{"id":43261,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/amendment-to-the-stock-purchase-and-contribution-agreement-with.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"amendment-to-the-stock-purchase-and-contribution-agreement-with","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/amendment-to-the-stock-purchase-and-contribution-agreement-with.html","title":{"rendered":"Amendment to the Stock Purchase and Contribution Agreement with Alibaba"},"content":{"rendered":"
AMENDMENT TO THE STOCK PURCHASE AND CONTRIBUTION AGREEMENT<\/p>\n\n\n\n
This AMENDMENT TO THE\nSTOCK PURCHASE AND CONTRIBUTION AGREEMENT (this \u0093Amendment<\/u>\u0094), dated as\nof October 24, 2005, is made and entered into by and between Yahoo! Inc.,\na Delaware corporation (\u0093Yahoo!<\/u>\u0094) and Alibaba.com Corporation, a Cayman\nIslands company (\u0093Alibaba<\/u>\u0094) to amend that certain Stock Purchase and\nContribution Agreement dated as of August 10, 2005 by and between Yahoo!\nand Alibaba (the \u0093SPCA<\/u>\u0094). \n\nCapitalized terms used but not otherwise defined herein shall have the\nrespective meanings ascribed to them in the SPCA.<\/p>\n\n\n\n
W<\/u>  I<\/u>  T<\/u>  N<\/u>  E<\/u>\nS<\/u>  S<\/u>  E<\/u>  T<\/u>  H<\/u>:<\/p>\n\n\n\n
WHEREAS, Yahoo! and\nAlibaba desire to make certain amendments to the SPCA to reflect certain\nmodifications to the terms and transactions contemplated by the SPCA and the\nAncillary Agreements, as permitted by Section 11.7 of the SPCA;<\/p>\n\n\n\n
NOW, THEREFORE, in\nconsideration of the mutual promises and of the mutual benefits to be derived\nherefrom, the parties hereto agree as follows:<\/p>\n\n\n\n
A.            AMENDMENTS\nTO SPCA<\/p>\n\n\n\n
1.             Clause\n(iii) of Section 1.1 of the SPCA is hereby amended by deleting the\nreferences to \u0093US$250 million\u0094 and \u0093201,617,750 Ordinary Shares\u0094 therein and\nsubstituting therefor \u0093US$70 million\u0094 and \u0093173,914,547 Ordinary Shares,\u0094\n\nrespectively.<\/p>\n\n\n\n
2.             Section 1.2(a)(ii) is\namended by deleting the clause \u0093and bearing or accompanied by all requisite\nstock transfer stamps.\u0094<\/p>\n\n\n\n
3.             The\nfirst sentence of Section 2.2(b) of the SPCA is hereby replaced in\nits entirety with the following:<\/p>\n\n\n\n
\u0093The authorized\nshare capital of 3721 HK consists of 32,015,560 ordinary shares, par value\nHK$0.1 per share, of which only 19,161,405 shares are issued and outstanding.\u0094<\/p>\n\n\n\n
4.             The\nlast full sentence of Section 3.2(a) of the SPCA is hereby replaced\nin its entirety with the following:<\/p>\n\n\n\n
\u0093As of the Closing\nDate, after giving effect to the transactions contemplated hereby and in the\nother Ancillary Agreements, there will be 700,000,000 authorized Ordinary\nShares, of which no more than a total of 654,103,386 will be: (i<\/u>) issued\nand outstanding, (ii<\/u>) issuable upon the exercise of any options or\nwarrants, (iii<\/u>) reserved for issuance under any Benefit Plan, and (iv<\/u>) issuable\nor reserved for issuance upon conversion of the Convertible Bond.\u0094<\/p>\n\n\n\n\n
5.             The\nparties hereby agree that the actions contemplated by Section 4.1(q) of\nthe SPCA shall not occur before the Closing. \nNot later than November 15, 2005,<\/p>\n\n\n\n
(a) Yahoo!\nshall, and shall cause each other member of the Yahoo! Group to, eliminate,\nterminate, compromise, release, offset or nullify all liability of each member\nof the China Group to each member of the Yahoo! Group with respect to all\nIntercompany Claims, and shall provide evidence thereof to Alibaba in form and\nsubstance reasonably satisfactory to Alibaba;<\/p>\n\n\n\n
