Exhibit 10.3




 





 


SHAREHOLDERS AGREEMENT


 


by and among


 


Alibaba.com Corporation,


 


Yahoo! Inc.,


 


SOFTBANK CORP.


 


the Management Members

(as defined herein)


 


and


 


certain other shareholders of Alibaba.com Corporation


 


Dated
as of l, 2005




 





 





















 


Table of Contents


 


	
  1.

  	
   

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Corporate Governance

  	
   

  
	
   

  	
  2.1

  	
  General

  	
   

  
	
   

  	
  2.2

  	
  Shareholder Actions

  	
   

  
	
   

  	
  2.3

  	
  Board Composition

  	
   

  
	
   

  	
  2.4

  	
  IPO and Stock Exchange Rules

  	
   

  
	
   

  	
  2.5

  	
  Office and Expenses; Removal;
  Replacement

  	
   

  
	
   

  	
  2.6

  	
  Meetings

  	
   

  
	
   

  	
  2.7

  	
  Indemnification

  	
   

  
	
   

  	
  2.8

  	
  Participation in Meetings;
  Notice

  	
   

  
	
   

  	
  2.9

  	
  Determination of Share
  Ownership

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Matters that Require Approval
  of the Board or Shareholders

  	
   

  
	
   

  	
  3.1

  	
  Matters that Require Approval
  of the Majority of the Board

  	
   

  
	
   

  	
  3.2

  	
  Matters that Require Approval
  of the Majority of the Board Including Yahoo Designee

  	
   

  
	
   

  	
  3.3

  	
  Matters that Require the
  Approval of Yahoo

  	
   

  
	
   

  	
  3.4

  	
  Matters that Require Approval
  of Each of Yahoo, the Management Members’ Representative and SOFTBANK

  	
   

  
	
   

  	
  3.5

  	
  Matters that Require Approval
  of Disinterested Directors of the Board

  	
   

  
	
   

  	
  3.6

  	
  Formation and Assignment of
  Authority to a Committee of the Board

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Restrictions on Share Transfer

  	
   

  
	
   

  	
  4.1

  	
  Restrictions on Transfer.

  	
   

  
	
   

  	
  4.2

  	
  Certain Permitted Transfers

  	
   

  
	
   

  	
  4.3

  	
  Right of First Offer

  	
   

  
	
   

  	
  4.4

  	
  Tag-Along Rights of Financial
  Investors

  	
   

  
	
   

  	
  4.5

  	
  Tag-Along Rights of Yahoo

  	
   

  
	
   

  	
  4.6

  	
  Tag-Along Rights of the
  Management Members

  	
   

  
	
   

  	
  4.7

  	
  Tag-Along
  Rights of SOFTBANK

  	
   

  
	
   

  	
  4.8

  	
  Survival of
  Rights

  	
   

  
	
   

  	
  4.9

  	
  Transfers in
  Violation of this Agreement

  	
   

  
	
   

  	
  4.10

  	
  Financial
  Investors

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Voting
  Agreement

  	
   

  
	
   

  	
  5.1

  	
  Voting of
  Shares

  	
   

  
	
   

  	
  5.2

  	
  No Other
  Agreements

  	
   

  
	
   

  	
  5.3

  	
  Voting
  Agreement Shares

  	
   

  



 


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  6.

  	
   

  	
  Preemptive
  Rights

  	
   

  
	
   

  	
  6.1

  	
  Preemptive
  Rights.

  	
   

  
	
   

  	
  6.2

  	
  Limitation
  of Preemptive Rights

  	
   

  
	
   

  	
  6.3

  	
  Exercise
  Period

  	
   

  
	
   

  	
  6.4

  	
  Survival of
  Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Representations
  and Warranties

  	
   

  
	
   

  	
  7.1

  	
  Power and
  Authority

  	
   

  
	
   

  	
  7.2

  	
  Due
  Authorization

  	
   

  
	
   

  	
  7.3

  	
  Execution
  and Delivery

  	
   

  
	
   

  	
  7.4

  	
  No Conflict

  	
   

  
	
   

  	
  7.5

  	
  Share
  Ownership

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Covenants

  	
   

  
	
   

  	
  8.1

  	
  Standstill

  	
   

  
	
   

  	
  8.2

  	
  Chief
  Executive Officer

  	
   

  
	
   

  	
  8.3

  	
  Compliance
  Officer

  	
   

  
	
   

  	
  8.4

  	
  Confidentiality

  	
   

  
	
   

  	
  8.5

  	
  Information
  Rights

  	
   

  
	
   

  	
  8.6

  	
  Internal
  Controls over Financial Reporting

  	
   

  
	
   

  	
  8.7

  	
  GAAP

  	
   

  
	
   

  	
  8.8

  	
  Fiscal Year

  	
   

  
	
   

  	
  8.9

  	
  Expansion of
  Business

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Governing Law
  and Dispute Resolution

  	
   

  
	
   

  	
  9.1

  	
  Governing
  Law

  	
   

  
	
   

  	
  9.2

  	
  Arbitration

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Miscellaneous

  	
   

  
	
   

  	
  10.1

  	
  Notices

  	
   

  
	
   

  	
  10.2

  	
  Management
  Members’ Representative

  	
   

  
	
   

  	
  10.3

  	
  Expenses

  	
   

  
	
   

  	
  10.4

  	
  Entire
  Agreement

  	
   

  
	
   

  	
  10.5

  	
  Amendment
  and Waiver

  	
   

  
	
   

  	
  10.6

  	
  Binding
  Effect

  	
   

  
	
   

  	
  10.7

  	
  Severability

  	
   

  
	
   

  	
  10.8

  	
  Assignment

  	
   

  
	
   

  	
  10.9

  	
  No Third
  Party Beneficiaries

  	
   

  
	
   

  	
  10.10

  	
  Termination

  	
   

  
	
   

  	
  10.11

  	
  Headings

  	
   

  
	
   

  	
  10.12

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SCHEDULE A – FINANCIAL
  INVESTORS

  	
   

  



 


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  SCHEDULE B – YAHOO
  COMPETITORS

  	
   

  
	
   

  	
  SCHEDULE C – SHARE
  OWNERSHIP

  	
   

  



 


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SHAREHOLDERS AGREEMENT


 


THIS SHAREHOLDERS
AGREEMENT (this “Agreement”), dated as of l,
2005 is made and entered into by and among Alibaba.com Corporation, a Cayman
Islands company (the “Company”), Yahoo! Inc., a Delaware corporation (“Yahoo”),
SOFTBANK CORP., a Japanese corporation (“SOFTBANK”), and certain members
of the management of the Company named on the signature page hereof, in their
sole capacity as shareholders of the Company (collectively, the “Management
Members” and individually, a “Management Member”) and certain other
shareholders named on the signature page hereof (such other shareholders,
Yahoo, SOFTBANK and the Management Members are referred to herein collectively
as the “Shareholders” and individually as a “Shareholder”).


 


W  I  T  N  E
S  S  E  T  H:


 


WHEREAS,
pursuant to the terms and conditions of the Stock Purchase and Contribution
Agreement (the “Purchase and Contribution Agreement”), dated as of
August 10, 2005, by and between the Company and Yahoo, Yahoo agreed to transfer
the China Business and pay the Cash Consideration to the Company in
consideration of the allotment and issuance of the Primary Shares by the
Company to Yahoo; and


 


WHEREAS,
the Company, the Management Members, Yahoo and SOFTBANK, and certain of their
respective Affiliates, are parties to one or more Ancillary Agreements as
contemplated by the Purchase and Contribution Agreement;


 


WHEREAS,
the execution and delivery of this Agreement by the Shareholders is a condition
precedent to the consummation of the transactions contemplated by the Purchase
and Contribution Agreement.


 


NOW,
THEREFORE, in consideration of the mutual promises, covenants, representations
and warranties set forth herein and the mutual benefits to be derived herefrom,
the parties hereto agree as follows:


 


1.             Definitions.  For purposes of this Agreement, the following
terms have the indicated meanings, and capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed to them in the
Purchase and Contribution Agreement.  All
references to Sections and Schedules shall be deemed references to Sections of
and Schedule to this Agreement unless the context shall otherwise require.


 


Additional Securities:  as defined in Section 6.1(a).


 


Affiliate:  of a Person means another 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 other arrangement, as trustee or executor, or
otherwise.


 


Aggregate Remaining Shares:  as defined in Section 4.3(d).


 


Board:  the board of directors of the Company.


 


Cause:  with respect to a person, (i) gross
neglect or failure to perform the duties and responsibilities of such person’s
office, (ii) failure or refusal to comply in any material respect with
material and lawful policies and directives of the Company resulting in
material harm to the Company and its Affiliates, taken as a whole, (iii)
material breach of any contract or agreement between such person and the
Company, or material breach of any statutory duty or any other obligation that
such person owes to the Company and/or its Affiliates resulting in material
harm to the Company and its Affiliates, taken as a whole, (iv)
commission of an act of fraud, theft or embezzlement against the Company and/or
its Affiliates or involving their properties or assets, or (v) conviction
or nolo contendere plea with
respect to any felony or crime of moral turpitude, provided, however,
that with respect to any occurrence of any of (i), (ii) or (iii), such person
shall have been given not less than 30 days’ written notice by the Board of the
Board’s determination (such determination being made independent of such
person, if such person is a Board member) that such event had occurred, and
such person shall have until the end of such 30 day period following receipt of
such notice to rectify or cure such occurrence if such occurrence is curable
before any action premised upon a determination of Cause can be taken.


 


Change of Control Transactions:  (a)
the direct or indirect acquisition (except for transactions described in clause
(b) of this paragraph below), whether in one or a series of transactions by any
person (as such term is used in Section 13(d) and Section 14(d)(2) of the
Exchange Act), or related persons constituting a group (as such term is used in
Rule 13d-5 under the Exchange Act), of (i) beneficial ownership (as
defined in the Exchange Act) of issued and outstanding shares of capital stock
of the Company, the result of which acquisition is that such person or such
group possesses 25% or more of the combined voting power of all then-issued and
outstanding share capital of the Company, or (ii) the power to elect,
appoint, or cause the election or appointment of at least a majority of the
members of the Board (or such other governing body in the event the Company or
any successor entity is not a corporation); (b) a merger,
consolidation or other


 


2





















 


reorganization or recapitalization of the Company with a person or a direct or
indirect subsidiary of such person, provided that the result of such merger, consolidation or other
reorganization or recapitalization, whether in one or a series of related
transactions, is that the holders of the outstanding shares of capital
stock of the Company immediately
prior to such consummation do not possess,
whether directly or indirectly, immediately after the consummation of such
transaction, in excess of 75% of the combined voting power of all then-issued
and outstanding capital stock of the merged, consolidated, reorganized
or recapitalized person, its direct or indirect parent, or the surviving person
of such transaction; or (c) a sale or disposition, whether in one
or a series of transactions, of all or substantially all of the Company’s assets.


 


Claimant: as defined in Section
9.2(b).


 


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


 


Compliance Officers: as defined in
Section 8.3.


 


Confidential Information:  information delivered by a party to another
party in connection with the transactions contemplated by or otherwise pursuant
to this Agreement that is proprietary in nature and that was clearly marked or
labeled or otherwise adequately identified when received by such party as being
confidential information of such delivering party, provided that such term 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.


 


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.


 


Core Businesses:  the core businesses of the Company relating
to search, portal, consumer e-commerce, business-to-business and Alipay.


 


Equity Securities:  any Ordinary Shares and any other equity
securities of the Company, however described or whether voting or non-voting,
including securities convertible or exchangeable into, and options, warrants or
other rights to acquire, any equity interests of the Company.


 


Exchange Act: the United States
Securities Exchange Act of 1934, as amended.


