Exhibit 4.1
RESTRUCTURING AGREEMENT
THIS RESTRUCTURING AGREEMENT ("AGREEMENT") is entered into as of July 29,
1997 (the "EFFECTIVE DATE"), by and between:
(i) Yahoo! Inc., a California corporation ("YAHOO");
(ii) Visa Marketplace, Inc., a Delaware corporation ("VISA");
(iii) Visa International Service Association, a Delaware corporation ("VISA
INTERNATIONAL");
(iv) Sterling Payot Company, a Delaware corporation ("SPC"); and
(v) Sterling Payot Capital, L.P., a California limited partnership
("STERLING PAYOT", and together with Yahoo, Visa, Visa
International and SPC, the "PARTIES").
BACKGROUND
Yahoo, Visa and Sterling Payot are parties to a Limited Liability Company
Agreement dated as of August 26, 1996 (the "LLC AGREEMENT"), with respect to
the formation of Yahoo! MarketPlace, L.L.C., a Delaware limited liability
company (the "COMPANY"). (All capitalized terms not otherwise defined herein
shall have the meanings given them in the LLC Agreement.)
Yahoo, Visa International and the Company are parties to an Operating
Agreement dated as of August 26, 1996 (the "OPERATING AGREEMENT"), pursuant
to which Yahoo and Visa International entered into certain agreements
relating to the Company and its operations.
Visa International, Sterling Payot and SPC entered into a Yahoo!
MarketPlace Co-Investment Agreement dated as of March 27, 1997 (the
"Co-Investment Agreement") pursuant to which Visa International, Sterling
Payot and SPC entered into certain agreements relating to the Company.
Yahoo desires to purchase Visa's and Sterling Payot's respective
Percentage Interests in the Company, and each of Visa and Sterling Payot
desire to sell such Percentage Interests to Yahoo; and the Parties desire in
such regard that the Operating Agreement will be terminated.
Certain disputes and claims have arisen among the Parties with respect to
the interpretation of and the Parties' respective performance under the
Operating Agreement and the LLC Agreement; and the Parties desire to resolve
such disputes and claims, and to release each other from further liability
with respect thereto.
On this basis, and in consideration of the mutual agreements set forth in
this Agreement, the Parties have agreed as follows:
AGREEMENT
1. CONSIDERATION TO VISA GROUP.
1.1 ISSUANCE OF YAHOO COMMON STOCK. As full payment for the transfer to
Yahoo of Visa's and Sterling Payot's Percentage Interests, and in
consideration for all of Visa's and Sterling Payot's other obligations under
this Agreement, Yahoo has issued to Visa and Sterling Payot in the aggregate
the number of fully paid and non-assessable shares of Common Stock of Yahoo
(collectively, the "SHARES") equal to (i) twenty-two million five hundred
thousand dollars ($22,500,000), divided by (ii) the last sale price of the
Yahoo Common Stock on the NASDAQ Stock Market on the Effective Date (the
"CLOSING PRICE"). The total number of Shares shall be rounded down to the
nearest whole Share. The Shares shall be allocated as between Visa and
Sterling Payot in accordance with their written instructions.
Certificates representing the Shares will be delivered by Yahoo to Visa
and Sterling Payot within five (5) business days from the Effective Date.
1.2 ALLOCATION OF CONSIDERATION. The Parties agree that the total
consideration paid by Yahoo hereunder is allocated as follows: The purchase
of Percentage Interests from the Visa Group represents in the aggregate four
hundred fifty thousand dollars ($450,000), representing the return of their
initial capital contributions to the Company; and the resolution of claims,
the releases set forth herein, the termination of certain agreements and the
other obligations of Visa and Sterling Payot hereunder represents, in the
aggregate twenty-two million fifty thousand dollars ($22,050,000).
1.3 DEFINITION OF SHARE GROUPS. For the purposes of this Agreement, the
Shares shall be deemed to be in the following separate groups: "FIRST GROUP
SHARES" shall mean the number of Shares equal to $12,500,000 divided by the
Closing Price; "SECOND GROUP SHARES" shall mean the number of Shares equal to
$5,000,000 divided by the Closing Price; and "THIRD GROUP SHARES" shall mean
the number of Shares equal to $5,000,000 divided by the Closing Price; in
each case rounding down to the nearest whole share. In the event that as a
result of rounding the total of the First Group Shares, Second Group Shares
and Third Group Shares under the foregoing formulas does not equal the total
number of shares provided in Section 1.1, an appropriate adjustment will be
made to the number of First Group Shares. In each case, the number of such
Shares also shall be appropriately adjusted for any stock split, reverse
stock split, stock dividend, combination or similar event affecting the Yahoo
Common Stock after the Effective Date. The allocation of Shares among the
First Group Shares, Second Group Shares and Third Group Shares shall apply
pro rata to Shares held by Visa and Sterling Payot based upon the total
number of Shares initially issued to each of them.
2. DISPOSITION OF INTERESTS IN THE COMPANY AND RELATED MATTERS.
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2.1 TRANSFER OF PERCENTAGE INTERESTS. Effective upon execution and
delivery of this Agreement, each of Visa and Sterling Payot hereby
irrevocably conveys and assigns to Yahoo all of their right, title and
interest in the Company, including, without limitation, all Percentage
Interests held by Visa and Sterling Payot pursuant to the LLC Agreement.
Visa and Sterling Payot acknowledge and agree that after the Effective Date
they shall have no equity or other interest of any kind in the Company.