(b) Alibaba\nshall cause each member of the China Group to eliminate, terminate, compromise,\nrelease, offset or nullify all liability of each member of the Yahoo! Group to\neach member of the China Group with respect to all Intercompany Claims, and\nshall provide evidence thereof to Yahoo! in form and substance reasonably\nsatisfactory to Yahoo!; and<\/p>\n\n\n\n
(c) Yahoo!\nshall, and shall cause each other member of the Yahoo! Group to, terminate all\nIntercompany Contracts, and shall provide evidence thereof to Alibaba in form\nand substance reasonably satisfactory to Alibaba.  Alibaba shall cause each member of the China Group\nto terminate all Intercompany Contracts and shall provide evidence thereof to\nYahoo! in form and substance reasonably satisfactory to Yahoo!.<\/b><\/strong><\/p>\n\n\n\n
Yahoo!\nand Alibaba shall cooperate in good faith to structure the actions contemplated\nby clauses (a) and (b) of this Section 5 in an manner so as to\nreduce the Tax liability, if any, that may be created as a result thereof.<\/p>\n\n\n\n
\u0093Intercompany\nClaims<\/u>\u0094 means all claims, causes of action, debts, suits, rights of action,\ndues, sums of money, accounts, bonds, bills, covenants, contracts,\ncontroversies, agreements, promises, damages, judgments, variances, executions,\ndemands, or obligations of any nature whatsoever, matured or unmatured,\nliquidated or unliquidated, absolute or contingent, known or unknown, at law,\nin equity or otherwise which are based upon or related to either (i<\/u>) payables\nand receivables between any member of the Yahoo! Group (other than a member of\nthe China Group) on the one hand and any member of the China Group on the other\nhand existing as of immediately before the Closing (other than any payment\nobligations created under the SPCA, any Ancillary Agreement, any other\nContract entered into upon or after the Closing or any other Contract\nexpressly contemplated thereby) or (ii<\/u>) any Intercompany\nContract; provided<\/u>, that the term \u0093Intercompany Contract\u0094 shall not\ninclude the SPCA, the Ancillary Agreements, any other Contract entered\ninto upon or after the Closing or any other Contract expressly contemplated\nthereby.<\/p>\n\n\n\n
6.             Section 4.7(a) of\nthe SPCA is hereby amended by adding the following sentence at the end thereof:<\/p>\n\n\n\n
2<\/p>\n\n\n\n
\u0093Yahoo! shall\nsubmit to the Hong Kong Stamp Office the bought and sold notes for the transfer\nof the 3721 Shares together with other documents for the adjudication of stamp\nduties by the second Business Day after the Closing Date in accordance with\napplicable Law.  Yahoo! and Alibaba shall share the aggregate amount of\nall stamp duties payable in respect of such transfer as provided in this Section 4.7(a).  Promptly\nafter receiving a notice from the Hong Kong Stamp Office of the amount of such\nstamp duties to be paid, (i<\/u>) Yahoo! shall remit such stamp\nduties to the Hong Kong Stamp Office and (ii<\/u>)  upon receiving\nwritten evidence of such remittance, Alibaba shall remit its share of such\nstamp duties to Yahoo!\u0094<\/p>\n\n\n\n
7.             Sections\n5.1(r) and 5.1(s) of the SPCA are hereby amended by inserting the phrase \u0093except\nfor the Convertible Bond,\u0094 at the beginning of each of Sections 5.1(r) and\n5.1(s) of the SPCA.<\/p>\n\n\n\n