 


3





















 


Exempted Securities:  (i) issuance of options pursuant to
any option plan or restricted shares pursuant to any restricted share plan for
compensatory purposes (which may cover directors, officers, employees and/or
consultants) which was either (x) approved by the Board prior to the
Closing or (y) approved by the Board (including the approval of the
Yahoo Designee and the SOFTBANK Designee) on or subsequent to the Closing, and
the issuance of the Ordinary Shares underlying such options; (ii)
issuance of Ordinary Shares upon exercise of any option, rights, warrants or
other convertible instruments which either existed on the Closing Date or the
issuance of which was previously subject to preemptive rights; and (iii)
issuance of Ordinary Shares in connection with a share dividend, share split or
similar event made or paid pro rata on all, and solely with respect to,
Ordinary Shares.


 


Expenses:  as defined in Section 2.7(a).


 


Family Members:  any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law of a Person, and
shall include adoptive relationships of the same type.


 


Financial Investors:  the financial investors of the Company as set
forth in Schedule A hereto.


 


Fully Diluted Basis:  based on the total number of shares of the
relevant class of stock or type of equity interest that would be outstanding on
the relevant date assuming the exercise of all options, warrants and other
rights to acquire such relevant class of shares or type of equity interest
(including reserved but unissued options or other equity interests issuable
pursuant to option plans or other equity plans and without regard to
exercisability, vesting or similar provisions and restrictions thereof) and the
conversion or exchange of all securities convertible into or exchangeable for
such shares or equity interest (without regard to exercisability, vesting or
similar provisions and restrictions thereof).


 


GAAP:  United States generally accepted accounting
principles, applied on a consistent basis.


 


Governmental Approval:  any Consent of 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


 


4





















 


thereof; any court, tribunal or arbitrator; and any
self-regulatory organization; and any securities exchange or quotation system.


 


Guarantee:  any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing in any manner any Indebtedness
or other obligation of any other Person and any obligation, direct or indirect,
contingent or otherwise, of any Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep well, to purchase assets, goods,
securities or services, to take or pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part).


 


ICC: 
as defined in Section 9.2(a).


 


ICP Company:  means a Person controlled via contractual
relationships similar to those governing any of the China ICP Companies,
Zhejiang Alibaba E-Commerce Co., Ltd or Zhejiang Tao Bao Network Co., Ltd.


 


Indebtedness:  as applied to any Person, means, without
duplication, (a) all indebtedness for borrowed money, (b) all
obligations evidenced by a note, bond, debenture, letter of credit, draft or
similar instrument, (c) that portion of obligations with respect to
capital leases that is properly classified as a liability on a balance sheet in
conformity with GAAP, (d) notes payable and drafts accepted
representing extensions of credit, (e) any obligation owed for all
or any part of the deferred purchase price of property or services, which
purchase price is due more than six months from the date of incurrence of the
obligation in respect thereof, and (f) all indebtedness and
obligations of the types described in the foregoing clauses (a) through (e) to
the extent secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person.


 


Indemnifiable Amounts:  as defined in Section 2.7(a).


 


Indemnitee:  as defined in Section 2.7(a).


 


IPO: 
a firm-commitment underwritten initial public offering by the Company of
its Ordinary Shares on an internationally recognized stock exchange or
quotation system approved by the Board with gross proceeds to the Company of at
least US$50 million.


 


5





















 


JM: 
Jack Ma Yun, the founder and the current Chairman of the Board and the
Chief Executive Officer of the Company.


 


Management Member(s):  as defined in the first paragraph to this
Agreement.


 


Management Member Designee(s):  as defined in Section 2.3.


 


Management Member Economic Interest Percentage:  the quotient of (x) the number of
Ordinary Shares owned by a Management Member (excluding those underlying
unexercised stock options or warrants or restricted shares subject to vesting
or repurchase) divided by (y) the total number of Ordinary Shares
outstanding at the relevant time.


 


Management Members’ Representative:  as defined in Section 10.2(a).


 


Memorandum and Articles: the
Memorandum and Articles of Association of the Company, to be adopted and
approved by the shareholders of the Company on or prior to the Closing Date and
filed with the appropriate Governmental Authority on the Closing Date, in the
form of Exhibit A attached to the Purchase and Contribution Agreement.


 


Offer Notice:  as defined in Section 4.3(a).


 


Offer Price:  as defined in Section 4.3(a).


 


Offeree Remaining Shares:  as defined in Section 4.3(d).


 


Offerees:  as defined in Section 4.3(a).


 


Ordinary Shares:  the ordinary shares of the Company, par value
US$0.0001 per share.


 


Other Shares:  any shares of capital stock of the Company
that are not Ordinary Shares, including without limitation, any securities that
by their terms are, directly or through a series of one or more steps,
convertible into or exercisable or exchangeable for any such shares of capital
stock.


 


own, owned, ownership
and the like:  as “owned” is defined in
Section 2.9.


 


Parent Shareholder:  as defined in Section 2.2(c).


 


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


 


Preemptive Rights:  as defined in Section 6.1(a).


 


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Preemptive Share Amount:  as defined in Section 6.1(d).


 


Purchase and Contribution Agreement:  as defined in the recitals of this Agreement.


 


Purchase Price:  as defined in Section 6.1(e).


 


Purchaser:  as defined in Section 4.4(a)


 


Qualifying Sale:  as defined in Section 4.4(a).


 


Relying Shareholder:  as defined in Section 2.2(c).


 


Replacement Director:  as defined in Section 2.5(d).


 


Request:  as defined in Section 9.2(b).


 


Respondent:  as defined in Section 9.2(b).


 


Rule 144:  Rule 144 under the United States Securities
Act of 1933, as amended.


 


Sale Notice:  as defined in Section 4.4(a).


 


Sale Price:  as defined in Section 4.4(a).


 


Sale Shares:  as defined in Section 4.4(a).


 


Second Round Offeree:  as defined in Section 4.3(d).


 


Senior Equity Securities:  any Equity Securities which, with respect to
voting rights, dividend rights or rights on liquidation, dissolution, winding
up or in any other respect, rank senior to, or have any other rights in
preference of, the Ordinary Shares, now or hereafter authorized by the Company.


 


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


 


Shareholders Meeting:  as defined in Section 2.1.


 


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


 


SOFTBANK Affiliate:  means, with respect to SOFTBANK, another
Person that directly or indirectly through one or more intermediaries, is
controlled by, or under common control with, SOFTBANK, including but not
limited to a Subsidiary of SOFTBANK, provided, however, that, in
addition to such control or common control: (1) SOFTBANK either (a)
owns, directly or indirectly, share


 


7





















 


capital or other equity interests representing more
than 75% of the outstanding voting stock or other equity interests
(disregarding, for the avoidance of doubt, any carried interest or similar
economic participation rights of any Person formed as a fund, provided such
interest or rights do not confer voting rights as to the governance of such
Person on the holder thereof) or (b) owns, directly or indirectly, share
capital or other equity interests representing more than 50% of such
outstanding voting stock or other equity interests and has the right to
designate at least two-thirds (2/3) of the directors of
such Person; and (2) no Yahoo Competitor owns any voting stock or other
equity interests in such Person (provided  further, however,
that no change to the list of Yahoo Competitors that results in the inclusion
of new entities to Schedule B shall disqualify any Person from treatment
as a SOFTBANK Affiliate to the extent that such newly added entity owns any
voting stock or other equity interests in such Person at the time it is added
to Schedule B).  “Control,” for
purposes of this definition, has the meaning set forth in the definition of
Affiliate.


 


SOFTBANK Designee(s):  as defined in Section 2.3.


 


SOFTBANK Economic Interest Percentage:  the quotient of (x) the number of
Ordinary Shares owned by SOFTBANK divided by (y) the total number of
Ordinary Shares outstanding at the relevant time.


 


Subject Shares:  as defined in Section 4.3(a).


 


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, together with any ICP Companies controlled by such Person.


 


Substitute Director:  as defined in Section 2.5(c).


 


Territory: the People’s Republic of
China, excluding Hong Kong, Macau and Taiwan.


 


Transfer:  any sale, transfer, assignment, gift,
disposition of, creation of any encumbrance over or other transfer, whether
directly or indirectly, of the legal or beneficial ownership or economic
benefits of all or a portion of the Equity Securities.


 


Transferor:  as defined in Section 4.3.


 


Transferring Shareholder:  as defined in Section 4.4(a).


 


Voting Agreement Shares:  as defined in Section 5.3.


 


8





















 


Withdrawing Director:  as defined in Section 2.5(c).


 


Written Consent:  as defined in Section 2.1.


 


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


 


Yahoo Competitors: those Persons set
forth in Schedule B hereto, as such schedule may be amended once every six
months by Yahoo, together with the Affiliates controlled by such Persons; provided,
that (i) on or prior to the closing of an IPO, no more than 15 names
shall appear on such schedule at any time and (ii) following the closing
of an IPO, no more than eight names shall appear on such schedule at any time.


 


Yahoo Designee(s):  as defined in Section 2.3.


 


Yahoo Economic Interest Percentage:  the quotient of (x) the number of
Ordinary Shares owned by Yahoo divided by (y) the total number of
Ordinary Shares outstanding at the relevant time.


 


2.             Corporate
Governance.


 


2.1  General.  From and after the Closing Date, each
Shareholder shall vote or cause to be voted all Equity Securities beneficially
owned by such Shareholder at any annual or extraordinary meeting of
shareholders of the Company (a “Shareholders Meeting”) or in any written
consent executed in lieu of such a meeting of shareholders (a “Written
Consent”), and shall take all other actions necessary, to give effect to
the provisions of this Agreement and to ensure that the Memorandum and Articles
do not, at any time hereafter, conflict in any respect with the provisions of
this Agreement including, without limitation, voting to approve amendments
and/or restatements of the Memorandum and Articles and remove directors that
take actions inconsistent with this Agreement or fail to take actions required
to carry out the intent and purposes of this Agreement.  In addition, each Shareholder shall vote or
cause to be voted all Equity Securities beneficially owned by such Shareholder
at any Shareholders Meeting or act by Written Consent with respect to such Equity
Securities, upon any matter submitted for action by the Company’s shareholders
or with respect to which such Shareholder may vote or act by Written Consent,
in conformity with the specific terms and provisions of this Agreement and the
Memorandum and Articles.  In the event
that there is any conflict between the Memorandum and Articles and this
Agreement, the latter shall prevail and the Shareholders (but not the Company)
shall to the extent necessary, cause the change, amendment or modification of
the Memorandum and Articles to eliminate any such inconsistency.


 


9





















 


2.2  Shareholder Actions.


 


(a)  In order to
effectuate the provisions of this Agreement, and without limiting the
generality of Section 2.1, each Shareholder (a) hereby agrees that when
any action or vote is required to be taken by such Shareholder pursuant to this
Agreement, such Shareholder shall use its best efforts to call, or cause the
appropriate officers and directors of the Company to call, one or more
Shareholders Meetings to take such action or vote, to attend such Shareholders
Meetings in person or by proxy for purposes of obtaining a quorum, or to
execute or cause to be executed a Written Consent to effectuate such
shareholder action, (b) shall use its best efforts to cause the
Board to adopt, either at a meeting of the Board or by unanimous written
consent of the Board, all the resolutions necessary to effectuate the
provisions of this Agreement and (c) shall use its best efforts, to
the extent not in violation of applicable Law, to cause the Board to cause the
Secretary of the Company, or if there be no Secretary, such other officer of
the Company as the Board may appoint to fulfill the duties of Secretary, not to
record any vote or consent contrary to the terms of this Section 2.


 


(b)  Each
Shareholder has entered into this Agreement on behalf of itself and on behalf
of each Person whose Equity Securities are “owned” by such Shareholder pursuant
to Section 2.9 (each, a “Subordinate Shareholder”).  Each Shareholder shall cause its Subordinate
Shareholder(s) to take all actions necessary to perform all obligations
hereunder, to perform all obligations hereunder, and to be deemed to have
hereby made all representations and warranties hereunder as if such Subordinate
Shareholder were such Shareholder.


