Often, in the course of performing due diligence regarding a company's standing and financial status, you'll have to provide access to confidential information. Access to that information could give the recipient an unfair advantage when investing or divesting in your company. In such a case, you can use a Confidentiality and Stand Still Agreement to ensure the information is safe from being revealed to third parties. It also helps prevent the receiving party from using the information for personal gain or taking other hostile actions against your interests.
What Is a Confidentiality and Stand Still Agreement?
A Confidentiality and Stand Still Agreement is a legally binding document that protects proprietary or confidential information shared between two individuals or organizations. In addition to protecting the information from being distributed, this agreement also delays specific actions the receiving party can take.
Often, this sort of agreement is used to protect information disclosed to a person or organization when reviewing a proposed business transaction. It effectively protects the information disclosed and stops the information from being used to solicit employees or trade-in the revealing party's securities.
By including standstill provisions in confidentiality agreements, you can protect your organization from hostile actions resulting from information disclosure, such as a takeover of voting securities. However, the Confidentiality and Stand Still Agreement can also apply to other measures, such as not soliciting or engaging in acquisitions with other parties.
A Confidentiality and Stand Still Agreement protects a potential deal from being soured by disclosing information.
Other Names for Confidentiality and Stand Still Agreement
Depending on your state, a Confidentiality and Stand Still Agreement may also be known as:
- NDA and Standstill
- Confidentiality Agreement with Standstill Provision
- Confidential Disclosure Agreement
- Proprietary Information Agreement
- Secrecy and Standstill Agreement
Who Needs a Confidentiality and Stand Still Agreement?
Confidentiality and Stand Still Agreements are primarily used by organizations involved in evaluating a proposed business transaction. The responsibility for drafting a Confidentiality and Stand Still Agreement falls on the party revealing information.
Typically, when mergers and acquisitions are negotiated, a Confidentiality and Stand Still Agreement effectively stops the process of a potential hostile takeover if a deal can't be reached that's amenable to both sides. Therefore, any business entity engaged in disclosing proprietary information that may lead to their voting stocks' purchase or sale needs a Confidentiality and Stand Still Agreement.
Companies subjected to pressure from aggressive bidders are well-advised to pay close attention to how this agreement is composed. A good Confidentiality and Stand Still Agreement is an excellent way to stall unsolicited approaches and give you more control over future negotiations.
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What Information Will I Need to Create My Confidentiality and Stand Still Agreement?
To create your document, please provide:
- Effective Date: The date when the agreement will be signed and executed.
- Governing State: Select which state's laws will apply to the Confidentiality and Stand Still Agreement.
- Disclosing Party: The full name and address of the person or entity disclosing confidential information.
- Receiving Party: The full name and address of the person or entity receiving confidential information.
- Definition of Confidential Information: The specific details about what information is considered confidential between the two parties.
- Standstill Restrictions: Restrictions placed on the receiving party as a condition of gaining access to confidential information.
- Term: The agreement's duration, after which the receiving party may act freely based on the information disclosed.
Confidentiality and Stand Still Agreement
- Exclusions: In the context of a Confidentiality and Stand Still Agreement, exclusions refer to information not explicitly covered by the agreement or independently acquired.
- Severability: A clause to make the Confidentiality and Stand Still Agreement as a whole valid even if a court rules that parts of it cannot be enforced.
- Non-Circumvention Covenant: A provision that prevents the recipient from using the information revealed to interfere with the revealing party's business relationships.
- Obligation to Disclose: A section of the agreement making it possible to show confidential information without penalty under specific circumstances. Typically, this refers to information requested by a court or administrative entity.
- Solicitation: In the context of a Confidentiality and Stand Still Agreement, solicitation refers to asking employees to leave their company in favor of employment at another place of business.
Confidentiality and Stand Still Agreement Signing Requirements
A Confidentiality and Stand Still Agreement needs to be signed by the disclosing party and the receiving party or their authorized officers. If the signatures are witnessed, the witnesses should also sign the agreement. A Confidentiality and Stand Still Agreement does not need to be notarized to be enforceable.
However, notarizing the signatures on your Confidentiality and Stand Still Agreement is a way to ensure no one challenges them later and firmly establishes the document's validity.
What to Do with Your Confidentiality and Stand Still Agreement
Once signed, distribute a copy of the Confidentiality and Stand Still Agreement to each of the signatories. Each should keep a copy in their respective personal records.
Periodically, it's beneficial for both parties to review the terms of the agreement. The receiving party may come into contact with information not protected in the original agreement, or the disclosing party may not need to protect certain information anymore.
A Confidentiality and Stand Still Agreement can refer to sensitive financial information. Both parties are encouraged to keep the documents in a secure location with limited access.
