Exhibit 10.1


 




 





 


TAO BAO SHARE
PURCHASE AGREEMENT


 


 


by and among


 


YAHOO! INC.,


 


SOFTBANK CORP.


 


and


 


SB TB Holding
Limited


 


 


Dated as of August •,
2005


 




 





 





















 


TABLE OF CONTENTS


 


	
  1.

  	
  Sale
  and Purchase of the Shares

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1
  Sale and Purchase of the Shares

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.2 Closing

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Representations
  and Warranties of the SOFTBANK Entities

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1
  Authorization, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.2 Title to
  Shares

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.3 No
  Conflicts, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.4
  Corporate Status

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.5 Consents

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.6 Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.7
  Survival of Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Representations
  and Warranties of Yahoo!

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1
  Authorization, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.2 No
  Conflicts, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.3 Corporate
  Status

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.4 Consents

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.5
  Survival of Representations and Warranties of Yahoo!

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Covenants
  of the SOFTBANK Entities

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1 Further
  Actions

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  4.2 Payment of
  Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  4.3 Further
  Assurances

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Covenants of
  Yahoo!

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1 Further
  Actions

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  5.2 Further
  Assurances

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Covenants
  of Yahoo! and the SOFTBANK Entities

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1
  Confidentiality

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.2 Publicity

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Conditions
  Precedent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1
  Conditions to Obligations of Each Party

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1.1. No Injunction, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1.2. Other Transactions

  	
   

  



 


i





















 


	
   

  	
  7.2
  Conditions to Obligations of Yahoo!

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.2.1. Representations,
  Performance

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.2.2. Corporate and Other
  Proceedings

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.3
  Conditions to Obligations of the SOFTBANK Entities

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.3.1. Representations,
  Performance, etc

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Termination

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1 Termination

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.2
  Effect of Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1 Terms
  Generally

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  9.2 Certain
  Terms

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1 Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.2 Notices

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.3
  Governing Law and Dispute Resolution

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.4 Binding
  Effect

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.5 Assignment

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.6
  Third Party Beneficiaries

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.7 Amendment;
  Waivers, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.8 Entire
  Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.9
  Severability

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.10 Headings

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.11
  Counterparts

  	
   

  



 


ii





















 


TAO BAO SHARE
PURCHASE AGREEMENT


 


This TAO BAO SHARE PURCHASE AGREEMENT (this “Agreement”),
dated as of August •, 2005, is entered into by and among Yahoo! Inc.
(“Yahoo!”), a Delaware corporation, SOFTBANK CORP., a Japanese
corporation (“SOFTBANK”) and SB TB Holding Limited, a Cayman Islands
exempted limited liability company and a wholly-owned subsidiary of SOFTBANK (“Newco,
and, together with SOFTBANK, the “SOFTBANK Entities”).


 


W  I  T  N  E
S  S  E  T  H:


 


WHEREAS, Newco holds 4,500,000 issued and outstanding
ordinary shares of Tao Bao Holding Limited (“Tao Bao”), a Cayman Islands
exempted limited liability company, par value US$0.01 (the “Shares”);


 


WHEREAS, SOFTBANK desires that Newco sell all of the
Shares to Yahoo!, and Yahoo! wishes to purchase such Shares from Newco, on the
terms and conditions and for the consideration described in this Agreement; and


 


WHEREAS, it is a condition precedent to the
consummation of the transactions contemplated by the Stock Purchase and
Contribution Agreement entered into by and between Yahoo! and Alibaba.com
Corporation (“Alibaba”), a Cayman Islands exempted limited liability
company (the “Stock Purchase and Contribution Agreement; capitalized
terms used but not otherwise defined herein shall have the respective meanings
ascribed to them in the Stock Purchase and Contribution Agreement) that this
Agreement be executed by the parties hereto and the purchase and sale of Shares
contemplated hereby be consummated on or prior to the Closing Date.


