EX-10.19 27 d709111dex1019.htm EX-10.19 EX-10.19

Exhibit 10.19

EXECUTION VERSION

 

 

 

FRAMEWORK AGREEMENT

by and among

ALIBABA GROUP HOLDING LIMITED,

SOFTBANK CORP.,

YAHOO! INC.,

支付宝(中国)网络技术有限公司 (ALIPAY.COM CO., LTD.),

APN LTD.,

Jack Ma Yun,

Joseph Chung Tsai,

浙江阿里巴巴电子商务有限公司 (ZHEJIANG ALIBABA E-COMMERCE CO., LTD.)

and

the Joinder Parties

DATED JULY 29, 2011

 

 

 


TABLE OF CONTENTS

 

         Page  
ARTICLE I   
DEFINITIONS AND TERMS   
Section 1.01  

Definitions

     3   
Section 1.02  

Construction

     16   
Section 1.03  

Schedules, Annexes and Exhibits

     17   
ARTICLE II   
TRANSFERS AND PAYMENT   
Section 2.01  

Transfers Prior to the Effective Time; Transfer of the Transferred Equity Interests to OpCo

     17   
Section 2.02  

Excluded Assets of the Business

     17   
Section 2.03  

[Reserved]

     18   
Section 2.04  

Assumption of Certain Obligations of the Business

     18   
Section 2.05  

Retained Liabilities of the Business

     18   
Section 2.06  

HoldCo IP Assets

     18   
Section 2.07  

[Reserved]

     18   
Section 2.08  

Transfer of Employees

     18   
Section 2.09  

Liquidity Event Payment Right

     19   
Section 2.10  

Transfers Upon Final Payment Date

     23   
Section 2.11  

Demand Liquidity Event

     24   
Section 2.12  

Commercial Agreement

     24   
Section 2.13  

Intellectual Property License and Software Technology Services Agreement

     24   
Section 2.14  

Closing

     25   
ARTICLE III   
REPRESENTATIONS AND WARRANTIES OF ALIBABA   
Section 3.01  

Authority; Binding Effect

     25   
Section 3.02  

Land Holding Company

     26   
Section 3.03  

Exclusivity of Representations

     26   

 

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ARTICLE IV  

REPRESENTATIONS AND WARRANTIES OF

HOLDCO, OPCO AND IPCO

  

  

Section 4.01  

Organization and Qualification

     26   
Section 4.02  

Authority; Binding Effect

     26   
Section 4.03  

No Conflicts, Consents and Approvals

     27   
Section 4.04  

[Reserved]

     27   
Section 4.05  

No Litigation

     27   
Section 4.06  

Creditors

     27   
Section 4.07  

HoldCo Operations

     27   
Section 4.08  

No Related Party Transactions

     28   
Section 4.09  

Business Assets

     28   
Section 4.10  

Ownership of Alibaba Share Collateral

     28   
Section 4.11  

Ownership of IPCo Share Collateral

     29   
Section 4.12  

Ownership of OpCo Share Capital

     30   
Section 4.13  

Security

     30   
Section 4.14  

Choice of Law; Jurisdiction

     30   
Section 4.15  

Compliance with Laws

     30   
Section 4.16  

Indebtedness

     30   
Section 4.17  

Taxes

     30   
Section 4.18  

Ownership of Assets; Liens

     31   
Section 4.19  

No Default

     31   
Section 4.20  

IPCo Organizational Documents

     31   
Section 4.21  

Employees

     31   
Section 4.22  

Land Holding Company

     31   
Section 4.23  

Special Purpose Vehicle Ownership

     31   
ARTICLE V   
REPRESENTATIONS AND WARRANTIES OF JMY AND JT   
Section 5.01  

Authority; Binding Effect

     31   
Section 5.02  

No Conflicts, Consents and Approvals

     31   
Section 5.03  

Creditors

     32   
Section 5.04  

Ownership of HoldCo

     32   
Section 5.05  

Ownership of IPCo

     32   
Section 5.06  

Representations and Warranties of HoldCo, OpCo and IPCo

     32   
ARTICLE VI   
REPRESENTATIONS AND WARRANTIES OF YAHOO! AND SOFTBANK   
Section 6.01  

Authority; Binding Effect

     32   
Section 6.02  

No Conflicts, Consents and Approvals

     33   
Section 6.03  

Organization and Qualification

     33   
Section 6.04  

No Litigation

     33   

 

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ARTICLE VII

 
COVENANTS   
Section 7.01  

Confidentiality

     33   
Section 7.02  

Commercially Reasonable Efforts; Certain Governmental Matters

     34   
Section 7.03  

Restrictions on Operations

     35   
Section 7.04  

IPCo Covenants

     36   
Section 7.05  

Restrictions on Transfers and Issuances

     38   
Section 7.06  

Non-Circumvention

     40   
Section 7.07  

Non-Disparagement

     40   
Section 7.08  

Tax Matters

     40   
Section 7.09  

Information and Review Rights

     41   
Section 7.10  

Restrictions on HoldCo Liquidity Event

     43   
Section 7.11  

Actions by Alibaba

     43   
Section 7.12  

Independent Directors’ Staff Support

     45   
Section 7.13  

Non-Competition

     45   
Section 7.14  

Employees and Employee Benefits

     46   
Section 7.15  

Further Covenants

     47   
ARTICLE VIII   
CONDITIONS   
Section 8.01  

Conditions to Each Party’s Obligation to Effect the Transaction

     51   
Section 8.02  

Conditions to Obligations of HoldCo, OpCo and IPCo

     52   
Section 8.03  

Conditions to Obligations of Alibaba, Yahoo! and Softbank

     53   
ARTICLE IX   
TERMINATION   
Section 9.01  

Termination

     55   
Section 9.02  

Effect of Termination

     57   
ARTICLE X   
MISCELLANEOUS   
Section 10.01  

Notices

     58   
Section 10.02  

Amendment; Waiver

     60   
Section 10.03  

Assignment

     60   
Section 10.04  

Entire Agreement

     60   
Section 10.05  

Parties in Interest

     61   
Section 10.06  

Public Disclosure

     62   
Section 10.07  

Expenses

     62   
Section 10.08  

Governing Laws; Jurisdiction; Waiver of Jury Trial

     62   
Section 10.09  

Arbitration

     62   

 

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Section 10.10  

Counterparts

     64   
Section 10.11  

Rules of Construction

     64   
Section 10.12  

Representations and Warranties

     64   
Section 10.13  

Non-Severability

     65   
Section 10.14  

English Language Only

     65   
Section 10.15  

Valuation Procedure for FMV

     66   
Section 10.16  

Time of the Essence

     66   

 

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EXHIBITS

 

Exhibit A:

  Form of IPCo Promissory Note

Exhibit B:

  Form of Legal Mortgage of Alibaba Shares

Exhibit C:

  Form of Legal Mortgage of IPCo Shares

Exhibit D:

  Form of IPCo Asset Charge

Exhibit E:

  Form of Release Agreement

Exhibit F:

  Form of IPCo Organizational Documents

Exhibit G:

  Form of Alibaba Board Resolution

Exhibit H:

  Form of PRC Enforceability Opinion

Exhibit I:

  Form of Cayman Islands Enforceability Opinion

Exhibit J:

  Form of Solvency Certificate

 

SCHEDULES

 

Schedule 1.01:

  Management Group

Schedule 2.01(a):

  Alibaba Restructuring

Schedule 2.01(b):

  Transferred Entity

Schedule 2.02(b):

  Retained Business Assets

Schedule 2.04:

  Assumed Business Liabilities

Schedule 2.08(a):

  Transferred Employees

Schedule 2.10:

  Cross-License Terms

Schedule 6.04:

  Litigation

 

ANNEXES

 

Annex A:

  JMY Account Pledge Collateral Agreement

Annex B:

  JT Account Pledge Collateral Agreement

Annex C:

  Joinder Agreement

Annex D:

  Shortfall Amount Mortgage

 

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FRAMEWORK AGREEMENT

This Framework Agreement, dated as of July 29, 2011 (this “Agreement”) is made and entered into by and among Alibaba Group Holding Limited, a company organized under the laws of the Cayman Islands (“Alibaba”), SOFTBANK CORP., a Japanese corporation and shareholder of Alibaba (“Softbank”), Yahoo! Inc., a Delaware corporation and shareholder of Alibaba (“Yahoo!”), 支付宝(中国)网络技术有限公司 (Alipay.com Co., Ltd.), a limited liability company organized under the laws of the People’s Republic of China (“OpCo”), APN Ltd., a company organized under the laws of the Cayman Islands (“IPCo”), 浙江阿里巴巴电子商务有限公司 (Zhejiang Alibaba E-Commerce Co., Ltd.), a limited liability company organized under the laws of the People’s Republic of China (“HoldCo”), the Joinder Parties and, solely with respect to the Sections referred to in Section 10.05, Jack Ma Yun (“JMY”) and Joseph Chung Tsai (“JT”). Alibaba, Softbank, Yahoo!, OpCo, IPCo, HoldCo, the Joinder Parties and, with respect to the referenced Sections, JMY and JT are herein referred to individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, this Agreement contemplates the transfer of certain assets and certain employees between Alibaba and its subsidiaries, and HoldCo, OpCo and their respective subsidiaries, in each case as specified herein;

WHEREAS, this Agreement contemplates certain payments, as specified herein, to be made by HoldCo to Alibaba or Alibaba’s subsidiaries, which payments (excluding the repayment of the IPCo Promissory Note (defined below)) serve as consideration in part for the restructuring of the OpCo business resulting in the deconsolidation of OpCo by Alibaba;

WHEREAS, subject to the terms and conditions of this Agreement, IPCo has agreed to issue to Alibaba an interest-free note due seven (7) years after the Effective Time, or sooner or later under certain circumstances, in the principal amount of Five Hundred Million Dollars (US$500,000,000), substantially in the form attached hereto as Exhibit A (the “IPCo Promissory Note”), the payment of which shall serve as consideration for the transfer of certain intellectual property held by Alibaba to OpCo or certain Persons designated by OpCo pursuant to Section 2.10;

WHEREAS, subject to the terms and conditions of this Agreement, JMY and JT have agreed to transfer in the aggregate Fifty Million (50,000,000) Alibaba Shares owned directly or indirectly by them (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like) (collectively, the “Alibaba Share Collateral”) to IPCo;

WHEREAS, subject to the terms and conditions of this Agreement, IPCo shall pledge and mortgage the Alibaba Share Collateral to serve as collateral and secure certain payment obligations pursuant to a Legal Mortgage of Shares, substantially in the form attached hereto as Exhibit B (the “Legal Mortgage of Alibaba Shares”);


WHEREAS, subject to the terms and conditions of this Agreement, JMY and JT shall pledge and mortgage, or cause to be pledged and mortgaged, all of the authorized share capital of IPCo (the “IPCo Share Collateral”) to serve as collateral and secure certain payment obligations pursuant to a Legal Mortgage of Shares, substantially in the form attached hereto as Exhibit C (the “Legal Mortgage of IPCo Shares”, together with the Legal Mortgage of Alibaba Shares, the “Legal Mortgages”);

WHEREAS, subject to the terms and conditions of this Agreement, IPCo shall pledge all of its Assets to serve as collateral to secure certain payment obligations pursuant to a fixed and floating charge, substantially in the form attached hereto as Exhibit D (the “IPCo Asset Charge”);

WHEREAS, concurrently with the execution of this Agreement, Alibaba and OpCo have entered into a commercial agreement, pursuant to which Alibaba and its subsidiaries will have the right to receive services from OpCo and its subsidiaries on the terms specified therein, effective as of the Effective Time (the “Commercial Agreement”);

WHEREAS, concurrently with the execution of this Agreement, Alibaba has entered into an agreement to license to OpCo certain technology and other intellectual property and to perform various software technology services for OpCo, effective as of the Effective Time (the “Intellectual Property License and Software Technology Services Agreement”);

WHEREAS, concurrently with the execution of this Agreement, Alibaba and HoldCo have entered into a shared services agreement, pursuant to which Alibaba and HoldCo will provide certain administrative and support services to each other and their respective affiliates, in each case, on the terms set forth therein, effective as of the Effective Time (the “Shared Services Agreement”);

WHEREAS, concurrently with the execution of this Agreement, Alibaba has entered into an option agreement with HoldCo, pursuant to which HoldCo shall be granted an option exercisable by HoldCo to acquire (or to designate any of its Affiliates to acquire) certain real estate or the equity interest in certain special purpose vehicles holding such real estate owned by Alibaba or Alibaba’s Subsidiaries, effective as of the Effective Time (the “Real Estate Option Agreement”); and

WHEREAS, subject to the terms and conditions of this Agreement, Alibaba, Yahoo! and Softbank shall execute a release agreement in favor of JMY, JT, SX, HoldCo and other parties referred to therein, which shall include a ratification of certain prior transactions of Alibaba, substantially in the form attached hereto as Exhibit E (the “Release Agreement” together with this Agreement, the IPCo Promissory Note, the Security Documents (as defined below), Commercial Agreement, Intellectual Property License and Software Technology Services Agreement, Shared Services Agreement, and the Real Estate Option Agreement, and together with the schedules, annexes and exhibits thereto, the “Transaction Documents”);

 

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NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

ARTICLE I

DEFINITIONS AND TERMS

Section 1.01 Definitions.

(a) As used herein, the following terms shall have the following meanings:

Account Pledge Agreements” means (a) the Account Collateral Pledge Agreement made between JMY, as pledgor, and a collateral agent for Alibaba, in the form attached as Annex A hereto, together with the “Control Agreements” referenced therein, and (b) the Account Collateral Pledge Agreement made between JT, as pledgor, and a collateral agent for Alibaba, in the form attached as Annex B hereto, together with the “Control Agreements” referenced therein.

Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person; provided that, for the purposes of this definition, “control” (including with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting Securities, by Contract or otherwise.

Alibaba Business” means the business of Alibaba and its Subsidiaries (excluding, for the avoidance of doubt, the Business) as such businesses are conducted as of the date hereof, together with any and all logical extensions of the business of Alibaba and its Subsidiaries (other than extensions into the Business in the PRC).

Alibaba Competitor” means any entity or person that directly or indirectly competes with Alibaba or any of its Subsidiaries in the Alibaba Business (or any portion thereof) in the Business Area at any time during the Restricted Period and/or whose business is or includes the Alibaba Business (or any portion thereof) in the Business Area; provided that for purposes of this definition, the “Alibaba Business” shall not include the provision of financing products, the issuance of benefits, discounts and virtual currency provided under loyalty programs (other than, in each case, group buying and online coupons related to group buying) and the provision of foreign exchange services.

Alibaba Costs” means the consolidated pre-tax costs and expenses incurred by OpCo IT and its Subsidiaries in the course of providing the Software Technology Services.

Alibaba Independent Actions” means: (i) under this Agreement and under each other Transaction Document (other than the Commercial Agreement, the Intellectual Property License and Software Technology Services Agreement and the Shared Services Agreement), all actions, consents, determinations, decisions, directions, approvals, enforcement of rights, authorizations, registrations, declarations and filings to be taken or made by Alibaba, or that are specified to be made or approved by the Independent Directors, and (ii) under the Commercial Agreement, the Intellectual Property License and Software Technology Services Agreement and the Shared Services Agreement, all actions, consents, determinations, decisions, directions, approvals, enforcement of rights, authorizations, registrations, declarations and filings specified in such agreements to be taken by, or with the unanimous approval of, the Independent Directors.

 

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Alibaba Shares” means ordinary shares of Alibaba, par value $0.000025 per share.

Assets” means all assets, properties and rights (including Intellectual Property Rights) of every nature, kind and description, whether tangible or intangible (including goodwill), whether real, personal or mixed, whether accrued, contingent or otherwise, and whether now existing or hereinafter acquired, and whether or not carried, reflected or specifically referred to, or of a nature that would be carried, reflected or specifically referred to, in a balance sheet.

Beneficial Owner” of any Security means any Person who (i) directly or indirectly owns all or any part of such Security, (ii) has the ability to derive a financial benefit from such Security, (iii) has the ability to direct the voting or Transfer of all or any part of such Security (including any Person who is part of a larger committee or group that collectively has such ability), or (iv) has the right (present, contingent or otherwise, and with or without the passage of time, the occurrence of an event or upon one or more other conditions) to become a Person described in any of clauses (i), (ii) and (iii) of this definition.

Business” means the business of providing payment and escrow services, including but not limited to the provision of payment accounts, processing, clearing, settlement, network and merchant acquisition services; pre-paid, credit or debit cards or accounts; escrow accounts and processing; and cash on delivery services, whether provided through online, mobile, electronic or physical means.

Business Area” means the entire world.

Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions located in Beijing, Hong Kong or the Cayman Islands are authorized or obligated by Laws to close.

Capital Lease Obligations” means, as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under IFRS and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with IFRS.

Cash and Cash Equivalents” means cash, checks, money orders, marketable Securities, short-term instruments and other cash equivalents, funds in time and demand deposits or similar accounts, and any evidence of Indebtedness issued or guaranteed by the United States or the PRC.

 

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Collateral” means, collectively, all the property (whether personal, real, mixed or otherwise) which is subject or is intended to become subject to the security interests or Liens granted by any of the Security Documents, including the Pledged Assets.

Confidential Information” means information delivered by or on behalf of a Party to another Party or its Representatives (i) in connection with the Transactions 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, or (ii) pursuant to Section 7.09, 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 of its Representatives (and, in the case of JMY, JT, IPCo, HoldCo or OpCo, through no act or omission of any potential investor of OpCo or HoldCo), 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.

Contingent Consideration” means the aggregate value of any purchase price adjustment, earnout or other contingent consideration in respect of a Liquidity Event or Later Event, as applicable, paid to HoldCo, OpCo, any Subsidiary of OpCo or HoldCo or any Beneficial Owner of Securities of HoldCo, when paid.

Contract” means any loan or credit agreement, bond, debenture, note, mortgage, indenture, lease, supply agreement, license agreement, development agreement or other contract, agreement, obligation, commitment or instrument, including all amendments thereto.

Distribution” means the transfer of Cash and Cash Equivalents or other Assets or rights by a Person to the Security owners of such Person with respect to their Securities, whether by dividend, distribution, capital decrease, or otherwise.

Dollars” and “US$” shall each mean lawful money of the United States, and payments of Dollars or US$ described in this Agreement, when due, shall be made by wire transfer of immediately available funds.

Enterprise Value of OpCo” means the Equity Value of OpCo plus its consolidated outstanding Indebtedness, less Cash and Cash Equivalents.

Equity Value of OpCo” means, in the case of a Liquidity Event or Later Event, (a) the value of all Securities of OpCo outstanding immediately prior to consummation of such Liquidity Event or Later Event implied by the consideration for which the Securities or Assets are Transferred in such Liquidity Event or Later Event plus (b) Contingent Consideration; (provided that (i) any portion of the consideration described in foregoing clauses (a) and (b) consisting of marketable Securities traded on a securities exchange shall be valued at Fair Market Value and (ii) any portion of the items described in foregoing clauses (a) and (b) consisting of consideration other than marketable Securities traded on a securities exchange or cash, shall be valued according to the Valuation Procedure); provided, that if the Liquidity Event is a Qualified IPO, the Equity Value of OpCo shall be the pre-money valuation of all Securities of OpCo implied by the offering price in such Qualified IPO.

 

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Estate Planning Vehicles” means trusts formed by a Person for the sole benefit of such Person or such Person’s Family Members (including any holding company directly or indirectly held by such trusts), family limited partnerships and other Persons formed for the sole benefit of such Person and such Person’s Family Members.

Fair Market Value” means (a) with respect to publicly traded Securities, the volume weighted average trading price of such Securities for the last thirty (30) consecutive trading days prior to the date on which the Fair Market Value is being measured, as reported by Bloomberg L.P., (b) with respect to cash in a currency other than Dollars, the value of such cash in Dollars based on the average spot exchange note for the last thirty (30) consecutive trading days prior to the date on which the Fair Market Value is being measured, as reported by Bloomberg L.P., or (c) with respect to any other Securities or other Assets, the fair market value, as of the date on which Fair Market Value is being measured, determined by the Valuation Procedure.

Family Members” means 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.

Final Payment Date” means the date that the Liquidity Event Payment, Increase Payment and the IPCo Promissory Note have been paid in full.

Governmental Authority” means any instrumentality, subdivision, court, administrative agency, commission, official or other authority of any country, state, province, prefect, municipality, locality or other government or political subdivision thereof, or any stock or securities exchange, or any multi-national, quasi-governmental or self-regulatory or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority.

Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, determination or award of any Governmental Authority.

Guarantee Obligation” means, as to any Person (the “guaranteeing person”), any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent,

(i) to purchase any such primary obligation or any property constituting direct or indirect security therefor,

(ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor,

 

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(iii) to purchase property, Securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or

(iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business.

The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof.

HoldCo Liquidity Event” means any of:

(a) a public offering covering the offer and sale of Securities of HoldCo;

(b) a Transfer of Beneficial Ownership of thirty-seven and one-half percent (37.5%) or more of the Securities of HoldCo, with such percentage determined on a fully-diluted basis, using the treasury stock method, with respect to either voting or economic rights, whether in a single transaction or in a series of transactions (whether related or unrelated); or

(c) a Transfer, whether in a single transaction or in a series of transactions (whether related or unrelated), of all or substantially all of the Assets of HoldCo (including, for the avoidance of doubt, shares or Assets of HoldCo’s Subsidiaries).

HoldCo Shareholder” means each of JMY and each other Person who (i) is or becomes a “beneficial owner” (as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of any Securities of HoldCo or (ii) has the right (present, contingent or otherwise, and with or without the passage of time, the occurrence of an event or upon one or more other conditions) to become a Person described in clause (i) of this definition.

IFRS” shall mean International Financial Reporting Standards.

Impact Payment” means a payment amount calculated as set forth in Schedule 7.1 to the Commercial Agreement.

Indebtedness” of any Person at any date, means, without duplication,

(a) all indebtedness of such Person for borrowed money,

 

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(b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables incurred in the ordinary course of such Person’s business),

(c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments,

(d) all indebtedness created or arising under any conditional sale or other title retention agreement,

(e) all Capital Lease Obligations of such Person,

(f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements,

(g) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (f) above,

(h) all obligations of the kind referred to in clauses (a) through (g) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, and

(i) all obligations of such Person in respect of Swap Agreements.

The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity.

Independent Directors” means the members of the Alibaba board of directors designated by Yahoo! and Softbank and elected pursuant to the Shareholders Agreement (and not designated by any non-Affiliate of Yahoo! or Softbank who is a transferee of either of their Alibaba shares) taking action as described in Section 7.11; provided that if neither Yahoo! nor Softbank has a director designated and elected pursuant to the Shareholders Agreement, then the sole Independent Director shall be an individual designated by a single holder, or group of related holders acting together, of at least a majority of the outstanding Alibaba Shares.

Intellectual Property” means all

(a) patents, patent applications, and patent disclosures, including all provisionals, reissuances, continuations, continuations-in-part divisions, revisions, extensions, reexaminations and counterparts thereof, inventions (whether patentable or unpatentable and whether or not reduced to practice) and all improvements thereto;

 

8


(b) trademarks, service marks, trade dress, logos, brand names, trade names, domain names and corporate names, and all goodwill associated therewith and all applications, registrations, and renewals in connection therewith;

(c) copyrights, works of authorship and copyrightable works, including software, data and databases, website and other content, documentation and all applications, registrations, and renewals in connection therewith; and

(d) trade secrets, know-how, information and/or technology of any kind (including processes, procedures, research and development, ideas, concepts, formulas, algorithms, compositions, production processes and techniques, technical data, designs, drawings, specifications, research records and records of inventions).

Intellectual Property Rights” means any and all rights with respect to Intellectual Property, throughout the world.

Interest Rate” means two percent (2%) plus the two (2)-year U.S. Treasury rate as published in The Wall Street Journal New York edition on the date in the United States that the Initial Liquidity Event Payment is made or if such rate ceases to be available or is not published, the most closely comparable rate.

IPCo Note Amount” means, at any date of determination, the total amount of principal outstanding and accrued unpaid interest under the IPCo Promissory Note as of such date.

Joinder Parties” means those Persons who have executed a Joinder Agreement.

Laws” means any federal, state, territorial, foreign or local law, common law, statute, ordinance, rule, regulation, code, measure, notice, circular, opinion or executive order of any Governmental Authority.

Liabilities” means any and all Indebtedness, liabilities and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured or determined or determinable.

Liens” means any mortgage, deed of trust, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement or rights of preemption of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).

Liquidity Event” means the earliest to occur of:

(a) a Qualified IPO;

(b) a Transfer of thirty-seven and one-half percent (37.5%) or more of the Securities of OpCo, with such percentage determined on a fully-diluted basis, using the treasury stock method, with respect to either voting or economic rights, whether in a single transaction or in a series of transactions (whether related or unrelated), to an Unrelated Third Party or to Unrelated Third Parties, pursuant to one or more bona fide arms-length negotiated agreements; and

 

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(c) a bona fide sale and exit from the Business through a sale of all or substantially all of the Assets of OpCo (including, for the avoidance of doubt, shares or Assets of OpCo’s Subsidiaries), to an Unrelated Third Party or to Unrelated Third Parties, whether in a single transaction or in a series of transactions (whether related or unrelated), pursuant to one or more bona fide arms-length negotiated agreements.

Management Group” means the specified or described management employees of Alibaba or OpCo listed on Schedule 1.01; provided that JMY shall not be deemed a member of the Management Group.

MOFCOM” means the Ministry of Commerce of the People’s Republic of China.

OpCo Competitor” means any entity or person that directly or indirectly competes with OpCo or any of its Subsidiaries in the Business (or any portion thereof) in the PRC at any time during the Restricted Period and/or whose business is or includes the Business (or any portion thereof) in the PRC; provided, that for purposes of this definition, the “Business” shall not include the activities described in Section 7.13(a)(iii).

OpCo Group” means OpCo and its Subsidiaries.

OpCo IT” means Alipay (China) Information Technology Co. Ltd.

Other Group” means Subsidiaries of HoldCo or other Persons in which HoldCo directly or indirectly owns Securities or other economic interests but excluding the OpCo Group.

PBOC” means the headquarters of the People’s Bank of China located in Beijing and not, for the avoidance of doubt, any regional or local office of the People’s Bank of China.

Person” means an individual, a partnership, a corporation, an association, a limited liability company, a joint stock company, a trust, a joint venture, an unincorporated organization, a group, a Governmental Authority or any other type of entity.

PRC” means the People’s Republic of China (for the purpose of this Agreement, not including Hong Kong Special Administrative Region, Macao Special Administrative Region or Taiwan).

PRC Antitrust Laws” means the Antimonopoly Laws of the People’s Republic of China, and various regulations and rules promulgated by the China State Council and various ministerial level government departments that are relevant for the implementation and enforcement of the Antimonopoly Laws.

 

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Proceeding” means any action, suit, claim, hearing, proceeding, arbitration, mediation, audit, inquiry, or investigation (whether civil, criminal, administrative or otherwise) by any Person or Governmental Authority.

Qualified IPO” means an initial public offering, covering the offer and sale of Securities of OpCo, provided that: (i) the aggregate gross proceeds to OpCo and HoldCo are not less than Seven Hundred Fifty Million Dollars (US$750,000,000) and (ii) immediately following such offering, the Securities of OpCo sold in the offering are listed on the largest capitalization listing tier of any of the following: New York Stock Exchange, NASDAQ, London Stock Exchange, Hong Kong Stock Exchange, Shenzhen Stock Exchange or Shanghai Stock Exchange (for example, as of the date of this Agreement, for NASDAQ, the NASDAQ Global Select Market or for the London Stock Exchange, Main Market Primary Listing).

Related Party” of any Person means:

(a) any Person who, individually or as part of a group, Beneficially Owns more than five percent (5%) of the Securities of such Person, determined on a fully-diluted basis, using the treasury stock method,

(b) any officer or director, or individual performing an equivalent function, of such Person or any Person named in clause (a),

(c) any Family Member of any such Person or any Person named in clause (a) or (b), or

(d) any other Person in which any Person named in clauses (a), (b) or (c) Beneficially Owns more than twenty percent (20%) of the Securities of such Person, determined on a fully-diluted basis, using the treasury stock method.

Related Party Transaction” means any transaction or Contract between (a) HoldCo, OpCo, IPCo or any Person in which HoldCo, OpCo, or IPCo Beneficially Owns more than twenty percent (20%) of the Securities of such Person, determined on a fully-diluted basis, using the treasury stock method, on the one hand, and (b) HoldCo, OpCo, IPCo or any Related Party of HoldCo, OpCo or IPCo on the other hand, other than (x) as required by the Transaction Documents or (y) any transaction or Contract between the Other Group and any Person who is a Related Party of HoldCo (disregarding for this purpose clause (d) of the definition of “Related Party”).

Representatives” means a Person’s Affiliates, directors, managers, officers, employees, agents, attorneys, consultants, advisors or other representatives.

Royalty” has the meaning set forth for such term in the Intellectual Property License and Software Technology Services Agreement.

SAFE” means the State Administration of Foreign Exchange of the People’s Republic of China.

 

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Securities” means any equity capital or equity security, and rights, options or warrants or other Contracts to purchase any equity capital or equity security, and any equity capital or equity securities or Contracts of any type whatsoever that are, or may become, convertible into or exchangeable for such equity capital or equity security or that derive value, in whole or in part, from any equity capital or equity security (including Swap Agreements), or represent the right to share in the profits, income or revenues of the relevant Person.

Security Documents” means the Legal Mortgages, the IPCo Asset Charge and, upon its execution, any Shortfall Security Document; provided, that for purposes of Sections 4.13, 7.15(n), 8.02(c) and 8.03(f) this definition shall not include a Shortfall Amount Mortgage.

Shareholders Agreement” means Alibaba’s Shareholders Agreement, dated as of October 24, 2005, as amended.

Software Technology Services Fee” has the meaning set forth for such term in the Intellectual Property License and Software Technology Services Agreement.

Solvent” means, with respect to any Person, that:

(i) the property of such Person, at a present fair saleable valuation, exceeds the sum of its Liabilities (including the present value of contingent and unliquidated Liabilities),

(ii) the present fair saleable value of the property of such Person exceeds the amount that will be required to pay such Person’s probable Liabilities as they become absolute and matured,

(iii) such Person has adequate capital to carry on its business, and

(iv) such Person has not incurred Liabilities beyond its ability to pay such Liabilities as they mature.

In computing the amount of contingent or unliquidated Liabilities at any time, such Liabilities will be computed at the amount which, in light of all the facts and circumstances known at such time, represents the amount that can reasonably be expected to become actual or matured Liabilities.

Subsequent Liquidity Event” means, following a First Event, the earliest to occur of:

(a) a Qualified IPO;

(b) a Transfer of thirty-seven and one-half percent (37.5%) or more of the Securities of OpCo, with such percentage determined on a fully-diluted basis, using the treasury stock method, with respect to either voting or economic rights, whether in a single transaction or in a series of related transactions (whether related or unrelated), to an Unrelated Third Party or to Unrelated Third Parties, pursuant to one or more bona fide arms-length negotiated agreements;

 

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(c) a bona fide sale and exit from the Business through a sale of all or substantially all of the Assets of OpCo, to an Unrelated Third Party or to Unrelated Third Parties, whether in a single transaction or in a series of related transactions (whether related or unrelated), pursuant to one or more bona fide arms-length negotiated agreements; and

(d) a HoldCo Liquidity Event.

Subsidiary” means, with respect to any Person, each other Person in which the first Person (i) owns or controls, directly or indirectly, share capital or other equity interests representing more than fifty percent (50%) of the outstanding voting stock or other equity interests, (ii) holds the rights to more than fifty percent (50%) of the economic interest of such other Person, including interest held through a VIE Structure or other contractual arrangements, or (iii) has a relationship such that the financial statements of the other Person may be consolidated into the financial statements of the first Person under applicable accounting conventions.

Swap Agreement” means any agreement with respect to any swap, hedge, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or Securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions.

SX” means Xie Shihuang.

Tax” or “Taxes” means any federal, state, county, national, provincial, local, or foreign tax (including transfer taxes), charge, fee, levy, impost, duty, or other assessment, including income, gross receipts, excise, employment, sales, use, transfer, recording, license, payroll, franchise, severance, documentary, stamp, occupation, windfall profits, environmental, highway use, commercial rent, customs duty, capital stock, paid-up capital, profits, withholding, social security, single business, unemployment, disability, real property, personal property, registration, ad valorem, value added, alternative or add-on minimum, estimated, or other tax or governmental fee of any kind whatsoever, imposed or required to be withheld by any Governmental Authority, including any estimated payments relating thereto, any interest, penalties, and additions imposed thereon or with respect thereto.

Transaction Expenses” means all expenses incurred in connection with the applicable transaction, including underwriting fees as applicable, provided that such expenses are customary and within a reasonable range.

Transactions” means the transactions contemplated by the Transaction Documents.

Transfer” means and includes any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, including but not limited to transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors, whether voluntary or by operation of law, or by forward or reverse merger, directly or indirectly; provided, that in no event shall a Transfer of any HoldCo Securities (other than a HoldCo Security that disproportionately derives its value from the value of OpCo (including tracking stock)) be deemed to be a Transfer of any OpCo Securities.

 

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United States” means the United States of America.

Unrelated Third Party” means any Person that is not a Related Party.

VIE Structure” means the investment structure a non-PRC investor uses when investing in a PRC company or business that typically operates in a regulated industry. Under such investment structure, the onshore PRC operating entity and its PRC shareholders enter into a number of Contracts with the non-PRC investor (or a foreign invested enterprise incorporated in the PRC) and/or its onshore WFOE pursuant to which the non-PRC investor achieves control of the onshore PRC operating entity and also consolidates the financials of the onshore PRC entity with those of the offshore non-PRC investor.

WFOE” means wholly foreign owned enterprise formed under the Laws of the PRC.

Each of the following terms is defined in the Section set forth opposite of such term:

 

TERM

 

SECTION

6th Anniversary

  Section 2.09(f)

7th Anniversary

  Section 2.09(f)

Additional Alibaba Shares

  Section 7.15(l)

Agreement

  Preamble

Alibaba

  Preamble

Alibaba Bank

  Section 10.16

Alibaba Share Collateral

  Recitals

Alibaba Share Pledge

  Section 7.15(k)

beneficially own

  Section 7.13(a)(i)

Benefit

  Section 7.08

Benefiting Party

  Section 7.08

Ceiling Amount

  Section 2.09(b)(ii)

Ceiling Amount Increase

  Section 2.09(f)

Claimant

  Section 10.09(b)

Closing

  Section 2.13

Collateral Agent

  Section 7.15(j)

Commercial Agreement

  Recitals

Cross-License Agreement

  Section 2.10(c)

Detriment

  Section 7.08

Directors’ Appointee

  Section 7.12

Disclosure Letter

  ARTICLE IV

 

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Effective Time

  Section 2.13

Excluded Assets

  Section 2.02(a)

Existing IP Agreements

  Section 7.15(p)

Fee Letter

  Section 7.15(j)

First Event

  Section 2.09(c)

Floor Amount

  Section 2.09(b)(i)

Floor Amount Increase

  Section 2.09(f)

HoldCo

  Preamble

HoldCo Bank

  Section 10.16

HoldCo Permitted Operations

  Section 7.03(d)

ICC

  Section 10.09(a)

Increase Payment

  Section 2.09(f)

Initial Banks

  Section 10.16

Initial Liquidity Event Payment

  Section 2.09(d)(ii)

Initial Make-Whole Payment

  Section 2.09(d)(iv)

Intellectual Property License and Software Technology Services Agreement

  Recitals

IPCo

  Preamble

IPCo Asset Charge

  Recitals

IPCo Promissory Note

  Recitals

IPCo Share Collateral

  Recitals

IPO Transfer

  Section 2.10(b)

JMY

  Preamble

JT

  Preamble

Later Event

  Section 2.09(c)

Legal Mortgage of Alibaba Shares

  Recitals

Legal Mortgage of IPCo Shares

  Recitals

Legal Mortgages

  Recitals

Liquidity Event Payment

  Section 2.09(a)

Make-Whole Payment

  Section 2.09(c)

Management Group Schedule

  Section 7.05(a)

Meeting Notice

  Section 7.11(b)

Non-Benefiting Party

  Section 7.08

OpCo

  Preamble

Outside Date

  Section 9.01(a)(ii)

Parties

  Preamble

Party

  Preamble

Pledged Assets

  Section 7.15(l)

PwC

  Section 8.03(m)

Real Estate Option Agreement

  Recitals

Regulatory Approvals

  Section 7.02(a)

Release Agreement

  Recitals

Request

  Section 10.09(b)

Respondent

  Section 10.09(b)

Restricted Period

  Section 7.13(a)

Retained Business Assets

  Section 2.02(b)

Retained Business Liabilities

  Section 2.05

 

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Retained Entity

  Section 2.02(b)

Retained Equity Interests

  Section 2.02(b)

Shared Services Agreement

  Recitals

Shortfall Amount

  Section 7.15(l)

Shortfall Amount Mortgage

  Section 7.15(l)

Shortfall Security Documents

  Section 7.15(l)

Softbank

  Preamble

Substitution

  Section 7.15(l)

Third Bank

  Section 10.16

Total Taxes

  Section 2.09(h)

Transaction Documents

  Recitals

Transaction Meeting

  Section 7.11(a)

Transferred Entity

  Section 2.01(b)

Transferred Equity Interests

  Section 2.01(b)

US Collateral

  Section 7.15(l)

Valuation Procedure

  Section 10.16

Yahoo!

  Preamble

Section 1.02 Construction. In this Agreement, unless the context otherwise requires:

(a) any reference in this Agreement to “writing” or comparable expressions includes a reference to facsimile transmission or comparable means of communication (but excluding e-mail communications);

(b) words expressed in the singular number shall include the plural and vice versa, and words expressed in the masculine shall include the feminine and neutral genders and vice versa;

(c) references to Articles, Sections, Exhibits, Schedules and Recitals are references to articles, sections, exhibits, schedules and recitals of this Agreement;

(d) references to “day” or “days” are to calendar days;

(e) references to this “Agreement” or any other agreement or document shall be construed as references to this Agreement or, as the case may be, such other agreement or document as the same may have been, or may from time to time be, amended, varied, novated or supplemented;

(f) a reference to a Subsection without further reference to a Section is a reference to such Subsection as contained in the same Section in which the reference appears, and this rule shall also apply to Paragraphs and other subdivisions;

(g) the table of contents to this Agreement and all section titles or captions contained in this Agreement or in any Schedule or Exhibit annexed hereto or referred to herein are for convenience only and shall not be deemed a part of this Agreement and shall not affect the meaning or interpretation of this Agreement;

 

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(h) “include,” “includes,” and “including” are deemed to be followed by “without limitation” whether or not they are in fact followed by such words or words of similar import;

(i) the words “herein”, “hereof”, “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular provision; and

(j) references to a Person are also to its permitted successors and assigns and, in the case of an individual, to his or her heirs and estate, as applicable.

Section 1.03 Schedules, Annexes and Exhibits. The Schedules, Annexes and Exhibits to this Agreement are incorporated into and form an integral part of this Agreement. If an Annex or Exhibit is a form of agreement, such agreement, when executed and delivered by the parties thereto, shall constitute a document independent of this Agreement.

ARTICLE II

TRANSFERS AND PAYMENT

Section 2.01 Transfers Prior to the Effective Time; Transfer of the Transferred Equity Interests to OpCo.

(a) Prior to the Closing, Alibaba shall undertake, and cause its Subsidiaries to undertake, the internal restructuring steps set forth on Schedule 2.01(a), provided that such restructuring steps may be effected after the Closing if any regulatory approvals required in connection with the steps set forth on Schedule 2.01(a) have not been obtained prior to the Closing.

(b) Upon the terms and subject to the conditions set forth herein, at the Closing, Alibaba and its Subsidiaries shall convey, assign and transfer to OpCo, and OpCo shall acquire and accept from Alibaba and its Subsidiaries, all of Alibaba’s right, title and interest in and to all of the outstanding equity of the entity set forth on Schedule 2.01(b) (such entity, the “Transferred Entity,” and the equity in such entity, collectively, the “Transferred Equity Interests”), provided that the transfer of the Transferred Equity Interests pursuant to this Section 2.01(b) may be effected after the Closing if any regulatory approvals required in connection with the transfer of the Transferred Equity Interests have not been obtained prior to the Closing.

Section 2.02 Excluded Assets of the Business.

(a) Notwithstanding any provision in this Agreement to the contrary, OpCo shall not acquire from Alibaba or any of its Subsidiaries at the Closing any assets of the Business or of Alibaba or any of its Subsidiaries other than the Transferred Equity Interests (the “Excluded Assets”).

(b) Subject to Section 2.10 but notwithstanding any other provision in this Agreement to the contrary, OpCo shall not acquire from Alibaba or any of its Subsidiaries any asset or right to the outstanding equity of the entities set forth on Schedule 2.02(b) (each such entity, a “Retained Entity,” and the equity in such entities, collectively, the “Retained Equity Interests”) or to any other assets set forth and described on Schedule 2.02(b) (collectively, including the Retained Equity Interests, the “Retained Business Assets”). Alibaba (and any of its applicable Subsidiaries) shall solely and exclusively own and continue to own all right, title and interest in and to the Retained Business Assets until such time when the Retained Business Assets shall be transferred to OpCo pursuant to Section 2.10.

 

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(c) After the Effective Time, HoldCo and OpCo shall take all actions (or shall cause their respective Affiliates to take all actions) reasonably requested by Alibaba to effect the provisions of this Section 2.02, including the prompt return of any Excluded Assets and/or Retained Business Assets, that were owned by Alibaba or any of its Subsidiaries and were transferred at any time prior to the Closing or inadvertently at Closing (which Excluded Assets and/or Retained Business Assets HoldCo and OpCo or their respective Affiliates shall be deemed to hold in trust for the benefit of Alibaba or its Subsidiaries until returned to Alibaba or its Subsidiaries).

