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Overview Confidentiality Agreements: - Arise in various contexts, including M&A, employment, sharing of intellectual property, joint ventures and other business relationships - Protect sensitive information and transaction details from disclosure - Prevent improper use of Information - May give Seller control over process Significance: - Often viewed as “standard” or “boilerplate” but may have unintended consequences, restricting Buyer’s activities in the industry and Buyer’s options as the negotiations progress, even if a transaction never materializes - Terms may prove very consequential in the event of a subsequent dispute between the parties Mutuality: One-Way or Two-Way? - Sellers often “hold the pen” on the CA, resulting in Buyers receiving proposed CAs that are “one-way,” serving only to restrict Buyer’s activity. - Buyers often modify the CA to restrict Seller if Buyer will be disclosing information to the Seller. - Other provisions often made “symmetrical” include: restrictions on disclosing deal info and identities of parties, forum selection, “No Deal Until There’s a Deal” provisions, and remedies. 2
Selected Issues Definition of Confidential Information Definition of Representatives and Responsibility for Breach Permitted Uses of Confidential Information Keeping Quiet About the Deal and “Stalking Horse” Risk Disclosures Required by Law Non-Solicitation of Employees & Standstills Most Favored Nation Clauses Financing and Clubbing Provisions Return or Destruction of Materials “No Deal Until There’s a Deal” Disclaimer of Accuracy of Confidential Information Term Enforcement and Remedies Applicable Law & Forum/Where Lawsuits May Be Brought Indemnification and Legal Costs Signatories 3
Page 1: Confidentiality Agreements in M&A T
Page 5 and 6: Competitively Sensitive Information
Page 7 and 8: Definition of Representatives The d
Page 9 and 10: Permitted Uses of Information and U
Page 11 and 12: Keeping Quiet about the Deal & “S
Page 13 and 14: Non-Solicitation of Employees Selle
Page 15 and 16: Standstill Sellers may propose a
Page 17 and 18: Most Favored Nations Clause (MFN)
Page 19 and 20: Return or Destruction of Materials
Page 21 and 22: Disclaimer of Accuracy of Confident
Page 23 and 24: Indemnification and Legal Costs Sel
Page 25 and 26: Applicable Law: What Law Governs th
Page 27: Signatories - Who is Signing the CA

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