 


(c)  Each
Shareholder (each, a “Relying Shareholder”) shall be entitled to rely
upon the decision, actions, consents or instructions of each of the other
Shareholders that has any Subordinate Shareholder (each, a “Parent Shareholder”)
as being the decision, action, consent or instruction of each of such Parent
Shareholder’s Subordinate Shareholders with respect to this Agreement or with
respect to any matter related hereto. 
Each Relying Shareholder is hereby relieved from any liability to any of
such Subordinate Shareholders for relying upon any such decision, action,
consent or instruction of its Parent Shareholder.


 


2.3  Board Composition.  The Board shall initially be four, among
which (i) one director shall be a person designated by Yahoo (the “Yahoo
Designee”), provided, that a second director shall be a person
designated by Yahoo (so two directors in total shall be persons designated by
Yahoo) in the event SOFTBANK no longer has the right to designate a director
pursuant to subclause (iii) of this Section 2.3, provided, further,
Yahoo shall only have the right to designate a director or directors for so
long as Yahoo owns at least 37.5% of the number of the Equity Securities it
owns as of the Closing Date, (ii) two directors shall be persons
designated by the Management Members (each a “Management Member Designee”
and collectively, the “Management Member Designees”); provided,
that in the event the Management Members, collectively, own less than 25% of
the number of Equity Securities they own as of the Closing Date, only one


 


10





















 


director shall be
designated by the Management Members and the Management Members will continue
to have the right to designate at least one director on the Board as long as JM
owns one share of Equity Security of the Company, and (iii) one director
shall be a person designated by SOFTBANK (the “SOFTBANK Designee”), provided,
that SOFTBANK will no longer have the right to designate a director on the
Board in the event it ceases to own at least 50% of the number of Equity
Securities it owns as of the Closing Date. 
From and after the fifth anniversary of the date of this Agreement,
Yahoo shall have the right to designate a number of directors equal to the
greater of (i) the number of directors that Yahoo would otherwise
be entitled to designate as of such date under this Agreement and (ii) the
number of directors that the Management Members are entitled to designate as of
such date under this Agreement.  Without
limiting the generality of the requirements of Sections 2.1 and 2.2, the
Shareholders will take all actions necessary to effect the provisions of this
Section 2.3, including amending the Memorandum and Articles to increase or
decrease the numbers of directors on the Board and electing or removing
directors.


 


2.4  IPO and Stock Exchange Rules.  The Shareholders hereby agree that it is
their mutual intent to complete an IPO as soon as practicable, subject to
market conditions.  In the event the
Company is required by the rules of an internationally recognized stock
exchange or quotation system on which the Company will list its Ordinary Shares
upon the IPO to expand the number of directors on the Board in order to comply
with independence or other comparable requirements of such exchange or
quotation system, the Shareholders agree to vote in favor of such expansion so
as to comply with the requirements of such rules.  The Shareholders hereby agree to amend the
Memorandum and Articles prior to the IPO if and to the extent required to
comply with corporate governance and related requirements of the rules of an
internationally recognized stock exchange or quotation system on which the
Company will list its Ordinary Shares upon the IPO.


 


2.5  Office and Expenses; Removal; Replacement.


 


(a)  All
directors designated pursuant to this Agreement shall hold office until their
respective successors shall have been appointed.  The Company shall provide to such directors
the same information concerning the Company and its Subsidiaries, and access to
information, provided to all other members of the Board.  The reasonable travel expenses incurred by
any such director in attending any meetings of the Board shall be reimbursed by
the Company to the extent consistent with the Company’s then existing policy of
reimbursing directors generally for such expenses.


 


(b)  Notwithstanding
anything herein to the contrary, the Shareholders shall exercise their power in
relation to the Company to ensure that, (i) Yahoo shall have the sole and
exclusive power to remove and replace any Yahoo Designee from the Board, with
or without cause, (ii) the Management Members shall have the sole and
exclusive


 


11





















 


power to remove any
Management Member Designee from the Board, with or without cause, and (iii)
SOFTBANK shall have the sole and exclusive power to remove the SOFTBANK
Designee from the Board, with or without cause; provided, however,
that at such time as Yahoo, the Management Members or SOFTBANK is no longer
entitled to designate a director or directors pursuant to Section 2.3, the
Shareholders shall exercise their power in relation to the Company to ensure
that any director then holding office who was designated by Yahoo, the
Management Members or SOFTBANK, respectively, shall automatically and
immediately, without any further action, be removed from the Board, including
any committees thereof; provided, further that, if at such time
there are two Yahoo Designees and/or two Management Members Designees on the
Board and Yahoo or the Management Members lose the right to designate one such
member, Yahoo or the Management Members’ Representative, as appropriate, shall
designate which director shall be removed.


 


(c)  If any
director (a “Withdrawing Director”) designated in the manner set forth
in Section 2.3 above is unable to serve, or once having commenced to serve, is
removed, withdraws from the Board or dies or becomes incapacitated, such
Withdrawing Director’s replacement (the “Substitute Director”) on the
Board will be designated by the party or parties who designated the Withdrawing
Director, subject to Section 2.3 hereof. The Shareholders shall exercise their
power in relation to the Company to ensure that such Substitute Director is
elected.  No meeting of the Board shall
be held pending replacement of any Withdrawing Director without the consent of
the Shareholder entitled to name the Substitute Director unless such
Shareholder shall have failed to name a Substitute Director within 30 days after
the removal, withdrawal, death or incapacitation of such Withdrawing Director.


 


(d)  If any
Shareholder entitled to designate a director or directors pursuant to this
Agreement fails to designate any director or directors and such directorship or
directorships shall have been vacant for sixty (60) days, the other
Shareholders may appoint a director (the “Replacement Director”) until a
new director is designated by the Shareholder who is originally entitled to
designate such director, whereupon the Replacement Director shall be
removed.  Subject to Section 2.4, if any
Shareholder loses its right to designate one or more directors pursuant to
Section 2.3, the size of the Board shall automatically and immediately, without
further action, be decreased by one for each such right that has terminated.


 


2.6  Meetings.  The parties hereto will cause the Board to
meet at least once every quarter.  A
quorum of the Board shall consist of at least a majority of all directors and
shall include at least (i) one Yahoo Designee, for so long as Yahoo has
designated a director; (ii) one Management Member Designee, for so long
as the Management Members have designated a director and (iii) one
SOFTBANK Designee, for so long as SOFTBANK has designated a director, in each
case in accordance with Section 2.3. 
Resolutions of the Board and its committees (if any) shall be adopted by
a


 


12





















 


majority of the members
of the Board and such committees, except as otherwise expressly provided in this
Agreement.  Any director may call a
special meeting of the Board.


 


2.7  Indemnification.


 


(a)  The Company
shall indemnify and hold harmless each director designated pursuant to Section
2.3 (each an “Indemnitee”) who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that he is or was a director of the Company, or is or was a
director of the Company serving at the request of the Company as a director of
another company, partnership, joint venture, trust, employee benefit plan or
other entity or enterprise, to the fullest extent permitted by Law against all
expenses, costs and obligations (including, without limitation, attorneys’
fees, experts’ fees, court costs, retainers, transcript fees, duplicating,
printing and binding costs, as well as telecommunications, postage and courier
charges) (“Expenses”), damages, judgments, fines, penalties, excise
taxes and amounts paid in settlement (including all interest, assessments and
other charges paid or payable in connection with or in respect of such
expenses, judgments, fines, penalties, excise taxes or amounts paid in
settlement) actually and reasonably incurred by him or her in connection with
such action, suit or proceeding (“Indemnifiable Amounts”) if he or she
acted in good faith and in the best interests of the Company in accordance with
his or her fiduciary duty to the Company.


 


(b)  If so
requested by Indemnitee, the Company may advance any and all Expenses incurred
by Indemnitee, either by (i) paying such Expenses on behalf of
Indemnitee, or (ii) reimbursing Indemnitee for such Expenses.


 


(c)  If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the Expenses or other Indemnifiable
Amounts in respect of a claim but not, however, for all of the total amount
thereof, the Company shall indemnify Indemnitee for the portion thereof to
which Indemnitee is entitled.


 


(d)  For
purposes of this Agreement, the termination of any claim, action, suit or
proceeding, by judgment, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable Law.


 


(e)  The rights
of the Indemnitee hereunder shall be in addition to any other rights Indemnitee
may have under the Memorandum and Articles or otherwise.  To


 


13





















 


the extent that a change
in applicable Law permits greater indemnification by agreement than would be
afforded currently under the Memorandum and Articles, it is the intent of the
parties hereto that Indemnitee shall enjoy by this Agreement the greater
benefits so afforded by such change.


 


(f)  Indemnitees
are expressly meant to be third-party beneficiaries of this Section 2.7.


 


2.8  Participation in Meetings; Notice.  Members of the Board or any committee thereof
shall be afforded the opportunity to, and may participate in a meeting of the
Board or such committee by means of conference telephone, videoconference or
similar communications equipment by means of which all persons participating in
the meeting can hear each other and participation in a meeting pursuant to this
provision shall constitute presence in person at such meeting.  A resolution in writing (in one or more
counterparts), and signed by all the directors for the time being or all the
members of a committee of directors (an alternate director being entitled to
sign such resolution on behalf of his appointor) shall be as valid and
effective as if it had been passed at a meeting of the directors or committee,
as the case may be, duly convened and held. 
Subject to the next sentence, all meetings of the Board shall be held
upon at least three Business Days’ notice to all directors and to each
Shareholder entitled to designate a director. 
Notice of a meeting need not be given to any director who signs a waiver
of notice or a consent to holding the meeting or an approval of the minutes
thereof, whether before or after the meeting, or who attends (by whatever
permitted means) the meeting without protesting, prior to its commencement, the
lack of notice to such director.  All
such waivers, consents and approvals shall be filed with the Company records or
made a part of the minutes of the meeting. 
Meetings of the Board may be held at any place which has been designated
in the notice of the meeting or at such place as may be approved by the Board.


 


2.9  Determination of Share Ownership.  Throughout this Agreement, for purposes of
determining the number or percentage of Equity Securities owned (“owned”),
(a) with respect to Yahoo, such number or percentage shall include any
Equity Securities owned by Yahoo or any of Yahoo’s wholly-owned Subsidiaries
(including, for the avoidance of doubt, the Voting Agreement Shares), (b)
with respect to SOFTBANK, such number or percentage shall include any Equity
Securities held by any of SOFTBANK’s wholly-owned Subsidiaries or any SOFTBANK
Affiliate and (c) with respect to each Management Member, such number or
percentage shall include any Equity Securities held by any of such member’s
Family Members, trusts formed by such member for the benefit of himself or his
Family Members, family limited partnerships and other entities formed for the
sole benefit of such Management Member and his Family Members.  All numbers contained herein shall be
adjusted appropriately for stock splits, stock dividends, reverse splits,
recombinations and the like.


 


14





















 


3.             Matters that Require Approval of the Board or
Shareholders.


 


3.1  Matters that Require Approval of the
Majority of the Board.  Except with
the prior approval of at least a majority of the directors at a meeting of the
Board, the Company will not, and none of the Company’s Subsidiaries will, take
any of the following actions:


 


(a)  subject to
Section 8.2, appoint or remove the Chief Executive Officer of the Company;


 


(b)  approve the
annual strategic plan and budget of the Company or make or commit to material
expenditures or activities outside of that plan and budget;


 


(c)  materially
change, amend or modify the scope of the Company’s operations or business (including, for the avoidance of
doubt, the actions set forth in Section 3.3(c) hereof);


 


(d)  enter into
any transaction or series of related transactions involving the disposition,
sale or other transfer of the assets (including securities of Subsidiaries) or
properties of the Company or any of its Subsidiaries in an amount exceeding
US$10 million in a single transaction or series of related transactions or
US$50 million on an aggregate basis, within any twelve (12) month period;


 


(e)  enter into
any transaction or series of related transactions involving the purchase or
acquisition of assets (including securities of Subsidiaries) or properties in
an amount exceeding US$10 million in a single transaction or series of related
transactions or US$50 million on an aggregate basis, within any twelve (12)
month period;


 


(f)  incur any
Indebtedness or provide Guarantees in an amount exceeding US$10 million in a
single transaction or series of related transactions or US$50 million on an
aggregate basis, within any twelve (12) month period (exclusive of the
Indebtedness and Guarantees that have been included in the budget approved by
the Board);


 


(g)  issue any
Equity Securities of the Company other than Senior Equity Securities;


 


(h)  appoint or
terminate the Company’s auditors;


 


(i)  declare or
pay any dividend or make any distribution on or with respect to the Equity
Securities (including, without limitation, by way of repurchase); or


 


15





















 


(j)  make any
filing for the appointment of a receiver or administrator for the winding up,
liquidation, bankruptcy or insolvency of the Company or any of its Subsidiaries
or otherwise pursue bankruptcy or insolvency proceedings, unless otherwise
required by applicable Law.