Section 2.03 [Reserved].

Section 2.04 Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, OpCo agrees, effective as of the Closing, to assume from Alibaba and its Subsidiaries, any Liabilities (known or unknown) not already assumed, primarily related to the conduct of the Business including without limitation those set forth on Schedule 2.04 other than the Retained Business Liabilities.

Section 2.05 Retained Liabilities of the Business. Notwithstanding any provision in this Agreement to the contrary, Alibaba and its Subsidiaries shall retain and be responsible only for the Liabilities relating to the business of the Retained Entities (the “Retained Business Liabilities”). The Retained Business Liabilities shall remain the sole and exclusive obligation of Alibaba or any of its Subsidiaries until such time when the Retained Equity Interests shall be transferred to OpCo pursuant to Section 2.10.

Section 2.06 HoldCo IP Assets. As soon as reasonably practical following the Effective Time but no sooner than OpCo has received an internet content provider license, HoldCo shall convey, assign and transfer to OpCo, and OpCo shall acquire and accept from HoldCo, HoldCo’s right title and interest in and to all of HoldCo’s trademarks and domain names relating to the Business.

Section 2.07 [Reserved]

Section 2.08 Transfer of Employees.

(a) At or prior to the Closing, Alibaba agrees to engage in the internal transfers of employees of Alibaba and its Subsidiaries set forth on Schedule 2.08(a).

(b) At or prior to the Final Payment Date, each of Alibaba and OpCo agrees that, from time to time, if HoldCo notifies them that such transfer is necessary in connection with HoldCo’s regulatory compliance, OpCo shall transfer to OpCo IT any employees of itself and/or its Subsidiaries and Alibaba shall cause OpCo IT to transfer to OpCo any employees of OpCo IT and/or OpCo IT’s Subsidiaries, that (i) prior to such transfer are primarily dedicated to the Business and (ii) HoldCo designates for such transfer. All transfer, severance, Taxes or other costs and expenses associated with such transfers under this Section 2.08(b) shall be borne by HoldCo (or reimbursed by HoldCo to OpCo IT or Alibaba).

 

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(c) In the case of each transfer described in Sections 2.08(a) and (b) above, such transfer will be subject to the consent of each affected employee, and the failure to procure the consent of any employee to such transfer will not constitute a breach of this Section 2.08 by Alibaba or OpCo. Alibaba and OpCo shall use reasonable efforts to encourage employees to consent to such transfers, provided that, without limitation, “reasonable efforts” shall not, for purposes of this sentence, require any party to offer any payment or increase in compensation. Except with respect to the transfer, severance, Taxes or other costs and expenses associated with transfers pursuant to Section 2.08(b), OpCo shall reimburse Alibaba and its Subsidiaries for any expense or liability incurred in connection with such transfers.

Section 2.09 Liquidity Event Payment Right.

(a) Upon the occurrence of a Liquidity Event, HoldCo shall immediately become obligated, at the times and in the manner provided for herein, to pay to Alibaba an amount (as adjusted herein, the “Liquidity Event Payment”) equal to:

(i) Thirty-seven and one-half percent (37.5%) of the Equity Value of OpCo less

(ii) Five Hundred Million Dollars (US$500,000,000).

For the avoidance of doubt, HoldCo shall not be required to pay the Liquidity Event Payment more than once.

(b) Irrespective of the Equity Value of OpCo in a Liquidity Event, in no circumstances shall the Liquidity Event Payment plus Five Hundred Million Dollars (US$500,000,000) be:

(i) less than Two Billion Dollars (US$2,000,000,000) (as increased by any Floor Amount Increase, the “Floor Amount”), or

(ii) greater than Six Billion Dollars (US$6,000,000,000) (as increased by any Ceiling Amount Increase, the “Ceiling Amount”).

For the avoidance of doubt, it is understood that the Floor Amount and the Ceiling Amount shall not limit the amount of the Impact Payment, if any.

 

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(c) If, following a Liquidity Event described solely by clause (b) of the definition thereof that represents a Transfer of thirty-seven and one-half percent (37.5%) or more (but less than one hundred percent (100%)) of the Securities of OpCo (a “First Event”), a Subsequent Liquidity Event occurs within three (3) years after the date of the First Event (a “Later Event”), then as soon as reasonably practicable and in any event within ninety (90) days following the consummation of the Later Event, HoldCo shall (and in a Later Event constituting a HoldCo Liquidity Event, the HoldCo Shareholders shall or shall cause HoldCo to, provided that each HoldCo Shareholder other than JMY shall be severally but not jointly liable for the obligations set forth in this parenthetical, pro rata in accordance with the proportion of the amount of HoldCo Securities owned by such HoldCo Shareholder to the amount of all HoldCo Securities held by all HoldCo Shareholders who are obligated under this parenthetical; and provided further that JMY shall be jointly and severally liable for the obligations set forth in this parenthetical) pay to Alibaba an amount (the “Make-Whole Payment”) equal to the excess, if any, of (i) thirty-seven and one-half percent (37.5%) of the Equity Value of OpCo in the Later Event less Five Hundred Million Dollars (US$500,000,000), over (ii) the Liquidity Event Payment from the First Event; provided, that no more than one Later Event shall trigger a Make-Whole Payment. For the avoidance of doubt, in no event shall a Make-Whole Payment be made if the Liquidity Event Payment, had it been calculated with reference to the Later Event rather than the First Event, plus Five Hundred Million Dollars (US$500,000,000), would have been less than the Floor Amount. The foregoing notwithstanding, the Make-Whole Payment shall be reduced as necessary to ensure that the sum of the Liquidity Event Payment plus the Make-Whole Payment plus Five Hundred Million Dollars (US$500,000,000) does not exceed the Ceiling Amount. For the avoidance of doubt, the Make-Whole Payment shall not be required to be paid more than once.

(d) (i) In the event of a Liquidity Event the proceeds of which (net of Transaction Expenses and applicable taxes payable by OpCo or HoldCo) are in excess of or equal to the Liquidity Event Payment amount plus the associated Impact Payment amount, if any, plus the IPCo Note Amount, if any, HoldCo will pay the Liquidity Event Payment, the associated Impact Payment, if any, and HoldCo (on behalf of IPCo) or IPCo will pay the IPCo Note Amount, if any, in each case to Alibaba as soon as reasonably practicable and in any event within ninety (90) days following the consummation of such Liquidity Event; provided, that any portion of the Liquidity Event Payment arising due to any Contingent Consideration shall be paid by HoldCo to Alibaba as soon as reasonably practicable following the payment of such Contingent Consideration and in any event within ninety (90) days of the payment of such Contingent Consideration.

(ii) In the event of a Liquidity Event the proceeds of which (net of Transaction Expenses and applicable taxes payable by OpCo or HoldCo) are less than the Liquidity Event Payment amount plus the associated Impact Payment amount, if any, plus the IPCo Note Amount, if any, HoldCo will pay all of the proceeds of the Liquidity Event (net of Transaction Expenses and applicable taxes payable by OpCo or HoldCo) to Alibaba (the “Initial Liquidity Event Payment”) as soon as reasonably practicable and in any event within ninety (90) days following the consummation of such Liquidity Event, with the remainder of the Liquidity Event Payment plus the associated Impact Payment, if any, plus the IPCo Note Amount after giving effect to the Initial Liquidity Event Payment, if any, to be paid in three (3) equal installments due twelve (12), eighteen (18) and twenty-four (24) months after the date of such Liquidity Event; provided, that any portion of the Initial Liquidity Event Payment and the remainder of the Liquidity Event Payment arising in each case due to any Contingent Consideration shall be paid to Alibaba as soon as reasonably practicable following the payment of such Contingent Consideration and in any event within ninety (90) days of the payment of such Contingent Consideration. HoldCo shall apply the Initial Liquidity Event Payment, in the discretion of HoldCo, either (x) to the satisfaction of the IPCo Note Amount (which may be accomplished by the contribution or loan to IPCo of the funds resulting from the Liquidity Event, provided that IPCo shall promptly deliver all of such funds to Lender (as defined in the IPCo Promissory Note) as payments to be applied toward the satisfaction of the IPCo Note Amount), prior to the satisfaction of the other payments due hereunder or (y) ratably to the satisfaction of the IPCo Note Amount, Impact Payment, if any, and the Liquidity Event Payment; provided, that any amount applied to the satisfaction of the IPCo Note Amount shall be deemed paid on behalf of IPCo pursuant to the IPCo Promissory Note; provided, further, that Holdco shall be deemed to have elected to apply the Initial Liquidity Event Payment pursuant to the foregoing clause (x), and IPCo shall accordingly be deemed to be in payment default in respect of the IPCo Promissory Note to the extent of the lesser of the IPCo Note Amount and the Initial Liquidity Event Payment, if Holdco shall not have applied the Initial Liquidity Event Payment as set forth above within ninety (90) days of the occurrence of a Liquidity Event. IPCo shall pay the IPCo Note Amount, after giving effect to the foregoing election, ratably with the other applicable obligations on the installment dates referred to above; provided, that in any event IPCo shall pay the IPCo Note Amount in full no later than the twenty-fourth (24th) month following the date of said Liquidity Event.

 

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(iii) In the event of a Later Event the proceeds of which (net of Transaction Expenses and applicable taxes payable by OpCo or HoldCo) are in excess of or equal to the Make-Whole Payment amount plus the associated Impact Payment amount, if any, HoldCo will pay the Make-Whole Payment plus the associated Impact Payment, if any, to Alibaba as soon as reasonably practicable and in any event within ninety (90) days following the consummation of such Later Event; provided, that any portion of the Make-Whole Payment arising due to any Contingent Consideration shall be paid to Alibaba as soon as reasonably practicable following the payment of such Contingent Consideration and in any event within ninety (90) days of the payment of such Contingent Consideration.

(iv) In the event of a Later Event the proceeds of which (net of Transaction Expenses and applicable taxes payable by OpCo or HoldCo) are less than the Make-Whole Payment amount plus the associated Impact Payment amount, if any, HoldCo will pay all of the proceeds of the Later Event (net of Transaction Expenses and applicable taxes payable by OpCo or HoldCo) to Alibaba (the “Initial Make-Whole Payment”) as soon as reasonably practicable and in any event within ninety (90) days following the consummation of such Later Event, with the remainder of the Make-Whole Payment plus the associated Impact Payment, if any, to be paid in three (3) equal installments due twelve (12), eighteen (18) and twenty-four (24) months after the date of such Later Event; provided, that any portion of the Initial Make-Whole Payment and remainder of the Make-Whole Payment arising in each case due to any Contingent Consideration shall be paid to Alibaba as soon as reasonably practicable following the payment of such Contingent Consideration and in any event within ninety (90) days of the payment of such Contingent Consideration.

(v) Following a Liquidity Event or Later Event, interest shall (A) accrue daily at an annual rate equal to the Interest Rate on the aggregate unpaid amount of the Liquidity Event Payment and/or Make-Whole Payment, associated Impact Payment, if any, and the IPCo Note Amount, if any, (B) compound monthly (provided, that the monthly rate will be calculated so that the effective annual rate remains the rate set forth in clause (A)), (C) be paid by HoldCo in arrears on each date on which payment is made, and (D) be computed on the basis of a three hundred sixty (360)-day year comprised of twelve (12) thirty (30)-day months.

 

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(e) If the full Liquidity Event Payment is not made immediately upon such Liquidity Event, and if the Intellectual Property License and Software Technology Services Agreement remains in effect following the Liquidity Event pursuant to its terms, then all fees paid thereunder (including the Royalty and Software Technology Services Fee, but excluding the Alibaba Costs) shall then and thereafter be applied to and credited towards the Liquidity Event Payment then due and interest thereon.

(f) If a Liquidity Event does not occur within six (6) years of the Effective Time (the “6th Anniversary”), the Floor Amount shall be increased by ten percent (10%) on the 6th Anniversary, and shall be increased by ten percent (10%) on each subsequent anniversary thereafter until a Liquidity Event occurs (the “Floor Amount Increase”). If a Liquidity Event does not occur within seven (7) years of the Effective Time (the “7th Anniversary”), the Ceiling Amount shall be increased by five percent (5%) on the 7th Anniversary, and shall be increased by five percent (5%) on each subsequent anniversary thereafter until a Liquidity Event occurs (the “Ceiling Amount Increase”). The Floor Amount Increase and the Ceiling Amount Increase shall be non-compounding and calculated as the prescribed percentage of the original Floor Amount or the original Ceiling Amount, as the case may be, net of any amounts paid under the IPCo Promissory Note prior to each relevant anniversary. On the 7th Anniversary, HoldCo shall pay to Alibaba the Floor Amount Increase for the 6th Anniversary and the 7th Anniversary, if any. On each subsequent anniversary following the 7th Anniversary, HoldCo shall pay to Alibaba the Floor Amount Increase occurring on such anniversary, if any (each such payment, an “Increase Payment”). Any Increase Payment paid by HoldCo to Alibaba (or Alibaba’s designated Subsidiaries, if applicable) shall be credited against HoldCo’s obligation to make the Liquidity Event Payment and shall reduce the aggregate amount of the Liquidity Event Payment otherwise payable by HoldCo.

(g) All payments to be made to Alibaba pursuant to this Section 2.09, as well as the Impact Payment, shall be made (x) to Alibaba or, if permitted by Law, one or more of Alibaba’s designated Subsidiaries, at Alibaba’s direction, in Dollars (or, at Alibaba’s direction and if permitted by Law, PRC currency) or (y) if the payment directed by Alibaba in clause (x) is not permitted by Law, then as mutually agreed upon in writing by HoldCo and Alibaba, such agreement not to be unreasonably withheld, conditioned or delayed by either party.

(h) If the total Taxes required by any Laws to be deducted, withheld, paid, or incurred by any Person, in connection with any payment to be made to Alibaba or any of its Subsidiaries pursuant to this Section 2.09 (“Total Taxes”) exceed the Taxes under PRC Law that would have been imposed if such payment had been paid by HoldCo directly to Alibaba and subject to Tax at the then-applicable withholding, income or similar Tax rate on capital gains with respect to sales of equity in PRC companies by foreign investors, then the payment shall be increased so that Alibaba receives (and is entitled to retain), after deduction, withholding or payment for or on account of such Total Taxes as the case may be (including deduction, withholding or payment applicable to additional sums payable under this sentence), the full amount of the payment that would have been received if such payment had been paid by HoldCo directly to Alibaba and subject to Tax under PRC Law at the then-applicable withholding, income, or similar Tax rate on capital gains with respect to sales of equity in PRC companies by foreign investors.

 

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Section 2.10 Transfers Upon Final Payment Date.

(a) On or as soon as reasonably practicable after the Final Payment Date, Alibaba and its Subsidiaries shall convey, assign and transfer to OpCo or to another Person designated by OpCo, and OpCo or such other Person shall acquire and accept from Alibaba and its Subsidiaries, the Retained Business Assets (subject to Section 2.10(c)).

(b) Notwithstanding Section 2.10(a), if the relevant stock exchange or securities regulatory authority requires, in order to obtain its approval for a Qualified IPO, that any of the Retained Business Assets or Retained Business Liabilities, including Retained Equity Interests or some but not all of the assets and/or liabilities of one or more Retained Entities, must be transferred to OpCo prior to the Final Payment Date, such Retained Business Assets and Retained Liabilities (including, if necessary, some but not all of the assets and/or liabilities of one or more Retained Entities) will be transferred to OpCo (subject to Section 2.10(c), in the case of the Retained Business Assets) within the time such transfer is required by such Governmental Authority to be completed in order to approve such Qualified IPO (the “IPO Transfer”), in which case, however, the Royalty and Software Technology Services Fee (excluding Alibaba Costs incurred by any of the Retained Entities from and after the date that such Retained Entities have been transferred to OpCo) will continue to be paid (and not credited against the Liquidity Event Payment) until the closing of the Qualified IPO; provided, that if OpCo would not be permitted by applicable Laws to continue paying the Royalty or the Software Technology Services Fee (excluding Alibaba Costs incurred by any of the Retained Entities from and after the date that such Retained Entities have been transferred to OpCo) following the IPO Transfer, then it shall be a condition of the Parties’ obligation to effect the IPO Transfer that the Parties’ shall have negotiated a mutually agreeable prepayment by HoldCo of the estimated Royalty and Software Technology Services Fee (but excluding the Alibaba Costs incurred by any of the Retained Entities from and after the date that such Retained Entities have been transferred to OpCo) for the fifteen (15) month period following the IPO Transfer and, if the Qualified IPO closed prior to the end of such fifteen (15) month period, the recipients of such prepayment shall refund a portion of such amount proportional to the percentage of such fifteen (15) month period remaining; provided, however, that if the Qualified IPO does not close within fifteen (15) months of the IPO Transfer, OpCo shall, at Alibaba’s request, transfer all such Retained Business Assets and Retained Business Liabilities back to Alibaba and/or the Alibaba Subsidiaries designated by Alibaba as the recipients of all or a portion of such transfer. For the avoidance of doubt, OpCo shall have no obligation to transfer such Retained Business Assets and Retained Business Liabilities back to Alibaba and/or Alibaba’s Subsidiaries if the Final Payment Date has occurred within the fifteen (15) month period following the IPO Transfer.

(c) The conveyance, assignment or transfer of any Retained Business Assets to OpCo or any other Person pursuant to this Section 2.10 will be conditioned on the execution and delivery by Alibaba, on the one hand, and OpCo and such other Person, on the other hand, of a cross-license agreement (the “Cross-License Agreement”), to become effective contemporaneously with the effectiveness of such conveyance, assignment or transfer, pursuant to which each of Alibaba and OpCo will receive a license to such Intellectual Property and Intellectual Property Rights as is set forth in such cross-license agreement which (i) as of the effective date of such conveyance, assignment or transfer, are owned or licensable by the licensor party and (ii) were used in the course of the licensee’s business under and in accordance with a license from the licensor party, or owned by the licensee party, during the term of the Intellectual Property License and Software Technology Services Agreement. Alibaba and OpCo shall agree to a mutually acceptable form of Cross-License Agreement at or prior to the Effective Time on substantially the terms set forth in Schedule 2.10 and on such other mutually agreed terms that are customary for agreements of this type and consistent with the terms set forth in Schedule 2.10.

 

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Section 2.11 Demand Liquidity Event. At any time following the 10th anniversary of the Effective Time, in the event that no Liquidity Event has yet occurred, Alibaba will have the right, upon written direction to HoldCo, to cause HoldCo and OpCo to use their best efforts to effect a Liquidity Event as soon as practicable but in any event no later than one hundred eighty (180) days from HoldCo’s receipt of such written notice, and the controlling HoldCo Shareholders shall use all reasonable efforts to facilitate such Liquidity Event, provided that HoldCo and OpCo have no obligation to effect a Liquidity Event (and the HoldCo Shareholders shall have no obligation to facilitate) unless the Equity Value of OpCo or the Enterprise Value of OpCo in such Liquidity Event would be in excess of One Billion Dollars (US$1,000,000,000). In the circumstance of a Liquidity Event pursuant to this Section 2.11, the Chief Executive Officer of HoldCo shall determine in his sole discretion which form of Liquidity Event to effect, provided, that if the Chief Executive Officer of HoldCo fails to so elect within ninety (90) days of notice by Alibaba, then Alibaba shall have the right to so elect the Liquidity Event in its sole discretion. The Floor Amount will not apply to any Liquidity Event requested by Alibaba under this Section 2.11 (except in the case where the Liquidity Event is effected by means of a Transfer of more than thirty-seven and one-half percent (37.5%) but less than one hundred percent (100%) of the Securities of OpCo, with such percentage determined on a fully-diluted basis, using the treasury stock method to an Unrelated Third Party or to Unrelated Third Parties, pursuant to one or more bona fide arms-length negotiated agreements, in which case the Floor Amount will apply), but otherwise the provisions of this Agreement regarding a Liquidity Event shall apply.

Section 2.12 Commercial Agreement. Concurrently with the execution of this Agreement, the Commercial Agreement will be entered into pursuant to which OpCo agrees to provide payment processing services to Alibaba and its Subsidiaries (including Taobao Marketplace and Taobao Mall) on preferential terms. The fees to be paid by Alibaba and its Subsidiaries to OpCo for the services provided under the Commercial Agreement will take into account Alibaba and its Subsidiaries’ status as large volume customers and will be approved on an annual basis by the Independent Directors. The Commercial Agreement will be non-exclusive and will remain in effect for an auto-renewing fifty (50)-year term, subject to Alibaba’s right to terminate upon one year’s prior written notice. If in connection with a public offering of OpCo, the Commercial Agreement is required by applicable regulatory authorities to be modified, a one-time payment, the Impact Payment, may be payable by HoldCo to Alibaba to compensate Alibaba for the overall impact of such adjustment.

Section 2.13 Intellectual Property License and Software Technology Services Agreement. Concurrently with the execution of this Agreement, the Intellectual Property License and Software Technology Services Agreement will be entered into pursuant to which Alibaba will license to OpCo certain intellectual property and technology and provide certain software technology services to OpCo and its Subsidiaries. OpCo will pay to Alibaba (a) a royalty equal to a certain percentage of the consolidated revenue of OpCo and its subsidiaries and (b) a software technology services fee. The royalty and the software technology services fee consist of an expense reimbursement and a 49.9% share of the consolidated pre-tax income of OpCo and its Subsidiaries. This percentage reflects the existing relative function, risk and asset profiles of the parties, and such percentage will decrease upon certain dilutive equity issuances by OpCo and HoldCo; provided, however, that such percentage shall not be reduced below 30%. The Intellectual Property License and Software Technology Services Agreement shall terminate upon the earlier to occur of (i) such time as it may be required to be terminated by applicable regulatory authorities in connection with a Qualified IPO and (ii) the Final Payment Date.

 

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Section 2.14 Closing. All transactions described herein (except any components of which are explicitly provided to be effected at a later time) shall be effective at the same time upon the satisfaction of conditions precedent to this Agreement and the other Transaction Documents (the “Closing”), and all such transactions (except any components of which are explicitly provided to be effected at a later time) must be effective as a condition for any transaction described herein to be deemed effective. The Closing shall take place at the offices of Skadden, Arps, Slate, Meagher & Flom LLP located at 42nd Floor, Edinburgh Tower, The Landmark, 15 Queen’s Road Central, Hong Kong, at 10:00 A.M. (Hong Kong time), no later than the second (2nd) Business Day following the satisfaction or waiver of the conditions precedent specified in Article VIII and the other Transaction Documents (other than the conditions to be satisfied at the Effective Time, but subject to the waiver or satisfaction of such conditions), or at such other times and places as the Parties may mutually agree in writing. The time and date on which the Closing occurs is called the “Effective Time”.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF ALIBABA

Alibaba hereby represents and warrants to each of the other Parties as of the date hereof as follows:

Section 3.01 Authority; Binding Effect.

(a) Alibaba has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by Alibaba of this Agreement, and the performance by Alibaba of its obligations hereunder, have been duly authorized by all requisite corporate action on the part of Alibaba. The execution and delivery by Alibaba (or those of its Affiliates that are parties to such agreements) of the other Transaction Documents, and the performance by Alibaba (or those of its Affiliates that are parties to such agreements) of its obligations thereunder, have been duly authorized by all requisite corporate or other action on the part of Alibaba (or those of its Affiliates that are parties to such agreements).

(b) The Transaction Documents, when executed and delivered by Alibaba (or, in the case of certain Transaction Documents, those of Alibaba’s Affiliates that are parties to such agreements), assuming due execution and delivery hereof by each of the other parties hereto and thereto, constitute valid and binding obligations of Alibaba (or such Affiliates) enforceable against Alibaba (or such Affiliates) in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency or reorganization.

 

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Section 3.02 Land Holding Company. Alibaba is not a land holding corporation for the purposes of the Land Holding Companies Share Transfer Tax Law of the Cayman Islands.

Section 3.03 Exclusivity of Representations. The representations and warranties made by Alibaba in this Article III are the exclusive representations and warranties made by Alibaba with respect to the Transferred Entities and the Transferred Equity Interests. Alibaba hereby disclaims any other express or implied representations or warranties, and the Transferred Equity Interests shall be “as is,” “where is” and “with all faults.” Notwithstanding anything to the contrary in this Agreement, Alibaba is not, directly or indirectly, making any representations or warranties regarding any financial information, financial projections or other forward looking statements with respect to Alibaba or the Transferred Entities.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF

HOLDCO, OPCO AND IPCO

Except as set forth in the disclosure letter, dated as of the date hereof and delivered to Alibaba, Yahoo! and Softbank by HoldCo, OpCo and IPCo in connection with the execution and delivery of this Agreement (the “Disclosure Letter”), each of HoldCo, OpCo and IPCo jointly and severally represents and warrants to Alibaba, Yahoo! and Softbank as of the date hereof as follows:

Section 4.01 Organization and Qualification. Each of HoldCo, OpCo and IPCo is a corporation duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization with all requisite corporate power and authority to own and operate its properties and to carry on its business as now conducted.

Section 4.02 Authority; Binding Effect.

(a) Each of HoldCo, OpCo and IPCo has all requisite corporate power and authority to execute and deliver this Agreement and the other Transaction Documents and to perform its obligations hereunder and thereunder. The execution and delivery by each of HoldCo, OpCo and IPCo of this Agreement and the other Transaction Documents, and the performance by each of them of their respective obligations hereunder and thereunder, have been duly authorized by all requisite corporate action on the part of HoldCo, OpCo and IPCo, respectively. HoldCo, OpCo and IPCo have duly executed this Agreement and each of the other Transaction Documents to which it is a party.

(b) The Transaction Documents, when executed and delivered by HoldCo, OpCo and IPCo, assuming due execution and delivery hereof by each of the other parties hereto, constitutes valid and binding obligations of HoldCo, OpCo and IPCo enforceable against each of them in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency or reorganization.

 

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Section 4.03 No Conflicts, Consents and Approvals. The execution and delivery of the Transaction Documents and the performance by each of HoldCo, OpCo and IPCo of its respective obligations hereunder and thereunder will not violate or conflict with, or constitute a default or breach (either alone or with the giving of notice and/or the passage of time) under or accelerate or permit the acceleration of the performance required by, or result in or require the creation or imposition of any Lien under, any of the terms or provisions of (i) the Business License and the Articles of Association of HoldCo, OpCo or IPCo or their other organizational or charter documents, (ii) any Contract to which HoldCo, OpCo, IPCo or any of their respective Affiliates is a party or any of their respective properties or other Assets is subject; or (iii) any approval, license, permit, Laws or judgment, order or decree of a Governmental Authority applicable to HoldCo, OpCo, or IPCo or any of their respective properties or Assets; except, in the case of clauses (ii) or (iii), for any such default, breach, acceleration or imposition as would not materially impair the ability of HoldCo, OpCo, or IPCo to perform its obligations under the Transaction Documents or to operate the Business after the Closing in substantially the same manner as operated by Alibaba immediately prior to the Closing. No material filing or registration with or approval, consent or authorization of, or notice to any Governmental Authority or third party is required for HoldCo, OpCo, or IPCo to enter into and to perform its obligations under the Transaction Documents or to operate the Business after the Closing in substantially the same manner as operated by Alibaba immediately prior to the Closing.

Section 4.04 [Reserved]

Section 4.05 No Litigation. As of the date prior to the date hereof, there is no Proceeding pending or, to the knowledge of HoldCo, threatened against HoldCo, OpCo or IPCo, by or before any Governmental Authority or arbitration court or panel that (a) challenges or calls into question HoldCo, OpCo or IPCo’s authority to enter into any of the Transaction Documents or consummate the Transactions, (b) challenges or calls into question the enforceability of any of the Transaction Documents, or (c) would, if not resolved in favor of HoldCo, OpCo or IPCo, as applicable, have a material adverse effect on the operation of the Business or on Alibaba or Alibaba’s Subsidiaries after the Effective Time as contemplated herein.

Section 4.06 Creditors. None of HoldCo, OpCo and IPCo is entering into the Transactions with actual intent to hinder, delay or defraud either present or future creditors. As of the date hereof, as of immediately prior to the Closing and as of immediately after the Closing (but in each case excluding any Liability for the Liquidity Event Payment, the Make-Whole Payment, the Impact Payment and the Increase Payment), HoldCo, OpCo, IPCo and their respective Subsidiaries will be Solvent and will have adequate capital to carry on their respective businesses.

Section 4.07 HoldCo Operations. HoldCo has no Liabilities or obligations (including the expected value of contingent obligations), other than Liabilities or obligations incurred pursuant to this Agreement, in excess of Twenty-Five Million Dollars (US$25,000,000). HoldCo has no more than fifty (50) employees.

 

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Section 4.08 No Related Party Transactions. There are no Related Party Transactions by HoldCo, OpCo, IPCo or any OpCo Subsidiaries.

Section 4.09 Business Assets.

(a) Immediately after the Effective Time, except for the Retained Business Assets and the Retained Business Liabilities (including the assets and liabilities of the Retained Entities), Alibaba and its Subsidiaries will not own any material assets, properties or rights that are used in the conduct of the Business as conducted as of the date hereof. Immediately after the Effective Time, HoldCo and its Subsidiaries and the Retained Entities will not own any material assets, properties or rights that are used in the conduct of the Alibaba Business. Immediately after the Effective Time, HoldCo and HoldCo’s Subsidiaries will not own any Intellectual Property not used exclusively in the Business and/or the business of the Other Group. Immediately after the Effective Time, the OpCo Group and the Retained Entities will not own any Intellectual Property or Intellectual Property Rights not used exclusively in the Business.

(b) Section 4.09(b) of the Disclosure Letter sets forth a summary, as of the date hereof, of (i) all of the material Assets of HoldCo and its Subsidiaries and the Transferred Entity relating to the Business and (ii) all of the material Contracts to which HoldCo or any of its Subsidiaries or the Transferred Entity is a party. HoldCo and its Subsidiaries (other than members of the Other Group) and the Transferred Entity do not have any employees who are not primarily dedicated to the Business.

(c) Section 4.09(c) of the Disclosure Letter sets forth a summary, as of the date hereof, of (i) all of the material Assets of the Retained Entities relating to the Business and (ii) all of the material Contracts to which any of the Retained Entities is a party. Neither the OpCo Group nor the Retained Entities have any employees who are not primarily dedicated to the Business.

(d) Section 4.09(d) of the Disclosure Letter sets forth, as of the date hereof, a true and correct list of all Intellectual Property and Intellectual Property Rights owned or held by HoldCo, OpCo and their respective Subsidiaries (other than the Other Group). As of the date hereof, HoldCo, OpCo and their respective Subsidiaries (other than the Other Group) do not own Intellectual Property or Intellectual Property Rights other than as necessary for the conduct of the Business. As of the date hereof, the Other Group does not own any Intellectual Property or Intellectual Property Rights that are used in the conduct of the Business or the Alibaba Business as conducted as of the date hereof. As of the date hereof, the Other Group only owns Intellectual Property (or Intellectual Property Rights therein) that are exclusively used by the Other Group.

Section 4.10 Ownership of Alibaba Share Collateral. As of the Effective Time, IPCo has good and marketable title to the Alibaba Share Collateral free and clear of all Liens other than the Legal Mortgage of Alibaba Shares.

 

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Section 4.11 Ownership of IPCo Share Collateral.

(a) The authorized capital of IPCo consists of US$50,000 divided into 50,000 shares, par value US$1.00. As of the date hereof, all issued and outstanding shares of IPCo are duly authorized and validly issued, fully paid, non-assessable, and free and clear of all Liens. As of the Effective Time, all issued and outstanding shares of IPCo shall be duly authorized and validly issued, fully paid, non-assessable, and free and clear of all Liens other than the Legal Mortgage of IPCo Shares. There shall be no pre-emptive or other outstanding rights, options, warrants, conversion rights or other similar agreements or understandings for the purchase or acquisition of any shares of IPCo. As of the date hereof, JMY owns one hundred percent (100%) of the issued and outstanding shares of IPCo and has good and marketable title to all of the issued and outstanding shares of IPCo free and clear of all Liens. As of the Effective Time, JMY and JT shall collectively own one hundred percent (100%) of the issued and outstanding shares of IPCo and shall have good and marketable title to the IPCo Share Collateral free and clear of all Liens other than the Legal Mortgage of IPCo Shares. There are no other Securities of IPCo outstanding.

(b) IPCo:

(i) has not created, issued, incurred, assumed, become liable in respect of or suffered to exist any, and has no, Liabilities except Liabilities pursuant to the Transaction Documents and Liabilities incident to the maintenance of its existence,

(ii) has not created, incurred, assumed or suffered to exist, and is not subject to, any Lien upon any of its Assets other than (A) as of the Effective Time, the Legal Mortgage of Alibaba Shares, (B) as of the Effective Time, the IPCo Asset Charge and (C) inchoate Liens imposed by Law incurred in the ordinary course of business (on Assets other than the Alibaba Shares) not yet due and payable and which do not relate to Indebtedness,

(iii) has not Transferred any of its Assets, directly or indirectly,

(iv) has not declared or made or resolved to declare or make any Distributions, either directly or indirectly,

(v) has not made any advance, loan, extension of credit (by way of guarantee or otherwise) or capital contribution to, or purchased any capital stock, bonds, notes, debentures or other debt securities of, or any assets constituting a business unit of, or make any other investment in, any Person,

(vi) other than entering into the Transaction Documents and incident to the maintenance of its existence, has not entered into, engaged in, or undertaken any activity, business or transaction, including any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Person other than as expressly permitted by the Transaction Documents, and

(vii) has not entered into any transaction with an Affiliate other than the Transaction Documents or incident to its creation and the maintenance of its existence.

 

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Section 4.12 Ownership of OpCo Share Capital. HoldCo is the legal owner of all of the issued and outstanding capital stock of OpCo, free and clear of all Liens. There are no other Securities of OpCo outstanding. There is no outstanding call on any of HoldCo’s equity interests in OpCo and all of its equity interests in OpCo are fully paid in compliance with the requirements of PRC Laws.

Section 4.13 Security. (a) The execution and delivery of the Security Documents, together with the actions taken on or prior to the Effective Time pursuant to Section 8.03(j) and any actions required to be taken pursuant to Section 7.15(l), will be effective to create in favor of Alibaba’s collateral agent under each such Security Document, as applicable, a valid and perfected first priority Lien on the Collateral; (b) as of the Effective Time, no filing, recordation, re-filing or re-recording will be necessary to perfect the Liens of the Security Documents; and (c) no authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for either (i) the pledge or grant by IPCo of the Liens purported to be created in favor of Alibaba’s collateral agent under each such Security Document, as applicable, pursuant to the Security Documents or (ii) the exercise by Alibaba’s collateral agent under each such Security Document, as applicable, of any rights or remedies in respect of the Collateral (whether specifically granted or created pursuant to the Security Documents or created or provided for by applicable Laws).

Section 4.14 Choice of Law; Jurisdiction. In any Proceeding in the PRC or the Cayman Islands to enforce this Agreement or any other Transaction Document, the choice of New York and Cayman Islands law (for enforcement in the PRC) as the governing law hereof and thereof will be recognized and such Laws will be applied. The agreement by HoldCo, OpCo, IPCo, JMY and JT to resolve disputes arising under the Transaction Documents in Singapore under the rules of the ICC is legal, valid, binding and enforceable in the PRC and the Cayman Islands, and any arbitral award made pursuant to such arbitration will be recognized and enforceable against each of HoldCo, OpCo, IPCo, JMY and JT and its respective Assets in the PRC and the Cayman Islands, provided that there is no manifest defect in the procedure of such arbitration Proceeding. Each of the Transaction Documents is in such legal form under the Laws of the PRC and the Cayman Islands that it is capable of enforcement under the Laws of the PRC and the Cayman Islands.

Section 4.15 Compliance with Laws. Each of HoldCo, OpCo and IPCo is in material compliance with all applicable Laws in respect of the conduct of its business and the ownership of its Assets.

Section 4.16 Indebtedness. IPCo does not have any Liabilities other than in respect of the Transaction Documents.

Section 4.17 Taxes. IPCo has filed all Tax returns required to be filed by it and has paid all income Taxes payable by it which have become due pursuant to such Tax returns and all other Taxes and assessments payable by it which have become due, other than those not yet delinquent and those contested in good faith and for which adequate reserves have been established.

 

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Section 4.18 Ownership of Assets; Liens. IPCo has good, valid and marketable title to all of its Assets. None of the Assets of IPCo are subject to any Liens, other than (a) the Legal Mortgage of Alibaba Shares, (b) the IPCo Asset Charge and (c) inchoate Liens imposed by Law incurred in the ordinary course of business (on Assets other than the Alibaba Shares) not yet due and payable which do not relate to Indebtedness.

Section 4.19 No Default. No Default or Event of Default has occurred under the IPCo Promissory Note.

Section 4.20 IPCo Organizational Documents. As of the date hereof, the organizational documents of IPCo are in the form provided to Yahoo! and Softbank and the directors of IPCo consist solely of JMY and JT. As of the Effective Time, the organizational documents of IPCo are substantially in the form attached hereto as Exhibit F and the directors of IPCo consist solely of a designee of Softbank, a designee of Yahoo!, JMY and JT.

Section 4.21 Employees. IPCo has no employees.

Section 4.22 Land Holding Company. IPCo is not a land holding corporation for the purposes of the Land Holding Companies Share Transfer Tax Law of the Cayman Islands.

Section 4.23 Special Purpose Vehicle Ownership. Each of the entities set forth in Section 4.23 of the Disclosure Letter has no material assets or material liabilities other than (a) with respect to those entities that are categorized therein as direct property holders, (i) the property described therein, (ii) incidental personal property and other assets necessary for the ownership or operation of the applicable property and (iii) incidental liabilities arising in connection with the ownership and operation of the applicable property, and (b) with respect to those entities that are categorized therein as holding companies, the equity interests described therein.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF JMY AND JT

To induce Alibaba, Yahoo! and Softbank to enter into this Agreement, except as set forth in the Disclosure Letter, each of JMY and JT hereby jointly and severally represents and warrants to each of Yahoo!, Softbank and Alibaba as of the date hereof as follows:

Section 5.01 Authority; Binding Effect. The Transaction Documents, when executed and delivered by each of JMY and JT, assuming due execution and delivery hereof by each of the other parties hereto, constitutes valid and binding obligations of JMY and JT enforceable against each of JMY and JT in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency or reorganization.

Section 5.02 No Conflicts, Consents and Approvals. The execution and delivery of the Transaction Documents and the performance by each of JMY and JT of his respective obligations hereunder and thereunder will not violate or conflict with, or constitute a default or breach (either alone or with the giving of notice and/or the passage of time) under or accelerate or permit the acceleration of the performance required by, or result in or require the creation or imposition of any Lien under, any of the terms or provisions of (i) any Contract to which JMY or JT is a party or any of their respective properties or other assets is subject; or (ii) any approval, license, permit, Laws or judgment, order or decree of a Governmental Authority applicable to JMY or JT or any of their respective properties or assets; except, in the case of clauses (i) or (ii), for any such default, breach, acceleration or imposition as would not materially impair the ability of JMY or JT to perform his obligations under the Transaction Documents. Except as listed in Section 5.02 of the Disclosure Letter, no material filing or registration with or approval, consent or authorization of, or notice to any Governmental Authority or third party is required for JMY or JT to enter into and to perform his respective obligations under the Transaction Documents.

 

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Section 5.03 Creditors. Neither JMY nor JT is entering into the Transactions with actual intent to hinder, delay or defraud either present or future creditors. As of the date hereof, as of immediately prior to the Closing and as of immediately after the Closing (but in each case excluding any Liability for the Liquidity Event Payment, the Make Whole Payment, the Impact Payment and the Increase Payment), JMY and JT will be Solvent.

Section 5.04 Ownership of HoldCo. JMY and SX own all of the issued and outstanding share capital of HoldCo.

Section 5.05 Ownership of IPCo. As of the date hereof, JMY owns one hundred percent (100%) of the issued and outstanding shares of IPCo and has good and marketable title to the issued and outstanding shares of IPCo free and clear of all Liens. As of the Effective Time, JMY and JT shall collectively own one hundred percent (100%) of the issued and outstanding shares of IPCo and shall have good and marketable title to the IPCo Share Collateral free and clear of all Liens other than the Legal Mortgage of IPCo Shares.

Section 5.06 Representations and Warranties of HoldCo, OpCo and IPCo. To the knowledge of JMY and JT as of the date hereof, the representations and warranties of HoldCo, OpCo and IPCo set forth in Article IV are true and correct.

ARTICLE VI

REPRESENTATIONS AND WARRANTIES OF YAHOO! AND SOFTBANK

To induce HoldCo, OpCo, IPCo, JMY and JT to enter into this Agreement, each of Yahoo! and Softbank hereby severally, and not jointly, as to itself, represents and warrants to each of HoldCo, OpCo, IPCo, JMY and JT as of the date hereof as follows:

Section 6.01 Authority; Binding Effect.

(a) Each of Yahoo! and Softbank has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by each of Yahoo! and Softbank, and the performance by each of them of their respective obligations hereunder, have been duly authorized by all requisite corporate action on the part of Yahoo! and Softbank, respectively. The execution and delivery by each of Yahoo! and Softbank of the Release Agreement, and the performance by each of them of their respective obligations thereunder, have been duly authorized by all requisite corporate or other action on the part of Yahoo! and Softbank, respectively.

 

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(b) This Agreement and the Release Agreement, when executed and delivered by each of Yahoo! and Softbank assuming due execution and delivery hereof by each of the other parties hereto, constitutes valid and binding obligations of Yahoo! and Softbank enforceable against each of Yahoo! and Softbank in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency or reorganization.

