股东协议-英文版

SHAREHOLDERS AGREEMENT

by and among A B,

C

the Management Members

(as defined herein)

and

certain other shareholders https://www.sodocs.net/doc/b29464280.html, Corporation

Dated as of I, 2005

Table of Contents

1、Definitions

2、Corporate Governance

3、Matters that Require Approval of the Board or Shareholders

4、Restrictions on Share Transfer

5、Voting Agreement

6. Preemptive Rights

7. Representations and Warranties

8. Covenants

9. Governing Law and Dispute Resolution

10. Miscellaneous

SCHEDULE A - FINANCIAL INVESTORS

SCHEDULE B - B COMPETITORS

SCHEDULE C - SHARE OWNERSHIP

SHAREHOLDERS AGREEMENT

THIS SHAREHOLDERS AGREEMENT (this “Agreement”)，dated as of I，2005 is

made and entered into by and among A a Cayman Islands A (the “A”)，B，a Delaware corporation (“B”)，C，a Japanese corporation (“SOFTBANK”)，and certain members of the management of the A named on the signature page hereof, in their sole capacity as shareholders of the A (collectively，the “Management Members” and individually, a “Management Member*’）and certain other shareholders named on the signature page hereof (such other shareholders, B, Cand the Management Members are referred to herein collectively as the “Shareholders” and individually as a “Shareholder*’).

W]IN ESS EIH:

WHEREAS, pursuant to the terms and conditions of the Stock Purchase and Contribution Agreement (the “Purchase and Contribution Agreement”)，dated as of August 10, 2005, by and between the A and B，B agreed to transfer the China Business and pay the Cash Consideration to the A in consideration of the allotment and issuance of the Primary Shares by the A to B; and

WHEREAS, the A, the Management Members, B and SOFTBANK, and certain of their respective Affiliates, are parties to one or more Ancillary Agreements as contemplated by the Purchase and Contribution Agreement;

WHEREAS, the execution and delivery of this Agreement by the Shareholders is a condition precedent to the consummation of the transactions contemplated by the Purchase and Contribution Agreement.

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

1. Definitions. For purposes of this Agreement, the following terms have the indicated meanings, and capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Purchase and Contribution Agreement. All references to Sections and Schedules shall be deemed references to Sections of and Schedule to this Agreement unless the context shall otherwise require.

Additional Securities: as defined in Section 6.1(a).

Affiliate: of a Person means another Person that directly or indirectly through one or

more intermediaries, controls, is controlled by, or is under common control with, the first Person, including but not limited to a Subsidiary of the first Person a Person of which the first Person is a Subsidiary, or another Subsidiary of a Person of which the first Person is also a Subsidiary. “Control”（including the terms “controlled by1’ and “under common control with”）means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of voting securities, by contract or other arrangement, as trustee or executor, or otherwise.

Aggregate Remaining Shares: as defined in Section 4.3(d).

Board: the board of directors of the A.

Cause: with respect to a person, (i) gross neglect or failure to perform the duties and responsibilities of such person’s office, (jj) failure or refusal to comply in any ma terial respect with material and lawful policies and directives of the A resulting in material harm to the A and its Affiliates, taken as a whole, (m) material breach of any contract or agreement between such person and the A, or material breach of any statutory duty or any other obligation that such person owes to the A and/or its Affiliates resulting in material harm to the A and

its Affiliates, taken as a whole, (iv) commission of an act of fraud, theft or embezzlement against the A and/or its Affiliates or involving their properties or assets, or (v) conviction or nolo contendere plea with respect to any felony or crime of moral turpitude, provided, however, that with respect to any occurrence of any of (i), (ii) or (iii), such person shall have been given not less than 30 days1 written notice by the Board of the Board's determination (such determination being made independent of such person, if such person is a Board member) that such event had occurred, and such person shall have until the end of such 30 day period following receipt of such notice to rectify or cure such occurrence if such occurrence is curable before any action premised upon a determination of Cause can be taken.