2.2 TERMINATION OF THE OPERATING AGREEMENT. Yahoo and Visa
International hereby agree that, pursuant to Section 9.2(iv) of the Operating
Agreement, the Operating Agreement is terminated in its entirety, and that
none of the parties hereto shall have any obligation or liability of any kind
under the Operating Agreement, notwithstanding the provisions of Section 9.4
of the Operating Agreement.
2.3 TERMINATION OF THE CO-INVESTMENT AGREEMENT. Sterling Payot, SPC and
Visa International hereby agree that the Co-Investment Agreement is
terminated in its entirety, and none of such parties shall have any
obligation or liability of any kind under the Co-Investment Agreement.
3. MUTUAL RELEASE.
3.1 RELEASE BY VISA AND VISA INTERNATIONAL. Each of Visa and Visa
International and each of their officers, directors, shareholders, partners,
employees, agents, attorneys, predecessors, successors, parents, affiliates,
subsidiaries, related companies, transferees, assigns, administrators, heirs,
servants, and representatives, hereby release each of Yahoo, SPC, and
Sterling Payot, and each of their officers, directors, shareholders,
partners, employees, agents, attorneys, predecessors, successors, parents,
affiliates, subsidiaries, related companies, licensees, business partners,
transferees, assigns, administrators, heirs, servants, and representatives,
of and from any and all claims, responsibilities, duties, obligations,
demands, costs, expenses, debts, sums of money, accounts, losses, damages,
actions and causes of action, or liabilities of whatsoever character, nature,
kind, or designation (in law or in equity, absolute or contingent, matured or
unmatured, known or unknown, discoverable or undiscoverable, past or present,
liquidated or unliquidated), based on or arising out of any matter, fact or
thing (including but not limited to any claim or demand) relating to or
arising from the LLC Agreement, the Operating Agreement and (in the case of
SPC and Sterling Payot) the Co-Investment Agreement; provided, however, that
nothing contained herein shall relieve or discharge any party of or from any
of its obligations under this Agreement.
3.2 RELEASE BY YAHOO. Yahoo and its officers, directors, shareholders,
employees, agents, attorneys, predecessors, successors, parents, affiliates,
subsidiaries, related companies, transferees, assigns, administrators, heirs,
servants, and representatives, hereby release each of Visa, Visa
International and Sterling Payot, and each of their respective officers,
directors, shareholders, partners, employees, agents, attorneys,
predecessors, successors, parents, affiliates, subsidiaries, related
companies, licensees, business partners, transferees, assigns,
administrators, heirs, servants, and representatives, of and from any and all
claims, responsibilities, duties, obligations, demands, costs, expenses,
debts, sums of money, accounts, losses, damages, actions
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and causes of action, or liabilities of whatsoever character, nature, kind,
or designation (in law or in equity, absolute or contingent, matured or
unmatured, known or unknown, discoverable or undiscoverable, past or present,
liquidated or unliquidated), based on or arising out of any matter, fact or
thing (including but not limited to any claim or demand) relating to or
arising from the LLC Agreement or the Operating Agreement; provided, however,
that nothing contained herein shall relieve or discharge any party of or from
any of its obligations under this Agreement.
3.3 RELEASE BY STERLING PAYOT AND SPC. Sterling Payot and SPC, and
each of their officers, directors, shareholders, partners, employees, agents,
attorneys, predecessors, successors, parents, affiliates, subsidiaries,
related companies, transferees, assigns, administrators, heirs, servants, and
representatives, hereby release each of Yahoo, Visa and Visa International,
and each of their respective officers, directors, shareholders, employees,
agents, attorneys, predecessors, successors, parents, affiliates,
subsidiaries, related companies, licensees, business partners, transferees,
assigns, administrators, heirs, servants, and representatives, of and from
any and all claims, responsibilities, duties, obligations, demands, costs,
expenses, debts, sums of money, accounts, losses, damages, actions and causes
of action, or liabilities of whatsoever character, nature, kind, or
designation (in law or in equity, absolute or contingent, matured or
unmatured, known or unknown, discoverable or undiscoverable, past or present,
liquidated or unliquidated), based on or arising out of any matter, fact or
thing (including but not limited to any claim or demand) relating to or
arising from the LLC Agreement, the Operating Agreement and (in the case of
Visa International and Visa) the Co-Investment Agreement; provided, however,
that nothing contained herein shall relieve or discharge any party of or from
any of its obligations under this Agreement.
3.4 WAIVER OF UNKNOWN CLAIMS. The Parties expressly waive and assume
the risk of any and all claims for damages or other relief that exist as of
this date, but of which they may not know or suspect to exist, whether
through negligence, inadvertence, ignorance, error, or otherwise, and which,
if known, would materially affect their decision to enter into this
Agreement. To this extent, and as a further inducement for this settlement,
the Parties explicitly waive the provisions of Section 1542 of the Civil Code
of California (or any comparable federal law or laws of any other state or
common law principle), which provides:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
Without limiting the foregoing, each party shall be deemed to have, and
by operation of this Agreement shall have, fully, finally, and forever
settled and released any and all claims, known or unknown, suspected or
unsuspected, contingent or non-contingent, whether or not concealed or
hidden, which now exist, or heretofore have existed upon any theory of law or
equity now existing or coming into existence in the future, including, but
not limited to, conduct which is negligent, intentional, with or without
malice, or a breach of any duty, law or rule, without regard to the
subsequent discovery or existence of such different or additional facts.
Further, it is understood by each Party that there is a risk that subsequent
to the execution of this Agreement, it may incur or suffer loss, damage, or
liability which in some way is caused by or related to matters
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which are the subject of this Agreement. Further, there is a risk that the
loss, damage, or liability presently known may be or become greater than such
Party now expects or anticipates. Each Party assumes this risk and this
Agreement shall apply to all such unknown or unanticipated results, as well
as those known and anticipated.
