Stock Purchase Agreement - Yahoo! Inc. and SOFTBANK Holdings Inc.
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STOCK PURCHASE AGREEMENT
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by and between
YAHOO! INC.
(the "COMPANY")
and
SOFTBANK HOLDINGS INC.
(the "PURCHASER")
Dated as of July 7, 1998
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YAHOO! INC.
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made and entered into as of July 7, 1998,
by and among YAHOO! INC., a California corporation (the "COMPANY"), and
SOFTBANK Holdings Inc., a Delaware corporation (the "PURCHASER").
THE PARTIES AGREE AS FOLLOWS:
ARTICLE I
AUTHORIZATION AND SALE OF STOCK
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Section 1.1 AUTHORIZATION OF THE SHARES. On or before the Closing Date
(as defined in Section 2.1 below), the Company will have authorized the
issuance and sale of 1,363,440 shares of Common Stock of the Company, par value
$0.00067 per share (the "SHARES"), pursuant to this Agreement.
Section 1.2 SALE OF THE SHARES. Subject to the terms and conditions
hereof, on the Closing Date the Company will issue and sell to the Purchaser,
and the Purchaser will purchase from the Company, the Shares at a purchase
price of $183.36 per share for a total purchase price of $250,000,358.40.
ARTICLE II
CLOSING DATE; DELIVERY
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Section 2.1 CLOSING DATE. The consummation of the purchase and sale of
the Shares hereunder (the "CLOSING") shall be held at the offices of Venture
Law Group, A Professional Corporation, 2800 Sand Hill Road, Menlo Park,
California 94025 at 10:00 a.m., on July 14, 1998 or at such other time and
place as the Company and the Purchaser mutually agree upon in writing
(the "CLOSING DATE").
Section 2.2 DELIVERY. At the Closing, the Purchaser shall deliver
payment of the purchase price for the Shares by check or by wire transfer.
Within three (3) days after the Closing Date, the Company shall deliver to the
Purchaser certificate(s) representing the Shares.
Section 2.3 CONSUMMATION OF CLOSING. All acts, deliveries and
confirmations comprising the Closing regardless of chronological sequence shall
be deemed to occur contemporaneously and simultaneously upon the occurrence of
the last act, delivery or confirmation of the Closing and none of such acts,
deliveries or confirmations shall be effective unless and until the last of
same shall have occurred.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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The Company hereby represents and warrants to the Purchaser, at and as of
the date of this Agreement and at and as of the Closing Date, as follows:
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Section 3.1 ORGANIZATION The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of California
and has all requisite corporate power to own, lease and operate its property
and to carry on its business as now being conducted and is duly qualified or
licensed to do business and is in good standing in each jurisdiction in which
the failure to be so qualified or licensed would have a material adverse effect
on the business, assets (including intangible assets), liabilities, condition
(financial or otherwise), prospects, property or results or operations (a
"MATERIAL ADVERSE EFFECT") of the Company.
Section 3.2 VALID ISSUANCE OF COMMON STOCK. The Shares, when issued and
paid for in accordance with this Agreement will be duly authorized, validly
issued, fully paid, and non-assessable and issued in compliance with all
applicable federal or state securities laws.
Section 3.3 AUTHORITY; NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) The Company has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. The execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company, and constitutes
the valid and binding obligation of the Company, enforceable in accordance with
its terms, except to the extent that enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
(b) The execution and delivery by the Company of this Agreement does
not, and consummation of the transactions contemplated by this Agreement will
not, (i) conflict with, or result in any violation or breach of any provision
of the Articles of Incorporation or Bylaws of the Company, (ii) result in any
violation or breach of, or constitute (with or without notice or lapse of time,
or both) a default (or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any material benefit) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, contract or other agreement, instrument or obligation to which the
Company is a party or by which any of its properties or assets may be bound, or
(iii) conflict or violate any permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to the
Company or any of its properties or assets, except in the case of (ii) and
(iii) for any such conflicts, violations, defaults, terminations, cancellations
or accelerations which would not have a Material Adverse Effect on the Company
and its subsidiaries, taken as a whole.
(c) No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality ("GOVERNMENTAL
ENTITY") is required by or with respect to the Company in connection with the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, except for (i) such consents, approvals,
orders, authorizations, registrations, declarations and filings as may be
required under applicable federal and state
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securities laws and the laws of any foreign country, and (iii) such other
consents, authorizations, filings, approvals and registrations which, if not
obtained or made, could be expected to have a Material Adverse Effect on the
Company and its subsidiaries, taken as a whole.