 


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


 


1.                                       Sale
and Purchase of the Shares.


 


1.1  Sale
and Purchase of the Shares.  Subject
to the terms and conditions hereof, Newco will sell to Yahoo!, and Yahoo! will
purchase from Newco, the Shares at a price of US$80.00 per share, for an
aggregate purchase price of US$360,000,000 (the “Purchase Price”),
payable in cash at the Closing in the manner set forth in Section 1.2.


 


1.2  Closing.  The closing of the sale and purchase of the
Shares contemplated by Section 1.1 (the “Closing”) shall take place
at a location to be agreed upon by Yahoo!, SOFTBANK and Alibaba on the Closing
Date as soon as practicable following the satisfaction or waiver of the
conditions precedent set forth in Section 7 of this Agreement which shall
be the same date as the closing date of the Stock Purchase and Contribution
Agreement (the “Closing Date”). 
At the Closing:


 





















 


(a)  Newco (or SOFTBANK acting on behalf of
Newco) will deliver or cause to be delivered to Yahoo!, free and clear of any
Lien, one or more certificates representing the Shares that Yahoo! is entitled
to receive from Newco, duly endorsed or accompanied by stock powers or other
instruments of transfer duly executed for transfer to Yahoo! together with any
Tax or transfer stamps or other documents or actions necessary to accomplish
the foregoing;


 


(b)  Yahoo! will pay Newco an amount equal to the
Purchase Price, by wire transfer of immediately available funds to the account
of Newco designated in writing to Yahoo! at least three Business Days prior to
the Closing Date; and


 


(c)  the SOFTBANK Entities will deliver or will
cause to be delivered to Yahoo! a certified copy of the Register of Members
(the “Register of Members”) of Tao Bao evidencing the purchase of the
Shares by Yahoo! from Newco in accordance with this Agreement.


 


2.                                       Representations
and Warranties of the SOFTBANK Entities.


 


The SOFTBANK Entities jointly and severally represent
and warrant to Yahoo! as follows, as of the date hereof and as of the Closing
Date:


 


2.1  Authorization,
etc.  Each SOFTBANK Entity has full
power, authority and capacity to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the purchase and sale of Shares
contemplated hereby.  The execution,
delivery and performance of this Agreement by each SOFTBANK Entity, and the
consummation of the purchase and sale of Shares contemplated hereby, have been
duly authorized by all requisite corporate action of such party.  Each SOFTBANK Entity has duly executed and
delivered this Agreement.  This Agreement
constitutes the legal, valid and binding obligation of each SOFTBANK Entity
enforceable against each SOFTBANK Entity in accordance with its terms.


 


2.2  Title
to Shares. As of Closing, Newco owns, legally and beneficially, all of the
Shares.  Upon the delivery of and payment
for such Shares at the Closing as provided for in this Agreement, Yahoo! will
acquire good and valid title to all of the Shares free and clear of any Lien.


 


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


 


2





















 


2.4  Corporate Status.


 


(a)  SOFTBANK.  SOFTBANK is a corporation duly organized and
validly existing under the laws of Japan, and has full power and authority to,
conduct its business and to own or lease and to operate its properties as and
in the places where such business is conducted and such properties are owned,
leased or operated.


 


(b)  Newco.  Newco is a Cayman Islands exempted limited
liability company, duly organized, validly existing and in good standing under
the laws of the Cayman Islands.  Newco is
a wholly owned Subsidiary of SOFTBANK, and has full power and authority to,
conduct its business and to own or lease and to operate its properties as and
in the places where such business is conducted and such  properties are owned, leased or operated.


 


2.5  Consents.  All Governmental Approvals or other Consents
required to be obtained by each SOFTBANK Entity in connection with the
execution and delivery of this Agreement and the consummation of the purchase
and sale of Shares contemplated hereby have been obtained.


 


2.6  Taxes.  SOFTBANK hereby acknowledges and represents
that Yahoo! will not be required pursuant to any applicable Law in Japan to pay
any Taxes or to act as withholding agent for Taxes due from any SOFTBANK Entity
to any Governmental Authority in Japan in connection with the consummation of
the purchase and sale of Shares contemplated by this Agreement.


