Expertises connexes

In a shareholder agreement, in addition to non-competition and non-solicitation clauses, it may be particularly important to include a non-disclosure agreement (hereafter « NDA ») in order to ensure protection of any of the company’s confidential information, such as secrets, inventions, patents, manufacturing processes, business plans, contacts and customers. The NDA differs from the non-competition clause since it only covers the prohibition on disclosing the activities and information of the company during the holding of the shares and after the disposal of the shares, and not the prohibition of the exercise of the activities of the shareholder in a restricted area.

Thus, a shareholder, by signing a shareholders’ agreement containing such a clause, commits not to disclose, publish or reveal sensitive information of the company and not to use it himself for his own purposes. In addition, this clause may be accompanied by a penalty clause or even a mandatory clause, at a punitive price in the event of non-compliance with the confidentiality clause.

Finally, a NDA can provide for the protection of the shareholders’ agreement itself as well as any document belonging to the company. On the other hand, it should be noted that this clause cannot have any effect on the confidentiality agreement between shareholders with regard to creditors when it is a unanimous agreement or when a company is subject to the Act respecting Access to documents held by public bodies and the protection of personal information.1 This NDA therefore confers a very important benefit to the company by allowing the protection of the value of the company, this one consisting of the trade secrets relating to the functioning of the company, as well as the data which ensure that it is successful.

The drafting of any shareholders’ agreement and any other contract therefore requires rigorous planning in order to properly protect the company and its members. Our team of lawyers specialized in commercial and corporate law will be able to assess the situation with you in order to take accountable all the possible considerations that may arise when drafting any agreement contract.

1Act respecting Access to documents held by public bodies and the Protection of personal information, RLRQ, c. A-2.1