Section 3.4 COMMISSION FILINGS; FINANCIAL STATEMENTS.
(a) The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") and made available to the Purchaser or its
representatives all forms, reports and documents required to be filed by the
Company with the Commission since December 31, 1997 (collectively, the "COMPANY
COMMISSION REPORTS"). The Company Commission Reports (i) at the time filed,
complied in all material respects with the applicable requirements of the
Securities Act of 1933, as amended, (the "SECURITIES ACT"), and the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), as the case may be, and
(ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(b) Each of the financial statements (including, in each case, any
related notes) contained in the Company Commission Reports, including any such
Report filed after the date of this Agreement until the Closing, complied as to
form in all material respects with the applicable published rules and
regulations of the Commission with respect thereto, was prepared in accordance
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes to
such financial statements or, in the case of unaudited statements, as permitted
by Form 10-Q of the Commission) and fairly presented the consolidated financial
position of the Company and its subsidiaries as at the respective dates and the
consolidated results of its operations and cash flows for the periods
indicated, except that the unaudited interim financial statements were or are
subject to normal and recurring year-end adjustments which were not or are not
expected to be material in amount.
Section 3.5 COMPLIANCE WITH LAWS. The Company has complied with, is
not in violation of, and has not received any notices of violation with respect
to, any federal, state or local statute, law or regulation with respect to the
conduct of its business, or the ownership or operation of its business,
including but not limited to statutes, laws or regulations relating to the
protection of the environment or concerning the handling, storage, disposal or
discharge of toxic materials (collectively, "ENVIRONMENTAL LAWS"), except for
failures to comply or violations which would not have a Material Adverse Effect
on the Company and its subsidiaries, taken as a whole.
Section 3.6 SHAREHOLDERS CONSENT. No consent or approval of the
shareholders of the Company is required or necessary for the Company to enter
into this Agreement or to consummate the transactions contemplated hereby and
thereby.
Section 3.7 LITIGATION. Except as otherwise disclosed in the Company
Commission Reports, (i) there is no private or governmental action, suit,
proceeding, claim, arbitration or
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investigation pending before any agency, court or tribunal, foreign or
domestic, or, to the knowledge of the Company or any of its subsidiaries,
threatened against the Company or any of its properties or any of its
officers or directors (in their capacities as such), which, if determined
adversely to the Company, would have a Material Adverse Effect on the Company
and its subsidiaries, taken as a whole, and (ii) there is no judgment, decree
or order against the Company, or, to the knowledge of the Company, any of its
respective directors or officers (in their capacities as such) relating to
the business of the Company, the presence of which would have Material
Adverse Effect with respect the Company and its subsidiaries, taken as a
whole.
Section 3.8 INTELLECTUAL PROPERTY. Except as disclosed in the Company
Commission Reports, the Company owns or possesses, or can acquire on
commercially reasonable terms, adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights, technology,
software, know-how and trade secrets necessary to conduct the business now or
proposed to be conducted by the Company, and the Company has not received any
notice of infringement of or conflict with (and knows of no such infringement
of or conflict with) asserted rights of others with respect to any patents,
trademarks, service marks, trade names, copyrights, technology, know-how or
trade secrets that would result in a Material Adverse Effect; and, to the
Company's knowledge, the discoveries, inventions, products, services or
processes used in the Company's business do not, infringe or conflict with any
right or patent of any third party, or any discovery, invention, product or
process which is the subject of a patent application filed by any third party,
which infringement or conflict would result in a Material Adverse Effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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The Purchaser hereby represents and warrants to the Company, at and as of
the date of this Agreement and at and as of the Closing, as follows:
Section 4.1 AUTHORITY. The Purchaser is a corporation and is duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Purchaser has now, and will have at the Closing Date, all
requisite legal and corporate power to enter into this Agreement, to purchase
the Shares hereunder, and to perform its obligations under the terms of this
Agreement.
Section 4.2 AUTHORIZATION. All corporate action on the part of the
Purchaser necessary for the purchase of the Shares and the performance of the
Purchaser's obligations hereunder has been taken or will be taken prior to the
Closing Date. This Agreement when executed and delivered by the Purchaser will
constitute a valid and legally binding obligation of the Purchaser, enforceable
in accordance with its terms, except as enforcement may be limited by
applicable bankruptcy laws or other similar laws affecting creditors' rights
generally, and except insofar as the availability of equitable remedies may be
limited.