4. CERTAIN LIMITATIONS ON RESALE OF THE SHARES.
4.1 LEGAL RESTRICTIONS ON RESALE. The Shares shall not be transferable
in the absence of a registration under the Securities Act of 1933 (the
"SECURITIES ACT") or an exemption therefrom or in the absence of compliance
with this Section 4.
4.2 CERTAIN ADDITIONAL RESTRICTIONS ON RESALE.
(a) SECOND GROUP SHARES. Neither Visa nor Sterling Payot will
offer, sell, contract to sell, transfer or otherwise dispose of any Second
Group Shares prior to the first anniversary of the date of this Agreement;
provided that this restriction shall not apply to and shall terminate upon
any merger or other transaction which results in the holders of Yahoo voting
stock prior to such transaction holding in the aggregate less than fifty
percent (50%) of the voting stock of the surviving entity following such
transaction.
(b) THIRD GROUP SHARES. Neither Visa nor Sterling Payot will
offer, sell, contract to sell, transfer or otherwise dispose of any Third
Group Shares prior to the second anniversary of the date of this Agreement;
provided that this restriction shall not apply to and shall terminate upon
any merger or other transaction which results in the holders of Yahoo voting
stock prior to such transaction holding in the aggregate less than fifty
percent (50%) of the voting stock of the surviving entity following such
transaction.
(c) PROHIBITION ON CERTAIN RELATED TRANSACTIONS. The foregoing
restrictions are expressly agreed to preclude Visa and Sterling Payot from
engaging in any hedging or other transaction during the specified periods
that is designed to or reasonably expected to lead to or result in a
disposition of Second Group Shares or Third Group Shares, as the case may be,
even if such shares would be disposed of by someone other than Visa or
Sterling Payot. Such prohibited hedging or other transactions would include
without limitation any short sale (whether or not against the box) that is
not covered by shares other than the Second Group Shares or Third Group
Shares, as the case may be, or any purchase, sale or grant of any right
(including without limitation any put or call option) with respect to any
shares of Yahoo Common Stock or with respect to any security (other than a
broad based market basket or index) that includes, relates to or derives any
significant part of its value from the Second Group Shares or the Third Group
Shares, as the case may be.
(d) NO PROHIBITION ON DISTRIBUTION TO PARTNERS. Notwithstanding
the foregoing, any holder of Shares that is a partnership or limited
liability company may distribute some or all of its Shares to its partners or
members at any time so long as each recipient of such distribution expressly
assumes in a writing delivered to Yahoo all of the obligations in respect of
such Shares hereunder as would have applied to the transferor in the absence
of such distribution.
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4.3 RESTRICTIVE LEGENDS; STOP TRANSFER ORDERS.
(a) SECURITIES ACT LEGEND. Each certificate representing Shares
shall bear substantially the following legends (in addition to any legends
required under applicable securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM."
The foregoing legend will be removed from a certificate if (i) with
respect to any particular sale of Shares, Yahoo receives an opinion of
counsel reasonably satisfactory to Yahoo that such sale of Shares complies
fully with Rule 144 under the Securities Act, or (ii) in Yahoo's opinion the
Shares represented by such certificates are available for resale pursuant to
Rule 144(k) under the Securities Act, or (iii) such Shares are sold pursuant
to an effective registration statement with the United States Securities and
Exchange Commission ("SEC").
(b) AGREEMENT LEGENDS. So long as any Shares shall be subject to
any other restrictions on resale pursuant to this Agreement, the certificates
representing such Shares shall also bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON SALE, TRANSFER OR ASSIGNMENT, PURSUANT
TO THE RESTRUCTURING AGREEMENT BETWEEN YAHOO! INC., VISA
MARKETPLACE, INC., VISA INTERNATIONAL AND STERLING PAYOT
CAPITAL, L.P."
(c) STOP TRANSFER ORDERS. So long as the foregoing restrictions on
resale remain in effect, Visa and Sterling Payot agree and consent to the
entry of stop-transfer instructions with Yahoo's transfer agent against the
transfer of Shares except in compliance with this Agreement.
4.4 REPORTING. With a view to making available to the holders the
benefits of Rule 144 promulgated under the Securities Act and any other rule
or regulation of the SEC that may at any time permit Visa and Sterling Payot
to sell Shares to the public without registration, Yahoo hereby covenants and
agrees to use all reasonable efforts to: (i) make and keep public
information available, as those terms are understood and defined in Rule 144,
at all times after the Effective Date; (ii) file with the SEC in a timely
manner all reports and other documents required of Yahoo under the Securities
Act and Securities Exchange Act of 1934 ("EXCHANGE ACT"); and (iii) furnish
to Visa or Sterling Payot, as long as such Party owns any Shares, forthwith
upon request, (A) a written statement by Yahoo that it has complied with the
reporting requirements of Rule 144, the Securities Act and the Exchange Act,
(B) a copy of the most recent annual or quarterly report of Yahoo, and (C)
such other information as may be reasonably requested in order to avail such
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Party of any rule or regulation of the SEC that permits the selling of any
such Registrable Securities without registration.
5. REGISTRATION OF THE FIRST GROUP SHARES.
5.1 REGISTRATION STATEMENT. Within ten (10) days following the
Effective Date, Yahoo shall prepare and file a shelf registration statement
on Form S-3 (or its equivalent) (the "REGISTRATION STATEMENT") to register
the First Group Shares ("REGISTRABLE SECURITIES") for resale under the
Securities Act and thereafter shall use all reasonable efforts to secure the
effectiveness of the Registration Statement.