 


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


 


3.                                       Representations
and Warranties of Yahoo!.  Yahoo!
represents and warrants to the SOFTBANK Entities as follows, as of the date
hereof and as of the Closing Date:


 


3.1                                 Authorization,
etc.  Yahoo! has full corporate power
and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the purchase and sale of Shares contemplated
hereby.  The execution, delivery and
performance of this Agreement by Yahoo!, and the consummation of the purchase
and sale of Shares contemplated hereby, have been duly authorized by all
requisite corporate action of Yahoo!. 
Yahoo! has duly executed and delivered this Agreement.  This Agreement constitutes the legal, valid
and binding obligation of Yahoo!, enforceable against Yahoo! in accordance with
its terms.


 


3.2  No
Conflicts, etc.  The execution,
delivery and performance of this Agreement by Yahoo!, and the consummation of
the purchase and sale of Shares contemplated hereby, do not and will not
conflict with, contravene, result in a violation or breach of or default under
(with or without the giving of notice or the lapse of time, or both), create in
any other Person a right or claim of termination or amendment, or require
modification, acceleration or cancellation of, or result in or require the
creation of any Lien (or any obligation to create any Lien) upon any of the
properties or assets of Yahoo! under (a) any Law applicable to Yahoo! or


 


3





















 


any of its properties or
assets, (b) any provision of any of the Organizational Documents of
Yahoo!, or (c) any Contract, or any other agreement or instrument to which
Yahoo! is a party or by which its properties or assets may be bound except, in
the case of each of clauses (a), (b) and (c), as would not reasonably be
expected to prevent or materially impair or delay the ability of Yahoo! to
purchase the Shares and otherwise fulfill its obligations under this Agreement.


 


3.3  Corporate
Status.  Yahoo! is an exempted
limited liability company duly organized, validly existing and in good standing
under the laws of the Cayman Islands and has full power and authority to
conduct its business and to own or lease and to operate its properties as and
in the place where such business is conducted and such properties are owned,
leased or operated.


 


3.4  Consents.  All Governmental Approvals or other Consents
required to be obtained by Yahoo! in connection with the execution and delivery
of this Agreement and the consummation of the purchase and sale of Shares
contemplated hereby have been obtained.


 


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


 


4.                                       Covenants
of the SOFTBANK Entities.


 


4.1  Further Actions.


 


(a)  Each SOFTBANK Entity shall use reasonable
efforts to take or cause to be taken all actions, and to do or cause to be done
all other things, necessary, proper or advisable in order for such SOFTBANK
Entity to fulfill and perform its obligations in respect of this Agreement, or
otherwise to consummate and make effective the purchase and sale of Shares
contemplated hereby.


 


(b)  Each SOFTBANK Entity shall, as promptly as
practicable, (i) make, or cause to be made, all filings and submissions
required under any Law applicable to such SOFTBANK Entity, and give such
reasonable undertakings as may be required in connection therewith, and (ii) use
reasonable efforts to obtain or make, or cause to be obtained or made, all
Governmental Approvals and Consents necessary to be obtained or made by such
SOFTBANK Entity, in each case in connection with this Agreement or the
consummation of the purchase and sale of Shares contemplated hereby.


 


(c)  Each SOFTBANK Entity shall coordinate and
cooperate with Yahoo! in exchanging such information and supplying such
reasonable assistance as may be reasonably requested by Yahoo! in connection
with the filings and other actions contemplated by Section 5.1.


 


(d)  At all times prior to the Closing Date, each
SOFTBANK Entity shall promptly notify Yahoo! in writing of any fact, condition,
event or occurrence that could


 


4





















 


reasonably be expected to result in the failure of any of the
conditions contained in Sections 7.1 and 7.2 to be satisfied, promptly upon
becoming aware of the same.


