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Drafting - PPT Presentation

and Reviewing Confidentiality Agreements West LegalEdcenter 2012 Presenters Ken Adams Chris Lemens Glenn West 2 Initial Questions Whether to enter into a confidentiality agreement Oneway ID: 461260

confidential information company party information confidential party company edgar extracts confidentiality agreement procedures parties disclosing disclosure representatives breach services purpose widget street

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Slide1

Drafting and ReviewingConfidentiality Agreements

West LegalEdcenter

2012Slide2

PresentersKen AdamsChris LemensGlenn West

2Slide3

Initial QuestionsWhether to enter into a confidentiality agreementOne-way or two-way?

3Slide4

ContextOngoing relationshipIncludes employer–employee relationshipProposed transaction

Includes M&A transactions

4Slide5

Defining "Confidential Information"General definitionDoes it include information disclosed before the date of the agreement?

Exclusions

Relevance of personally identifiable information

5Slide6

Maintaining Confidentiality"Term"For how long is confidential information going to be disclosed?

For how long does the recipient have to not use or disclose the information?

Distinguishing between trade secrets and other information

6Slide7

Disclosure ProceduresSpecified representativesMarkingGiving notice

7Slide8

Unauthorized Disclosure or UseData-security measuresMaking the recipient responsibleLanguage alternatives

8Slide9

Action on TerminationReturn or destroy?ExceptionsRecords-retention policy

Storage in backup media

File copies

9Slide10

No SolicitingNo soliciting v. no hiringPermutationsGeneral-advertising exemption

10Slide11

MiscellaneousReverse engineeringResidual informationBoilerplateLitigation v. arbitration

Exclusion of damages

11Slide12

ProcessDraftingDocument assemblyReviewAutomated document analysis (GreenLine, BaseLine, kiiac)

12Slide13

Extracts from EDGAR THIS CONFIDENTIALITY AGREEMENT is entered into by and between Acme Corp., a Delaware corporation,

and its wholly owned subsidiaries

(“Acme”),

and

Widgetco

, Inc.,

a New York corporation (“

Widgetco

”),

through their authorized representatives, and takes effect on the date executed by the final party (the

“Effective Date”).

13Slide14

Extracts from EDGARConfidential Information includes, but is not limited to, the following: (a) Customer records, identity of vendors,

suppliers, or

landlords, profit and performance reports, prices, selling and pricing procedures and techniques, and financing methods of the Company; (b) Customer lists and information pertaining to identities of the customers, their special demands, and their past, current and anticipated requirements for the products or services of the Company; (c) Specifications, procedures, policies, techniques, manuals, databases and all other information pertaining to products or services of the Company, or of others for which the Company has assumed an obligation of confidentiality; (d) Business or marketing plans, accounting records, financial statements and information, and projections of the Company; (e) Software developed or used by the Company; (f) Information related to the Company’s retailing, distribution or administrative facilities; and (g) Any other information identified or defined as confidential information by Company policy

.

14Slide15

Extracts from EDGARThe obligations of this Section shall not apply to ... (c) information which was rightfully in the possession of the receiving party prior to disclosure by the disclosing party; or ... .15Slide16

Extracts from EDGARThis Agreement shall be inoperative as to any portion of the Information that (i) is or becomes generally available to the public on a non-confidential basis through no fault by you or your Representatives, or (ii) is or becomes available to you on a non-confidential basis from a source other than the Company, Widget Client

Services, [NAME OF LENDER] or their respective

Representatives … .

16Slide17

Extracts from EDGARPursuant to Section 48.05 of that certain Lease, dated as of July _____, between Acme Finance Inc. (the

“Company”)

and 85

Widget Street

LLC (the

“Landlord”)

for certain space at 85

Widget Street

,

Widgetville

,

New York (the

“Property”),

the Company is obligated to provide to Landlord certain non-public, confidential, proprietary financial information with respect to the Company and its affiliates

(“Confidential Information”).

17Slide18

Extracts from EDGAREach party agrees: (i) to maintain the other party’s Confidential Information in strict confidence; (ii) not to disclose such Confidential Information to any third parties; and (iii) not to use any such Confidential Information for any purpose except for the Business Purpose.

18Slide19

Extracts from EDGARThe receiving party shall treat as strictly confidential, and use all reasonable efforts to preserve the secrecy and confidentiality of, all Confidential Information received from the disclosing party, including implementing reasonable physical security measures and operating procedures.

19Slide20

Extracts from EDGARThis Confidentiality Agreement may be terminated by either party upon breach by the other party of any its obligations hereunder and such breach is not cured within three (3) calendar days after the allegedly breaching party is notified by the disclosing party of the breach.

20Slide21

Extracts from EDGARALL CONFIDENTIAL INFORMATION IS PROVIDED BY THE DISCLOSING PARTY “AS IS

.”

EXCEPT

AS MAY OTHERWISE BE SET FORTH IN A SIGNED, WRITTEN AGREEMENT BETWEEN THE PARTIES, THE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS, CONDITION, SUITABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OF ANY CONFIDENTIAL INFORMATION, AND THE PARTIES SHALL HAVE NO LIABILITY WHATSOEVER TO ONE ANOTHER RESULTING FROM RECEIPT OR USE OF THE CONFIDENTIAL INFORMATION.

21