TAO BAO SHARE PURCHASE\nAGREEMENT<\/p>\n\n\n\n\n\n
by and among<\/p>\n\n\n\n\n\n
YAHOO! INC.,<\/p>\n\n\n\n
SOFTBANK CORP.<\/p>\n\n\n\n
and<\/p>\n\n\n\n
SB TB Holding Limited<\/p>\n\n\n\n\n\n
Dated as of October 24,\n2005<\/p>\n\n\n
TAO BAO SHARE PURCHASE\nAGREEMENT<\/p>\n\n\n\n
This\nTAO BAO SHARE PURCHASE AGREEMENT (this \u0093Agreement<\/u>\u0094), dated as of October 24,\n2005, is entered into by and among Yahoo! Inc. (\u0093Yahoo!<\/u>\u0094), a Delaware\ncorporation, SOFTBANK CORP., a Japanese corporation (\u0093SOFTBANK<\/u>\u0094) and SB\nTB Holding Limited, a Cayman Islands exempted limited liability company and a\nwholly-owned subsidiary of SOFTBANK (\u0093Newco<\/u>, and, together with\nSOFTBANK, the \u0093SOFTBANK Entities<\/u>\u0094).<\/p>\n\n\n\n
W<\/u>\nI<\/u> T<\/u> N<\/u> E<\/u> S<\/u> S<\/u> E<\/u> T<\/u> H<\/u>:<\/p>\n\n
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WHEREAS,\nNewco holds 4,500,000 issued and outstanding ordinary shares of Tao Bao Holding\nLimited (\u0093Tao Bao<\/u>\u0094), a Cayman Islands exempted limited liability\ncompany, par value US$0.01 (the \u0093Shares<\/u>\u0094);<\/p>\n\n\n\n
WHEREAS,\nSOFTBANK desires that Newco sell all of the Shares to Yahoo!, and Yahoo! wishes\nto purchase such Shares from Newco, on the terms and conditions and for the\nconsideration described in this Agreement; and<\/p>\n\n\n\n
WHEREAS,\nit is a condition precedent to the consummation of the transactions\ncontemplated by the Stock Purchase and Contribution Agreement entered into by\nand between Yahoo! and Alibaba.com Corporation (\u0093Alibaba<\/u>\u0094), a Cayman\nIslands exempted limited liability company, dated as of August 10, 2005,\nand as amended on the date hereof (the \u0093Stock Purchase and Contribution\nAgreement<\/u>\u0094) that this Agreement be executed by the parties hereto and the\npurchase and sale of Shares contemplated hereby be consummated on or prior to\nthe Closing Date. Capitalized terms used\nbut not otherwise defined herein shall have the respective meanings ascribed to\nthem in the Stock Purchase and Contribution Agreement.<\/p>\n\n\n\n
NOW,\nTHEREFORE, in consideration of the mutual promises, covenants, representations\nand warranties made herein and of the mutual benefits to be derived herefrom,\nthe parties hereto agree as follows:<\/p>\n\n\n\n
1. Sale and Purchase of the Shares<\/u>.<\/p>\n\n\n\n
1.1 Sale and Purchase of\nthe Shares<\/u>. Subject to the terms and\nconditions hereof, Newco will sell to Yahoo!, and Yahoo! will purchase from\nNewco, the Shares at a price of US$80.00 per share, for an aggregate purchase\nprice of US$360,000,000 (the \u0093Purchase Price<\/u>\u0094), payable in cash at the\nClosing in the manner set forth in Section 1.2.<\/p>\n\n\n\n
1.2 Closing<\/u>. The closing of the sale and purchase of the\nShares contemplated by Section 1.1 (the \u0093Closing<\/u>\u0094) shall take place\nat a location to be agreed upon by Yahoo!, SOFTBANK and Alibaba on the Closing\nDate as soon as practicable following the satisfaction or waiver of the\nconditions precedent set forth in Section 7 of this Agreement which shall\nbe the same date as the closing date of the Stock Purchase and Contribution\nAgreement (the \u0093Closing Date<\/u>\u0094). \nAt the Closing:<\/p>\n\n
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\n\n\n\n\n<\/p>\n\n(a) Newco (or SOFTBANK acting on behalf of\nNewco) will deliver or cause to be delivered to Yahoo! a certified true copy of\nTao Bao\u0092s register of members that contains entries evidencing the sale by\nNewco to Yahoo! of the Shares. The\nShares shall be free and clear of any Liens and one or more instruments of\ntransfer shall have been duly executed for transfer to Yahoo!, together with\nany Tax or transfer stamps or other documents or actions necessary to\naccomplish the foregoing; and(b) Yahoo! will pay Newco an amount equal to the\nPurchase Price, by wire transfer of immediately available funds to the account\nof Newco designated in writing to Yahoo! at least three Business Days prior to\nthe Closing Date.
