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CWD Revision Lecture 2013-2014 Mitchell LI

Past paper 2012-2013


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

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