5.2 REGISTRATION EXPENSES. Yahoo shall pay all Registration Expenses
and Selling Expenses (each as defined below) in connection with any
registration, qualification or compliance hereunder, and the holders of
Registrable Securities (each a "HOLDER") shall pay all other expenses that
are not Registration Expenses or Selling Expenses relating to the Registrable
Securities resold by such Holder. "REGISTRATION EXPENSES" shall mean all
expenses, except for Selling Expenses, incurred by Yahoo in complying with
the registration provisions herein described, including, without limitation,
all registration, qualification and filing fees, printing expenses, escrow
fees, fees and disbursements of counsel for Yahoo, blue sky fees and expenses
and the expense of any special audits incident to or required by any such
registration. "SELLING EXPENSES" shall mean all selling commissions charged
by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., stock transfer taxes applicable to the Registrable
Securities and the reasonable cost of one legal counsel to represent the
Holders (up to a maximum of $10,000).
5.3 ONGOING COVENANTS. In the case of any registration effected by
Yahoo pursuant to these registration provisions, Yahoo will use all
reasonable efforts to:
(a) Keep such registration effective until the first anniversary of
the Effective Date, or if earlier, until the date on which all First Group
Shares have been sold;
(b) Subject to Section 5.4, prepare and file with the SEC such
amendments and supplements to the Registration Statement and the prospectus
used in connection with the Registration Statement as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Registration Statement;
(c) Furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus,
as a Holder from time to time may reasonably request;
(d) Use all reasonable efforts to register and qualify the
securities covered by the Registration Statement under such other securities
or Blue Sky laws of such jurisdictions as shall be reasonably requested by
the Holders, provided that Yahoo shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions;
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(e) Cause all Registrable Securities (and all other Shares) to be
listed on each securities exchange and quoted on each quotation service on
which similar securities issued by Yahoo are then listed or quoted; and
(f) Make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve
months, but not more than eighteen months, beginning with the first month
after the effective date of the Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act.
5.4 PROCEDURES FOR SALE OF SHARES UNDER REGISTRATION STATEMENT.
(a) NOTICE AND APPROVAL. If any Holder shall propose to sell any
Registrable Securities pursuant to the Registration Statement, it shall
notify Yahoo of its intent to do so at least two (2) full trading days prior
to such sale, and the provision of such notice to Yahoo shall conclusively be
deemed to reestablish and reconfirm an agreement by such Holder to comply
with the registration provisions set forth in this Agreement. Unless
otherwise specified in such notice, such notice shall be deemed to constitute
a representation that any information previously supplied by such Holder
expressly for inclusion in the Registration Statement (as the same may have
been superseded by subsequent such information) is accurate as of the date of
such notice. At any time within such two (2) trading-day period, Yahoo may
refuse to permit the Holder to resell any Registrable Securities pursuant to
the Registration Statement; provided, however, that in order to exercise this
right, Yahoo must deliver a certificate in writing to the Holder to the
effect that a delay in such sale is necessary because a sale pursuant to the
Registration Statement in its then-current form without the addition of
material, non-public information about Yahoo, could constitute a violation of
the federal securities laws. Notwithstanding the foregoing, (i) Yahoo will
use its best efforts to ensure that the Holders shall have at least five (5)
trading days available to sell Registrable Securities prior to September 30,
1997 (in light of factors such as the timing of any required review of the
Registration Statement by the Securities and Exchange Commission), and (ii)
Yahoo will ensure that in any event the Holders shall have at least twenty
(20) trading days (prorated for partial quarters) available to sell
Registrable Securities during each calendar quarter (or portion thereof) from
October 1, 1997 until the first anniversary of the Effective Date.
(b) DELIVERY OF PROSPECTUS. For any offer or sale of any of the
Registrable Securities by a Holder in a transaction that is not exempt under
the Securities Act, the Holder, in addition to complying with any other
federal securities laws, shall deliver a copy of the final prospectus (or
amendment of or supplement to such prospectus) of Yahoo covering the
Registrable Securities in the form furnished to the Holder by Yahoo to the
purchaser of any of the Registrable Securities on or before the settlement
date for the purchase of such Shares.
(c) COPIES OF PROSPECTUSES. Subject to the provisions of this
Section 5.4, when a Holder is entitled to sell and gives notice of its intent
to sell Registrable Securities pursuant to the Registration Statement, Yahoo
shall, within two (2) trading days following the request, furnish to such
Holder a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
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purchasers of such Registrable Securities, such prospectus shall not as of
the date of delivery to the Holder include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or incomplete in the
light of the circumstances then existing.
5.5 ASSIGNMENTS. Except as provided in Section 4.2(d) or Section 8.4,
the right to sell Registrable Securities pursuant to the Registration
Statement described herein may be assigned to any subsequent Holder only with
Yahoo's prior written consent. In the event that it is necessary, in order
to permit a Holder to sell Registrable Securities pursuant to Yahoo's
Registration Statement, to amend the Registration Statement to name such
Holder, such Holder shall, upon written notice to Yahoo, be entitled to have
Yahoo make such amendment as soon as reasonably practicable. Notwithstanding
the above provisions relating to Registration Expenses, in the event that
such an amendment is requested, the Holder shall, at the request of Yahoo, be
obligated to reimburse Yahoo for reasonable Registration Expenses incurred by
it in connection with such amendment.