2. Representations and Warranties of the SOFTBANK\nEntities<\/u>.<\/p>\n\n\n\n
The\nSOFTBANK Entities jointly and severally represent and warrant to Yahoo! as\nfollows, as of the date hereof and as of the Closing Date:<\/p>\n\n\n\n
2.1 Authorization, etc<\/u>. Each SOFTBANK Entity has full power,\nauthority and capacity to execute and deliver this Agreement, to perform its\nobligations hereunder and to consummate the purchase and sale of Shares\ncontemplated hereby. The execution,\ndelivery and performance of this Agreement by each SOFTBANK Entity, and the\nconsummation of the purchase and sale of Shares contemplated hereby, have been\nduly authorized by all requisite corporate action of such party. Each SOFTBANK Entity has duly executed and\ndelivered this Agreement. This Agreement\nconstitutes the legal, valid and binding obligation of each SOFTBANK Entity\nenforceable against each SOFTBANK Entity in accordance with its terms.<\/p>\n\n\n\n
2.2 Title to Shares<\/u>.\nAs of Closing, Newco owns, legally and beneficially, all of the Shares. Upon the delivery of and payment for such\nShares at the Closing as provided for in this Agreement, Yahoo! will acquire\ngood and valid title to all of the Shares free and clear of any Lien.<\/p>\n\n\n\n
2.3 No Conflicts, etc<\/u>. The execution, delivery and performance of\nthis Agreement by each SOFTBANK Entity, and the consummation of the purchase\nand sale of Shares contemplated hereby, do not and will not conflict with,\ncontravene, result in a violation or breach of or default under (with or\nwithout the giving of notice or the lapse of time or both), create in any other\nPerson a right or claim of termination or amendment, or require modification,\nacceleration or cancellation of, or result in the creation of any Lien (or any\nobligation to create any Lien) upon any of the properties or assets of any\nSOFTBANK Entity under, (a<\/u>) any Law applicable to any SOFTBANK\nEntity or any of its properties or assets, (b<\/u>) any provision of any\nof the Organizational Documents of such SOFTBANK Entity or (c<\/u>) any\nContract, or any other agreement or instrument to which any SOFTBANK Entity is\na party or by which any of its properties or assets may be bound except, in the\ncase of each of clauses (a), (b) and (c), as would not reasonably be\nexpected to prevent or materially impair or delay the ability of any SOFTBANK\nEntity to sell its Shares and otherwise fulfill its obligations under this\nAgreement.<\/p>\n\n
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\n\n\n\n\n<\/p>\n\n2.4 Corporate Status<\/u>.(a) SOFTBANK<\/u>. SOFTBANK is a corporation duly organized and\nvalidly existing under the laws of Japan, and has full power and authority to, conduct\nits business and to own or lease and to operate its properties as and in the\nplaces where such business is conducted and such properties are owned, leased\nor operated.(b) Newco<\/u>. Newco is a Cayman Islands exempted limited\nliability company, duly organized, validly existing and in good standing under\nthe laws of the Cayman Islands. Newco is\na wholly owned Subsidiary of SOFTBANK, and has full power and authority to,\nconduct its business and to own or lease and to operate its properties as and\nin the places where such business is conducted and such properties are owned,\nleased or operated.
