. Any notice required or contemplated by this Agreement
shall be in writing and shall be deemed given if delivered
personally, if sent by facsimile, or if sent by registered mail,
addressed to the receiving party at the address of that party
stated below:
To: POET To: ARIBA
POET Software Corporation Ariba Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇ FAX: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: [*]
If notice is given by personal delivery, it shall be deemed
effective upon such delivery (receipt required). If notice is
given by facsimile, notice shall be deemed effective the next
business day following transmission. If notice is given by mail,
delivery shall be deemed effective 3 business days after deposit
with postal authorities. The above address may be changed by the
respective party by means of a notice in accordance with the
provisions of this section.
11.3. SEVERABILITY. Each section, subsection and provision of this
Agreement is severable; if any section, subsection or provision
is declared void, illegal or unenforceable, the remaining
sections, subsections and provisions shall remain in full force
and effect.
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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11.4. WAIVER. Any failure by either party to enforce at any time any
of the provisions, including without limitation, the termination
provisions of the Agreement shall not be construed to be a
waiver of such provision or of the right of either party
thereafter to enforce such provision or exercise any other
rights available to it under the Agreement or at law.
11.5. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter
hereof and cancels and supersedes any previous understanding or
agreement related to the subject matter herein, whether written
or oral.
11.6. AMENDMENTS. This Agreement shall not be amended except in
writing signed by both parties.
11.7. INTERPRETATION. The division of this Agreement into sections and
the insertion of headings are for convenience of reference only
and shall not affect the construction or interpretation of this
Agreement. Wherever in this Agreement the context so requires,
the singular number shall include the plural number and vice
versa and any gender herein used shall be deemed to include the
feminine, masculine or neuter gender, as applicable. The terms
"hereof", "hereto", "herein", "hereunder" and similar
expressions refer to this Agreement and not to any particular
section or other portion hereof and include any agreement
executed by the parties supplemental hereto.
12. INTELLECTUAL PROPERTY. Any "Intellectual Property" resulting from [*]
will become the exclusive property of [*], and no right, title, license,
or other interest in such new Intellectual Property will vest in [*].
"INTELLECTUAL PROPERTY" means all original material made, prepared,
developed or produced by [*] pursuant to this Agreement, including
documentation, reports, manuals, flow charts, tapes, source code and
object code, software, but excluding ideas, concepts, know-how or
techniques. Notwithstanding the foregoing, neither the existence of this
Agreement nor any disclosure of information, proprietary or
confidential, grants the other party any license or rights to or in any
such information which rights shall remain with the disclosing party,
except for the license rights expressly set forth herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized representatives.
POET SOFTWARE CORPORATION ARIBA, INC.
Per: /s/▇▇▇▇ ▇▇▇▇▇▇▇ Per: [Illegible]
--------------------------- ------------------------------------
(signature) (signature)
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇. ▇▇▇▇▇▇
---------------------------- ----------------------------------
(print or type) (print or type)
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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ATTACHMENT A
PRODUCT SCHEDULE: POET agrees to develop the e-Catalog product in accordance
with the following schedule:
[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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[*]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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ATTACHMENT B
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. SUCH SHARES MAY NOT BE SOLD OR OFFERED FOR
SALE IN THE ABSENCE OF SUCH REGISTRATION STATEMENT OR OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE SECURITIES ACT. COPIES OF THE AGREEMENTS COVERING THE
PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS WARRANT TO THE
SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICE OF THE
CORPORATION.
POET HOLDINGS, INC.
WARRANT TO PURCHASE SERIES A COMMON STOCK
EFFECTIVE DATE: APRIL 30, 1999
Void After April 30, 2004
This certifies that, for value received, Ariba, Inc. (the "Holder") is
entitled, subject to the terms set forth below, to purchase from Poet Holdings,
Inc., a Delaware corporation (the "Company"), up to a maximum of THIRTY-FIVE
THOUSAND FULLY PAID AND NON-ASSESSABLE shares of the Series A Common Stock of
the Company, upon surrender hereof, at the principal office of the Company
referred to below, with the subscription form attached hereto duly executed, and
simultaneous payment therefor in lawful money of the United States or otherwise
as hereinafter provided, at the Exercise Price as set forth in Section 2 below.