5.6 INDEMNIFICATION.
(a) INDEMNIFICATION BY YAHOO. To the extent permitted by law,
Yahoo will indemnify and hold harmless each Holder, any underwriter (as
defined in the Securities Act) for such Holder, its officers, directors,
shareholders or partners and each person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations (collectively a
"VIOLATION"): (A) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (B) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (C) any violation or alleged
violation by Yahoo of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law; and Yahoo will pay to each
such Holder, underwriter or controlling person, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 5.6(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of Yahoo; nor shall
Yahoo be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of or is based upon (i) a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration
by any such Holder, or (ii) a Violation that would not have occurred if such
Holder had delivered to the purchaser the version of the Prospectus most
recently provided by Yahoo to the Holder as of the date of such sale.
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(b) INDEMNIFICATION BY HOLDERS. To the extent permitted by law,
each selling Holder will indemnify and hold harmless Yahoo, each of its
directors, each of its officers who has signed the Registration Statement,
each person, if any, who controls Yahoo within the meaning of the Securities
Act, any underwriter, any other Holder selling securities pursuant to the
Registration Statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Securities Act, the Exchange Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation (which includes without
limitation the failure of the Holder to comply with the prospectus delivery
requirements under the Securities Act, and the failure of the Holder to
deliver the most current prospectus provided by Yahoo prior to such sale), in
each case to the extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration or such
Violation is caused by the Holder's failure to deliver to the purchaser of
the Holder's Shares a prospectus (or amendment or supplement thereto) that
had been made available to the Holder by Yahoo; and each such Holder will
pay, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this Section 5.6(b), in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
Section 5.6(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld. The aggregate indemnification and contribution liability of each
Holder under this Section 5.6 shall not exceed the gross proceeds received by
such Holder in connection with sale of Shares pursuant to the Registration
Statement.
(c) INDEMNIFICATION PROCEDURES. Promptly after receipt by an
indemnified party under this Section 5.6 of notice of the commencement of any
action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under
this Section 5.6, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain separate counsel, at
the indemnified party's sole expense, to participate in any such action. The
failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 5.6, but the omission
so to deliver written notice to the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than under
this Section 5.6.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 5.6 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss,
liability, claim, damage, or expense in such
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proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
5.7 CERTAIN ADDITIONAL AGREEMENTS OF THE HOLDERS. Prior to and so long
as the Registration Statement shall remain effective, each Holder shall:
(a) Not engage in any stabilization activity in connection with the
Yahoo Common Stock;
(b) Not bid for or purchase any Yahoo Common Stock or any rights to
acquire Yahoo Common Stock, or attempt to induce any person to purchase any
of Yahoo Common Stock other than as permitted under the Exchange Act;
(c) Not effect any sale or distribution of Registrable Securities
until after the Prospectus shall have been appropriately amended or
supplemented, if required, to set forth the terms thereof; and
(d) Effect all sales of Registrable Securities in broker's
transactions through broker-dealers acting as agents, in transactions
directly with market makers or in privately negotiated transaction where no
broker or other third party (other than the purchaser) is involved.
5.8 NO SHORT SALES. Without limiting any other provision of this
Agreement, no Holder shall engage in any short-sales of Yahoo's Common Stock
prior to the effectiveness of the Registration Statement, except to the
extent that any such short-sale is fully covered by freely tradable shares of
Common Stock of Yahoo.
5.9 CHANGES IN RULE 144. In the event that Rule 144 shall be amended or
terminated such that Rule 144 is not available for the resale of Shares
without registration during the second or third twelve month period following
the Effective Date, Yahoo will use its best efforts to cause the
effectiveness of Registration Statement to be extended through the third
anniversary of the Effective Date, and to promptly file and obtain the
effectiveness of a registration statement covering the resale of the Second
Group Shares and the Third Group Shares, in each case on the terms and
conditions set forth in this Section 5.
6. REPRESENTATIONS AND WARRANTIES OF YAHOO. Yahoo hereby represents and
warrants to Visa, Visa International, Sterling Payot and SPC as of the date
hereof as follows:
6.1 CORPORATE STATUS AND POWER; AUTHORIZATION. Yahoo is a corporation
duly organized, validly existing and in good standing under the laws of the
State of California. Yahoo has all requisite legal and corporate power and
has taken all requisite corporate action to execute
11
and deliver this Agreement, to sell and issue the Shares and to carry out and
perform all of its obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligation of Yahoo, enforceable in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally and (ii) as limited by equitable
principles generally. The execution and delivery of this Agreement does not,
and the performance of this Agreement and the compliance with the provisions
hereof and the issuance, sale and delivery of the Shares by Yahoo will not
materially conflict with, or result in a breach or violation of the terms,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of any lien pursuant to the terms of, the Articles of
Incorporation or Bylaws of Yahoo or any statute, law, rule or regulation or
any state or federal order, judgment or decree or any indenture, mortgage,
lease or other agreement or instrument to which Yahoo, or any of its
properties, is subject.
6.2 SHARES. The Shares when issued in compliance with the provisions of
this Agreement will be duly authorized, validly issued, fully paid and
nonassessable. Based on the representations and warranties of Visa and
Sterling Payot contained herein, the Shares when issued in compliance with
the provisions of this Agreement will be issued in compliance with federal
and state securities laws. The issuance and delivery of the Shares is not
subject to preemptive or any other similar rights of the shareholders of
Yahoo or any liens or encumbrances.