Section 4.3 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made
with the Purchaser in reliance upon the Purchaser's representation to the
Company, which by the
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Purchaser's execution of this Agreement, the Purchaser hereby confirms, that
the Shares to be acquired by the Purchaser will be acquired for investment
for the Purchaser's own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and that the
Purchaser has no present intention of selling, granting any participation in,
or otherwise distributing the same. By executing this Agreement, the
Purchaser further represents that the Purchaser does not presently have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participation to such person or to any third person, with
respect to any of the Shares. The Purchaser has not been formed for the
specific purpose of acquiring the Shares.
Section 4.4 INVESTMENT EXPERIENCE. Purchaser is an "accredited
investor" as defined in Rule 501(a) under the Securities Act. Purchaser is
aware of the Company's business affairs and financial condition and has had
access to and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Shares. Purchaser has such
business and financial experience as is required to give it the capacity to
protect its own interests in connection with the purchase of the Shares.
Purchaser is not a "broker" or a "dealer" as defined in the Exchange Act.
Section 4.5 RESTRICTED SECURITIES. The Purchaser understands that the
Shares are characterized as "restricted securities" under applicable U.S.
federal and state securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that, pursuant to
these laws and applicable regulations, the Purchaser must hold the Shares
indefinitely unless they are registered with the Securities and Exchange
Commission and qualified by state authorities, or an exemption from such
registration and qualification requirements is available. The Purchaser further
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Shares, and
on requirements relating to the Company which are outside of the Purchaser's
control, and which the Company is under no obligation and may not be able to
satisfy. In this connection, Purchaser represents that it is familiar with SEC
Rule 144, as presently in effect, and understands the resale limitations
imposed thereby and by the Securities Act.
Section 4.6 LEGENDS. The Purchaser understands that the Shares, and
any securities issued in respect thereof or exchange therefor, may bear one or
all of the following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933."
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(b) Any legend required by the Blue Sky laws of any state to
the extent such laws are applicable to the shares represented by the
certificate so legended.
ARTICLE V
CONDITIONS TO CLOSING
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Section 5.1 CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The obligation
of the Purchaser to purchase the Shares at the Closing is subject to the
fulfillment on or prior to the Closing Date of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES CORRECT; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in Article
III hereof shall be true and correct when made, and shall be true and correct
on the Closing Date with the same force and effect as if they had been made on
and as of such date, subject to changes contemplated by this Agreement; and the
Company shall have performed all obligations and conditions herein required to
be performed or observed by it on or prior to the Closing Date.
(b) COMPLIANCE CERTIFICATE. The President of the Company shall
deliver to the Purchaser at the Closing a certificate certifying that the
conditions specified in Section 5.1(a) have been fulfilled and stating that
there shall have been no material adverse change in the business, operations,
properties, assets or financial condition of the Company since the date of this
Agreement.
(c) OPINION OF COMPANY'S COUNSEL. The Purchaser shall have received
from Venture Law Group, A Professional Corporation, counsel to the Company, an
opinion addressed to the Purchaser, dated the Closing Date, substantially in
the form of EXHIBIT A attached hereto.
(d) QUALIFICATIONS. The offer and sale of the Shares to the
Purchaser pursuant to this Agreement shall be exempt from qualification under
the California Corporate Securities Law of 1968, as amended. All other
authorizations, approvals or permits of any other governmental authority that
are required in connection with the lawful issuance and sale of the Shares
shall have been duly obtained and shall be effective on and as of the Closing
Date.
(e) REGISTRATION RIGHTS. The Second Amended and Restated Investor
Rights Agreement dated March 12, 1996 shall have been amended to include the
Shares as Registrable Securities (as defined therein).
Section 5.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's
obligation to issue and sell the Shares at the Closing is subject to the
fulfillment on or prior to the Closing Date of each of the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES CORRECT; PERFORMANCE OF
OBLIGATIONS. The representations and warranties of the Purchaser in Article IV
hereof shall be true and correct when made, and shall be true and correct on
the Closing Date with the same force and effect as if they had been made on and
as of such date; and the Purchaser shall have performed all obligations and
conditions herein required to be performed by it on or prior to the Closing
Date.
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(b) QUALIFICATIONS. The offer and sale of the Shares to the
Purchaser pursuant to this Agreement shall be exempt from qualification under
the California Corporate Securities Law of 1968, as amended. All other
authorizations, approvals or permits of any other governmental authority that
are required in connection with the lawful issuance and sale of the Shares
shall have been duly obtained and shall be effective on and as of the Closing
Date.
ARTICLE VI
MISCELLANEOUS
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Section 6.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of California.
Section 6.2 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive the closing of the transactions
contemplated hereby.
