Project Reno: NDA Issues List
Issue Our Initial Position
Definition of “Confidential Information” includes all
“Confidential information “relating, directly or indirectly,
Information” to Denove or its business, including,
without limitation, information related to
Denove’s products, product candidates,
markets, condition (financial or other),
operations, assets, liabilities, results of
operations, cash flows or prospects of
Denove.”
Starting date of “Confidential Information” means all
confidentiality
information relating, directly or
indirectly, to Denove or its business
delivered, disclosed or furnished by or
on behalf of Denove to you, before, on
or after the date hereof, or which you
otherwise learn or obtain, through
observation or through analysis of
such information.
Use of Confidential Information is to be used
Confidential
solely for the purpose of evaluating a
Information
Possible Transaction and for no other
purpose, that the Confidential
Information will not be used in any
way detrimental to Denove.
Use of Confidential Information (i) to which
Confidential
the Company gives its prior written
Information
consent, (ii) as required by law, and
(iii) to your representatives who (a)
Sano’s Revised Position
Deleted the inclusive list of information that should
be treated as confidential (e.g. “information related
to Denove’s products, product candidates, markets,
condition (financial or other), operations, assets,
liabilities, results of operations, cash flows or
prospects of Denove”)
Deleted the words ‘before’ and ‘on,’ i.e., only
those information will be considered
confidential, which will be delivered, disclosed,
or furnished after the date of NDA.
Deleted the clause, “that
the Confidential
Information will not be used in any way
detrimental to Denove.”
Deleted “are provided with a copy of this
agreement” in clause b and added “are made
aware of the general terms of this
agreement.”
Recommended response
Consider accepting. While the deleted list is
helpful in terms of giving examples and
avoiding potential ambiguity, the scope of
what is or is not “Confidential Information” is
likely not impacted by the change, since “all
information relating, directly or indirectly, to
Denove or its business” is still included in the
definition.
Consider accepting. While deleted words
make the information delivered before
signing of the NDA in-confidential, the
sensitive information will be furnished only
after signing of the NDA. Therefore, sensitive
information is not likely to be impacted by the
change.
Consider rejecting. While this does not
change the fact that they will not disclose
confidential information to any third party, the
confidential information can be used by Sano
in anyway detrimental to our client.
Consider accepting. As the representatives
are made aware of the general terms of the
NDA, not providing them with a copy of the
NDA will not impact the confidentiality.
 need to know such information for the
purpose of evaluating a Possible
Transaction, (b) are provided with a
copy of this agreement.
Use of You shall maintain a list of those
Confidential
representatives to whom Confidential
Information
Information has been disclosed (which
list shall be presented to Denove upon
request).
Return or In the event that you decide not to
Destruction of proceed with a Possible Transaction,
Confidential you will promptly inform Denove of
Information that decision. In that case, or at any
time upon the request of Denove in its
sole discretion, you will promptly (a)
deliver, at your expense, to Denove or
destroy, at your option, all
Confidential Information that was
furnished to you by or on behalf of
Denove (and any copies thereof);
provided, however, you may retain
one copy of the Confidential
Information to the extent required to
comply with applicable law.
Destruction of Notwithstanding the return or
Confidential destruction of the, Confidential
Information
Information, you and your
Representatives shall continue to be
bound by your obligations of
confidentiality and other obligations
Deleted the whole clause. Consider rejecting. Presenting this list to
Denovo will help our client keep an eye on
the circulation of confidential information.
Deleting this clause can risk our client’s
confidential information as the information
can be wrongly circulated.
Modified it as “Upon the request of Denove in Consider accepting. Not returning
confidential information, instead destroying
its sole discretion, you will promptly (a) destroy
them, will not impact the confidentiality.
all Confidential Information that was furnished
to you by or on behalf of Denove (and any
copies thereof); provided, however, you may
retain (a) one copy of the Confidential
Information to the extent required to comply
with applicable law.”
Deleted the clause “you and your Consider rejecting. Not binding by the
Representatives shall continue to be bound by obligations of confidentiality even after the
termination of agreement might pose risk
your obligations of confidentiality and other to our client’s confidential information.
obligations and agreements hereunder” and
added "subject to automatic archiving and
back-up procedures”
and agreements hereunder.