EXHIBIT 5
MUTUAL TERMINATION AGREEMENT AND RELEASE
This MUTUAL TERMINATION AGREEMENT AND RELEASE dated as of April 2,
2001 (this "Agreement") is made and entered into by and among Ariba, Inc., a
Delaware corporation ("Parent"), Silver Merger Corporation, a Delaware
corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and Agile
Software Corporation, a Delaware corporation ("Company"). Parent, Merger Sub
and Company are collectively referred to herein as the "Parties" and each
individually as a "Party." Unless defined herein, capitalized terms have the
meaning given them in the Merger Agreement (as defined below).
WHEREAS, the Parties entered into an Agreement and Plan of Merger and
Reorganization dated as of January 29, 2001 (the "Merger Agreement") and an
amendment to the Merger Agreement dated as of March 20, 2001 (the "Amendment")
pursuant to which, subject to the terms and conditions stated therein, Merger
Sub was to merge with and into Company and Company was to continue as the
surviving corporation and a wholly-owned subsidiary of Parent;
WHEREAS, contemporaneously with the execution of the Merger Agreement,
Parent, Company and certain stockholders or employees of each of Parent and
Company, as the case may be, entered into (i) a Company Stock Option Agreement,
(ii) Parent Voting Agreements, (iii) Company Voting Agreements, (iv) Affiliate
Agreements and (v) Employment Agreements (collectively, the "Ancillary
Agreements");
WHEREAS, Section 8.01(a) of the Merger Agreement provides that the
Merger Agreement may be terminated at any time prior to the Effective Time by
mutual written consent duly authorized by the Boards of Directors of Parent and
Company; and
WHEREAS, the Boards of Directors of each of Parent and Company have
determined to terminate each of the Merger Agreement, the Amendment and each of
the Ancillary Agreements as provided herein and release each other from all
duties, rights, claims, obligations and liabilities arising from, in connection
with, or relating to, the Merger Agreement, the Amendment and the Ancillary
Agreements, all as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound, agree as follows:
1. Termination of Merger Agreement. The Parties agree that, effective
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immediately, (i) the Merger Agreement and the Amendment are hereby terminated
pursuant to Section 8.01(a) of the Merger Agreement and (ii) the Ancillary
Agreements are hereby terminated, and none of such agreements will be of any
further force or effect as of the date hereof.
2. Release of Company by Parent and Merger Sub. Parent and Merger Sub
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do hereby unequivocally release and discharge Company and any of its officers,
directors, agents, managers, employees, representatives, stockholders, legal and
financial advisors, parents, subsidiaries, affiliates, principals or partners,
and any heirs, executors, administrators, successors or assigns of any said
person or entity (the "Company Releasees"), from any and all actions, causes of
action, choses in action, cases, claims, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, injuries, xxxxx,
damages, judgments, remedies, extents, executions, demands, liens and
liabilities whatsoever, in law, equity or otherwise (collectively, "Actions"),
arising under, in connection with or relating to the Merger Agreement, the
Amendment or the Ancillary Agreements or the transactions contemplated thereby,
or any action or failure to act under the Merger Agreement, the Amendment, the
Ancillary Agreements or in connection therewith, or in connection with the
events leading to the abandonment of the Merger and the termination of the
Merger Agreement, the Amendment and the Ancillary Agreements, or in connection
with any press release, public disclosure or private communication relating to
the Merger Agreement, the Amendment or the Ancillary Agreements or the
transactions contemplated thereby, which have been asserted against the Company
Releasees or which, whether currently known or unknown, Parent or Merger Sub, or
any successors or assigns of any said entities, ever could have asserted or ever
could assert, in any capacity, against the Company Releasees, relating to any
claims, or any transactions and occurrences from any time in connection with the
foregoing; provided, however, the Company Releasees are not released from any
Actions which may arise under this Agreement.
3. Release of Parent and Merger Sub by Company. Company does hereby
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unequivocally release and discharge Parent and Merger Sub and any of their
respective officers, directors, agents, managers, employees, representatives,
stockholders, legal and financial advisors, parents, subsidiaries, affiliates,
principals or partners, and any heirs, executors, administrators, successors or
assigns of any said person or entity (the "Parent Releasees"), from any and all
Actions arising under, in connection with or relating to the Merger Agreement,
the Amendment or the Ancillary Agreements or the transactions contemplated
thereby, or any action or failure to act under the Merger Agreement, the
Amendment, the Ancillary Agreements or in connection therewith, or in connection
with the events leading to the abandonment of the Merger and the termination of
the Merger Agreement, the Amendment and the Ancillary Agreements, or in
connection with any press release, public disclosure or private communication
relating to the Merger Agreement, the Amendment or the Ancillary Agreements or
the transactions contemplated thereby, which have been asserted against the
Parent Releasees or which, whether currently known or unknown, Company, or any
successors or assigns of any said entities, ever could have asserted or ever
could assert, in any capacity, against the Parent Releasees, relating to any
claims, or any transactions and occurrences from any time in connection with the
foregoing; provided, however, the Parent Releasees are not released from any
Actions which may arise under this Agreement.