The number, character and Exercise Price of such shares of Series A Common Stock
are subject to determination and adjustment as provided below.
1. TERM OF WARRANT. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, during the
period beginning upon the Effective Date of this Warrant set forth above and
ending on April 30, 2004; provided, however, that this Warrant shall terminate
upon (i) a merger or consolidation of the Company with or into any other
corporation or corporations in which the stockholders of the Company as
constituted immediately prior to such merger or consolidation shall own less
than fifty percent (50%) of the voting securities of the surviving corporation,
or (ii) a sale of all or substantially all of the assets of the Company In the
event of a proposed transaction of the kind described above, the Company shall
notify the holder of the Warrant at least fifteen (15) days prior to the
consummation of such event or transaction.
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Notwithstanding the provisions of Section 1, this Warrant shall automatically be
deemed to be exercised in full in the manner set forth in Section 4.3, without
any further action on behalf of the Holder immediately prior to: (a) a merger or
consolidation of the Company with or into any other corporation or corporations
in which the stockholders of the Company as constituted immediately prior to
such merger or consolidation shall own less than fifty percent (50%) of the
voting securities of the surviving corporation, or (b) a sale of all or
substantially all of the assets of the Company.
2. EXERCISE PRICE. The per share purchase price of the Series A Common
Stock (the "Exercise Price") for which this Warrant may be exercised shall be
equal to $7.04 per share, subject to adjustment as provided in Section 12 below.
3. NUMBER OF SHARES. The number of shares of Series A Common Stock for
which this Warrant shall be exercisable (the "Warrant Shares") shall be
Thirty-Five Thousand (35,000) shares, subject to adjustment as provided in
Section 12 below.
4. EXERCISE OF WARRANT.
4.1 Time of Exercise. The purchase rights represented by this
Warrant are exercisable by the Holder in whole or in part at any time, or from
time to time, during the term hereof as described in Section 1 above. Such
exercise shall be effected by (1) (a) the surrender of this Warrant, (b)
delivery of the Notice of Exercise attached hereto as Exhibit A and (c) payment
of the Exercise Price in cash or by check acceptable to the Company, or (2)
pursuant to Section 4.3 below.
4.2 Effect of Exercise. This Warrant (or the portion thereof
exercised) shall be deemed to have been exercised immediately prior to the close
of business on the date of its surrender for exercise as provided above, and the
person entitled to receive the shares of Series A Common Stock issuable upon
such exercise shall be treated for all purposes as the holder of record of such
shares as of the close of business on such date. As promptly as practicable on
or after such date, the Company, at its expense, shall issue and deliver to the
person or persons entitled to receive the same a certificate or certificates for
the number of shares issuable upon such exercise and in any event within 30 days
of delivery of the subscription notice.
4.3 Net Exercise. In lieu of exercising this Warrant pursuant to
Section 4, the Holder may elect to receive, without the payment by the Holder of
any additional consideration, shares of Series A Common Stock equal to the value
of this Warrant (or the portion thereof being canceled) by surrender of this
Warrant at the principal office of the Company together with notice of such
election, in which event the Company shall issue to the holder hereof a number
of shares of Series A Common Stock computed using the following formula:
Y (A - B)
-----
X = A
Where: X = The number of shares of Series A Common Stock to be
issued to the Holder pursuant to this net exercise
option;
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Y = The number of Shares in respect of which the net issue
election is made;
A = The fair market value of one share of the Series A
Common Stock at the time the net issue election is made;
B = The Exercise Price (as adjusted to the date of the net
issuance).
For purposes of this Section 4.3, the fair market value of one share of Series A
Common Stock as of a particular date shall be determined as follows: (i) if
traded on a securities exchange or through the Nasdaq National Market, the value
shall be deemed to be the average of the closing bid or sales prices whichever
is applicable of the securities on such exchange over the thirty (30) day period
ending three (3) days prior to the net exercise election; (ii) if traded
over-the-counter, the value shall be deemed to be the average of the closing bid
or sale prices (whichever is applicable) over the thirty (30) day period ending
three (3) days prior to the net exercise; and (iii) if there is no active public
market, the value shall be the fair market value thereof, as determined in good
faith by the Board of Directors of the Company; provided, that, if the Warrant
is being exercised upon the closing of the IPO, the value will be the initial
"Price to Public" of one share of such Series A Common Stock specified in the
final prospectus with respect to such offering.