Change of Control Transactions:⑻ the direct or indirect acquisiWon (except for transactions described in clause (b) of this paragraph below), whether in one or a series of transactions by any person (as such term is used in Section 13(d) and Section 14(d)(2) of

the Exchange Act), or related persons constituting a group (as such term is used in Rule 13d-5 under the Exchange Act), of (i) beneficial ownership (as defined in the Exchange Act) of issued and outstanding shares of capital stock of the A, the result of which acquisition is that such person or such group possesses 25% or more of the combined voting power of all then-issued and outstanding share capital of the A, or (n) the power to elect, appoint, or cause the election or appointment of at least a majority of the members of the Board (or such other governing body in the event the A or any successor entity is not a corporation); (b) a merger, consolidation or other reorganization or recapitalization of the A with a person or a direct or indirect subsidiary of such person, provided that the result of such merger, consolidation or other reorganization or recapitalization, whether in one or a series of related transactions, is that the holders of the outstanding shares of capital stock of the A immediately prior to such consummation do not possess, whether directly or indirectly, immediately after the consummation of such transaction, in excess of 75% of the combined voting power of all then-issued and outstanding capital stock of the merged, consolidated, reorganized or recapitalized person, its direct or indirect parent, or the surviving person of such transaction; or (c) a sale or disposition, whether in one or a series of transactions, of all or substantially all of the A’s assets.

Claimant: as defined in Section 9.2(b).

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

Compliance Officers: as defined in Section 8.3.

Confidential Information: information delivered by a party to another party in connection with the transactions contemplated by or otherwise pursuant to this Agreement 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, 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 Person acting on such party’s behalf, or (c) otherwise becomes known to such receiving party other than through disclosure by the delivering party or any Person with a duty to keep such information confidential.

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

Core Businesses: the core businesses of the A relating to search, portal, consumer e-commerce, business-to-business and Alipay.

Equity Securities: any Ordinary Shares and any other equity securities of the A, however described or whether voting or non-voting, including securities convertible or exchangeable into, and options, warrants or other rights to acquire, any equity interests of the A.

Exchange Act: the United States Securities Exchange Act of 1934, as amended.

Exempted Securities: (j) issuance of options pursuant to any option plan or restricted shares pursuant to any restricted share plan for compensatory purposes (which may cover directors, officers, employees and/or consultants) which was either (x) approved by the Board prior to the Closing or (y) approved by the Board (including the approval of the B Designee and the CDesignee) on or subsequent to the Closing, and the issuance of the Ordinary Shares underlying such options; (ji) issuance of Ordinary Shares upon exercise of any option, rights, warrants or other convertible instruments which either existed on the Closing Date or the issuance of which was previously subject to preemptive rights; and (iii) issuance of Ordinary Shares in connection with a share dividend,

share split or similar event made or paid pro rata on all, and solely with respect to, Ordinary Shares.

Expenses: as defined in Section 2.7(a).

Family Members: 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.

Financial Investors: the financial investors of the A as set forth in Schedule A hereto.

Fully Diluted Basis: based on the total number of shares of the relevant class of stock or type of equity interest that would be outstanding on the relevant date assuming the exercise of all options, warrants and other rights to acquire such relevant class of shares or type of equity interest (including reserved but unissued options or other equity interests

issuable pursuant to option plans or other equity plans and without regard to exercisability, vesting or similar provisions and restrictions thereof) and the conversion or exchange of all securities convertible into or exchangeable for such shares or equity interest (without regard to exercisability, vesting or similar provisions and restrictions thereof).

GAAP: United States generally accepted accounting principles, applied on a consistent basis.

Governmental Approval: any Consent of any Governmental Authority.

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

Guarantee: any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing in any manner any Indebtedness or other obligation of any other Person and any obligation, direct or indirect, contingent or otherwise, of any Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep well, to purchase assets, goods, securities or services, to take or pay, or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part).

ICC: as defined in Section 9.2(a).

ICP A: means a Person controlled via contractual relationships similar to those governing any of the China ICP Companies, Zhejiang Alibaba E-Commerce Co., Ltd or Zhejiang Tao Bao Network Co., Ltd.

Indebtedness: as applied to any Person, means, without duplication, (a) all indebtedness for borrowed money, (b) all obligations evidenced by a note, bond,

debenture, letter of credit, draft or similar instrument, (c) that portion of obligations with respect to capital leases that is properly classified as a liability on a balance sheet in conformity with GAAP, (d) notes payable and drafts accepted representing extensions of credit, (e) any obligation owed for all or any part of the deferred purchase price of property or services, which purchase price is due more than six months from the date of incurrence of the obligation in respect thereof, and (f) all indebtedness and obligations of the types described in the foregoing clauses (a) through (e) to the extent secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person.

Indemnifiable Amounts: as defined in Section 2.7(a).

