Non Disclosure Agreement Representatives

In most years, the definition of representatives will include shareholders, directors, senior executives, members, managers, employees, representatives and advisors of the recipient party. However, where the beneficiary is a private equity firm, the recipient will often attempt to include its holding companies and co-investors in the definition of representatives. When portfolio companies are included in the definition of agents, the seller should determine whether the portfolio companies of the recipient party are strategic competitors of the seller. In this case, the seller (1) should consider obtaining the seller`s prior written approval from the recipient party before making the confidential information available to its holding companies; and (2) ask the buyer to clarify the identity of the holding companies and their representatives who have access to the information. Competition Appeal Confidential Information NDAs Confidentiality and Confidentiality Agreements Similarly, the seller must protect itself when the recipient party insists that potential co-investors be associated with the definition of representatives by asking the recipient party to obtain the seller`s prior written consent before disclosing confidential information to a potential co-investor. For additional protection, the seller may require the buyer to link the co-investor`s written confirmation under the terms of the confidentiality agreement. While the core of the NDA`s negotiations often focuses primarily on the definition of confidential information, the obligation of confidentiality or the survival phase of the NDA, there is an often overlooked subtlety that deserves critical attention from sellers. In particular, the seller must pay close attention to the persons and entities in the definition of “representatives” who have access to the seller`s confidential information.

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