 


3.2  Matters that Require Approval of the
Majority of the Board Including Yahoo Designee.  For so long as Yahoo has the right to
designate at least one Yahoo Designee, except with the prior approval of at
least a majority of the directors, including the Yahoo Designee if any, at a
meeting of the Board, the Company will not, and none of the Company’s
Subsidiaries will, take any of the following actions:


 


(a)  incur any
Indebtedness or provide Guarantees in an amount exceeding US $100 million in a
single transaction or US$ 175 million on an aggregate basis, within any twelve
(12) month period; or


 


(b)  issue any
Senior Equity Securities that are senior to the Equity Securities held by
Yahoo.


 


3.3  Matters that Require the Approval of Yahoo.  Except with the prior written approval of
Yahoo, the Company will not take any of the following actions:


 


(a)  amend or
modify the Memorandum and Articles, other than in the manner and for the
purposes contemplated in Section 2.4 hereof;


 


(b)  increase or
decrease the number of directors of the Board, other than pursuant to Sections
2.3, 2.4 and 2.5(d) hereof; or


 


(c)  expand into or enter a new line of business
outside of the Territory, which new line of business is (i) outside
the scope of the existing scope of business of the Company as such business
exists immediately before the closing under the Purchase and Contribution
Agreement without giving effect to the transactions contemplated thereby or (ii) an
Internet-based consumer business (other than a peer-to-peer payments business
and auctions business (which shall not be subject to such approval));


 


provided, however, that (i)
the approval right of Yahoo under paragraph (a) of this Section 3.3 shall
terminate in the event Yahoo ceases to own at least fifteen percent (15%) of
the issued and outstanding voting shares of the Company; and (ii) the
approval right of Yahoo under paragraphs (b) and (c) of this Section 3.3
shall terminate in the event Yahoo ceases to own at least one-third of the
number of the Equity Securities Yahoo owns as of the Closing Date.


 


3.4  Matters that Require Approval of Each of
Yahoo, the Management Members’ Representative and SOFTBANK.  Except with the prior written approval of


 


16





















 


each of Yahoo, SOFTBANK
and the Management Members’ Representative, the Company will not, and none of
the Company’s Subsidiaries will, take any of the following actions:


 


(a)  enter into
any disposition transactions relating to any of the Company’s Core Businesses;
or


 


(b)  enter into
any Change of Control Transactions with any party that is not also a party to
this Agreement,


 


provided, however, that (i)
the approval right of Yahoo under this Section 3.4 shall terminate in the event
Yahoo ceases to own at least one-third of the number of the Equity Securities
Yahoo owns as of the Closing Date; (ii) the approval right of the
Management Members’ Representative under this Section 3.4 shall terminate in
the event the Management Members cease to own in the aggregate at least
one-third of the number of the Equity Securities the Management Members own in
the aggregate as of the Closing Date; and (iii) the approval right of
SOFTBANK under this Section 3.4 shall terminate in the event SOFTBANK ceases to
own at least fifty percent (50%) of the number of the Equity Securities
SOFTBANK owns as of the Closing Date.


 


3.5  Matters that Require Approval of Disinterested
Directors of the Board.  Except (a)
with the prior approval of a majority of the disinterested directors of the
Board or (b) pursuant to this Agreement, the Company will not, and none
of the Company’s Subsidiaries will, enter into or engage in any transaction or
agreement to which the Company or any of the Company’s Subsidiaries, on the one
hand, and any of the Shareholders or any of their respective Subsidiaries,
Affiliates or Family Members, on the other hand, are parties or receive any
direct or indirect economic or other benefit (except to the extent of their pro
rata share in a benefit accruing to all holders of Ordinary Shares).


 


3.6  Formation and Assignment of Authority to a
Committee of the Board.  The Board
shall establish any committees as it deems necessary or appropriate, but only
with the approval of at least one Yahoo Designee, one Management Member
Designee and the SOFTBANK Designee.  Each
such committee shall consist of at least one Yahoo Designee, one Management
Member Designee and the SOFTBANK Designee. 
Each such committee shall exercise those powers of the Board delegated
to it by the Board.  In the event the
Company is required by the rules of an internationally recognized stock
exchange or quotation system on which the Company will list its Ordinary Shares
upon the IPO to expand or otherwise reconstitute the number of members on the
Board’s committees or otherwise reconstitute such committees in order to comply
with independence or other comparable requirements of such exchange or quotation
system, the directors of the Board shall vote in favor of such expansion or
reconstitution so as to comply with the requirements of such rules.


 


17





















 


4.             Restrictions
on Share Transfer.


 


4.1  Restrictions on Transfer.


 


(a)  No
Shareholder shall Transfer any Equity Securities it owns within the one-year
period beginning on the Closing Date.  In
addition, no Shareholder shall Transfer any Equity Securities to a Yahoo
Competitor without the prior written approval of Yahoo, provided, however,
that following the completion of the IPO, a Shareholder shall be permitted,
subject to Section 4.3, to Transfer Equity Securities from time to time in (i)
block trades or otherwise on the open market (whether pursuant to Rule 144 or
otherwise), provided that such Shareholder does not know or have reason
to believe that the purchaser of such Equity Securities is a Yahoo Competitor
and that any such Transfer is not done with the intent, directly or indirectly,
to Transfer such Equity Securities to a Yahoo Competitor or the knowledge that
the purchaser of such Equity Securities is a Yahoo Competitor; provided,
further, that if such sale is to be made in a block trade to a financial
institution who will resell such Equity Securities (x) prior to closing
such trade, such Shareholder shall obtain the agreement of such financial
institution not to sell such Equity Securities to any Yahoo Competitor which
agreement shall name Yahoo as a third-party beneficiary entitled to enforce
such provision and (y) notwithstanding anything contained herein to the
contrary, if the Shareholder obtains such agreement from the financial
institution, such Shareholder shall be conclusively presumed to have
Transferred such Equity Securities in compliance with this Section 4.1(a) or (ii) on
any primary securities exchange or quotation system by or through which such
Equity Securities are traded.


 


(b)  The Yahoo
Competitors to whom a Shareholder may not Transfer any Equity Securities,
except as provided in Section 4.1(a) hereof, shall be listed on Schedule B
hereto.  The list of Yahoo Competitors,
which shall number no more than (i) fifteen (15) on or prior to the
closing of an IPO, and (ii) eight (8) following the closing of an IPO,
on Schedule B hereto, may be updated by Yahoo no more than once every six
months.  In addition, at the Company’s
request in connection with a proposed IPO, Yahoo shall promptly revise the list
of Yahoo Competitors to implement a reduction in number of listed entities
fifteen (15) to eight (8), effective upon the closing of the IPO.  For the avoidance of doubt, the list of Yahoo
Competitors for purposes of any sale as to which an Offer Notice has been
provided to Yahoo pursuant to Section 4.3(a) shall be fixed as of the date of
such notice, and no subsequent change in the list of Yahoo Competitors will
limit or otherwise affect in any respect the ability of another Shareholder of
the Company to consummate such sale.


 


4.2  Certain Permitted Transfers.  Subject to Section 4.1, each of Yahoo, the
Management Members and SOFTBANK may Transfer its Equity Securities to its
direct or indirect wholly-owned Subsidiaries (or Family Members in case of
Management Members) at any time; provided, however, that any such
transferee shall at all times


 


18





















 


continue to be a direct
or indirect wholly-owned Subsidiary of such Person (if not an individual) and
that such transferee becomes a party to this Agreement pursuant to an
instrument satisfactory to each of the Management Members’ Representative,
Yahoo and SOFTBANK.  Subject to Section
4.1, SOFTBANK may Transfer Equity Securities to a SOFTBANK Affiliate; provided,
however, that 20 Business Days prior to such Transfer SOFTBANK shall
provide written notice to Management Members’ Representative and Yahoo of such
intent to Transfer, and the name and such other details concerning such
SOFTBANK Affiliate as Yahoo or the Company may reasonably request; and provided
further, that any such transferee shall at all times continue to be a
SOFTBANK Affiliate and that such transferee shall become a party to this
Agreement pursuant to an instrument satisfactory to both the Management Members’
Representative and Yahoo.


 


4.3  Right of First Offer.  Subject to Section 4.1 and Section 7.1, and
except as otherwise allowed under Section 4.2, no Shareholder (the “Transferor”)
may, at any time, Transfer any Equity Securities legally or beneficially held
by it, except pursuant to the following provisions:


 


(a)  Prior to
consummating any such Transfer of the Equity Securities, the Transferor shall
deliver a written notice (the “Offer Notice”) to each other Shareholder
(the “Offerees”), setting forth its bona fide intention to Transfer
Equity Securities to a third party, the number of Equity Securities to be
Transferred (the “Subject Shares”), the price at which such Transferor
wishes to sell the Subject Shares (the “Offer Price”), and any other
terms of the offer.


 


(b)  The Offer
Notice shall constitute, for a period of 15 days from the date on which it
shall have been deemed given, an irrevocable and exclusive offer to sell to
each Offeree (or any direct or indirect wholly-owned Subsidiary designated by
an Offeree), at the Offer Price, a portion of the Subject Shares not greater
than the proportion that the number of Equity Securities owned by such Offeree
(and all Affiliates thereof) bears to the total number of Equity Securities
owned by all the Offerees (and Affiliates thereof).


 


(c)  Each
Offeree (or a designated direct or indirect wholly-owned Subsidiary thereof)
may accept the offer set forth in an Offer Notice by giving notice to the
Transferor, prior to the expiration of such offer, specifying the maximum
number of the Subject Shares that the Offeree wishes to purchase.


 


(d)  If one or
more Offerees do not agree to purchase all of the Subject Shares to which such
Offerees are entitled (such shares not purchased, the “Offeree Remaining
Shares” and together with Offeree Remaining Shares of all other Offerees,
the “Aggregate Remaining Shares”), the Transferor shall promptly so
notify each Offeree that has agreed to purchase all of the Subject Shares so
entitled (each a “Second Round Offeree”), such notice to constitute an
offer to sell, irrevocable for fifteen (15) days, to


 


19





















 


each such Offeree, at the
Offer Price, a portion of the Aggregate Remaining Shares not greater than the
proportion that the number of Equity Securities owned by such the Second Round
Offeree bears to the total number of Equity Securities owned by all of the
Second Round Offerees.  Each Second Round
Offeree shall notify the Transferor, prior to the expiration of such offer,
specifying the number of Aggregate Remaining Shares that such Offeree agrees to
purchase.


 


(e)  If the
Offerees in the aggregate agree to purchase any or all of the Subject Shares
pursuant to this Section 4.3, they shall pay in cash or immediately available
funds for and the Transferor shall deliver valid title to, free and clear of
any Lien, such Subject Shares, subject to receipt of any necessary or advisable
third party approvals or any Governmental Approvals, within fifteen (15) days
following completion of the procedures set forth in subsection (b) and (d)
hereof.