 


4.2  Payment
of Taxes.  SOFTBANK shall pay all
Taxes due or payable to any Governmental Authority in Japan incurred or to be
incurred in connection with the sale and transfer of the Shares by Newco to
Yahoo! hereunder and in connection with any sale and transfer of the Shares to
Newco by SOFTBANK.  SOFTBANK shall pay
all Taxes due or payable to any Governmental Authority in connection with
Yahoo!’s contribution to Alibaba of the Tao Bao Shares pursuant to the Stock
Purchase and Contribution Agreement.


 


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


 


5.                                       Covenants
of Yahoo!.


 


5.1  Further Actions.


 


(a)  Yahoo! shall use reasonable efforts to take
or cause to be taken all actions, and to do or cause to be done all other
things, necessary, proper or advisable in order for Yahoo! to fulfill and
perform its obligations in respect of this Agreement, or otherwise to
consummate and make effective the purchase and sale of Shares contemplated
hereby.


 


(b)  Yahoo! shall, as promptly as practicable, (i) make,
or cause to be made, all notices, filings and submissions required under any
Law applicable to Yahoo!, and give such reasonable undertakings as may be required
in connection therewith, and (ii) use reasonable efforts to obtain or
make, or cause to be obtained or made, all Governmental Approvals and Consents
necessary to be obtained or made by Yahoo!, in each case in connection with
this Agreement or the consummation of the purchase and sale of Shares
contemplated hereby.


 


(c)  Yahoo! shall coordinate and cooperate with
SOFTBANK in exchanging such information and supplying such reasonable
assistance as may be reasonably requested by SOFTBANK in connection with the
filings and other actions contemplated by Section 4.1.


 


(d)  At all times prior to the Closing Date,
Yahoo! shall promptly notify each SOFTBANK Entity in writing of any fact,
condition, event or occurrence that could reasonably be expected to result in
the failure of any of the conditions contained in Sections 7.1 and 7.3 to be
satisfied, promptly upon becoming aware of the same.


 


5.2  Further
Assurances.  Following the Closing
Date, Yahoo! shall from time to time, execute and deliver such additional instruments,
documents, conveyances or assurances and take such other actions as shall be
necessary, or otherwise reasonably be requested by


 


5





















 


SOFTBANK, to confirm and
assure the rights and obligations provided for in this Agreement and render
effective the consummation of the purchase and sale of Shares contemplated
hereby, or otherwise to carry out the intent and purposes of this Agreement.


 


6.                                       Covenants
of Yahoo! and the SOFTBANK Entities.


 


6.1  Confidentiality.  Each party shall maintain the confidentiality
of Confidential Information in accordance with procedures adopted by such party
in good faith to protect confidential information of third parties delivered to
such party, provided that such party may deliver or disclose
Confidential Information to (i) such party’s representatives, Affiliates,
shareholders, limited partners, members of its investment committees, advisory
committees, and similar bodies, and Persons related thereto, who are informed
of the confidentiality obligations of this Section 6.1, (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) above, the disclosing party shall provide each
other party with prompt written notice thereof so that the appropriate party
may seek (with the cooperation and reasonable efforts of the disclosing party)
a protective order, confidential treatment or other appropriate remedy, and in
any event shall furnish only that portion of the information which is
reasonably necessary for the purpose at hand and shall exercise reasonable
efforts to obtain reliable assurance that confidential treatment will be
accorded such information to the extent reasonably requested by any other
party.


 


6.2  Publicity.  Except as may be required by applicable Law,
none of the parties hereto shall issue a publicity release or announcement or
otherwise make any public disclosure concerning this Agreement or the purchase
and sale of Shares contemplated hereby or the Other Transactions, without prior
written approval of Yahoo! and SOFTBANK. 
If any announcement is required by applicable Law to be made by any
party hereto, prior to making such announcement such party will deliver a draft
of such announcement to the other parties and shall give the other parties an
opportunity to comment thereon.