Section 6.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
Section 6.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire
understanding and agreement among the parties with regard to the subjects
hereof and thereof. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Purchaser.
Section 6.5 NOTICES AND OTHER COMMUNICATIONS. Every notice or other
communication required or contemplated by this Agreement by either party shall
be delivered either by (i) personal delivery, (ii) postage prepaid return
receipt requested registered or certified mail or the equivalent of registered
or certified mail under the laws of the country where mailed, (iii) nationally
recognized overnight courier, such as Federal Express or UPS, or (iv) facsimile
with a confirmation copy sent simultaneously by postage prepaid, return receipt
requested, registered or certified mail, in each case addressed to the Company
or the Purchaser as the case may be at the following address:
To the Company: Yahoo! Inc.
3420 Central Expressway
Santa Clara, CA 95051
Attn: Timothy Koogle
Facsimile: (408) 731-3301
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With a copy at the same address to the attention of the General Counsel
and Secretary, and a copy to:
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
Attn.: James L. Brock
Facsimile: (415) 233-8386
To the Purchaser: SOFTBANK Holdings Inc.
10 Langley Road, Suite 403
Newton Center, MA 02159
Attn: Ronald D. Fisher
Facsimile: (617) 928-9301
With a copy to: Sullivan & Cromwell
125 Broad Street
New York, NY 10004
Attn: Stephen A. Grant
Facsimile: (212) 558-3588
or at such other address as the intended recipient previously shall have
designated by written notice to the other party (with copies to counsel as may
be indicated on the signature page). Notice by registered or certified mail
shall be effective on the date it is officially recorded as delivered to the
intended recipient by return receipt or equivalent, and in the absence of such
record of delivery, the effective date shall be presumed to have been the fifth
(5th) business day after it was deposited in the mail. All notices delivered
in person or sent by courier shall be deemed to have been delivered to and
received by the addressee and shall be effective on the date of personal
delivery; notices delivered by facsimile with simultaneous confirmation copy by
registered or certified mail shall be deemed delivered to and received by the
addressee and effective on the date sent. Notice not given in writing shall be
effective only if acknowledged in writing by a duly authorized representative
of the party to whom it was given.
Section 6.6 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any holder of any Shares, upon any breach or
default of the Company under this Agreement, shall impair any such right, power
or remedy of such holder nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach
or default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any holder of any breach or default under this
Agreement, or any waiver on the part of any holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent
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specifically set forth in such writing. All remedies either under
this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
Section 6.7 SEPARABILITY OF AGREEMENTS; SEVERABILITY OF THIS AGREEMENT.
In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 6.8 FINDER'S FEES.
(a) The Company (i) represents and warrants that it has retained no
finder or broker in connection with the transactions contemplated by this
Agreement and (ii) hereby agrees to indemnify and to hold the Purchaser
harmless of and from any liability for commission or compensation in the nature
of a finder's fee to any broker or other person or firm (and the costs and
expenses of defending against such liability or asserted liability) for which
the Company, or any of its employees or representatives, is responsible.
(b) The Purchaser (i) represents and warrants that it has retained
no finder or broker in connection with the transactions contemplated by this
Agreement and (ii) hereby agrees to indemnify and to hold the Company harmless
of and from any liability for any commission or compensation in the nature of a
finder's fee to any broker or other person or firm (and the costs and expenses
of defending against such liability or asserted liability) for which the
Purchaser, or any of its employees or representatives, is responsible.
Section 6.9 CALIFORNIA CORPORATE SECURITIES LAW. THE SALE OF THE
SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH
THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA, AND THE ISSUANCE
OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION
THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES
IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF THE
CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE
EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE
IS SO EXEMPT.
Section 6.10 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. Execution and delivery of this Agreement by
exchange of facsimile copies bearing the facsimile signature of a party hereto
shall constitute a valid and binding execution and delivery of this Agreement
by such party. Such facsimile copies shall constitute enforceable original
documents.
Section 6.11 ATTORNEYS' FEES. If any action or proceeding shall be
commenced to enforce this Agreement or any right arising in connection with
this Agreement, the prevailing party in such action or proceeding shall be
entitled to recover from the other party, the reasonable attorneys' fees, costs
and expenses incurred by such prevailing party in connection with such action
or proceeding or negotiation to avoid such action or proceeding.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth in the heading hereof.
YAHOO! INC.
By: /s/ TIMOTHY KOOGLE
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Timothy Koogle, President & CEO
SOFTBANK HOLDINGS INC.
By: /s/ RONALD D. FISHER
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Ronald D. Fisher, Vice Chairman
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