 


(f)  If the
offers made by the Transferor to the Offerees pursuant to subsections (b) and
(d) hereof expire without an agreement by one or more Offerees to purchase all
of the Subject Shares, the Transferor shall have sixty (60) days to enter into
a definitive agreement with respect to such Transfer and ninety (90) days to
effect the Transfer of the balance of the Subject Shares to any third party or
parties, for cash, at a price not less than the Offer Price, and upon terms not
otherwise more favorable to the transferee or transferees than those specified
in the Offer Notice, subject to the execution and delivery by such third party
of an assignment and assumption agreement, in form and substance satisfactory
to the other Shareholders, pursuant to which such third party shall assume all
of the obligations of a party pursuant to or under this Agreement.  In the event such Transfer is not consummated
within such ninety (90) day period, the Transferor shall not be permitted to
sell its Equity Securities pursuant to this Section 4.3 without again complying
with each of the requirements of this Section 4.3; provided, that such
ninety (90) day period should be extended automatically as necessary (i)
to apply for and obtain any Governmental Approvals that are required to
consummate such Transfer, so long as the Transferor is making good faith
efforts to obtain such Governmental Approvals as soon as practicable in
accordance with applicable Law and (ii) 
in the event that Section 4.4, 4.5, 4.6 or 4.7 applies, to complete the
procedure as provided therein.  If there
is such extension, the relevant period will end on the fifth Business Day
following the receipt of such Governmental Approvals.


 


(g)  The
provisions of this Section 4.3 shall continue to be effective following the
completion of an IPO; provided that, following the completion of the
IPO, (i) this Section 4.3 shall not apply to any sale of any Equity Securities
on the primary securities exchange or quotation system by or through which such
Equity Securities are traded, by any Management Member in an amount generating
gross sale proceeds to such Management Member of not more than US$1.0 million
during any twelve-month period, and (ii) if the proposed Transfer would
be a block trade or otherwise on the open market (whether pursuant to Rule 144
or otherwise), including without limitation a block trade to


 


20





















 


a financial institution
who will resell such Equity Securities as described in Section 4.1(a),
then (x) the Offer Notice shall set forth the Transferor’s intention to
sell on the open market in addition to the matters required to be set forth
pursuant to Section 4.3(a) and (y) notwithstanding anything to the
contrary in Sections 4.3(b) and (c), an Offeree’s notice setting forth its intention
to accept the offer must be delivered to the Transferor within seventy-two
hours of receipt of the Offer Notice, and if an Offeree fails to deliver such
notice within such period, the Offering Notice given to such Offeree shall
expire upon expiration of such period and (z) Section 4.3(d) shall not
apply.


 


(h)  Notwithstanding
the foregoing, and whether or not an IPO is completed, each Shareholder’s right
of first offer set forth in this Section 4.3 shall terminate in the event such
Shareholder ceases to own at least 50% of the Equity Securities owned by such
Shareholder as of the Closing Date.


 


4.4  Tag-Along Rights of Financial Investors.  Subject to Section 4.1 and except as
otherwise allowed under Section 4.2, neither Yahoo nor SOFTBANK may Transfer
80% or more of the Equity Securities then owned by it (in a single transaction
or a series of related transactions), except pursuant to the following
procedures:


 


(a)  At least
thirty (30) days prior to making such Transfer (each such Transfer, “Qualifying
Sale”), Yahoo or SOFTBANK (as the case may be), together with their
wholly-owned Subsidiaries or SOFTBANK Affiliates, as applicable (the “Transferring
Shareholder”) shall deliver a written notice (the “Sale Notice”) to
each of the Financial Investors.  The
Sale Notice shall set forth in reasonable detail (i) the identity of the
prospective transferee (the “Purchaser”), (ii) the number of
Equity Securities to be purchased by the Purchaser (such shares, the “Sale
Shares”), (iii) the price (the “Sale Price”) per share of the
Sale Shares, (iv) the proposed closing date and time of such Transfer, (v)
the number of Equity Securities owned by the Transferring Shareholder on the
date of the Sale Notice and (vi) any other material terms and conditions
of the proposed Transfer.  If, after
delivery of any Sale Notice, any term set forth in clauses (i) through (vi) of
the preceding sentence should change in any material respect, the Transferring
Shareholder shall deliver a new Sale Notice incorporating such changed terms,
and the provisions of this Section 4.4 shall apply in all respects to such
revised Sale Notice.


 


(b)  Each
Financial Investor shall have the right to participate in the Qualifying Sale
and to request to sell to the Purchaser, and the Transferring Shareholder shall
upon the request of such Financial Investor request that the Purchaser to
purchase from such Financial Investor, on the same terms and conditions offered
to the Transferring Shareholder by the Purchaser at the Sale Price, a number of
Equity Securities up to (i) the number of the Sale Shares multiplied by
(ii) a fraction, the numerator of which shall be the aggregate number of Equity
Securities owned by such Financial Investor on the date of the Sale Notice and
the denominator of which shall be


 


21





















 


the number of Equity
Securities owned in the aggregate by the Transferring Shareholder and all the
Financial Investors on the date of the Sale Notice.


 


(c)  Each of the
Financial Investors may exercise its tag-along rights under this Section 4.4 by
delivering an irrevocable written notice to the Transferring Shareholder and
the Company no later than thirty (30) days after receipt of the Sale Notice
(including without limitation, a revised Sale Notice contemplated by Section
4.4(a)) setting forth the number of Equity Securities it elects to sell in the
Qualifying Sale.  No exercise of rights
with respect to a Sale Notice shall bind any Financial Investor with respect to
any subsequent related revised Sale Notice served on such Financial Investor
pursuant to the last sentence of Section 4.4(a).


 


(d)  If any or
all of the Financial Investors have elected to exercise their tag-along rights
hereunder pursuant to Section 4.4(c) above, the Transferring Shareholder shall
not consummate any Qualifying Sale unless the Purchaser shall have concurrently
purchased from such Financial Investors the number of Equity Securities as set
forth in the written notice from the Financial Investors as provided in Section
4.4(c) above, on the same date and at the price described under Section 4.4(b)
and, on the same terms and conditions and such other terms and conditions as
may be required by applicable Law to allow such Financial Investors to sell
their Equity Securities to the Purchaser. 
In any event, subject to receipt of any necessary or advisable third
party approvals or Governmental Approvals, the closing shall occur within sixty
(60) days of the receipt of the Sale Notice, provided, that if any
revised Sale Notice is delivered as contemplated by the last sentence of
Section 4.4(a) then the closing shall occur within sixty (60) days of the
receipt of the last such revised Sale Notice.


 


4.5  Tag-Along Rights of Yahoo.  Subject to Section 4.1 and except as
otherwise allowed under Section 4.2, the Management Members (as a group and
including any Equity Securities owned by any of such member’s Family Members,
trusts formed by such member for the benefit of himself or his family member,
and other comparable entities) and SOFTBANK may not, together, Transfer 80% or
more of their  collective legal or
beneficial ownership interest in the Equity Securities owned by them in a
single transaction or series of related transactions, except pursuant to the
following procedures:


 


(a)  At least thirty
(30) days prior to making such Transfer (an “M&S Sale”), the
Management Members and SOFTBANK or their wholly-owned Subsidiaries or SOFTBANK
Affiliates (as the case may be) (the “M&S Transferors”) shall
deliver a written notice (the “M&S Sale Notice”) to Yahoo.  The M&S Sale Notice shall set forth in
reasonable detail (i) the identity of the prospective transferee (the “M&S
Purchaser”), (ii) the number of Equity Securities to be
purchased by the M&S Purchaser (such shares, the “M&S Sale Shares”),
(iii) the price (the “M&S Sale Price”) per share of the
M&S Sale Shares, (iv) the proposed closing date and time of such
Transfer, (v) the number of


 


22





















 


Equity Securities owned
by the M&S Transferors on the date of the M&S Sale Notice and (vi)
any other material terms and conditions of the proposed Transfer.  If, after delivery of any M&S Sale
Notice, any term set forth in clauses (i) through (vi) of the preceding
sentence should change in any material respect, the M&S Transferors shall
deliver a new M&S Sale Notice incorporating such changed terms, and the
provisions of this Section 4.5 shall apply in all respects to such revised
M&S Sale Notice.


 


(b)  Yahoo shall
have the right to participate in the M&S Sale and to request to sell to the
M&S Purchaser, and the M&S Transferors shall upon the request of Yahoo
request that the M&S Purchaser purchase from Yahoo, on the same terms and
conditions offered to the M&S Transferors by the M&S Purchaser at the
M&S Sale Price, a number of Equity Securities up to (i) the
aggregate number of Equity Securities owned by Yahoo on the date of the M&S
Sale Notice, multiplied by (ii) a fraction, the numerator of which shall
be the number of the M&S Sale Shares and the denominator of which shall be
the number of Equity Securities owned in the aggregate by the M&S
Transferors and Yahoo on the date of the M&S Sale Notice.


 


(c)  Yahoo may
exercise its tag-along rights under this Section 4.5 by delivering an
irrevocable written notice to the M&S Transferor and the Company no later
than thirty (30) days after receipt of the M&S Sale Notice (including
without limitation, a revised M&S Sale Notice contemplated by Section
4.5(a)) setting forth of the number of Equity Securities it elects to sell in
the M&S Sale.  No exercise of rights
with respect to an M&S Sale Notice shall bind Yahoo with respect to any
subsequent related revised M&S Sale Notice served on Yahoo pursuant to the
last sentence of Section 4.5(a).


 


(d)  If Yahoo
has elected to exercise its tag-along rights hereunder pursuant to Section
4.5(c) above, the M&S Transferor shall not consummate any M&S Sale
unless the M&S Purchaser shall have concurrently purchased from Yahoo the
number of Equity Securities as set forth in the written notice from Yahoo as
provided in Section 4.5(c) above, on the same date and at the price described
under Section 4.5(b) and on the same terms and conditions and such other terms
and conditions as may be required by applicable Law to allow Yahoo to sell its
Equity Securities to the M&S Purchaser. 
In any event, subject to receipt of any necessary or advisable third
party approvals or Governmental Approvals, the closing shall occur within sixty
(60) days of the receipt of the M&S Sale Notice, provided, that if
any revised M&S Sale Notice is delivered as contemplated by the last
sentence of Section 4.5(a) then the closing shall occur within sixty (60) days
of the receipt of the last such revised M&S Sale Notice.


 


4.6  Tag-Along Rights of the Management Members.  Subject to Section 4.1 and except as
otherwise allowed under Section 4.2, Yahoo and SOFTBANK may not, together,
Transfer 80% or more of their collective legal or beneficial ownership interest
in the Equity Securities owned by them in a single transaction or series of
related transactions, except pursuant to the following procedures:


 


23





















 


(a)  At least
thirty (30) days prior to making such Transfer (a “Y&S Sale”), Yahoo
and SOFTBANK or their wholly-owned Subsidiaries or SOFTBANK Affiliates (as the
case may be) (the “Y&S Transferors”) shall deliver a written notice
(the “Y&S Sale Notice”) to the Management Members’
Representative.  The Y&S Sale Notice
shall set forth in reasonable detail (i) the identity of the prospective
transferee (the “Y&S Purchaser”), (ii) the number of Equity
Securities to be purchased by the Y&S Purchaser (such shares, the “Y&S
Sale Shares”), (iii) the price (the “Y&S Sale Price”) per
share of the Y&S Sale Shares, (iv) the proposed closing date and
time of such Transfer, (v) the number of Equity Securities owned by the
Y&S Transferors on the date of the Y&S Sale Notice and (vi) any
other material terms and conditions of the proposed Transfer.  If, after delivery of any Y&S Sale
Notice, any term set forth in clauses (i) through (vi) of the preceding
sentence should change in any material respect, the Y&S Transferors shall
deliver a new Y&S Sale Notice incorporating such changed terms, and the
provisions of this Section 4.6 shall apply in all respects to such revised
Y&S Sale Notice.