 


7.                                       Conditions
Precedent.


 


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


 


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


 


6





















 


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


 


7.2  Conditions
to Obligations of Yahoo!.  The
obligation of Yahoo! to consummate the purchase and sale of Shares contemplated
hereby shall be subject to the fulfillment on or prior to the Closing Date of
the following additional conditions, which each SOFTBANK Entity agrees to cause
to be fulfilled:


 


7.2.1.  Representations, Performance.


 


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


 


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


 


7.2.2.  Corporate
and Other Proceedings.  All
corporate, partnership and other proceedings of each SOFTBANK Entity in
connection with the purchase and sale of Shares contemplated by this Agreement,
and all documents and instruments incident thereto, shall be satisfactory in
form and substance to Yahoo! and its counsel in their reasonable judgment, and
Yahoo! and its counsel shall have received all such documents and instruments,
or copies thereof, certified if requested, as may be reasonably requested.


 


7.3  Conditions
to Obligations of the SOFTBANK Entities. 
The obligation of each SOFTBANK Entity to consummate the purchase and
sale of Shares contemplated hereby shall be subject to the fulfillment, on or
prior to the Closing Date, of the following additional conditions, which Yahoo!
agrees to cause to be fulfilled:


 


7.3.1.  Representations, Performance, etc.


 


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


 


7





















 


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


 


8.                                       Termination.


 


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


 


(a)  By the written agreement of Yahoo! and
SOFTBANK;


 


(b)  By SOFTBANK or Yahoo! by written notice to
the other party if the Stock Purchase and Contribution Agreement shall have
terminated in accordance with its terms; or


 


(c)  By Yahoo! if there shall have been a
material breach of any covenant or agreement on the part of the SOFTBANK
Entities contained in this Agreement such that the condition set forth in Section 7.2.1(a) and
7.2.1(b) would not be satisfied and which shall not have been cured within
30 days following written notice of such breach; provided that Yahoo! shall not
have the right to terminate this Agreement pursuant to this Section 8.1(c) if
Yahoo! is then in material breach of any of its covenants or agreements
contained in this Agreement such that the Closing condition set forth in Section 7.2.1(a) or
7.2.1(b) would not be satisfied; or


 


(d)  By SOFTBANK if there shall have been a
material breach of any covenant or agreement on the part of Yahoo! contained in
this Agreement such that the condition set forth in Section 7.3.1(a) and
7.3.1(b) would not be satisfied and which shall not have been cured within
30 days following written notice of such breach; provided that SOFTBANK shall
not have the right to terminate this Agreement pursuant to this Section 8.1(d) if
any SOFTBANK Entity is then in material breach of any of its covenants or
agreements contained in this Agreement such that the Closing condition set
forth in Section 7.2.1(a) or 7.2.1(b) would not be satisfied.


 


8.2  Effect
of Termination.  In the event of the
termination of this Agreement pursuant to the provisions of Section 8.1,
this Agreement shall become void and have no effect, without any liability to
any Person in respect hereof or of the purchase and sale of Shares contemplated
hereby on the part of any party hereto, or any of its directors, officers,
representatives, stockholders or Affiliates, except as specified in
Sections 4.2, 6.1, 6.2, 8.2, 10.1 and 10.3 and except for any liability
resulting from such party’s breach of this Agreement prior thereto.


 


8





















 


9.                                       Definitions.


 


9.1  Terms
Generally.  The words “hereby,” “herein,”
“hereof,” “hereunder” and words of similar import refer to this Agreement as a
whole and not merely to the specific section, paragraph or clause in which such
word appears.  All references herein to
Sections shall be deemed references to Sections of this Agreement unless
the context shall otherwise require.  The
words “include,” “includes” and “including” shall be deemed to be followed by
the phrase “without limitation.”  The
definitions given for terms in this Section 9 and elsewhere in this
Agreement shall apply equally to both the singular and plural forms of the
terms defined.  Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.  Except as otherwise
expressly provided herein, all references to “dollars” or “US$” shall be deemed
references to the lawful money of the United States of America.


 


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


 


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


 


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


 


Alibaba:  as defined in the recitals of this Agreement.


 


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


 


Claimant:  as defined in Section 10.3(b).