2.5 Consents<\/u>. All Governmental Approvals or other Consents\nrequired to be obtained by each SOFTBANK Entity in connection with the\nexecution and delivery of this Agreement and the consummation of the purchase\nand sale of Shares contemplated hereby have been obtained.<\/p>\n\n\n\n
2.6 Taxes<\/u>. SOFTBANK hereby acknowledges and represents\nthat Yahoo! will not be required pursuant to any applicable Law in Japan to pay\nany Taxes or to act as withholding agent for Taxes due from any SOFTBANK Entity\nto any Governmental Authority in Japan in connection with the consummation of\nthe purchase and sale of Shares contemplated by this Agreement.<\/p>\n\n\n\n
2.7 Survival of\nRepresentations and Warranties<\/u>. Each\nof the representations and warranties of the SOFTBANK Entities in this\nAgreement or in any schedule, instrument or other document delivered pursuant\nto this Agreement shall survive the Closing Date and shall continue in force\nthereafter.<\/p>\n\n\n\n
3. Representations\nand Warranties of Yahoo!.<\/u> Yahoo!\nrepresents and warrants to the SOFTBANK Entities as follows, as of the date\nhereof and as of the Closing Date:<\/p>\n\n\n\n
3.1 Authorization, etc<\/u>. Yahoo! has full corporate power and authority\nto execute and deliver this Agreement, to perform its obligations hereunder and\nto consummate the purchase and sale of Shares contemplated hereby. The execution, delivery and performance of\nthis Agreement by Yahoo!, and the consummation of the purchase and sale of\nShares contemplated hereby, have been duly authorized by all requisite\ncorporate action of Yahoo!. Yahoo! has\nduly executed and delivered this Agreement. \n\nThis Agreement constitutes the legal, valid and binding obligation of\nYahoo!, enforceable against Yahoo! in accordance with its terms.<\/p>\n\n\n\n
3.2 No Conflicts, etc<\/u>. The execution, delivery and performance of\nthis Agreement by Yahoo!, and the consummation of the purchase and sale of\nShares contemplated hereby, do not and will not conflict with, contravene,\nresult in a violation or breach of or default under (with or without the giving\nof notice or the lapse of time, or both), create in any other Person a right or\nclaim of termination or amendment, or require modification, acceleration or\ncancellation of, or result in or require the creation of any Lien (or any\nobligation to create any Lien) upon any of the properties or assets of Yahoo!\nunder (a<\/u>) any Law applicable to Yahoo! or any of its properties or\nassets, (b<\/u>) any provision of any of the Organizational Documents of\nYahoo!, or (c<\/u>) any Contract, or any other agreement or instrument\nto which Yahoo! is a party or<\/p>\n\n
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by which its properties or assets may be bound except, in the case of\neach of clauses (a), (b) and (c), as would not reasonably be expected to\nprevent or materially impair or delay the ability of Yahoo! to purchase the\nShares and otherwise fulfill its obligations under this Agreement.<\/p>\n\n\n\n
3.3 Corporate Status<\/u>. Yahoo! is a corporation duly organized,\nvalidly existing and in good standing under the laws of the State of Delaware\nand has full power and authority to conduct its business and to own or lease\nand to operate its properties as and in the place where such business is\nconducted and such properties are owned, leased or operated, except as would\nnot reasonably be expected to prevent or materially impair or delay the ability\nof the Purchaser to purchase the Shares and otherwise fulfill its obligations\nunder this Agreement.<\/p>\n\n\n\n
3.4 Consents<\/u>. All Governmental Approvals or other Consents\nrequired to be obtained by Yahoo! in connection with the execution and delivery\nof this Agreement and the consummation of the purchase and sale of Shares\ncontemplated hereby have been obtained except as would not reasonably be\nexpected to prevent or materially impair or delay the ability of the Purchaser\nto purchase the Shares and otherwise fulfill its obligations under this\nAgreement.<\/p>\n\n\n\n
3.5 Survival of\nRepresentations and Warranties of Yahoo!<\/u>. \n\nEach of the representations and warranties of Yahoo! in this Agreement\nor in any schedule, instrument or other document delivered pursuant to this\nAgreement shall survive the Closing Date and shall continue in force\nthereafter.<\/p>\n\n\n\n
4. Covenants of the SOFTBANK Entities.<\/u><\/p>\n\n\n\n4.1 Further Actions<\/u>.(a) Each SOFTBANK Entity shall use reasonable\nefforts to take or cause to be taken all actions, and to do or cause to be done\nall other things, necessary, proper or advisable in order for such SOFTBANK\nEntity to fulfill and perform its obligations in respect of this Agreement, or\notherwise to consummate and make effective the purchase and sale of Shares\ncontemplated hereby.(b) Each SOFTBANK Entity shall, as promptly as\npracticable, (i<\/u>) make, or cause to be made, all filings and\nsubmissions required under any Law applicable to such SOFTBANK Entity, and give\nsuch reasonable undertakings as may be required in connection therewith, and (ii<\/u>) use\nreasonable efforts to obtain or make, or cause to be obtained or made, all\nGovernmental Approvals and Consents necessary to be obtained or made by such\nSOFTBANK Entity, in each case in connection with this Agreement or the\nconsummation of the purchase and sale of Shares contemplated hereby.(c) Each SOFTBANK Entity shall coordinate and\ncooperate with Yahoo! in exchanging such information and supplying such\nreasonable assistance as may be reasonably requested by Yahoo! in connection\nwith the filings and other actions contemplated by Section 5.1.(d) At all times prior to the Closing Date, each\nSOFTBANK Entity shall promptly notify Yahoo! in writing of any fact, condition,\nevent or occurrence that could
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\n\n\n\n\n<\/p>\n\nreasonably be expected to\nresult in the failure of any of the conditions contained in Sections 7.1 and\n7.2 to be satisfied, promptly upon becoming aware of the same.