 


(b)  Each of the
Management Members shall have the right to participate in the Y&S Sale and
to request in accordance with Section 4.6(c), to sell to the Y&S
Purchaser, and the Y&S Transferors shall upon the request of such
Management Member in accordance with Section 4.6(c), request that the
Y&S Purchaser purchase from such Management Member, on the same terms and
conditions offered to the Y&S Transferors by the Y&S Purchaser at the
Y&S Sale Price, a number of Equity Securities up to (i) the
aggregate number of Equity Securities owned by such Management Member on the
date of the Y&S Sale Notice, multiplied by (ii) a fraction, the
numerator of which shall be the number of the Y&S Sale Shares and the
denominator of which shall be the number of Equity Securities owned in the
aggregate by the Y&S Transferors and such Management Member on the date of
the Y&S Sale Notice.


 


(c)  Each
Management Member may exercise such Management Member’s tag-along rights under
this Section 4.6 by delivering an irrevocable written notice through the
Management Members’ Representative, to the Y&S Transferor and the Company
no later than thirty (30) days after receipt of the Y&S Sale Notice
(including without limitation, a revised Y&S Sale Notice contemplated by
Section 4.6(a)) setting forth the number of Equity Securities it elects to sell
in the Y&S Sale.  No exercise of
rights with respect to a Y&S Sale Notice shall bind such Management Member
with respect to any subsequent related revised Y&S Sale Notice served on
the Management Members’ Representative pursuant to the last sentence of Section
4.6(a).


 


(d)  If any
Management Member has elected to exercise their tag-along rights hereunder
pursuant to Section 4.6(c) above, the Y&S Transferor shall not consummate
any Y&S Sale unless the Y&S Purchaser shall have concurrently purchased
from such Management Member the number of Equity Securities as set forth in the
written notice from such Management Member given through the Management


 


24





















 


Members’ Representative
as provided in Section 4.6(c) above, on the same date and at the price
described under Section 4.6(b) and on the same terms and conditions and such
other terms and conditions as may be required by applicable Law to allow such
Management Member to sell its Equity Securities to the Y&S Purchaser.  In any event, subject to receipt of any
necessary or advisable third party approvals or Governmental Approvals, the
closing shall occur within sixty (60) days of the receipt of the Y&S Sale
Notice, provided, that if any revised Y&S Sale Notice is delivered
as contemplated by the last sentence of Section 4.6(a) then the closing shall
occur within sixty (60) days of the receipt of the last such revised Y&S
Sale Notice.


 


4.7  Tag-Along Rights of SOFTBANK.  Subject to Section 4.1 and except as
otherwise allowed under Section 4.2, the Management Members (as a group and
including any Equity Securities owned by any of such member’s Family Members,
trusts formed by such member for the benefit of himself or his family member,
and other comparable entities) and Yahoo may not, together, Transfer 80% or
more of their collective legal or beneficial ownership interest in the Equity
Securities owned by them in a single transaction or series of related
transactions, except pursuant to the following procedures:


 


(a)  At least
thirty (30) days prior to making such Transfer (an “M&Y Sale”), the
Management Members and Yahoo or their wholly-owned Subsidiaries (as the case
may be) (the “M&Y Transferors”) shall deliver a written notice (the “M&Y
Sale Notice”) to SOFTBANK.  The
M&Y Sale Notice shall set forth in reasonable detail (i) the
identity of the prospective transferee (the “M&Y Purchaser”), (ii)
the number of Equity Securities to be purchased by the M&Y Purchaser (such
shares, the “M&Y Sale Shares”), (iii) the price (the “M&Y
Sale Price”) per share of the M&Y Sale Shares, (iv) the proposed
closing date and time of such Transfer, (v) the number of Equity
Securities owned by the M&Y Transferors on the date of the M&Y Sale
Notice and (vi) any other material terms and conditions of the proposed
Transfer.  If, after delivery of any
M&Y Sale Notice, any term set forth in clauses (i) through (vi) of the
preceding sentence should change in any material respect, the M&Y
Transferors shall deliver a new M&Y Sale Notice incorporating such changed
terms, and the provisions of this Section 4.7 shall apply in all respects to
such revised M&Y Sale Notice.


 


(b)  SOFTBANK
shall have the right to participate in the M&Y Sale and to request to sell
to the M&Y Purchaser, and the M&Y Transferors shall upon the request of
SOFTBANK request that the M&Y Purchaser purchase from SOFTBANK, on the same
terms and conditions offered to the M&Y Transferors by the M&Y
Purchaser at the M&Y Sale Price, a number of Equity Securities up to (i)
the aggregate number of Equity Securities owned by SOFTBANK on the date of the
M&Y Sale Notice, multiplied by (ii) a fraction, the numerator of
which shall be the number of the M&Y Sale Shares and the denominator of
which shall be the number of Equity Securities owned in the


 


25





















 


aggregate by the M&Y
Transferors and SOFTBANK on the date of the M&Y Sale Notice.


 


(c)  SOFTBANK
may exercise its tag-along rights under this Section 4.7 by delivering an
irrevocable written notice to the M&Y Transferor and the Company no later
than thirty (30) days after receipt of the M&Y Sale Notice (including
without limitation, a revised M&Y Sale Notice contemplated by Section
4.7(a)) setting forth the number of Equity Securities it elects to sell in the
M&Y Sale.  No exercise of rights with
respect to an M&Y Sale Notice shall bind SOFTBANK with respect to any
subsequent related revised M&Y Sale Notice served on SOFTBANK pursuant to
the last sentence of Section 4.7(a).


 


(d)  If SOFTBANK
has elected to exercise its tag-along rights hereunder pursuant to Section
4.7(c) above, the M&Y Transferor shall not consummate any M&Y Sale
unless the M&Y Purchaser shall have concurrently purchased from SOFTBANK
the number of Equity Securities as set forth in the written notice from
SOFTBANK as provided in Section 4.7(c) above, on the same date and at the price
described under Section 4.7(b) and, on the same terms and conditions and such
other terms and conditions as may be required by applicable Law to allow
SOFTBANK to sell its Equity Securities to the M&Y Purchaser.  In any event, subject to receipt of any
necessary or advisable third party approvals or Governmental Approvals, the
closing shall occur within sixty (60) days of the receipt of the M&Y Sale
Notice, provided, that if any revised M&Y Sale Notice is delivered
as contemplated by the last sentence of Section 4.7(a) then the closing shall
occur within sixty (60) days of the receipt of the last such revised M&Y
Sale Notice.


 


4.8  Survival of Rights.  The tag-along rights described in Sections
4.4 through 4.7 shall terminate upon the completion of the IPO.


 


4.9  Transfers in Violation of this Agreement.  Any Transfer or attempted Transfer of any
Equity Securities in violation of this Agreement shall be void, no such
Transfer shall be recorded on the Company’s register of members and the
purported transferee in any such Transfer shall not be treated (and the
purported transferor shall be treated) as the owner of such Equity Securities
for all purposes.


 


4.10  Financial Investors.  The Financial Investors and their
wholly-owned Subsidiaries and investment funds are intended to be third-party
beneficiaries of Sections 4.4 and 4.8 and the Financial Investors and such
wholly-owned Subsidiaries and investment funds shall be entitled to enforce their
respective rights as such under this Agreement.


 


26





















 


5.             Voting
Agreement.


 


5.1  Voting of Shares.  Yahoo hereby agrees that, during the period
from the date hereof until the earliest of (a) the date on which the
Company or JM waives any of the provisions of the standstill arrangement as set
forth in Section 8.1 hereof, (b) the consummation of an IPO, (c)
the fifth anniversary of the Closing, (d) JM ceasing to be CEO or a
comparable executive officer of the Company, (e) JM ceasing to own at
least 1% of the outstanding Ordinary Shares on a Fully Diluted Basis, (f)
such time as the Voting Agreement Shares is reduced to or below zero, and (g)
the Management Members’ Representative notifying Yahoo and the Company of its
election to terminate this Section 5, Yahoo (in its capacity as a
Shareholder) will appear at any Shareholders meeting or otherwise cause the
Voting Agreement Shares to be counted as present thereat for purposes of
establishing a quorum and vote or consent (or cause to be voted) the Voting
Agreement Shares as directed in writing by the Management Members’
Representative not less than five Business Days before the meeting is held or
consent is executed.  At any general
meeting, the chairman of the meeting may deem the votes attached to the Voting
Agreement Shares to have been voted in accordance with this Article.


 


5.2  No Other Agreements.  Yahoo may not enter into any agreement or
understanding with any person the effect of which would be inconsistent with or
violative of any provision contained in this Section 5.


 


5.3  Voting Agreement Shares.  For purposes of this agreement, the term “Voting
Agreement Shares” shall mean the number of Ordinary Shares equal to (i)
the difference between the Yahoo Economic Interest Percentage as of the Closing
Date and 35% (ii) multiplied by the issued and outstanding Ordinary
Shares as of the Closing Date.  The
number of Voting Agreement Shares shall never increase and shall be reduced
from time to time as follows:


 


(a)  if Yahoo
Transfers Ordinary Shares to any Person other than an Affiliate of Yahoo, then
the number of Voting Agreement Shares shall be reduced by the number so
Transferred;


 


(b)  if on any
date, the Yahoo Economic Interest Percentage on such date becomes less than the
Yahoo Economic Interest Percentage as of the Closing Date due to an increase in
the number of Ordinary Shares outstanding or otherwise, then the number of
Voting Agreement Shares shall be reduced by an amount equal to (i) the
number of Voting Agreement Shares as of such date (prior to this adjustment)
less (ii) the number of Ordinary Shares issued and outstanding as of
such date multiplied by the Yahoo Economic Interest Percentage in excess of
35%; and


 


(c)  if on any
date, the Management Member Economic Interest Percentage on such date exceeds
the Management Member Economic Interest Percentage as of the Closing, then the
number of Voting Agreement Shares shall be reduced by an


 


27





















 


amount equal to the
product of (i) the difference between (A) the Management Member Economic
Interest Percentage on such date and (B) the Management Member Economic
Interest Percentage as of the Closing, multiplied by (ii) the number of
Ordinary Shares then outstanding.


 


6.             Preemptive
Rights.


 


6.1  Preemptive Rights.


 


(a)  Subject to
the limitations set forth in Section 6.2, if the Company proposes to sell any
Equity Securities (other than Exempted Securities) (the “Additional
Securities”), including in a private placement, IPO, other public offering,
or as part of an acquisition, commercial agreement, share exchange or
otherwise, the Company shall, at least thirty (30) days prior to issuing such
Additional Securities, notify each of Yahoo, the Management Members and SOFTBANK
in writing of such proposed issuance (which notice shall specify, to the extent
practicable, the purchase price or a range for the purchase price, if any, for,
and the terms and conditions of, such Additional Securities) and shall offer to
sell such Additional Securities to each of Yahoo, the Management Members and
SOFTBANK in the amounts set forth in subclauses (c) and (d) below and subject
to Section 6.2(a), upon the terms and conditions set forth in the notice
and at the Purchase Price as provided in Section 6.1(e) (the “Preemptive
Rights”).  For purposes of
calculating the number of Additional Securities issued pursuant to this Section
6, such calculation shall include the maximum number of Ordinary Shares and
other equity interests issuable upon the conversion or exercise of any
convertible or exchangeable securities, options, warrants or other rights to
acquire, any equity interests.


 


(b)  If Yahoo,
the Management Members or SOFTBANK wishes to subscribe for a number of
Additional Securities equal to or less than the number to which they are
entitled under this section, Yahoo, the Management Members or SOFTBANK may do
so and shall, in the written notice of exercise of the offer, specify the
number of Additional Securities that they wish to purchase.


