Investor Rights Agreement [Amendment] - Yahoo! Inc., SOFTBANK Holdings Inc. and Sequoia Capital
YAHOO! INC.
AMENDMENT TO SECOND AMENDED AND RESTATED
INVESTOR RIGHTS AGREEMENT
THIS AMENDMENT TO SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
(the "AMENDMENT") is made and entered into as of July 7, 1998, by and among
Yahoo! Inc., a California corporation (the "COMPANY"), and the undersigned
holders (the "HOLDERS") of the outstanding Registrable Securities (as defined
in the Rights Agreement) listed on EXHIBIT A hereto to amend the Second Amended
and Restated Investor Rights Agreement dated March 12, 1996 ("RIGHTS
AGREEMENT") by and among the Company and certain persons and entities listed on
SCHEDULE A, SCHEDULE B and SCHEDULE C thereto. Capitalized terms not defined
herein shall have the meaning assigned in the Rights Agreement.
RECITALS
A. Pursuant to the terms of the Rights Agreement, any provision of the
Rights Agreement may be amended, waived, discharged or terminated upon the
written consent of the Company and the holders of a majority of the outstanding
Registrable Securities.
B. Concurrent with the execution of this Amendment, the SOFTBANK
Holdings, Inc., a Holder, is purchasing from the Company shares of the
Company's Common Stock pursuant to a Stock Purchase Agreement of even date
herewith (the "STOCK PURCHASE AGREEMENT").
C. In connection with such investment, the undersigned Holders
constituting the holders of a majority of the outstanding Registrable
Securities desire to amend and restate certain provisions of the Rights
Agreement as set forth herein.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Section 2.1 (b) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"(b) The term "REGISTRABLE SECURITIES" means:
(i) The shares of Common Stock issuable or issued upon
conversion of the Series A Shares, Series B Shares and Series C Shares (the
Series A Shares, the Series B Shares, the Series C Shares and the SOFTBANK
Shares are sometimes collectively referred to as the "STOCK"); and
(ii) 1,363,440 shares of Common Stock (the "SOFTBANK
SHARES") issued to SOFTBANK Holdings, Inc. ("SOFTBANK"), pursuant to the Stock
Purchase Agreement dated July 7, 1998 by and between the Company and SOFTBANK.
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(iii) Any other shares of Common Stock of the Company issued
as (or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, the Stock, excluding in all cases,
however, any Registrable Securities sold by a person in a transaction in which
his or her rights under this Agreement are not assigned;
PROVIDED, HOWEVER, that Common Stock or other securities shall only be treated
as Registrable Securities if and so long as they have not been (A) sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, or (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such sale."
2. Section 2.1 is amended by the addition of the following subsection at
the end of Section 2.1:
"(i) The term "Initial Public Offering" means the initial
offering to the public of securities of the Company."
3. Section 2.2(a) of the Rights Agreement is hereby amended and restated
in its entirety as follows:
"2.2 REQUESTED REGISTRATION.
(a) If the Company shall receive at any time a written request
from the Holders of Registrable Securities having market value (based on the
average closing price of the Common Stock on the principal trading exchange or
system for the ten (10) trading days preceding the date of the request)
exceeding three hundred million dollars ($300,000,000) that the Company file a
registration statement under the Securities Act for the sale of Registrable
Securities for an aggregate public offering price of at least ten million
dollars ($10,000,000), the Company shall notify within ten (10) days of receipt
thereof, in writing, all Holders of Registrable Securities of such request, and
shall use its best efforts to effect as soon as practicable the registration
under the Act of all Registrable Securities which the Holders request to be
registered within twenty (20) days of the mailing of such notice by the Company
in accordance with Section 5.5."
4. Except as provided herein, the Rights Agreement shall remain in full
force and effect. If one or more provisions of this Amendment are held to be
unenforceable under applicable law, such provision shall be excluded from this
Amendment and the balance of this Amendment shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
5. Nothing in this Amendment, express or implied, is intended to confer
upon any party, other than the parties hereto, and their respective successors
and assigns, any rights, remedies, obligations or liabilities under or by
reason of this Amendment, except as expressly provided herein.
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6. This Amendment shall be governed by and construed under the laws of
the State of California in the United States of America as applied to
agreements among California residents entered into and to be performed entirely
within California.
7. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Amendment.
COMPANY:
YAHOO! INC.
By: /s/ TIMOTHY KOOGLE
-------------------------------
Timothy Koogle, President & CEO
HOLDERS:
SOFTBANK HOLDINGS INC.
By: /s/ RONALD D. FISHER
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Ronald D. Fisher, Vice Chairman
SEQUOIA CAPITAL VI
By: /s/ MICHAEL MORITZ
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Name: Michael Moritz
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Title: General Partner
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SEQUOIA TECHNOLOGY PARTNERS VI
By: /s/ MICHAEL MORITZ
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Name: Michael Moritz
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Title: General Partner
-------------------------------
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EXHIBIT A
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LIST OF HOLDERS
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SOFTBANK Holdings Inc.
846 University Avenue
Norwood, MA 02062-2666
cc: Stephen A. Grant, Esq.
Sullivan & Cromwell
125 Broad Street
New York, NY 10004
Sequoia Capital VI
3000 Sand Hill Road
Building 4, Suite 280
Menlo Park, California 94025
cc: Bradford F. Shafer, Esq.
Brobeck, Phleger & Harrison,
One Market, Spear Street Tower
San Francisco, CA 94105
Sequoia Technology Partners VI
3000 Sand Hill Road
Building 4, Suite 280
Menlo Park, California 94025