5. NO FRACTIONAL SHARES OR SCRIP. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
6. NO RIGHTS AS STOCKHOLDER. The Holder shall not be entitled to vote or
receive dividends or be deemed the holder of Series A Common Stock or any other
securities of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be construed to
confer upon the Holder, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold consent
to any corporate action or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise, until the Warrant shall have been
exercised as provided herein. However, nothing in this Section 6 shall limit the
right of the Holder to be provided the Notices required under this Warrant
7. TRANSFER OF WARRANT.
7.1 Register. The Company will maintain a register (the "Warrant
Register") containing the name and address of the Holder. The Holder of this
Warrant may change his address as shown on the Warrant Register by written
notice to the Company requesting such change. Any notice or written
communication required or permitted to be given to the Holder may be delivered
or given by mail to the Holder as shown on the Warrant Register and at the
address shown on the Warrant Register. Until this Warrant is transferred on the
Warrant Register of the Company, the Company may treat the Holder as shown on
the Warrant Register as the absolute owner of this Warrant for all purposes,
notwithstanding any notice to the contrary.
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7.2 Non-transferability and Non-negotiability of Warrant. Subject
to compliance with applicable federal and state securities laws, this Warrant
and all rights hereunder are transferable in whole by the Holder to any person
or entity upon written consent to the Company. The transfer shall be recorded on
the books of the Company upon the surrender of this Warrant, properly endorsed,
to the Company at its principal offices, and the payment to the Company of all
transfer taxes and other governmental charges imposed on such transfer.
8. RESERVATION OF STOCK. The Company covenants that during the term this
Warrant is exercisable, the Company will reserve from its authorized and
unissued Series A Common Stock a sufficient number of shares to provide for the
issuance of Series A Common Stock upon the exercise of this Warrant, and, from
time to time, will take all steps necessary to amend its Certificate of
Incorporation to provide sufficient reserves of shares of Series A Common Stock
issuable upon exercise of the Warrant. The Company further covenants that all
shares that may be issued upon the exercise of rights represented by this
Warrant and payment of the Exercise Price or pursuant to Section [Net Exercise
Provision], all as set forth herein, will be duly and validly issued, fully paid
and nonassessable and free from all taxes, liens, and charges in respect of the
issue thereof (other than taxes in respect of any transfer occurring
contemporaneously or as otherwise specified herein). The Company agrees that
issuance of this Warrant shall constitute full authority to the Company's
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Series A Common Stock
and any other securities of the Company upon the exercise of this Warrant.
9. INVESTMENT REPRESENTATIONS OF THE HOLDER. Holder hereby represents
and warrants to the Company with respect to the sale of the Warrants and the
issuance of securities upon the exercise of the Warrants (collectively, the
"Securities") as follows:
9.1 Experience. Holder is experienced in evaluating and investing
in new, high technology companies such as the Company, and it has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Company and it is able to
bear the economic risk of that investment.
9.2 Investment. Holder is acquiring the Securities for investment
for its own account and not with the view to, or for resale in connection with,
any distribution thereof. It understands that the Securities to be purchased
have not been registered under the Securities Act, by reason of a specific
exemption from the registration provisions of the Securities Act which depends
upon, among other things, the bona fide nature of the investment intent as
expressed herein.
9.3 Tax Consequences. Holder understands and acknowledges that
any financing structured in the manner provided for herein involves certain tax
risks and therefore it has consulted its own tax advisors regarding all the
federal and state tax consequences of the transactions contemplated by this
Agreement.
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9.4 Rule 144. Holder acknowledges that the Securities must be
held indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available. It is aware of the provisions of
Rule 144 promulgated under the Securities Act.
9.5 No Public Market. Holder understands that no public market
now exists for any of the securities issued by the Company and that there can be
no assurance that a public market will ever exist for the Securities.
9.6 Access to Data. Holder has had an opportunity to discuss the
Company's business, management and financial affairs with its management and the
opportunity to review the Company's facilities. It understands that such
discussions, as well as any written information issued by the Company, were
intended to describe the aspects of the Company's business and prospects which
it believes to be material but were not necessarily a thorough or exhaustive
description.
