Exhibit 10.2


 




 


 





SECONDARY SHARE
PURCHASE AGREEMENT


 


 


by and among


 


Yahoo! Inc.,


 


SOFTBANK CORP.


 


and


 


Certain
Shareholders of Alibaba.com Corporation


 


Dated as of
•, 2005


 




 





 





















 


TABLE OF CONTENTS


 


	
  1.

  	
  Sale and Purchase of the Shares

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Sale and Purchase of the Shares

  	
   

  
	
   

  	
  1.2

  	
  Closing

  	
   

  
	
   

  	
  1.3

  	
  Withholding Tax

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Representations and
  Warranties of the Selling Shareholders

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Authorization, etc.

  	
   

  
	
   

  	
  2.2

  	
  Title to Shares

  	
   

  
	
   

  	
  2.3

  	
  No Conflicts, etc.

  	
   

  
	
   

  	
  2.4

  	
  Status

  	
   

  
	
   

  	
  2.5

  	
  Consents

  	
   

  
	
   

  	
  2.6

  	
  Survival of Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Representations and
  Warranties of the Purchasers

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Authorization, etc.

  	
   

  
	
   

  	
  3.2

  	
  No Conflicts, etc.

  	
   

  
	
   

  	
  3.3

  	
  Corporate Status

  	
   

  
	
   

  	
  3.4

  	
  Purchase for Investment

  	
   

  
	
   

  	
  3.5

  	
  Survival of Representations
  and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Covenants of the Purchasers
  and the Selling Shareholders

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Confidentiality

  	
   

  
	
   

  	
  4.2

  	
  Publicity

  	
   

  
	
   

  	
  4.3

  	
  Further Assurances

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Conditions
  Precedent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Conditions to Obligations of Each Party

  	
   

  
	
   

  	
   

  	
  5.1.1.

  	
  No Injunction, etc.

  	
   

  
	
   

  	
   

  	
  5.1.2.

  	
  Other Transactions

  	
   

  
	
   

  	
  5.2

  	
  Conditions to Obligations of the Purchasers

  	
   

  
	
   

  	
   

  	
  5.2.1.

  	
  Representations, Performance, etc.

  	
   

  
	
   

  	
   

  	
  5.2.2.

  	
  Delivery of Shares

  	
   

  
	
   

  	
  5.3

  	
  Conditions to Obligations of the Selling Shareholders

  	
   

  
	
   

  	
   

  	
  5.3.1.

  	
  Representations,
  Performance, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Termination

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Termination

  	
   

  
	
   

  	
  6.2

  	
  Effect of Termination

  	
   

  
	
   

  	
  6.3

  	
  Survival of Representations and Warranties, etc.

  	
   

  



 


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  7.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Terms Generally

  	
   

  
	
   

  	
  7.2

  	
  Certain Terms

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Expenses

  	
   

  
	
   

  	
  8.2

  	
  Notices

  	
   

  
	
   

  	
  8.3

  	
  Selling Shareholders’
  Representative

  	
   

  
	
   

  	
  8.4

  	
  Governing Law and Dispute
  Resolution

  	
   

  
	
   

  	
  8.5

  	
  Binding Effect

  	
   

  
	
   

  	
  8.6

  	
  Assignment

  	
   

  
	
   

  	
  8.7

  	
  Third Party Beneficiaries

  	
   

  
	
   

  	
  8.8

  	
  Amendment; Waivers, etc.

  	
   

  
	
   

  	
  8.9

  	
  Entire Agreement

  	
   

  
	
   

  	
  8.10

  	
  Severability

  	
   

  
	
   

  	
  8.11

  	
  Headings

  	
   

  
	
   

  	
  8.12

  	
  Counterparts

  	
   

  



 


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SECONDARY SHARE
PURCHASE AGREEMENT(1)


 


This SECONDARY SHARE PURCHASE AGREEMENT (this “Agreement”),
dated as of •, 2005, is entered into by and among Yahoo! Inc., a Delaware
corporation (“Yahoo!”), SOFTBANK CORP., a Japanese corporation (“Softbank”,
and, together with Yahoo!, collectively the “Purchasers” and each,
individually, a “Purchaser”) and certain shareholders (collectively, the
“Selling Shareholders” and individually, a “Selling Shareholder”)
of Alibaba 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 hold to the Purchasers, and the Purchasers wish 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!, Softbank 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”).


 


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 each
Purchaser, and each Purchaser, severally (and not jointly) will purchase from
each Selling Shareholder, the respective number of Shares set forth on Schedule A
hereto opposite such Selling Shareholder’s name at a price of US$6.4974 per share
(the “Per Share Price”), for an aggregate purchase price (the “Purchase
Price”) set forth on Schedule A hereto opposite such Selling
Shareholder’s 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 Purchasers and the purchase of Shares by the
Purchasers from the Selling Shareholders as contemplated by Section 1.1
(the “Closing”) shall take place


 










(1) Aggregate number
of shares to be sold by the Selling Shareholders (i) to Yahoo! shall equal
60,023,604 and (ii) to Softbank shall equal to 27,703,202.