4.2 Payment of Taxes<\/u>. SOFTBANK shall pay all Taxes due or payable\nto any Governmental Authority in Japan incurred or to be incurred in connection\nwith the sale and transfer of the Shares by Newco to Yahoo! hereunder and in\nconnection with any sale and transfer of the Shares to Newco by SOFTBANK. SOFTBANK shall pay all Taxes due or payable\nto any Governmental Authority in connection with Yahoo!\u0092s contribution to\nAlibaba of the Tao Bao Shares pursuant to the Stock Purchase and Contribution\nAgreement.<\/p>\n\n\n\n
4.3 Further Assurances<\/u>. Following the Closing Date, each SOFTBANK\nEntity shall, from time to time, execute and deliver such additional\ninstruments, documents, conveyances or assurances and take such other actions\nas shall be necessary, or otherwise reasonably be requested by Yahoo!, to\nconfirm and assure the rights and obligations provided for in this Agreement\nand render effective the consummation of the purchase and sale of Shares\ncontemplated hereby, or otherwise to carry out the intent and purposes of this\nAgreement (which include the transfer by Newco to Yahoo! of the ownership and\nintended benefits of the Shares in the manner contemplated by Section 1.2).<\/p>\n\n\n\n
5. Covenants\nof Yahoo!.<\/u><\/p>\n\n\n\n5.1 Further Actions<\/u>.(a) Yahoo! shall use reasonable efforts to take\nor cause to be taken all actions, and to do or cause to be done all other\nthings, necessary, proper or advisable in order for Yahoo! to fulfill and\nperform its obligations in respect of this Agreement, or otherwise to\nconsummate and make effective the purchase and sale of Shares contemplated\nhereby.(b) Yahoo! shall, as promptly as practicable, (i) make,\nor cause to be made, all notices, filings and submissions required under any\nLaw applicable to Yahoo!, and give such reasonable undertakings as may be\nrequired in connection therewith, and (ii) use reasonable efforts to\nobtain or make, or cause to be obtained or made, all Governmental Approvals and\nConsents necessary to be obtained or made by Yahoo!, in each case in connection\nwith this Agreement or the consummation of the purchase and sale of Shares\ncontemplated hereby.(c) Yahoo! shall coordinate and cooperate with\nSOFTBANK in exchanging such information and supplying such reasonable\nassistance as may be reasonably requested by SOFTBANK in connection with the\nfilings and other actions contemplated by Section 4.1.(d) At all times prior to the Closing Date,\nYahoo! shall promptly notify each SOFTBANK Entity in writing of any fact,\ncondition, event or occurrence that could reasonably be expected to result in\nthe failure of any of the conditions contained in Sections 7.1 and 7.3 to be\nsatisfied, promptly upon becoming aware of the same.
5.2 Further Assurances<\/u>. Following the Closing Date, Yahoo! shall from\ntime to time, execute and deliver such additional instruments, documents,\nconveyances or assurances and take such other actions as shall be necessary, or\notherwise reasonably be requested by<\/p>\n\n
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SOFTBANK, to confirm and assure the rights and obligations provided for\nin this Agreement and render effective the consummation of the purchase and\nsale of Shares contemplated hereby, or otherwise to carry out the intent and\npurposes of this Agreement.<\/p>\n\n\n\n
6. Covenants of Yahoo! and the SOFTBANK Entities<\/u>.<\/p>\n\n\n\n
6.1 Confidentiality<\/u>. Each party shall maintain the confidentiality\nof Confidential Information in accordance with procedures adopted by such party\nin good faith to protect confidential information of third parties delivered to\nsuch party, provided<\/u> that such party may deliver or disclose\nConfidential Information to (i<\/u>) such party\u0092s representatives,\nAffiliates, shareholders, limited partners, members of its investment\ncommittees, advisory committees, and similar bodies, and Persons related\nthereto, who are informed of the confidentiality obligations of this Section 6.1,\n(ii<\/u>) any Governmental Authority having jurisdiction over such party\nto the extent required by applicable Law or (iii<\/u>) any other