Section 6.02 No Conflicts, Consents and Approvals. The execution and delivery of this Agreement and the Release Agreement and the performance by each of Yahoo! and Softbank of its respective obligations hereunder and thereunder will not violate or conflict with, or constitute a default or breach (either alone or with the giving of notice and/or the passage of time) under or accelerate or permit the acceleration of the performance required by, any of the terms or provisions of (i) the organizational or charter documents of each of Yahoo! and Softbank, (ii) any material Contract to which Yahoo! and Softbank or any of their respective Affiliates is a party or any of their respective properties or other Assets is subject or (iii) any approval, license, permit, Laws or judgment, order or decree of a Governmental Authority applicable to Yahoo! and Softbank or any of their respective properties or Assets; or except, in the case of clauses (ii) and (iii), for any such default, breach, acceleration or imposition as would not materially impair the ability of Yahoo! or Softbank to perform its obligations under this Agreement and the Release Agreement. No material filing or registration with or approval, consent or authorization of, or notice to any Governmental Authority or third party is required for Yahoo! or Softbank to enter into and to perform its obligations under this Agreement and the Release Agreement.

Section 6.03 Organization and Qualification. Each of Yahoo! and Softbank is a corporation duly organized, validly existing and, where applicable, in good standing under the Laws of the jurisdiction of its organization with all requisite corporate power and authority to own and operate its properties and to carry on its business as now conducted.

Section 6.04 No Litigation. Except as listed on Schedule 6.04, as of the date prior to the date hereof, there is no litigation pending against Yahoo! or Softbank that relates to OpCo.

ARTICLE VII

COVENANTS

Section 7.01 Confidentiality. Each Party, and each Party’s Representatives who receive Confidential Information as permitted hereunder, shall maintain the confidentiality of Confidential Information in accordance with the procedures adopted by such Party in good faith to protect confidential information of third parties generally delivered to such Party, provided that such Party may deliver or disclose Confidential Information to:

(a) such Party’s Representatives, and Persons related thereto (including, with respect to HoldCo and OpCo, potential investors therein) who are informed of the confidentiality obligations of this Section 7.01, provided that such Party shall be responsible for any violation of such Party’s applicable procedures made by any such Person,

 

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(b) any Governmental Authority having jurisdiction over such Party to the extent required by applicable Laws,

(c) any other Person to which such delivery or disclosure may be required (i) to effect compliance with any Laws applicable to such Party, or (ii) in response to any subpoena or other legal process, or

(d) as permitted under Section 10.06;

provided that, in the cases of clauses (b) and (c), 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.

Section 7.02 Commercially Reasonable Efforts; Certain Governmental Matters.

(a) Each of Alibaba, OpCo, IPCo, JMY, JT and HoldCo shall cooperate and use its respective commercially reasonable efforts to fulfill or cause to be fulfilled as promptly as practicable the conditions precedent to the other Parties’ obligations hereunder, including securing as promptly as practicable all consents, approvals, registrations, waivers and authorizations required in connection with the Transactions. Without limiting the generality of the foregoing, HoldCo, OpCo, IPCo and Alibaba shall make all filings and submissions (if required) by the:

(i) PRC Antitrust Laws,

(ii) regulations by the PBOC with respect to licensing requirements and other compliance matters,

(iii) regulations of MOFCOM with respect to technology import registration,

(iv) regulations by SAFE with respect to foreign currency payment obligations, and

(v) Intellectual Property related laws and regulations and the requirements thereunder with respect to registration, filing and approval by the PRC State Intellectual Property Office, the China Trademark Office and the National Copyright Administration and any other Laws (collectively, to the extent required, the “Regulatory Approvals”) as promptly as practicable after the date hereof and promptly file any additional information requested as soon as practicable after receipt of such request therefor.

 

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(b) Each of Alibaba, OpCo, IPCo, JMY, JT and HoldCo shall cooperate with each other and shall furnish to the other Parties all information necessary or desirable in connection with requesting and obtaining the Regulatory Approvals, and in connection with resolving any investigation or other inquiry by any Governmental Authority under any Laws with respect to the Transactions. Each of the Parties shall promptly inform each other Party of any communication with, and any proposed understanding, undertaking or agreement with, any Governmental Authority regarding the foregoing. No Party shall participate in any meeting with any Governmental Authority in respect of any filings, investigations or other inquiries to the extent relating to a Regulatory Approval without giving the other Parties prior notice of such meeting, and reasonable opportunity to participate, if permitted by the Governmental Authority. The Parties shall consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with all meetings, actions and proceedings to the extent relating to the Regulatory Approvals (including, with respect to making a particular filing, by providing copies of all such documents to the non-filing Party and their advisors at least two (2) Business Days prior to filing and, if requested, giving due consideration to all reasonable additions, deletions or changes suggested in connection therewith).

(c) In furtherance of this Section 7.02, and notwithstanding anything herein to the contrary, Alibaba, OpCo, IPCo, JMY, JT and HoldCo shall each use commercially reasonable efforts to resolve such objections, if any, as may be asserted by any Governmental Authority with respect to the Transactions in connection with the Regulatory Approvals as promptly as reasonably practicable.

(d) In the event any Proceeding is commenced which threatens or questions the validity or legality of the Transaction Documents or the Transactions or seeks damages in connection therewith, the Parties agree to cooperate and use all reasonable efforts to defend against such Proceeding and, if an injunction or other order is issued in any such Proceeding, to use all reasonable efforts to have such injunction or other order lifted, and to cooperate reasonably regarding any other impediment to the consummation of the Transactions.

Section 7.03 Restrictions on Operations.

(a) Other than (i) its ownership of the OpCo Group and the Other Group and (ii) the HoldCo Permitted Operations (as defined below), HoldCo will have no other businesses, Assets or Liabilities except as permitted by this Section 7.03.

(b) IPCo will have no business, Assets or Liabilities other than as expressly specified in the Transaction Documents or customary obligations incidental to the maintenance of its existence.

(c) The Business will be operated exclusively by the OpCo Group (other than (i) until such time as they are transferred to OpCo pursuant to Section 2.10, the operations of the Business associated with the Retained Business Assets and Retained Business Liabilities and (ii) merchant acquisition, customer service and software development services provided to facilitate the Business, which may be subcontracted pursuant to one or more arms-length, market rate agreements).

 

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(d) HoldCo may have operations necessary or incidental to the management of HoldCo’s ownership of the Other Group, which operations will be limited to (i) a staff of up to fifty (50) employees and (ii) total Liabilities, other than Liabilities or obligations incurred pursuant to this Agreement, not to exceed Twenty-Five Million Dollars (US$25,000,000), which Liabilities may be incurred in transactions with or in respect of the Other Group (such operations and Liabilities, the “HoldCo Permitted Operations”); provided, however, that HoldCo may incur Indebtedness (only in an approved Related Party Transaction or to an Unrelated Third Party or to Unrelated Third Parties, pursuant to one or more bona fide arms-length negotiated agreements) where all of the proceeds from such Indebtedness (net of Transaction Expenses) are (x) simultaneously paid or contributed to OpCo or (y) used to pay the IPCo Note Amount, the Increase Payment, the Liquidity Event Payment, the Make-Whole Payment or the Impact Payment without regard to the Twenty-Five Million Dollars (US$25,000,000) limit set forth above, and any such Indebtedness shall not be counted against such limit. HoldCo may not provide guarantees for the benefit of the Other Group or any other Person, including in connection with its micro-finance deposit taking and lending business, if any such guarantee would cause HoldCo’s Liabilities to exceed the amount referred to in clause (ii) above. The Other Group shall not be restricted in any manner by this Agreement; provided, that this sentence does not limit any Party’s obligations hereunder with respect to the Other Group, including the restrictions on Related Party Transactions with the Other Group.

Section 7.04 IPCo Covenants.

(a) IPCo shall, and, to the extent not inhibited or prevented from doing so by the other directors of IPCo, JMY and JT shall cause IPCo to, file or cause to be filed all Tax returns that are required to be filed by it and pay all Taxes payable by it which have become due pursuant to such Tax returns and pay all other Taxes, charges and assessments imposed upon it or its Assets or in relation to its franchise, income or businesses which have become due, except for those whose amount or validity is being contested in good faith by proper proceedings and for which adequate reserves are maintained on the books of IPCo in accordance with applicable accounting rules.

(b) IPCo shall not, and, to the extent not inhibited or prevented from doing so by the other directors of IPCo, JMY and JT shall cause IPCo not to,

(i) create, issue, incur, assume, become liable in respect of or suffer to exist any Liabilities except Liabilities pursuant to the Transaction Documents or Liabilities owed to an Affiliate and incurred by IPCo for the sole purpose of prepayment or repayment of the IPCo Promissory Note in accordance with the terms thereof, provided that if the IPCo Promissory Note is not prepaid or repaid in full, such Indebtedness shall be subordinated to the Indebtedness under the IPCo Promissory Note on subordination terms and conditions subject to prior approval by the Independent Directors,

(ii) create, incur, assume or suffer to exist any Lien upon any of its Assets other than (A) the Legal Mortgage of Alibaba Shares, (B) the IPCo Asset Charge and (C) inchoate Liens imposed by Law incurred in the ordinary course of business (on Assets other than the Alibaba Shares) not yet due and payable and which do not relate to Indebtedness,

 

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(iii) Transfer any of its Assets, directly or indirectly,

(iv) declare or make or resolve to declare or make any Distributions, either directly or indirectly, other than payments to Alibaba under the IPCo Promissory Note,

(v) make any advance, loan, extension of credit (by way of guarantee or otherwise) or capital contribution to, or purchase any capital stock, bonds, notes, debentures or other debt securities of, or any assets constituting a business unit of, or make any other investment in, any Person except marketable securities, short-term instruments and other cash equivalents and Indebtedness issued or guaranteed by the United States or the PRC,

(vi) other than entering into the Transaction Documents, enter into, engage in, or undertake any activity, business or transaction, including any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Person other than as expressly permitted by the Transaction Documents,

(vii) enter into any transaction with an Affiliate other than the Transaction Documents,

(viii) employ, directly or indirectly, any Person or

(ix) amend or modify its organizational documents without approval of the Independent Directors.

Notwithstanding the foregoing, this Section 7.04 shall not prohibit or otherwise restrict IPCo from taking, or (subject to the terms of the Legal Mortgage of IPCo Share and the Articles of Association of IPCo) JMY and JT from causing IPCo to take, customary actions to maintain its existence or performing, or JMY and JT from causing IPCo to perform, its obligations under the Transaction Documents. Each of JMY and JT shall cause the board of directors of IPCo from and after the Effective Time to consist solely of (i) JY and MS (and each such individual JY or MS may designate to serve as a director of IPCo in lieu of JY or MS), and (ii) JMY and JT; provided, however, that upon an Event of Default (as defined in the Legal Mortgage of IPCo Shares), JMY and JT shall resign as directors of IPCo.

 

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Section 7.05 Restrictions on Transfers and Issuances.

(a) JMY or SX shall be permitted to Transfer HoldCo shares (x) to members of the Management Group set forth on Schedule 1.01 (the “Management Group Schedule”) which Transfers may be made to and through a Person (other than an individual) established for the benefit of employees of HoldCo and its Subsidiaries and senior management of Alibaba and (y) to those Persons that have a right to require that HoldCo shares be transferred to them pursuant to a Contract in existence on the date of this Agreement, on terms set forth in Section 7.05 of the Disclosure Letter; provided, that any consideration received by JMY or a JMY Related Party (other than OpCo or any of its Subsidiaries) in any such Transfers (other than consideration in the form of an assumption of, or obligation to indemnify JMY for, all or a portion of the IPCo Promissory Note or consideration consisting solely of a release of JMY and/or SX from their existing obligations to the Persons described in subclause (y)) shall be applied promptly following such Transfer to prepay the IPCo Promissory Note, and no Transfers to members of the Management Group shall be made for consideration if Four Hundred Seventy-Five Million Dollars (US$475,000,000) or more of the IPCo Promissory Note has been repaid. Any Transfer or issuance of HoldCo Securities to be agreed or effected prior to the Final Payment Date and not included on the Management Group Schedule will be subject to Alibaba’s consent, except as set forth below:

(i) HoldCo may issue Securities and may invest the proceeds in the OpCo Group and the Other Group. Subject to the permitted Transfers described on the Management Group Schedule,

(1) HoldCo may not:

(A) incur any Indebtedness (unless (x) (I) approved as a Related Party Transaction pursuant to this subsection or (II) to an Unrelated Third Party or to Unrelated Third Parties, pursuant to one or more bona fide arms-length negotiated agreements, and in either case all of the proceeds from such Indebtedness (net of Transaction Expenses) are (i) simultaneously paid or contributed to OpCo or (ii) used to pay the IPCo Note Amount, the Increase Payment, the Liquidity Event Payment, the Make-Whole Payment or the Impact Payment or (y) such incurrence does not create total Liabilities for HoldCo in excess of those permitted by Section 7.03(d)),

(B) make any Distributions, or

(C) repurchase HoldCo or OpCo Securities or enter into any Related Party Transactions (other than for this clause (C) in connection with direct or indirect share repurchases from terminated employees of HoldCo, OpCo, Alibaba or any of their Subsidiaries within sixty (60) days of termination of employment in a manner materially consistent with the general applicable policies of Alibaba) without Alibaba’s consent, and

(2) JMY and the other HoldCo Shareholders may not Transfer HoldCo Securities except that (A) any such Person may Transfer HoldCo Securities to Estate Planning Vehicles and Family Members and (B) members of the Management Group may Transfer HoldCo Securities to other members of the Management Group.

 

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(ii) OpCo may issue Securities and incur Indebtedness (in each case only as a result of a bona fide, arms-length negotiated agreement where OpCo receives all of the proceeds of such issuance or incurrence) and may invest the proceeds (net of Transaction Expenses) in the OpCo Group. Except to repay (or to provide HoldCo with funds to repay) the IPCo Note Amount, make an Increase Payment, the Liquidity Event Payment, the Make-Whole Payment or the Impact Payment,

(1) OpCo may not:

(A) make any Distributions, or

(B) repurchase Securities or enter into any Related Party Transactions (other than for this clause (1) from employees of OpCo or its Subsidiaries or of OpCo IT or its Subsidiaries whose employment terminates or is terminated within sixty (60) days of termination of employment, in an aggregate amount not to exceed Ten Million Dollars (US$10,000,000) per fiscal year and in a manner materially consistent with the general applicable policies of Alibaba, provided, that if Alibaba’s policy does not provide for share repurchases upon termination of employment (other than for cause), OpCo may adopt and follow a policy permitting the issuer to repurchase Securities from an employee upon such employee’s termination upon terms customary in OpCo’s employment market) and

(2) HoldCo and HoldCo Shareholders may not Transfer OpCo Securities except (A) that any such Person may Transfer OpCo Securities to Estate Planning Vehicles and Family Members, (B) that members of the Management Group may Transfer OpCo Securities to other members of the Management Group and (C) for a Transfer that is a Liquidity Event. Notwithstanding the foregoing, (aa) the initial public offering of OpCo Securities, if any, shall be a Qualified IPO, and JMY, JT, HoldCo and OpCo shall not agree to, effect or permit an initial public offering of OpCo Securities that is not a Qualified IPO and (bb) JMY, JT, HoldCo and OpCo shall not agree to, effect or permit an initial public offering of Securities of any Subsidiary of OpCo.

(iii) Notwithstanding the permitted issuances described above, at all times prior to the Final Payment Date,

(A) JMY will retain a greater than fifty percent (50%) of the right to vote upon selection of the board of directors and management of HoldCo and any other matter that may be submitted to a vote of HoldCo’s equity holders,

(B) JMY and the Management Group will collectively retain a greater than fifty percent (50%) economic interest in HoldCo,

(C) HoldCo will retain a greater than fifty percent (50%) voting and economic interest in OpCo through direct ownership of OpCo equity capital and

(D) OpCo will maintain a greater than fifty percent (50%) voting and economic interest in each of its direct and indirect subsidiaries.

 

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(b) Notwithstanding anything to the contrary above, OpCo may pay dividends, HoldCo may, subject to Section 7.03(d), incur Indebtedness, and JMY and other HoldCo Shareholders may Transfer HoldCo shares, in each case to an Unrelated Third Party or to Unrelated Third Parties, pursuant to one or more bona fide arms-length negotiated agreements, if all of the proceeds of such Transfer, incurrence or dividend (net of Transaction Expenses) are (i) simultaneously contributed to OpCo or (ii) used to pay the IPCo Note Amount, the Increase Payment, the Liquidity Event Payment, the Make-Whole Payment or the Impact Payment.

(c) It shall be a condition precedent to each issuance of Securities by HoldCo or OpCo to, and to each Transfer permitted by this Agreement to, any member of the Management Group, any Family Members or Estate Planning Vehicles of JMY and the other HoldCo Shareholders and any approved Related Parties who would become Security holders of HoldCo or OpCo, that, and no such issuance or Transfer shall be effective unless and until, such member of the Management Group, Family Member, Estate Planning Vehicle or Related Party shall have executed and delivered to Alibaba a Joinder Agreement substantially in the form attached hereto as Annex C.

(d) JMY, JT and IPCo may not issue or Transfer any IPCo Securities, and, to the extent not inhibited or prevented from doing so by the other directors of IPCo, JMY and JT shall cause IPCo not to issue or Transfer any IPCo Securities in each case except as necessary to perform its obligations under this Agreement.

(e) Any purported Transfer or issuance made in violation of any provision of this Agreement shall be invalid, null and void.

Section 7.06 Non-Circumvention. From the date of this Agreement until the Final Payment Date, no Party shall, directly or indirectly, take, omit to take, or permit any action having a purpose of circumventing or having an effect of circumventing or rendering inapplicable, in whole or in part, the rights or obligations of any Party under the Transaction Documents.

Section 7.07 Non-Disparagement. From the date hereof until the Effective Time, other than as a Party may determine is necessary to respond to any legal or regulatory process or proceeding or to give appropriate testimony or file any necessary documents in any legal or regulatory process or proceeding or as may be required by Law, each Party to this Agreement shall not make any public statements or any private statements that disparage, denigrate or malign the other Parties concerning the subject matter of the Transaction Documents, the Released Claims (as defined in the Release Agreement, as if it were in effect) or the Release Transactions (as defined in the Release Agreement, as if it were in effect).

Section 7.08 Tax Matters. To the extent permitted by applicable Laws, each Party shall cooperate with each other Party, and consider recommendations from outside legal counsel, in good faith in order to consummate the transactions contemplated by Section 2.09 or Section 2.11 in a manner which minimizes the tax liabilities incurred by the Parties, or maximizes the Tax benefits recognized by the Parties, in connection with such transactions. If (i) pursuant to the immediately preceding sentence, the Parties agree upon consummating such transactions in a manner that differs from that otherwise contemplated herein, and (ii) as a result, one or more Parties (each, a “Benefiting Party”) incurs less of a Tax liability, or recognizes a greater Tax benefit, in connection with such transactions (such decrease in Tax liability or increase in Tax benefit, a “Benefit”), and one or more other Parties (each, a “Non-Benefiting Party”) incurs a greater Tax liability, or recognizes less of a Tax benefit, in connection with such transactions (such increase in Tax liability or decrease in Tax benefit, a “Detriment”), then the Benefiting Parties shall pay to the Non-Benefiting Parties the value of the Benefits; provided, that no Non-Benefiting Party shall be entitled to receive any amount pursuant to this sentence in excess of the value of such Non-Benefiting Party’s Detriment.

 

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Section 7.09 Information and Review Rights.

(a) OpCo shall (and shall cause each Subsidiary of OpCo to) afford to the Independent Directors, the Directors’ Appointee, as representative of the Independent Directors, or Representatives (limited to attorneys, accountants or personnel of Yahoo! and Softbank, of reasonably appropriate stature) designated by either of the Independent Directors or the Directors’ Appointee subject to two (2) Business Day prior written notice, access during reasonable and normal business hours to the following:

(i) the books, records, accounts, management personnel, personnel of the auditors and accountants, and facilities of OpCo and the Subsidiaries of OpCo for the purpose of monitoring OpCo’s compliance with the Transaction Documents (including furnishing copies thereof as reasonably requested); and

(ii) the financial and operating data and information concerning the costs and cost structure of OpCo and the Subsidiaries of OpCo for the purpose of the Independent Directors’ review and approval of the Approved Fee Rate (including furnishing copies thereof as reasonably requested).

(b) OpCo shall furnish to the Directors’ Appointee copies of any and all meeting minutes and such other information and materials given or presented to the board of directors and committees of the board of directors of OpCo as are reasonably requested by the Directors’ Appointee.

(c) Subject to the sole discretion of the Independent Directors, Alibaba shall have the right to appoint (i) a firm of independent certified public accountants of recognized international standing (which shall initially be PricewaterhouseCoopers LLP), and (ii) an internationally-recognized independent consulting firm with appropriate qualifications and experience in the PRC conducting reviews of this nature, and to cause such firms to review the accounts, books, records, financial and operating data and other related information of OpCo and its Subsidiaries to confirm the calculations of the payments due to and by OpCo under the Intellectual Property License and Software Technology Services Agreement and the Commercial Agreement and compliance with the covenants in such agreements; provided, however, so long as there has not been any non-compliance or breach, there shall be a maximum of one (1) such review for each fiscal year. The Parties understand, agree and acknowledge their intention that such firm of independent certified public accountants of recognized international standing shall review the accounts of OpCo and its Subsidiaries and shall have access to the work papers of OpCo’s independent auditors (to the extent permitted by such independent auditors, provided that OpCo and its Subsidiaries must use commercially reasonable efforts to obtain the consent of their respective independent auditors to give Alibaba access to their work papers) as described in this Subsection (c), and shall advise the board of directors of Alibaba in connection therewith, while a separate, internationally recognized independent certified public accounting firm (which shall initially be Ernst & Young) shall audit the periodic financial statements of OpCo under IFRS.

 

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(d) HoldCo shall afford to either of the Independent Directors, the Directors’ Appointee, or Representatives (limited to attorneys, accountants or personnel of Yahoo! and Softbank, of reasonably appropriate stature) designated by either of the Independent Directors or the Directors’ Appointee for the purpose of monitoring HoldCo’s compliance with the Transaction Documents and subject to two (2) Business Day prior written notice, access during reasonable and normal business hours to the books, records, accounts, management personnel, personnel of the auditors and accountants, and facilities of HoldCo (including furnishing copies of documents as reasonably requested).

(e) OpCo shall have the right to cause a designated Representative of OpCo to review the accounts, books, records, financial and operating data and other related information of OpCo IT and its Subsidiaries to confirm the calculations of the payments due to and by OpCo under the Intellectual Property License and Software Technology Services Agreement and compliance with the covenants in such agreement; provided, however, so long as there has not been any non-compliance or breach, there shall be a maximum of one (1) such review for each fiscal year. The Parties understand, agree and acknowledge their intention that OpCo’s accountants shall review the accounts of OpCo IT and its Subsidiaries and shall have access to the work papers of Alibaba’s independent auditors (to the extent permitted by such independent auditors, provided that Alibaba and its Subsidiaries must use commercially reasonable efforts to obtain the consent of their respective independent auditors to give OpCo access to their work papers) as described in this Subsection (e).

(f) All such rights pursuant to Section 7.09(a), (b), (c), (d) and (e) shall terminate and be of no further force or effect as of the Final Payment Date or, for rights relating to the Intellectual Property License and Software Technology Services Agreement, such earlier time as such agreements are terminated as required pursuant to regulatory or listing requirements in connection with a Qualified IPO; provided, however, that in the event of a Qualified IPO, Alibaba shall continue to be entitled to all rights pursuant to this Section 7.09 solely with respect to all periods prior to and as of such Qualified IPO in a manner consistent with this Section 7.09. Notwithstanding the foregoing, the information rights of Alibaba and its Subsidiaries related to the Commercial Agreement shall not terminate until such time as Alibaba agrees in writing to receive services from OpCo pursuant to a pricing structure where the calculations contemplated by the Commercial Agreement are irrelevant.

(g) For the avoidance of doubt, the rights pursuant to this Section 7.09 shall not (i) include any specifically identifiable information of OpCo’s customers or other information that third parties would not be permitted to access under applicable privacy laws or regulations or under the ordinary course of OpCo’s customer-related privacy policies, (ii) require OpCo to disclose any information if such disclosure would violate any Laws, including Laws of the PRC and (iii) require HoldCo or OpCo to disclose any information if such disclosure would, upon the written advice of HoldCo’s or OpCo’s independent outside legal counsel, as applicable, jeopardize any attorney-client privilege or attorney work product; provided, however, that HoldCo or OpCo shall furnish and shall exercise all reasonable efforts to furnish and provide full access to any and all portions of such information or material that is not subject to any attorney-client privilege and that OpCo does not reasonably expect to impose a material risk of a material liability on OpCo. Any information shared pursuant to this Section 7.09 shall be shared subject to Section 7.01.

 

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Section 7.10 Restrictions on HoldCo Liquidity Event. From the date of this Agreement until the Final Payment Date, JMY, JT, HoldCo Shareholders and HoldCo shall not agree to effect or permit a HoldCo Liquidity Event.

Section 7.11 Actions by Alibaba.

(a) The Parties agree that for so long as this Agreement or any of the other Transaction Documents remains in effect, all Alibaba Independent Actions shall be taken or made solely by the unanimous decision of the Independent Directors. Prior to or contemporaneously with the execution of this Agreement, the Alibaba board of directors has passed an irrevocable resolution in the form of Exhibit G hereto specifically confirming, authorizing, and delegating the authority set forth in this Section 7.11 to the Independent Directors. All Alibaba Independent Actions shall be determined by the Independent Directors either at a meeting (a “Transaction Meeting”) or, solely in accordance with the last three sentences of subsection (b), by written consent, in each case in accordance with the procedures set forth in this Section 7.11 and such resolution.

(b) A Transaction Meeting may be called by any Independent Director or any member of the board of directors of Alibaba by giving written notice (a “Meeting Notice”) to each Independent Director and each member of the Alibaba board of directors, all of whom shall be invited to participate in such Transaction Meeting. The Meeting Notice shall specify the date of the meeting, which date shall not be earlier than three (3) Business Days after the date of the Meeting Notice, the time of the meeting, and the place of the meeting. The Meeting Notice shall also specify the purpose of such Transaction Meeting and the proposed Alibaba Independent Action(s) to be determined and enclose any relevant written materials. The Transaction Meeting shall be held on the date and at such time and place as specified in the Meeting Notice; provided that the meeting may be delayed to an alternate date and time and place if requested by any member of the board of directors of Alibaba so long as the Independent Directors and members of the Alibaba board of directors are able to mutually agree on an alternate date and time and place for the Transaction Meeting which is no later than ten (10) Business Days following the date of Transaction Meeting set forth in the Meeting Notice. If a Transaction Meeting is not held within ten (10) Business Days of the date specified in the Meeting Notice due to the action or inaction by any member of the Alibaba board of directors (other than an Independent Director), then the Independent Directors or sole Independent Director, as applicable, may act by unanimous written consent without a Transaction Meeting with respect to the Alibaba Independent Action(s) set forth in the Meeting Notice.

 

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Notwithstanding anything herein to the contrary, the Independent Directors may act by unanimous written consent without a Transaction Meeting if, in the Independent Directors’ judgment, immediate action is required under the circumstances in order to avoid material harm or loss to Alibaba, provided that prior to taking such action by unanimous written consent, the Independent Directors advise the members of the Alibaba board of directors of such Alibaba Independent Action(s) and the rationale for taking such Alibaba Independent Action(s) without a Transaction Meeting. Prior to taking such action by written consent, the Independent Directors, either individually or together, will designate times that they can be available to participate in a conference call to discuss the matter to be acted upon, and shall participate in such a conference call, if the other members of the Alibaba board make themselves available during such designated times.

(c) All Meeting Notices shall be deemed to have been received (i) if by personal delivery, on the day delivered, (ii) if by courier services or overnight mail or delivery, on the day delivered, and (iii) if by facsimile or electronic mail, on the day on which such facsimile or electronic mail was received, provided that it is followed immediately by confirmation by personal delivery, courier service or overnight mail.

(d) All Meeting Notices shall be delivered to the addresses set forth in Section 10.01, and such addresses may be updated with the secretary of Alibaba from time to time by the Independent Directors and the members of the Alibaba board of directors. A Meeting Notice need not be given to any Independent Director or any member of the board of directors of Alibaba who signs a waiver of such Meeting Notice or a consent to holding the Transaction Meeting, whether before or after the Transaction Meeting, or who attends (by whatever permitted means) the Transaction Meeting without protesting, prior to its commencement, the validity of the Meeting Notice to such Independent Director or other member of the board of directors of Alibaba.

(e) An Independent Director or other member of the board of directors of Alibaba may participate in any Transaction Meeting by means of telephone, video conference or similar communication equipment by way of which all persons participating in such Transaction Meeting can hear each other and such participation shall be deemed to constitute presence in person at the Transaction Meeting.

(f) The unanimous decision of the Independent Directors or sole Independent Director, as applicable, taken at a duly called Transaction Meeting or, solely in accordance with the last three sentences of subsection (b), by the unanimous written consent of such Independent Directors or sole Independent Director, as applicable, shall be binding on Alibaba, the other Parties or any third-party with respect to such Alibaba Independent Action(s). Alibaba shall promptly implement the decision of the Independent Directors (acting unanimously) or sole Independent Director, as applicable, with respect to any Alibaba Independent Action. Any purported Alibaba Independent Action taken by Alibaba (including by the Alibaba board of directors or management) other than as described in this Section 7.11 shall be invalid, null and void and of no effect whatsoever.

 

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(g) For the avoidance of doubt, this Section 7.11 and the resolution set forth in Exhibit G shall have no effect on any actions of the Company or the Directors other than with respect to the Alibaba Independent Actions.

(h) For so long as the Framework Agreement or any of the other Transaction Documents remains in effect, Section 7.11 and the resolution set forth in Exhibit G shall not be revoked, rescinded, varied or amended without the unanimous consent of the Independent Directors or sole Independent Director, as applicable, and of the board of directors of Alibaba.

Section 7.12 Independent Directors’ Staff Support. The Independent Directors shall be entitled to appoint a single individual of appropriate stature and qualifications to assist them in their activities with respect to the Actions and other matters contemplated under the Transaction Documents and Shareholders Agreement, including review of proposals to the Independent Directors and development of appropriate background information supporting the Independent Directors’ consideration thereof (the “Directors’ Appointee”). The Directors’ Appointee shall be provided, as reasonably requested and at Alibaba’s expense, with space to work at Alibaba’s facilities in Hong Kong when the Directors’ Appointee is visiting Alibaba’s offices, and shall be entitled to attend meetings of Alibaba’s board of directors in an observer capacity. The salary of the Directors’ Appointee shall be borne by Yahoo! and Softbank, and any removal, replacement or change in employment conditions of such appointee shall constitute an Alibaba Independent Action under this Agreement.

Section 7.13 Non-Competition.

(a) During the period commencing on the Effective Time and ending on the Final Payment Date (the “Restricted Period”), Alibaba agrees and covenants that it and its Subsidiaries shall not, within the PRC, directly or indirectly engage in the Business, enter into or participate in the Business as an owner, partner or principal or otherwise compete with the Business within the PRC; provided, however, Alibaba may:

(i) own, directly or indirectly, solely as a passive investment, Securities of any OpCo Competitor traded on any securities exchange, provided that Alibaba is not a controlling person of, or a member of a group which controls, such entity and does not, directly or indirectly, “beneficially own” (as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended) one percent (1%) or more of any class of Securities of such OpCo Competitor;

(ii) continue to conduct the Business to the extent necessary to fulfill its obligations under each of the Intellectual Property License and Software Technology Services Agreement and Commercial Agreement, until the termination of the Intellectual Property License and Software Technology Services Agreement and Commercial Agreement (as applicable); and

(iii) engage in the provision of financing products; the issuance of benefits, discounts and virtual currency provided under loyalty programs; group buying and online coupons related to group buying; the provision of a directory of merchants; and the provision of foreign exchange services.

 

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Notwithstanding any provision in this Agreement to the contrary, nothing herein shall interfere with Alibaba’s right to Contract with independent third Persons for the provision or procurement of Business services or products and to undertake any activities in connection therewith pursuant to Section 2.6 of the Commercial Agreement.

(b) During the Restricted Period, each of HoldCo and OpCo shall not and shall cause their respective Subsidiaries not to, anywhere in the Business Area directly or indirectly engage in the Alibaba Business, enter into or participate in the Alibaba Business as an owner, partner or principal or otherwise compete with the Alibaba Business anywhere in the Business Area; provided, however, each of HoldCo, OpCo and their respective Subsidiaries may:

(i) own, directly or indirectly, solely as a passive investment, Securities of any Alibaba Competitor traded on any securities exchange, provided that HoldCo, OpCo, and their respective Subsidiaries are not individually or collectively a controlling person of, or a member of a group which controls, do not, directly or indirectly, “beneficially own” (as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended) one percent (1%) or more of any class of Securities of such Alibaba Competitor; and

(ii) engage in the provision of financing products; the issuance of benefits, discounts and virtual currency provided under loyalty programs, provided that group buying and online coupons related to group buying shall be deemed a part of the Alibaba Business and not excepted under this clause (ii); the provision of a directory of merchants providing OpCo’s services, provided that “directory of merchants” shall not be interpreted to mean any business of the kind conducted by Alibaba (e.g., Alibaba.com, TaoBao, etc.); and the provision of foreign exchange services.

Section 7.14 Employees and Employee Benefits. Alibaba, HoldCo and OpCo intend that there shall be continuity of employment with respect to employees as follows, to the extent permitted by applicable Law:

(a) Transfer of Employees from Alibaba to OpCo. In case of transfer of employees from Alibaba or its Subsidiaries to OpCo or its Subsidiaries, the employees so transferred shall sign a termination agreement to terminate their existing labor contact with Alibaba (or its Subsidiaries or PRC registered Affiliates) and sign a new labor Contract with OpCo or its Subsidiaries. The terms and conditions in the new labor Contract shall be no less favorable to such employees than those in the labor Contract with Alibaba (or its Subsidiaries or PRC registered Affiliates), and the service period of such employees with Alibaba or its Subsidiaries shall be recognized in the new labor Contract with OpCo or its Subsidiaries.

(b) Transfer of Employees from OpCo to Alibaba. In case of transfer of employees from OpCo or its Subsidiaries to Alibaba (or its Subsidiaries or PRC registered Affiliates), the employees so transferred shall sign a termination agreement to terminate their employment with OpCo or its Subsidiaries and sign a new labor Contract with Alibaba or its Subsidiaries. The terms and conditions in the new labor Contract shall be no less favorable to such employees than those in the labor Contract with OpCo or its Subsidiaries, and the service period of such employees with OpCo or its Subsidiaries shall be recognized in the new labor Contract with Alibaba or its Subsidiaries.

 

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(c) Severance and Termination Matters. In connection with any transfer of employees under Section 2.08(a), if severance is required to be paid to the employee, the transferor entity shall pay one-half (1/2) of such cost and the transferee entity shall pay one-half (1/2) of such cost. In connection with any transfer of employees under Section 2.08(b), if severance is required to be paid to the employee, HoldCo shall pay all of such cost.

(d) Market Compensation. Until the Final Payment Date, HoldCo shall ensure that compensation of management employees of OpCo shall be reasonable and consistent with industry standards in the PRC.

Section 7.15 Further Covenants.

(a) Maintenance of Existence; Compliance. Until the occurrence of the Final Payment Date, each of HoldCo, OpCo and IPCo shall take all reasonable action to (i) preserve, renew and keep in full force and effect its organizational existence and (ii) maintain all rights, privileges, business licenses, and franchises, and comply with all Contracts, in each case as is necessary or desirable in the normal conduct of its business; and (iii) comply in all material respects with all Laws and judgments, orders and decrees of any Governmental Authority.

(b) Books and Records. So long as any relevant obligation is owing by it under any Transaction Document, each of HoldCo, OpCo and IPCo shall and Alibaba shall cause OpCo IT and OpCo IT’s Subsidiaries to keep proper books of records and account in which full, true and correct entries in conformity with IFRS and all applicable Laws shall be made of all dealings and transactions in relation to its business and activities.

(c) Notices. Until the occurrence of the Final Payment Date, each of HoldCo and IPCo shall promptly give notice to Yahoo! and Softbank of the occurrence of any Default or Event of Default under the IPCo Promissory Note.

(d) Payment Obligations. So long as any payment obligation is owing by it under any Transaction Document, each of HoldCo, OpCo and IPCo shall with respect to itself, each of HoldCo and OpCo shall cause each of its Subsidiaries that is in the OpCo Group, and Alibaba shall cause OpCo IT to, pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its material obligations of whatever nature, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with IFRS with respect thereto have been provided on its books or on the books of the relevant entity in Alibaba, the OpCo Group or IPCo.

(e) Liens. Until the occurrence of the Final Payment Date, HoldCo shall not create, incur, assume or suffer to exist any Lien upon any of its Assets other than to secure total Liabilities, other than Liabilities or obligations incurred pursuant to this Agreement, not to exceed Twenty-Five Million Dollars (US$25,000,000); provided, however, that HoldCo may create, incur, assume or suffer to exist Liens in connection with the incurrence of Indebtedness (in an approved Related Party Transaction, or to an Unrelated Third Party or Unrelated Third Parties pursuant to one or more bona fide arms-length negotiated agreements) where all of the proceeds from such Indebtedness (net of Transaction Expenses) are used to pay the IPCo Note Amount, the Increase Payment, the Liquidity Event Payment, the Make-Whole Payment or the Impact Payment without regard to the Twenty-Five Million Dollars (US$25,000,000) limit set forth above, and any such Lien shall not be counted against such limit.

 

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(f) Fundamental Changes. Until the occurrence of the Final Payment Date, none of HoldCo, OpCo or IPCo shall enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself.

(g) Negative Pledge. Until the occurrence of the Final Payment Date, IPCo shall not enter into or suffer to exist or become effective any Contract that prohibits or limits the ability of it to create, incur, assume or suffer to exist any Lien upon any of its Assets, whether now owned or hereafter acquired, to secure its obligations under the IPCo Promissory Note.

(h) Senior Payments. Until the occurrence of the Final Payment Date, each of HoldCo and IPCo shall ensure that its obligations and liabilities under the Transaction Documents constitute its unconditional and general obligations that at all times rank senior to all of its other existing or future Indebtedness; provided, however, that the foregoing requirement that such obligations rank senior to existing or future Indebtedness shall not apply with respect to any Indebtedness incurred where all of the proceeds from such Indebtedness (net of Transaction Expenses) are used to pay the IPCo Note Amount, the Increase Payment, the Liquidity Event Payment, the Make-Whole Payment or the Impact Payment and which Indebtedness is not secured by any Lien on Collateral unless such Lien is subordinated to the Liens of the Security Documents on terms satisfactory to Yahoo! and Softbank.

(i) Rights against IPCo. Until the occurrence of the Final Payment Date, none of HoldCo, OpCo, JMY or JT shall exercise, or permit its direct and indirect Subsidiaries to exercise, any rights or remedies under Law or in equity that it or its Subsidiaries has or may otherwise acquire against IPCo (in any way whatsoever) arising out of, or in connection with, the Transaction Documents, including any rights of subrogation, contribution, indemnification, restitution, reimbursement or suretyship until the payment in full of the IPCo Promissory Note.

(j) Further Assurances. Until the occurrence of the Final Payment Date, each of HoldCo, OpCo, IPCo, JMY and JT agree, that from time to time, at its expense, it shall promptly execute and deliver all further instruments and documents, and take all further action, that may be reasonably necessary, or that Alibaba, Softbank or Yahoo! may reasonably request, in order to perfect and protect the security interest granted, ensure the continued perfection of, purported or intended to be granted in favor of Alibaba pursuant to the Security Documents or to enable Alibaba to exercise and enforce its rights and remedies thereunder with respect to any Collateral.

(k) Pledge of Alibaba Shares. Until the occurrence of the Final Payment Date, each of JMY and JT hereby covenant and agree to, prior to Closing, transfer or cause to be transferred to IPCo legal and beneficial interest in an aggregate of Fifty Million (50,000,000) Alibaba Shares owned directly or indirectly by JMY and JT free and clear of all Liens, which shares shall be mortgaged at Closing by IPCo pursuant to the Legal Mortgage of Alibaba Shares (the “Alibaba Share Pledge”). Each of JMY and JT hereby covenant and agree to execute and deliver, or cause to be executed and delivered, all such documentation required to effect such transfer.

