Mutual Termination Agreement And Release

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
------------------------------- 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
------------------------------------------- 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, harms, 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
------------------------------------------- unequivocally release and discharg ...