9.7 Accredited Investor. Holder represents that it is an
"accredited investor" within the meaning of Regulation D promulgated by the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Act.
10 Representations an Warranties of the Company The Company hereby
represents to the Holder as follows:
10.1 Organization and Standing. The Company is a corporation duly
organized and existing under the laws of the jurisdiction of its
incorporation and is in good standing under such laws. The Company has
the requisite corporate power and authority to own and operate in its
properties and assets, and to carry on its business as presently
conducted and as proposed to be conducted. The Company is duly qualified
to do business as a foreign corporation in each jurisdiction in which
the conduct of its business requires such qualification, except where
the failure to so qualify would not have a material adverse effect on
the business of the Company taken as a whole.
10.2 Corporate Power and Valid Issuance. The Company has all
requisite corporate power to execute and deliver this Warrant and to
carry out and perform its obligations under the terms of this Warrant.
The Company has all requisite corporate power to sell and issue the
Warrant and to issue the capital stock of the Company issuable upon
exercise of the Warrant. The shares of Series A Common Stock when issued
pursuant to the terms hereof will be validly issued, fully paid and
non-assessable.
10.3 Capitalization. The authorized capital stock of the Company
consists of 11,411,173 shares of Common Stock, 10,000,000 shares of
which are designated Series A Common Stock, 236,566 of which are issued
and outstanding as of the date hereof, and 1,411,173 shares of which are
designated Series B Common Stock, 1,361,173 of which are issued and
outstanding as of the date hereof, and 5,490,353 shares of Preferred
Stock, 1,225,190 of which have been designated Series A Preferred Stock,
all of which were issued and outstanding as of the date hereof;
1,865,163 of which are designated Series B Preferred
17
Stock, 1,686,049 of which were issued and outstanding as of the date
hereof; 1,400,000 of which are designated Series C Preferred Stock,
1,143,886 of which were issued and outstanding as of the date hereof;
and 1,000,000 of which have been designated Series D Preferred Stock,
855,810 of which were issued and outstanding as of the date hereof.
11. AMENDMENTS. The Holder hereby agrees that the observance of any
provision of this Warrant may be amended, waived or modified only by written
agreement signed by the Holder and the Company.
12. LOST DOCUMENTS. Upon receipt by the Company of evidence and
indemnity satisfactory to it of the loss, theft, destruction or mutilation of,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
will make and deliver in lieu of this Warrant a new Warrant of the same series
and of like tenor of this Warrant.
13. ADJUSTMENTS. The number of shares purchasable hereunder are subject
to adjustment from time to time as follows:
13.1 Reorganization, Reclassification, Consolidation, Merger or
Sale. If any capital reorganization or reclassification of the capital stock of
the Company or any consolidation or merger of the Company with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that Holder of Series A Common Stock
shall be entitled to receive stock, securities or assets with respect to or in
exchange for Series A Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provisions
shall be made whereby the holder of this Warrant shall thereafter have the right
to receive upon the basis and upon the terms and conditions specified herein and
in lieu of or in addition to (as appropriate) the shares of Series A Common
Stock of the Company immediately theretofore receivable upon the exercise of
such Warrant , such shares of stock, securities or assets (including cash) as
may be issued or payable with respect to or in exchange for a number of
outstanding shares of such Series A Common Stock equal to the number of shares
of such stock immediately theretofore so receivable, had such reorganization,
reclassification, consolidation, merger or sale not taken place, and in any such
case appropriate provision shall be made with respect to the rights and
interests of such holder to the end that the provisions hereof (including,
without limitation, provisions for adjustments of the Exercise Price) shall
thereafter be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise of such
exercise rights.
13.2 Split, Subdivision or Combination of Shares. If the Company
at any time while this Warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination and the number of the securities as to which purchaser
rights under this Warrant exist
18
shall be increased or decreased proportionately in accordance with such split
subdivision or combination.