 

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(l) Shortfall. JMY and JT covenant and agree that, upon the occurrence of a Liquidity Event, or if HoldCo is obligated under this Agreement to make an Impact Payment or Make-Whole Payment, if (x) the aggregate amount (i) that will be paid in cash by the end of the ninety (90)-day period referenced in Section 2.09(d) to Alibaba in respect of any or all of the Liquidity Event Payment, Increase Payment, if any, Impact Payment, if any, Make-Whole Payment, if any, and the IPCo Promissory Note plus (ii) the Fair Market Value of the Alibaba Share Collateral is less than (y) the aggregate amount of the Liquidity Event Payment, Increase Payment, if any, Impact Payment, if any, Make-Whole Payment, if any, and the amount outstanding under the IPCo Promissory Note (the difference between (x) and (y) being the “Shortfall Amount”), JMY and JT shall, and in connection with any Substitution (as defined below) JMY and JT shall:

(A) execute and deliver a Cayman Islands law governed legal mortgage, in substantially the form attached hereto as Annex D (the “Shortfall Amount Mortgage”) in respect of shares of Alibaba held by them (the “Additional Alibaba Shares”), and/or

(B) transfer Cash and Cash Equivalents (provided, that such Cash Equivalents shall not include publicly traded Securities that are not traded on a securities exchange in the United States or Hong Kong) held by them to one or more of the accounts subject to Liens of the Account Pledge Agreements (the “US Collateral”). The Additional Alibaba Shares and the US Collateral (collectively, the “Pledged Assets”) shall have an aggregate Fair Market Value equal to or greater than the Shortfall Amount (or, in the case of any Substitution, equal to the Fair Market Value of any Pledged Assets being substituted calculated as of the date of such Substitution). Each of JMY and JT shall otherwise take all actions necessary or required under the Shortfall Amount Mortgage and the Account Pledge Agreements (collectively, the “Shortfall Security Documents”) to perfect the Liens intended to be created under such documents with respect to the Pledged Assets. All necessary transfers (including any certificate transfers), deposits, filings, registrations, re-registrations and annotations necessary or required under the Shortfall Security Documents will be effected by JMY, JT and Alibaba prior to the Liquidity Event and each Substitution permitted by this Section 7.15(l), and as of the Liquidity Event and any Substitution, and in each case as a condition precedent to the consummation thereof,

(i) legal and beneficial title to the Additional Alibaba Shares shall be transferred to Alibaba’s security agent under the Shortfall Amount Mortgage (or, in respect of Additional Alibaba Shares mortgaged pursuant to a Substitution, an additional Shortfall Amount Mortgage),

 

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(ii) the Account Pledge Agreements shall be effective to create in favor of Alibaba’s security agent thereunder a valid and perfected first priority Lien on the US Collateral,

(iii) each Shortfall Security Document shall be binding and enforceable against JMY or JT, or both of them, as the case may be, and

(iv) Alibaba, Yahoo! and Softbank shall each have received legal opinions from counsel to JMY and JT, which opinions and counsel shall be reasonably satisfactory to Alibaba, Yahoo! and Softbank, addressing, among other things, the enforceability of the Shortfall Security Documents and the perfection of the transfer and/or Liens on the Pledged Assets pursuant to the Shortfall Security Documents.

The Liens to be granted in accordance with this Section 7.15 shall secure full payment of the Shortfall Amount when due, irrespective of whether payment of the Shortfall Amount is at any time restricted or prohibited by PRC law or otherwise. If requested by JMY and JT, which request will include a reasonable proposal for financing the Shortfall Amount, the consent to which request shall not be unreasonably withheld, delayed or conditioned by Alibaba, JMY and JT may execute the Shortfall Security Documents on a date within ninety (90) days following the occurrence of a Liquidity Event, or following the date on which HoldCo becomes obligated to make an Impact Payment or Make-Whole Payment. JMY and JT may elect to substitute any of the Pledged Assets with other Pledged Assets having equivalent Fair Market Value calculated as of the date of such substitution (a “Substitution”); provided, further, that with respect to any substituted Pledged Assets, all of the procedures with respect to Pledged Assets set forth in this Section 7.15(l) are complied with.

(m) Effect under Shareholders Agreement. For the avoidance of doubt, it is agreed that other than with respect to any shares of Alibaba that have been foreclosed upon,

(i) the transfer of the Alibaba Share Pledge and Pledged Assets pursuant to Section 7.15(k) and (l) above, respectively, will not constitute a “Transfer” under the Shareholders Agreement,

(ii) for all purposes relating to the governance, operation and management of Alibaba (whether under law, the Shareholders Agreement or any governing documents of Alibaba or any of its Affiliates), JMY, JT and the other management members will retain all rights incident to the ownership of such shares, including voting rights and all rights relating to specific levels of ownership, in all cases as if the legal mortgages and related documentation had not occurred or been executed, and

(iii) if the effects described in clauses (i) and (ii) cannot be accomplished without an amendment to the Shareholders Agreement or the Memorandum and Articles of Association of Alibaba, JMY, JT, Yahoo! and Softbank shall effect such amendments as soon as practicable in order to permit the Transfer of such shares or Pledged Assets without assurance of any of the negative effects referred to in clauses (i) and (ii).

In the event that Alibaba forecloses upon any shares pledged pursuant to this Section 7.15, Alibaba shall be free to Transfer such shares (or, if such shares are retired, issue new shares as approved by the Independent Directors in an amount not to exceed the number of shares so retired as a result of such foreclosure) without restriction under the Shareholders Agreement.

 

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(n) Transaction Documents. At or prior to the Effective Time, the Parties will, or will cause their applicable Affiliates to enter into and execute the Transaction Documents.

(o) No Intellectual Property Transfers. From the date of this Agreement until the Effective Time, there shall be no Transfers of Intellectual Property between Alibaba or any of its Subsidiaries (other than the Retained Entities) and HoldCo, IPCo, the Retained Entities or any of their respective Subsidiaries.

(p) Termination of Existing Agreements. At or prior to the Effective Time, Alibaba and its Subsidiaries on the one hand and the OpCo Group on the other hand shall take any and all action to terminate any and all agreements by and between them (other than the Transaction Documents or any agreement contemplated thereby), including (i) the Software Service Agreement between TaoBao (China) Software, Ltd. and OpCo, dated September 16, 2009 and (ii) the Client Service Agreement between Alipay Software (Shanghai) Co., Ltd. and OpCo, dated June 20, 2008 (together, the “Existing IP Agreements”).

(q) IPCo. On or prior to the Effective Time, JMY and JT shall cause IPCo to amend its organizational documents substantially in the form of Exhibit F. By the Effective Time, JMY and JT shall cause a designee of Yahoo! and a designee of Softbank to each have been appointed to the board of directors of IPCo, such that the only directors of IPCo as of the Effective Time are a designee of Yahoo!, a designee of Softbank, JMY and JT.

(r) Compliance. Solely in their capacities officers or directors of HoldCo, OpCo and IPCo, JMY and JT shall take such actions as are within their authority (including by voting in their capacity as director) to cause HoldCo, OpCo or IPCo to take such corporate actions and make such corporate approvals as may be necessary (including seeking any necessary shareholder approvals) for any of HoldCo, OpCo or IPCo to comply with any of its obligations under this Section 7.15; and solely in their capacities, if any, as Beneficial Owners of Securities of HoldCo, OpCo or IPCo, JMY and JT shall vote or cause to be voted such Securities in favor of any corporate actions and or approvals as may be necessary for any of HoldCo, OpCo or IPCo to comply with any of its obligations under this Section 7.15.

ARTICLE VIII

CONDITIONS

Section 8.01 Conditions to Each Party’s Obligation to Effect the Transaction. The obligation of each Party to effect the Closing shall be subject to the satisfaction or waiver of the following conditions precedent (any of which may be waived by agreement of the Parties, in whole or in part, in writing):

(a) Legal Matters. No Governmental Order or other Laws, rule, legal restraint or prohibition, in each case of a Governmental Authority of competent jurisdiction, shall have been issued to prohibit or shall otherwise be in effect to prevent the consummation of the Transactions in any material respect.

 

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(b) PBOC Payment License. At the Effective Time, no order, decision, notice or any other government document have been issued (or pending or imminent) by PBOC to withdraw the PBOC payment license issued to OpCo, or to prohibit or otherwise prevent OpCo from conducting the Business as approved under the PBOC payment license.

(c) Foreign Exchange. The approvals by, registrations with or filings with SAFE or its local counterparts described in Section 8.01(c) of the Disclosure Letter have been obtained.

(d) Cross-License Agreement. Alibaba and OpCo shall have agreed in writing to a mutually acceptable form of Cross-License Agreement substantially on the terms set forth on Schedule 2.10.

Section 8.02 Conditions to Obligations of HoldCo, OpCo and IPCo. The obligations of HoldCo, OpCo and IPCo to affect the Closing shall be subject to the satisfaction or waiver of the following conditions precedent (any of which may be waived by agreement of the Parties, in whole or in part, in writing):

(a) Accuracy of Representations and Warranties. Each of the representations and warranties of Alibaba, Yahoo! and Softbank (i) set forth in this Agreement (other than those in Section 3.01 and 6.01) shall be true and correct in all respects (except for such inaccuracies or breaches which do not, individually or in the aggregate, materially decrease the benefits of the Transactions to HoldCo, OpCo and IPCo) as of the Effective Time as if made as of the Effective Time (except for such representations and warranties that are made as of a specific date which shall speak only as of such date), and (ii) the representations and warranties set forth in Section 3.01 and Section 6.01 shall be true and correct in all respects as of the Effective Time as if made as of the Effective Time. Each of Alibaba, Yahoo! and Softbank shall deliver to HoldCo a certificate signed by an executive officer thereof to the effect that the conditions set forth in this Section 8.02(a) have been satisfied.

(b) Performance of Obligations by Alibaba, Yahoo! and Softbank. Each of Alibaba Yahoo! and Softbank shall have performed, in all material respects, its agreements and obligations contained in this Agreement required to be performed by it at or before the Closing. Each of Alibaba, Yahoo! and Softbank shall deliver to HoldCo a certificate signed by an executive officer thereof to the effect that the conditions set forth in this Section 8.02(b) have been satisfied.

(c) Transaction Documents. Except as set forth in this Section 8.02(c) of the Disclosure Letter, each Transaction Document shall have been validly executed and delivered by the applicable Parties (other than HoldCo, OpCo, IPCo, JMY, JT and their applicable Affiliates) and shall be in full force and effect as of the Effective Time.

 

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Section 8.03 Conditions to Obligations of Alibaba, Yahoo! and Softbank. The obligations of Alibaba, Yahoo! and Softbank to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction or waiver of the following conditions precedent (any of which may be waived by agreement of the Parties, in whole or in part, in writing):

(a) Accuracy of Representations and Warranties of HoldCo, OpCo and IPCo. Each of the representations and warranties of HoldCo, OpCo and IPCo (i) set forth in this Agreement (other than those in Section 4.01 and 4.02) shall be true and correct in all respects (except for such inaccuracies or breaches which do not, individually or in the aggregate, materially decrease the benefits of the Transactions to Alibaba, Yahoo! or Softbank) as of the Effective Time as if made on and as of the Effective Time (except for such representations and warranties that are made as of a specific date which shall speak only as of such date), and (ii) the representations and warranties set forth in Section 4.01 and Section 4.02 shall be true and correct in all respects as of the Effective Time as if made as of the Effective Time. Each of HoldCo, OpCo and IPCo shall deliver to each of Alibaba, Yahoo! and Softbank a certificate signed by an executive officer thereof to the effect that the conditions set forth in this Section 8.03(a) have been satisfied.

(b) Accuracy of Representations and Warranties of JMY and JT. Each of the representations and warranties of JMY and JT set forth in this Agreement shall be true and correct in all respects (except for such inaccuracies or breaches which do not, individually or in the aggregate, materially decrease the benefits of the Transactions to Alibaba, Yahoo! or Softbank) as of the Effective Time as if made as of the Effective Time (except for such representations and warranties that are made as of a specific date which shall speak only as of such date). JMY and JT shall deliver to each of Alibaba, Yahoo! and Softbank a certificate to the effect that the conditions set forth in this Section 8.03(b) have been satisfied.

(c) Performance of Obligations by HoldCo, OpCo and IPCo. Each of HoldCo, OpCo and IPCo shall have performed, in accordance with the terms hereof, in all material respects, its agreements and obligations contained in this Agreement required to be performed by it at or before the Closing, and no Default or Event of Default shall have occurred under the IPCo Promissory Note. Each of HoldCo, OpCo and IPCo shall deliver to Alibaba a certificate signed by JMY and JT as executive officers of HoldCo, OpCo and IPCo, respectively, to the effect that the conditions set forth in this Section 8.03(c) have been satisfied.

(d) Performance of Obligations by JMY and JT. Each of JMY and JT shall have performed, in accordance with the terms hereof, in all material respects, his respective agreements and obligations contained in this Agreement required to be performed by him at or before the Closing. Each of JMY and JT shall deliver to Alibaba a certificate to the effect that the conditions set forth in this Section 8.03(d) have been satisfied.

(e) Alibaba Share Pledge. The Alibaba Share Pledge shall have been effected at or before the Effective Time.

(f) Transaction Documents. Except as set forth in this Section 8.03(f) of the Disclosure Letter, each Transaction Document shall have been validly executed and delivered by the applicable Parties (other than Alibaba, Yahoo!, Softbank and their applicable Affiliates) and shall be in full force and effect as of the Effective Time.

 

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(g) Enforceability Opinions. Alibaba, Yahoo! and Softbank shall each have received an enforceability opinion dated the Effective Time from (i) Fangda Partners, PRC counsel to HoldCo and (ii) Maples and Calder, Cayman Islands counsel to IPCo, in each case addressed to Alibaba, Yahoo! and Softbank in the agreed upon form provided to each of Alibaba, Yahoo! and Softbank prior to the date hereof and attached in the form of Exhibit H and Exhibit I hereto, addressing, among others, enforceability of the Transaction Documents and the creation of a perfected security interest in and to the Collateral pursuant to the Security Documents.

(h) IPCo Organization. IPCo shall have amended its organizational documents substantially in the form of Exhibit F and shall have delivered a true and correct copy of such organizational documents to Alibaba, Softbank and Yahoo!, and the designees of Softbank and Yahoo! shall have been appointed to the board of directors of IPCo such that the only directors of IPCo as of the Effective Time shall be the designee of Softbank, the designee of Yahoo!, JMY and JT. IPCo shall have the same Assets, liabilities, and capitalization as on the date of this Agreement, except (a) that IPCo’s Assets shall include the Alibaba Share Collateral and (b) for any changes made with the prior written consent of Yahoo! and Softbank or as required by the Transaction Documents.

(i) Solvency Certificates. Alibaba, Yahoo! and Softbank shall each have received a Solvency Certificate from IPCo and HoldCo dated the Effective Time, substantially in the form of Exhibit J and with appropriate attachments and otherwise reasonably satisfactory to Alibaba, Yahoo! and Softbank, in each case demonstrating that as of immediately prior to the Closing and as of immediately after the Closing (but in each case excluding any Liability for the Liquidity Event Payment, the Make-Whole Payment, the Impact Payment and the Increase Payment), IPCo and HoldCo and their respective Subsidiaries will be Solvent and will have adequate capital to carry on their respective businesses.

(j) Perfection. Each of JMY and JT (with respect to the Legal Mortgage of IPCo Shares, and the Account Pledge Agreements), HoldCo and IPCo (with respect to the Legal Mortgage of Alibaba Shares and the IPCo Asset Charge) shall have delivered evidence reasonably satisfactory to Alibaba, Softbank and Yahoo! that JMY, JT and IPCo, respectively, shall have taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings that may be necessary or, in the reasonable opinion of Alibaba, Yahoo! or Softbank, desirable in order to create in favor of Alibaba’s Collateral Agent (as defined below), a valid and (upon such filing and recording) perfected first priority security interest in the Collateral, including, as set forth in Section 4.1 of the Legal Mortgage of IPCo Shares, Section 4.1 of the Legal Mortgage of Alibaba Shares and Section 4.1 of the IPCo Asset Charge and delivery to Alibaba, Softbank and Yahoo! of proper Uniform Commercial Code financing statements (and acknowledgement copies) duly filed in the Recorder of Deeds of the District of Columbia on or before the Effective Time creating a perfected security interest over the Collateral. To that end and without limiting the foregoing, (i) a collateral agency agreement in form and substance satisfactory to Alibaba shall have been executed and delivered between Alibaba and a reputable international financial institution with operations in each of United States and the Cayman Islands (which institution shall be acceptable to Alibaba, the “Collateral Agent”), (ii) HoldCo and/or IPCo or another Person on their behalf, shall have agreed to pay all reasonable fees and expenses of the Collateral Agent (including the reasonable fees and expenses of the Collateral Agent’s legal counsel), and otherwise indemnify the Collateral Agent, in connection with the Security Documents, pursuant a fee letter in form and substance satisfactory to each of Alibaba and the Collateral Agent (the “Fee Letter”), (iii) HoldCo and/or IPCo shall have paid or caused to be paid all such reasonable fees and expenses of the Collateral Agent (including the reasonable fees and expenses of the Collateral Agent’s legal counsel) that are required to be paid prior to or at Closing, (iv) JMY and JT shall have opened such accounts in New York City (with a reputable financial institution acceptable to Alibaba) as are required for purposes of giving effect to the Liens of the Account Pledge Agreements, (v) JMY and JT shall have paid all reasonable fees and expenses that are required to be paid in connection with such accounts prior to or at Closing, and (vi) JMY and JT shall have executed and delivered “Control Agreements” in respect of such accounts (as contemplated by the Account Pledge Agreements), each in form and substance satisfactory to Alibaba.

 

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(k) Existing IP Agreement Termination. Each of the Existing IP Agreements shall have terminated and evidence of such termination shall have been delivered to each of Yahoo! and Softbank.

(l) Stop Notice. IPCo has not received a stop notice under Order 50 r.11 of the Grand Court Rules of the Cayman Islands with respect to the shares which are the subject of the security interest mortgaged by each of JMY and JT pursuant to the Legal Mortgage of IPCo Shares (and Alibaba hereby undertakes that neither it nor the Mortgagee (as defined in the Legal Mortgage of IPCo Shares) shall serve such a stop notice on IPCo at any time prior to Closing).

(m) Payment Processing Fee Calculation Method. (i) Yahoo! and Softbank shall have received and reviewed a report setting forth the conclusions of PricewaterhouseCoopers LLP (“PwC”) regarding OpCo’s calculation method and payment processing fee rates based on financial information for fiscal year 2010 and the first half of fiscal year 2011 provided by OpCo and (ii) in such report PwC has confirmed to Yahoo!’s and Softbank’s reasonable satisfaction that OpCo’s calculation of the Approved Fee Rate (as defined in the Commercial Agreement) based on actual financial records is consistent with the method for calculating the Approved Fee Rate as set forth in the Auditor’s Review Instructions (as defined in the Commercial Agreement).

ARTICLE IX

TERMINATION

Section 9.01 Termination.

(a) This Agreement may be terminated at any time prior to the Closing:

(i) by unanimous written agreement of the Parties;

(ii) by either HoldCo (by giving written notice of such termination to Alibaba) or Alibaba (by giving written notice of such termination to HoldCo), if the Closing shall not have occurred on or prior to December 31, 2011 (the “Outside Date”), provided, that the Outside Date shall automatically be extended by sixty (60) days if all of the conditions set forth in Article VIII are satisfied as of December 31, 2011 but for Section 8.01(c) (excluding any conditions which by their nature are to be satisfied only upon the Closing and which are capable of being satisfied), and provided further that the right to terminate this Agreement under this Section 9.01(a)(ii) shall not be available to any Party whose breach of this Agreement shall have been the primary cause of the failure of the Closing to occur on or before the Outside Date;

 

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(iii) by either HoldCo or Alibaba if any court of competent jurisdiction or other competent Governmental Authority shall have issued a Governmental Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Transactions and such Governmental Order or other action shall have become final and non-appealable;

(iv) by either HoldCo or Alibaba if PBOC issues a final order, decision, notice or any other official government document to withdraw the PBOC payment license issued to OpCo, or to prohibit or otherwise prevent OpCo from conducting the Business as approved under the PBOC payment license, or to narrow the scope of businesses that OpCo is permitted to conduct under the PBOC payment license;

(v) by either HoldCo or Alibaba if any approvals by, registrations with or filings with SAFE or its local counterparts described in Section 8.01(c) of the Disclosure Letter is failed to be obtained, and such failure shall have become final and non-appealable;

(vi) by HoldCo if any of the representations or warranties of Alibaba, Yahoo! or Softbank contained in this Agreement are inaccurate or untrue to the extent that any such inaccuracy or untruth would cause the failure of the condition set forth in Section 8.02(a) or if Alibaba, Yahoo! or Softbank has failed to discharge and fulfill any of its covenants or agreements contained in this Agreement to the extent that any such failure would cause the failure of the condition set forth in Section 8.02(b), in each case only to the extent such inaccuracy or failure cannot be cured by the Outside Date; provided, that if such inaccuracy or breach by Alibaba, Yahoo! or Softbank is curable, through the exercise of commercially reasonable efforts, within twenty (20) days after receipt of written notice from HoldCo of such breach hereunder, then HoldCo may terminate this Agreement under this Section 9.01(a)(vii) at any time following the end of such twenty (20)-day period but not earlier, provided, that Alibaba, Yahoo! or Softbank, as applicable, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach through such twenty (20)-day period (it being understood that HoldCo may not terminate this Agreement pursuant to this Section 9.01(a)(vii) if HoldCo shall have materially breached this Agreement or if such inaccuracy or breach by Alibaba, Yahoo! or Softbank, as applicable, is cured prior to termination); or

(vii) by Alibaba, if any of the representations or warranties of HoldCo, OpCo, IPCo, JMY or JT contained in this Agreement are inaccurate or untrue to the extent that any such inaccuracy or untruth would cause the failure of the condition set forth in Section 8.03(a) or Section 8.03(b), or if HoldCo, OpCo, IPCo, JMY or JT has failed to discharge and fulfill any of its covenants or agreements contained in this Agreement to the extent that any such failure would cause the failure of the condition set forth in Section 8.03(b) or Section 8.03(d), and such inaccuracy or failure cannot be cured by the Outside Date; provided, that if such inaccuracy or breach by HoldCo, OpCo, IPCo, JMY or JT is curable, through the exercise of commercially reasonable efforts, within twenty (20) days after receipt of written notice from Alibaba of such breach hereunder, then Alibaba may terminate this Agreement under this Section 9.01(a)(vii) at any time following the end of such twenty (20)-day period but not earlier, provided, that HoldCo, OpCo, IPCo, JMY or JT, as applicable, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach through such twenty (20)-day period (it being understood that Alibaba may not terminate this Agreement pursuant to this Section 9.01(a)(vii) if Alibaba shall have materially breached this Agreement or if such inaccuracy or breach by HoldCo, OpCo, IPCo, JMY or JT, as applicable, is cured prior to termination).

 

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(b) This Agreement shall automatically terminate upon the occurrence of the Final Payment Date.

Section 9.02 Effect of Termination.

(a) In the event of the termination of this Agreement in accordance with Section 9.01(a), then this Agreement and the other Transaction Documents shall thereafter become void and have no effect, and no Party shall have any Liability under the Transaction Documents to the other Parties or their respective Affiliates, directors, officers or employees, except for the obligations of the Parties contained in this Section 9.02(a), Section 7.01, Section 10.01, Section 10.06, Section 10.07 and Section 10.08, and except that nothing herein will relieve any Party from (i) Liability for any breach of this Agreement (including, subject to Section 10.12, any inaccuracy contained in any representation or warranty) prior to such termination, or (ii) Liability extinguished by the Release Agreement.

(b) In the event of termination of this Agreement in accordance with Section 9.01(b), the Transaction Documents (other than (i) the Security Documents, to the extent that any obligations of OpCo, IPCo, HoldCo, JMY or JT (as determined in the IPCo Promissory Note) survives the Final Payment Date, in each case as provided for in such Security Document, (ii) the Release Agreement and (iii) the Commercial Agreement) shall thereafter become void and have no effect, and no Party shall have any Liability hereunder or thereunder to the other Parties or their respective Affiliates, directors, officers or employees, except for the obligations of the Parties contained in Section 1.01, Section 2.09, Section 2.10, Section 7.01, Section 7.02, Section 7.09 (to the extent stated therein), Section 7.11, Section 7.13 (to the extent stated therein), Section 7.15(b), Section 7.15(d), Section 7.15(l), Section 7.15(m), Section 7.15(r), Section 10.01, Section 10.06, Section 10.07, Section 10.08, Section 10.09 and Section 10.12, and any other provision of this Agreement or any other Transaction Document that calls for performance after the date of the Final Payment Date (including the Make-Whole Payment and the Impact Payment), and except that nothing herein will relieve any Party from Liability for any breach (including, subject to Section 10.12, any inaccuracy contained in any representation or warranty) of this Agreement prior to such termination.

 

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ARTICLE X

MISCELLANEOUS

Section 10.01 Notices. All notices and other communications hereunder shall be in writing and shall be deemed received (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt if delivered by a nationally recognized courier service (or, the first (1st) Business Day following such receipt if (a) the date is not a Business Day or (b) receipt occurs after 5:00 p.m., local time of the recipient) or (iii) on the date of receipt of transmission by facsimile or electronic mail, provided that it is followed immediately by confirmation of receipt of delivery by personal delivery or a nationally recognized courier service that is received pursuant to subclause (i) or (ii) (or, the first (1st) Business Day following such receipt if (a) the date is not a Business Day or (b) receipt occurs after 5:00 p.m., local time of the recipient), to the Parties at the following address or facsimile numbers (or at such other address or facsimile number for a Party as shall be specified by like notice):

To Alibaba:

c/o Alibaba Group Services Limited

24th Floor, Jubilee

18 Fenwick Street

Wanchai

Hong Kong

Attention: General Counsel

Facsimile No.: +852 2215 5200

with a copy to the Independent Directors at the addresses for Yahoo! and Softbank, respectively, as set forth below.

To Yahoo!:

Yahoo! Inc.

701 First Avenue

Sunnyvale, CA 94089

Attention: General Counsel

Facsimile No: (408) 349-3650

with a copy (not notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

525 University Avenue, Suite 1100

Palo Alto, CA 94301

Attention:   

Kenton J. King

Leif B. King

Facsimile No.: (650) 470-4570

 

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To Softbank:

SOFTBANK CORP.

1-9-1 Higashi-shimbashi, Minato-ku

Tokyo 105-7303, Japan

Attention: Mr. Katsumasa Niki, Finance

Facsimile No: +81-3-6215-5001

with a copy (not notice) to:

Morrison & Foerster LLP

Shin-Marunouchi Building 29F, 1-5-1 Marunouchi, Chiyoda-ku

Tokyo 100-6529, Japan

Attention: Kenneth Siegel

Facsimile No: +81-3-3214-6512

To HoldCo, OpCo, IPCo, JMY or JT:

c/o Alibaba Group Services Limited

24th Floor, Jubilee

18 Fenwick Street

Wanchai

Hong Kong

Attention: General Counsel

Facsimile No.: +852 2215 5200

 

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with a copy (not notice) to:

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, NY 10023

Attention: Mark Gordon

Facsimile No: (212) 403-2343

and

Fenwick & West LLP

Silicon Valley Center

801 California Street

Mountain View, CA 94041

Attention: Larry Granatelli

Facsimile No.: (650) 938-5200

and

Fangda Partners

20/F, Kerry Center

1515 Nan Jing West Road

Shanghai 200040, China

Attention: Jonathan Zhou

Facsimile No: +8621-5298-5577

Section 10.02 Amendment; Waiver. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Parties (or, as to Alibaba, the Independent Directors, and as to the Joinder Parties, JMY), or in the case of a waiver, by the Party against whom the waiver is to be effective (or, as to Alibaba, the Independent Directors, and as to the Joinder Parties, JMY). No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

Section 10.03 Assignment. No Party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent of the Parties (in the case of Alibaba, approved by the Independent Directors).

Section 10.04 Entire Agreement. This Agreement (including all Schedules and Exhibits), the Disclosure Letter and the other Transaction Documents contain the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, with respect to such matters; provided, that for the avoidance of doubt, this Agreement (including all Schedules and Exhibits), the Disclosure Letter and the other Transaction Documents do not amend or act as a waiver of any rights under (except as expressly set forth in the Release Agreement, if and when executed and delivered) any of the following agreements:

(a) the Shareholders Agreement, except that:

(i) no Alibaba Independent Action taken in accordance with Section 7.11 shall be subject to any other consent right of directors, members or otherwise set forth in the Shareholders Agreement;

 

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(ii) in no event shall any right of the Independent Directors to take any Alibaba Independent Action (or any Alibaba Independent Action taken by the Independent Directors) be deemed to conflict with the Shareholders Agreement or any party’s rights or obligations thereunder, including for the purposes of Sections 2.1 and 2.2 thereof; and

(iii) the provisions of Section 7.11 supersede Sections 3.5 and 3.6 of the Shareholders Agreement to the extent of any conflict or inconsistency therewith;

(b) the Technology and Intellectual Property Agreement by and between Yahoo! and Alibaba, dated October 24, 2005,

(c) the Non-Competition Agreement by and among Alibaba, Yahoo!, JMY and JT, dated October 24, 2005,

(d) the Registration Rights Agreement by and among Alibaba, JMY, Softbank and Yahoo!, dated October 24, 2005,

(e) the Yahoo! Investment Agreement by and between Yahoo! and Alibaba, dated October 24, 2005,

(f) the Patent License Agreement by and between Yahoo! and Alibaba, dated October 24, 2005,

(g) the Network Security Agreement by and between Yahoo! and Alibaba, dated October 24, 2005 (each such agreement listed in clauses (a) through (g), inclusive as has been amended to date, together with any ancillary agreements thereto), and

(h) any written agreement of the Parties that expressly provides that it is not superseded by this Agreement.

Section 10.05 Parties in Interest. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns in accordance with this Agreement. Nothing in this Agreement, express or implied, is intended to confer upon any Person other than Yahoo!, Softbank, OpCo, JMY, JT, HoldCo, IPCo, Alibaba, or their successors or permitted assigns, any rights or remedies under or by reason of this Agreement. JMY and JT shall be parties to this Agreement solely with respect to Article I, V, VI, VIII, IX, X and Section 2.09(c), 2.11, 2.14, 7.01, 7.02, 7.04, 7.05, 7.06, 7.07, 7.08, 7.10, 7.11, 7.15(i), 7.15(j), 7.15(k), 7.15(l), 7.15(m), 7.15(n) and 7.15(r).

 

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Section 10.06 Public Disclosure. Each of Yahoo!, Softbank, OpCo, JMY, JT, HoldCo, IPCo and Alibaba agree that no press release or similar public announcement, disclosure or communication shall be made concerning the terms of the Transactions, except if (a) solely to the extent requested or required to comply with the requirements of any applicable Laws, or (b) all Parties have consulted in advance with respect thereto, approved such public statement in advance and in writing, and each Party is provided a reasonable advance opportunity to review and provide comments with respect to any public disclosure. The Parties acknowledge and agree that notwithstanding anything in this Agreement to the contrary, Yahoo! will be required to file with the U.S. Securities and Exchange Commission a Form 8-K summarizing the material terms of this Agreement and the other Transaction Documents and including a copy of this Agreement as an exhibit to such Form 8-K. Yahoo! will provide a draft of such Form 8-K to the other Parties at a reasonable time in advance of the filing in order to allow the other Parties to review, and propose any reasonable changes to, the disclosure contained in such 8-K, and Yahoo! will consider in good faith any such proposed changes.

Section 10.07 Expenses. Except as otherwise expressly provided in this Agreement, if the Closing occurs, all costs and expenses of external legal counsel incurred by the Parties in connection with the negotiation and execution of the Transaction Documents shall be paid by Alibaba. If this Agreement is terminated before the Closing occurs, each Party shall bear the costs and expenses of its own external legal counsel. All other costs and expenses incurred by any Person in connection with this Agreement and the Transactions shall be borne by the Person incurring such expenses. Notwithstanding the foregoing, HoldCo and OpCo shall promptly pay (a) to the Collateral Agent (or any successor agent), all fees, expenses and other amounts payable pursuant to the Fee Letter, and (b) to Alibaba, any fees, expenses and other expenses required to be paid by HoldCo or OpCo to the Collateral Agent, any successor thereof or their legal counsel, to the extent previously paid by Alibaba.

Section 10.08 Governing Laws; Jurisdiction; Waiver of Jury Trial. THIS AGREEMENT IS MADE UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN.

Section 10.09 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 administered by, and 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.

 

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(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, without limitation, 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 Laws, 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 the Transaction Documents. The arbitration tribunal shall not consolidate such arbitrations unless it determines that (i) there are issues of fact or law common to the proceedings, so that a consolidated proceeding would be more efficient than separate proceedings, and (ii) 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 these Transaction Documents, 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 Laws.

 

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(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 Dollars (or, if a payment in Dollars is not permitted by Law and if mutually agreed upon by the Parties, in PRC currency), free from any deduction, offset or withholding for Taxes.

(h) Notwithstanding this Section 10.09 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.

Section 10.10 Counterparts. This Agreement may be executed in two or more counterparts (including 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 Parties, it being understood that all Parties need not sign the same counterpart.

Section 10.11 Rules of Construction. Each Party represents and acknowledges that, in the negotiation and drafting of this Agreement and the other instruments and documents required or contemplated hereby, it has been represented by and has relied upon the advice of counsel of its choice. Each Party hereby affirms that its counsel has had a substantial role in the drafting and negotiation of this Agreement and such other instruments and documents. Therefore, each Party agrees that no rule of construction to the effect that any ambiguities are to be resolved against the drafter shall be employed in the interpretation of this Agreement and such other instruments and documents and in the event an ambiguity or question of intent or interpretation arises, the Agreement shall be construed as if drafted jointly by the Parties.

Section 10.12 Representations and Warranties. The representations and warranties in this Agreement shall survive the Closing for a period of three (3) years after the Closing, provided that no Party shall have any Liability to any other Person for monetary damages in connection with any such representation or warranty (including breach or inaccuracy thereof) unless such breach or inaccuracy is a material breach or inaccuracy. None of the representations and warranties in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the three (3) year anniversary of the Effective Time except with respect to any claim initiated prior to the expiration of such three (3) year period.

 

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Section 10.13 Non-Severability.

(a) Each provision of the Transaction Documents shall be deemed a material and integral part hereof. Except as otherwise provided in this Section 10.13, in the event of a final determination of invalidity, illegality or unenforceability of any provision of any of the Transaction Documents, the Parties shall negotiate in good faith to amend this Agreement (and any of the other Transaction Documents, as applicable) or to enter into new agreements to replace such invalid, illegal or unenforceable provision(s) with valid, legal and enforceable provisions providing the Parties with benefits, rights and obligations that are equivalent in all material respects as provided by the Agreement (and any of the other Transaction Documents, as applicable) as if the invalid, illegal or unenforceable provision(s) had been valid, legal and enforceable. In the event the Parties are not able to reach agreement on such amendments or new agreements, then the ICC arbitrators (pursuant to the procedures set forth in Section 10.09 hereof) shall determine, as part of their arbitral award, such amendments or new agreements such to provide the Parties with benefits, rights and obligations that are equivalent in all material respects as provided by the Agreement (and any of the other Transaction Documents, as applicable) as if the stricken provision(s) had been valid, legal and enforceable.

(b) No Party shall, or shall permit any of its Related Parties or Representatives to, directly or indirectly assert that any provision of any Transaction Document is invalid, illegal or unenforceable. Without limiting the Parties’ remedies for breach of the immediately preceding sentence and notwithstanding anything to the contrary herein, if (i) HoldCo, OpCo, IPCo, JMY, JT, any HoldCo Shareholder or any Related Party or Representative of any of the foregoing asserts in any dispute, controversy or claim arising out of, relating to, or in connection with any Transaction Document, that any provision of any Transaction Document is invalid, illegal or unenforceable and (ii) the ICC or any other arbitral body of competent jurisdiction or any Governmental Authority of competent jurisdiction holds any of the following obligations to be invalid, illegal or unenforceable: (x) the obligations to make the Liquidity Event Payment, the Make-Whole Payment, the Increase Payment or the Impact Payment, (y) to repay the IPCo Promissory Note, or (z) to provide the services specified for the fees specified under the Commercial Agreement, then all of the Transaction Documents shall, unless such consequences are waived by the Independent Directors, be deemed null and void in all jurisdictions as if they had not occurred.

(c) In any event, the invalidity, illegality or unenforceability of any provision of any Transaction Document in any jurisdiction shall not affect the validity or enforceability of any Transaction Document, including that provision, in any other competent jurisdiction.

Section 10.14 English Language Only. This Agreement is in the English language only, which language will be controlling in all respects, and all versions hereof in any other language will be for accommodation only and will not be binding upon the parties hereto. All communications to be made or given pursuant to this Agreement will be in the English language.

 

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Section 10.15 Valuation Procedure for FMV. In order to determine the Fair Market Value of Assets or Securities other than publicly traded Securities or cash, the following procedure shall be used: the Fair Market Value of the Assets or Securities shall be determined by internationally recognized investment banking firms, one firm appointed by Alibaba (“Alibaba Bank”) and one firm appointed by HoldCo (“HoldCo Bank”, together with Alibaba Bank, the “Initial Banks”), and if a third is necessary as provided below, the Initial Banks shall appoint a third investment bank (“Third Bank”). Each Initial Bank’s determination shall be made and delivered to Alibaba and HoldCo within thirty (30) days following the date on which the second Initial Bank was appointed. If the determinations of the Fair Market Value of the Assets or Securities made by the Initial Banks are within ten percent (10%) of each other (i.e., the difference between the two determined Fair Market Value is equal to or less than ten percent (10%) of the higher determined Fair Market Value), then the average of the Alibaba Bank-determined Fair Market Value and the HoldCo Bank-determined Fair Market Value shall be used as the final Fair Market Value of the Assets or Securities. If the determinations of the Fair Market Value of the Assets or Securities made by the Initial Banks are not within ten percent (10%) of each other, then the determination of the Third Bank shall be delivered to Alibaba and HoldCo within thirty (30) days after the appointment of the Third Bank. The determination of the Fair Market Value of the Assets or Securities by such Third Bank, together with such determinations provided by the Initial Banks, will be used to determine the final Fair Market Value of the Assets or Securities as follows: (i) if the determination made by the Third Bank falls within the middle third of the range between the determinations made by the two Initial Banks (i.e., if the Third Bank determination is (1) greater than the sum of the lower determined Fair Market Values of the Initial Banks plus one-third (1/3) of the difference between the two determined Fair Market Values of the Initial Banks and (2) less than the sum of the lower determined Fair Market Value of the Initial Banks plus two-thirds (2/3) of the difference between the two determined Fair Market Values of the Initial Banks), then the final Fair Market Value of the Assets or Securities shall be the Fair Market Value determined by the Third Bank; and (ii) if the Fair Market Value of the Assets or Securities determined by the Third Bank falls outside the middle third of the range between the determinations of the Initial Banks, then the final Fair Market Value of the Assets or Securities shall be the Fair Market Value of the Assets or Securities determined by the Initial Bank that is closer to the Fair Market Value of the Assets or Securities determined by the Third Bank (the “Valuation Procedure”).

Section 10.16 Time of the Essence. With regard to all dates and time periods set forth or referred to in this Agreement, time hereby is made expressly of the essence.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the Parties have executed or caused this Agreement to be executed as of the date first written above.

 

Alibaba Group Holding Limited     Zhejiang Alibaba E-Commerce Co., Ltd.
By:  

/s/ Jack Ma Yun

    By:  

/s/ Jack Ma Yun

  Name:   Jack Ma Yun       Name:   Jack Ma Yun
  Title:   Chairman & Chief Executive Officer       Title:   Legal Representative
Yahoo! Inc.     Alipay.com Co., Ltd.
By:  

/s/ Timothy R. Morse

    By:  

/s/ Jack Ma Yun

  Name:   Timothy R. Morse       Name:   Jack Ma Yun
  Title:   Chief Financial Officer       Title:   Legal Representative
SOFTBANK CORP.     APN Ltd.
By:  

/s/ Masayoshi Son

    By:  

/s/ Jack Ma Yun

  Name:   Masayoshi Son       Name:   Jack Ma Yun
  Title:   Chairman & CEO       Title:   Director

/s/ Joseph Chung Tsai

   

/s/ Jack Ma Yun

Joseph Chung Tsai

(solely with respect to the Sections referred to in Section 10.05 of the Framework Agreement)

   

Jack Ma Yun

(solely with respect to the Sections referred to in Section 10.05 of the Framework Agreement)

 

[Signature Page to the Framework Agreement]


Exhibit A

FORM OF SECURED PROMISSORY NOTE

 

Principal Amount: $500,000,000    Date of Issuance: [                    ]
[City and State of Signing]   

This SECURED PROMISSORY NOTE (this “Note”), dated [], 2011, is made by APN Ltd., a company organized under the laws of the Cayman Islands (the “Borrower”), in favor of Alibaba Group Holding Limited, a company organized under the laws of the Cayman Islands (the “Lender” or “Alibaba”). The Borrower and the Lender are herein referred to individually as a “Party” and collectively as the “Parties.”

Pursuant to the Framework Agreement, dated as of July 29, 2011 (the “Framework Agreement”, which expression shall include the Framework Agreement as from time to time amended, varied, altered, restated, novated or replaced), by and among the Lender, SOFTBANK CORP., a Japanese corporation and shareholder of the Lender (“Softbank”), Yahoo! Inc., a Delaware corporation and shareholder of the Lender (“Yahoo!”), Zhejiang Alibaba E-Commerce Co., Ltd., a limited liability company organized under the laws of the People’s Republic of China (“HoldCo”), Alipay.com Co., Ltd., a limited liability company organized under the laws of the People’s Republic of China (“OpCo”), Jack Ma Yun (“JMY”), Joseph Chung Tsai (“JT”), the Joinder Parties party thereto and the Borrower, the Borrower has agreed to issue a note to the Lender upon the terms and subject to the conditions set forth herein, the payment of which shall serve as consideration for the transfer of certain intellectual property held by Lender to OpCo or certain Persons designated by OpCo pursuant to Section 2.10 of the Framework Agreement.

Reference is further made to (1) the Legal Mortgage of Alibaba Shares, dated the date hereof (the “Legal Mortgage of Alibaba Shares”, which expression shall include the Legal Mortgage of Alibaba Shares as from time to time amended, varied, altered, restated, novated or replaced), between the Borrower and [Alibaba’s security agent], as mortgagee (the “Mortgagee”), under which the Borrower creates and grants a security interest over fifty million (50,000,000) ordinary shares of the Lender held by the Borrower (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like) (the “IPCo Collateral”); (2) the Legal Mortgage of IPCo Shares, dated the date hereof (the “Legal Mortgage of IPCo Shares”, which expression shall include the Legal Mortgage of IPCo Shares as from time to time amended, varied, altered, restated, novated or replaced), among JMY, JT and the Mortgagee, under which each of JMY and JT creates and grants a security interest over one hundred percent (100%) of the issued and outstanding ordinary shares of the Borrower (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like); and (3) the Fixed and Floating Charge, dated the date hereof (the “IPCo Asset Charge”, which expression shall include the IPCo Asset Charge as from time to time amended, varied, altered, restated, novated or replaced), between the Borrower and the Mortgagee.