 


Closing:  as defined in Section 1.2.


 


Closing Date: as defined in Section 1.2.


 


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


 


9





















 


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


 


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


 


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


 


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


 


ICC: 
as defined in Section 10.3(b).


 


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


 


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


 


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


 


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


 


Other Transaction Agreements:  the Stock Purchase and Contribution Agreement
between Yahoo! and Alibaba, dated as of August 10, 2005 and the Ancillary
Agreements (as defined therein and excluding this Agreement).


 


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


 


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


 


10





















 


Purchase Price:  as defined in Section 1.1.


 


Register of Members:  as defined in Section 1.2.


 


Request:  as defined in Section 10.3(b).


 


Respondent:  as defined in Section 10.3(b).


 


Shares:  as defined in the recitals of this Agreement.


 


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


 


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


 


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


 


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


 


Tao Bao:  as defined in the recitals of this Agreement.


 


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


 


10.                                 Miscellaneous.


 


10.1  Expenses.  Except as set forth below in this Section 10.1
or as otherwise specifically provided for in this Agreement, each SOFTBANK
Entity, on the one hand, and Yahoo!, on the other hand, shall bear their
respective expenses, costs and fees (including attorneys’ fees) in connection
with the purchase and sale of Shares contemplated hereby, including the
preparation, execution and delivery of this Agreement and compliance herewith,
whether or not the purchase and sale of Shares contemplated hereby shall be
consummated; provided that for the avoidance of doubt, any Tax or other expense
associated with the transfer of Shares contemplated hereby shall be borne
solely by the SOFTBANK Entities.


 


11





















 


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


 


(i)  if to Yahoo!,


 


	
  Yahoo! Inc.

  
	
  701 First Avenue

  
	
  Sunnyvale, CA 94089

  
	
  Fax: +1-408-349-3301

  
	
  Telephone: +1-408-349-3300

  
	
  Attention: General Counsel

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  Skadden, Arps,
  Slate, Meagher & Flom LLP

  
	
  525 University
  Avenue

  
	
  Suite 1100

  
	
  Palo Alto, CA
  94301

  
	
  Fax:
  +1-650-470-4570

  
	
  Telephone:
  +1-650-470-4500

  
	
  Attention:
  Kenton J. King

  
	
   

  
	
  (ii) if to SOFTBANK,

  
	
   

  
	
  SOFTBANK
  CORP.

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

  
	
  Tokyo,
  105-7303 Japan

  
	
  Fax:

  	
  +81-3-6215-5001

  
	
  Telephone:

  	
  +81-3-6889-2270

  
	
  Attention:

  	
  Finance
  Department

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  Morrison &
  Foerster LLP

  
	
  AIG Building,
  11th Floor

  
	
  1-3,
  Marunouchi 1 chome

  
	
  Chiyoda-ku,
  Tokyo 100-0005

  
	
  Japan

  
	
  Fax:
  +81-3-3214-6512

  
	
  Telephone:
  +81-3-3214-6522

  
	
  Attention:
  Kenneth A. Siegel

  



 


12





















 


	
  (iii) if to Newco,

  
	
   

  
	
  SB TB Holding
  Limited

  
	
  c/o SOFTBANK
  CORP.

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

  
	
  Tokyo,
  105-7303 Japan

  
	
  Fax:

  	
  +81-3-6215-5001

  
	
  Telephone:

  	
  +81-3-6889-2270

  
	
  Attention:

  	
  Finance
  Department

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  Morrison &
  Foerster LLP

  
	
  AIG Building,
  11th Floor

  
	
  1-3,
  Marunouchi 1 chome

  
	
  Chiyoda-ku,
  Tokyo 100-0005

  
	
  Japan

  
	
  Fax:
  +81-3-3214-6512

  
	
  Telephone:
  +81-3-3214-6522

  
	
  Attention:
  Kenneth A. Siegel

  



 


or, in each case, at such other address as may be
specified in writing to the other parties hereto in accordance with this Section 10.2.