 





















 


on the Closing Date of the SPCA (the “Closing Date”) at a
location to be agreed upon by Yahoo!, Softbank 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)  each
Selling Shareholder will deliver or cause to be delivered to each Purchaser,
free and clear of any Liens, one or more certificates representing the Shares
that it has agreed to sell to such Purchaser as set forth on Schedule A
hereto, duly endorsed or accompanied by stock powers or other instruments of
transfer duly executed for transfer to such Purchaser, together with any Tax or
transfer stamps or other documents or actions necessary to accomplish the
foregoing; and


 


(b)  each
Purchaser will pay to each Selling Shareholder an amount equal to the Per Share
Price multiplied by the number of Shares delivered to such Purchaser by such Selling
Shareholder pursuant to clause (a) above, by wire transfer of immediately
available funds to the account of such Selling Shareholder designated in
writing to such Purchaser at least three Business Days prior to the Closing
Date.


 


1.3  Withholding Tax.  Each Purchaser shall be entitled to deduct
and withhold from the amounts otherwise paid to a Selling Shareholder under
this Agreement such amounts that may be required to be deducted and withheld
with respect to the making of such payment under any Tax Law.  To the extent that amounts are so withheld
and paid over to the appropriate taxing authority, such amounts so required to
be deducted and withheld shall be treated for the purposes of this Agreement as
having been paid to such Selling Shareholder.


 


2.                                       Representations
and Warranties of the Selling Shareholders.


 


Each Selling Shareholder, severally (and not jointly),
represents and warrants to each 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.


 


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2.2  Title to Shares.  As of the Closing, such Selling Shareholder
owns, legally or beneficially, all of the Shares set forth opposite such
Selling Shareholders’ name on Schedule A hereto.  Upon the delivery of and payment for such
Shares at the Closing as provided for in this Agreement, each Purchaser will
acquire good and valid title to all of such Shares, free and clear of any Lien.


 


2.3  No Conflicts, etc.  The execution, delivery and performance of
this Agreement by such Selling Shareholder, and the consummation of the
purchase and sale of Shares contemplated hereby, do not and will not conflict
with, contravene, result in a violation or breach of or default under (with or
without the giving of notice or the lapse of time or both), create in any other
Person a right or claim of termination or amendment, or require modification,
acceleration or cancellation of, or result in the creation of any Lien (or any
obligation to create any Lien) upon any of the properties or assets of such
Selling Shareholder under, (a) any Law applicable to such Selling
Shareholder or any of its properties or assets, (b) any provision of any
of the Organizational Documents of such Selling Shareholder, if applicable, or (c) any
Contract, or any other agreement or instrument to which such Selling
Shareholder is a party or by which any of its properties or assets may be bound
except, in the case of each of clauses (a), (b) and (c), as would not reasonably
be expected to prevent or materially impair or delay the ability of any Selling
Shareholder to sell its Shares and otherwise fulfill its obligations under this
Agreement.


 


2.4  Status.  In the case such Selling Shareholder is other
than a natural person, it is an entity duly organized, validly existing and, if
applicable under the laws of its jurisdiction of organization, in good standing
under the laws of its jurisdiction of organization, and has full power and
authority to, conduct its business and to own or lease and to operate its
properties as and in the places where such business is conducted and such
properties are owned, leased or operated except as would not reasonably be
expected to prevent or materially impair or delay the ability of such Selling
Shareholders to sell its Shares and otherwise fulfill its obligations under
this Agreement.


 


2.5  Consents.  All Governmental Approvals or other Consents
required to be obtained by the Selling Shareholder in connection with the
execution and delivery of this Agreement and the consummation of the purchase
and sale of Shares contemplated hereby have been obtained on or prior to the
date of this Agreement.


 


2.6  Survival of Representations and Warranties.  Each of the 
representations and warranties of the Selling Shareholders in this
Agreement or in any schedule, instrument or other document delivered pursuant
to this Agreement shall survive the Closing Date and shall continue in force
thereafter.


 


3





















 


3.                                       Representations
and Warranties of the Purchasers. 
Each Purchaser, severally (and not jointly), represents and warrants to
each Selling Shareholder as follows, as of the date hereof and as of the
Closing Date:


 


3.1  Authorization, etc.  Such Purchaser has full corporate power and
authority 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 Purchaser, and the consummation of the purchase and
sale of Shares contemplated hereby, have been duly authorized by all requisite
corporate action of such Purchaser.  Such
Purchaser has duly executed and delivered this Agreement.  This Agreement constitutes the legal, valid
and binding obligation of such Purchaser, enforceable against such Purchaser in
accordance with its terms.