NOW THIS DEED WITNESSETH as follows:

In consideration of the mutual covenants and agreements herein contained and in the Framework Agreement, the Parties covenant and agree as follows:


SECTION 1. DEFINITIONS

Section 1.1 Defined Terms. As used in this Note (including the recitals hereof), the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

Action”: as defined in Section 6.4 hereof.

Borrower”: as defined in the Preamble hereof.

Claimant”: as defined in Section 6.12(b) hereof.

Change of Control”: means (i) any violation of Section 7.05(a)(ii)(2)(aa), 7.05(a)(ii)(bb), 7.05(a)(iii), 7.05(d) or 7.10 of the Framework Agreement, or (ii) any violation of the first paragraph of Section 7.05 of the Framework Agreement (related to the application of proceeds of Transfers) that is not cured within thirty (30) days after knowledge thereof by any Credit Party.

Credit Parties”: OpCo, Borrower, HoldCo, JMY and JT (each a “Credit Party”).

Default”: any of the events specified in Section 5, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

Event of Default”: any of the events specified in Section 5, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

Framework Agreement”: as defined in the Preamble hereto.

HoldCo”: as defined in the Preamble hereto.

ICC”: as defined in Section 6.12(a) hereof.

Interest Rate”: means two percent (2.00%) plus the two-year U.S. Treasury rate as published in The Wall Street Journal New York edition on the earlier of the Maturity Date or the date of a Liquidity Event, as applicable, or if such rate ceases to be available or is not published, the most closely comparable rate.

IPCo Asset Charge”: as defined in the Preamble hereto.

IPCo Collateral”: as defined in the Preamble hereto.

 

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Legal Mortgage of Alibaba Shares”: as defined in the Preamble hereto.

Legal Mortgage of IPCo Shares”: as defined in the Preamble hereto.

Lender”: as defined in the Preamble hereto.

Maturity Date”: the date which is seven (7) years following the Effective Time.

Mortgagee”: as defined in the Preamble hereto.

Note”: as defined in the Preamble hereto.

Note Documents”: this Note, the Legal Mortgage of Alibaba Shares, the Legal Mortgage of IPCo Shares, the IPCo Asset Charge, each Shortfall Security Document and all other security documents hereafter delivered to the Lender granting a Lien on any property of any Person to secure the obligations and liabilities of any Credit Party under any Note Document and any amendment, waiver, supplement or other modification to any of the foregoing.

OpCo”: as defined in the Preamble hereto.

Other Taxes”: as defined in Section 2.7(b) hereof.

Party”: as defined in the Preamble hereto.

Pre-Approved Prepayment Amount”: as defined in Section 2.5 hereof.

Principal”: as defined in Section 2.1 hereof.

Request”: as defined in Section 6.12(b) hereof.

Respondent”: as defined in Section 6.12(b) hereof.

Taxes”: as defined in Section 2.7(a) hereof.

Section 1.2 Other Definitional Provisions.

(a) Unless otherwise defined in Section 1.1, all capitalized terms in this Note shall have the defined meanings given to them in the Framework Agreement.

(b) The rules of interpretation set forth in Section 1.02 to the Framework Agreement are hereby incorporated by reference and shall apply mutatis mutandis to this Note.

 

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SECTION 2. AMOUNT AND TERMS OF OBLIGATIONS

Section 2.1 Repayment. For value received, and intending to be legally bound, the Borrower hereby promises to pay to the order of the Lender, in Dollars in immediately available funds, at such account of the Lender as the Lender may, from time to time, designate in writing to the Borrower, the principal sum of Five Hundred Million Dollars ($500,000,000) or such lesser amount as may then constitute the unpaid aggregate principal amount outstanding under this Note (the “Principal”) on the Maturity Date; provided, however, that, if a Liquidity Event occurs prior to the Maturity Date, the Borrower shall pay the Principal in accordance with Section 2.09(d) of the Framework Agreement.

Section 2.2 Interest. No interest shall accrue on the Principal, provided, however, that following the earlier of the Maturity Date or the date of a Liquidity Event, interest shall (a) accrue daily at an annual rate equal to the Interest Rate on the Principal, (b) compound monthly (provided that the monthly rate will be calculated so that the effective annual rate remains the Interest Rate), (c) be paid by the Borrower in arrears on the last Business Day of each calendar month, and (d) be computed on the basis of a three hundred sixty (360)-day year comprised of twelve (12) thirty (30)-day months.

Section 2.3 Security. The Borrower’s obligations are secured as set forth in the Legal Mortgage of Alibaba Shares, the Legal Mortgage of IPCo Shares, the IPCo Asset Charge, any Shortfall Security Document and other documents referred to therein.

Section 2.4 Application of Payments. All payments (including any payments made by or on behalf of the Borrower pursuant to Section 2.09(d) of the Framework Agreement) shall be applied in the following order of priority: (a) first, to the payment in full of any expenses, charges, costs and fees incurred in the collection of any sum due under this Note, including reasonable attorneys’ fees; (b) second, to the payment of interest accrued to the date of such payment, if any; and (c) finally, to the payment of the Principal.

Section 2.5 Optional Prepayments. The Borrower may, upon three (3) Business Days prior written notice to the Lender, at any time and from time to time prepay (a) up to Four Hundred Seventy-Five Million Dollars ($475,000,000) of the principal amounts outstanding under this Note, in whole or in part, without premium or penalty (the “Pre-Approved Prepayment Amount”) and (b) after prepayment of the Pre-Approved Prepayment Amount and subject to the advance written consent of the Lender, the remaining Principal, in whole or in part, without premium or penalty; provided, however, that following a Liquidity Event, such advance written consent of the Lender shall not be required to pay the remaining Principal. Any requests for Lender’s consent shall specify the date and amount of prepayment. If any such notice is given and the Borrower obtains the advance written consent of the Lender, the amount specified in such notice shall be due and payable on the date specified therein.

Section 2.6 [Reserved].

Section 2.7 Payments Free of Taxes.

(a) (i) Except as otherwise required by law, any and all payments by the Borrower to or for the account of the Lender under this Note or any other Note Documents shall be made free and clear of, and without deduction for or on account of, any present or future taxes, levies, imposts, duties, fees, assessments, charges, deductions or withholdings imposed by any Governmental Authority (and all liabilities with respect thereto) (“Taxes”).

 

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(ii) If any Taxes other than Excluded Taxes (as defined below) shall be required by any Laws to be deducted or withheld under this Note or any other Note Document, the Borrower shall increase the amount paid so that the Lender receives (and is entitled to retain), after deduction or withholding for or on account of such Taxes (including deductions or withholdings applicable to additional sums payable under this Section 2.7), together with applicable interest or penalties, and all costs and expenses, payable or incurred in connection therewith, the full amount of the payment that would have been received if not for the deduction or withholding. In addition, if the Borrower makes any payment in respect of which it is required by applicable Law to make any deduction or withholding, it shall pay the full amount deducted or withheld to the relevant taxation or other Governmental Authority within the time allowed for such payments under applicable Law and promptly thereafter shall furnish to the Lender an original or certified copy of a receipt evidencing payment thereof, together with such other information and documents as the Lender may reasonably request.

(iii) For purposes of this Agreement, “Excluded Taxes” shall mean, with respect to Lender (or any successor) (A) any taxes imposed on or measured by net income (or franchise taxes imposed on it in lieu of net income taxes), (1) which taxes are assessed or levied by a Governmental Authority of the jurisdiction under the Laws of which the Lender (or its successor, as the case may be) is organized or in which its principal executive offices may be located or (2) with respect to any payments received by the Lender under the Note Documents, which taxes are assessed or levied by a Governmental Authority of any jurisdiction as a result of the Lender (or its successor, as the case may be) engaging in a trade or business in (or being resident in) such jurisdiction for tax purposes (other than such tax arising solely from such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, any Note Document), (B) any taxes imposed on Borrower by the PRC to the extent that the issuance of or payment under this Note is treated as consideration for the sale by Lender or its subsidiaries of Transferred Equity Interests or Retained Equity Interests, and (C) any Tax imposed on any successor of the Lender by requirements of Law in effect at the time rights under this Note were assigned to such successor, except to the extent that the Lender was entitled, at the time of such assignment, to increased amounts or indemnity for such Tax pursuant to this Section 2.7.

(b) In addition, the Borrower agrees to pay any and all present or future stamp, court or documentary taxes and any other excise or property taxes or similar levies, together with any applicable interest or penalties, that arise from any payment made under this Note and the other Note Documents to which it is a party or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, this Note and the other Note Documents to which it is a party (hereinafter referred to as “Other Taxes”).

(c) If the Lender is required by Law to make any payment on account of Taxes (other than Excluded Taxes) or Other Taxes, or any liability in respect of any Tax (other than Excluded Taxes) or Other Tax is imposed, levied or assessed against the Lender, the Borrower shall indemnify and hold harmless the Lender for and against such payment or liability, together with any incremental or additional taxes, interest or penalties, and all costs and expenses, payable or incurred in connection therewith, including Taxes or Other Taxes imposed on amounts payable under this Section 2.7, whether or not such payment or liability was correctly or legally asserted. A certificate of the Lender as to the amount of any such payment shall, in the absence of manifest error, be conclusive and binding for all purposes.

 

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SECTION 3. [RESERVED]

SECTION 4. [RESERVED]

SECTION 5. EVENTS OF DEFAULT

Section 5.1 Events of Default. An “Event of Default” occurs if:

(a) the Borrower shall fail to pay any amount when due in accordance with the terms of this Note;

(b) HoldCo or Borrower shall fail to pay any amount when due in accordance with Section 2.09 of the Framework Agreement or any Impact Payment when due in accordance with Schedule 7.1 of the Commercial Agreement;

(c) (i) any Credit Party shall commence any case, proceeding or other action, as debtor, (A) under any existing or future Law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or a material portion of its assets, or any Credit Party shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Credit Party any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) any Credit Party shall generally not, or shall admit in writing its inability to, pay its debts as they become due;

(d) one or more judgments or decrees shall be entered against the Borrower involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $2,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within thirty (30) days from the entry thereof;

(e) one or more judgments or decrees shall be entered against HoldCo involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $5,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within thirty (30) days from the entry thereof;

(f) Borrower or HoldCo (i) fails to make any payment on Indebtedness of $5,000,000 or more when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such failure continues after the applicable grace or notice period, if any, specified in the document relating thereto on the date of such failure; or (ii) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Indebtedness, if the effect of such failure, event or condition is to cause such Indebtedness to be declared to be due and payable prior to its stated maturity (without regard to any subordination terms with respect thereto), and such Indebtedness is not satisfied, or such declaration is not rescinded, within one (1) Business Day following such declaration;

 

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(g) (i) this Note or any other Note Document, or any material rights of the Lender (or its security agent) hereunder or thereunder or under Section 7.15(l) of the Framework Agreement, shall cease, for any reason, to be in full force and effect, provided that, so long as an Event of Default under Section 5.1(c) has not occurred, the Borrower shall have the right to cure a deficiency under this clause (i) within five (5) Business Days of its occurrence, or (ii) any Credit Party or any Affiliate of any Credit Party shall assert that this Note or any other Note Document, or any material rights of the Lender (or its security agent) hereunder or thereunder or under Section 7.15(l) of the Framework Agreement, has ceased, for any reason, to be in full force and effect, or (iii) any security interest created by any of the Note Documents shall cease to be enforceable or cease to create a valid security interest in the Collateral purported to be covered thereby or such security interest shall for any reason cease to be a perfected and first priority security interest, provided that, so long as an Event of Default under Section 5.1(c) has not occurred, the Borrower shall have the right to cure a deficiency under this clause (iii) within five (5) Business Days of its occurrence;

(h) any Governmental Authority: (i) condemns, nationalizes, seizes, compulsorily acquires or otherwise expropriates all or substantially all of the Assets of the Borrower or any Credit Party (in the case of HoldCo, disregarding the Other Group), or of the business or operations of such Person (in the case of HoldCo, disregarding the Other Group) or of its registered capital, or takes any action that would reasonably be expected to result in the dissolution or disestablishment of such Person, or (ii) assumes custody or control of all or substantially all of the Assets of such Person (in the case of HoldCo, disregarding the Other Group) or of the business or operations of such Person (in the case of HoldCo, disregarding the Other Group), or of its registered capital;

(i) a Change of Control shall occur; or

(j) JMY and JT shall fail to comply with their obligations under Section 7.15(l) of the Framework Agreement.

Section 5.2 Remedial Provisions.

(a) If an Event of Default occurs and is continuing, then, and in any such event, (a) if such event is an Event of Default specified in Section 5.1(c), automatically all amounts owing under this Note shall immediately become due and payable, and (b) if such event is any other Event of Default, the Lender may declare all amounts owing under this Note to be immediately due and payable forthwith, whereupon the same shall immediately become due and payable. Except as expressly provided above in this Section 5.2, presentment, demand, protest and all other notices or requirements of any kind are hereby expressly waived by the Borrower. The Borrower shall notify the Lender in writing promptly of the occurrence of an Event of Default.

(b) Upon the occurrence of an Event of Default, the Lender may exercise any and all rights and remedies available to it under this Note and the other Note Documents and Law, including, without limitation, the right to collect from the Borrower all sums due under this Note.

(c) The Borrower shall pay all costs and expenses of collection incurred by or on behalf of the Lender as a result of an Event of Default, including, without limitation, reasonable attorneys’ fees.

 

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SECTION 6. MISCELLANEOUS

Section 6.1 Amendments and Waivers. This Note shall not be amended, supplemented, waived or modified except in a writing signed by the Lender and the Borrower. In the case of any waiver, the Borrower and the Lender shall be restored to their former position and rights hereunder, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.

Section 6.2 Notices. All notices, requests and demands to or upon the respective Parties to be effective shall be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three (3) Business Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received, addressed as follows, or to such other address as may be hereafter notified by the respective Parties:

To the Lender:

Alibaba Group Holding Limited

c/o Alibaba Group Services Limited

24th Floor, Jubilee

18 Fenwick Street

Wanchai

Hong Kong

Attention:    General Counsel
Facsimile No.:    +852 2215 5200

with a copy (not notice) to Yahoo! and Softbank as set below:

To Yahoo!:

Yahoo! Inc.

701 First Avenue

Sunnyvale, CA 94089

Attention:    General Counsel
Facsimile No:    (408) 349-3650

with a copy (not notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

525 University Avenue, Suite 1100

Palo Alto, CA 94301

Attention:   

Kenton J. King

Leif B. King

Facsimile No:    +1-650-470-4570

To Softbank:

SOFTBANK CORP.

1-9-1 Higashi Shinbashi, Minato-ku,

Tokyo 105-7303, Japan

Attention:    []
Facsimile No:    +81-3-6215-5001

 

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with a copy (not notice) to:

Morrison & Foerster LLP

Shin-Marunouchi Building 29F, 1-5-1 Marunouchi, Chiyoda-ku

Tokyo 100-6529, Japan

Attention:    Kenneth Siegel
Facsimile No:    +81-3-3214-6512

To the Borrower:

APN Ltd.

c/o Alibaba Group Services Limited

24th Floor, Jubilee

18 Fenwick Street

Wanchai

Hong Kong

Attention:    General Counsel
Facsimile No.:    +852 2215 5200

with a copy to:

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, New York 10019

Attention:    Josh Feltman, Esq.
Facsimile No:    (212) 403-2109

Section 6.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Lender, any right, remedy, power or privilege hereunder or under the other Note Documents or the Framework Agreement shall operate as a waiver of any right, remedy, power or privilege hereunder; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.

Section 6.4 Alibaba Board Approval. Lender and Borrower agree that from the date of this Note until the Final Payment Date, any and all actions, consents, determinations, decisions, directions, approvals, enforcement of rights, authorizations, registrations, declarations and filings (“Actions”) to be taken or made by the Lender under this Note shall only be taken or made in accordance with the procedures set forth in Section 7.11 of the Framework Agreement. Any purported Actions taken by the Lender other than as described in this Section 6.4 shall be deemed invalid, null and void and of no effect whatsoever.

Section 6.5 Payment of Expenses. The Borrower agrees (a) to pay or reimburse the Lender for all its out-of-pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under this Note, including the reasonable fees and disbursements of counsel to the Lender and (b) to pay, indemnify, and hold the Lender harmless from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes, if any, that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Note and the other Note Documents, including the reasonable fees and disbursements of counsel to the Lender. All amounts due under this Section 6.5 shall be payable not later than ten (10) days after written demand therefor. The agreements in this Section 6.5 shall survive repayment of all amounts payable hereunder.

 

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Section 6.6 Successors and Assigns. The provisions of this Note shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns permitted hereby. The Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the Lender’s written consent, and any attempted assignment or transfer by the Borrower other than as provided above shall be null and void. The Lender may not assign or otherwise transfer any of its rights or obligations hereunder without the Borrower’s written consent, provided that the Lender may without consent assign its rights and interests hereunder to any of its wholly-owned subsidiaries.

Section 6.7 Set-off. In addition to any rights and remedies of the Lender provided by Law, the Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by Law, upon any amount becoming due and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by the Lender to or for the credit or the account of the Borrower, as the case may be.

Section 6.8 Counterparts. This Note may be executed by the Parties on separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Note by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof (provided that the Borrower shall in any event supply its original signature of this Note to the Lender).

Section 6.9 Severability. Without prejudice and subject to Section 10.13 of the Framework Agreement, any provision of this Note that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 6.10 Integration. This Note, the other Note Documents and the Framework Agreement represent the entire agreement of the Borrower and the Lender with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Lender relative to the subject matter hereof not expressly set forth or referred to herein, in the other Note Documents or the Framework Agreement.

Section 6.11 GOVERNING LAW. THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS NOTE IS MADE UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE CAYMAN ISLANDS.

Section 6.12 Disputes.

(a) Any dispute, controversy or claim arising out of, relating to, or in connection with this Note, or the breach, termination or validity hereof, shall be finally settled exclusively by arbitration. The arbitration shall be administered by, and 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.

 

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(b) The arbitration shall be conducted by three arbitrators. The Party initiating arbitration (the “Claimant”) shall appoint an arbitrator in its request for arbitration (the “Request”). The other Party 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, without limitation, 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 Note. 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 Person. 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 the Transaction Documents. The arbitration tribunal shall not consolidate such arbitrations unless it determines that (i) there are issues of fact or law common to the proceedings, so that a consolidated proceeding would be more efficient than separate proceedings, and (ii) 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 Transaction Documents, the ruling of the tribunal constituted under this Note 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.

 

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(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 Dollars (or, if a payment in Dollars is not permitted by Law and if mutually agreed upon by the Parties, in PRC currency), free from any deduction, offset or withholding for Taxes.

(h) Notwithstanding this Section 6.12 or any other provision to the contrary in this Note, 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.

Section 6.13 Acknowledgements. The Borrower hereby acknowledges that it has been advised by counsel in the negotiation, execution and delivery of this Note.

Section 6.14 WAIVERS OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS NOTE AND FOR ANY COUNTERCLAIM THEREIN.

(Remainder of page left blank intentionally.)

 

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IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed and delivered as a Deed by its proper and duly authorized officer as of the day and year first above written.

 

EXECUTED AS A DEED by APN LTD.   )    
in the presence of:-   )    
    )    
    )    
    )     Director
    )    

 

  )    
Witness   )    

 

        Director/Secretary
ACKNOWLEDGED AND AGREED:      
ALIBABA GROUP HOLDING LIMITED, as Lender      
By:  

 

     
  Name:      
  Title:      


Exhibit B

Dated this [] day of [], 2011

BY:

IPCO

IN FAVOUR OF:

[]

 

 

FORM OF LEGAL MORTGAGE OF ALIBABA SHARES

 

 


TABLE OF CONTENTS

 

         Page  
1.  

Interpretation

     2   
2.  

Mortgagor Representations and Warranties

     4   
3.  

[Reserved]

     5   
4.  

Security

     5   
5.  

Dealings with Mortgaged Property

     7   
6.  

Preservation of Security

     7   
7.  

Enforcement of Security

     9   
8.  

Further Assurances

     11   
9.  

Indemnities

     11   
10.  

Power of Attorney

     12   
11.  

Expenses

     12   
12.  

Notices

     13   
13.  

Assignments

     14   
14.  

Miscellaneous

     14   
15.  

Law and Jurisdiction

     15   

 

-i-


THIS IPCO LEGAL MORTGAGE OF SHARES (this “IPCo Mortgage”) is made on the [] day of [], 2011.

BY:

APN Ltd., a company organized under the laws of the Cayman Islands and having its [registered/principal] office at [] (the “Mortgagor”);

IN FAVOUR OF:

a company incorporated under the laws of [] and having its [registered/principal] office at [] (the “Mortgagee”) acting as security agent for and on behalf of Alibaba (as defined below).

WHEREAS:

 

(A) Reference is made to the Secured Promissory Note dated [], 2011 (the “IPCo Promissory Note”, which expression shall include the IPCo Promissory Note as from time to time amended, varied, altered, restated, novated or replaced) made by the Mortgagor in favour of Alibaba Group Holding Limited, a company incorporated under the laws of the Cayman Islands (“Alibaba”), in the original principal amount of U.S.$500,000,000.

 

(B) Reference is further made to the Framework Agreement dated as of July 29, 2011 (the “Framework Agreement”, which expression shall include the agreement constituted by such Framework Agreement as from time to time amended, varied, altered, restated, novated or replaced) among Yahoo! Inc., a Delaware corporation (“Yahoo!”), SOFTBANK CORP, a Japanese corporation (“Softbank”), Alibaba, Zhejiang Alibaba E-Commerce Co., Ltd., a limited liability company organized under the laws of the People’s Republic of China (“HoldCo”), Alipay.com Co., Ltd., a limited liability company organized under the laws of the People’s Republic of China (“OpCo”), the Mortgagor, Jack Ma Yun (“JMY”), Joseph Chung Tsai (“JT”) and the Joinder Parties, as defined therein.

 

(C) Reference is further made to (1) the Legal Mortgage of IPCo Shares dated [], 2011 (the “Legal Mortgage of IPCo Shares”, which expression shall include the Legal Mortgage of IPCo Shares as from time to time amended, varied, altered, restated, novated or replaced) made by JMY and JT in favour of the Mortgagee and (2) the Fixed and Floating Charge dated the date hereof (the “IPCo Asset Charge”, which expression shall include the IPCo Asset Charge as from time to time amended, varied, altered, restated, novated or replaced) made by Mortgagor in favour of the Mortgagee.

 

(D) JMY and JT Transferred legal and beneficial ownership in an aggregate of 50,000,000 ordinary shares (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like) of Alibaba to Mortgagor pursuant to [the Instrument of Transfer dated [], 2011].

 

(E) As security for the Secured Obligations (as defined below), the Mortgagor has agreed to mortgage, inter alia, its interest in an aggregate of 50,000,000 ordinary shares (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like) of Alibaba legally and beneficially owned by the Mortgagor in Alibaba.


(F) The authorized share capital of Alibaba consists of [] ordinary shares, par value US$0.000025 per share, of which not fewer than 50,000,000 ordinary shares (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like) are legally and beneficially owned by the Mortgagor as set forth in Schedule 1 attached hereto. All outstanding ordinary shares of Alibaba mortgaged hereunder are duly authorized, validly issued, fully paid and non-assessable and registered in the name of the respective shareholder in the register of members of Alibaba.

 

(G) It is a condition precedent to the transactions contemplated by the Framework Agreement that the Mortgagor execute this IPCo Mortgage in favour of the Mortgagee and the same is executed by the Mortgagor in consideration of the transactions contemplated by the Framework Agreement and for other good and valuable consideration (the sufficiency of which the Mortgagor hereby acknowledges).

NOW THIS IPCO MORTGAGE WITNESSETH as follows:

 

1. INTERPRETATION

 

1.1 In this IPCo Mortgage, unless the context otherwise requires, the following words and expressions shall have the following meanings:

 

“Event of Default”    means (i) Event of Default as defined in the IPCo Promissory Note or (ii) any failure to satisfy any of the Secured Obligations as and when the same may become due, after giving effect to any applicable cure period.
“Fair Market Value”    means as of a certain date (a) with respect to publicly traded Securities, the trading price of such Securities on such date, as reported by Bloomberg L.P., (b) with respect to cash, the value of such cash in Dollars, as reported by Bloomberg L.P., or (c) with respect to any other Securities or other Assets, the fair market value determined by the Valuation Procedure.
“Mortgaged Property”    means 50,000,000 ordinary shares of Alibaba (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like) as described in Recital (F) (the “Mortgaged Shares”); all dividends or other distributions, interest and other moneys paid or payable after the date hereof in connection therewith and all interests in and all rights, benefits or advantages accruing at any time to or in respect of all or any of the Mortgaged Shares; any and all other property that may at any time be received or receivable by or otherwise distributed to the Mortgagor in respect of or in substitution for, or in exchange for, or on account of, any of the foregoing, including, without limitation, any shares or other securities resulting from the division, consolidation, change, conversion or reclassification of any of the Mortgaged Shares, or the reorganization, merger or consolidation of Alibaba with any other body corporate, or the occurrence of any event which results in the substitution or exchange or cancellation of the Mortgaged Shares; and on the accrual, offer, issue or receipt of any Mortgaged Property or other rights accruing or incidental to any present or future Mortgaged Shares that the Mortgagor may receive instead of the Mortgagee, delivery or payment to the Mortgagee of all such rights with respect to accruing property and other rights.

 

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“Mortgaged Shares”    has the meaning assigned thereto in the definition of Mortgaged Property.
“Parties”    means the parties to this IPCo Mortgage.
“Secured Obligations”    means all obligations and liabilities of the Borrower and each other Credit Party to pay any Liquidity Event Payment, any Impact Payment, any Increase Payment, any Make-Whole Payment, or any payment required to be made under the IPCo Promissory Note, the Legal Mortgage of IPCo Shares, the IPCo Asset Charge, any Top-Up Mortgage, any Shortfall Security Document or this IPCo Mortgage, in each case whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred or otherwise.
“Security Interest”    means any charge, mortgage, pledge, lien, right of set off, security interest or other encumbrance howsoever created or arising.
“Security Period”    means the period commencing on the date of execution of this IPCo Mortgage and terminating upon the Final Payment Date.
“Valuation Procedure”    means the following procedure: the Fair Market Value of the Assets or Securities shall be determined by internationally recognized investment banking firms, one firm appointed by Mortgagee (“Mortgagee Bank”) and one firm appointed by Mortgagor (“Mortgagor Bank”, together with Mortgagee Bank, the “Initial Banks”), and if a third is necessary as provided below, the Initial Banks shall appoint a third investment bank (“Third Bank”). Each Initial Bank’s determination shall be made and delivered to Mortgagee and Mortgagor within thirty (30) days following the date on which the second Initial Bank was appointed. If the determinations of the Fair Market Value of the Assets or Securities made by the Initial Banks are within ten percent (10%) of each other (i.e., the difference between the two determined Fair Market Value is equal to or less than ten percent (10%) of the higher determined Fair Market Value), then the average of the Mortgagee Bank-determined Fair Market Value and the Mortgagor Bank-determined Fair Market Value shall be used as the final Fair Market Value of the Assets or Securities. If the determinations of the Fair Market Value of the Assets or Securities made by the Initial Banks are not within ten percent (10%) of each other, then the determination of the Third Bank shall be delivered to Mortgagee and Mortgagor within thirty (30) days after the appointment of the Third Bank. The determination of the Fair Market Value of the Assets or Securities by such Third Bank, together with such determinations provided by the Initial Banks, will be used to determine the final Fair Market Value of the Assets or Securities as follows: (i) if the determination made by the Third Bank falls within the middle third of the range between the determinations made by the two Initial Banks (i.e., if the Third Bank determination is (1) greater than the sum of the lower determined Fair Market Values of the Initial Banks plus one-third (1/3) of the difference between the two determined Fair Market Values of the Initial Banks and (2) less than the sum of the lower determined Fair Market Value of the Initial Banks plus two-thirds (2/3) of the difference between the two determined Fair Market Values of the Initial Banks), then the final Fair Market Value of the Assets or Securities shall be the Fair Market Value determined by the Third Bank; and (ii) if the Fair Market Value of the Assets or Securities determined by the Third Bank falls outside the middle third of the range between the determinations of the Initial Banks, then the final Fair Market Value of the Assets or Securities shall be the Fair Market Value of the Assets or Securities determined by the Initial Bank that is closer to the Fair Market Value of the Assets or Securities determined by the Third Bank.

 

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1.2 In this IPCo Mortgage:

 

  1.2.1 Save as expressly defined in this IPCo Mortgage, capitalized terms defined in the Framework Agreement or the IPCo Promissory Note shall have the same meaning in this IPCo Mortgage.

 

  1.2.2 references to statutory provisions shall be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time and shall include references to any provisions of which they are re-enactments (whether with or without modification);

 

  1.2.3 references to sections, clauses and schedules are references to sections, clauses hereof and schedules hereto; references to sub-clauses or paragraphs are, unless otherwise stated, references to sub-clauses of the clauses or paragraphs of the schedule in which the reference appears;

 

  1.2.4 references to the singular shall include the plural and vice versa and references to the masculine shall include the feminine and/or neuter and vice versa;

 

  1.2.5 references to Persons shall include companies, partnerships, associations and bodies of Persons, whether incorporated or unincorporated; and

 

  1.2.6 references to any document are to be construed as references to such document as amended or supplemented from time to time.

 

2. MORTGAGOR REPRESENTATIONS AND WARRANTIES

The Mortgagor hereby represents and warrants to the Mortgagee that:

 

2.1 [Reserved];

 

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2.2 the Mortgagor is the absolute sole legal and beneficial owner of all of the Mortgaged Shares mortgaged by the Mortgagor hereunder free from any Security Interest (other than those created by this IPCo Mortgage and the other Transaction Documents);

 

2.3 the Mortgagor has the necessary capacity, power and authority (i) to be the legal and beneficial owner of the Mortgaged Property mortgaged by the Mortgagor hereunder, (ii) to execute and deliver this IPCo Mortgage and (iii) to comply with the provisions of, and perform all its obligations under, this IPCo Mortgage;

 

2.4 this IPCo Mortgage constitutes the Mortgagor’s legal, valid and binding obligations enforceable against the Mortgagor in accordance with its terms and is a first priority legal mortgage security interest over the Mortgaged Shares except as such enforcement may be limited by any relevant bankruptcy, insolvency, administration or similar laws affecting creditors’ rights generally or equitable principles, to the extent that such principles may apply in the absence of express contractual provisions;

 

2.5 the entry into and performance by the Mortgagor of this IPCo Mortgage does not violate (i) any Laws, (ii) any Contract to which the Mortgagor is a party or which is binding upon the Mortgagor or any of its Assets, or (iii) the memorandum of association or articles of association of the Mortgagor, except in the case of clause (i) if such violation would not impair the Security Interest intended to be created hereby;

 

2.6 all consents, licenses, approvals and authorizations required in connection with the entry into, performance, validity and enforceability of this IPCo Mortgage have been obtained and are in full force and effect, except those the failure to obtain which or have in full force and effect would not impair the Security Interest intended to be created hereby; and

 

2.7 the Mortgagor has taken all action required for execution, delivery, registration and performance of this IPCo Mortgage.

 

3. [RESERVED]

 

4. SECURITY

 

4.1 In consideration of the transactions contemplated by the Transaction Documents and as a continuing security for the payment and discharge of the Secured Obligations, the Mortgagor as absolute sole legal and beneficial owner hereby mortgages, assigns, transfers, grants and charges and agrees to mortgage, assign, transfer, grant and charge in favour of the Mortgagee by way of a first priority legal mortgage all benefits and rights, present and future, actual and contingent accruing in respect of the Mortgaged Property now owned or at any time hereafter acquired by the Mortgagor and all of the Mortgagor’s right, title and interest to and in the Mortgaged Property including (without limitation) all voting and other rights and/or powers and/or discretions attaching or pertaining to the Mortgaged Shares. The Parties hereby acknowledge that the voting rights attached or related to the Mortgaged Shares are subject to the proxy described in Section 5.4 below.

 

4.2 The Mortgagor hereby agrees to deliver, or cause to be delivered, to the Mortgagee, on or prior to the Effective Time, the following in form and substance satisfactory to the Mortgagee:

 

  4.2.1 duly executed share transfers in respect of the Mortgaged Shares in favour of the Mortgagee or its nominees substantially in the form set out in Schedule 2;

 

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  4.2.2 all share certificates representing the Mortgaged Shares;

 

  4.2.3 a copy of the letter to be issued to the registered office of Alibaba advising the registered office that the Mortgagee or its nominee shall, act as client of record of the registered office in relation to the Mortgaged Shares for the purpose of taking instructions from the Mortgagor and/or Alibaba, substantially in the form of Schedule 3 (Form of Notice to Registered Office);

 

  4.2.4 a certified copy of the Register of Members of Alibaba recording that the Mortgagee is the holder of the Mortgaged Shares and recording the transfer of the Mortgaged Shares by [JMY] and [JT] to the Mortgagor pursuant to [the Instruments of Transfer dated [], 2011], and by the Mortgagor to the Mortgagee pursuant to this IPCo Mortgage;

 

  4.2.5 a certified copy of the Register of Mortgages and Charges of the Mortgagor showing the entry therein of the prescribed details in respect of this IPCo Mortgage;

 

  4.2.6 certified copies of directors’ resolutions and shareholders’ resolutions of each of the Mortgagor and Alibaba approving the transfers referred to at 4.2.4 above; and

 

  4.2.7 a certified copy of the unanimous consent of all of the shareholders of the Mortgagor, approving this IPCo Mortgage.

 

4.3 [Reserved].

 

4.4 The Mortgagor shall, on the accrual, offer, issue or receipt of any Mortgaged Property or other rights accruing or incidental to any present or future Mortgaged Shares that the Mortgagor may receive instead of the Mortgagee, deliver or pay or procure the delivery or payment to the Mortgagee of all such rights in respect of accruing property and other rights, together with such documents listed in Section 4.2 in respect of such accruing property and other rights, as applicable.

 

4.5 The Mortgagor hereby covenants that during the Security Period it will remain the beneficial owner of the Mortgaged Property (subject only to the Security Interests hereby created) and that it will not:

 

  4.5.1 create or knowingly suffer the creation of any Security Interests (other than those created by this IPCo Mortgage) on or in respect of the whole of any part of the Mortgaged Property or any of its interest therein;

 

  4.5.2 Transfer any of its interest in the Mortgaged Property; or

 

  4.5.3 permit any Person other than the Mortgagee or Mortgagee’s nominee to be registered as, or become the holder of, the Mortgaged Property;

in any such case, without the prior consent in writing of the Mortgagee (acting in its sole discretion).

 

4.6 The Mortgagor shall remain liable to perform all the obligations assumed by it in relation to the Mortgaged Property and the Mortgagee shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Mortgagor to perform its obligations in respect thereof.

 

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4.7 Upon the satisfaction and discharge in full of the Secured Obligations (including Secured Obligations in respect of expense reimbursements and indemnification obligations then due and owing, but irrespective of any contingent expense reimbursement or indemnification obligation in respect of which no claim has been made) and following a written request therefor from the Mortgagor, the Mortgagee will release and reconvey the security constituted by this IPCo Mortgage, including all Mortgaged Property, to the Mortgagor, execute share transfer forms in respect of the Mortgaged Shares in favor of the Mortgagor (or its nominee or otherwise as the Mortgagor shall direct) and execute such further documents and take such other action as may be necessary or reasonably requested by Mortgagor to transfer the Mortgaged Property to the Mortgagor.

 

5. DEALINGS WITH MORTGAGED PROPERTY

 

5.1 The Mortgagor shall pay all calls, installments or other payments, and shall discharge all other obligations, which may become due in respect of any of the Mortgaged Property and in an Event of Default, the Mortgagee may if it thinks fit make such payments or discharge such obligations on behalf of the Mortgagor. Any sums so paid by the Mortgagee in respect thereof shall be repayable on demand and pending such repayment shall constitute part of the Secured Obligations.

 

5.2 The Mortgagee shall not have any duty to ensure that any dividends, interest or other moneys and Assets receivable in respect of the Mortgaged Property are duly and punctually paid, received or collected as and when the same become due and payable or to ensure that the correct amounts (if any) are paid or received on or in respect of the Mortgaged Property or, except to the extent that an agreement to that effect between Mortgagor and Mortgagee is then effective (and subject to applicable reasonably satisfactory payment arrangements being in place), to ensure the taking up of any (or any offer of any) stocks, shares, rights, moneys or other property paid, distributed, accruing or offered at any time by way of redemption bonus, rights, preference, or otherwise on or in respect of, any of the Mortgaged Property.

 

5.3 The Mortgagor hereby authorizes the Mortgagee to arrange at any time and from time to time (whether before or after the occurrence of an Event of Default) for the Mortgaged Property or any part thereof to be registered in the name of the Mortgagee’s nominee thereupon to be held, as so registered, subject to the terms of this IPCo Mortgage.

 

5.4 Until the occurrence of an Event of Default, the Mortgagee grants to the Mortgagor the power to exercise all voting and other rights attached or related to the Mortgaged Shares mortgaged by the Mortgagor hereunder or any of them for all purposes not inconsistent with the terms of the IPCo Promissory Note, the Framework Agreement and this IPCo Mortgage together with the right to receive and retain all cash dividends paid on or in respect of the Mortgaged Shares or any of them in excess of amounts necessary to pay the Secured Obligations when due, and the Mortgagee shall from time to time execute and deliver to the Mortgagor such proxies, mandates and other documents and take such other actions as the Mortgagor may reasonably require from time to time to enable it to exercise the said powers, rights and entitlements.

 

6. PRESERVATION OF SECURITY

 

6.1 It is hereby agreed and declared that:

 

  6.1.1 the security created by this IPCo Mortgage shall be held by the Mortgagee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;

 

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  6.1.2 the security so created shall be in addition to and shall not in any way be prejudiced or affected by any other present or future contractual or other right or remedy or any guarantee or other Security Interest held by or available to the Mortgagee providing collateral for the Secured Obligations;

 

  6.1.3 the Mortgagee shall not be bound to enforce any other security before enforcing the security created by this IPCo Mortgage;

 

  6.1.4 no delay or omission on the part of the Mortgagee in exercising any right, power or remedy under this IPCo Mortgage shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by Laws and may be exercised from time to time and as often as the Mortgagee may deem expedient; and

 

  6.1.5 any waiver by the Mortgagee of any terms of this IPCo Mortgage shall only be effective if given in writing and then only for the purpose and upon the terms for which it is given.

 

6.2 Any settlement or discharge under this IPCo Mortgage between the Mortgagee and the Mortgagor shall be subject to the condition subsequent that no security or payment to the Mortgagee by the Mortgagor or any other Person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Mortgagor on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred.

 

6.3 The rights of the Mortgagee under this IPCo Mortgage and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by Alibaba, the Mortgagor, the Mortgagee or any other Person:

 

  6.3.1 any time or waiver granted to or composition with the Mortgagor or any other Person under any other Transaction Document or otherwise;

 

  6.3.2 the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Mortgagor or any other Person under any other Transaction Document or otherwise;

 

  6.3.3 any legal limitation, disability, incapacity or other circumstances relating to the Mortgagor or any other Person under any other Transaction Document or otherwise;

 

  6.3.4 any amendment or supplement to any Transaction Document or any other document or security;

 

  6.3.5 the dissolution, liquidation, amalgamation, merger, consolidation, reconstruction or reorganization of any Person; or

 

  6.3.6 the unenforceability, invalidity or frustration of any obligations of the Mortgagor or any other Person under any Transaction Document or any other document or security in any jurisdiction.

 

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6.4 Until the Secured Obligations have been unconditionally satisfied and discharged in full, the Mortgagor shall not by virtue of any payment made hereunder or otherwise on account of the Secured Obligations or by virtue of any enforcement by the Mortgagee of its rights under, or the security constituted by, this IPCo Mortgage:

 

  6.4.1 exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Mortgagee;

 

  6.4.2 exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;

 

  6.4.3 exercise any right of set-off or counterclaim against any such co-surety;

 

  6.4.4 receive, claim or have the benefit of any payment, distribution, security or indemnity from any such co-surety; or

 

  6.4.5 unless so directed by the Mortgagee (when the Mortgagor will prove in accordance with such directions), claim as a creditor of any such co-surety in competition with the Mortgagee.

The Mortgagor shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to the Mortgagee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.

 

6.5 Until the occurrence of an Event of Default, the Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Mortgagee for as long as it may think fit, any moneys received, recovered or realized under this IPCo Mortgage without being under any obligation to apply the same or any part thereof in or towards the discharge of such Secured Obligations.

