asset acquisitions - Jackson Walker LLP

Because Article 12 assumes that a confidentiality agreement has already beensigned, Article 12 is balanced, and not as favorable to the Buyer as it could be. Drafting asection heavily favoring the Buyer would have required substantial deviation from the termsof the typical confidentiality agreement and resulted in inconsistent treatment of informationas confidential or not. A drafter may want to consider this coverage issue when preparing anagreement for a specific transaction.12.1 DEFINITION OF CONFIDENTIAL INFORMATION(a) As used in this Article 12, the term “Confidential Information” includes any and allof the following information of Seller, Buyer or Shareholders that has been or may hereafter bedisclosed in any form, whether in writing, orally, electronically, or otherwise, or otherwise madeavailable by observation, inspection or otherwise by either party (Buyer on the one hand or Sellerand Shareholders collectively on the other hand) or its Representatives (collectively, a “DisclosingParty”) to the other party or its Representatives (collectively, a “Receiving Party”):(i)all information that is a trade secret under applicable trade secret or other law;(ii) all information concerning product specifications, data, know-how, formulae,compositions, processes, designs, sketches, photographs, graphs, drawings, samples,inventions and ideas, past, current, and planned research and development, current andplanned manufacturing or distribution methods and processes, customer lists, current andanticipated customer requirements, price lists, market studies, business plans, computerhardware, Software, and computer Software and database technologies, systems, structuresand architectures;(iii) all information concerning the business and affairs of the Disclosing Party (whichincludes historical and current financial statements, financial projections and budgets, taxreturns and accountants’ materials, historical, current and projected sales, capital spendingbudgets and plans, business plans, strategic plans, marketing and advertising plans,publications, client and customer lists and files, contracts, the names and backgrounds of keypersonnel, and personnel training techniques and materials, however documented), and allinformation obtained from review of the Disclosing Party’s documents or property ordiscussions with the Disclosing Party regardless of the form of the communication; and(iv) all notes, analyses, compilations, studies, summaries, and other material prepared bythe Receiving Party to the extent containing or based, in whole or in part, on any informationincluded in the foregoing.(b) Any trade secrets of a Disclosing Party shall also be entitled to all of the protectionsand benefits under applicable trade secret law and any other applicable law. If any information thata Disclosing Party deems to be a trade secret is found by a court of competent jurisdiction not to be atrade secret for purposes of this Article 12, such information shall still be considered ConfidentialInformation of that Disclosing Party for purposes of this Article 12 to the extent included within thedefinition. In the case of trade secrets, each of Buyer, Seller and Shareholders hereby waives anyrequirement that the other party submit proof of the economic value of any trade secret or post abond or other security.3148166v1- 178 -