Strictly private and confidential To: [insert buyer name] [insert buyer address] Date: [insert date] Dear [insert buyer contact name], Proposed acquisition of [insert target company name] Limited 1 Introduction 1.1 We refer to our recent discussions concerning the proposed sale by [insert seller name] (Seller) of [the entire issued share capital OR [insert other description of number of shares being sold]] of [insert target company name] Limited (the Company) (the Sale Shares) to [insert buyer name] (or member of its group of companies) (the Buyer) (the Proposed Acquisition). Each of the Seller and the Buyer is a party and together they are the parties. 1.2 You have requested certain Confidential Information [(and Personal Data) ]([each as ]defined below) be made available to you, your directors, officers, employees, agents and [legal and financial advisers OR professional advisers OR advisers] in order to enable both you and them to evaluate the Company [and its subsidiaries (the Group),] and to consider and negotiate the terms of the Proposed Acquisition. In consideration for the Seller agreeing to supply, and supplying, the Confidential Information to you and your representatives

Strictly private and confidential To: [insert buyer name] [insert buyer address] Date: [insert date] Dear [insert buyer contact name], Confidentiality Undertaking Proposed acquisition of [insert target company name] Limited 1 Introduction 1.1 We refer to our recent discussions concerning the proposed sale by [insert names of each individual seller] (Sellers) of [the entire issued share capital OR [insert other description of number of shares being sold]] of [insert target company name] Limited (the Company) (Sale Shares) to the [insert buyer name] (or a member of its group of companies) (the Buyer) (the Proposed Acquisition). Each of the Sellers and the Buyer is a party and together they are the parties. 1.2 You have requested certain Confidential Information [(and Personal Data) ]([each as ]defined below) be made available to you, your directors, officers, employees, agents and legal and financial advisers in order to enable both you and them to evaluate the Company [and its subsidiaries (the Group)] and to consider and negotiate the terms of the Proposed Acquisition. In consideration for the Sellers agreeing to supply, and supplying, the Confidential Information to

[insert name and address of sender] (We) Our ref: [insert reference] Your ref: [insert reference] [Insert address of recipient] (You) 1 In this letter, the following terms have the following meanings: 1.1 Affiliate means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; 1.2 Authorised Persons means the officers, directors, members, partners, employees, consultants, sub-contractors, agents, representatives or professional advisers of a party and/or of its Affiliate(s); 1.3 Confidential Information means all information of a confidential nature that either we or you have or acquire from the other (whether directly or indirectly) including the other’s know-how, trade secrets, plans, developments, financial, commercial, technical, tactical, strategic, marketing, operations, customer or product information, personnel information, any information agreed to be or marked as confidential, any other information either we or you know, or could be reasonably expected to know, is confidential and any other such information related to or concerning the other’s business, but excluding information that is or becomes in the public domain other than through breach of an obligation of confidence, or which the party to whom the Confidential

Competition analysis: Will unredacted confidential versions of decisions of the European Commission need to be published following a recent decision? Peter Scott, partner, and James Flett, associate in the antitrust and competition team at Norton Rose Fulbright, say this case will be a welcome development for claimants frustrated by the delays caused by the Commission in publishing its decisions.

Arbitration analysis: This decision is a good example of the balancing act required when deciding whether to publish a judgment on an arbitration claim and shows how the courts might weigh up the factors militating in favour of publicity against the desirability of preserving the confidentiality of the original arbitration and its subject matter. In this particular case, although some credible arguments against publishing the judgment were made, the very strong legitimate public interest in the operation and practice of arbitration overcame those arguments. Written by Oliver Browne, partner at Paul Hastings (Europe) LLP.

Information Law analysis: The defendant in this case argued that confidential documents he had misappropriated during his employment were now ‘in the public domain’ due to their disclosure in separate Employment Tribunal proceedings between the parties, and therefore no longer subject to confidentiality. The High Court held that reference to documents in open court and inclusion of documents in court bundles did not automatically negate confidence, and that here the documents remained confidential and imposed an injunction in relation to their further disclosure. Factors taken into account in this determination included: the wrongful acts of the defendant in initially obtaining the information; the fact that the documents were not accessible to the public without an application to the court (and that no such applications had been made); and the nature and sensitivity of the confidential information itself, which included personal and financial data of personnel and customers of the claimant. Written by Catherine Keeling, associate at Ropes & Gray LLP.