 


3.2  No Conflicts, etc.  The execution, delivery and performance of
this Agreement by such Purchaser, and the consummation of the purchase and sale
of Shares contemplated hereby, do not and will not conflict with, contravene,
result in a violation or breach of or default under (with or without the giving
of notice or the lapse of time, or both), create in any other Person a right or
claim of termination or amendment, or require modification, acceleration or
cancellation of, or result in or require the creation of any Lien (or any
obligation to create any Lien) upon any of the properties or assets of such
Purchaser under (a) any Law applicable to such Purchaser or any of its
properties or assets, (b) any provision of any of the Organizational
Documents of such Purchaser, or (c) any Contract, or any other agreement
or instrument to which such Purchaser is a party or by which its properties or
assets may be bound except, in the case of each of clauses (a), (b) and
(c), as would not reasonably be expected to prevent or materially impair or
delay the ability of such Purchaser to purchase the Shares and otherwise
fulfill its obligations under this Agreement.


 


3.3  Corporate Status.  Such Purchaser is an entity duly organized,
validly existing and, if applicable under the laws of its jurisdiction of
organization, in good standing under the laws of its jurisdiction of
organization and has full power and authority to conduct its business and to
own or lease and to operate its properties as and in the place where such
business is conducted and such properties are owned, leased or operated except
as would not reasonably be expected to prevent or materially impair or delay
the ability of such Purchaser to purchase the Shares and otherwise fulfill its
obligations under this Agreement.


 


3.4  Purchase for Investment.  Such Purchaser is an “accredited investor”
within the meaning of Rule 501 of Regulation D under the U.S. Securities
Act of 1933, as amended, has such knowledge and experience in financial
business matters as to be capable of evaluating the merits and risks of its
purchase of Shares hereunder, has no need for liquidity in such Shares and has
the ability to bear the economic risks of its purchase of Shares
hereunder.  Such Purchaser is purchasing
the Shares solely for investment, with no present intention to resell the
Shares.  Such Purchaser hereby
acknowledges that the Shares have not been registered pursuant to


 


4





















 


the U.S. Securities Act of 1933, as amended, and may not be transferred
in the absence of such registration or an exemption therefrom under such
legislation.


 


3.5  Survival of Representations and Warranties.  Each of the 
representations and warranties of the Purchasers in this Agreement or in
any schedule, instrument or other document delivered pursuant to this Agreement
shall survive the Closing Date and shall continue in force thereafter.


 


4.                                       Covenants
of the Purchasers and the Selling Shareholders.


 


4.1  Confidentiality.  Each party shall maintain the confidentiality
of Confidential Information in accordance with procedures adopted by such party
in good faith to protect confidential information of third parties delivered to
such party, provided that such party may deliver or disclose
Confidential Information to (i) such party’s representatives, members of
its investment committees, advisory committees, and similar bodies, and Persons
related thereto, who are informed of the confidentiality obligations of this Section 4.1;
provided, that such party shall be responsible for any disclosure made
by any of the foregoing as if it had been made by such party, (ii) any
Governmental Authority having jurisdiction over such party to the extent
required by applicable Law or (iii) any other Person to which such
delivery or disclosure may be necessary (A) to effect compliance with any
Law applicable to such party, or (B) in response to any subpoena or other
legal process, provided that, in the cases of clauses (ii) and (iii) above,
the disclosing party shall provide each other party with prompt written notice
thereof so that the appropriate party may seek (with the cooperation and
reasonable efforts of the disclosing party) a protective order, confidential
treatment or other appropriate remedy, and in any event shall furnish only that
portion of the information which is reasonably necessary for the purpose at
hand and shall exercise reasonable efforts to obtain reliable assurance that
confidential treatment will be accorded such information to the extent
reasonably requested by any other party.


 


4.2  Publicity.  Except as may be required by the NASDAQ rules or
the rules of any other quotation system or exchange on which Yahoo!’s,
Softbank’s or Alibaba’s securities are listed or applicable Law, none of
Yahoo!, Softbank, or Alibaba shall issue a publicity release or announcement or
otherwise make any public disclosure concerning this Agreement, the SPCA, or the
other the Ancillary Agreements, which announcement names any party without its
prior approval.  If any announcement is
required by applicable Law to be made by any party hereto, prior to making such
announcement such party will deliver a draft of such announcement to the other
parties and shall give the other parties an opportunity to comment thereon.


 


5





















 


4.3  Further Assurances.  Following the Closing Date, each party shall,
from time to time, execute and deliver such additional instruments, documents,
conveyances or assurances and take such other actions as shall be necessary, or
otherwise reasonably be requested by any other party, to confirm and assure the
rights and obligations provided for in this Agreement and render effective the
consummation of the purchase and sale of Shares contemplated hereby, or
otherwise to carry out the intent and purposes of this Agreement (which include
the transfer by the Selling Shareholders to the Purchasers of the ownership and
intended related benefits of the Shares in the manner contemplated by Section 1.2).


