This excerpt taken from the YHOO 8-K filed Dec 8, 2006.
18. Tax Matters.
(a) Withholding. The Company may withhold from any and all amounts payable under this Agreement such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.
(b) Section 409A Compliance.
(i) The intent of the parties is that payments and benefits under this Agreement comply with Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively Code Section 409A) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. If you notify the Company (with specificity as to the reason therefore) that you believe that any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause you to incur any additional tax or interest under Code Section
409A and the Company concurs with such belief or the Company (without any obligation whatsoever to do so) independently makes such determination, the Company shall, after consulting with you, reform such provision to try to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to you and the Company of the applicable provision without violating the provisions of Code Section 409A.
(ii) Notwithstanding any provision to the contrary in this Agreement, if you are deemed on the date of termination to be a specified employee within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is required to be delayed in compliance with Section 409A(a)(2)(B) (including any payment or distribution in respect of any restricted stock units granted to you under the Companys 1995 Stock Plan (as amended) as described in Section 5(b) hereof) such payment or benefit shall not be made or provided (subject to the last sentence of this Section 18(b)(ii)) prior to the earlier of (A) the expiration of the six (6)-month period measured from the date of your separation from service (as such term is defined under Code Section 409A) or (B) the date of your death (the Delay Period). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 18(b)(ii) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to you in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein, provided that any payment hereunder that would have been made to you on or after the Separation Date and prior to or during the Delay Period shall not be forfeited as a result of your failure to comply with the terms of this Agreement (other than Sections 16 and 17 hereof) after the date such payment otherwise would be due. Notwithstanding the foregoing, to the extent that the foregoing applies to the provision of any ongoing welfare benefits to you that would not be required to be delayed if the premiums therefore were paid by you, you shall pay the full cost of premiums for such welfare benefits during the Delay Period and the Company shall pay you an amount equal to the amount of such premiums paid by you during the Delay Period promptly after its conclusion.
(iii) In no event whatsoever (as a result of Sections 18(b)(i) and 18(b)(ii) hereof or otherwise) shall the Company be liable for any additional
tax, interest or penalties that may be imposed on you by Code Section 409A or any damages for failing to comply with Code Section 409A or Sections 18(b)(i) and 18(b)(ii) hereof.
This excerpt taken from the YHOO 8-K filed Aug 16, 2005.
(a) Except as set forth on Section 3.9(a) of the Alibaba Disclosure Schedule, (i) all Tax Returns relating to each member of the Alibaba Group or the business or assets thereof that were required to be filed on or before the date hereof or the Closing Date, as the case may be, have been (or by the Closing Date will be) duly and timely filed and are (or will be) correct and complete in all material respects, (ii) all Taxes shown as owing on such Tax Returns have been (or by the Closing Date will have been) paid and (iii) no member of the Alibaba Group is, on the date of this Agreement, the beneficiary of any extension of time within which to file any Tax Return.
(b) Except as set forth on Section 3.9(b) of the Alibaba Disclosure Schedule, (i) all material Taxes that are payable by any member of the Alibaba Group or chargeable as a Lien upon its assets as of the date hereof or the Closing Date, as the
case may be, have been duly and timely paid or reflected on the Alibaba Financial Statements or the Tao Bao Financial Statements, (ii) each member of the Alibaba Group has duly and timely withheld all material Taxes required to be withheld in connection with its business or assets, and such withheld Taxes have been either duly and timely paid to the proper Governmental Authorities or properly set aside in accounts for such purpose and (iii) the Alibaba Financial Statements and the Tao Bao Financial Statements reflect an adequate reserve for all Taxes payable or asserted to be payable by the Alibaba Group for all taxable periods or portions thereof through the date of the Alibaba Financial Statements and the Tao Bao Financial Statements.
(c) Except as set forth on Section 3.9(c) of the Alibaba Disclosure Schedule, there has been no claim or issue (other than a claim or issue that has been finally settled) concerning any material liability for Taxes of any member of the Alibaba Group asserted, raised or threatened in writing by any taxing authority.
(d) Section 3.9(d) of the Alibaba Disclosure Schedule lists all Income Tax Returns that have been filed with respect to any member of the Alibaba Group for taxable periods ended on or after December 31, 2003 and that have not yet been audited or are currently the subject of audit.
(e) Except as set forth on Section 3.9(e) of the Alibaba Disclosure Schedule, no member of the Alibaba Group has (i) waived any statute of limitations, (ii) agreed to any extension of the period for assessment or collection or (iii) executed or filed any power of attorney with respect to Taxes, which waiver, agreement or power of attorney is currently in force.
(f) Except as set forth on Section 3.9(f) of the Alibaba Disclosure Schedule, (i) there are no outstanding adjustments for Income Tax purposes applicable to any member of the Alibaba Group required as a result of changes in methods of accounting effected on or before the Closing Date and (ii) no material elections for Income Tax purposes have been made by any member of the Alibaba Group that are currently in force or by which any member of the Alibaba Group is bound.
(g) Except as set forth in Section 3.9(g) of the Alibaba Disclosure Schedule, no member of the Alibaba Group (i) is a party to or bound by or has any obligation under any Tax allocation, sharing, indemnity or similar agreement or arrangement or (ii) is or has been a member of any group of companies filing a consolidated, combined or unitary Income Tax Return.
3.10 Assets. The members of the Alibaba Group collectively own, or otherwise have full, sufficient and legally enforceable rights to use, all of the material properties, assets and rights (real, personal or mixed, tangible or intangible), used or held for use in connection with their respective business.