In this session, our panelists discussed confidentiality agreement considerations, terms often negotiated in confidentiality agreements, as well as the pros and cons of utilizing letters of intent and matters covered therein.
Takeaways
- Focus on the definition of “confidential information” and exclusions in confidentiality agreements. Buyers want a narrow definition and broad exclusions, and sellers want a broad definition and limited exclusions.
- If the disclosing party is a public company, the confidentiality agreement should contain appropriate provisions to ensure compliance with securities laws, and parties should consider whether to include a standstill arrangement.
- Confidentiality agreements may not always prevent the disclosure of confidential information. Disclosing parties should have a contingency plan for dealing with leaks, and take appropriate measures to protect extremely sensitive information.
- Confidentiality agreements should not usurp a seller’s ability to control the sale process.
- Be mindful of the overall deal timeline when negotiating a letter of intent.
- Be careful not to create a binding contract when entering into a letter of intent—clarify which provisions, if any, are binding and which are not binding.
- Even though a letter of intent is not binding, prepare for disputes if parties deviate from the terms set forth therein.
For more information on this topic, please contact our participants.