Question 2(c) Use definition if it is more understandable for your client Use your judgment whether to use definition Assets described in the clause (Assets) hereto is not plain English Question 3(c) Full definition of confidential information Question 3(a) Use the defined terms provided to you in the question Complete definition if you choose to use one
Reliance on DB Free to use precedence as a starting point Must use plain English No to use hereto and after Not specific requirements for numbering The Seller must . (a) (b) (c) Failed: o Not to manage the time wisely o Not to throw whatever you know o Address the concerns of the client properly (25 marks of the exam) o Answer the exam o Use English o Organisation and put it in a proper way o Address the issues of the client o Must respond to the client and deal with each issue o Understanding what the client wants Focus on what is being asked Legal approach Any evidence of restraint of trade in the question! Application of facts to the letter Restraint of trade: did not talk about it in the large group o They are only for reference o Not to do cascading clause o Describe the issues and how to deal with them o Reasonableness in terms of clause o Geographical area o How to make the clause enforceable? If the instruction is Do not draft the clause , do not draft the clause o Which agreement and what is /are the clause(s) about? CWD Revision Lecture 2013-2014 Mitchell LI o Read the question and do what the question tells you Letter format o Prepare for the letter before the exam Past paper 2012 Practical and commercial impact of the deed of confidentiality Address the 4 issues first Term of deed should not longer than one year Express permission Confidentiality agreement: o Compelled by law to disclose (not to breach the law) o Confidential information: unclear about the meaning o Advise our client what is the scope of undertaking (definition of confidential information) o The use of information: only for the proposed transaction o Remedies if there is a breach of the confidentiality deed o Survivorship of obligations: add a one year term to it o Applicable law: non exclusive o Don we need Certainty that our client can only be sued in Hong Kong o Exclusive jurisdiction or not?
Outline of Section A o Who the client is? Dear Mr. Lam, o Identify the transaction in the introductory paragraph o List out the 4 issues and address each issue one by one o Headings and sub-headings o Insert an Analysis section (follow the above numbering scheme) o It does not have to be long o Definition section should be revised How o address it? Where to address it? o Better answer: exceptions (information publicly known, information received from 3 parties) o New clause should be added o Describe what clause 7 does? Requested, revise to maintain the confidentiality after termination of agreement of one year o 4 th issue: liability o Clause 5 should be amended. There is no indemnification section in this agreement. o Consider whether to have a more objective requirement o All conversations need to be stated as confidential o Describe others ways you want to talk about o Advise your client on Clause 3 confidentiality for the proposed transaction o Describe what those terms mean in a simple way o Any additional information needed: not compulsory o Know each type of agreement clearly and address each of them Sectionn B 2(a) o The Seller will not procure the company (period): CWD Revision Lecture 2013-2014 Mitchell LI (1) to distribute dividends (2) conduct the business in its ordinary way 2(b) o Closing t is conditional upon the receipt of a signed Employment agreement between the Company and the employee Pang-Fan Joe o Satisfactory to the purchaser 2(c) o Non-solicitation clause o Employer will not within (a geographical area) and during X years solicit customers and any employee of the Employer.
Identify the type of clause quickly and modify it with Plain English
Question 3 o The board resolution decision requires unanimous decision o None of the filing action may be taken by the company unless approved by unanimous resolution of the Board; o (1) entering into or termination of material contracts including (a) contracts with one of the shareholders; (b) contracts at a consideration of more than HK$1 million o The appointment and removal of management
Question (b) o If there is any inconsistency between xx and xx, the provisions of this agreement will bind.
Question (c) o A party must not assign his right in this Agreement without the consent of the other party except:
Preparation o The annotated form o May not find the precedence in the DB o Think about how to address your clients concerns o Plain English o Take away long phrases o o p