 


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


 


10.3  Governing Law and Dispute Resolution.


 


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


 


(b)  Dispute Resolution


 


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


 


(ii)  The arbitration shall be conducted by three
arbitrators.  The party (or the parties,
acting jointly, if there are more than one) initiating arbitration (the “Claimant”)
shall appoint an arbitrator in its request for arbitration (the “Request”).  The other party (or the other


 


13





















 


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


 


(iii)  The arbitral award shall be in writing,
state the reasons for the award, and be final and binding on the parties.  The award may include an award of costs,
including reasonable attorneys’ fees and disbursements.  In addition to monetary damages, the arbitral
tribunal shall be empowered to award equitable relief, including, but not
limited to, an injunction and specific performance of any obligation under this
Agreement.  The arbitral tribunal is not
empowered to award damages in excess of compensatory damages, and each party
hereby irrevocably waives any right to recover punitive, exemplary or similar
damages with respect to any dispute, except insofar as a claim is for
indemnification for an award of punitive damages awarded against a party in an
action brought against it by an independent third party.  The arbitral tribunal shall be authorized in
its discretion to grant pre-award and post-award interest at commercial
rates.  Any costs, fees or taxes incident
to enforcing the award shall, to the maximum extent permitted by Law, be
charged against the party resisting such enforcement.  Judgment upon the award may be entered by any
court having jurisdiction thereof or having jurisdiction over the relevant
party or its assets.


 


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


 


(v)  The parties agree that the arbitration shall
be kept confidential and that the existence of the proceeding and any element
of it (including but not limited to any pleadings, briefs or other documents
submitted or exchanged, any testimony or other oral submissions, and


 


14





















 


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.


 


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


 


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


 


(viii)  Notwithstanding this Section 10.3(b) or
any other provision to the contrary in this Agreement, no party shall be
obligated to follow the foregoing arbitration procedures where such party
intends to apply to any court of competent jurisdiction for an interim injunction
or similar equitable relief against any other party, provided there is no
unreasonable delay in the prosecution of that application.


 


10.4  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.


 


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


 


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


 


10.7  Amendment; Waivers, etc..  No amendment, modification or discharge of
this Agreement, and no waiver hereunder, shall be valid or binding unless set
forth in writing and duly executed by the party against whom enforcement of the
amendment, modification, discharge or waiver is sought.  Any such waiver shall constitute a waiver
only with respect to the specific matter described in such writing and shall in
no way impair the rights of the party granting such waiver in any other respect
or at any other time.  Neither the waiver
by any of the parties hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any of the parties, on one or
more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder, shall be construed as a waiver of
any other breach or default of a similar nature, or as a waiver of any of such
provisions, rights or privileges hereunder. 
The rights and remedies herein provided are cumulative and none is
exclusive of any other, or of any rights or remedies that any party may
otherwise have at law or in equity.  The
rights and remedies of any party based upon, arising out of or otherwise in
respect of any inaccuracy or breach of any representation, warranty, covenant
or agreement or failure to fulfill any condition shall in no way be limited by
the fact that the act, omission, occurrence or other state of facts upon which
any claim of any such inaccuracy or breach is based may also be the subject
matter of any other representation, warranty, covenant or agreement as to which
there


 


15





















 


is no inaccuracy or
breach.  The representations and
warranties of Yahoo! shall not be affected or deemed waived by reason of any
investigation made by or on behalf of SOFTBANK (including but not limited to by
any of its advisors, consultants or representatives) or by reason of the fact
that SOFTBANK or any of such advisors, consultants or representatives knew or
should have known that any such representation or warranty is or might be
inaccurate.


 


10.8  Entire
Agreement.  This Agreement, together
with the Mutual Nondisclosure Agreement, dated as of July 26, 2005, by and
between Yahoo! and SOFTBANK, constitutes the entire agreement and supersede all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof.


 


10.9  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.


 


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


 


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


 


16





















 


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


 


	
   

  	
  YAHOO!
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SOFTBANK
  CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SB TB
  Holding Limited

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


17