YHOO » Topics » 6.1 Confidentiality .

This excerpt taken from the YHOO 8-K filed Aug 16, 2005.

6.1  Confidentiality.

 

(a)  Except as required by the NASDAQ rules or the rules of any other quotation system or exchange on which Yahoo!’s securities are listed or applicable Law, Yahoo! shall not disclose, shall not permit any other member of Yahoo! Group (together with Yahoo!, “Yahoo! Parties”) or any officers, directors or employees of Yahoo! or any other member of Yahoo! Group to disclose, and shall prevent the respective other Representatives and contractors of any member of Yahoo! Group (such officers, directors, employees, other Representatives and contractors, “Yahoo! Representatives”) from disclosing, to any Person, until the second anniversary of the Closing Date shall have occurred, any Alibaba Information (as hereinafter defined) that has been previously furnished by or on behalf of Alibaba to any Yahoo! Representative, or is so furnished prior to or on the Closing Date, or otherwise is known to any Yahoo! Party on the Closing Date.  The term “Alibaba Information” means any information concerning Alibaba or any member of the China Group, or the business, activities or operations of Alibaba or any member of the China Group, including but not limited to information relating to pricing, technologies, trade secrets, business plans, processes, strategies, customers, suppliers, financial data, statistics, or research and development, other than information that (i) is or becomes generally available to the public other than as a result of a disclosure by any Yahoo! Party or Yahoo! Representative, or (ii) any Yahoo! Party or Yahoo! Representative is required to disclose by Law or legal process.  The term “Confidential Alibaba Information” means any Alibaba Information that the receiving Yahoo! Party knows or reasonably should know is confidential or proprietary, or that Alibaba or any

 

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member of the China Group has identified in writing to the receiving Yahoo! Party as being confidential or proprietary.

 

(b)  Except as required by the NASDAQ rules or the rules of any other quotation system or exchange on which Alibaba’s securities are listed or applicable Law, Alibaba shall not disclose, shall not permit any member of the China Group (together with Alibaba, “Alibaba Parties”) or any officers, directors or employees of Alibaba or any member of the China Group to disclose, and shall prevent the respective other Representatives and contractors of Alibaba or any member of the China Group (such officers, directors, employees, other Representatives and contractors, “Alibaba Representatives”) from disclosing, to any Person, until the second anniversary of the Closing Date shall have occurred, any Yahoo! Information (as hereinafter defined) that has been previously furnished by or on behalf of Yahoo! to any Alibaba Representative, or is so furnished prior to or on the Closing Date, or otherwise is known to any Alibaba Party on the Closing Date.  The term “Yahoo! Information” means any information concerning Yahoo!, or the business, activities or operations of Yahoo!, including but not limited to information relating to pricing, technologies, trade secrets, business plans, processes, strategies, customers, suppliers, financial data, statistics, or research and development, other than information that (i) is or becomes generally available to the public other than as a result of a disclosure by any Alibaba Party or Alibaba Representative, or (ii) any Alibaba Party or Alibaba Representative is required to disclose by Law or legal process.  The term “Confidential Yahoo! Information” means any Yahoo! Information that the receiving Alibaba Party knows or reasonably should know is confidential or proprietary, or that Yahoo! has identified in writing to the receiving Alibaba Party as being confidential or proprietary.

 

(c)  In the event that any Yahoo! Party is requested in any proceeding to disclose any Alibaba Information, Yahoo! shall give Alibaba prompt written notice of such request so that Alibaba may seek an appropriate protective order.  If in the absence of a protective order any Yahoo! Party is compelled in a proceeding to disclose Alibaba Information, such Yahoo! Party may disclose such portion of Alibaba Information that in the opinion of Yahoo!’s counsel such Yahoo! Party is compelled to disclose, without liability under this Agreement, provided, however, that Yahoo! shall give Alibaba written notice of Alibaba Information to be disclosed as far in advance of its disclosure as is practicable and shall use reasonable efforts to obtain assurances that confidential treatment will be accorded to such Alibaba Information.  In the event that any Alibaba Party is requested in any proceeding to disclose any Yahoo! Information, Alibaba shall give Yahoo! prompt written notice of such request so that Yahoo! may seek an appropriate protective order.  If in the absence of a protective order any Alibaba Party is compelled in a proceeding to disclose Yahoo! Information, such Alibaba Party may disclose such portion of Yahoo! Information that in the opinion of Alibaba’s counsel such Alibaba Party is compelled to disclose, without liability under this Agreement, provided, however, that Alibaba shall give Yahoo! written notice of Yahoo! Information to be disclosed as far in advance of its disclosure as is practicable and shall use reasonable

 

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efforts to obtain assurances that confidential treatment will be accorded to such Yahoo! Information.  Yahoo! agrees that neither it nor any other Yahoo! Party will appropriate any proprietary Alibaba Information for its or their benefit, and Alibaba agrees that neither it nor any other Alibaba Party will appropriate any proprietary Yahoo! Information for its or their benefit.

 

(d)  Yahoo! and Alibaba each acknowledge that the other such party and its Affiliates would be irreparably damaged in the event of a breach or a threatened breach of any of the acknowledging party’s obligations under this Section 6.1, and agrees, and shall cause each member of Yahoo! Group, in the case of Yahoo!, and each member of the China Group, in the case of Alibaba, to agree) that, in the event of a breach or a threatened breach of any such obligation, the other such party shall, in addition to any other rights and remedies available to it in respect of such breach, be entitled to an injunction from a court of competent jurisdiction granting it specific performance of the provisions of this Section 6.1.

 

(e)  The provisions of this Section 6.1 shall not restrict Alibaba or any member of the China Group, or Yahoo! or any other member of Yahoo! Group, from using Information in performing their respective obligations under, or enforcing the terms of, this Agreement or any Ancillary Agreement, or in exercising their respective rights relating hereto or thereto or to the transactions contemplated hereby or thereby.

 

6.2  Publicity.  Except as may be required by the NASDAQ rules or the rules of any other quotation system or exchange on which Yahoo!’s or Alibaba’s securities are listed or applicable Law, neither Yahoo! nor Alibaba shall issue a publicity release or announcement or otherwise make any public disclosure concerning this Agreement, the Ancillary Agreements or the transactions contemplated hereby and thereby, without prior approval of the other party.  The parties will make a mutually agreed joint press release upon execution of this Agreement.  If any announcement is required by Law to be made by any party hereto, prior to making such announcement such party will deliver a draft of such announcement to the other parties and shall give the other parties an opportunity to comment thereon.

 

6.3  COAL Shares.  Subject to obtaining any necessary Governmental Approvals or Consents, Yahoo! and Alibaba shall enter into a transfer agreement, in a form proposed by Alibaba and reasonably satisfactory to Yahoo!, and take any other actions that are necessary to transfer the COAL Shares to Alibaba on the Closing Date or as soon thereafter as is practicable.  Yahoo! shall use reasonable efforts to promptly obtain all such necessary Consents and Governmental Approvals.

 

6.4  Tax Treatment.  Alibaba shall not take or permit any action, or omit to take action, if such action or omission would prevent the direct and indirect transfers of property by Yahoo! described in Section 1 from qualifying as a transfer governed by Section 351 of Code.  Alibaba will cooperate with Skadden, Arps, Slate,

 

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