8.             Section 5.7\nof the SPCA is hereby amended by deleting the last sentence thereof and adding\nthe following at the end of such Section:<\/p>\n\n\n\n
\u0093Nothing in this Section 5.7\nshall be construed as obligating Alibaba to continue the employment of any\nChina Group Employee after the Closing.\u0094<\/p>\n\n\n\n
9.             The\ndefinition of \u0093Ancillary Agreement\u0094 in Section 10.2 of the SPCA is hereby\nreplaced in its entirety with the following:<\/p>\n\n\n\n
\u0093Ancillary\nAgreements<\/u>:  the ancillary agreements\nto be entered into in connection with the consummation of the transactions\ncontemplated by this Agreement, including without limitation, the Shareholders\nAgreement, the Memorandum and Articles, the Secondary Shares Purchase\nAgreement, the Tao Bao Share Purchase Agreement, the Tao Bao Share Exchange\nAgreement, the Convertible Bond, the Convertible Bond Subscription Agreement,\nthe Non-Competition Agreements, the Registration Rights Agreement, the\nTechnology and Intellectual Property License Agreement and the Yahoo!\nInvestment Agreement.\u0094<\/p>\n\n\n\n
10.           The\ndefinition of \u0093Secondary Share Purchase Agreement\u0094 in Section 10.2 of the\nSPCA is hereby replaced in its entirety with the following:<\/p>\n\n\n\n
\u0093Secondary\nShare Purchase Agreement<\/u>:  the\nagreement pursuant to which Yahoo! will purchase from certain existing\nshareholders of Alibaba, and such shareholders will sell to Yahoo!, certain\nOrdinary Shares, on the terms and conditions set forth in such agreement,\nsubstantially in the form of Exhibit C hereto, by and among Yahoo! and\nsuch shareholders.\u0094<\/p>\n\n\n\n
11.           The\nfollowing definitions are hereby added in Section 10.2 of the SPCA:<\/p>\n\n\n\n
\u0093Convertible\nBond<\/u>: the Convertible Bond dated October 24, 2005 issued to Softbank\nby Alibaba at the Closing pursuant to the Convertible Bond Subscription\nAgreement.\u0094<\/p>\n\n\n\n
3<\/p>\n\n\n\n
\u0093Convertible\nBond Subscription Agreement<\/u>: the Convertible Bond Subscription Agreement,\ndated as of October 24, 2005, made and entered into by and between Alibaba\nand Softbank.\u0094<\/p>\n\n\n\n
12.           Section 11.3(b)(ii) of\nthe SPCA is hereby amended by adding the following sentence at the end thereof.<\/p>\n\n\n\n
\u0093The\nClaimant and Respondent shall direct the tribunal to follow Section 11.3\nand to apply the Laws of the State of New York in conducting the arbitration.\u0094<\/p>\n\n\n\n
B.            AMENDMENT\nTO SCHEDULES<\/p>\n\n\n\n
13.           Section 2.2(c) of\nthe Yahoo! Disclosure Schedule is hereby replaced in its entirety with Section 2.2(c) of\nthe Amended Yahoo! Disclosure Schedule delivered to Alibaba on the date of\nthis Amendment.<\/p>\n\n\n\n
14.           Section 2.13\nof the Yahoo! Disclosure Schedule is hereby replaced in its entirety with\nSections 2.13 of the Amended Yahoo! Disclosure Schedule delivered to\nAlibaba on the date of this Amendment.<\/p>\n\n\n\n
15.           Sections\n3.2(c)(iii), 3.2(d) and 3.2(e) of the Alibaba Disclosure Schedule are\nhereby replaced in their entirety with
\n\nSections 3.2(c)(iii), 3.2(d) and 3.2(e), respectively, of the Amended\nAlibaba Disclosure Schedule delivered to Yahoo! on the date of this\nAmendment.<\/p>\n\n\n\n
16.           Section 4.5(f) of\nthe Yahoo! Disclosure Schedule is hereby replaced in its entirety with Section 4.5(f) of\nthe Amended Yahoo! Disclosure Schedule delivered to Alibaba on the date of\nthis Amendment.<\/p>\n\n\n\n
C.            AMENDMENT\nTO EXHIBITS<\/p>\n\n\n\n
