Class 2 Slides -- Fall 2009

Class 2 Slides -- Fall 2009 - ▪ Restrictions and...

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[NYCorp: 2568627.7] 1 Class 2 Confidentiality Agreements, Due Diligence
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[NYCorp: 2568627.7] 2 Confidentiality Agreements Why do sellers request confidentiality agreements? Why do buyers agree to them? Confidential business information Trade secrets have some (but inadequate) legal protection Knowledge of existence of the deal Is the buyer a competitor?
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[NYCorp: 2568627.7] 3 Select CA Provisions Definition of confidential information Company information plus recipient’s work product Typical exceptions to what is treated as “confidential” Restriction on use Restriction on disclosure Typical exceptions (e.g., disclosure required by law) Early notice and protective order provisions “No poach” of employees Return vs destruction of data Duration
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[NYCorp: 2568627.7] 4 Due Diligence: Purposes Includes business and legal evaluations Identify and assess: The business case for the transaction, including Historic performance Trends “Synergy” opportunities
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Unformatted text preview: ▪ Restrictions and impediments on the deal ● Change of control clauses ● “Anti-assignment” provisions ● Consent requirements ▪ Contingent liabilities [NYCorp: 2568627.7] 5 Due Diligence: Scope ► May include: ▪ Discussions with management ▪ Discussions with customers ▪ Review of contracts (e.g., debt agreements, employment agreements, supply agreements, agreements with customers, etc.) ▪ Review of regulatory issues (such as likelihood of receiving anti-trust and other governmental approvals) ► May include due diligence by buyer’s financing sources [NYCorp: 2568627.7] 6 Due Diligence ► Relationship to: ▪ Representations and warranties and the disclosure letter ▪ Indemnities ► Willingness of buyer to rely on indemnification ► Willingness of seller to accept risk ► The nature and scope of due diligence sets up some key negotiations in the purchase agreement...
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Class 2 Slides -- Fall 2009 - ▪ Restrictions and...

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