Secondary Share Purchase Agreement with Certain Alibaba Shareholders
SECONDARY SHARE PURCHASE AGREEMENT
by and among
Certain Shareholders of Alibaba.com Corporation
Dated as of October 24, 2005
SECONDARY SHARE PURCHASE AGREEMENT
This SECONDARY SHARE PURCHASE AGREEMENT (this Agreement), dated as of October 24, 2005, is entered into by and among Yahoo! Inc., a Delaware corporation (the Purchaser), and certain shareholders (collectively, the Selling Shareholders and individually, a Selling Shareholder) of Alibaba.com Corporation, a Cayman Islands exempted limited liability company (Alibaba) as set forth on Schedule A hereto.
W I T N E S S E T H
WHEREAS, the Selling Shareholders wish to sell all or a portion of the Shares they own to the Purchaser, and the Purchaser wishes to purchase the Shares from the Selling Shareholders, on the terms and conditions and for the consideration described in this Agreement; and
WHEREAS, the execution and delivery of this Agreement by Yahoo! and the Selling Shareholders, and the consummation of the purchase and sale of Shares contemplated hereby, is a condition precedent to the consummation of the transactions contemplated by the Stock Purchase and Contribution Agreement, dated as of August 10, 2005, by and among Alibaba and Yahoo! (the SPCA), as amended.
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and warranties made herein and of the mutual benefits to be derived herefrom, the parties hereto agree as follows:
1. Sale and Purchase of the Shares.
1.1 Sale and Purchase of the Shares. Subject to the terms and conditions hereof, each Selling Shareholder, severally (and not jointly), will sell to the Purchaser, and the Purchaser will purchase from each Selling Shareholder, the respective number of Shares set forth on Schedule A hereto opposite such Selling Shareholders name at a price of US$6.49744381587623 per share (the Per Share Price), for an aggregate purchase price (the Purchase Price) set forth on Schedule A hereto opposite such Selling Shareholders name, payable in cash at the Closing in the manner set forth in Section 1.2.
1.2 Closing. The closing of the sale of Shares by the Selling Shareholders to the Purchaser and the purchase of Shares by the Purchaser from the Selling Shareholders as contemplated by Section 1.1 (the Closing) shall take place on the Closing Date of the SPCA (the Closing Date) at a location to be agreed upon by the Purchaser and Alibaba, subject to the satisfaction or waiver of the conditions precedent to the Closing set forth in Section 5 of this Agreement. At the Closing:(a) the Selling Shareholders will deliver or cause to be delivered to the Purchaser, a certified true copy of Alibabas register of members that contains entries evidencing the sale by each Selling Shareholder to the Purchaser of the
Shares that it has agreed to sell to the Purchaser as set forth on Schedule A hereto. The Shares shall be free and clear of any Liens and one or more instruments of transfer shall have been duly executed for transfer to the Purchaser, together with any Tax or transfer stamps or other documents or actions necessary to accomplish the foregoing; and (b) the Purchaser will pay or cause to be paid with respect to each Selling Shareholder an amount equal to the Per Share Price multiplied by the number of Shares delivered to the Purchaser or such subsidiary of the Purchaser by such Selling Shareholder pursuant to clause (a) above, by wire transfer of immediately available funds to the account of (i) Clifford Chance, in the case of the following Selling Shareholders: Fidelity Investors II Limited Partnership, Fidelity International Limited, FIL Greater China Ventures Fund, L.P., Granite Global Ventures (Q.P.) L.P., Granite Global Ventures L.P., Technology Fund II Pte Ltd., Venture TDF Technology Fund III, L.P., One Strategic Assets Ltd., Transpac Nominees Pte Ltd., Japan Asia Investment Co. Ltd., JAIC-Nippon Asia 3 Investment Fund, Japan Asia Venture Fund, JAVF Parallel Fund C.V., South-East Asia Private Equity Fund (GbR) Fund A, South-East Asia Private Equity Fund (GbR) Fund B, MMFI CAPI Venture Investments Limited, JAIC International (Hong Kong) Co., Limited, and (ii) Alibaba, in the case of all other Selling Shareholders, in each case notwithstanding any other payment instructions submitted by any Selling Shareholder. Payments to such accounts shall constitute payment in full to the Selling Shareholders and shall fully and finally satisfy the Purchasers payment obligations under this Section 1.
2. Representations and Warranties of the Selling Shareholders.
Each Selling Shareholder, severally (and not jointly), represents and warrants to the Purchaser as follows, as of the date hereof and as of the Closing Date:2.1 Authorization, etc. Such Selling Shareholder has full power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the purchase and sale of Shares contemplated hereby. The execution, delivery and performance of this Agreement by such Selling Shareholder, if other than a natural person, and the consummation of the purchase and sale of Shares contemplated hereby, have been duly authorized or will be duly authorized prior to the Closing by all requisite corporate action of such party. If such Selling Shareholder is a natural person, such Selling Shareholder has the authority to execute, deliver and perform this Agreement and consummate the purchase and sale of Shares contemplated hereby, in compliance with the laws affecting the rights of marital partners generally. Such Selling Shareholder has duly executed and delivered this Agreement. This Agreement constitutes the legal, valid and binding obligation of such Selling Shareholder enforceable against such Selling Shareholder in accordance with its terms.