 

7. ENFORCEMENT OF SECURITY

 

7.1 Upon the occurrence of an Event of Default, the security hereby constituted shall become immediately enforceable and immediately thereafter the Mortgagee, without further notice to the Mortgagor:

 

  7.1.1 may solely and exclusively exercise all voting and/or other rights and/or powers and/or discretions attaching or pertaining to the Mortgaged Property or any part thereof for all purposes not inconsistent with the Transaction Documents and may exercise such voting and/or other rights and/or powers and/or discretions in such manner as the Mortgagee may think fit; and/or

 

  7.1.2 may receive and retain all dividends, interest or other moneys or Assets accruing on or in respect of the Mortgaged Property or any part thereof, such dividends, interest or other moneys or Assets to be held by the Mortgagee, until applied in the manner described in Section 7.5, as additional security mortgaged under and subject to the terms of this IPCo Mortgage and any such dividends, interest or other moneys or Assets received by the Mortgagor after such time shall be held in trust by the Mortgagor for the Mortgagee and paid or transferred to the Mortgagee on demand; and/or

 

9


  7.1.3 may (i) if the Fair Market Value of the Mortgaged Property is less than the amount of the Secured Obligations, deem the Mortgaged Property to have been transferred to the Mortgagee absolutely and the Mortgagor shall immediately pay the balance of the Secured Obligations as if it was the principal obligor or (ii) if the Fair Market Value of the Mortgaged Property is greater than the amount of the Secured Obligations, deem an amount of the Mortgaged Property having a Fair Market Value equal to the Secured Obligations to have been transferred to the Mortgagee absolutely with the remainder of the Mortgaged Property being released and transferred to the Mortgagor free of this IPCo Mortgage; and/or

 

  7.1.4 may sell or otherwise dispose of the Mortgaged Property or any part thereof by such method, at such place and upon such terms as the Mortgagee may determine, and apply the proceeds of such sale or disposition in satisfaction of all or a portion of the Secured Obligations, and if such proceeds are in excess of the amount of the Secured Obligations, the remainder shall be released and transferred to the Mortgagor free of this IPCo Mortgage; and/or

 

  7.1.5 may revoke any proxies, mandates and other documents executed and delivered pursuant to Section 5.4.

 

7.2 [Reserved]

 

7.3 The Mortgagee shall not be obliged to make any enquiry as to the nature or sufficiency of any payment received by it under this IPCo Mortgage or to make any claim or to take any action to collect any moneys assigned by this IPCo Mortgage or to enforce any rights or benefits assigned to the Mortgagee by this IPCo Mortgage or to which the Mortgagee may at any time be entitled hereunder.

 

7.4 Upon any sale of the Mortgaged Property or any part thereof by the Mortgagee the purchaser shall not be bound to see or enquire whether the Mortgagee’s power of sale has become exercisable in the manner provided in this IPCo Mortgage and the sale shall be deemed to be within the power of the Mortgagee, and the receipt of the Mortgagee of the purchase money shall effectively discharge the purchaser who shall not be concerned with the manner of application of the proceeds of sale or be in any way answerable therefor.

 

7.5 All moneys received by the Mortgagee pursuant to this IPCo Mortgage shall be held by it upon trust in the first place to pay or make good all such expenses, liabilities, losses, costs, duties, fees, mortgages or other moneys whatsoever as may have been paid or incurred by the Mortgagee in exercising any of the powers specified or otherwise referred to in this IPCo Mortgage and the balance shall be applied in the following manner:

 

  7.5.1 FIRSTLY: in or towards satisfaction of any amounts in respect of the balance of the Secured Obligations as are then due and payable, in such order or application as the Mortgagee shall think fit;

 

10


  7.5.2 SECONDLY: in retention of an amount equal to any part or parts of the Secured Obligations as are not then due and payable but which (in the reasonable opinion of the Mortgagee) will or may become due and payable in the future and, upon the same becoming due and payable, in or towards satisfaction thereof in accordance with the foregoing provisions of this Section 7.5 (provided, that, when assessing Secured Obligations that may become due and payable in the future, the Mortgagee shall exclude contingent de minimis liabilities of any Credit Party that are not then outstanding for expense reimbursements and indemnification obligations under any Note Documents); and

 

  7.5.3 THIRDLY: the surplus (if any) shall be paid to the Mortgagor or to whomsoever else may be entitled thereto.

 

7.6 Neither the Mortgagee nor its agents, managers, officers, employees, delegates and advisers shall be liable for any claim, demand, liability, loss, damage, cost or expense incurred or arising in connection with the exercise or purported exercise, or failure to exercise, of any rights, powers and discretions hereunder in the absence of gross negligence or dishonesty.

 

8. FURTHER ASSURANCES

The Mortgagor shall execute all and any such documents and do all such assurances, acts and things as the Mortgagee in its reasonable discretion may require for:

 

8.1 perfecting, protecting or ensuring the priority of the security hereby created (or intended to be created);

 

8.2 preserving or protecting any of the rights of the Mortgagee under this IPCo Mortgage;

 

8.3 ensuring that the security constituted by this IPCo Mortgage and the covenants and obligations of the Mortgagor under this IPCo Mortgage shall enure to the benefit of any permitted assignee of the Mortgagee;

 

8.4 facilitating the appropriation or realization of the Mortgaged Property or any part thereof; or

 

8.5 the exercise of any power, authority or discretion vested in the Mortgagee under this IPCo Mortgage,

in any such case, forthwith upon demand by the Mortgagee.

 

9. INDEMNITIES

 

9.1 The Mortgagor will indemnify and hold harmless the Mortgagee, Alibaba and each agent or attorney appointed under or pursuant to this IPCo Mortgage from and against any and all expenses, claims, liabilities, losses, taxes, costs, duties and fees suffered, incurred or made by the Mortgagee, Alibaba or such agent or attorney:

 

  9.1.1 in the exercise or purported exercise of any rights, powers or discretions vested in them pursuant to this IPCo Mortgage;

 

  9.1.2 in the preservation or enforcement of the Mortgagee’s rights under this IPCo Mortgage or the priority thereof; or

 

  9.1.3 in the release of any part of the Mortgaged Property from the security created by this IPCo Mortgage, and the Mortgagee or such agent or attorney may retain and pay all sums in respect of the same out of money received under the powers conferred by this IPCo Mortgage.

 

11


9.2 If, under any applicable Laws, and whether pursuant to a judgment being made or registered against the Mortgagor or the bankruptcy or liquidation of the Mortgagor or for any other reason any payment under or in connection with this IPCo Mortgage is made in a currency (the “Payment Currency”) other than the currency in which such payment is due under or in connection with this IPCo Mortgage (the “Contractual Currency”), then to the extent that the amount of such payment actually received by the Mortgagee when converted into the Contractual Currency at the rate of exchange, falls short of the amount due under or in connection with this IPCo Mortgage, the Mortgagor, as a separate and independent obligation, shall indemnify and hold harmless the Mortgagee against the amount of such shortfall. For the purposes of this Section 9.2, “rate of exchange” means the rate at which the Mortgagee is able on or about the date of such payment to purchase the Contractual Currency with the Payment Currency and shall take into account any premium and other costs of exchange with respect thereto.

 

10. POWER OF ATTORNEY

The Mortgagor, by way of first priority security and in order to more fully secure the performance of its obligations hereunder pursuant to the Powers of Attorney Law (1996 Revision), hereby irrevocably appoints the Mortgagee and the Persons deriving title under it jointly and also severally to be its attorney to execute and complete in favour of the Mortgagee or its nominees or of any purchaser any documents which the Mortgagee may from time to time require for perfecting its title to or for vesting any of the Assets and property hereby Mortgaged or assigned in the Mortgagee or its nominees or in any purchaser and to give effectual discharges for payments, to take and institute on non payment (if the Mortgagee in its sole discretion so decides) all steps and proceedings in the name of the Mortgagor or of the Mortgagee for the recovery of such moneys, property and Assets hereby mortgaged and to agree accounts and make allowances and give time or other indulgence to any surety or other Person liable and otherwise generally for it and in its name and on its behalf and as its act and deed or otherwise to execute, seal and deliver and otherwise perfect and do any such legal assignments and other assurances, mortgages, authorities and documents over the moneys, property and Assets hereby mortgaged, and all such deeds, instruments, acts and things (including, without limitation, those referred to in Section 8) which may be required for the full exercise of all or any of the powers conferred or which may be deemed proper on or in connection with and to give proper effect to the intent of this IPCo Mortgage and any of the purposes aforesaid; provided, that unless and until an Event of Default has occurred, the Mortgagee may not exercise any right or power pursuant to this appointment, other than the making of notice filings with respect to this IPCo Mortgage and ensuring that Section 4.4 is satisfied. The power hereby conferred shall be a general power of attorney and the Mortgagor hereby ratifies and confirms and agrees to ratify and confirm any instrument, act or thing which any such attorney may execute or do. In relation to the power referred to herein, the exercise by the Mortgagee of such power shall be conclusive evidence of its right to exercise the same.

 

11. EXPENSES

The Mortgagor shall pay promptly all stamp, documentary and other like duties and taxes to which this IPCo Mortgage may be subject or give rise and shall indemnify the Mortgagee on demand against any and all liabilities with respect to or resulting from any delay or omission on the part of the Mortgagor to pay any such duties or taxes.

 

12


12. NOTICES

Any notice required to be given hereunder shall be in writing in the English language and shall be served by sending the same by prepaid recorded post, facsimile or by delivering the same by hand to the address of the Party or Parties in question as set out below (or such other address as such Party or Parties shall notify the other Parties of in accordance with this Section 12). Any notice sent by post as provided in this Section 12 shall be deemed to have been served five Business Days after dispatch and any notice sent by facsimile as provided in this Section 12 shall be deemed to have been served at the time of dispatch and in proving the service of the same it will be sufficient to prove in the case of a letter that such letter was properly stamped, addressed and placed in the post; and in the case of a facsimile that such facsimile was duly dispatched to a current facsimile number of the addressee.

 

To Mortgagor:      
   APN Ltd.
   c/o Alibaba Group Services Limited
   24th Floor, Jubilee
   18 Fenwick Street
   Wanchai
   Hong Kong
   Attention: General Counsel
   Facsimile No:    +852 2215 5200
with a copy (not notice) to:      
   Wachtell, Lipton, Rosen & Katz
   51 West 52nd Street
   New York, NY 10019
   Attention: Josh Feltman
   Facsimile No:    +1-212-403-2109
To Mortgagee:      
   []   
   [Address]   
   [Address]   
   Attention:    []
   Facsimile No:    []
with a copy (not notice) to:      
To Yahoo!:      
   Yahoo! Inc.
   701 First Avenue
   Sunnyvale, CA 94089
   Attention:    General Counsel
   Facsimile No:    (408) 349-3650
with a copy (not notice) to:      
   Skadden, Arps, Slate, Meagher & Flom LLP
   525 University Avenue, Suite 1100
   Palo Alto, CA 94301
   Attention:    Kenton J. King
      Leif B. King
   Facsimile No:    +1-650-470-4570

 

13


with a copy (not notice) to:      
To Softbank:      
   SOFTBANK CORP.
   1-9-1 Higashi Shinbashi, Minato-ku,
   Tokyo 105-7303, Japan
   Attention:    []
   Facsimile No:    +81-3-6215-5001
with a copy (not notice) to:      
   Morrison & Foerster LLP
  

Shin-Marunouchi Building 29F, 1-5-1 Marunouchi, Chiyoda-ku

Tokyo 100-6529, Japan

   Attention:    Kenneth Siegel
   Facsimile No:    +81-3-3214-6512

 

13. ASSIGNMENTS

 

13.1 This IPCo Mortgage shall be binding upon the Mortgagor and shall inure to the benefit of the Mortgagee, in each case including each of their respective successors, nominees and (subject as hereinafter provided) assigns, and references in this IPCo Mortgage to any of them shall be construed accordingly.

 

13.2 The Mortgagor shall not assign or transfer all or any part of its rights and/or obligations under this IPCo Mortgage.

 

13.3 The Mortgagee may, without the consent of Mortgagor, assign or transfer all or any part of its rights or obligations under this IPCo Mortgage to any assignee or transferee that is acting as security agent for and on behalf of Alibaba. The Mortgagee shall notify the Mortgagor promptly following any such assignment or transfer.

 

14. MISCELLANEOUS

 

14.1 The Mortgagee, at any time and from time to time, may delegate by power of attorney or in any other manner to any Person or Persons all or any of the powers, authorities and discretions which are for the time being exercisable by the Mortgagee under this IPCo Mortgage in relation to the Mortgaged Property or any part thereof. Any such delegation may be made upon such terms and be subject to such regulations as the Mortgagee may think fit. The Mortgagee shall not be in any way liable or responsible to the Mortgagor for any loss or damage arising from any act, default, omission or misconduct on the part of any such delegate provided the Mortgagee has acted reasonably in selecting such delegate.

 

14.2 If any of the clauses, conditions, covenants or restrictions of this IPCo Mortgage or any deed or document emanating from it shall be found to be void but would be valid if some part thereof were deleted or modified, then such clause, condition, covenant or restriction shall apply with such deletion or modification as may be necessary to make it valid and effective.

 

14


14.3 This IPCo Mortgage (together with any documents referred to herein) constitutes the whole agreement between the Parties relating to its subject matter and no variations hereof shall be effective unless made in writing and signed by each of the Parties.

 

14.4 The headings in this IPCo Mortgage are inserted for convenience only and shall not affect the construction of this IPCo Mortgage.

 

14.5 This IPCo Mortgage may be executed in counterparts each of which when executed and delivered shall constitute an original but all such counterparts together shall constitute one and the same instrument.

 

15. LAW AND JURISDICTION

This IPCo Mortgage shall be governed by and construed in accordance with the laws of the Cayman Islands and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of the Cayman Islands, provided that nothing in this Section 15 shall affect the right of the Mortgagee to serve process in any manner permitted by Law or limit the right of the Mortgagee to take proceedings with respect to this IPCo Mortgage against the Mortgagor in any jurisdiction nor shall the taking of proceedings with respect to this IPCo Mortgage in any jurisdiction preclude the Mortgagee from taking proceedings with respect to this IPCo Mortgage in any other jurisdiction, whether concurrently or not.

 

15


IN WITNESS whereof the parties hereto have caused this IPCo Mortgage to be duly executed as a Deed the day and year first before written.

 

The Common Seal of    )   
the Mortgagor    )   
was hereunto affixed    )   
in the presence of:    )   
The Common Seal of    )   
the Mortgagee    )   
was hereunto affixed    )   
in the presence of:    )   

 

16


Schedule 1

MORTGAGED SHARES

 

Mortgagor

  

Shares of Alibaba to be Mortgaged

APN Ltd.    50,000,000 ordinary shares (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like)


Schedule 2

DULY EXECUTED SHARE TRANSFERS


Schedule 2

INSTRUMENT OF TRANSFER

 

FOR VALUE   []   (amount)
RECEIVED  

 

 

APN Ltd.

  (transferor)
hereby sells, assigns and transfers unto  

[], as security agent for and on behalf of Alibaba Group Holding Limited

  (transferee)
of  

[]

  (address)

50,000,000 ordinary shares

  (number of shares)
in the capital of  

Alibaba Group Holding Limited

  (name of company)

Dated this      day of             , 2011

 

 

   

 

(Witness)    

For and on behalf of

APN Ltd.

    (Transferor)

 

   

 

(Witness)     For and on behalf of
    [], as security agent for and on
    behalf of Alibaba Group Holding Limited
    (Transferee)


Schedule 3

FORM OF NOTICE TO REGISTERED AGENT


Schedule 3

FORM OF NOTICE TO REGISTERED OFFICE

 

[Registered Office name]   
[                            ], Grand Cayman, Cayman Islands   
   [DATE]

Dear Sirs,

 

Re: Alibaba Group Holding Limited (the Company)

 

1. We refer to the Company, for whom you provide registered office services and with respect to whom we are your client of record.

 

2. Please be advised that with effect from              2011, [    ] (the “Security Agent”) under a share mortgage entered into by APN Ltd., a company organized under the laws of the Cayman Islands and having its registered address at One Capital Place, 4th Floor, P.O. Box 847, George Town, Grand Cayman, Cayman Islands (the “Mortgagor”) in favour of the Security Agent, should be treated as joint client of record along with ourselves for the purposes of taking instructions in relation to the Company.

 

3. Accordingly, please treat the Security Agent as your joint client of record with effect from              2011. For avoidance of any doubt, you may take and act on instructions given by the Security Agent without reference to us and in the event of a conflict, instructions received from the Security Agent shall prevail.

 

4. For your records, the Security Agent’s contact details are as follows:

 

[                                         ]
Fax No.:    [                             ]
Attention:    [                             ]

 

5. Please note that we continue to bear all your reasonable charges in relation to the Company and advise accordingly that the Security Agent assumes no liability to you as registered agent of the Company.

 

Yours faithfully

 

Name:
for and on behalf of
Alibaba Group Holding Limited


Exhibit C

Dated this [] day of [], 2011

BY:

JACK MA YUN

AND

JOSEPH CHUNG TSAI

IN FAVOUR OF:

[]

 

 

FORM OF LEGAL MORTGAGE OF IPCO SHARES

 

 


TABLE OF CONTENTS

 

          Page  
1.   

Interpretation

     2   
2.   

Mortgagor Representations and Warranties

     5   
4.   

Security

     5   
5.   

Dealings with Mortgaged Property

     7   
6.   

Preservation of Security

     8   
7.   

Enforcement of Security

     10   
8.   

Further Assurances

     12   
9.   

Indemnities

     12   
10.   

Power of Attorney

     13   
11.   

Expenses

     13   
12.   

Notices

     13   
13.   

Assignments

     15   
14.   

Miscellaneous

     15   
15.   

Law and Jurisdiction

     16   

 

-i-


THIS LEGAL MORTGAGE OF IPCO SHARES (this “Legal Mortgage of IPCo Shares”) is made on the [] day of [], 2011.

BY:

Jack Ma Yun, an individual domiciled at [], and Joseph Chung Tsai, an individual domiciled at [] (each, a “Mortgagor” and collectively, the “Mortgagors”);

IN FAVOUR OF:

[], a company incorporated under the laws of [] and having its [registered/principal] office at [] (the “Mortgagee”) acting as security agent for and on behalf of Alibaba (as defined below).

WHEREAS:

 

(A) Reference is made to the Secured Promissory Note dated [], 2011 (the “IPCo Promissory Note”, which expression shall include the IPCo Promissory Note as from time to time amended, varied, altered, restated, novated or replaced) made by APN Ltd., a company incorporated under the laws of the Cayman Islands (“IPCo”), in favour of Alibaba Group Holding Limited, a company incorporated under the laws of the Cayman Islands (“Alibaba”), in the original principal amount of U.S. $500,000,000.

 

(B) Reference is further made to the Framework Agreement dated as of July 29, 2011 (the “Framework Agreement”, which expression shall include the agreement constituted by such Framework Agreement as from time to time amended, varied, altered, restated, novated or replaced) among Alibaba, Yahoo! Inc., a Delaware corporation (“Yahoo!”), SOFTBANK CORP., a Japanese corporation (“Softbank”), IPCo, Zhejiang Alibaba E-Commerce Co., Ltd., a limited liability company organized under the laws of the People’s Republic of China (“HoldCo”), Alipay.com Co., Ltd., a limited liability company organized under the laws of the People’s Republic of China (“OpCo”), the Mortgagors and the Joinder Parties as defined therein.

 

(C) Reference is further made to (1) the Legal Mortgage of Alibaba Shares dated [], 2011 (the “Legal Mortgage of Alibaba Shares”, which expression shall include the Legal Mortgage of Alibaba Shares as from time to time amended, varied, altered, restated, novated or replaced) made by IPCo in favour of the Mortgagee; and (2) the Fixed and Floating Charge dated the date hereof (the “IPCo Asset Charge”, which expression shall include the IPCo Asset Charge as from time to time amended, varied, altered, restated, novated or replaced) made by IPCo in favour of the Mortgagee.

 

(D) The Mortgagors are the only shareholders of IPCo.

 

(E) As security for the Secured Obligations (as defined below), the Mortgagors have agreed to mortgage, inter alia, their interest in all of the shares legally and beneficially owned by the Mortgagors in IPCo.

 

(F) The authorized share capital of IPCo all of which is issued and outstanding consists of [] ordinary shares, par value US$[] per share, all of which (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like) are legally and beneficially owned by the Mortgagors, as set forth in Schedule 1 attached hereto. All outstanding ordinary shares of IPCo are duly authorized, validly issued, fully paid and non-assessable and registered in the name of the respective Mortgagor in the register of members of IPCo.

 

(G) It is a condition precedent to the transactions contemplated by the Framework Agreement that the Mortgagors execute this Legal Mortgage of IPCo Shares in favour of the Mortgagee and the same is executed by the Mortgagors in consideration of the transactions contemplated by the Framework Agreement and for other good and valuable consideration (the sufficiency of which the Mortgagors hereby acknowledge).


NOW THIS LEGAL MORTGAGE OF IPCO SHARES WITNESSETH as follows:

 

1. INTERPRETATION

 

1.1 In this Legal Mortgage of IPCo Shares, unless the context otherwise requires, the following words and expressions shall have the following meanings:

 

“Event of Default”    means (i) Event of Default, as defined in the IPCo Promissory Note or (ii) any failure to satisfy any of the Secured Obligations as and when the same may become due, after giving effect to any applicable cure period.
“Fair Market Value”    means as of a certain date (a) with respect to publicly traded Securities, the trading price of such Securities on such date, as reported by Bloomberg L.P., (b) with respect to cash, the value of such cash in Dollars, as reported by Bloomberg L.P., or (c) with respect to any other Securities or other Assets, the fair market value determined by the Valuation Procedure.
“Mortgaged Property”    means all of the issued shares of IPCo (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like) as described in Recital (F) and all other shares, warrants or other securities of any kind in IPCo from time to time legally or beneficially owned by either Mortgagor or in which either Mortgagor has any interest during the Security Period (together, the “Mortgaged Shares”); all dividends or other distributions, interest and other moneys paid or payable after the date hereof in connection therewith and all interests in and all rights, benefits or advantages accruing at any time to or in respect of all or any of the Mortgaged Shares; any and all other property that may at any time be received or receivable by or otherwise distributed to either Mortgagor in respect of or in substitution for, or in exchange for, or on account of, any of the foregoing, including, without limitation, any shares or other securities resulting from the division, consolidation, change, conversion or reclassification of any of the Mortgaged Shares, or the reorganization, merger or consolidation of IPCo with any other body corporate, or the occurrence of any event which results in the substitution or exchange or cancellation of the Mortgaged Shares; all new stocks, shares, loan capital, securities, bonds and investments (whether or not marketable) in IPCo issued to or received by the Mortgagors; and on the accrual, offer, issue or receipt of any Mortgaged Property or other rights accruing or incidental to any present or future Mortgaged Shares that either Mortgagor may receive instead of the Mortgagee, delivery or payment to the Mortgagee of all such rights with respect to accruing property and other rights.

 

2


“Mortgaged Shares”    has the meaning assigned thereto in the definition of Mortgaged Property.
“Parties”    means the parties to this Legal Mortgage of IPCo Shares.
“Secured Obligations”    means all obligations and liabilities of the Borrower and each other Credit Party to pay any Liquidity Event Payment, any Impact Payment, any Increase Payment, any Make-Whole Payment, or any payment required to be made under the IPCo Promissory Note, the Legal Mortgage of Alibaba Shares, the IPCo Asset Charge, any Top-Up Mortgage, any Shortfall Security Document or this Legal Mortgage of IPCo Shares, in each case whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred or otherwise.
“Security Interest”    means any charge, mortgage, pledge, lien, right of set off, security interest or other encumbrance howsoever created or arising.
“Security Period”    means the period commencing on the date of execution of this Legal Mortgage of IPCo Shares and terminating upon the Final Payment Date.
“Valuation Procedure”    means the following procedure: the Fair Market Value of the Assets or Securities shall be determined by internationally recognized investment banking firms, one firm appointed by Mortgagee (“Mortgagee Bank”) and one firm appointed by the Mortgagors (“Mortgagor Bank”, together with Mortgagee Bank, the “Initial Banks”), and if a third is necessary as provided below, the Initial Banks shall appoint a third investment bank (“Third Bank”). Each Initial Bank’s determination shall be made and delivered to Mortgagee and the Mortgagors within thirty (30) days following the date on which the second Initial Bank was appointed. If the determinations of the Fair Market Value of the Assets or Securities made by the Initial Banks are within ten percent (10%) of each other (i.e., the difference between the two determined Fair Market Value is equal to or less than ten percent (10%) of the higher determined Fair Market Value), then the average of the Mortgagee Bank-determined Fair Market Value and the Mortgagor Bank-determined Fair Market Value shall be used as the final Fair Market Value of the Assets or Securities. If the determinations of the Fair Market Value of the Assets or Securities made by the Initial Banks are not within ten percent (10%) of each other, then the determination of the Third Bank shall be delivered to Mortgagee and the Mortgagors within thirty (30) days after the appointment of the Third Bank. The determination of the Fair Market Value of the Assets or Securities by such Third Bank, together with such determinations provided by the Initial Banks, will be used to determine the final Fair Market Value of the Assets or Securities as follows: (i) if the determination made by the Third Bank falls within the middle third of the range between the determinations made by the two Initial Banks (i.e., if the Third Bank determination is (1) greater than the sum of the lower determined Fair Market Values of the Initial Banks plus one-third (1/3) of the difference between the two determined Fair Market Values of the Initial Banks and (2) less than the sum of the lower determined Fair Market Value of the Initial Banks plus two-thirds (2/3) of the difference between the two determined Fair Market Values of the Initial Banks), then the final Fair Market Value of the Assets or Securities shall be the Fair Market Value determined by the Third Bank; and (ii) if the Fair Market Value of the Assets or Securities determined by the Third Bank falls outside the middle third of the range between the determinations of the Initial Banks, then the final Fair Market Value of the Assets or Securities shall be the Fair Market Value of the Assets or Securities determined by the Initial Bank that is closer to the Fair Market Value of the Assets or Securities determined by the Third Bank.

 

3


1.2 In this Legal Mortgage of IPCo Shares:

 

  1.2.1 Save as expressly defined in this Legal Mortgage of IPCo Shares, capitalized terms defined in the Framework Agreement or the IPCo Promissory Note shall have the same meaning in this Legal Mortgage of IPCo Shares;

 

  1.2.2 references to statutory provisions shall be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time and shall include references to any provisions of which they are re-enactments (whether with or without modification);

 

  1.2.3 references to sections, clauses and schedules are references to sections, clauses hereof and schedules hereto; references to sub-clauses or paragraphs are, unless otherwise stated, references to sub-clauses of the clauses or paragraphs of the schedule in which the reference appears;

 

  1.2.4 references to the singular shall include the plural and vice versa and references to the masculine shall include the feminine and/or neuter and vice versa;

 

  1.2.5 references to Persons shall include companies, partnerships, associations and bodies of Persons, whether incorporated or unincorporated; and

 

  1.2.6 references to any document are to be construed as references to such document as amended or supplemented from time to time.

 

4


2. MORTGAGOR REPRESENTATIONS AND WARRANTIES

The Mortgagors hereby represent and warrants to the Mortgagee that:

 

2.1 the authorized share capital of IPCo consists only of the shares described in Recital (F) hereof and all such shares have been duly and validly issued, are fully paid and are legally and beneficially owned and registered as described in the said recital;

 

2.2 each Mortgagor is the absolute sole legal and beneficial owner of all of the Mortgaged Shares mortgaged by such Mortgagor hereunder free from any Security Interest (other than those created by this Legal Mortgage of IPCo Shares and the other Transaction Documents);

 

2.3 each Mortgagor has the necessary capacity, power and authority (i) to be the legal and beneficial owner of the Mortgaged Property mortgaged by such Mortgagor hereunder, (ii) to execute and deliver this Legal Mortgage of IPCo Shares and (iii) to comply with the provisions of, and perform all its obligations under, this Legal Mortgage of IPCo Shares;

 

2.4 this Legal Mortgage of IPCo Shares constitutes each Mortgagor’s legal, valid and binding obligations enforceable against such Mortgagor in accordance with its terms and is a first priority legal mortgage security interest over the Mortgaged Shares except as such enforcement may be limited by any relevant bankruptcy, insolvency, administration or similar laws affecting creditors’ rights generally or equitable principles, to the extent that such principles may apply in the absence of express contractual provisions;

 

2.5 the entry into and performance by each Mortgagor of this Legal Mortgage of IPCo Shares does not violate (i) any Laws or (ii) any Contract to which such Mortgagor is a party or which is binding upon such Mortgagor or any of its Assets, except in each case to the extent such violation would not impair the Security Interest intended to be created hereby;

 

2.6 all consents, licenses, approvals and authorizations required in connection with the entry into, performance, validity and enforceability of this Legal Mortgage of IPCo Shares have been obtained and are in full force and effect, except those the failure to obtain which or have in full force and effect would not impair the Security Interest intended to be created hereby; and

 

2.7 each Mortgagor has taken all action required for execution, delivery, registration and performance of this Legal Mortgage of IPCo Shares.

 

3. [RESERVED]

 

4. SECURITY

 

4.1 In consideration of the transactions contemplated by the Transaction Documents and as a continuing security for the payment and discharge of the Secured Obligations, each Mortgagor as absolute sole legal and beneficial owner hereby mortgages, assigns, transfers, grants and charges and agrees to mortgage, assign, transfer, grant and charge in favour of the Mortgagee by way of a first priority legal mortgage all benefits and rights present and future, actual and contingent accruing in respect of the Mortgaged Property now owned or at any time hereafter acquired by such Mortgagor and all of such Mortgagor’s right, title and interest to and in the Mortgaged Property including (without limitation) all voting and other rights and/or powers and/or discretions attaching or pertaining to the Mortgaged Shares. The Parties hereby acknowledge that the voting rights attached or related to the Mortgaged Shares are subject to the proxy described in Section 5.4 below.

 

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4.2 The Mortgagors hereby agree to deliver, or cause to be delivered, to the Mortgagee, on or prior to the Effective Time, the following in form and substance satisfactory to the Mortgagee:

 

  4.2.1 duly executed share transfers in respect of the Mortgaged Shares in favour of the Mortgagee or its nominees substantially in the form set out in Schedule 2;

 

  4.2.2 all share certificates representing the Mortgaged Shares;

 

  4.2.3 executed but undated letters of resignation and release together with letters of authority to date the same from each of the directors (and alternate directors and officers, if any) of IPCo (other than directors nominated by Softbank or Yahoo!), substantially in the form set out in Schedule 3;

 

  4.2.4 a copy of the letter to be issued to the registered office of IPCo advising the registered office that the Mortgagee or its nominee shall, act as client of record of the registered office in relation to the Mortgaged Shares for the purpose of taking instructions from the applicable Mortgagor and/or IPCo, substantially in the form of Schedule 4 (the “Form of Notice to Registered Office”);

 

  4.2.5 a certified copy of the Register of Members of IPCo recording that the Mortgagee is the holder of the Mortgaged Shares;

 

  4.2.6 certified copies of directors’ resolutions and shareholders’ resolutions of IPCo approving the transfers referred to at 4.2.1 above; and

 

  4.2.7 executed but undated resolutions of the directors of IPCo to approve the resignations of the directors and officers referred to at 4.2.3 above and to approve the appointment of the Mortgagee’s nominees as new directors and officers substantially in the form of Schedule 5 (the “Form of Written Resolution of Directors”).

 

4.3 [RESERVED].

 

4.4 The Mortgagors shall, on the accrual, offer, issue or receipt of any Mortgaged Property or other rights accruing or incidental to any present or future Mortgaged Shares that either Mortgagor may receive instead of the Mortgagee, deliver or pay or procure the delivery or payment to the Mortgagee of all such rights in respect of accruing property and other rights, together with such documents listed in Section 4.2 in respect of such accruing property and other rights, as applicable.

 

4.5 The Mortgagors will procure that there shall be no increase or reduction in the authorized or issued share capital of IPCo without the prior consent in writing of the Mortgagee, and, in the event of any increase in IPCo’s issued share capital with the Mortgagee’s consent will procure the transfer of all such additional issued shares to the Mortgagee, which transfer will be recorded in IPCo’s Register of Members, and the delivery to the Mortgagee of the share certificates representing such additional issued shares.

 

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4.6 Each Mortgagor hereby covenants that during the Security Period it will remain the beneficial owner of the Mortgaged Property (subject only to the Security Interests hereby created) and that it will not:

 

  4.6.1 create or knowingly suffer the creation of any Security Interests (other than those created by this Legal Mortgage of IPCo Shares) on or in respect of the whole of any part of the Mortgaged Property or any of its interests therein;

 

  4.6.2 Transfer any of its interests in the Mortgaged Property; or

 

  4.6.3 permit any Person other than the Mortgagee or Mortgagee’s nominee to be registered as, or become the holder of, the Mortgaged Property;

in any such case, without the prior consent in writing of the Mortgagee (acting in its sole discretion).

 

4.7 Each Mortgagor shall remain liable to perform all the obligations assumed by it in relation to the Mortgaged Property and the Mortgagee shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by such Mortgagor or the other Mortgagor to perform its obligations in respect thereof.

 

4.8 Upon the satisfaction and discharge in full of the Secured Obligations (including Secured Obligations in respect of expense reimbursements and indemnification obligations then due and owing, but irrespective of any contingent expense reimbursement or indemnification obligation in respect of which no claim has been made) and following a written request therefor from the Mortgagors, the Mortgagee will release and reconvey the security constituted by this Legal Mortgage of IPCo Shares, including all Mortgaged Property, to the Mortgagors, execute share transfer forms in respect of the Mortgaged Shares in favor of the Mortgagors (or their nominee or otherwise as the Mortgagors shall direct) and execute such further documents and take such other action as may be necessary or reasonably requested by the Mortgagors to transfer the Mortgaged Property to the Mortgagors.

 

5. DEALINGS WITH MORTGAGED PROPERTY

 

5.1 The Mortgagors shall pay all calls, installments or other payments, and shall discharge all other obligations, which may become due in respect of any of the Mortgaged Property, and in an Event of Default, the Mortgagee may if it thinks fit make such payments or discharge such obligations on behalf of the Mortgagors. Any sums so paid by the Mortgagee in respect thereof shall be repayable on demand and pending such repayment shall constitute part of the Secured Obligations.

 

5.2 The Mortgagee shall not have any duty to ensure that any dividends, interest or other moneys and Assets receivable in respect of the Mortgaged Property are duly and punctually paid, received or collected as and when the same become due and payable or to ensure that the correct amounts (if any) are paid or received on or in respect of the Mortgaged Property or, except to the extent that an agreement to that effect between Mortgagors and Mortgagee is then effective (and subject to applicable reasonably satisfactory payment arrangements being in place), to ensure the taking up of any (or any offer of any) stocks, shares, rights, moneys or other property paid, distributed, accruing or offered at any time by way of redemption bonus, rights, preference, or otherwise on or in respect of, any of the Mortgaged Property.

 

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5.3 Each Mortgagor hereby authorizes the Mortgagee to arrange at any time and from time to time (whether before or after the occurrence of an Event of Default) for the Mortgaged Property or any part thereof to be registered in the name of the Mortgagee’s nominee thereupon to be held, as so registered, subject to the terms of this Legal Mortgage of IPCo Shares.

 

5.4 Until the occurrence of an Event of Default, the Mortgagee grants to each Mortgagor the power to exercise all voting and other rights attached or related to the Mortgaged Shares mortgaged by such Mortgagor hereunder or any of them for all purposes not inconsistent with the terms of the IPCo Promissory Note, the Framework Agreement and this Legal Mortgage of IPCo Shares, together with the right to receive and retain all cash dividends paid on or in respect of the Mortgaged Shares or any of them in excess of amounts necessary to pay the Secured Obligations when due, and the Mortgagee shall from time to time execute and deliver to such Mortgagor such proxies, mandates and other documents and take such other actions as such Mortgagor may reasonably require from time to time to enable it to exercise the said powers, rights and entitlements; provided, that the Mortgagee shall retain all, and the Mortgagors shall have no, power to exercise all voting and other rights attached to or related to the Mortgaged Shares with respect to the appointment or removal of directors, any modification of the memorandum of association and articles of association of IPCo and the approval of any alteration of the share capital of IPCo, including any issuance of Securities of IPCo or any merger or consolidation of IPCo with any other Person.

 

6. PRESERVATION OF SECURITY

 

6.1 It is hereby agreed and declared that:

 

  6.1.1 the security created by this Legal Mortgage of IPCo Shares shall be held by the Mortgagee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;

 

  6.1.2 the security so created shall be in addition to and shall not in any way be prejudiced or affected by any other present or future contractual or other right or remedy or any guarantee or other Security Interest held by or available to the Mortgagee providing collateral for the Secured Obligations;

 

  6.1.3 the Mortgagee shall not be bound to enforce any other security before enforcing the security created by this Legal Mortgage of IPCo Shares;

 

  6.1.4 no delay or omission on the part of the Mortgagee in exercising any right, power or remedy under this Legal Mortgage of IPCo Shares shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies herein provided are cumulative and not exclusive of any rights, powers and remedies provided by Laws and may be exercised from time to time and as often as the Mortgagee may deem expedient; and

 

  6.1.5 any waiver by the Mortgagee of any terms of this Legal Mortgage of IPCo Shares shall only be effective if given in writing and then only for the purpose and upon the terms for which it is given.

 

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6.2 Any settlement or discharge under this Legal Mortgage of IPCo Shares among the Mortgagee and the Mortgagors shall be subject to the condition subsequent that no security or payment to the Mortgagee by IPCo, HoldCo, either Mortgagor or any other Person being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Mortgagee shall be entitled to recover from the Mortgagors on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred.

 

6.3 The rights of the Mortgagee under this Legal Mortgage of IPCo Shares and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by IPCo, either Mortgagor, the Mortgagee or any other Person:

 

  6.3.1 any time or waiver granted to or composition with either Mortgagor or any other Person under any other Transaction Document or otherwise;

 

  6.3.2 the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against either Mortgagor or any other Person under any other Transaction Document or otherwise;

 

  6.3.3 any legal limitation, disability, incapacity or other circumstances relating to either Mortgagor or any other Person under any other Transaction Document or otherwise;

 

  6.3.4 any amendment or supplement to any Transaction Document or any other document or security;

 

  6.3.5 the dissolution, liquidation, amalgamation, merger, consolidation, reconstruction or reorganization of any Person; or

 

  6.3.6 the unenforceability, invalidity or frustration of any obligations of either Mortgagor or any other Person under any Transaction Document or any other document or security in any jurisdiction.

 

6.4 Until the Secured Obligations have been unconditionally satisfied and discharged in full, neither Mortgagor shall by virtue of any payment made hereunder or otherwise on account of the Secured Obligations or by virtue of any enforcement by the Mortgagee of its rights under, or the security constituted by, this Legal Mortgage of IPCo Shares:

 

  6.4.1 exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by the Mortgagee;

 

  6.4.2 exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;

 

  6.4.3 exercise any right of set-off or counterclaim against any such co-surety;

 

  6.4.4 receive, claim or have the benefit of any payment, distribution, security or indemnity from any such co-surety; or

 

  6.4.5 unless so directed by the Mortgagee (when the applicable Mortgagor will prove in accordance with such directions), claim as a creditor of any such co-surety in competition with the Mortgagee.

 

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Each Mortgagor shall hold in trust for the Mortgagee and forthwith pay or transfer (as appropriate) to the Mortgagee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.

 

6.5 Until the occurrence of an Event of Default, the Mortgagee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Mortgagee for as long as it may think fit, any moneys received, recovered or realized under this Legal Mortgage of IPCo Shares without being under any obligation to apply the same or any part thereof in or towards the discharge of such Secured Obligations.

 

7. ENFORCEMENT OF SECURITY

 

7.1 Upon the occurrence of an Event of Default, the security hereby constituted shall become immediately enforceable and immediately thereafter the Mortgagee, without further notice to the Mortgagors:

 

  7.1.1 may solely and exclusively exercise all voting and/or other rights and/or powers and/or discretions attaching or pertaining to the Mortgaged Property or any part thereof for all purposes not inconsistent with the Transaction Documents and may exercise such voting and/or other rights and/or powers and/or discretions in such manner as the Mortgagee may think fit; and/or

 

  7.1.2 may receive and retain all dividends, interest or other moneys or Assets accruing on or in respect of the Mortgaged Property or any part thereof, such dividends, interest or other moneys or Assets to be held by the Mortgagee, until applied in the manner described in Section 7.5, as additional security mortgaged under and subject to the terms of this Legal Mortgage of IPCo Shares and any such dividends, interest or other moneys or Assets received by either Mortgagor after such time shall be held in trust by such Mortgagor for the Mortgagee and paid or transferred to the Mortgagee on demand; and/or

 

  7.1.3 may (i) if the Fair Market Value of the Mortgaged Property is less than the amount of the Secured Obligations, deem the Mortgaged Property to have been transferred to the Mortgagee absolutely and the Mortgagors shall immediately pay the balance of the Secured Obligations as if they were the principal obligors or (ii) if the Fair Market Value of the Mortgaged Property is greater than the amount of the Secured Obligations, deem an amount of the Mortgaged Property having a Fair Market Value equal to the Secured Obligations to have been transferred to the Mortgagee absolutely with the remainder of the Mortgaged Property being released and transferred to the Mortgagors free of this Legal Mortgage of IPCo Shares; and/or

 

  7.1.4 may sell or otherwise dispose of the Mortgaged Property or any part thereof by such method, at such place and upon such terms as the Mortgagee may determine, and apply the proceeds of such sale or disposition in satisfaction of all or a portion of the Secured Obligations, and if such proceeds are in excess of the amount of the Secured Obligations, the remainder shall be released and transferred to the Mortgagors (for ratable allocation between them in accordance with the Mortgaged Shares pledged by them) free of this IPCo Mortgage; and/or

 

  7.1.5 may revoke any proxies, mandates and other documents executed and delivered pursuant to Section 5.4.

 

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7.2 Other than following an Event of Default, Mortgagee shall not use or exercise the letters referred to in Section 4.2.3 or the resolutions referred to in Section 4.2.7.

 

7.3 The Mortgagee shall not be obliged to make any enquiry as to the nature or sufficiency of any payment received by it under this Legal Mortgage of IPCo Shares or to make any claim or to take any action to collect any moneys assigned by this Legal Mortgage of IPCo Shares or to enforce any rights or benefits assigned to the Mortgagee by this Legal Mortgage of IPCo Shares or to which the Mortgagee may at any time be entitled hereunder.