6.3 SEC DOCUMENTS. Yahoo has filed all the documents (the "SEC
DOCUMENTS") that Yahoo was required to file with the SEC under Sections 13
or 14(a) of the Exchange Act, prior to the Effective Date. As of their
respective filing dates, the SEC Documents complied in all material respects
with the requirements of the Exchange Act or the Securities Act, as
applicable. None of the SEC Documents as of their respective dates contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
6.4 GOVERNMENTAL CONSENTS. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with,
any federal, state, or local governmental authority on the part of Yahoo is
required in connection with the consummation of the transactions contemplated
by this Agreement except for (a) compliance with federal securities laws and
state "blue sky" laws in the jurisdictions in which Shares are offered and/or
sold, which compliance will be effected in accordance with such laws, (b)
filing the Nasdaq National Market Notification Form for listing of additional
shares, which filing will be effected in accordance with the rules
thereunder, and (c) filing with the SEC and NASD either a Current Report on
Form 8-K or a Quarterly or Annual Report on Form 10-Q or 10-K disclosing the
terms of the transaction contemplated by this Agreement. The business of
Yahoo is not being conducted in violation of any law, ordinance or regulation
of any governmental entity, except for violations which either singly or in
the aggregate would not be reasonably likely to have a material adverse
effect on Yahoo's business, financial condition or results of operations.
7. REPRESENTATIONS AND WARRANTIES OF THE VISA GROUP.
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7.1 VISA. Visa hereby represents and warrants to Yahoo, Sterling Payot
and SPC as of the date hereof as follows:
(a) CORPORATE STATUS AND POWER; AUTHORIZATION. Visa is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Visa has all requisite legal and corporate
power and has taken all requisite corporate action to execute and deliver
this Agreement and to carry out and perform all of its obligations under this
Agreement. This Agreement constitutes the legal, valid and binding
obligation of Visa, enforceable in accordance with its terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization or similar laws
relating to or affecting the enforcement of creditors' rights generally and
(ii) as limited by equitable principles generally. The execution and
delivery of this Agreement does not, and the performance of this Agreement
and the compliance with the provisions hereof will not materially conflict
with, or result in a breach or violation of the terms, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien pursuant to the terms of, the Certificate of
Incorporation or Bylaws of Visa or any statute, law, rule or regulation or
any state or federal order, judgment or decree or any indenture, mortgage,
lease or other agreement or instrument to which Visa, or any of its
properties, is subject.
(b) OWNERSHIP OF PERCENTAGE INTERESTS. Visa owns a thirty percent
(30%) Percentage Interest in the Company, and Visa has not assigned, pledged
or otherwise transferred, directly or indirectly, such Percentage Interest,
and has not entered into any agreement of any kind relating to any such
assignment, pledge or transfer. Upon completion of the transfer contemplated
by this Agreement, Yahoo will own such Percentage Interest free and clear of
all liens, charges or encumbrances of any kind.
(c) INVESTMENT EXPERIENCE. Visa is an "accredited investor" as
defined in Rule 501(a) under the Securities Act. Visa is aware of Yahoo's
business affairs and financial condition and has had access to and has
acquired sufficient information about Yahoo to reach an informed and
knowledgeable decision to acquire the Shares. Visa 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.
(d) INVESTMENT INTENT. Visa is purchasing the Shares for investment
for its own account only and not with a view to, or for resale in connection
with, any "distribution" thereof within the meaning of the Securities Act.
Visa understands that the Shares have not been registered under the
Securities Act or registered or qualified under any state securities law in
reliance on specific exemptions therefrom, which exemptions may depend upon,
among other things, the bona fide nature of such party's investment intent as
expressed herein.
(e) REGISTRATION OR EXEMPTION REQUIREMENTS. Visa further
acknowledges and understands that although the First Group Shares will be
registered for resale under the Securities Act as provided herein, Visa must
comply with the prospectus delivery requirements or meet the requirements of
Rule 144 under the Securities Act in order for such party to sell, transfer
or otherwise dispose of the Shares. In addition, Visa further agrees to
refrain from selling,
13
transferring or otherwise disposing of any Shares, or any interest therein,
in such manner as to cause Yahoo to be in violation of the registration
requirements of the Securities Act or applicable state securities or blue sky
laws.
(f) NO LEGAL, TAX OR INVESTMENT ADVICE. Visa understands that
nothing in this Agreement or any other materials presented to such party in
connection with the receipt of the Shares constitutes legal, tax or
investment advice. Visa has consulted such legal, tax and investment advisors
as such party, in its sole discretion, has deemed necessary or appropriate in
connection with its receipt of the Shares.
7.2 VISA INTERNATIONAL. Visa International hereby represents and
warrants to Yahoo, Sterling Payot and SPC as of the date hereof as follows:
(a) CORPORATE STATUS AND POWER; AUTHORIZATION. Visa International
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware. Visa International has all requisite
legal and corporate power and has taken all requisite corporate action to
execute and deliver this Agreement and to carry out and perform all of its
obligations under this Agreement. This Agreement constitutes the legal,
valid and binding obligation of Visa International, enforceable in accordance
with its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the enforcement of
creditors' rights generally and (ii) as limited by equitable principles
generally. The execution and delivery of this Agreement does not, and the
performance of this Agreement and the compliance with the provisions hereof
will not materially conflict with, or result in a breach or violation of the
terms, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of any lien pursuant to the terms of, the
Certificate of Incorporation or Bylaws of Visa International or any statute,
law, rule or regulation or any state or federal order, judgment or decree or
any indenture, mortgage, lease or other agreement or instrument to which Visa
International, or any of its properties, is subject.