 


5.                                       Conditions
Precedent.


 


5.1  Conditions to Obligations of Each Party.  The obligations of each party to consummate
the purchase and sale of Shares contemplated hereby shall be subject to the
fulfillment on or prior to the Closing Date of the following conditions:


 


5.1.1.  No Injunction, etc.  Consummation of the purchase and sale of
Shares contemplated hereby shall not have been restrained, enjoined or
otherwise prohibited or made illegal by any applicable Law, including any
order, injunction, decree or judgment of any court or other Governmental
Authority; and no such Law that would have such an effect shall have been
promulgated, entered, issued or determined by any court or other Governmental
Authority to be applicable to this Agreement. 
No action or proceeding shall be pending or threatened by any
Governmental Authority on the Closing Date before any court or other Governmental
Authority to restrain, enjoin or otherwise prevent the consummation of the
purchase and sale of Shares contemplated hereby in any material respect.


 


5.1.2.  Other Transactions.  The Other Transactions shall have been
consummated on or prior to the Closing Date.


 


5.2  Conditions to Obligations of the
Purchasers.  The obligations of each
Purchaser to consummate the purchase and sale of Shares contemplated hereby
shall be subject to the fulfillment on or prior to the Closing Date of the
following additional conditions, which each Selling Shareholder agrees to use
reasonable best efforts to cause to be fulfilled:


 


5.2.1.  Representations, Performance, etc.


 


(a)  The representations and warranties of each
Selling Shareholder contained in Section 2 (i) shall be true and
correct in all material respects at and as of the date it first becomes a party
to this Agreement, and (ii) shall be repeated and shall be true and
correct in all material respects on and as of the Closing Date with the same
effect as though made on and as of the Closing Date except, in the cases of
each of clauses (i) and (ii), as would not reasonably be expected to
prevent or materially impair or delay the ability of such Selling Shareholder
to sell its Shares and otherwise fulfill its obligations under this Agreement.


 


6





















 


(b)  Each Selling Shareholder shall have in all
material respects duly performed and complied with all agreements, covenants
and conditions required by this Agreement to be performed or complied with by
such Selling Shareholder prior to or on the Closing Date, except as would not
reasonably be expected to prevent or materially impair or delay the ability of
such Selling Shareholder to sell its Shares and otherwise fulfill its
obligations under this Agreement.


 


5.2.2.  Delivery of Shares.  At the Closing each Selling Shareholder shall
have delivered certificate(s) representing the Shares such Selling Shareholder
is required to deliver as provided in Section 1.2, as applicable, together
with any Tax or transfer stamps or other documents or actions necessary to vest
good and valid title to such Shares in the name of the relevant Purchasers,
free an d clear of any Lien..


 


5.3  Conditions to Obligations of the Selling
Shareholders.  The obligation of each
Selling Shareholder to consummate the purchase and sale of Shares contemplated
hereby shall be subject to the fulfillment, on or prior to the Closing Date, of
the following additional conditions, which each Purchaser agrees to use
reasonable best efforts to cause to be fulfilled:


 


5.3.1.  Representations, Performance, etc.


 


(a)  The representations and warranties of each
Purchaser contained in Section 3 (i) shall be true and correct in all
material respects at and as of the date hereof and (ii) shall be repeated
and shall be true and correct in all material respects on and as of the Closing
Date with the same effect as though made at and as of such time, except in the
cases of each of clauses (i) and (ii), as would not reasonably be expected
to prevent or materially impair or delay the ability of such Purchaser to
purchase the Shares and otherwise fulfill its obligations under this Agreement
in all material respects.


 


(b)  Each Purchaser shall have in all material
respects duly performed and complied with all agreements, covenants and
conditions required by this Agreement to be performed or complied with by it
prior to or on the Closing Date, except as would not reasonably be expected to
prevent or materially impair or delay the ability of such Purchaser to purchase
the Shares and otherwise fulfill its obligations under this Agreement.


 


6.                                       Termination.


 


6.1  Termination.  This Agreement may be terminated at any time
prior to the Closing Date:


 


(a)  By the
written agreement of the Purchasers and the Selling Shareholders;


 


7





















 


(b)  By the
Selling Shareholders or the Purchasers by written notice to the other party if
the SPCA shall have been terminated in accordance with its terms; or


 


(c)  By
Softbank or Yahoo! if there shall have been a material breach of any
representation, warranty or covenant on the part of the Selling Shareholders
contained in this Agreement such that the condition set forth in Section 5.2.1(a) and
5.2.1(b) would not be satisfied and which shall not have been cured within
30 days following written notice of such breach; provided that Softbank
and Yahoo! shall not have the right to terminate this Agreement pursuant to
this Section 6.1(c) if Softbank or Yahoo! is then in material breach
of any of its covenants or agreements contained in this Agreement such that the
Closing condition set forth in Section 5.3.1(a) or 5.3.1(b) would
not be satisfied; or


 


(d)  By the
Selling Shareholders if there shall have been a material breach of any
representation, warranty or covenant on the part of Softbank or Yahoo!
contained in this Agreement such that the condition set forth in Section 5.3.1(a) and
5.3.1(b) would not be satisfied and which shall not have been cured within
30 days following written notice of such breach; provided that the
Selling Shareholders shall not have the right to terminate this Agreement
pursuant to this Section 6.1(d) if any of the Purchasers are then in
material breach of any of their covenants or agreements contained in this
Agreement such that the Closing condition set forth in Section 5.2.1(a) or
5.2.1(b) would not be satisfied.