Person\nto which such delivery or disclosure may be necessary or appropriate (A) to\neffect compliance with any Law applicable to such party, or (B) in\nresponse to any subpoena or other legal process, provided<\/u> that, in the\ncases of clauses (ii) and (iii) above, the disclosing party shall\nprovide each other party with prompt written notice thereof so that the\nappropriate party may seek (with the cooperation and reasonable efforts of the\ndisclosing party) a protective order, confidential treatment or other\nappropriate remedy, and in any event shall furnish only that portion of the\ninformation which is reasonably necessary for the purpose at hand and shall\nexercise reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded such information to the extent reasonably requested\nby any other party.<\/p>\n\n\n\n
6.2 Publicity<\/u>. Except as may be required by applicable Law,\nnone of the parties hereto shall issue a publicity release or announcement or\notherwise make any public disclosure concerning this Agreement or the purchase\nand sale of Shares contemplated hereby or the Other Transactions, without prior\nwritten approval of Yahoo! and SOFTBANK. \nIf any announcement is required by applicable Law to be made by any\nparty hereto, prior to making such announcement such party will deliver a draft\nof such announcement to the other parties and shall give the other parties an\nopportunity to comment thereon.<\/p>\n\n\n\n
7. Conditions\nPrecedent<\/u>.<\/p>\n\n\n\n
7.1 Conditions to\nObligations of Each Party<\/u>. The\nobligations of each party to consummate the purchase and sale of Shares\ncontemplated hereby shall be subject to the fulfillment on or prior to the\nClosing Date of the following conditions:<\/p>\n\n\n\n
7.1.1. No Injunction, etc<\/u>. Consummation of the purchase and sale of\nShares contemplated hereby shall not have been restrained, enjoined or\notherwise prohibited or made illegal by any applicable Law, including any\norder, injunction, decree or judgment of any court or other Governmental\nAuthority in any material respect; and no such Law that would have such an\neffect shall have been promulgated, entered, issued or determined by any court\nor other Governmental Authority to be applicable to this Agreement. No action or proceeding shall be pending or\nthreatened by any Governmental Authority on the Closing Date before any court\nor other Governmental Authority to restrain, enjoin or otherwise prevent the\nconsummation of the purchase and sale of Shares contemplated hereby in any\nmaterial respect.<\/p>\n\n
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7.1.2. Other Transactions<\/u>. The Other Transactions shall have been\nconsummated on or prior to the Closing Date.<\/p>\n\n\n\n
7.2 Conditions to\nObligations of Yahoo!<\/u>. The\nobligation of Yahoo! to consummate the purchase and sale of Shares contemplated\nhereby shall be subject to the fulfillment on or prior to the Closing Date of\nthe following additional conditions, which each SOFTBANK Entity agrees to cause\nto be fulfilled:<\/p>\n\n\n\n7.2.1. Representations, Performance<\/u>.(a) The representations and warranties of the\nSOFTBANK Entities contained in Section 2 (i<\/u>) shall be true and\ncorrect in all material respects at and as of the date hereof, (ii<\/u>) shall\nbe repeated and shall be true and correct in all material respects on and as of\nthe Closing Date with the same effect as though made on and as of the Closing\nDate, except in the case of each of clauses (i) and (ii) as would not\nreasonably be expected to prevent or materially impair or delay the ability of\nany SOFTBANK Entity to sell its Shares and otherwise fulfill its obligations\nunder this Agreement.(b) Each SOFTBANK Entity shall have in all\nmaterial respects duly performed and complied with all agreements, covenants\nand conditions required by this Agreement to be performed or complied with by\nsuch SOFTBANK Entity prior to or on the Closing Date, except as would not\nreasonably be expected to prevent or materially impair or delay the ability of\nany SOFTBANK Entity to sell its Shares and otherwise fulfill its obligations\nunder this Agreement.
