EXHIBIT 10.38


 


WAIVER AND VOTING AGREEMENT


 


This WAIVER
AND VOTING AGREEMENT, dated as of February 26, 2004 (this “Agreement”), is made
by and between SOFTBANK Corp., a corporation organized under the laws of Japan
(“SOFTBANK”), and Yahoo! Inc., a Delaware corporation (“Yahoo!”).


 


WHEREAS,
SOFTBANK, or one of its affiliates, and Yahoo! are parties to (i) a Consent and
Resale Agreement dated March 25, 2002 (the “Resale Agreement”), which places
certain restrictions (the “Restrictions”) on SOFTBANK’s ability to sell,
transfer or otherwise dispose of shares of the common stock of Yahoo!, par
value $0.001 per share, owned by SOFTBANK (the “Yahoo! Stock”), (ii) the
Affiliate Agreement dated as of March 1, 1999 among Yahoo!, GeoCities and
Softbank America Inc. (the “Affiliate Agreement”) and (iii) the Stock Purchase
Agreement dated as of July 7, 1999 between Yahoo! and Softbank Holdings Inc.
(the “Stock Purchase Agreement”);


 


WHEREAS,
SOFTBANK intends to enter into a transaction, or series of transactions,
pursuant to which it will monetize the Yahoo! Stock through the formation of
certain partnership structures and/or the execution of certain loans, security
agreements and/or financial derivative transactions with Citibank, N.A. in
which SOFTBANK shall retain (except upon the occurrence and continuation of an
event of default by SOFTBANK or its direct or indirect wholly-owned
subsidiaries, an event which, with the giving of notice or passage of time or
both, could result in an event of default by SOFTBANK or its direct or indirect
wholly-owned subsidiaries or the rehypothecation of any securities underlying
the financial derivative transaction ) the sole power to vote the all shares of
Yahoo! Stock on all matters (collectively, the “Transaction”);


 


WHEREAS, the
parties desire to waive application of the Restrictions to the Transaction, and
desire to place certain voting restrictions on the Yahoo! Stock; and


 


WHEREAS,
Section 5 of the Resale Agreement provides that any term of the Resale
Agreement may be waived with the written consent of Yahoo! and SOFTBANK;


 


NOW,
THEREFORE, in consideration of the premises and the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which the parties expressly acknowledge, the parties
hereto hereby agree as follows:


 


1.             Waiver of Restrictions.  Yahoo! and SOFTBANK hereby agree that (i)
the Restrictions set forth in Section 2.1 of the Resale Agreement shall not
apply to any Transaction, or any part thereof, and (ii) any Transaction, and
any part thereof, shall be deemed to not breach, and not be restricted in any
way by, (A) such Section 2.1 or any other term or provision of the Resale
Agreement that would otherwise be breached by the Transaction or any part thereof,
(B) Section 2.1 of the Affiliate Agreement or (C) Section 4.5 of the Stock
Purchase Agreement.   Yahoo! further
agrees that, in connection with the Transaction, the restrictive legend
contemplated by Section 2.4 of the Resale Agreement and the portion of the
restrictive legend contemplated by Section 2.2 of the Affiliate Agreement that
refers to an agreement dated as of January 27, 1999 between the registered
holder of certain certificates evidencing Yahoo! Stock and Yahoo! may be
removed from the certificates evidencing the Yahoo! Stock and that SOFTBANK may
require Yahoo! to issue new certificates evidencing the Yahoo! Stock to
effectuate the removal of such legend or portion thereof, respectively.


 


2.             Voting Restrictions.  SOFTBANK hereby agrees that, effective as of
the date hereof, so long as SOFTBANK, directly or indirectly, owns or controls
any Yahoo! Stock, it shall, at Yahoo!’s direction, either (i) vote, or cause to
be voted, the shares of such Yahoo! Stock in accordance with any written voting
recommendation of the Yahoo! Board of Directors or (ii) grant a proxy to Yahoo!
entitling Yahoo! to vote, or cause to be voted, the shares of such Yahoo! Stock
in proportion to the votes cast by the stockholders of Yahoo! other than
SOFTBANK, unless in each case SOFTBANK no longer retains the right to vote, or
cause to be voted, the shares of such Yahoo! Stock pursuant to the provisions
of any loan or security agreement or financial derivative contract entered into
with a financial institution in connection with the Transaction.


 


3.                                       Miscellaneous.


 


3.1           This Agreement may be
executed in one or more counterparts and delivered by facsimile, all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other party, it being understood that all parties need not sign the same
counterpart.


 


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3.2           This Agreement and
the Resale Agreement set forth the entire understanding of the parties relating
to subject matter hereof and thereof and supersede all prior agreements and
understandings among or between any of the parties relating to the subject
matter hereof and thereof.  This
Agreement may not be amended, modified, altered or supplemented other than by
means of a written instrument duly executed and delivered on behalf of all the
parties hereto.


 


3.3           This Agreement shall
be governed by, and construed and enforced in accordance with, the substantive
laws of the State of Delaware, without regard to its principles of conflict of
laws.


 


3.4           In the event that one
or more of the provisions of this Agreement should for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


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


 


	
   

  	
  YAHOO! INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael J. Callahan

  	
   

  
	
   

  	
  Name:

  	
  Michael J.
  Callahan

  	
   

  
	
   

  	
  Title:

  	
  SVP, General
  Counsel and Secretary

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SOFTBANK
  CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Masayoshi Son

  	
   

  
	
   

  	
  Name:

  	
  Masayoshi
  Son

  	
   

  
	
   

  	
  Title:

  	
  President
  & CEO

  	
   

  
									



 


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