 


(c)  With
respect to Additional Securities that are Ordinary Shares, the Company shall
offer to each of Yahoo, the Management Members and SOFTBANK, all or any portion
specified by such exercising party of a number of such Additional Securities
such that, after giving effect to the proposed issuance (including the issuance
to Yahoo, the Management Members and SOFTBANK pursuant to the Preemptive Rights
and including any related issuance resulting from the exercise of preemptive
rights by any unrelated Person with respect to the same issuance that gave rise
to the exercise of Preemptive Rights by Yahoo, the Management Members and
SOFTBANK), (X) the Yahoo Economic Interest Percentage after such
issuance would equal the Yahoo Economic Interest Percentage immediately prior
to such issuance, (Y) the Management Member Economic Interest Percentage
after such issuance would equal the Management


 


28





















 


Member Economic Interest
Percentage immediately prior to such issuance and (Z) the SOFTBANK
Economic Interest Percentage after such issuance would equal the SOFTBANK
Economic Interest Percentage immediately prior to such issuance, such numbers
of Additional Securities set forth in each of (X), (Y) and (Z) to constitute
the “Preemptive Share Amount” for such party for purposes of any
exercise of Preemptive Rights to which this paragraph (c) applies.  If, at the time of the determination of any
Preemptive Share Amount under this paragraph (c), any other Person has
preemptive or other equity purchase rights similar to the Preemptive Rights,
such Preemptive Share Amount shall be recalculated to take into account the
number of Ordinary Shares such Persons have committed to purchase, rounding up
such Preemptive Share Amount to the nearest whole Ordinary Share.


 


(d)  With
respect to Additional Securities that are Other Shares, the Company shall offer
to each of Yahoo, the Management Members and SOFTBANK, all or any portion
specified by such exercising party, of a number of such securities equal to the
total number of such Additional Securities proposed to be sold, multiplied by
the Yahoo Economic Interest Percentage, the Management Member Economic Interest
Percentage or the SOFTBANK Economic Interest Percentage, as applicable, at such
time (which number shall constitute the “Preemptive Share Amount” for
purposes of any exercise of Preemptive Rights to which this paragraph (d)
applies).  If, at the time of the
determination of any Preemptive Share Amount under this paragraph (d), any other
Person has preemptive or other equity purchase rights similar to Preemptive
Rights, such Preemptive Share Amount shall be recalculated to take into account
the number of Other Shares such Persons have committed to purchase, rounding up
such Preemptive Share Amount to the nearest whole Other Share.


 


(e)  The “Purchase
Price” for the Additional Securities to be issued pursuant to the exercise
of Preemptive Rights shall be payable only in cash (unless otherwise
unanimously agreed by the Company and Yahoo, the Management Members and
SOFTBANK) and, except as otherwise set forth below, shall equal per Additional
Security the per security issuance price for the Additional Securities giving
rise to such Preemptive Right.  In the
case of any issuance of Additional Securities other than solely for cash, the
Company and Yahoo, the Management Members and SOFTBANK shall in good faith seek
to agree upon the value of the non-cash consideration; provided that the
value of any publicly traded securities shall be deemed to be the market value
of such securities as of the date of the consummation of such issuance.  If the Company and Yahoo, the Management
Members or SOFTBANK fail to agree on such value during the thirty (30) day
period contemplated by the first sentence of Section 6.3, then the Company will
refer the items in dispute to a nationally recognized investment banking firm
that is selected by the Board and reasonably acceptable to Yahoo, the
Management Members and SOFTBANK and that shall be instructed to make a final
and binding determination of the fair market value of such items within ten
(10) days of retention of such investment banking firm.  If such a determination is required, the
deadline for


 


29





















 


Yahoo’s, the Management
Members’ and SOFTBANK’s exercise of its Preemptive Rights with respect to such
issuance pursuant to Section 6.1(b) shall be extended until the fifth (5th)
Business Day following the date of such determination.  Whichever of the Company or Yahoo, the
Management Members or SOFTBANK whose last estimate differed the most from that
finally decided by the investment banking firm shall be responsible for and pay
all of the fees and expenses of such investment banking firm. All
determinations made by such investment banking firm shall be final and binding
on the Company and Yahoo, the Management Members and SOFTBANK, as applicable.


 


6.2  Limitation of Preemptive Rights.


 


(a)  In
connection with the IPO and subsequent follow-on offerings by the Company, the
foregoing Preemptive Rights shall apply only to the extent necessary to
maintain the Yahoo Economic Interest Percentage, the Management Member Economic
Interest Percentage or the SOFTBANK Economic Interest Percentage, as
appropriate, immediately following the IPO or such follow-on offering, at 87.5%
of the Yahoo Economic Interest Percentage, the Management Member Economic
Interest Percentage or the SOFTBANK Economic Interest Percentage, as
appropriate, immediately prior to the IPO or such offering.


 


(b)  The
Preemptive Rights set forth in Section 6.1 shall not apply to any issuance of
Equity Securities of the Company as consideration for the merger or acquisition
(or any similar transaction) of an operating entity (including Equity
Securities issued to holders of shares, options or other equity interests in
such entity), which transaction is not made for the purpose or effect of
avoiding the provisions of Section 6.1, if the cumulative dilutive effects of
such issuances (i) in any twelve (12) month period is less than 2% of
the Company’s Ordinary Shares, and (ii) in the aggregate for all such
issuances, less than 5% of the Company’s Ordinary Shares.


 


6.3  Exercise
Period.  The Preemptive Rights set
forth in Section 6.1 must be exercised by acceptance in writing of an offer
referred to in Section 6.1(a), (i) if prior to the IPO, within thirty
(30) days following the receipt of the notice from the Company of its intention
to sell Equity Securities, and (ii) in connection with any registered
offering (including the IPO), at least five (5) Business Days prior to the
printing of the preliminary prospectus in connection with such offering; provided,
that in the case of clauses (i) and (ii), such acceptance shall indicate a
willingness to purchase at the same per share price at which such securities
are sold to the public (less underwriting fees and discounts, which difference
shall be shared equally by the party exercising the Preemptive Rights and the
Company) and may specify a maximum and/or minimum per share price that such
offeree is willing to pay for such Equity Securities.  The closing of any purchase of Additional
Securities pursuant to the exercise by Yahoo, the Management Members or
SOFTBANK of Preemptive Rights hereunder shall occur within sixty (60) days after
delivery of the notice by the Company as provided in Section 6.1(a),


 


30





















 


subject to the receipt of
any necessary Governmental Approvals to which the issuance of Additional
Securities is subject, provided, that such sixty (60) day period shall
be extended automatically as necessary to apply for and obtain any Governmental
Approvals that are required to consummate such purchase, so long as the
purchaser is making good faith efforts to obtain such Governmental Approvals as
soon as practicable in accordance with applicable Law.  If there is any such extension, the relevant
period will end on the fifth Business Day following the receipt of such
Governmental Approvals.


 


6.4  Survival of Rights.  The provisions set forth in Section 6.1 shall
continue to be effective following the IPO, provided, that,
notwithstanding the occurrence of an IPO, each Shareholder’s Preemptive Right
set forth in Section 6.1 shall terminate in the event such Shareholder ceases
to own at least 50% of the Equity Securities owned by such Shareholder as of
the Closing Date.


 


7.             Representations and Warranties.


 


Each
Shareholder represents and warrants to the Company and each other Shareholder
that:


 


7.1  Power and Authority.  Such Shareholder has the power, authority and
capacity (or, in the case of any Shareholder that is a corporation, limited
liability company or limited partnership, all corporate limited liability
company or limited partnership power and authority, as the case may be) to execute,
deliver and perform this Agreement.


 


7.2  Due Authorization.  In the case of a Shareholder that is a
corporation, limited liability company or limited partnership, the execution,
delivery and performance of this Agreement by such Shareholder has been duly
and validly authorized and approved by all necessary corporate limited
liability company or limited partnership action, as the case may be.  In the case of a Shareholder that is an
individual, the execution, delivery and performance of this Agreement by such
Shareholder are within such Shareholder’s full power and legal rights and no
other action on the part of such Shareholder (including, without limitation,
obtaining spousal or other consents) is necessary to authorize this Agreement
or the transactions contemplated hereby.


 


7.3  Execution and Delivery.  This Agreement has been duly and validly
executed and delivered by such Shareholder and constitutes a valid and legally
binding obligation of such Shareholder enforceable against such Shareholder in
accordance with its terms.


 


7.4  No Conflict.  The execution, delivery and performance of
this Agreement by such Shareholder does not and will not conflict with, violate
the terms of


 


31





















 


or result in the acceleration
of any obligation under (i) any material contract, commitment or
other material instrument to which such Shareholder is a party or by which such
Shareholder is bound, (ii) in the case of a Shareholder or any of
its Subordinate Shareholders that is a corporation, limited liability company
or limited partnership, the certificate of incorporation, by-laws, certificate
of formation, limited liability company agreement, certificate of limited
partnership or limited partnership agreement, as the case may be, of such
Shareholder or (iii) any applicable Law.


 


7.5  Share Ownership.  With respect to each Shareholder, Schedule C
hereto sets forth (i) the number and type of Equity Securities owned by such
Shareholder, and (ii) the name of each Person holding Equity Securities that
are deemed to be owned by such Shareholder pursuant to Section 2.9 and the
number and type of Equity Securities held by each such Person.  From and after the date hereof, each
Shareholder shall promptly notify each other Shareholder of any changes to the
information contained in Schedule C with respect to such Shareholder or any of
its Subordinate Shareholders.


 


8.             Covenants.


 


8.1  Standstill.  No Shareholder may acquire any Equity
Securities of the Company if immediately following such acquisition such
Shareholder shall own 50% or more of the outstanding voting power or economic
benefit of the Company without the prior written approval of JM, (or in the
case of any Management Member, without the consent of Yahoo and SOFTBANK), provided,
that the approval right of JM in this Section 8.1 shall terminate upon the
earliest to occur of (i) the second anniversary of the closing of the
IPO, (ii) the fifth anniversary of the Closing Date, (iii) JM
ceasing to be both the Chief Executive Officer and a director of the Company
and (iv) JM ceasing to own at least 1% of the outstanding Ordinary
Shares on a Fully Diluted Basis.


 


8.2  Chief Executive Officer.  JM shall continue to be the Company’s Chief
Executive Officer following the Closing Date. 
Each of Yahoo, SOFTBANK and the Management Members agree that they will
ensure that their respective designated directors shall vote in favor of JM
continuing to serve as the Company’s Chief Executive Officer, unless he is
removed earlier for Cause, until the earlier to occur of (i) the closing
date of the IPO, (ii) the fifth anniversary of the Closing Date, and (iii)
his resignation, retirement, death or incapacity.


 


8.3  Compliance Officer.  The Company and Yahoo will mutually agree on
the appointment of certain personnel in the legal and finance departments of
the Company (the “Compliance Officers”). 
Among other duties, the Compliance Officers shall provide assistance to
Yahoo in relation to Yahoo’s compliance with applicable Law (including, without
limitation, United States securities laws), and Nasdaq and stock exchange rules
and requirements, in each case, with respect to the Company.  Except for Cause, the Company shall not
remove any Compliance Officer without Yahoo’s written 


 


32





















 


consent (such consent not
to be unreasonably conditioned, withheld or delayed), and shall promptly remove
any Compliance Officer upon Yahoo’s written request.  Any vacancy created by the removal,
resignation, retirement, death or incapacity of any Compliance Officer shall be
filled promptly by the Company with a replacement mutually agreed upon by Yahoo
and the Company.


 


8.4  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,
Affiliates, shareholders, limited partners, members of its investment
committees, advisory committees, similar bodies, and Persons related thereto,
who are informed of the confidentiality obligations of this
Section 8.4 and such party shall be responsible for any violation of
this Section 8.4 made by any such Person, (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 or appropriate (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), 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.


 


8.5  Information Rights.


 


(a)  The Company
shall, and shall cause each Subsidiary to, maintain true books and records of
account in which full and correct entries shall be made of all its business
transactions pursuant to a system of accounting established and administered in
accordance with GAAP, and shall set aside on its books all such proper accruals
and reserves as shall be required under GAAP.