17.           Exhibit A\n(Memorandum and Articles), Exhibit B (Shareholders Agreement), Exhibit C\n(Secondary Share Purchase Agreement), Exhibit F (Technology and\nIntellectual Property License Agreement), Exhibit I (Opinions of Counsels\nto Yahoo!) and Exhibit J (Opinions of Counsels to Alibaba) to the SPCA\nshall be replaced in their entirety with Schedules A, B, C, F, I and J hereto,\nrespectively.<\/p>\n\n\n\n
D.            MISCELLANEOUS<\/p>\n\n\n\n
18.           Effect\nof Amendment<\/u>.  Except as expressly\namended by this Amendment, all of the terms and conditions of the SPCA shall\nremain in full force and effect in accordance with their terms.  On and after the date of this Amendment, each\nreference in the SPCA to \u0093this Agreement\u0094, \u0093hereunder\u0094, \u0093hereof\u0094, \u0093herein\u0094 or\nwords of like import referring to the SPCA shall mean and be a reference to the\nSPCA as amended by this Amendment, and each reference to the Alibaba Disclosure\nSchedule or Yahoo! Disclosure Schedule in the SPCA shall be<\/p>\n\n\n\n
4<\/p>\n\n\n\n
deemed a reference\nto the Alibaba Disclosure Schedule and Yahoo! Disclosure Schedule as\namended by this Amendment.<\/p>\n\n\n\n
19.           Notice<\/u>.\n\n All notices, requests, demands, waivers\nand other communications required or permitted to be given under this Amendment\nshall be made in accordance with Section 11.2 of the SPCA.<\/p>\n\n\n\n
20.           Governing\nLaw and Dispute Resolution<\/u>.  THIS\nAMENDMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING AS TO VALIDITY,\nINTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF NEW YORK.  Any dispute, controversy or claim arising out\nof, relating to, or in connection with this Amendment, or the breach,\ntermination or validity hereof, shall be finally settled in accordance with Section 11.3\nof the SPCA.<\/p>\n\n\n\n
21.           Binding\nEffect<\/u>.  This Amendment shall be\nbinding upon and inure to the benefit of the parties hereto and their\nrespective heirs, successors and permitted assigns.<\/p>\n\n\n\n
22.           Assignment<\/u>.  This Amendment shall not be assignable or\notherwise transferable by any party hereto without the prior written consent of\nthe other parties hereto, and any purported assignment or other transfer\nwithout such consent shall be void and unenforceable.<\/p>\n\n\n\n
23.           No\nThird Party Beneficiaries<\/u>.  Except as\nprovided in Section 9 with respect to indemnification of Indemnified\nParties under the SPCA, nothing in this Amendment shall confer any rights upon\nany person or entity other than the parties hereto and their respective heirs,\nsuccessors and permitted assigns.<\/p>\n\n\n\n
24.           Amendment;\nWaivers, etc<\/u>.  No amendment,\nmodification or discharge of this Amendment, and no waiver hereunder, shall be\nvalid or binding unless set forth in writing and duly executed by the party\nagainst whom enforcement of the amendment, modification, discharge or waiver is\nsought.  Any such waiver shall constitute\na waiver only with respect to the specific matter described in such writing and\nshall in no way impair the rights of the party granting such waiver in any\nother respect or at any other time. \n\nNeither the waiver by any of the parties hereto of a breach of or a\ndefault under any of the provisions of this Amendment, nor the failure by any\nof the parties, on one or more occasions, to enforce any of the provisions of\nthis Amendment or to exercise any right or privilege hereunder, shall be\nconstrued as a waiver of any other breach or default of a similar nature, or as\na waiver of any of such provisions, rights or privileges hereunder.  The rights and remedies herein provided are\ncumulative and none is exclusive of any other, or of any rights or remedies\nthat any party may otherwise have at law or in equity.<\/p>\n\n\n\n
