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 wiselyo Not to throw whatever you knowo Address the concerns of the client properly (25 marks of the exam)o Answer the examo Use Englisho 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 clauseo Describe the issues and how to deal with themo Reasonableness in terms of clauseo 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 transactiono Remedies if there is a breach of the confidentiality deedo 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 Kongo Exclusive jurisdiction or not?

Outline of Section A o Who the client is? Dear Mr. Lam, o Identify the transaction in the introductory paragrapho List out the 4 issues and address each issue one by one o Headings and sub-headingso 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 addedo Describe what clause 7 does? Requested, revise to maintain the

confidentiality after termination of agreement of one yearo 4th issue: liability o Clause 5 should be amended. There is no indemnification section in this

agreement. o Consider whether to have a more objective requiremento All conversations need to be stated as confidential o Describe others ways you want to talk abouto Advise your client on Clause 3 confidentiality for the proposed transactiono Describe what those terms mean in a simple way o Any additional information needed: not compulsoryo Know each type of agreement clearly and address each of them

Sectionn B

CWD Revision Lecture 2013-2014 Mitchell LI

2(a)o The Seller will not procure the company (period):

(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 Joeo Satisfactory to the purchaser

2(c)o Non-solicitation clauseo 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 3o 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:

Preparationo The annotated form o May not find the precedence in the DBo Think about how to address your client’s concernso Plain English o Take away long phrases o

o p