 


6.2  Effect of Termination.  In the event of the termination of this
Agreement pursuant to the provisions of Section 6.1, this Agreement shall
become void and have no effect, without any liability to any Person in respect
hereof or of the purchase and sale of Shares contemplated hereby on the part of
any party hereto, or any of its directors, officers, representatives,
stockholders or Affiliates, except as specified in Sections 4.1, 4.2 and
8.1 and except for any liability resulting from such party’s breach of this
Agreement prior thereto.


 


6.3  Survival of Representations and
Warranties, etc.  The representations
and warranties contained in this Agreement shall survive indefinitely.


 


7.                                       Definitions.


 


7.1  Terms Generally.  The words “hereby,” “herein,” “hereof,” “hereunder”
and words of similar import refer to this Agreement as a whole (including any
Schedules hereto) and not merely to the specific section, paragraph or clause
in which such word appears.  All
references herein to Sections and Schedules shall be deemed references to
Sections of, and Schedules to, this Agreement unless the context shall
otherwise require.  The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation.”  The definitions given for
terms in this Section 7 and elsewhere in this Agreement shall apply
equally


 


8





















 


to both the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  Except as otherwise expressly provided
herein, all references to “dollars” or “US$” shall be deemed references to the
lawful money of the United States of America.


 


7.2  Certain Terms.  Whenever used in this Agreement (including in
the Schedules), the following terms shall have the respective meanings given to
them below or in the Sections indicated below:


 


Affiliate:  of a Person means a Person that directly or
indirectly through one or more intermediaries, controls, is controlled by, or
is under common control with, the first Person, including but not limited to a
Subsidiary of the first Person, a Person of which the first Person is a
Subsidiary, or another Subsidiary of a Person of which the first Person is also
a Subsidiary.  “Control” (including the
terms “controlled by” and “under common control with”) means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management policies of a person, whether through the ownership of voting
securities, by contract or credit arrangement, as trustee or executor, or
otherwise.


 


Agreement:  as defined in the first paragraph of this
Agreement.


 


Alibaba:  as defined in the first paragraph of this
Agreement.


 


Business Day:  any day that is not a Saturday, Sunday or
other day on which banks are required or authorized by Law to be closed in New
York, Beijing, Hong Kong or Tokyo.


 


Claimant:  as defined in Section 8.4(b).


 


Closing:  as defined in Section 1.2.


 


Closing Date:  as defined in Section 1.2.


 


Confidential Information:  information regarding this Agreement and the
Other Transaction Agreements including the terms, status and existence thereof,
provided that such Confidential Information does not include information that (a) was
publicly known or otherwise known to such receiving party prior to the time of
such disclosure, (b) subsequently becomes publicly known through no act or
omission by such receiving party or any Person acting on such party’s behalf,
or (c) otherwise becomes known to such receiving party other than through
disclosure by the delivering party or any Person with a duty to keep such
information confidential.


 


9





















 


Consent:  any consent, approval, authorization, waiver,
permit, grant, franchise, concession, agreement, license, certificate,
exemption, order, registration, declaration, filing, report or notice of, with
or to any Person.


 


Contract:  all loan agreements, indentures, letters of
credit (including related letter of credit applications and reimbursement
obligations), mortgages, security agreements, pledge agreements, deeds of
trust, bonds, notes, guarantees, surety obligations, warranties, licenses,
franchises, permits, powers of attorney, purchase orders, leases, and other
agreements, contracts, instruments, obligations, offers, commitments,
arrangements and understandings, written or oral.


 


Governmental Approval:  any Consent of, with or to any Governmental
Authority.


 


Governmental Authority:  any nation or government, any state or other
political subdivision thereof; any entity, authority or body exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including, without limitation, any government
authority, agency, department, board, commission or instrumentality of any
nation or any political subdivision thereof; any court, tribunal or arbitrator;
and any self-regulatory organization.


 


ICC: 
as defined in Section 8.4(b).


 


Law: 
all applicable provisions of all (a) constitutions, treaties,
statutes, laws, codes, rules, regulations, ordinances or orders of any
Governmental Authority, (b) Governmental Approvals and (c) orders, decisions,
injunctions, judgments, awards and decrees of or agreements with any
Governmental Authority.