7.3 STERLING PAYOT. Sterling Payot hereby represents and warrants to
Yahoo, Visa and Visa International as of the date hereof:
(a) CORPORATE STATUS AND POWER; AUTHORIZATION. Sterling Payot is a
limited partnership duly organized, validly existing and in good standing
under the laws of the State of California. Sterling Payot has all requisite
legal power and has taken all requisite partnership action to execute and
deliver this Agreement and to carry out and perform all of its obligations
under this Agreement. This Agreement constitutes the legal, valid and
binding obligation of Sterling Payot, enforceable in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the enforcement of
creditors' rights generally and (ii) as limited by equitable principles
generally. The execution and delivery of this Agreement does not, and the
performance of this Agreement and the compliance with the provisions hereof
by Sterling Payot will not materially conflict with, or result in a breach or
violation of the terms, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of any lien pursuant to the
terms of, the Limited Partnership Agreement of Sterling Payot or any statute,
law, rule or regulation or any state or federal order, judgment or
14
decree or any indenture, mortgage, lease or other agreement or instrument to
which Sterling Payot, or any of its properties, is subject.
(b) OWNERSHIP OF PERCENTAGE INTERESTS. Sterling Payot owns a
fifteen percent (15%) Percentage Interest in the Company, and Sterling Payot
has not assigned, pledged or otherwise transferred, directly or indirectly,
such Percentage Interest, and has not entered into any agreement of any kind
relating to any such assignment, pledge or transfer. Upon completion of the
transfer contemplated by this Agreement, Yahoo will own such Percentage
Interest free and clear of all liens, charges or encumbrances of any kind.
(c) INVESTMENT EXPERIENCE. Sterling Payot is an "accredited
investor" as defined in Rule 501(a) under the Securities Act. Sterling Payot
is aware of Yahoo's business affairs and financial condition and has had
access to and has acquired sufficient information about Yahoo to reach an
informed and knowledgeable decision to acquire the Shares. Sterling Payot
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.
(d) INVESTMENT INTENT. Sterling Payot is purchasing the Shares for
investment for its own account only and not with a view to, or for resale in
connection with, any "distribution" thereof within the meaning of the
Securities Act. Sterling Payot understands that the Shares have not been
registered under the Securities Act or registered or qualified under any
state securities law in reliance on specific exemptions therefrom, which
exemptions may depend upon, among other things, the bona fide nature of such
party's investment intent as expressed herein.
(e) REGISTRATION OR EXEMPTION REQUIREMENTS. Sterling Payot further
acknowledges and understands that although the First Group Shares will be
registered for resale under the Securities Act as provided herein, Sterling
Payot must comply with the prospectus delivery requirements or meet the
requirements of Rule 144 under the Securities Act in order for such party to
sell, transfer or otherwise dispose of the Shares. In addition, Sterling
Payot further agrees to refrain from selling, transferring or otherwise
disposing of any Shares, or any interest therein, in such manner as to cause
Yahoo to be in violation of the registration requirements of the Securities
Act or applicable state securities or blue sky laws.
(f) NO LEGAL, TAX OR INVESTMENT ADVICE. Sterling Payot understands
that nothing in this Agreement or any other materials presented to such party
in connection with the receipt of the Shares constitutes legal, tax or
investment advice. Sterling Payot has consulted such legal, tax and
investment advisors as such party, in its sole discretion, has deemed
necessary or appropriate in connection with its receipt of the Shares.
7.4 STERLING PAYOT COMPANY. SPC hereby represents and warrants to
Yahoo, Visa and Visa International as of the date hereof as follows:
(a) CORPORATE STATUS AND POWER; AUTHORIZATION. SPC is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. SPC
15
has all requisite legal and corporate power and has taken all requisite
corporate action to execute and deliver this Agreement and to carry out and
perform all of its obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligation of SPC, enforceable in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally and (ii) as limited by equitable
principles generally. The execution and delivery of this Agreement does not,
and the performance of this Agreement and the compliance with the provisions
hereof will not materially conflict with, or result in a breach or violation
of the terms, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of any lien pursuant to the terms of,
the Certificate of Incorporation or Bylaws of SPC or any statute, law, rule
or regulation or any state or federal order, judgment or decree or any
indenture, mortgage, lease or other agreement or instrument to which SPC, or
any of its properties, is subject.
8. Miscellaneous.
8.1 CONFIDENTIALITY. Each of the Parties hereto, as well as their
respective employees, directors, attorneys and agents, agree that it will not
disclose any of the terms and provisions of this Agreement to any third
party, and that it will take all measures necessary to protect and preserve
the confidentiality of this Agreement and the terms herein, unless and to the
extent Yahoo is required, in its reasonable judgment, to make such disclosure
under the federal securities laws. The Parties agree that, notwithstanding
the foregoing, the press release attached to this Agreement as EXHIBIT A will
be issued by Yahoo following execution and delivery of this Agreement.
8.2 GOVERNING LAW. This Agreement shall be interpreted and construed in
accordance with the laws of the State of California, without reference to
conflicts of laws principles.
8.3 AMENDMENT OR MODIFICATION. This Agreement may not be amended,
modified or supplemented by the parties in any manner, except by an
instrument in writing signed on behalf of each of the parties by a duly
authorized officer or representative.