7.2.2. Corporate and Other\nProceedings<\/u>. All corporate,\npartnership and other proceedings of each SOFTBANK Entity in connection with\nthe purchase and sale of Shares contemplated by this Agreement, and all\ndocuments and instruments incident thereto, shall be satisfactory in form and\nsubstance to Yahoo! and its counsel in their reasonable judgment, and Yahoo!\nand its counsel shall have received all such documents and instruments, or\ncopies thereof, certified if requested, as may be reasonably requested.<\/p>\n\n\n\n
7.3 Conditions to\nObligations of the SOFTBANK Entities<\/u>. \nThe obligation of each SOFTBANK Entity to consummate the purchase and\nsale of Shares contemplated hereby shall be subject to the fulfillment, on or\nprior to the Closing Date, of the following additional conditions, which Yahoo!\nagrees to cause to be fulfilled:<\/p>\n\n\n\n7.3.1. Representations, Performance, etc<\/u>.(a) The representations and warranties of Yahoo!\ncontained in Section 3 (i<\/u>) shall be true and correct in all\nmaterial respects at and as of the date hereof, (ii<\/u>) shall be\nrepeated and shall be true and correct in all material respects on and as of\nthe Closing Date with the same effect as though made at and as of such time,\nexcept in the case of each of clauses (i) and (ii) as would not\nreasonably be expected to prevent or materially impair or delay the ability of\nYahoo! to purchase the Shares and otherwise fulfill its obligations under this\nAgreement.\n
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(b) Yahoo! shall have in all material respects\n duly performed and complied with all agreements, covenants and conditions\n required by this Agreement to be performed or complied with by it prior to or\n on the Closing Date, except as would not reasonably be expected to prevent or\n materially impair or delay the ability of Yahoo! to purchase the Shares and\n otherwise fulfill its obligations under this Agreement.<\/p>\n
8. Termination.<\/u><\/p>\n\n\n\n
8.1 Termination<\/u>. This Agreement may be terminated at any time\nprior to the Closing Date:<\/p>\n\n\n\n(a) By the written agreement of Yahoo! and\nSOFTBANK;(b) By SOFTBANK or Yahoo! by written notice to\nthe other party if the Stock Purchase and Contribution Agreement shall have\nterminated in accordance with its terms; or(c) By Yahoo! if there shall have been a\nmaterial breach of any covenant or agreement on the part of the SOFTBANK\nEntities contained in this Agreement such that the condition set forth in Section 7.2.1(a) and\n7.2.1(b) would not be satisfied and which shall not have been cured within\n30 days following written notice of such breach; provided that Yahoo! shall not\nhave the right to terminate this Agreement pursuant to this Section 8.1(c) if\nYahoo! is then in material breach of any of its covenants or agreements\ncontained in this Agreement such that the Closing condition set forth in Section 7.2.1(a) or\n7.2.1(b) would not be satisfied; or(d) By SOFTBANK if there shall have been a\nmaterial breach of any covenant or agreement on the part of Yahoo! contained in\nthis Agreement such that the condition set forth in Section 7.3.1(a) and\n7.3.1(b) would not be satisfied and which shall not have been cured within\n30 days following written notice of such breach; provided that SOFTBANK shall\nnot have the right to terminate this Agreement pursuant to this Section 8.1(d) if\nany SOFTBANK Entity is then in material breach of any of its covenants or\nagreements contained in this Agreement such that the Closing condition set\nforth in Section 7.2.1(a) or 7.2.1(b) would not be satisfied.
8.2 Effect of Termination<\/u>. In the event of the termination of this\nAgreement pursuant to the provisions of Section 8.1, this Agreement shall become\nvoid and have no effect, without any liability to any Person in respect hereof\nor of the purchase and sale of Shares contemplated hereby on the part of any\nparty hereto, or any of its directors, officers, representatives, stockholders\nor Affiliates, except as specified in Sections 4.2, 6.1, 6.2, 8.2, 10.1\nand 10.3 and except for any liability resulting from such party\u0092s breach of\nthis Agreement prior thereto.<\/p>\n\n
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9. Definitions.<\/u><\/p>\n\n\n\n