4. Publicity. Attached hereto as Exhibit A is the form of joint press
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release to be issued by Parent and Company on signing of this Agreement with
respect to this Agreement and the termination of the Merger Agreement, the
Amendment and the Ancillary Agreements. Except as required by law or applicable
listing agreement with a stock exchange, no other press release shall be issued
regarding the termination of the Merger Agreement by either Parent or Company
without the prior written consent of the other.
5. Representations of the Parties. Parent and Merger Sub, on the one
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hand, and the Company, on the other hand, represents to the other Party that:
(a) it is duly organized and validly existing under the laws of the jurisdiction
of its incorporation and in good standing; (b) it has power to execute and
perform its obligations under this Agreement and has taken all necessary action
to authorize such execution, delivery and performance; (c) such execution,
delivery and performance do not violate or conflict with any law applicable to
it, any provision of its charter or bylaws, any order or judgment of any court
or other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets; (d) all
governmental and other consents that are required to have been obtained by it
with respect to this Agreement have been obtained and are in full force and
effect and all conditions of any such consents have been complied with; (e) its
obligations under this Agreement constitute its legal, valid and binding
obligations, enforceable in accordance with their respective terms; and (f) it
beneficially owns no shares of any other Party (except that Parent owns all of
the shares of Merger Sub).
6. Waiver. Any term of this Agreement may be waived at any time by
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the Party that is entitled to the benefit thereof, but no such waiver shall be
effective unless set forth in a written instrument duly executed by or on behalf
of the Party waiving such term or condition. No waiver by any Party of any term
or condition of this Agreement, in any one or more instances, shall be deemed to
be or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. All remedies, either under this Agreement or
by any laws or otherwise afforded, will be cumulative and not alternative.
7. Amendment. This Agreement may be amended, supplemented or modified
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only by a written instrument duly executed by or on behalf of each Party hereto.
8. No Assignment; Binding Effect. Neither this Agreement nor any
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right, interest or obligation hereunder may be assigned by any Party hereto
without the prior written consent of the other Parties hereto and any attempt to
do so will be void, except for assignments and transfers by operation of any
laws. Subject to the preceding sentence, this Agreement is binding upon, inures
to the benefit of and is enforceable by the Parties and their respective
successors and assigns.
9. Entire Agreement. This Agreement supercedes all prior discussions,
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representations, warranties and agreements, both written and oral, among the
Parties with respect to the subject matter hereof, and contains the sole and
entire
agreement among the Parties with respect to the subject matter hereof. No prior
drafts of this Agreement and no words or phrases from any such prior drafts
shall be admissible into evidence in any action, suit or other proceeding
involving this Agreement. Notwithstanding the foregoing, this Agreement does not
terminate the Non-Disclosure Agreement dated January 22, 2001 between the
Company and Parent.
10. Third Party Beneficiaries. There are no third party beneficiaries
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to this Agreement except for the Parent Releasees, the Company Releasees and
parties to the Ancillary Documents that are not parties to this Agreement.
11. Headings. The headings used in this Agreement have been inserted
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for convenience of reference only and do not define or limit the provisions
hereof.
12. Invalid Provisions. If any provision of this Agreement is held to
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be illegal, invalid or unenforceable under any present or future laws, and if
the rights or obligations of any Party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, and (c)
the remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid or unenforceable provision or
by its severance herefrom. Notwithstanding anything in this Agreement to the
contrary, if for any reason any of the releases contained in Sections 2 or 3
hereof are avoided, nullified or otherwise rendered ineffective, then all
releases in Section 2 or 3 hereof shall be rendered invalid and unenforceable
and this Agreement shall be automatically reformed to delete Sections 2 and 3
herefrom.
13. Injunctive Relief. The Parties agree that irreparable damage
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would occur in the event that any of the provisions of this Agreement was not
performed in accordance with its specified terms or was otherwise breached and
that money damages would not be an adequate remedy for any breach of this
Agreement. It is accordingly agreed that in any proceeding seeking specific
performance each of the Parties will waive the defense of adequacy of a remedy
at law. Each of the Parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction, this being in addition
to any other remedy to which they are entitled at law or in equity.
14. Governing Law. This Agreement shall be interpreted under the laws
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of the State of Delaware without reference to Delaware conflicts of law
provisions.
15. Waiver of Jury Trial. Each of Parent, Company and Merger Sub
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hereby irrevocably waives all right to trial by jury in any action, proceeding
or counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement or the actions of Parent, Company or Merger Sub in
the negotiation, administration, performance and enforcement thereof.
16. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, Parent, Merger Sub and Company have caused this
Mutual Termination Agreement and Release to be duly executed as of the date
first above written by their respective officers duly authorized.
ARIBA, INC.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Chief Executive Officer and
Chairman of the Board
SILVER MERGER CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
Chief Executive Officer
AGILE SOFTWARE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chief Executive Officer and
President