25.           Entire\nAgreement<\/u>.  This Amendment, the SPCA\nand the Ancillary Agreements (when executed and delivered) constitute the\nentire agreement and supersede all prior agreements and understandings, both\nwritten and oral, between the parties with respect to the subject matter\nhereof.<\/p>\n\n\n\n
5<\/p>\n\n\n\n
26.           Severability<\/u>.  If any provision, including any phrase,\nsentence, clause, section or subsection, of this Amendment is invalid,\ninoperative or unenforceable for any reason, such circumstances shall not have\nthe effect of rendering such provision in question invalid, inoperative or\nunenforceable in any other case or circumstance, or of rendering any other\nprovision herein contained invalid, inoperative or unenforceable to any extent\nwhatsoever.<\/p>\n\n\n\n
27.           Headings<\/u>.  The headings contained in this Amendment are\nfor purposes of convenience only and shall not affect the meaning or\ninterpretation of this Amendment.<\/p>\n\n\n\n
28.           Counterparts<\/u>.  This Amendment may be executed in several\ncounterparts, each of which shall be deemed an original and all of which shall\ntogether constitute one and the same instrument.<\/p>\n\n\n\n
[SIGNATURE\nPAGE FOLLOWS]<\/p>\n\n\n\n
6<\/p>\n\n\n\n
\n\n\n
\n\n\n\n
IN WITNESS WHEREOF, the\nparties have duly executed this Amendment as of the date first above written.<\/p>\n\n\n\n\n \n  \n  \n  \n  \n  \n  \n  \n  \n  \n  \n  \n  \n  \n  
\n  
YAHOO! INC.<\/b><\/p>\n\n  <\/td>\n  
\n  
 <\/b><\/p>\n  <\/td>\n <\/tr>\n 
\n  \n  <\/td>\n\n  \n  \n  <\/td>\n <\/tr>\n 
\n  \n  <\/td>\n  \n\n  \n  <\/td>\n <\/tr>\n 
\n  
By:<\/p>\n  <\/td>\n  
\n\n  
\/s\/ Michael\n  Callahan<\/p>\n  <\/td>\n  
\n  \n  <\/td>\n  \n  \n  <\/td>\n\n <\/tr>\n 
\n  \n  <\/td>\n  \n  
Name: Michael Callahan<\/p>\n  <\/td>\n\n  
\n  \n  <\/td>\n <\/tr>\n 
\n  \n  <\/td>\n  \n\n  
Title:<\/p>\n  <\/td>\n  
\n  
Senior Vice President, General Counsel
\n  and Secretary<\/p>\n  <\/td>\n  
\n\n  \n  <\/td>\n <\/tr>\n 
\n  \n  <\/td>\n  \n  \n\n  <\/td>\n <\/tr>\n 
\n  
ALIBABA.COM CORPORATION<\/b><\/p>\n  <\/td>\n  
\n  
 <\/b><\/p>\n\n  <\/td>\n <\/tr>\n 
\n  \n  <\/td>\n  \n  \n  <\/td>\n\n <\/tr>\n 
\n  \n  <\/td>\n  \n  \n  <\/td>\n <\/tr>\n\n 
\n  
By:<\/p>\n  <\/td>\n  
\n  
\/s\/ Ma Yun Jack<\/p>\n  <\/td>\n  
\n\n  \n  <\/td>\n  \n  \n  <\/td>\n <\/tr>\n 
\n  \n\n  <\/td>\n  \n  
Name: Ma Yun Jack<\/p>\n  <\/td>\n  
\n  \n  <\/td>\n <\/tr>\n\n 
\n  \n  <\/td>\n  \n  
Title: Director<\/p>\n  <\/td>\n  
\n\n  \n  <\/td>\n <\/tr>\n 
<\/td>\n  <\/td>\n  <\/td>\n  <\/td>\n  <\/td>\n\n <\/tr>\n<\/table>\n\n\n\n\n\n
[SIGNATURE PAGE TO AMENDMENT TO\nTHE STOCK PURCHASE AND
\nCONTRIBUTION AGREEMENT]<\/b><\/p>\n\n\n\n\n\n\n<\/div><\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9377],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9622,9627],"class_list":["post-43261","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-yahoo-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43261","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43261"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43261"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43261"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43261"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}