13.3 Adjustments for Dividends in Stock or Other Securities or
Property. If while this Warrant, or any portion hereof, remains outstanding and
unexpired the holders of the securities as to which purchase rights under this
Warrant exist at the time shall have received, or, on or after the record date
fixed for the determination of eligible stockholders, shall have become entitled
to receive, without payment therefor, other or additional stock or other
securities or property (other than cash) of the Company by way of dividend, then
and in each case, this Warrant shall represent the right to acquire, in addition
to the number of shares of the security receivable upon exercise of this
Warrant, and without payment of any additional consideration therefor, the
amount of such other or additional stock or other securities or property (other
than cash) of the Company which such holder would hold on the date of such
exercise had it been the holder of record of the security receivable upon
exercise of this Warrant on the date hereof and had thereafter, during the
period from the date hereof to and including the date of such exercise, retained
such shares and all other additional stock available to it as stated above
during such period, giving effect to all adjustments called for during such
period by the provisions of this Section 12.
13.4 No Impairment. The Company will not, by any voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
to be observed or performed hereunder by the Company, but will at all times in
good faith assist in the carrying out of all the provisions of this Section 12
and in the taking of all such action as may be necessary or appropriate in order
to protect the rights of the holders of this Warrant against impairment.
13.5 Notice of Adjustment. When any adjustment is required to be
made in the number or kind of shares purchasable upon exercise of the Warrant,
or in the Exercise Price, the Company shall promptly notify the holder of such
event and of the number of shares of Series A Common Stock or other securities
or property thereafter purchasable upon exercise of this Warrant.
14. GENERAL PROVISIONS.
14.1 Governing Law. This Warrant shall be governed by and
construed under the laws of the State of California, excluding that body of law
relating to conflict of laws.
14.2 Expenses. Each party shall pay their respective expenses and
legal fees incurred in connection with the negotiation, execution and
consummation of this transaction.
14.3 Severability. In the event that any provision of this
Warrant becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, the terms of this Warrant shall continue in full
force and effect without said provision; provided that no such severability
shall be effective if it materially changes the economic benefit of this Warrant
to any party.
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14.4 Headings. Headings used herein are for reference purposes
only and shall not be deemed to have any substantive effect.
14.5 All notices required under this Warrant and shall be deemed
to have been given or made for all purposes (i) upon personal delivery, (ii)
upon confirmation receipt that the communication was successfully sent to the
applicable number if sent by facsimile; (iii) one day after being sent, when
sent by professional overnight courier service, or (iv) five days after posting
when sent by registered or certified mail. Notices to the Company shall be sent
to the principal office of the Company (or at such other place as the Company
shall notify the Holder hereof in writing). Notices to the Holder shall be sent
to the address of the Holder on the books of the Company (or at such other place
as the Holder shall notify the Company hereof in writing).
IN WITNESS WHEREOF, POET HOLDINGS, INC., has caused the Warrant to be
executed by its officers thereunto duly authorized.
Dated: April 30, 1999
POET HOLDINGS, INC.
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: President & CEO
-----------------------------
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ACCEPTED:
ARIBA, INC.
By: [Illegible]
--------------------------
Title: CFO
-----------------------
Address:
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20
Warrant to Purchase Series A Common Stock
21
EXHIBIT A
NOTICE OF EXERCISE
TO: POET HOLDINGS, INC.
(1) The undersigned hereby elects to purchase _______ shares of Series A
Common Stock of Poet Holdings, Inc. pursuant to the terms of the attached
Warrant to Purchase Series A Common Stock (the "Warrant"), and tenders herewith
payment of the Exercise Price for such shares in full or hereby exercises the
Warrant for ________ shares of Series A Common Stock of Poet Holdings, Inc.
pursuant to the terms of Section 4.3.
(2) The undersigned hereby confirms and acknowledges that the
representations and warranties set forth in Section 9 of the Warrant remain true
and correct concerning the Holder as of the date hereof, that the shares of
Series A Common Stock are being acquired solely for the account of the
undersigned and not as a nominee for any other party, and for investment, and
that the undersigned will not offer, sell, or otherwise dispose of any such
shares of Series A Common Stock except under circumstances that will not result
in a violation of the Securities Act of 1933, as amended, or any state
securities laws or unless pursuant to Rule 144 of such Act.
(3) Please issue a certificate or certificates representing said shares
of Series A Common Stock in the name of the undersigned or in such other name as
is specified below:
____________________________________
Print Name
____________________________________
Signature
____________________________________
Date