 

7.4 Upon any sale of the Mortgaged Property or any part thereof by the Mortgagee the purchaser shall not be bound to see or enquire whether the Mortgagee’s power of sale has become exercisable in the manner provided in this Legal Mortgage of IPCo Shares and the sale shall be deemed to be within the power of the Mortgagee, and the receipt of the Mortgagee of the purchase money shall effectively discharge the purchaser who shall not be concerned with the manner of application of the proceeds of sale or be in any way answerable therefor.

 

7.5 All moneys received by the Mortgagee pursuant to this Legal Mortgage of IPCo Shares shall be held by it upon trust in the first place to pay or make good all such expenses, liabilities, losses, costs, duties, fees, mortgages or other moneys whatsoever as may have been paid or incurred by the Mortgagee in exercising any of the powers specified or otherwise referred to in this Legal Mortgage of IPCo Shares and the balance shall be applied in the following manner:

 

  7.5.1 FIRSTLY: in or towards satisfaction of any amounts in respect of the balance of the Secured Obligations as are then due and payable, in such order or application as the Mortgagee shall think fit;

 

  7.5.2 SECONDLY: in retention of an amount equal to any part or parts of the Secured Obligations as are not then due and payable but which (in the reasonable opinion of the Mortgagee) will or may become due and payable in the future and, upon the same becoming due and payable, in or towards satisfaction thereof in accordance with the foregoing provisions of this Section 7.5 (provided, that, when assessing Secured Obligations that may become due and payable in the future, the Mortgagee shall exclude contingent de minimis liabilities of any Credit Party that are not then outstanding for expense reimbursements and indemnification obligations under any Note Documents); and

 

  7.5.3 THIRDLY: the surplus (if any) shall be paid to the Mortgagors ratably in accordance with the number of Mortgaged Shares pledged by them or to whomsoever else may be entitled thereto.

 

7.6 Neither the Mortgagee nor its agents, managers, officers, employees, delegates and advisers shall be liable for any claim, demand, liability, loss, damage, cost or expense incurred or arising in connection with the exercise or purported exercise, or failure to exercise, of any rights, powers and discretions hereunder in the absence of gross negligence or dishonesty.

 

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8. FURTHER ASSURANCES

Each Mortgagor shall execute all and any such documents and do all such assurances, acts and things as the Mortgagee in its reasonable discretion may require for:

 

8.1 perfecting, protecting or ensuring the priority of the security hereby created (or intended to be created);

 

8.2 preserving or protecting any of the rights of the Mortgagee under this Legal Mortgage of IPCo Shares;

 

8.3 ensuring that the security constituted by this Legal Mortgage of IPCo Shares and the covenants and obligations of each Mortgagor under this Legal Mortgage of IPCo Shares shall enure to the benefit of any permitted assignee of the Mortgagee;

 

8.4 facilitating the appropriation or realization of the Mortgaged Property or any part thereof; or

 

8.5 the exercise of any power, authority or discretion vested in the Mortgagee under this Legal Mortgage of IPCo Shares,

in any such case, forthwith upon demand by the Mortgagee.

 

9. INDEMNITIES

 

9.1 The Mortgagors will jointly and severally, indemnify and hold harmless the Mortgagee, Alibaba and each agent or attorney appointed under or pursuant to this Legal Mortgage of IPCo Shares from and against any and all expenses, claims, liabilities, losses, taxes, costs, duties and fees suffered, incurred or made by the Mortgagee, Alibaba or such agent or attorney:

 

  9.1.1 in the exercise or purported exercise of any rights, powers or discretions vested in them pursuant to this Legal Mortgage of IPCo Shares;

 

  9.1.2 in the preservation or enforcement of the Mortgagee’s rights under this Legal Mortgage of IPCo Shares or the priority thereof; or

 

  9.1.3 in the release of any part of the Mortgaged Property from the security created by this Legal Mortgage of IPCo Shares,

and the Mortgagee or such agent or attorney may retain and pay all sums in respect of the same out of money received under the powers conferred by this Legal Mortgage of IPCo Shares.

 

9.2 If, under any applicable Laws, and whether pursuant to a judgment being made or registered against either Mortgagor or the bankruptcy or liquidation of either Mortgagor or for any other reason any payment under or in connection with this Legal Mortgage of IPCo Shares is made in a currency (the “Payment Currency”) other than the currency in which such payment is due under or in connection with this Legal Mortgage of IPCo Shares (the “Contractual Currency”), then to the extent that the amount of such payment actually received by the Mortgagee when converted into the Contractual Currency at the rate of exchange, falls short of the amount due under or in connection with this Legal Mortgage of IPCo Shares, the Mortgagors, as a separate and independent obligation, shall jointly and severally indemnify and hold harmless the Mortgagee against the amount of such shortfall. For the purposes of this Section 9.2, “rate of exchange” means the rate at which the Mortgagee is able on or about the date of such payment to purchase the Contractual Currency with the Payment Currency and shall take into account any premium and other costs of exchange with respect thereto.

 

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10. POWER OF ATTORNEY

Each Mortgagor, by way of first priority security and in order to more fully secure the performance of its obligations hereunder pursuant to the Powers of Attorney Law (1996 Revision), hereby irrevocably appoints the Mortgagee and the Persons deriving title under it jointly and also severally to be its attorney to execute and complete in favour of the Mortgagee or its nominees or of any purchaser any documents which the Mortgagee may from time to time require for perfecting its title to or for vesting any of the Assets and property hereby Mortgaged or assigned in the Mortgagee or its nominees or in any purchaser and to give effectual discharges for payments, to take and institute on non payment (if the Mortgagee in its sole discretion so decides) all steps and proceedings in the name of such Mortgagor or of the Mortgagee for the recovery of such moneys, property and Assets hereby mortgaged and to agree accounts and make allowances and give time or other indulgence to any surety or other Person liable and otherwise generally for it and in its name and on its behalf and as its act and deed or otherwise to execute, seal and deliver and otherwise perfect and do any such legal assignments and other assurances, mortgages, authorities and documents over the moneys, property and Assets hereby mortgaged, and all such deeds, instruments, acts and things (including, without limitation, those referred to in Section 8) which may be required for the full exercise of all or any of the powers conferred or which may be deemed proper on or in connection with and to give proper effect to the intent of this Legal Mortgage of IPCo Shares and any of the purposes aforesaid; provided that unless and until an Event of Default has occurred, the Mortgagee may not exercise any right or power pursuant to this appointment, other than the making of notice filings with respect to this IPCo Mortgage and ensuring that Section 4.4 is satisfied. The power hereby conferred shall be a general power of attorney and each Mortgagor hereby ratifies and confirms and agrees to ratify and confirm any instrument, act or thing which any such attorney may execute or do. In relation to the power referred to herein, the exercise by the Mortgagee of such power shall be conclusive evidence of its right to exercise the same.

 

11. EXPENSES

The Mortgagors shall pay promptly all stamp, documentary and other like duties and taxes to which this Legal Mortgage of IPCo Shares may be subject or give rise and shall, jointly and severally, indemnify the Mortgagee on demand against any and all liabilities with respect to or resulting from any delay or omission on the part of either Mortgagor to pay any such duties or taxes.

 

12. NOTICES

Any notice required to be given hereunder shall be in writing in the English language and shall be served by sending the same by prepaid recorded post, facsimile or by delivering the same by hand to the address of the Party or Parties in question as set out below (or such other address as such Party or Parties shall notify the other Parties of in accordance with this Section 12). Any notice sent by post as provided in this Section 12 shall be deemed to have been served five Business Days after dispatch and any notice sent by facsimile as provided in this Section 12 shall be deemed to have been served at the time of dispatch and in proving the service of the same it will be sufficient to prove in the case of a letter that such letter was properly stamped, addressed and placed in the post; and in the case of a facsimile that such facsimile was duly dispatched to a current facsimile number of the addressee.

 

To Mortgagors:      
   Jack Ma Yun
   c/o Alibaba Group Services Limited
   24th Floor, Jubilee
   18 Fenwick Street
   Wanchai
   Hong Kong
   Attention: General Counsel
   Facsimile No.:    +852 2215 5200

 

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   Joseph Chung Tsai
   c/o Alibaba Group Services Limited
   24th Floor Jubilee
   18 Fenwick Street
   Wanchai
   Hong Kong
   Attention: General Counsel
   Facsimile No.:    +852 2215 5200
with a copy (not notice) to:   
   Wachtell, Lipton, Rosen & Katz
   51 West 52nd Street
   New York, NY 10019
   Attention: Josh Feltman
   Facsimile No:    +1-212-403-2109
To Mortgagee:      
   []
   [Address]
   [Address]
   Attention: []
   Facsimile No:    []
with a copy (not notice) to:      
To Yahoo!:      
   Yahoo! Inc.
   701 First Avenue
   Sunnyvale, CA 94089
   Attention:    General Counsel
   Facsimile No:    (408) 349-3650
with a copy (not notice) to:      
   Skadden, Arps, Slate, Meagher & Flom LLP
   525 University Avenue, Suite 1100
   Palo Alto, CA 94301
   Attention:    Kenton J. King
      Leif B. King
   Facsimile No:    +1-650-470-4570

 

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with a copy (not notice) to:      
To Softbank:      
   SOFTBANK CORP.
   1-9-1 Higashi Shinbashi, Minato-ku,
   Tokyo 105-7303, Japan
   Attention:    []
   Facsimile No:    +81-3-6215-5001
with a copy (not notice) to:      
   Morrison & Foerster LLP
   Shin-Marunouchi Building 29F, 1-5-1 Marunouchi, Chiyoda-ku
   Tokyo 100-6529, Japan
   Attention:    Kenneth Siegel
   Facsimile No:    +81-3-3214-6512

 

13. ASSIGNMENTS

 

13.1 This Legal Mortgage of IPCo Shares shall be binding upon each of the Mortgagors and shall inure to the benefit of the Mortgagee, in each case including each of their respective successors, nominees and (subject as hereinafter provided) assigns, and references in this Legal Mortgage of IPCo Shares to any of them shall be construed accordingly.

 

13.2 Neither Mortgagor shall assign or transfer all or any part of its rights and/or obligations under this Legal Mortgage of IPCo Shares.

 

13.3 The Mortgagee may, without either Mortgagor’s consent, assign or transfer all or any part of its rights or obligations under this Legal Mortgage of IPCo Shares to any assignee or transferee that is acting as security agent for and on behalf of Alibaba. The Mortgagee shall notify each Mortgagor promptly following any such assignment or transfer.

 

14. MISCELLANEOUS

 

14.1 The Mortgagee, at any time and from time to time, may delegate by power of attorney or in any other manner to any Person or Persons all or any of the powers, authorities and discretions which are for the time being exercisable by the Mortgagee under this Legal Mortgage of IPCo Shares in relation to the Mortgaged Property or any part thereof. Any such delegation may be made upon such terms and be subject to such regulations as the Mortgagee may think fit. The Mortgagee shall not be in any way liable or responsible to the Mortgagor for any loss or damage arising from any act, default, omission or misconduct on the part of any such delegate provided the Mortgagee has acted reasonably in selecting such delegate.

 

14.2 If any of the clauses, conditions, covenants or restrictions of this Legal Mortgage of IPCo Shares or any deed or document emanating from it shall be found to be void but would be valid if some part thereof were deleted or modified, then such clause, condition, covenant or restriction shall apply with such deletion or modification as may be necessary to make it valid and effective.

 

14.3 This Legal Mortgage of IPCo Shares (together with any documents referred to herein) constitutes the whole agreement among the Parties relating to its subject matter and no variations hereof shall be effective unless made in writing and signed by each of the Parties.

 

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14.4 The headings in this Legal Mortgage of IPCo Shares are inserted for convenience only and shall not affect the construction of this Legal Mortgage of IPCo Shares.

 

14.5 This Legal Mortgage of IPCo Shares may be executed in counterparts each of which when executed and delivered shall constitute an original but all such counterparts together shall constitute one and the same instrument.

 

15. LAW AND JURISDICTION

This Legal Mortgage of IPCo Shares shall be governed by and construed in accordance with the laws of the Cayman Islands and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of the Cayman Islands, provided that nothing in this Section 15 shall affect the right of the Mortgagee to serve process in any manner permitted by Law or limit the right of the Mortgagee to take proceedings with respect to this Legal Mortgage of IPCo Shares against either Mortgagor in any jurisdiction nor shall the taking of proceedings with respect to this Legal Mortgage of IPCo Shares in any jurisdiction preclude the Mortgagee from taking proceedings with respect to this Legal Mortgage of IPCo Shares in any other jurisdiction, whether concurrently or not.

 

16


IN WITNESS whereof the parties hereto have caused this Legal Mortgage of IPCo Shares to be duly executed as a Deed the day and year first before written.

 

Executed as a Deed by Jack Ma Yun in the presence of      
    Jack Ma Yun
Witness    
   
Executed as a Deed by Joseph Chung Tsai in the presence of      
            Joseph Chung Tsai
Witness    

 

The Common Seal of    )   
the Mortgagee    )   
was hereunto affixed    )   
in the presence of:    )   

 

17


Schedule 1

MORTGAGED SHARES

 

Mortgagor

  

Shares of IPCo to be Mortgaged

Jack Ma Yun    [] ordinary shares (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like)
Joseph Chung Tsai    [] ordinary shares (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations, reclassifications and the like)


Schedule 2

DULY EXECUTED SHARE TRANSFERS


Schedule 2

INSTRUMENT OF TRANSFER

 

FOR VALUE   []   (amount)
RECEIVED  

 

 

Jack Ma Yun

  (transferor)
hereby sells, assigns and transfers unto  

[], acting as security agent for and on behalf of Alibaba Group Holding Limited

  (transferee)
of  

[]

  (address)

[]

  (number of shares)
in the capital of  

APN Ltd.

  (name of company)

Dated this      day of             , 2011

 

 

   

 

(Witness)     Jack Ma Yun
    (Transferor)

 

   

 

(Witness)     For and on behalf of
    [], acting as security agent for and
    on behalf of Alibaba Group Holding Limited
    (Transferee)


INSTRUMENT OF TRANSFER

 

FOR VALUE   []   (amount)
RECEIVED  

 

 

Joseph Chung Tsai

  (transferor)
hereby sells, assigns and transfers unto  

[], acting as security agent for and on behalf of Alibaba Group Holding Limited

  (transferee)
of  

[]

  (address)

[]

  (number of shares)
in the capital of  

APN Ltd.

  (name of company)

Dated this      day of             , 2011

 

 

   

 

(Witness)     Joseph Chung Tsai
    (Transferor)

 

   

 

(Witness)     For and on behalf of
    [], acting as security agent for and
    on behalf of Alibaba Group Holding Limited
    (Transferee)


Schedule 3

EXECUTED BUT UNDATED LETTERS OF RESIGNATION AND RELEASE WITH LETTER OF AUTHORITY


Schedule 3

FORM OF LETTER OF RESIGNATION

 

To: The Directors and Secretary

APN Ltd.

One Capital Place, 4th Floor,

P. O. Box 847, George Town

Grand Cayman

Cayman Islands

Date:                     

Dear Sirs

Letter of Resignation – APN Ltd.

I hereby resign as a [director]/[officer]/[alternate director] of APN Ltd. (the “Company”) and confirm that I have no claims against the Company for loss of office, arrears or pay or otherwise howsoever. I irrevocably release the Company from all and any claims which I have or might have against it.

This resignation is to be effective the date hereof.

 

Yours faithfully,

 


FORM OF DIRECTORS’ LETTER OF AUTHORITY

Date:                     

[Name and Address of Mortgagee]

Dear Sirs

Resignation Letter - Directorship of APN Ltd. (the “Company”)

Please find enclosed a signed but undated letter from me resigning my position as a [director]/[officer]/[alternate director] of the Company.

I hereby irrevocably authorise you to date the letter at any time after you are notified by Alibaba Group Holding Limited or its successor and assign that an Event of Default has occurred (as defined in the Secured Promissory Note made by the Company in favour of Alibaba Group Holding Limited as of [            ] 2011) and send it to the Company’s registered office thereby terminating my [directorship][officership] of the Company without compensation for loss of office. I acknowledge and agree that your discretion to act in this regard is to be exercised solely in the interests of the parties relating to the Legal Mortgage of IPCo Shares dated [            ] 2011 granted or to be granted shares in the Company.

I confirm that you may delegate the authority conferred by this letter to any of your successors and assigns as Mortgagee in relation to the Legal Mortgage of IPCo Shares.

 

Yours faithfully

 


Schedule 4

FORM OF NOTICE TO REGISTERED AGENT


Schedule 4

FORM OF NOTICE TO REGISTERED OFFICE

 

[Registered Office name]   
[                                         ], Grand Cayman, Cayman Islands   
   [DATE]

Dear Sirs,

 

Re: APN Ltd. (the “Company”)

 

1. We refer to the Company, for whom you provide registered office services and with respect to whom we are your client of record.

 

2. Please be advised that with effect from                    2011, [    ] (the “Security Agent”) under a share mortgage entered into by Jack Ma Yun and Joseph Chung Tsai (the “Mortgagors”) in favour of the Security Agent, should be treated as joint client of record along with ourselves for the purposes of taking instructions in relation to the Company.

 

3. Accordingly, please treat the Security Agent as your joint client of record with effect from                    2011. For avoidance of any doubt, you may take and act on instructions given by the Security Agent without reference to us and in the event of a conflict, instructions received from the Security Agent shall prevail.

 

4. For your records, the Security Agent’s contact details are as follows:

 

[                                         ]
Fax No.:   [                                         ]
Attention:   [                                         ]

 

5. Please note that we continue to bear all your reasonable charges in relation to the Company and advise accordingly that the Security Agent assumes no liability to you as registered agent of the Company.

 

Yours faithfully

 

Name:
for and on behalf of
APN Ltd.


Schedule 5

FORM OF WRITTEN RESOLUTION OF DIRECTORS


Schedule 5

FORM OF WRITTEN RESOLUTIONS OF DIRECTORS

 

 

WRITTEN RESOLUTIONS OF ALL THE DIRECTORS

OF APN LTD. DATED [LEFT UNDATED]

 

 

APN Ltd. (the “Company”)

Written resolutions of all the directors of the Company were made pursuant to article 29.4 of the articles of association of the Company.

CHANGES IN DIRECTORS

IT IS RESOLVED that:

1. the following persons be appointed as directors of the Company with immediate effect:

[List Mortgagee’s Director Nominees - to be left blank]

2. that the resignation of the following persons as directors of the Company be accepted with immediate effect:

[List Company Directors - to be left blank]

CHANGES IN OFFICERS

IT IS RESOLVED that:

3. the resignation of the following person(s) as officer(s) of the Company with the positions specified below be accepted with immediate effect:

[List Company Officers - to be left blank]

4. the following persons be appointed as officer(s) of the Company with the positions specified below with immediate effect:

[List Mortgagee’s Officer Nominees to be left blank]

[Remainder of Page Intentionally Left Blank]


 

[Name]
Director
Date:

 

[Name]
Director
Date:

 

[Name]
Director
Date:

 

[Name]
Director
Date:


Exhibit D

Dated this [] day of [], 2011

BY:

IPCO

IN FAVOUR OF:

[]

 

 

FORM OF FIXED AND FLOATING CHARGE

 

 


TABLE OF CONTENTS

 

          Page  

1.

  

Interpretation

     3   

2.

  

Chargor Covenants

     5   

3.

  

Security and Charging Clause

     5   

4.

  

Chargor Representations and Warranties

     7   

5.

  

Dealings with Charged Property

     8   

6.

  

Preservation of Security

     8   

7.

  

Enforcement of Security

     10   

8.

  

Further Assurances

     12   

9.

  

Indemnities

     13   

10.

  

Power of Attorney

     14   

11.

  

Notices

     14   

12.

  

Assignment

     16   

13.

  

Miscellaneous

     16   

14.

  

Law and Jurisdiction

     17   

 

-i-


THIS DEED OF FIXED AND FLOATING CHARGE is made on the [] day of [], 2011.

BY:

APN Ltd., a company incorporated under the laws of the Cayman Islands and having its registered office at Trident Trust Company (Cayman) Limited, Fourth Floor, One Capital Place, P.O. Box 817, Grand Cayman, KY1-1103, Cayman Islands (the “Chargor”);

IN FAVOUR OF:

[], a company incorporated under the laws of [] and having its [registered/principal] office at [] (the “Chargee”) acting as security agent for and on behalf of Alibaba (as defined below).

WHEREAS:

 

(A) Reference is made to the Secured Promissory Note dated [], 2011 (the “IPCo Promissory Note”, which expression shall include the IPCo Promissory Note as from time to time amended, varied, altered, restated, novated or replaced) made by the Chargor in favour of Alibaba Group Holding Limited, a company incorporated under the laws of the Cayman Islands (“Alibaba”), in the original principal amount of U.S.$500,000,000.

 

(B) Reference is further made to the Framework Agreement dated as of July 29, 2011 (the “Framework Agreement”, which expression shall include the agreement constituted by such Framework Agreement as from time to time amended, varied, altered, restated, novated or replaced) among Yahoo! Inc., a Delaware corporation (“Yahoo!”), SOFTBANK Corp., a Japanese corporation (“Softbank”), Alibaba, Zhijrang Alibaba E-Commerce Co., Ltd., a limited liability company organized under the laws of the People’s Republic of China (“HoldCo”), Alipay.com Co., Ltd., a limited liability company organized under the laws of the People’s Republic of China (“OpCo”), the Chargor, Jack MaYun, Joseph Chung Tsai and the Joinder Parties (as defined therein).

 

(C) Reference is further made to (1) the Legal Mortgage of IPCo Shares dated the date hereof (the “Legal Mortgage of IPCo Shares”, which expression shall include the Legal Mortgage of IPCo Shares as from time to time amended, varied, altered, restated, novated or replaced) made by Jack MaYun and Joseph Chung Tsai in favour of the Mortgagee (as defined therein); and (2) the IPCo Legal Mortgage of Alibaba Shares dated the date hereof (the “Legal Mortgage of Alibaba Shares”, which expression shall include the Legal Mortgage of Alibaba Shares as from time to time amended, varied, altered, restated, novated or replaced) made by the Chargor in favour of the Mortgagee (as defined therein).

 

(D) It is a condition precedent to the transactions contemplated by the Framework Agreement that the Chargor execute this Charge in favour of the Chargee as security for the Secured Obligations (as defined below) and this Charge is executed by the Chargor in consideration of the transactions contemplated by the Framework Agreement and for other good and valuable consideration (the sufficiency of which the Chargor hereby acknowledges).

 

2


NOW THIS CHARGE WITNESSES as follows:

 

1. INTERPRETATION

 

1.1 In this Charge, unless the context otherwise requires, the following words and expressions shall have the following meanings:

 

“Alibaba Shares”    means 50,000,000 ordinary shares of Alibaba and all and any other property that may at any time be received or receivable by or otherwise distributed to the Chargor in respect of or in substitution for, or in addition to, or in exchange for, or on account of, any of the foregoing, including, without limitation, any shares or other securities resulting from the division, consolidation, change, conversion or reclassification of any of the Alibaba Shares, or the reorganization, merger or consolidation of Alibaba with any other body corporate, or the occurrence of any event which results in the substitution or exchange or cancellation of the Alibaba Shares from time to time legally or beneficially owned by the Chargor or in which the Chargor has any interest during the Security Period;
“Charge”    means this fixed and floating charge;
“Charged Property”    means all of the property and Assets charged under this Charge in favour of the Chargee;
“Debts”    means all book debts and other debts now or from time to time hereafter due, owing or payable to the Chargor wheresoever situated and all choses in action which give rise or may give rise to book debts or other debts, and the benefits of all rights relating thereto and of obtaining or enforcing payment of the same and including, without limitation, the proceeds of the insurance referred to in clause 6.7(h);
“Event of Default”    means an Event of Default as defined in the IPCo Promissory Note, any default under this Charge, or any failure to satisfy any of the Secured Obligations as and when the same may become due, after giving effect to any applicable cure period.
“Fair Market Value”    means as of a certain date (a) with respect to publicly traded Securities, the trading price of such Securities on such date, as reported by Bloomberg L.P., (b) with respect to cash, the value of such cash in Dollars, as reported by Bloomberg L.P., or (c) with respect to any other Securities or other Assets, the fair market value determined by the Valuation Procedure.
“Land”    means freehold and leasehold land and buildings and erections and, where the context permits, all plant, machinery, fixtures (including trade and tenant fixtures) fittings and other equipment and effects from time to time thereon or on part thereof;
“Parties”    means the parties to this Charge;
“Secured Obligations”    means all obligations and liabilities of the Borrower and each other Credit Party to pay any Liquidity Event Payment, any Impact Payment, any Increase Payment, any Make-Whole Payment, or any payment required to be made under the IPCo Promissory Note, the Legal Mortgage of IPCo Shares, the Legal Mortgage of Alibaba Shares, any Top-Up Mortgage, any Shortfall Security Document or this Charge, in each case whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred or otherwise;

 

3


“Securities”    means all stocks, shares or other securities now or at any time during the continuance of this Charge belonging to the Chargor in any of its subsidiaries and Affiliates;
“Security Interest”    means any charge, mortgage, pledge, lien, right of set off, security interest or other encumbrance howsoever created or arising;
“Security Period”    means the period commencing on the date of execution of this Charge and terminating upon the Final Payment Date.
“Valuation Procedure”    means the following procedure: the Fair Market Value of the Assets or Securities shall be determined by internationally recognized investment banking firms, one firm appointed by Chargee (“Chargee Bank”) and one firm appointed by Chargor (“Chargor Bank”, together with Chargee Bank, the “Initial Banks”), and if a third is necessary as provided below, the Initial Banks shall appoint a third investment bank (“Third Bank”). Each Initial Bank’s determination shall be made and delivered to Chargee and Chargor within thirty (30) days following the date on which the second Initial Bank was appointed. If the determinations of the Fair Market Value of the Assets or Securities made by the Initial Banks are within ten percent (10%) of each other (i.e., the difference between the two determined Fair Market Value is equal to or less than ten percent (10%) of the higher determined Fair Market Value), then the average of the Chargee Bank-determined Fair Market Value and the Chargor Bank-determined Fair Market Value shall be used as the final Fair Market Value of the Assets or Securities. If the determinations of the Fair Market Value of the Assets or Securities made by the Initial Banks are not within ten percent (10%) of each other, then the determination of the Third Bank shall be delivered to Chargee and Chargor within thirty (30) days after the appointment of the Third Bank. The determination of the Fair Market Value of the Assets or Securities by such Third Bank, together with such determinations provided by the Initial Banks, will be used to determine the final Fair Market Value of the Assets or Securities as follows: (i) if the determination made by the Third Bank falls within the middle third of the range between the determinations made by the two Initial Banks (i.e., if the Third Bank determination is (1) greater than the sum of the lower determined Fair Market Values of the Initial Banks plus one-third (1/3) of the difference between the two determined Fair Market Values of the Initial Banks and (2) less than the sum of the lower determined Fair Market Value of the Initial Banks plus two-thirds (2/3) of the difference between the two determined Fair Market Values of the Initial Banks), then the final Fair Market Value of the Assets or Securities shall be the Fair Market Value determined by the Third Bank; and (ii) if the Fair Market Value of the Assets or Securities determined by the Third Bank falls outside the middle third of the range between the determinations of the Initial Banks, then the final Fair Market Value of the Assets or Securities shall be the Fair Market Value of the Assets or Securities determined by the Initial Bank that is closer to the Fair Market Value of the Assets or Securities determined by the Third Bank.

 

4


1.2 In this Charge:

 

  (a) save as expressly defined in this Charge, capitalized terms defined in the Framework Agreement or the IPCo Promissory Note shall have the same meaning in this Charge;

 

  (b) references to statutory provisions shall be construed as references to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time and shall include references to any provisions of which they are re-enactments (whether with or without modification);

 

  (c) references to clauses and schedules are references to clauses hereof and schedules hereto; references to sub-clauses or paragraphs are, unless otherwise stated, references to sub-clauses of the clauses or paragraphs of the schedule in which the reference appears;

 

  (d) references to the singular shall include the plural and vice versa and references to the masculine shall include the feminine and/or neuter and vice versa;

 

  (e) references to Persons shall include companies, partnerships, associations and bodies of Persons, whether incorporated or unincorporated;

 

  (f) references to Assets include property, rights, Debts, Securities and Assets of every description; and

 

  (g) references to any document are to be construed as references to such document as amended or supplemented from time to time.

 

2. CHARGOR COVENANTS

 

2.1 The Chargor hereby irrevocably and unconditionally covenants with the Chargee that the Chargor will, on reasonable request of the Chargee and at the expense of the Chargor, execute and deliver to the Chargee or to such Person or Persons as the Chargee may nominate such additional charge or charges of the Charged Property (or any part thereof) for the purpose of further securing the payment and discharge of all Secured Obligations, each such additional charge to be in such form as the Chargee may reasonably require.

 

3. SECURITY AND CHARGING CLAUSE

 

3.1 In consideration of the transactions contemplated by the Transaction Documents and as a continuing security for the payment, discharge and performance of the Secured Obligations the Chargor, as absolute sole legal and beneficial owner, hereby charges in favour of the Chargee:

 

  (a) by way of first fixed charge all Land now or at any time during the continuance of this Charge belonging to the Chargor and all goodwill and uncalled capital of the Chargor both present and future;

 

  (b) by way of first fixed charge all other fixed Assets now or at any time during the continuance of this Charge belonging to the Chargor not otherwise included in the Land;

 

5


  (c) by way of first fixed and floating charge the Debts;

 

  (d) by way of first fixed and floating charge the Securities;

 

  (e) by way of first fixed charge, to the extent that the same can legally be charged, all licences (statutory or otherwise) now or at any time during the continuance of this Charge held in connection with the business of the Chargor or the use of any of the Charged Property and the right to recover and receive all compensation which may at any time become payable to the Chargor in respect thereof;

 

  (f) by way of first fixed charge, to the extent that the same can legally be charged, all licences and patents (including applications and rights to apply therefor), copyrights, rights in trade marks, whether or not registered, and rights in confidential information now or at any time during the continuance of this Charge belonging to the Chargor;

 

  (g) by way of floating charge all the undertaking, property and Assets whatsoever now or at any time during the continuance of this Charge belonging to the Chargor not otherwise effectively charged by way of fixed charge pursuant to 3.1(a) through (f) above (inclusive); provided, that the Charged Property shall not include, and the Security Interest created herein shall not cover, (i) the Alibaba Shares, (ii) any Asset, including any license, contract, or confidential information, to the extent, but only to the extent, that the grant or enforcement of a Security Interest in such Asset would result in a violation of any applicable Law, and (iii) any license or contract, to the extent, but only to the extent, that the granting or enforcement of a Security Interest in such license or contract would, under the terms of such license or contract or under applicable Law, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, such license or contract (collectively, the “Excluded Assets”).

 

3.2 As a continuing security for the payment, discharge and performance of the Secured Obligations the Chargor as legal and beneficial owner hereby assigns to the Chargee:

 

  (a) the benefit of all agreements, warranties, guarantees, insurances and bonds now or from time to time entered into or to be entered into by the Chargor in connection with the whole or any part of the Charged Property; and

 

  (b) the copyright and rights in the nature of copyright vested in the Chargor from time to time in any plans, drawings, designs and formulae prepared for or in connection with the Charged Property or any of it;

in each case other than Excluded Assets.

 

3.3 After the occurrence and during the continuance of an Event of Default, the floating charge created pursuant to clause 3.1(g) shall forthwith become enforceable with respect to any item of Charged Property, and shall automatically and immediately crystallise and attach and shall become a fixed charge on all of the Charged Property referred to in clause 3.1(g) then in existence or thereafter acquired or received by, in the possession of, or transferred to, Chargor, in each case without any requirement for further or any action or consent on the part of the Chargee.

 

3.4 The Chargor hereby covenants that during the Security Period it will remain the legal and the beneficial owner of the Charged Property (subject only to the Security Interests hereby created) and that, other than as permitted or required by the Framework Agreement, it will not:

 

  (a) create or knowingly suffer the creation of any Security Interests (other than those created by this Charge) on or in respect of the whole of any part of the Charged Property or any of its interest therein;

 

6


  (b) Transfer any of its interest in the Charged Property; or

 

  (c) permit any Person other than the Chargee or Chargee’s nominee to be registered as, or become the holder of, the Charged Property;

in any such case, without the prior consent in writing of the Chargee (acting in its sole discretion).

 

3.5 The Chargor shall remain liable to perform all the obligations assumed by it in relation to the Charged Property and the Chargee shall be under no obligation of any kind whatsoever in respect thereof or be under any liability whatsoever in the event of any failure by the Chargor to perform its obligations in respect thereof.

 

3.6 Upon the satisfaction and discharge in full of the Secured Obligations (including Secured Obligations in respect of expense reimbursements and indemnification obligations then due and owing, but irrespective of any contingent expense reimbursement or indemnification obligation in respect of which no claim has been made) and following a written request therefor from the Chargor, the Chargee will release and reconvey the security constituted by this Charge, including all Charged Property, to Chargor or execute such further documents and take such other action as may be necessary or reasonably requested by the Chargor to transfer the Charged Property to Chargor.

 

3.7 The undertaking, property and Assets whatsoever now or at any time during the continuance of this Charge that are subject to Clauses 3.1(a) through (g) above (inclusive) shall be used by Chargor solely in accordance with the restrictions set forth in the Transaction Documents.

 

4. CHARGOR REPRESENTATIONS AND WARRANTIES

 

4.1 The Chargor hereby represents and warrants, to the Chargee that:

 

  (a) the Chargor has the necessary capacity, power and authority to:

 

  (i) execute and deliver this Charge; and

 

  (ii) comply with the provisions of, and perform all its obligations under, this Charge;

 

  (b) this Charge constitutes the Chargor’s legal, valid and binding obligations enforceable against the Chargor in accordance with its terms and is a first priority fixed and/or floating charge, as the case may be, except as such enforcement may be limited by any relevant bankruptcy, insolvency, administration or similar Laws affecting creditors’ rights generally on equitable principles, to the extent that such principles may apply in the absence of express contractual provisions;

 

  (c) the entry into and performance by the Chargor of this Charge does not violate:

 

  (i) any Laws,

 

7


  (ii) any Contract to which the Chargor is a party or which is binding upon the Chargor or any of its Assets, or

 

  (iii) the memorandum of association or articles of association of the Chargor;

except in the case of clause (i) if such violation would not impair the Security Interest intended to be created hereby.

 

  (d) all consents, licenses, approvals and authorizations required as of the date hereof in connection with the entry into, performance, validity and enforceability of this Charge have been obtained and are in full force and effect, except those the failure to obtain which or have in full force and have effect would not impair the Security Interest intended to be created hereby; and

 

  (e) the Chargor has taken all corporate and other action required to approve its execution, delivery, registration and performance of this Charge.

 

5. DEALINGS WITH CHARGED PROPERTY

 

5.1 The Chargor shall pay all calls, installments or other payments, and shall discharge all other obligations, which may become due in respect of any of the Charged Property, and in an Event of Default, the Chargee may if it thinks fit make such payments or discharge such obligations on behalf of the Chargor. Any sums so paid by the Chargee in respect thereof shall be repayable on demand and pending such repayment shall constitute part of the Secured Obligations.

 

5.2 The Chargee shall not have any duty to ensure that any dividends, interest or other moneys and Assets receivable in respect of the Charged Property are duly and punctually paid, received or collected as and when the same become due and payable or, except to the extent that an agreement to that effect between Chargor and Chargee is then effective (and subject to applicable reasonably satisfactory payment arrangements being in place), to ensure that the correct amounts (if any) are paid or received on or in respect of the Charged Property or to ensure the taking up of any (or any offer of any) stocks, shares, rights, moneys or other property paid, distributed, accruing or offered at any time by way of redemption bonus, rights, preference, or otherwise on or in respect of, any of the Charged Property.

 

5.3 The Chargor hereby authorizes the Chargee to arrange at any time and from time to time following the occurrence and during the pendency of an Event of Default for the Charged Property or any part thereof to be registered in the name of the Chargee (or its nominee) thereupon to be held, as so registered, subject to the terms of this Charge.

 

6. PRESERVATION OF SECURITY

 

6.1 It is hereby agreed and declared that:

 

  (a) the security created by this Charge shall be held by the Chargee as a continuing security for the payment and discharge of the Secured Obligations and the security so created shall not be satisfied by any intermediate payment or satisfaction of any part of the Secured Obligations;

 

8


  (b) the security so created shall be in addition to and shall not merge with or otherwise be prejudiced or affected by any present or future contractual or other right or remedy or any guarantee or other Security Interest held by or available to the Chargee as security for the Secured Obligations;

 

  (c) the Chargee shall not be bound to enforce any other security before enforcing the security created by this Charge;

 

  (d) no delay or omission on the part of the Chargee in exercising any right, power or remedy under this Charge shall impair such right, power or remedy or be construed as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy. The rights, powers and remedies provided in this Charge are cumulative and not exclusive of any rights, powers and remedies provided by Laws and may be exercised from time to time and as often as the Chargee may deem expedient; and

 

  (e) any waiver by the Chargee of any terms of this Charge shall only be effective if given in writing and then only for the purpose and upon the terms for which it is given.

 

6.2 Any settlement or discharge under this Charge between the Chargee and the Chargor shall be subject to the condition subsequent that no security or payment to the Chargee being avoided or set-aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency, administration or liquidation for the time being in force and, if such condition is not satisfied, the Chargee shall be entitled to recover from the Chargor on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred.

 

6.3 The rights of the Chargee under this Charge and the security hereby constituted shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to impair, affect or discharge such rights and security, in whole or in part, including without limitation, and whether or not known to or discoverable by the Chargor, the Chargee or any other Person:

 

  (a) any time or waiver granted to or composition with the Chargor or any other Person under any other Transaction Document or otherwise;

 

  (b) the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against the Chargor or any other Person under any other Transaction Document or otherwise;

 

  (c) any legal limitation, disability, incapacity or other circumstances relating to the Chargor or any other Person under any other Transaction Document or otherwise;

 

  (d) any amendment or supplement to any Transaction Document or any other document or security;

 

  (e) the dissolution, liquidation, amalgamation, merger, consolidation, reconstruction or reorganization of any Person; or

 

  (f) the unenforceability, invalidity or frustration of any obligations of the Chargor or any other Person under any Transaction Document or any other document or security in any jurisdiction.

 

9


6.4 Until the Secured Obligations have been unconditionally satisfied and discharged in full, the Chargor shall not by virtue of any payment made hereunder or otherwise on account of the Secured Obligations or by virtue of any enforcement by the Chargee of its rights under, or the security constituted by, this Charge:

 

  (a) exercise any rights of subrogation in relation to any rights, insurance, security or moneys held or received or receivable by the Chargee;

 

  (b) exercise any right of contribution from any co-surety liable in respect of such moneys and liabilities under any other guarantee, security or agreement;

 

  (c) exercise any right of set-off or counterclaim against any co-surety;

 

  (d) receive, claim or have the benefit of any payment, distribution, security or indemnity from any co-surety; or

 

  (e) unless so directed by the Chargee (when the Chargor will prove in accordance with such directions), claim as a creditor of any co-surety in competition with the Chargee.

 

6.5 The Chargor shall hold in trust for the Chargee and forthwith pay or Transfer (as appropriate) to the Chargee any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.

 

6.6 Until the occurrence of an Event of Default, the Chargee may at any time keep in a separate account or accounts (without liability to pay interest thereon) in the name of the Chargee for as long as it may think fit, any moneys received, recovered or realized under this Charge without being under any obligation to apply the same or any part thereof in or towards the discharge of such Secured Obligations.

 

7. ENFORCEMENT OF SECURITY

 

7.1 Upon the occurrence of an Event of Default the security hereby constituted shall become immediately enforceable and the power of sale and other powers specified in section 75 of the Registered Land Law (applied in respect of Personal property as well as real property) as varied or amended by this Charge shall be immediately exercisable upon and at any time immediately thereafter; and without prejudice to the generality of the foregoing, the Chargee (without further notice to the Chargor):

 

  (a) may solely and exclusively exercise all voting and/or other rights and/or powers and/or discretions attaching or pertaining to the Charged Property or any part thereof and may exercise such voting and/or rights and/or powers and/or discretions in such manner as the Chargee may think fit; and/or

 

  (b) may receive and retain all dividends, interest or other moneys or Assets accruing on or in respect of the Charged Property or any part thereof, such dividends, interest or other moneys or Assets to be held by the Chargee, until applied in the manner described in clause 7.3, as additional security charged under and subject to the terms of this Charge and any such dividends, interest or other moneys or Assets received by the Chargor after such time shall be held in trust by the Chargor for the Chargee and paid or Transferred to the Chargee on demand; and/or

 

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  (c) may (i) if the Fair Market Value of the Charged Property is less than the amount of the Secured Obligations, transfer the Charged Property to the Chargee absolutely and the Chargor shall immediately pay the balance of the Secured Obligations as if it was the principal obligor or (ii) if the Fair Market Value of the Charged Property is greater than the amount of the Secured Obligations, transfer an amount of the Charged Property having a Fair Market Value equal to the Secured Obligations to the Chargee absolutely with the remainder of the Charged Property being released and transferred to the Chargor free of this Charge; and/or

 

  (d) may sell or otherwise dispose of the Charged Property or any part thereof by such method, at such place and upon such terms as the Chargee may determine, and apply the proceeds of such sale or disposition in satisfaction of all or a portion of the Secured Obligations, and if such proceeds are in excess of the amount of the Secured Obligations, the remainder shall be released and transferred to the Chargor free of this Charge; and/or

 

  (e) may appoint by instrument any Person or Persons to be a receiver or receivers of the Charged Property (the “Receiver”; it being understood no Receiver shall be appointed unless an Event of Default shall have occurred and be continuing) and remove any Receiver so appointed and appoint another or others in his stead.

