This website uses cookies to ensure you get the best experience on our website. Learn more

LPC Law Notes Private Acquisitions Notes

Confidentiality Agreements Notes

Updated Confidentiality Agreements Notes

Private Acquisitions Notes

Private Acquisitions

Approximately 339 pages

A collection of the best Mergers and Acquisitions* notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

In short, these are what we believe to be the strongest set of Mergers and Acquisitions notes available in the UK this year. This collection is f...

Available here

The following is a more accessible plain text extract of the PDF sample above, taken from our Private Acquisitions Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

CONFIDENTIALITY AGREEMENTS

Why are Confidentiality Agreements needed?

  1. Protect commercial position

  • ensures confidential information is only used in connection with the proposed purpose ("permitted purpose")

  • ensures certainty and contractual remedies in the event of breach

  1. Written down

  • Clarity of obligations

  • Clarity of remedies

  • Clarity of confidentiality

  1. No statutory framework to protect confidential information

  • Both parties know where they stand.

  • Do not have to rely on the equitable duty not to take advantage where you come into contact with confidential information and you knew or ought to know it was confidential information.

  1. Keep the deal and its terms secret

  • prevent causing unrest with employees and third parties (such as suppliers and customers) which may disrupt Business.

  • if the acquisition fell through, the terms on which S would be willing to sell would weaken their negotiating position with any other potential Bs.

  1. Protect clients, customers and employees being solicited

Limitations

  • There is no guarantee that breach will not occur

  • Hard to monitor the information and any possible breaches.

  • Money is unlikely to adequately replace damage to Business.

  • Difficult to prove - how do you prove the other party is using the confidential information? Do they even know they're using it?

  • Injunction is of limited use - used after Breach and may be too late.

How else can the parties manage confidential information?

  • Restrict recipients

  • Record of who has what, how many copies, and when it is to be handed back

  • Process to record oral confidential information

  • Mark confidential information as confidential

  • Grade disclosure

  • Restrict employees who B can talk to and have a single point of contact with whom all communicates should go through


What should go into the Confidentiality Agreement?

Provisions to protect - SELLER

  1. Obligations on B

  1. undertakes to keep the information secret and confidential

  2. undertakes to only use the information for the permitted purpose (i.e. for the purpose of the acquisition)

  3. Restrict making copies of confidential information.

  4. Restrict disclosure of the confidential information by listing the allowed persons (e.g. employees/advisers).

  5. Ensure third parties enter into a confidentiality agreement.

  6. Prohibit B from making any commercial use or gain from the confidential information.

  1. Restrictions on B

  1. Non-solicitation clause prohibiting B from contacting the employees, customers, suppliers, etc of S.

  2. Prohibit B from contacting/communicating with any person other than a designated person nominated by S.

  1. Ensure that obligations/definitions are not too wide

e.g. confidential information should not include information in the public domain or information known by B prior to the negotiations otherwise = unlawful restraint of trade.

  1. Insert provisions for the return of confidential information

Provision for returning (hard copy) or destroying (electronic) confidential information if the deal falls through or S requests it.

  1. Remedies

  1. Indemnity - much better than contractual damages which requires (a) damages, (b) which are not too remote, and (c) mitigation of loss. An indemnity bypasses remoteness and the duty to mitigate loss (can also claim all costs irrespective of loss)

  2. Injunctions and specific performance orders

  3. B waiving right to oppose the granting of any equitable relief? = 'estoppel' - cannot defend if go for an injunction (which is at the discretion of the court) - no legal...

Buy the full version of these notes or essay plans and more in our Private Acquisitions Notes.

More Private Acquisitions Samples