8.4 NO ASSIGNMENT. Except as expressly provided herein, none of the
Parties shall transfer or assign any rights or delegate any obligations
hereunder, in whole or in part, whether voluntarily or by operation of law,
without the prior written consent of each of the other Parties. Any
purported transfer, assignment or delegation by any party without the
appropriate prior written approval shall be null and void and of no force or
effect. Notwithstanding the foregoing, without securing such prior consent,
each Party shall have the right to assign this Agreement and all of its
rights or obligations to any successor of such party by way of merger or
consolidation or the acquisition of all or substantially all of the business
and assets of the assigning Party relating to the Agreement, provided that
such assignee (i) has at least the same net worth after such transaction as
the assigning party has immediately prior to such transaction, and (ii)
assumes in writing all of the assigning party's obligations under this
Agreement; and provided further that (a) Visa may transfer Shares and assign
the rights under this Agreement relating to such Shares to Visa International
or Sterling Payot, so long as Visa International or Sterling Payot, as the
case may be, assumes in writing all of Visa's obligations under this
Agreement in respect of such
16
Shares and (b) Sterling Payot may transfer Shares and assign the rights under
this Agreement relating to such Shares to its constituent partners or to Visa
International, so long as each such constituent partner or Visa
International, as the case may be, assumes in writing all of Sterling Payot's
obligations under this Agreement in respect of such Shares.
8.5 NOTICES; APPROVALS. Except as otherwise provided herein, any notice
or other communication to be given hereunder shall be in writing and shall be
(as elected by the Party giving such notice): (i) personally delivered; or
(ii) transmitted by facsimile (with a copy of such transmission by postage
paid prepaid registered or certified airmail, return receipt requested, and
with notice of such transmission being made by telephone concurrently with
such transmission). Unless otherwise provided herein, all notices shall be
deemed to have been duly given on the date of receipt (or if delivery is
refused, the date of such refusal) if delivered personally, or by facsimile.
Either Party may change its address for notice purposes hereof on not less
than three (3) days prior notice to the other party. Notice hereunder shall
be directed to a party at the address and telephone number for such party
which is set forth in the signature page to this Agreement, attention
"President."
8.6 ENTIRE AGREEMENT. This Agreement represents the entire agreement of
the Parties with respect to the subject matter hereof and supersedes all
prior and/or contemporaneous agreements and understandings, written or oral
between the Parties with respect to the subject matter hereof. No Party has
relied upon any promises, inducements, representations made by any other
Party or expectations of further business dealings except as expressly
provided in this Agreement.
8.7 WAIVER. Any of the provisions of this Agreement may be waived by
the Party entitled to the benefit thereof. No party shall be deemed, by any
act or omission, to have waived any of its rights or remedies hereunder
unless such waiver is in writing and signed by the waiving party, and then
only to the extent specifically set forth in such writing. A waiver with
reference to one event shall not be construed as continuing or as a bar to or
waiver of any right or remedy as to a subsequent event.
8.8 WAIVER OF JURY TRIAL. EACH OF YAHOO, VISA INTERNATIONAL, VISA AND
STERLING PAYOT DO HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVE SUCH RIGHT ANY PARTY MAY HAVE TO A JURY TRIAL IN EVERY
JURISDICTION IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF
THE PARTIES HERETO AGAINST ANY OTHER PARTY HERETO OR THEIR RESPECTIVE
AFFILIATES, SUCCESSORS OR ASSIGNS IN RESPECT OF ANY MATTER ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED AND
DELIVERED BY ANY PARTY IN CONNECTION THEREWITH (INCLUDING, WITHOUT
LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT, AND ANY CLAIMS OR
DEFENSES ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR OTHERWISE
VOID OR VOIDABLE).
8.9 NO THIRD PARTY BENEFICIARIES. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer, upon any
other than the Parties and the
17
respective successors or assigns of the Parties, any rights, remedies,
obligations or liabilities whatsoever.
8.10 FEES AND EXPENSES. Each Party shall be responsible for the payment
of its own costs and expenses, including attorneys' fees and expenses, in
connection with the negotiation and execution of this Agreement.
8.11 RECOVERY OF COSTS AND EXPENSES. If any Party brings an action
against any other Party to enforce its rights under this Agreement, the
prevailing Party shall be entitled to recover all reasonable costs and
expenses, including attorneys' fees and costs incurred in connection with
such action, including any appeal of such action.
8.12 SEVERABILITY. If the application of any provision or provisions of
this Agreement to any particular facts of circumstances shall be held to be
invalid or unenforceable by any court of competent jurisdiction, then: (i)
the validity and enforceability of such provision or provisions as applied to
any other particular facts or circumstances and the validity of other
provisions of this Agreement shall not in any way be affected or impaired
thereby; and (ii) such provision or provisions shall be reformed without
further action by the Parties hereto and only to the extent necessary to make
such provision or provisions valid and enforceable when applied to such
particular facts and circumstances.
8.14 COUNTERPARTS; FACSIMILES. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one and
the same instrument. Each Party shall receive a duplicate original of the
counterpart copy or copies executed by it. For purposes hereof, a facsimile
copy of this Agreement, including the signature pages hereto, shall be deemed
to be an original. Notwithstanding the foregoing, the parties shall each
deliver original execution copies of this Agreement to one another as soon as
practicable following execution thereof.
[SIGNATURE PAGE FOLLOWS]
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The parties to this Agreement by their duly authorized representatives
have executed this Agreement as of the date first above written.
Yahoo! Inc., a Visa MarketPlace, Inc., a Delaware
California corporation corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- -----------------------------------
Title: PRESIDENT AND CEO Title:
---------------------------- --------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, President
Address for notices: Address for notices:
Attn: Chief Financial Officer ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Sterling Payot Company, Visa International Service Association,
a Delaware corporation a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------- -----------------------------------
Title: Title:
---------------------------- --------------------------------
Address for notices: Address for notices:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Sterling Payot Capital, L.P.,
a California limited partnership
By: Sterling Payot Management, Inc.,
a Delaware corporation, its general
partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Managing Director
Address for notices:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
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