Where the Secretary of State for Defence claimed Public Interest Immunity over certain documents, the court ordered the creation of a confidentiality ring to include the claimant’s solicitors but not the claimant himself. The court will only make such an order in circumstances where the client’s legal team consents and is of the view that it will not damage their client’s interests. The danger of inadvertent disclosure in a judicial review case should not prevent disclosure to a confidentiality ring.

Why you need to manage this risk Confidential information is one of the most valuable assets of any business. Confidentiality is frequently the best way of protecting trade secrets and valuable know-how where these are not otherwise adequately protected by intellectual property rights, or where using the protection of intellectual property rights is unattractive for commercial reasons. Breach of confidentiality can directly cause the loss of a key business asset and/or business disruption. Examples of items which might be considered confidential within a business include: • commercial records such as price lists, customer lists, details of customers, suppliers, business partners and relationships with regulators or other third parties • unpublished copyright works • mathematical formulae and manufacturing techniques, processes, designs, drawings and engineering • secure codes and algorithms • personal employee information such as compensation arrangements, benefits, hours of work etc • confidential information about your employees (eg performance review information, information and sickness records) • hardware configuration information • plans, sketches and diagrams • software, developments, inventions • any information relating to the company’s

Confidentiality is often cited as one of the cornerstones of the arbitral process and one of the reasons why parties opt for arbitration over court litigation. The reality is, however, that confidentiality is not a given and will be determined by a matrix of national legislation, court decisions and applicable arbitration rules. Confidentiality should not be assumed and an express agreement should be considered to ensure the required levels of protection are provided. For more guidance on the law of confidentiality in arbitration proceedings, see Practice Notes: Arbitration and confidentiality at common law (England and Wales) and Confidentiality in international arbitration. Each of the major sets of arbitration rules contains confidentiality provisions in some form and it is important to be clear about the applicable confidentiality provisions in each relevant arbitration. This Practice Note isolates the key provisions on confidentiality under those arbitration rules, in alphabetical order. Confidentiality and the Abu Dhabi Commercial Conciliation & Arbitration Centre (arbitrateAD) The Abu Dhabi Commercial Conciliation & Arbitration Centre (arbitrateAD)

This Practice Note explains the concept of confidentiality from the perspective of an in-house lawyer. It is written for banking and finance lawyers working in banks or other financial institutions. It highlights where issues of confidentiality may arise for in-house banking and finance lawyers and practical steps which can be taken to deal with these. What is confidentiality? Obligations of confidentiality can arise in many different ways and contexts. This Practice Note focuses on areas where confidentiality can arise when working in-house in the context of banking and finance transactions. It does not deal with lawyers' (and other professionals') professional duties of confidentiality. Legal obligations of confidentiality can arise from the following: • common law (including the banker's duty of confidentiality) • contractual obligations, and • statutory protections If a breach of confidentiality is proved, an injunction (temporary or permanent), damages or an account of profits may be ordered, and also the destruction or delivery up of any physical evidence of the information. Common law obligations of confidentiality There is an established jurisdiction in

Introduction The following provides an overview of confidentiality agreements in the context of the acquisition of the assets of a business (the business). A confidentiality or ‘non-disclosure’ agreement will usually be signed early on in the transaction and before the seller provides any information to the buyer. Confidentiality provisions may be contained in a separate agreement or may be included in heads of terms. A separate confidentiality agreement is more common than incorporating such provisions into heads of terms, not least because often information is shared before the parties are in a position to agree heads of terms and as part of the process of ascertaining if there is a deal to be explored. Purpose and nature of a confidentiality agreement In an asset purchase transaction, the seller will typically disclose to the buyer sensitive information relating to the seller and the business to enable the buyer to conduct its due diligence. The information disclosed may include legal, financial, commercial, technical or operational information relating to the business, assets or operations being sold. The seller’s primary concern will be that

The following provides an overview of confidentiality agreements in the context of the acquisition of shares in a company (the target). A confidentiality or ‘non-disclosure’ agreement will usually be signed early on in the transaction. Confidentiality provisions may be contained in a separate agreement or may be included in heads of terms. A separate confidentiality agreement is more common than incorporating such provisions into the heads of terms. Purpose of a confidentiality agreement In a share purchase transaction, the seller will disclose to the buyer sensitive information about it, the target, the target’s group companies and their respective businesses to enable it to conduct its due diligence. The seller’s main concern will be that such information is kept secret and is protected from unwanted disclosure or misuse by the buyer (who may be a competitor) or other persons to whom such information is disclosed. The common law provides the seller with a certain degree of protection. Where the seller informs the buyer or the buyer ought reasonably to know from the circumstances that the information is of a confidential nature