 


Lien:  any mortgage, pledge, deed of trust,
hypothecation, right of others, claim, security interest, encumbrance, burden,
title defect, title retention agreement, lease, sublease, license, occupancy
agreement, easement, covenant, condition, encroachment, voting trust agreement,
interest, option, right of first offer, negotiation or refusal, proxy, lien,
charge or other restrictions or limitations of any nature whatsoever, including
but not limited to such Liens as may arise under any Contract.


 


Organizational Documents:  as to any Person, its certificate or articles
of incorporation, by-laws, memorandum and articles of association or other
organizational and constitutive documents.


 


Other Transaction Agreements:  the SPCA and the Ancillary Agreements (as
defined therein and excluding this Agreement).


 


Other Transactions:  the transactions contemplated by the Other
Transaction Agreements.


 


10





















 


Per Share Price:  as defined in Section 1.1.


 


Person:  any natural person, firm, partnership,
association, corporation, company, trust, business trust, Governmental
Authority or other entity.


 


Purchase Price:  as defined in Section 1.1.


 


Purchaser(s):  as defined in the first paragraph of this
Agreement.


 


Request:  as defined in Section 8.4(b).


 


Respondent:  as defined in Section 8.4(b).


 


Selling Shareholder(s):  as defined in the first paragraph of this
Agreement.


 


Selling Shareholders’ Representative:
as defined in Section 8.3.


 


Shareholders Agreement: the
shareholders agreement to be entered into by and among Yahoo!, Alibaba and the
Management Members (as defined in such agreement) on or prior to the Closing
Date, substantially in the form of Exhibit B to the SPCA.


 


Shares:  Ordinary Shares of a nominal or par value of
US$0.0001 each, of Alibaba.


 


Softbank:  as defined in the first paragraph of this
Agreement.


 


SPCA: as defined in the recitals of
this Agreement.


 


Subsidiaries:  each corporation or other Person in which a
Person owns or controls, directly or indirectly, share capital or other equity
interests representing more than 50% of the outstanding voting stock or other
equity interests.


 


Tax: 
any federal, state, local or foreign income, alternative, minimum,
accumulated earnings, personal holding company, franchise, share capital,
profits, windfall profits, gross receipts, sales, use, value added, transfer,
registration, stamp, premium, excise, customs duties, severance, environmental,
real property, personal property, ad valorem, occupancy, license, occupation,
employment, payroll, social security, disability, unemployment, workers’
compensation, withholding, estimated or other similar tax, duty, fee,
assessment or other governmental charge or deficiencies thereof (including all
interest and penalties thereon and additions thereto).


 


Yahoo!:  as defined in the first paragraph of this
Agreement.


 


11





















 


8.                                       Miscellaneous.


 


8.1  Expenses.  Except as set forth below in this Section 8.1
or as otherwise specifically provided for in this Agreement, each Selling
Shareholder, on the one hand, and each Purchaser, on the other hand, shall bear
their respective expenses, costs and fees (including attorneys’ fees) in
connection with the purchase and sale of Shares contemplated hereby, including
the preparation, execution and delivery of this Agreement and compliance
herewith, whether or not the purchase and sale of Shares contemplated hereby
shall be consummated; provided that for the avoidance of doubt, any Tax or
other expenses associated with the transfer of Shares contemplated hereby shall
be borne solely by the transferring Selling Shareholder.


 


8.2  Notices.  All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a) delivered
personally, (b)  sent by next-day or overnight mail or delivery or (c) sent
by facsimile, as follows:


 


(i)  if to Yahoo!,


 


	
  Yahoo! Inc.

  
	
  701 First Avenue

  
	
  Sunnyvale, CA 94089

  
	
  Fax: +1-408-349-3301

  
	
  Telephone: +1-408-349-3300

  
	
  Attention: General Counsel

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  Skadden, Arps, Slate,
  Meagher & Flom LLP

  
	
  525 University Avenue

  
	
  Suite 1100

  
	
  Palo Alto, CA 94301

  
	
  Fax: +1-650-470-4570

  
	
  Telephone: +1-650-470-4500

  
	
  Attention: Kenton J. King

  
	
   

  
	
  (ii) if to Softbank,

  
	
   

  
	
  SOFTBANK CORP.

  
	
  1-9-1,
  Higashi-Shimbashi Minato-ku

  
	
  Tokyo, 105-7303
  Japan

  
	
  Fax:

  	
  +81-3-6215-5001

  
	
  Telephone:

  	
  +81-3-6889-2270

  
	
  Attention:

  	
  Finance Department

  



 


12





















 


	
  with a copy to:

  
	
   

  
	
  Morrison &
  Foerster LLP

  
	
  AIG Building, 11th Floor

  
	
  1-3, Marunouchi 1
  chome

  
	
  Chiyoda-ku, Tokyo 100-0005

  
	
  Japan

  
	
  Fax: +81-3-3214-6512

  
	
  Telephone: +81-3-3214-6522

  
	
  Attention: Kenneth A.
  Siegel

  



 


(iii)  If to any Selling Shareholder, to such
Selling Shareholder’s address as set forth on Schedule A hereto;


 


or, in each case, at such other address as may be
specified in writing to the other parties hereto in accordance with this Section 8.2.