9.1 Terms Generally<\/u>. The words \u0093hereby,\u0094 \u0093herein,\u0094 \u0093hereof,\u0094 \u0093hereunder\u0094\n\nand words of similar import refer to this Agreement as a whole and not merely\nto the specific section, paragraph or clause in which such word appears. All references herein to Sections shall be\ndeemed references to Sections of this Agreement unless the context shall\notherwise require. The words \u0093include,\u0094 \u0093includes\u0094\nand \u0093including\u0094 shall be deemed to be followed by the phrase \u0093without\nlimitation.\u0094 The definitions given for\nterms in this Section 9 and elsewhere in this Agreement shall apply\nequally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun\nshall include the corresponding masculine, feminine and neuter forms. Except as otherwise expressly provided\nherein, all references to \u0093dollars\u0094 or \u0093US$\u0094 shall be deemed references to the\nlawful money of the United States of America.<\/p>\n\n\n\n
9.2 Certain Terms<\/u>. Whenever used in this Agreement, the\nfollowing terms shall have the respective meanings given to them below or in\nthe Sections indicated below:<\/p>\n\n\n\n
Affiliate<\/u>: of a Person means a Person that directly or\nindirectly through one or more intermediaries, controls, is controlled by, or\nis under common control with, the first Person, including but not limited to a Subsidiary\nof the first Person, a Person of which the first Person is a Subsidiary, or\nanother Subsidiary of a Person of which the first Person is also a\nSubsidiary. \u0093Control\u0094 (including the\nterms \u0093controlled by\u0094 and \u0093under common control with\u0094) means the possession,\ndirectly or indirectly, of the power to direct or cause the direction of the\nmanagement policies of a person, whether through the ownership of voting\nsecurities, by contract or credit arrangement, as trustee or executor, or\notherwise.<\/p>\n\n\n\n
Agreement<\/u>: as defined in the first paragraph of this\nAgreement.<\/p>\n\n\n\n
Alibaba<\/u>: as defined in the recitals of this Agreement.<\/p>\n\n\n\n
Business Day<\/u>: any day that is not a Saturday, Sunday or\nother day on which banks are required or authorized by Law to be closed in New\nYork, Beijing, Hong Kong, or Tokyo.<\/p>\n\n\n\n
Claimant<\/u>: as defined in Section 10.3(b).<\/p>\n\n\n\n
Closing<\/u>: as defined in Section 1.2.<\/p>\n\n\n\n
Closing Date<\/u>: as defined in Section 1.2.<\/p>\n\n\n\n
Confidential Information<\/u>: information regarding this Agreement and the\nOther Transaction Agreements including the terms, status and existence thereof,\nprovided that such Confidential Information does not include information that (a<\/u>) was\npublicly known or otherwise known to such receiving party prior to the time of\nsuch disclosure, (b<\/u>) subsequently becomes publicly known through no\nact or omission by such receiving party or any Person acting on such party\u0092s\nbehalf, or (c<\/u>) otherwise becomes known to such receiving party\nother than through disclosure by the delivering party or any Person with a duty\nto keep such information confidential.<\/p>\n\n
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9<\/p>\n\n\n\n
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\n\n\n\n<\/p>\n\n
Consent<\/u>: any consent, approval, authorization, waiver,\npermit, grant, franchise, concession, agreement, license, certificate,\nexemption, order, registration, declaration, filing, report or notice of, with\nor to any Person.<\/p>\n\n\n\n
Contract<\/u>: all loan agreements, indentures, letters of\ncredit (including related letter of credit applications and reimbursement\nobligations), mortgages, security agreements, pledge agreements, deeds of trust,\nbonds, notes, guarantees, surety obligations, warranties, licenses, franchises,\npermits, powers of attorney, purchase orders, leases, and other agreements,\ncontracts, instruments, obligations, offers, commitments, arrangements and\nunderstandings, written or oral.<\/p>\n\n\n\n
Governmental Approval<\/u>: any Consent of, with or to any Governmental\nAuthority.<\/p>\n\n\n\n
Governmental Authority<\/u>: any nation or government, any state or other\npolitical subdivision thereof; any entity, authority or body exercising\nexecutive, legislative, judicial, regulatory or administrative functions of or\npertaining to government, including, without limitation, any government\nauthority, agency, department, board, commission or instrumentality of any\nnation or any political subdivision thereof; any court, tribunal or arbitrator;\nand any self-regulatory organization.<\/p>\n\n\n\n
ICC<\/u>: \nas defined in Section 10.3(b).<\/p>\n\n\n\n
Law<\/u>: \nall applicable provisions of all (a<\/u>) constitutions,\ntreaties, statutes, laws, codes, rules, regulations, ordinances or orders of\nany Governmental Authority, (b<\/u>) Governmental Approvals and (c<\/u>) orders,\ndecisions, injunctions, judgments, awards and decrees of or agreements with any\nGovernmental Authority.<\/p>\n\n\n\n