 

7.2 Upon any sale of the Charged Property or any part thereof by the Chargee the purchaser shall not be bound to see or enquire whether the Chargee’s power of sale has become exercisable in the manner provided in this Charge and the sale shall be deemed to be within the power of the Chargee, and the receipt of the Chargee for the purchase money shall effectively discharge the purchaser who shall not be concerned with the manner of application of the proceeds of sale or be in any way answerable therefore.

 

7.3 All moneys received by the Chargee pursuant to this Charge shall be held by it upon trust in the first place to pay or make good all such expenses, liabilities, losses, costs, duties, fees, charges or other moneys whatsoever as may have been paid or incurred by the Chargee in exercising any of the powers specified or otherwise referred to in this Charge and the balance shall be applied in the following manner:

 

  (a) FIRSTLY: in or towards satisfaction of any amounts in respect of the balance of the Secured Obligations as are then accrued due and payable, in such order or application as the Chargee shall think fit;

 

  (b) SECONDLY: in retention of an amount equal to any part or parts of the Secured Obligations as are not then due and payable but which (in the reasonable opinion of the Chargee) will or may become due and payable in the future and, upon the same becoming due and payable, in or towards satisfaction thereof in accordance with the foregoing provisions of this Clause 7.3 (provided, that, when assessing Secured Obligations that may become due and payable in the future, the Chargee shall exclude contingent de minimis liabilities of any Credit Party that are not then outstanding for expense reimbursements and indemnification obligations under any Note Documents); and

 

  (c) THIRDLY: the surplus (if any) shall be paid to the Chargor or to whomsoever else may be entitled thereto.

 

7.4 The Chargee shall not be obliged to make any enquiry as to the nature of sufficiency of any payment received by it under this Charge or to make any claim or to take any action to collect any moneys assigned by this Charge or to enforce any rights or benefits assigned to the Chargee by this Charge or to which the Chargee may at any time be entitled hereunder.

 

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7.5 Neither the Chargee nor its agents, managers, officers, employees, delegates or advisers shall be liable for any claim, demand, liability, loss, damage, cost or expense incurred or arising in connection with the exercise or purported exercise, or failure to exercise, of any rights, powers and discretions hereunder in the absence of fraud, gross negligence or willful misconduct.

 

7.6 The Chargee shall not by reason of the taking of possession of the whole or any part of the Charged Property or any part thereof be liable to account as mortgagee-in-possession or for anything except actual receipts or be liable for any loss upon realisation or for any default or omission for which a mortgagee-in-possession might be liable.

 

7.7 In addition to all other rights or powers vested in the Chargee hereunder or by statute or otherwise, the Receiver shall have the following powers;

 

  (a) to take possession of, collect and get in all or any part of the Charged Property;

 

  (b) in the name of the Chargor or in his own name, to bring, prosecute, enforce, defend and abandon applications, claims, disputes, actions, suits and proceedings in connection with all or any part of the Charged Property and to submit to arbitration, negotiate, compromise and settle any such applications, claims, disputes, actions, suits or proceedings;

 

  (c) to make any arrangement or compromise on behalf of the Chargor in respect of the Charged Property which he shall think expedient; and

 

  (d) to do all such other acts and things as may be considered to be incidental or conducive to any of the matters or powers aforesaid and which the Receiver lawfully may or can do as agent for the Chargor.

 

7.8 Chargor hereby irrevocably and fully waives any and all claims it may at any time have against Chargee, Alibaba, any Receiver or any related party for the acts or omissions of any Receiver, other than claims arising from fraud, gross negligence or willful misconduct.

 

7.9 Every Receiver shall be entitled to remuneration (to be paid by the Chargor) for his services at a rate to be fixed by agreement between him and the Chargee (or, failing such agreement, to be fixed by the Chargee) appropriate to the work and responsibilities involved, upon the basis of current industry practice.

 

8. FURTHER ASSURANCES

 

8.1 The Chargor shall, forthwith upon demand by the Chargee, provide such assurances and do all acts and things as the Chargee in its reasonable discretion may require for:

 

  (a) perfecting, protecting or ensuring the priority of the security hereby created (or intended to be created);

 

  (b) preserving or protecting any of the rights of the Chargee under this Charge;

 

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  (c) ensuring that the security constituted by this Charge and the covenants and obligations of the Chargor under this Charge shall enure to the benefit of any permitted assignee of the Chargee;

 

  (d) facilitating the appropriation or realisation of the Charged Property or any part thereof; or

 

  (e) the exercise of any power, authority or discretion vested in the Chargee under this Charge,

in any such case, in accordance with the rights vested in the Chargee under this Charge.

 

8.2 The Chargor shall provide such assurances and do all acts and things the Receiver may in his reasonable discretion require for the purpose of exercising the powers (or giving effect to the exercise of the powers) conferred on the Receiver hereunder or any of them and the Chargor hereby irrevocably appoints the Receiver to be the lawful attorney in fact of the Chargor to do any act or thing and to exercise all the powers of the Chargor for the purpose of exercising the powers (or giving effect to the exercise of the powers) conferred on the Receiver hereunder or any of them.

 

9. INDEMNITIES

 

9.1 The Chargor will indemnify and hold harmless the Chargee, the Receiver, Alibaba and each agent, attorney or other Person appointed under or pursuant to this Charge from and against any and all expenses, claims, liabilities, losses, taxes, costs, duties and fees suffered, incurred or made by the Chargee, the Receiver, Alibaba, or such agent or attorney:

 

  (a) in the exercise or purported exercise of any rights, powers or discretions vested in them pursuant to this Charge or by Law in respect of this Charge;

 

  (b) in the preservation or enforcement of the Chargee’s rights under this Charge or the priority thereof; or

 

  (c) in the release of any part of the Charged Property from the security created by this Charge,

and the Chargee, the Receiver, Alibaba or such agent or attorney may retain and pay all sums in respect of the same out of money received under the powers conferred by this Charge.

 

9.2 If, under any applicable Laws, and whether pursuant to a judgment being made or registered against the Chargor or the bankruptcy or liquidation of the Chargor or for any other reason any payment under or in connection with this Charge is made in a currency (the “Payment Currency”) other than the currency in which such payment is due under or in connection with this Charge (the “Contractual Currency”), then to the extent that the amount of such payment actually received by the Chargee when converted into the Contractual Currency at the rate of exchange, falls short of the amount due under or in connection with this Charge, the Chargor, as a separate and independent obligation, shall indemnify and hold harmless the Chargee against the amount of such shortfall. For the purposes of this clause, “rate of exchange” means the rate at which the Chargee is able, on or about the date of such payment, to purchase the Contractual Currency with the Payment Currency and shall take into account any premium and other costs of exchange with respect thereto.

 

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10. POWER OF ATTORNEY

 

10.1 The Chargor, by way of first priority security and in order to more fully secure the performance of its obligations hereunder pursuant to the Powers of Attorney Law (1996 Revision), hereby irrevocably appoints the Chargee and the Persons deriving title under it jointly and also severally to be its attorney to execute and complete in favour of the Chargee or its nominees or of any purchaser any documents which the Chargee may from time to time require for perfecting its title to or for vesting any of the Assets and property hereby charged or assigned in the Chargee or its nominees or in any purchaser and to give effectual discharges for payments, to take and institute on non payment (if the Chargee in its sole discretion so decides) all steps and proceedings in the name of the Chargor or of the Chargee for the recovery of such moneys, property and Assets hereby charged and to agree accounts and make allowances and give time or other indulgence to any surety or other Person liable and otherwise generally for it and in its name and on its behalf and as its act and deed or otherwise to execute, seal and deliver and otherwise perfect and do any such legal assignments and other assurances, charges, authorities and documents over the moneys, property and Assets hereby charged, and all such deeds, instruments, acts and things (including, without limitation, those referred to in clause 8) which may be required for the full exercise of all or any of the powers conferred or which may be deemed proper on or in connection with and to give proper effect to the intent of this Charge and any of the purposes aforesaid; provided, that unless and until an Event of Default has occurred, the Chargee may not exercise any right or power pursuant to this appointment, other than the making of notice filings with respect to this Charge. The power hereby conferred shall be a general power of attorney and the Chargor hereby ratifies and confirms and agrees to ratify and confirm any instrument, act or thing which any such attorney may execute or do. In relation to the power referred to herein, the exercise by the Chargee of such power shall be conclusive evidence of its right to exercise the same.

 

11. EXPENSES

The Chargor shall pay promptly all stamp, documentary and other like duties and taxes to which this Charge may be subject or give rise and shall indemnify the Chargee on demand against any and all liabilities with respect to or resulting from any delay or omission on the part of the Chargor to pay any such duties or taxes.

 

12. NOTICES

Any notice required to be given hereunder shall be in writing in the English language and shall be served by sending the same by prepaid recorded post, facsimile or by delivering the same by hand to the address of the Party or Parties in question as set out below (or such other address as such Party or Parties shall notify the other Parties of in accordance with this clause 12). Any notice sent by post as provided in this clause 12 shall be deemed to have been served five Business Days after dispatch and any notice sent by facsimile as provided in this clause 12 shall be deemed to have been served at the time of dispatch and in proving the service of the same it will be sufficient to prove in the case of a letter that such letter was properly stamped, addressed and placed in the post; and in the case of a facsimile that such facsimile was duly dispatched to a current facsimile number of the addressee.

 

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To Chargor:   
   APN Ltd.
   c/o Alibaba Group Services Limited
   24th Floor, Jubilee
   18 Fenwick Street
   Wanchai
   Hong Kong
   Attention:   General Counsel
   Facsimile No:   +852 2215 5200
              []  
   Facsimile No:   []
with a copy (not notice) to:     
   Wachtell, Lipton, Rosen & Katz
   51 West 52nd Street
   New York, NY 10019
   Attention:   Josh Feltman
   Facsimile No:   +1-212-403-2109
To Chargee:     
   []  
   [Address]  
   [Address]  
   Attention:   []
   Facsimile No:   []
with a copy (not notice) to:     
To Yahoo!:     
   Yahoo! Inc.
   701 First Avenue
   Sunnyvale, CA 94089
   Attention:   General Counsel
   Facsimile No:   (408) 349-3650
with a copy (not notice) to:     
   Skadden, Arps, Slate, Meagher & Flom LLP
   525 University Avenue, Suite 1100
   Palo Alto, CA 94301
   Attention:   Kenton J. King
     Leif B. King
   Facsimile No:   +1-650-470-4570

 

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with a copy (not notice) to:     
To Softbank:     
   SOFTBANK Corp.
   1-9-1 Higashi Shinbashi, Minato-ku
   Tokyo 105-7303, Japan
   Attention:   []
   Facsimile:   +81-3-6215-5001
with a copy (not notice) to:     
   Morrison & Foerster LLP
   Shin-Marunouchi Building 29F, 1-5-1 Marunouchi, Chiyoda-ku
   Tokyo 100-6529, Japan
   Attention:   Kenneth Siegel
   Facsimile No:   +81-3-3214-6512

 

13. ASSIGNMENT

 

13.1 This Charge shall be binding upon the Chargor and shall inure to the benefit of the Chargee, in each case including each of their respective successors and (subject as hereinafter provided) assigns, and references in this Charge to any of them shall be construed accordingly.

 

13.2 The Chargor shall not assign or Transfer all or any part of its rights and/or obligations under this Charge.

 

13.3 The Chargee may assign or transfer all or any part of its rights or obligations under this Charge to any permitted assignee or transferee that is acting as security agent for and on behalf of Alibaba. The Chargee shall notify the Chargor promptly following any such assignment or Transfer.

 

14. MISCELLANEOUS

 

14.1 The Chargee, at any time and from time to time, may delegate by power of attorney or in any other manner to any Person or Persons all or any of the powers, authorities and discretions which are for the time being exercisable by the Chargee under this Charge in relation to the Charged Property or any part thereof. Any such delegation may be made upon such terms and be subject to such regulations as the Chargee may think fit. The Chargee shall not be in any way liable or responsible to the Chargor for any loss or damage arising from any act, default, omission or misconduct on the part of any such delegate provided the Chargee has acted reasonably in selecting such delegate.

 

14.2 If any of the clauses, conditions, covenants or restrictions of this Charge or any deed or document emanating from it shall be found to be void but would be valid if some part thereof were deleted or modified, then such clause, condition, covenant or restriction shall apply with such deletion or modification as may be necessary to make it valid and effective.

 

14.3 This Charge (together with any documents referred to herein) constitutes the whole agreement between the Parties relating to its subject matter and no variations hereof shall be effective unless made in writing and signed by each of the Parties.

 

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14.4 The headings in this Charge are inserted for convenience only and shall not affect the construction of this Charge.

 

14.5 This Charge may be executed in counterparts each of which when executed and delivered shall constitute an original but all such counterparts together shall constitute one and the same instrument.

 

15. LAW AND JURISDICTION

This Charge shall be governed by and construed in accordance with the laws of the Cayman Islands and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of the Cayman Islands, provided that nothing in this clause 15 shall affect the right of the Chargee to serve process in any manner permitted by Law or limit the right of the Chargee to take proceedings with respect to this Charge against the Chargor in any jurisdiction nor shall the taking of proceedings with respect to this Charge in any jurisdiction preclude the Chargee from taking proceedings with respect to this Charge in any other jurisdiction, whether concurrently or not.

 

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IN WITNESS whereof the parties hereto have caused this Deed to be duly executed and delivered the day and year first before written.

 

Executed as a Deed    )
By the Chargor    )
Acting by [name of director]    )
   )
Executed as a Deed    )
By the Chargee    )
Acting by [name of director]    )
   )

 

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Exhibit E

FORM OF RELEASE AGREEMENT

This RELEASE AGREEMENT, dated as of [] (this “Agreement”), is entered into by and among Alibaba Group Holding Limited, a company organized under the laws of the Cayman Islands (“Alibaba”), SOFTBANK CORP., a Japanese corporation and shareholder of Alibaba (“Softbank”), Yahoo! Inc., a Delaware corporation and shareholder of Alibaba (“Yahoo!”), Jack Ma Yun (“JMY”), Joseph Chung Tsai (“JT”), Xie Shihuang (“SX”), and 浙江阿里巴巴电子商务有限公司 Zhejiang Alibaba E-Commerce Co., Ltd.) , a limited liability company organized under the laws of the People’s Republic of China (“HoldCo”). Alibaba, Softbank, Yahoo!, JMY, JT, SX and HoldCo are herein referred to individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, Alibaba, Softbank, Yahoo!, Alipay.com Co., Ltd., a limited liability company organized under the laws of the People’s Republic of China (“OpCo”), JMY, JT, SX, HoldCo, and certain other parties named therein have entered into a Framework Agreement dated July 29, 2011 (the “Framework Agreement”);

WHEREAS, the ownership of OpCo was restructured in a series of transactions with the effect that upon the completion of the restructuring transactions 100% of the outstanding shares of OpCo had been transferred from Alibaba or its subsidiaries to HoldCo, a company 80% owned by JMY and 20% by SX, and as part of the restructuring or to effect the restructuring certain assets of the Business were transferred from Alibaba or its subsidiaries to OpCo, and Alibaba made Loans to JMY and SX, in each case pursuant to the Release Transactions, as defined in Exhibit A;

WHEREAS, in connection with the restructuring of OpCo certain Control Agreements (as defined in Exhibit A) were entered into pursuant to which Alibaba continued to effectively control OpCo until the Control Agreement Termination; and

WHEREAS, the board of directors of Alibaba has adopted resolutions substantially in the form attached as Exhibit A to this Agreement ratifying certain actions of Alibaba, Alibaba’s subsidiaries, JT and JMY;

NOW, THEREFORE, in consideration of the foregoing premises and the respective representations, warranties, covenants and agreements contained herein and in the Framework Agreement, effective at the Effective Time as defined in the Framework Agreement (the “Effective Time”), and intending to be legally bound, the Parties hereby agree as follows:


ARTICLE I

DEFINITIONS

(a) Definitions. Unless otherwise specifically defined in this Agreement, each capitalized term used but not defined in this Agreement shall have the meaning assigned to such term in the Framework Agreement or in Exhibit A to this Agreement.

ARTICLE II

RELEASES AND COVENANT NOT TO SUE

Section 2.1. Release and Discharge.

(a) Effective as of the Effective Time, Alibaba, Yahoo! and Softbank, for themselves and, to the maximum extent permitted by Law, on behalf of each of their respective former and current officers, directors, executives, employees (including, without limitation, internal legal counsel), subsidiaries, controlled Affiliates, predecessor entities, successors and assigns of any said person or entity (the “Releasing Parties”), hereby knowingly, voluntarily, unequivocally, fully, and, subject in each case to Section 4.13 hereof, unconditionally, irrevocably and forever release and discharge Alibaba, OpCo, HoldCo, JM, JT, SX and each of their respective former and current officers, directors, executives, employees, security holders (including without limitation shareholders), parents, subsidiaries, Affiliates, predecessor entities, accountants, auditors, attorneys, representatives (excluding investment banking firms), heirs, executors, administrators, successors and assigns of any said person or entity (including, without limitation, internal legal counsel) (collectively, the “Released Persons”) from the following (collectively, the “Released Claims”): any and all past or present, direct and/or indirect claims, rights, actions, causes of action, losses, obligations, sums of money due, costs, judgments, suits, damages and charges of whatever kind or nature, known or unknown, disclosed or undisclosed, suspected or unsuspected, contingent or absolute, in law or in equity, whether individual, or in their capacity as shareholders of Alibaba or of any of their respective subsidiaries or controlled Affiliates, asserted or that could have been asserted, under any Law of any jurisdiction anywhere in the world (including without limitation any Law of the United States or any state or territory thereof, any Law of the Peoples Republic of China or any region or territory thereof or the Special Administrative Region of Hong Kong, and any Law of the Cayman Islands) (collectively, “Claims”):

(i) arising from or out of, based upon or related to:

(1) the Release Transactions;

(2) the Control Agreements and Control Agreement Termination, as defined in Exhibit A to this Agreement;

 

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(3) during the period commencing on the date of the first Release Transaction and continuing until the Effective Time, related party transactions between or among Alibaba, OpCo and their respective subsidiaries and controlled Affiliates effected without the approval, to the extent required, of Alibaba’s board of directors, in each case to the extent in the ordinary course of business, consistent with the past practices of Alibaba and OpCo as conducted in the period prior to the first Release Transaction; and

(4) during the period commencing on the date of the first Release Transaction and continuing until the Effective Time, (A) any and all actions taken or not taken by the Released Persons, whether as officers or directors of Alibaba, OpCo or otherwise, to give effect to or to implement any of the transactions or actions set forth in the foregoing clauses (1), (2) or (3), and (B) the nature, substance and timing of any disclosures, communications or statements (or the failure to make any such disclosures, communications or statements) relating to the transactions or actions set forth in the foregoing clauses (1), (2) or (3) to directors, shareholders, auditors or attorneys of Alibaba, to other Releasing Persons or to the public (which in the case of disclosures, communications and statements to the public shall be limited to disclosures, communications and statements published and available to the general public at the Effective Time); or

(ii) arising from or out of, or based upon, the fact of, without more, or the continuation of, without more, ownership or control, from and after the first Release Transaction, by any Released Party, of OpCo, its subsidiaries and controlled Affiliates;

provided, that for the avoidance of doubt, in the case of Claims that relate (A) in part to the matters specified in clauses (i) and (ii) and (B) in part to other matters, the “Released Claims” shall include such Claims only to the extent relating to the matters described in clause (A) and not to the extent relating to the matters described in clause (B).

(b) For avoidance of doubt, with respect to Released Persons who are individuals, the releases provided for in this Section 2.1 shall apply to them in any capacity acting by or on behalf of, any Released Person, including, in their capacity as officer, executive, director, managing partner, principal, member, security holder, trustee or fiduciary for or with respect to any other Released Person.

(c) Any Person released from any claim pursuant to this Section 2.1 may plead this Agreement as a complete defense, discharge and bar to any action, claim or demand, in any court or tribunal anywhere in the world, brought in respect of such released claim in contravention of this Agreement for so long as this Agreement remains in effect.

(d) For the avoidance of doubt, the release and discharge set forth herein shall not be deemed to release any of the Released Parties or Releasing Parties from its obligations under any of the other Transaction Documents.

 

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Section 2.2. Scope of Release.

(a) The Parties acknowledge and agree that they may be unaware of or may discover facts in addition to or different from those which they now know, anticipate or believe to be true related to or concerning the Released Claims. The Parties know that such presently unknown or unappreciated facts could materially affect the claims or defenses of a Party or Parties. It is nonetheless the intent of the Parties to give a full, complete and final release and discharge of the Released Claims. In furtherance of this intention, the releases herein given shall be and remain in effect as full and complete releases with regard to the Released Claims notwithstanding the discovery or existence of any such additional or different claim or fact. To that end, with respect to the Released Claims, the Parties expressly waive and relinquish any and all provisions, rights and benefits conferred by any Law of the United States, the People’s Republic of China, the Hong Kong Special Administrative Region, the Cayman Islands or of any state or territory of the United States or of any other jurisdiction in the world, or principle of common law, under which a general release does not extend to claims which the Parties do not know or suspect to exist in their favor at the time of executing the release, which if known by the Parties might have affected the Parties’ settlement. The Parties expressly waive and relinquish, to the fullest extent permitted by Law, the provisions, rights, and benefits of §1542 of the California Civil Code, or any Law of any other jurisdiction anywhere in the world of similar effect, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

(b) “Specified Representations” means the representations and warranties set forth in Sections 4.01, 4.02, 4.03, 4.08, 4.09, 4.10, 4.11, 4.12, 4.20, 5.01, 5.02, 5.03, 5.04, and 5.05 of the Framework Agreement. “Correctness” or “Correct” means correct except for (i) inaccuracies or breaches of which the Independent Directors or the senior executive officers of Yahoo! or Softbank who were involved in the negotiation of the Framework Agreement had Knowledge prior to the Effective Time if such breaches or inaccuracies were sufficient to cause the condition to the obligations of Alibaba, Yahoo! and Softbank in Section 8.03(a) of the Framework Agreement not to be satisfied prior to the Effective Time or were disclosed as exceptions to the certificate delivered by HoldCo pursuant to Section 8.03(a) of the Framework Agreement, or (ii) such inaccuracies or breaches which do not, individually or in the aggregate, substantially decrease (A) the benefits of the Transactions to Alibaba, Yahoo! or Softbank or (B) the value of Alibaba. “Knowledge” shall be evidenced solely by written evidence (including email, and including self-generated writings and writings created by Releasing Persons) demonstrating that such person had knowledge of such inaccuracy or breach.

(c) The Parties acknowledge and agree that the inclusion of this Section 2.2 was separately bargained for and is a material term of this Agreement.

Section 2.3. Covenant Not to Sue. Effective as of the Effective Time, each of Alibaba, Yahoo! and Softbank covenants, on behalf of itself and its respective Releasing Parties, not to initiate, bring, raise, instigate, commence, assert, maintain or prosecute any Released Claim against any Released Person before any court, arbitrator, or other tribunal in any jurisdiction in the world, whether as a claim, a cross claim, or counterclaim for so long as this Agreement remains in effect. So long as this Agreement remains in effect, and any Released Person may plead this Agreement as a complete bar, discharge and defense to any Released Claim brought in derogation of this covenant not to sue.

 

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ARTICLE III

COVENANTS

Section 3.1. Non-Assertion. No Party shall, or shall permit any of its Related Parties or Representatives to, directly or indirectly assert that any provision of any Transaction Document is invalid, illegal or unenforceable.

Section 3.2. Non-Disparagement. Other than as a Party may determine is necessary to respond to any legal or regulatory process or proceeding or to give appropriate testimony or file any necessary documents in any legal or regulatory process or proceeding or as may be required by Law, each Party to this Agreement shall not make any public statements or any private statements that disparage, denigrate or malign the other Parties or the Released Persons concerning the subject matter of the Transaction Documents, the Released Claims or the Release Transactions.

ARTICLE IV

MISCELLANEOUS

Section 4.1. Admission. This Agreement constitutes the settlement of disputed claims; it does not and shall not constitute an admission of liability by any of the parties. This Section 4.1 shall survive any termination of this Agreement.

Section 4.2. Counterparts; Effectiveness. This Agreement may be executed in two or more counterparts (including by facsimile), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered (by telecopy or otherwise) to the other Parties.

Section 4.3. Governing Law. THIS AGREEMENT IS MADE UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN.

Section 4.4. 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 administered by, and 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.

 

5


(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, without limitation, 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 Laws, 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 arbitration tribunal shall not consolidate such arbitrations unless it determines that (i) there are issues of fact or law common to the proceedings, so that a consolidated proceeding would be more efficient than separate proceedings, and (ii) 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 these Transaction Documents, the ruling of the tribunal constituted under this Agreement will govern, and that tribunal will decide all disputes in the consolidated proceeding.

 

6


(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 Laws.

(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 Dollars (or, if a payment in Dollars is not permitted by Law and if mutually agreed upon by the Parties, in PRC currency), free from any deduction, offset or withholding for Taxes.

(h) Notwithstanding this Section 4.4 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.

Section 4.5. Notices. All notices and other communications hereunder shall be in writing and shall be deemed received (i) on the date of delivery if delivered personally, (ii) on the date of confirmation of receipt if delivered by a nationally recognized courier service (or, the first (1st) Business Day following such receipt if (a) the date is not a Business Day or (b) receipt occurs after 5:00 p.m., local time of the recipient) or (iii) on the date of receipt of transmission by facsimile or electronic mail, provided that it is followed immediately by confirmation by personal delivery or a nationally recognized courier service that is received pursuant to subclause (i) or (ii) (or, the first (1st) Business Day following such receipt if (a) the date is not a Business Day or (b) receipt occurs after 5:00 p.m., local time of the recipient), to the Parties at the following address or facsimile numbers (or at such other address or facsimile number for a Party as shall be specified by like notice):

 

To Alibaba:  
   c/o Alibaba Group Services Limited
   24th Floor, Jubilee
   18 Fenwick Street
   Wanchai
   Hong Kong
   Attention:   General Counsel
   Facsimile No.:   +852 2215 5200

 

7


To Yahoo!:  
   Yahoo! Inc.
   701 First Avenue
   Sunnyvale, CA 94089-0703
   Attention:   General Counsel
   Facsimile No:   +1-408-349-3510
with a copy (not notice) to:
   Skadden, Arps, Slate, Meagher & Flom LLP
   525 University Avenue, Suite 1100
   Palo Alto, CA 94301
   Attention:   Kenton J. King
     Leif B. King
   Facsimile No.:   +1-650-470-4570
To Softbank:  
   SOFTBANK CORP.
   1-9-1 Higashi-shimbashi, Minato-ku
   Tokyo 105-7303, Japan
   Attention:   Mr. Katsumasa Niki, Finance
   Facsimile No:   +81-3-6215-5001
with a copy (not notice) to:
   Morrison & Foerster LLP
   Shin-Marunouchi Building 29F, 1-5-1 Marunouchi, Chiyoda-ku
   Tokyo 100-6529, Japan
   Attention:   Kenneth Siegel
   Facsimile No:   +81-3-3214-6512

 

8


To HoldCo, JMY, JT or SX:
   c/o Alibaba Group Services Limited
   24th Floor, Jubilee
   18 Fenwick Street
   Wanchai
   Hong Kong
   Attention:   General Counsel
   Facsimile No.:   +852-2215-5200
with a copy (not notice) to:
   Wachtell, Lipton, Rosen & Katz
   51 West 52nd Street
   New York, NY
   Attention:   Mark Gordon
   Facsimile No:   +1-212-403-2343

Section 4.6. Assignment; Binding Effect. Neither this Agreement nor any of the rights, interests or obligations in this Agreement shall be assigned (other than by operation of law as a result of a merger or similar transaction) by any of the Parties without the prior written consent of the other Parties. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and, subject to the preceding sentence, assigns.

Section 4.7. Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable.

Section 4.8. Entire Agreement; Third-Party Beneficiaries. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all other prior (but not subsequent) agreements and understandings, both written and oral, between the Parties, or any of them, with respect to the subject matter of this Agreement and thereof; provided, however, that the obligations of the Parties set forth in the Framework Agreement shall not be superseded and shall remain in full force and effect. Each party hereto acknowledges and agrees that each of the non-Party Released Persons are express third party beneficiaries of the releases of such non-Party Released Persons contained in Sections 2.1 and 2.2 and covenants not to sue contained in Section 2.3 of this Agreement and are entitled to enforce rights under such sections to the same extent that such non-Party Released Persons could enforce such rights if they were a party to this Agreement. Except as provided in the preceding sentence, there are no third party beneficiaries to this Agreement, and this Agreement is not otherwise intended to and shall not otherwise confer upon any Person other than the Parties any rights or remedies in this Agreement.

 

9


Section 4.9. Headings. Headings of the Articles and Sections of this Agreement are for convenience of the Parties only and shall be given no substantive or interpretive effect whatsoever.

Section 4.10. Interpretation. When a reference is made in this Agreement to an Article or Section, such reference shall be to an Article or Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The word “or” shall be deemed to mean “and/or.” The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.

Section 4.11. Representation by Counsel; Mutual Drafting. The Parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and have participated jointly in the negotiation and drafting of this Agreement and hereby waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

Section 4.12. Specific Performance. It is understood and agreed by the Parties that a breach of this Agreement would cause actual, immediate and irreparable injury for which there would be no adequate remedy at law and money damages would not be a sufficient remedy for any breach of this Agreement by any Party, and each non-breaching Party therefore shall be entitled, in addition to any other remedy available thereto under this Agreement, at law or in equity, to specific performance and injunctive or other equitable relief as a remedy of any such breach.

Section 4.13. Termination If either of the following occurs:

(a) (i) HoldCo, OpCo, IPCo, JMY, JT, any HoldCo Shareholder or any Related Party or Representative of any of the foregoing asserts in any dispute, controversy or claim arising out of, relating to, or in connection with any Transaction Document, that any provision of any Transaction Document is invalid, illegal or unenforceable and (ii) the ICC or any other arbitral body of competent jurisdiction or any Governmental Authority of competent jurisdiction holds any of the obligations set forth in clauses (x), (y) or (z) of Section 10.13(b) of the Framework Agreement to be invalid, illegal or unenforceable, then unless waived by the Independent Directors (as defined in the Framework Agreement), or

(b) any failure of the Specified Representations to be Correct,

 

10


then in each case, the Independent Directors may terminate this Agreement by written notice to HoldCo, OpCo, JMY and JT; provided that in the case of termination under Section 4.13(b), if the failure of the Specified Representations to be Correct is capable of being cured, HoldCo, OpCo, JMY and JT shall have ninety (90) days in which to cure such failure, and this Agreement shall not terminate prior to the end of such ninety (90) day period (and shall not terminate if such failure is cured during such period); provided further that regardless of whether such ninety (90) day cure period has expired, any Party hereto may assert any Released Claim that would, due to the passage of time, be barred (including due to the expiration of the statute of limitations for such Released Claim) or deemed waived (if not asserted prior to the expiration of such ninety (90) day cure period; provided that any Released Claim so asserted shall be withdrawn if the matter is cured prior to the end of such ninety (90) day cure period.

Upon termination under this Section 4.13, this Agreement shall terminate immediately and shall thereafter be deemed null and void in all jurisdictions as if it had not occurred.

[Signature Pages Follow]

 

11


IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed and delivered as of the date first above written.

 

/s/

Alibaba Group Holding Limited

/s/

浙江阿里巴巴电子商务有限公司
(Zhejiang Alibaba E-Commerce Co., Ltd.)

/s/

Joseph Chung Tsai

/s/

Jack Ma Yun

/s/

Xie Shihuang

/s/

Yahoo! Inc.

/s/

SOFTBANK CORP.


EXHIBIT A

ALIBABA GROUP HOLDING LIMITED

(THE “COMPANY”)

 

 

WRITTEN RESOLUTIONS

OF THE BOARD OF DIRECTORS OF THE COMPANY (THE “DIRECTORS”)

DATED []

 

 

 

1. TRANSFER OF ALIPAY.COM CO., LTD.

 

1.1 IT IS NOTED that:

 

  (a) The Company is a company organized under the laws of the Cayman Islands;

 

  (b) Jack Ma Yun (“JM”) and Joseph Chung Tsai (“JT”) are officers, directors and/or shareholders of the Company, and Xie Shihuang (“SX”) is an employee of the Company;

 

  (c) The Company is party to that certain Shareholders Agreement, dated as of October 24, 2005, with Yahoo! Inc. (“Yahoo!”), SOFTBANK CORP. (“Softbank”), Yahoo! Holdings (Hong Kong) Ltd., SB China Holdings PTE Ltd., Softbank BB Corp., certain members of management of the Company in their capacity as shareholders of the Company, and certain other shareholders of the Company named therein (as amended, the “Shareholders Agreement”);

 

  (d) 支付宝(中国)网络技术有限公司 (Alipay.com Co., Ltd.) (“OpCo”) is a company organized under the laws of the People’s Republic of China;

 

  (e) 浙江阿里巴巴电子商务有限公司 (Zhejiang Alibaba E-Commerce Co., Ltd.) (“HoldCo”) is a company organized under the laws of the People’s Republic of China;

 

  (f) Pursuant to agreements dated June 1, 2009 and August 6, 2010, the legal ownership of OpCo was restructured so that 100% of its registered capital was transferred from a subsidiary of the Company to HoldCo, for an aggregate amount of RMB 332 million (collectively, the “Transfers”);

 

  (g) In connection with the Transfers, on or about June 4, 2009 and on December 15, 2010, JM, SX and 支付宝软件(上海)有限公司 (Alipay Software (Shanghai) Company Ltd.) (a subsidiary of the Company, “Alipay Software”), and HoldCo, entered into agreements supplementing certain existing control agreements among JM, SX, Alipay Software and HoldCo, pursuant to which Alibaba previously effectively controlled HoldCo, and, after giving effect to the Transfers, Alibaba continued to effectively control OpCo through HoldCo and consolidated OpCo’s financial results notwithstanding the Transfers (such existing agreements, together with the supplements thereto, collectively, the “Control Agreements”);

 

A-1


  (h) In a series of transactions, JM and SX borrowed an aggregate amount of RMB 711 million from Alipay Software to recapitalize HoldCo (the “Loans” and, together with the Transfers, the “Release Transactions”); and

 

  (i) In the first quarter of 2011, Alipay Software, Ltd., HoldCo, JM, and SX, terminated the Control Agreements (the “Control Agreement Termination”) and JM and SX repaid the Loans, and on March 31, 2011, Alibaba notified Yahoo! and Softbank that the financial results of OpCo were deconsolidated.

 

1.2 IT IS RESOLVED that:

 

  (a) Each of the Release Transactions, the Control Agreements and the Control Agreement Termination, are hereby approved and ratified by the Directors; and

 

  (b)

Any and all actions of the Company or of any Director, officer, employee, accountant, auditor, attorney or other agent or representative of the Company or any of its subsidiaries taken to give effect to or to implement the Release Transactions, the Control Agreements or the Control Agreement Termination prior to []1 are hereby ratified, confirmed, approved and adopted in all respects as fully as if such action(s) had been presented to for approval, and approved by, all the Directors prior to such action being taken.

 

2. NULLIFICATION OF RATIFICATION

IT IS RESOLVED that if the Release Agreement dated as of [], by and among the Company, Softbank, Yahoo!, JMY, JT, SX and HoldCo, is terminated pursuant to its terms, then these resolutions, including the ratification of prior actions, shall be deemed null and void ab initio for all purposes, including under the Shareholders Agreement.

 

1 

Insert the date of the Closing in this blank.

 

A-2


/s/

   

/s/

Yahoo! Director     Softbank Director

/s/

   

/s/

Director     Director

 

A-3


Exhibit F

THE COMPANIES LAW (AS AMENDED)

COMPANY LIMITED BY SHARES

MEMORANDUM OF ASSOCIATION

OF

APN Ltd.

(Amended and Restated by Special Resolution Dated [            ], 2011)

 

1. The name of the Company is APN Ltd. (the “Company”).

 

2. The registered office of the Company will be situated at the offices of Trident Trust Company (Cayman) Limited, Fourth Floor, One Capital Place, PO Box 847, Grand Cayman KY1-1103 Cayman Islands or at such other place in the Cayman Islands as directors of the Company (the “Directors”) may from time to time decide by Unanimous Director Consent (as defined in the Articles of Association of the Company).

 

3. [Capitalized terms used and not otherwise defined in this Memorandum of Association shall have the meanings given to them in the Articles of Association of the Company (as from time to time amended, varied, altered, restated, novated or replaced) or the Framework Agreement dated as of July 29, 2011 (the “Framework Agreement”, which expression shall include the agreement constituted by such Framework Agreement as from time to time amended, varied, altered, restated, novated or replaced) among Alibaba Group Holding Limited., a company organized under the laws of the Cayman Islands (“Alibaba”), SOFTBANK CORP., a Japanese corporation (“Softbank”), Yahoo! Inc., a Delaware corporation (“Yahoo!”), Alipay.com Co., Ltd., a limited liability company organized under the laws of the People’s Republic of China, the Company, Zhejiang Alibaba E-Commerce Co., Ltd., a limited liability company organized under the laws of the People’s Republic of China, Jack Ma Yun, Joseph Chung Tsai and the Joinder Parties.]1

 

4. Subject to Section 5 of this Memorandum of Association, the objects for which the Company is established are restricted to the following:

 

  4.1 to hold shares, stock, debentures or other securities of or interest in Alibaba;

 

  4.2 to execute and issue promissory notes, and for that purpose to mortgage or charge the Company’s undertaking, property and uncalled capital or any part thereof, on such terms and conditions as may be thought expedient in support of any such obligations binding on the Company whether contingent or otherwise;

 

1  Definitions of terms that are cross-referenced to be inserted in full.


  4.3 to file or cause to be filed all Tax returns that are required to be filed by the Company and pay all Taxes payable by the Company which have become due pursuant to such Tax returns and pay all other Taxes, charges and assessments imposed upon it or its Assets or in relation to the Company’s franchise, income or businesses which have become due; and

 

  4.4 to do all such things as are incidental to or which the Company may think conducive to the attainment of the above objects or any of them.

 

5. Until the Final Payment Date, the objects for which the Company is established are restricted as follows:

 

  5.1 The Company will have no business, Assets or Liabilities other than as expressly specified in the Transaction Documents or customary obligations incidental to the maintenance of its existence;

 

  5.2 The Company will not (i) create, issue, incur, assume, become liable in respect of or suffer to exist any Liabilities except Liabilities pursuant to the Transaction Documents or Liabilities owed to an Affiliate of the Company and incurred by the Company for the sole purpose of prepayment or repayment of the IPCo Promissory Note in accordance with the terms thereof, provided that if the IPCo Promissory Note is not prepaid or repaid in full, such Indebtedness shall be subordinated to the Indebtedness under the IPCo Promissory Note on subordination terms and conditions subject to prior approval by the Independent Directors, (ii) create, incur, assume or suffer to exist any Lien upon any of its Assets other than (A) the Legal Mortgage of Arrow Shares, (B) the IPCo Asset Charge and (C) inchoate Liens imposed by Law incurred in the ordinary course of business (on assets other than the Arrow Shares) not yet due and payable and which do not relate to Indebtedness, (iii) Transfer any of its Assets, directly or indirectly, (iv) declare or make or resolve to declare or make any Distributions, either directly or indirectly, other than payments to Arrow under the IPCo Promissory Note, (v) make any advance, loan, extension of credit (by way of guarantee or otherwise) or capital contribution to, or purchase any capital stock, bonds, notes, debentures or other debt securities of, or any assets constituting a business unit of, or make any other investment in, any Person except marketable securities, short-term instruments and other cash equivalents and Indebtedness issued or guaranteed by the United States or the PRC, (vi) other than entering into the Transaction Documents, enter into, engage in, or undertake any activity, business or transaction, including any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Person other than as expressly permitted by the Transaction Documents, (vii) enter into any transaction with an Affiliate other than the Transaction Documents, (viii) employ, directly or indirectly, any Person or (ix) amend or modify its organizational documents, including its Memorandum of Association or Articles of Association, without approval of the Independent Directors.

 

  5.3 Notwithstanding the foregoing, this Section 5 shall not prohibit or otherwise restrict the Company from maintaining its corporate existence in the Cayman Islands or performing its obligations under the Transaction Documents.

 

6. The liability of the each of the Members is limited to the amount unpaid on such Member’s shares.

 

7. The authorised share capital of the Company is Fifty Thousand United States Dollars (US$50,000.00) consisting of 50,000 ordinary shares of a par value of US$1.00 each.

 

2


Exhibit F

FORM OF

ARTICLES OF ASSOCIATION OF APN Ltd.

CONTENTS

 

INTERPRETATION

     1   

REGISTERED AND OTHER OFFICES

     7   

SHARE RIGHTS

     7   

ISSUE OF SHARES

     8   

SHARE CERTIFICATES

     8   

NON-RECOGNITION OF TRUSTS

     9   

LIEN ON SHARES

     9   

CALLS ON SHARES

     10   

FORFEITURE OF SHARES

     12   

REGISTER OF MEMBERS

     14   

TRANSFER OF SHARES

     14   

TRANSMISSION OF SHARES

     15   

INCREASE OF CAPITAL

     17   

ALTERATION OF CAPITAL

     17   

GENERAL MEETINGS

     18   

WRITTEN RESOLUTIONS OF MEMBERS

     18   

APPOINTMENT AND REMOVAL OF DIRECTORS

     19   

RESIGNATION AND DISQUALIFICATION OF DIRECTORS

     20   

ALTERNATE DIRECTORS

     20   

DIRECTORS’ FEES AND EXPENSES

     21   

DIRECTORS’ INTERESTS

     22   

POWERS AND DUTIES OF DIRECTORS

     22   

DELEGATION OF DIRECTORS’ POWERS

     23   

PROCEEDINGS OF DIRECTORS

     24   

OFFICERS

     26