 


(b)  The Company shall deliver to each of Yahoo,
SOFTBANK and each Management Member the following:


 


(i)  As soon as available but in any event
not later than thirty-five (35) days after the end of each of the
quarterly accounting periods,
the unaudited consolidated balance sheet of the Company and its
Subsidiaries, if any, as of the end of each such period, the related unaudited
consolidated statements of operations, shareholders’ equity and cash flows of the Company and its
Subsidiaries, if any, for such quarterly period and for the period from the
beginning of such fiscal year to the end of


 


33





















 


such
quarterly period.  All such financial
statements shall be prepared in accordance with GAAP applied on a consistent
basis and be certified by the Company’s Chief Financial Officer (and Chief
Accounting Officer after such Chief Accounting Officer is appointed).


 


(ii)  As soon as available, but in any event
no later than sixty (60) days after the end of each fiscal year of the Company,
a copy of the audited consolidated balance sheets of the Company and its
Subsidiaries, if any, as of the end of such fiscal year and the related
consolidated statements of operations, shareholders equity and cash flows of
the Company and its Subsidiaries stating in comparative form the figures as of
the end of and for the previous fiscal year certified by a firm of independent
certified public accountants of recognized international standing selected by
the Company and approved by the Shareholders. 
All such financial statements shall be prepared in accordance with GAAP
applied on a consistent basis
and be certified by the Company’s Chief Financial Officer (and Chief Accounting
Officer after such Chief Accounting Officer is appointed).


 


(iii)  As soon as available but in any event not
later than thirty-five (35) days after the end of each quarterly accounting periods,
(A) explanations for any significant movements from the prior quarter in
each of the unaudited consolidated balance sheets and statements of income,
stockholders’ equity and cash flows in conjunction with 8.5(b)(i) above, and (B)
operating metrics relevant to the Alibaba businesses and used by Alibaba
management for decision making purposes.


 


(iv)  As soon as
available but in any event not later than thirty (30) days after the end of
each monthly accounting periods, a copy of the unaudited monthly management
report, which shall include the unaudited consolidated balance sheet and income
statement of the Company and its Subsidiaries, if any, after the end of such
month.  All such financial statements
shall be prepared in accordance with GAAP applied on a consistent basis.


 


(v)  As soon as practicable following Board
approval, a copy of the annual strategic plan and budget of the Company.


 


(vi)  With reasonable promptness, such other
information and data with respect to the Company or any of its Subsidiaries as
from time to time may be
reasonably requested by any Shareholder.


 


(c)  The Company
will (and will cause its Subsidiaries to) give (x) the Shareholders, and
their respective employees and contract personnel primarily engaged by such
Shareholder and (y) with the reasonable advance notice to, and the
reasonable consent of, the Company (such consent not to be reasonably withheld,
conditioned or delayed), the Shareholders’ respective outside accountants,
auditors, legal counsel and other authorized representatives and agents, (i)
full access during reasonable business


 


34





















 


hours to the properties,
assets, books, contracts, commitments, reports and records of the Company and
its Subsidiaries, and furnish to them all such documents, records and
information with respect to the properties, assets and business of the Company
and its Subsidiaries and copies of any work papers relating thereto as the
Shareholders shall from time to time reasonably request; and (ii)
reasonable access during reasonable business hours to the Company, its
Subsidiaries and their respective employees as may be necessary or useful to
the Shareholders in their reasonable judgment in connection with their review
of the properties, assets and business of the Company and its Subsidiaries and
the above-mentioned documents, records and information.  Without limiting the generality of the
foregoing, the Company will (and will cause its Subsidiaries to) provide Yahoo
and its accountants and auditors with access to such information and
individuals as is reasonably necessary to conduct a review of the Company and
its Subsidiaries (x) within three months following the Closing Date, (y)
twice annually thereafter, and (z) as reasonably necessary to confirm
that any material weakness, significant deficiency, internal control failure or
system fault identified in a notice delivered or required to be delivered
pursuant to Section 8.6 hereof has been remedied.


 


8.6  Internal Controls over Financial Reporting.  The Company shall use its reasonable efforts
to establish and maintain a system of internal controls over financial
reporting adequate to permit Yahoo to comply with Section 404 of the United
States Sarbanes-Oxley Act of 2002 (“Section 404”) and any similar Law,
in each case, with respect to the Company. 
If the Company identifies a significant deficiency or material weakness
as defined under Section 404 or its auditors identify a material internal
control failure or system fault in accounting or record-keeping, the Company
shall give Yahoo prompt written notice thereof specifying in reasonable detail
the material weakness, significant deficiency, internal control failure or
system fault and shall use its good faith efforts to correct such material weakness,
significant deficiency, internal control failure or system fault as
expeditiously as possible.


 


8.7  GAAP. 
All financial statements of the Company shall be prepared in accordance
with GAAP.


 


8.8  Fiscal Year.  The fiscal year of the Company shall begin on
January 1 and end on December 31.


 


8.9  Expansion of Business.  In the event that the Company determines to
expand into or enter into an Internet-based consumer business (other than a
peer-to-peer payments business) in the United States, the United Kingdom,
Germany, France or Korea, the Company will first discuss and negotiate in good
faith with Yahoo terms upon which the Company and Yahoo would agree to enter
such markets in a partnership on a mutually advantageous and agreeable basis.


 


35





















 


9.             Governing
Law and Dispute Resolution.


 


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


 


9.2  Arbitration.


 


(a)  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.


 


(b)  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 thirty (30) days of receipt of the Request
and shall notify the Claimant of such appointment in writing.  If within thirty (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 thirty (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 thirty (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.


 


(c)  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


 


36





















 


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 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.


 


(d)  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 ninety (90) days of its appointment, consolidate the arbitration
proceeding with any other arbitration proceeding involving any of the parties
relating to this Agreement, the Purchase and Contribution Agreement and the
other Ancillary 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 Ancillary
Agreements, the ruling of the tribunal constituted under this Agreement will
govern, and that tribunal will decide all disputes in the consolidated
proceeding.


 


(e)  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 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.


 


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


 


(g)  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.


 


(h)  Notwithstanding
this Section 9.2 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


 


37





















 


an interim injunction or
similar equitable relief against any other party, provided there is no
unreasonable delay in the prosecution of that application.


 


10.           Miscellaneous.


 


10.1  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 commercial courier services or
overnight mail or delivery or (c) sent by facsimile with confirmation by
personal delivery or overnight mail, as follows:


 


(a)  if to the
Company, to


 


Alibaba.com Corporation

c/o Alibaba.com Hong Kong Limited

2403-05 Jubilee Centre

18 Fenwick Street

Wanchai, Hong Kong

Fax:  +852-2215-5200

Telephone:  +852-2215-5100

Attention:  Chief Financial Officer


 


with a copy to:


 


Debevoise & Plimpton LLP

13/F Entertainment Building

30 Queen’s Road


Central, Hong Kong

Fax:  (852) 2810 9828

Telephone:  (852) 2160 9800

Attention:  Thomas M. Britt III


 


(b)  If to the
Shareholders, to such Shareholder’s address set forth in the signature page.


 


Or, in each case, at such
other address as may be specified in writing to the other parties hereto.  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
courier services or overnight mail or delivery, on the day delivered, and (iii)
if by facsimile, on the next day following the day on which such facsimile was
sent, provided that it is followed immediately by confirmation by personal
delivery or overnight mail that is received pursuant to subclause (i) or (ii).


 


38





















 


10.2  Management Members’ Representative.


 


(a)  Concurrent
with the execution and delivery of this Agreement, each of the Management
Members is entering into an Agreement Among Management Members (the “Agreement
Among Management Members”) pursuant to which, inter alia, the Management
Members have appointed the Chief Executive Officer of the Company as their
initial agent, representative and attorney-in-fact (the “Management Members’
Representative”).


 


(b)  Each
Shareholder shall be entitled to rely upon the decision, actions, consents or
instructions of the Management Members’ Representative appointed pursuant to
the Agreement Among Management Members as being the decision, action, consent
or instruction of the Management Members and each of their respective
Subordinate Shareholders in connection with all matters set forth in this
Agreement that are required to be taken up collectively by the Management Members
and each of their respective Subordinate Shareholders (including but not
limited to the designation of the Management Member Designee(s) pursuant to
Section 2.3 hereof).  Each of the
Company, Yahoo and SOFTBANK are hereby relieved from any liability to any
Management Member or any Subordinate Shareholder of any Management Member for
any lawful acts done by them in accordance with such decision, act, consent, or
instruction of the Management Members’ Representative.


 


10.3  Expenses.  Each party to this Agreement shall
bear its respective expenses, costs and fees (including attorneys’ fees) in
connection with the transactions contemplated hereby, including the
preparation, execution and delivery of this Agreement and compliance herewith,
whether or not the transactions contemplated hereby shall be consummated.


 


10.4  Entire Agreement.  This Agreement, the Purchase and Contribution
Agreement and the other Ancillary Agreements (when executed and delivered)
constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof.  This Agreement
supersedes all prior shareholders agreements to which the Company and any
shareholder is a party, including, without limitation, the Amended and Restated
Shareholders Agreement entered into on May 13, 2004, among the Company and
certain shareholders parties thereto.


 


10.5  Amendment and Waiver.  Except as otherwise provided herein, no
amendment, alteration or modification of this Agreement or waiver of any
provision of this Agreement shall be effective against the Company or the
Shareholders unless such amendment,


 


39





















 


alteration, modification
or waiver is approved in writing by Yahoo, SOFTBANK and the Management Members’
Representative (which shall be the only Shareholders whose approval shall be
necessary to effect any such amendment, alteration, modification or waiver); provided,
that any amendment, alteration or modification of Section 4.4, 4.9, 4.10 or
10.5 of this Agreement or any other provision that may affect the rights of the
Financial Investors pursuant to Sections 4.4, 4.9, 4.10 and 10.5 of this
Agreement shall also require the written consent of the Financial Investors owning
Equity Securities with at least half of the voting power of Equity Securities
owned by all Financial Investors as of the date of this Agreement.  The failure of any party to enforce any
provision of this Agreement shall not be construed as a waiver of such
provision and shall not affect the right of such party thereafter to enforce
each provision of this Agreement in accordance with its terms.


 


10.6  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.


 


10.7  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.


 


10.8  Assignment.  This Agreement shall not be assignable or
otherwise transferable by any party hereto without the prior written consent of
each of Yahoo, SOFTBANK and the Management Members’ Representative (which shall
be the only Shareholders whose approval shall be necessary to effect any such
assignment), and any purported assignment or other transfer without such
consent shall be void and unenforceable.


 


10.9  No Third Party Beneficiaries.  Except as provided in Sections 2.7 and 4.10,
nothing in this Agreement shall confer any rights upon any person or entity
other than the parties hereto and their respective heirs, successors and
permitted assigns.


 


10.10  Termination.  Subject to the foregoing, this Agreement
shall terminate with respect to each Shareholder, in its capacity as a
Shareholder, at the time at which such Shareholder ceases to own any Equity
Securities, except that such termination shall not affect (a) the rights
perfected or the obligations incurred by such Shareholder under this Agreement
prior to such termination (including any liability for breach of this
Agreement) and (b) the obligations expressly stated to survive such
cessation of ownership of Equity Securities.


 


10.11  Headings.  The headings of this Agreement are inserted
for convenience only and do not constitute a part of this Agreement.


 


40





















 


10.12  Counterparts.  This Agreement may be executed in any number
of counterparts each of which shall be an original and all of which taken
together shall constitute one and the same agreement.


 


41





















 


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


 


	
  ALIBABA.COM
  CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  YAHOO
  INC.

  	
   

  	
  Address
  for notices:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SOFTBANK
  CORP.

  	
   

  	
  Address
  for notices:

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Address
  for notices:

  
	
  Jack
  Ma Yun

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Address
  for notices:

  
	
  Joseph
  C. Tsai

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Address
  for notices:

  
	
  Li
  Qi

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Address
  for notices:

  
	
  John
  Wu

  	
   

  	
   

  



 


[Signatories
will include all the Subordinate Shareholders of the parties named above.]


 


42