Indemnitee: as defined in Section 2.7(a).

IPO: a firm-commitment underwritten initial public offering by the A of its Ordinary Shares on an internationally recognized stock exchange or quotation system approved by the Board with gross proceeds to the A of at least US$50 million.

JM: Jack Ma Yun, the founder and the current Chairman of the Board and the Chief Executive Officer of the A.

Management Member(s): as defined in the first paragraph to this Agreement.

Management Member Desiqnee(s): as defined in Section 2.3.

Management Member Economic Interest Percentage: the quotient of (x) the number of Ordinary Shares owned by a Management Member (excluding those underlying unexercised stock options or warrants or restricted shares subject to vesting or repurchase) divided by (y) the total number of Ordinary Shares outstanding at the relevant time.

Management Members' Representative: as defined in Section 10.2(a).

Memorandum and Articles: the Memorandum and Articles of Association of the A, to be adopted and approved by the shareholders of the A on or prior to the Closing Date and filed with the appropriate Governmental Authority on the Closing Date, in the form of Exhibit A attached to the Purchase and Contribution Agreement.

Offer Notice: as defined in Section 4.3(a).

Offer Price: as defined in Section 4.3(a).

Offeree Remaining Shares: as defined in Section 4.3(d).

Offerees: as defined in Section 4.3(a).

Ordinary Shares: the ordinary shares of the A, par value US$0.0001 per share.

Other Shares: any shares of capital stock of the A that are not Ordinary Shares including without limitation, any securities that by their terms are, directly or through a series of one or more steps, convertible into or exercisable or exchangeable for any such shares of capital stock.

own, owned, ownership and the l ike: as “owned” is defined in Section 2.9.

Parent Shareholder: as defined in Section 2.2(c).

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

Preemptive Rights: as defined in Section 6.1(a).

Preemptive Share Amount: as defined in Section 6.1(d).

Purchase and Contribution Agreement: as defined in the recitals of this Agreement.

Purchase Price: as defined in Section 6.1(e).

Purchaser: as defined in Section 4.4(a)

Qualifying Sale: as defined in Section 4.4(a).

Reiving Shareholder: as defined in Section 2.2(c).

Replacement Director: as defined in Section 2.5(d).

Request: as defined in Section 9.2(b).

Respondent: as defined in Section 9.2(b).

Rule 144: Rule 144 under the United States Securities Act of 1933, as amended.

Sale Notice: as defined in Section 4.4(a).

Sale Price: as defined in Section 4.4(a).

Sale Shares: as defined in Section 4.4(a).

Second Round Offeree: as defined in Section 4.3(d).

Senior Equity Securities: any Equity Securities which, with respect to voting rights, dividend rights or rights on liquidation, dissolution, winding up or in any other respect, rank senior to, or have any other rights in preference of, the Ordinary Shares, now or hereafter

authorized by the A.

Shareholder(s): as defined in the first paragraph of this Agreement.

Shareholders Meeting: as defined in Section 2_1.

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

CAffiliate: means, with respect to SOFTBANK, another Person that directly or indirectly through one or more intermediaries, is controlled by, or under common control with, SOFTBANK, including but not limited to a Subsidiary of SOFTBANK, provided, however, that, in addition to such control or common control: (1.) Ceither (a) owns, directly or indirectly, share

capital or other equity interests representing more than 75% of the outstanding voting stock or other equity interests (disregarding, for the avoidance of doubt, any carried interest or similar economic participation rights of any Person formed as a fund, provided such interest or rights do not confer voting rights as to the governance of such Person on the holder thereof) or (b) owns, directly or indirectly, share capital or other equity interests representing more than 50% of such outstanding voting stock or other equity interests and has the right to designate at least two-thirds (2/3) of the directors of such Person; and (2) no B Competitor owns any voting stock or other equity interests in such Person (provided further, however, that no change to the list of B Competitors that results in the inclusion of new entities to Schedule B shall disqualify any Person from treatment as a CAffiliate to the extent that such newly added entity owns any voting stock or other equity interests in such Person at the time it is added to Schedule B). “Control,” for purposes of this definition, has the meaning set forth in the definition of Affiliate.

CDesianee(s): as defined in Section 2.3.

CEconomic Interest Percentage: the quotient of (x) the number of Ordinary Shares owned by Cdivided by (y) the total number of Ordinary Shares outstanding at the relevant time.

Subject Shares: as defined in Section 4.3(a).

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