 


All such notices, requests, demands, waivers and other
communications shall be deemed to have been received (i) if by personal
delivery on the day after such delivery, (ii)  if by next-day or overnight
mail or delivery, on the day delivered or (iii) if by facsimile, on the
next day following the day on which such facsimile was sent, provided that a
copy is also sent by another method described herein.


 


8.3  Selling Shareholders’ Representative.


 


(a)  Concurrent with the execution and delivery
of this Agreement, each of the Selling Shareholders shall be deemed to appoint
the Chief Executive Officer of Alibaba as their agent, representative and
attorney-in-fact (the “Selling Shareholders’ Representative”) and the
Chief Executive Officer of Alibaba hereby agrees to act as the Selling
Shareholders’ Representative.


 


(b)  The Selling Shareholders’ Representative has
the full power and authority to act on behalf of each Selling Shareholder in
connection with this Agreement and the purchase and sale of Shares contemplated
hereby and take all actions necessary or appropriate in the judgment of the
Selling Shareholders’ Representative for the accomplishment of the
foregoing.  Any notices delivered by the
Selling Shareholders’ Representative pursuant to this Agreement shall be
delivered to the addressees in the manner provided in Section 8.2.


 


(c)  A decision, act, consent, or instruction of
the Selling Shareholders’ Representative, including an amendment or waiver of
this Agreement pursuant to Section 8.8 hereof, shall constitute a decision
of the Selling Shareholders after the date hereof and shall be final, binding
and conclusive upon the Selling Shareholders after the date hereof; and the
other parties hereto may rely upon any such decision, act, consent or
instruction of the Selling Shareholders’ Representative as being the decision,
act, consent or instruction of the Selling Shareholders.


 


13





















 


8.4  Governing Law and Dispute Resolution.


 


(a)  THIS AGREEMENT SHALL BE GOVERNED IN ALL
RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF
THE STATE OF NEW YORK.


 


(b)  Dispute Resolution


 


(i)  Any dispute, controversy or claim arising
out of, relating to, or in connection with this Agreement, or the breach,
termination or validity hereof, shall be finally settled exclusively by
arbitration.  The arbitration shall be
conducted in accordance with the rules of the International Chamber of
Commerce (the “ICC”) in effect at the time of the arbitration, except as
they may be modified by mutual agreement of the parties.  The seat of the arbitration shall be
Singapore, provided that the arbitrators may hold hearings in such other
locations as the arbitrators determine to be most convenient and efficient for
all of the parties to such arbitration under the circumstances.  The arbitration shall be conducted in the
English language.


 


(ii)  The arbitration shall be conducted by three
arbitrators.  The party (or the parties,
acting jointly, if there are more than one) initiating arbitration (the “Claimant”)
shall appoint an arbitrator in its request for arbitration (the “Request”).  The other party (or the other parties, acting
jointly, if there are more than one) to the arbitration (the “Respondent”)
shall appoint an arbitrator within 30 days of receipt of the Request and shall
notify the Claimant of such appointment in writing.  If within 30 days of receipt of the Request
by the Respondent, either party has not appointed an arbitrator, then that
arbitrator shall be appointed by the ICC. 
The first two arbitrators appointed in accordance with this provision
shall appoint a third arbitrator within 30 days after the Respondent has
notified Claimant of the appointment of the Respondent’s arbitrator or, in the
event of a failure by a party to appoint, within 30 days after the ICC has
notified the parties and any arbitrator already appointed of the appointment of
an arbitrator on behalf of the party failing to appoint.  When the third arbitrator has accepted the
appointment, the two arbitrators making the appointment shall promptly notify
the parties of the appointment.  If the
first two arbitrators appointed fail to appoint a third arbitrator or so to
notify the parties within the time period prescribed above, then the ICC shall
appoint the third arbitrator and shall promptly notify the parties of the
appointment.  The third arbitrator shall
act as Chair of the tribunal.


 


(iii)  The arbitral award shall be in writing,
state the reasons for the award, and be final and binding on the parties.  The award may include an award of costs,
including reasonable attorneys’ fees and disbursements.  In addition to monetary damages, the arbitral
tribunal shall be empowered to award equitable relief, including, but not
limited to, an injunction and specific performance of any obligation under this
Agreement.  The arbitral tribunal is not
empowered to award damages in excess of compensatory damages, and each party
hereby irrevocably waives any right to recover punitive, exemplary or similar
damages with respect to any dispute, except insofar as a claim is for
indemnification for an award of punitive damages awarded


 


14





















 


against a party in an action brought against it by an independent third
party.  The arbitral tribunal shall be
authorized in its discretion to grant pre-award and post-award interest at
commercial rates.  Any costs, fees or
taxes incident to enforcing the award shall, to the maximum extent permitted by
Law, be charged against the party resisting such enforcement.  Judgment upon the award may be entered by any
court having jurisdiction thereof or having jurisdiction over the relevant
party or its assets.