Lien<\/u>: any mortgage, pledge, deed of trust,\nhypothecation, right of others, claim, security interest, encumbrance, burden,\ntitle defect, title retention agreement, lease, sublease, license, occupancy\nagreement, easement, covenant, condition, encroachment, voting trust agreement,\ninterest, option, right of first offer, negotiation or refusal, proxy, lien,\ncharge or other restrictions or limitations of any nature whatsoever, including\nbut not limited to such Liens as may arise under any Contract.<\/p>\n\n\n\n
Newco<\/u>: as defined in the first\nparagraph of this Agreement.<\/p>\n\n\n\n
Organizational Documents<\/u>: as to any Person, its certificate or articles\nof incorporation, by-laws and other organizational documents.<\/p>\n\n\n\n
Other Transaction Agreements<\/u>: the Stock Purchase and Contribution Agreement\nbetween Yahoo! and Alibaba, dated as of August 10, 2005 and the Ancillary\nAgreements (as defined therein and excluding this Agreement).<\/p>\n\n\n\n
Other Transactions<\/u>: the transactions contemplated by the Other\nTransaction Agreements.<\/p>\n\n\n\n
Person<\/u>: any natural person, firm, partnership,\nassociation, corporation, company, trust, business trust, Governmental\nAuthority or other entity.<\/p>\n\n
<\/p>\n\n
10<\/p>\n\n\n\n
\n\n\n
\n\n\n\n\n<\/p>\n\n
Purchase Price<\/u>: as defined in Section 1.1.<\/p>\n\n\n\n
Request<\/u>: as defined in Section 10.3(b).<\/p>\n\n\n\n
Respondent<\/u>: as defined in Section 10.3(b).<\/p>\n\n\n\n
Shares<\/u>: as defined in the recitals of this Agreement.<\/p>\n\n\n\n
Subsidiaries<\/u>: each corporation or\nother Person in which a Person owns or controls, directly or indirectly, share\ncapital or other equity interests representing more than 50% of the outstanding\nvoting stock or other equity interests.<\/p>\n\n\n\n
SOFTBANK<\/u>: as defined in the first paragraph of this\nAgreement.<\/p>\n\n\n\n
SOFTBANK Entities<\/u>: as defined in the\nfirst paragraph of this Agreement.<\/p>\n\n\n\n
Tax<\/u>: \nany federal, state, local or foreign income, alternative, minimum,\naccumulated earnings, personal holding company, franchise, share capital,\nprofits, windfall profits, gross receipts, sales, use, value added, transfer,\nregistration, stamp, premium, excise, customs duties, severance, environmental,\nreal property, personal property, ad valorem, occupancy, license, occupation,\nemployment, payroll, social security, disability, unemployment, workers\u0092\ncompensation, withholding, estimated or other similar tax, duty, fee,\nassessment or other governmental charge or deficiencies thereof (including all\ninterest and penalties thereon and additions thereto).<\/p>\n\n\n\n
Tao Bao<\/u>: as defined in the recitals of this Agreement.<\/p>\n\n\n\n
Yahoo!<\/u>: as defined in the first paragraph of this\nAgreement.<\/p>\n\n\n\n
10. Miscellaneous.<\/u><\/p>\n\n\n\n
10.1 Expenses<\/u>. Except as set forth below in this Section 10.1\nor as otherwise specifically provided for in this Agreement, each SOFTBANK\nEntity, on the one hand, and Yahoo!, on the other hand, shall bear their\nrespective expenses, costs and fees (including attorneys\u0092 fees) in connection\nwith the purchase and sale of Shares contemplated hereby, including the\npreparation, execution and delivery of this Agreement and compliance herewith,\nwhether or not the purchase and sale of Shares contemplated hereby shall be\nconsummated; provided that for the avoidance of doubt, any Tax or other expense\nassociated with the transfer of Shares contemplated hereby shall be borne\nsolely by the SOFTBANK Entities.<\/p>\n\n
<\/p>\n\n
11<\/p>\n\n\n\n
\n\n\n
\n\n\n\n\n<\/p>\n\n
10.2 Notices<\/u>. All notices, requests, demands, waivers and\nother communications required or permitted to be given under this Agreement\nshall be in writing and shall be deemed to have been duly given if (a) delivered\npersonally, (b) sent by next-day or overnight mail or delivery or (c) sent\nby facsimile, as follows:<\/p>\n\n\n\n(i) if to Yahoo!,
Yahoo! Inc.
\n701 First Avenue
\nSunnyvale, CA 94089
\nFax: +1-408-349-3301
\nTelephone: +1-408-349-3300
\n\nAttention: General Counsel<\/p>\n\n\n\nwith a copy to:<\/p>\n\n\n\n
Skadden, Arps,\nSlate, Meagher & Flom LLP
\n525 University Avenue
\n\nSuite 1100
\nPalo Alto, CA 94301
\nFax: +1-650-470-4570
\nTelephone: +1-650-470-4500
\nAttention: Kenton J. King<\/p>\n\n\n\n(ii) if\nto SOFTBANK,SOFTBANK CORP.<\/p>\n\n
1-9-1,\nHigashi-Shimbashi Minato-ku<\/p>\n\n
Tokyo, 105-7303\nJapan<\/p>\n\n<\/pre>\n
| \n Fax:<\/p>\n<\/td>\n | \n +81-3-6215-5001<\/p>\n<\/td>\n<\/tr>\n | ||||||||||||||||||||||||||||||||||||||||||||||||||||
| \n Telephone:<\/p>\n<\/td>\n | \n +81-3-6889-2270<\/p>\n<\/td>\n<\/tr>\n | ||||||||||||||||||||||||||||||||||||||||||||||||||||
| \n Attention:<\/p>\n<\/td>\n | \n Finance Department<\/p>\n<\/td>\n<\/tr>\n<\/table>\n with a copy to:<\/p>\n Morrison & Foerster LLP 1-3, Marunouchi 1 chome \n 12<\/p>\n \n
\n (iii) if to Newco,<\/p>\n SB TB Holding c\/o SOFTBANK 1-9-1, Tokyo, 105-7303
|