 


(iv)  In order to facilitate the comprehensive
resolution of related disputes, and upon request of any party to the
arbitration proceeding, the arbitration tribunal may, within 90 days of its
appointment, consolidate the arbitration proceeding with any other arbitration
proceeding involving any of the parties relating to this Agreement and the
Other Transaction Agreements.  The
arbitration tribunal shall not consolidate such arbitrations unless it
determines that (x) there are issues of fact or law common to the proceedings,
so that a consolidated proceeding would be more efficient than separate
proceedings, and (y) no party would be prejudiced as a result of such
consolidation through undue delay or otherwise. 
In the event of different rulings on this question by the arbitration
tribunal constituted hereunder and any tribunal constituted under the Other
Transaction Agreements, the ruling of the tribunal constituted under the
Shareholders Agreement shall govern, and that tribunal will decide all disputes
in the consolidated proceeding.


 


(v)  The parties agree that the arbitration shall
be kept confidential and that the existence of the proceeding and any element
of it (including but not limited to any pleadings, briefs or other documents
submitted or exchanged, any testimony or other oral submissions, and any
awards) shall not be disclosed beyond the tribunal, the ICC, the parties, their
counsel and any person necessary to the conduct of the proceeding, except as
may be lawfully required in judicial proceedings relating to the arbitration,
by disclosure rules and regulations of securities regulatory authorities
or otherwise, or as required by NASDAQ rules or the rules of any
other quotation system or exchange on which the disclosing party’s securities
are listed or applicable Law.


 


(vi)  The costs of arbitration shall be borne by
the losing party unless otherwise determined by the arbitration award.


 


(vii)  All payments made pursuant to the
arbitration decision or award and any judgment entered thereon shall be made in
United States dollars, free from any deduction, offset or withholding for
Taxes.


 


(viii)  Notwithstanding this Section 8.4(b) or
any other provision to the contrary in this Agreement, no party shall be
obligated to follow the foregoing arbitration procedures where such party
intends to apply to any court of competent jurisdiction for an interim
injunction or similar equitable relief against any other party, provided there
is no unreasonable delay in the prosecution of that application.


 


15





















 


8.5  Binding Effect.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns.


 


8.6  Assignment.  This Agreement shall not be assignable or
otherwise transferable by any party hereto without the prior written consent of
the other parties hereto, and any purported assignment or other transfer
without such consent shall be void and unenforceable.


 


8.7  Third Party Beneficiaries.  It is expressly agreed by the parties hereto that
Alibaba shall be a third party beneficiary of all of the terms of this
Agreement and Alibaba shall be entitled to enforce its rights as such under
this Agreement.


 


8.8  Amendment; Waivers, etc.  No amendment, modification or discharge of
this Agreement, and no waiver hereunder, shall be valid or binding unless set
forth in writing and duly executed by the party against whom enforcement of the
amendment, modification, discharge or waiver is sought, provided that no
amendment, modification, discharge of this Agreement, and no waiver hereunder,
shall be valid and binding against the Purchasers unless set forth in writing
and duly executed by both the Purchasers and Alibaba.  Any such waiver shall constitute a waiver only
with respect to the specific matter described in such writing and shall in no
way impair the rights of the party granting such waiver in any other respect or
at any other time.  Neither the waiver by
any of the parties hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any of the parties, on one or
more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder, shall be construed as a waiver of
any other breach or default of a similar nature, or as a waiver of any of such
provisions, rights or privileges hereunder. 
The rights and remedies herein provided are cumulative and none is
exclusive of any other, or of any rights or remedies that any party may otherwise
have at law or in equity.


 


8.9  Entire Agreement.  This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof.


 


8.10  Severability.  If any provision, including any phrase,
sentence, clause, section or subsection, of this Agreement is invalid,
inoperative or unenforceable for any reason, such circumstances shall not have
the effect of rendering such provision in question invalid, inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision herein contained invalid, inoperative, or unenforceable to any extent
whatsoever.


 


8.11  Headings.  The headings contained in this Agreement are
for purposes of convenience only and shall not affect the meaning or
interpretation of this Agreement.


 


16





















 


8.12  Counterparts.  This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.


 


17





















 


IN WITNESS WHEREOF, the parties have duly executed
this Agreement as of the date first above written.


 


	
   

  	
  YAHOO!
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SOFTBANK
  CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF SELLING

  SHAREHOLDER 1]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF SELLING

  SHAREHOLDER 2]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF SELLING

  SHAREHOLDER 3]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF SELLING

  SHAREHOLDER 4]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ETC.

  
						



 


18





















 


SCHEDULE A


 


	
  Selling Shareholder’s

  Name and Address

  	
   

  	
  Number of Shares

  to Be Purchased by

  Yahoo!

  	
   

  	
  Number of Shares

  to Be Purchased by

  Softbank

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


19