Confidentiality Agreement (NDA)

Confidentiality Agreement (NDA)

Drafts professional-grade NDAs for corporate transactions, M&A, partnerships, and sensitive business discussions. Supports mutual and unilateral structures.

Quick Start

Gather before drafting:

1. Parties — legal names, entity types, addresses; clarify subsidiary/parent relationships
2. Transaction type — acquisition, JV, licensing, partnership, or exploratory
3. Direction — mutual (both disclose) or unilateral (one-way)
4. Sensitivity — determines care standard, duration, standstill/non-solicit need
5. Governing law — jurisdiction for choice of law and venue

Core Workflow

1. Header & Recitals

• Title reflects mutual vs. unilateral; reference transaction if applicable
• Effective date: typically date of execution
• State specific transaction type and permitted scope of use
• Include: "No obligation to proceed with any transaction"

2. Definition of Confidential Information

Include: financial data, business plans, customer/supplier lists, technical IP, personnel info, trade secrets, and the existence of discussions themselves.

Standard exclusions:

• Public domain at time of disclosure or becomes public without breach
• Already in receiving party's possession (written evidence required)
• Independently developed (contemporaneous written records required)
• Received from non-obligated third party

All information qualifies regardless of marking. Best practice: mark written materials, confirm oral disclosures in writing within a reasonable period.

3. Obligations & Permitted Disclosures

Core obligations:

• Use solely for evaluating the stated transaction — no competitive use
• Care standard: same as own confidential info, no less than reasonable care
• No third-party disclosure without prior written consent

Permitted representatives (need-to-know only): officers, directors, involved employees, attorneys, accountants, financial advisors, consultants. Representatives must be informed of obligations and bound by terms at least as restrictive. Receiving party is liable for representative breaches.

Compelled disclosure: prompt written notice to disclosing party, cooperate to limit scope, disclose minimum required, seek confidential treatment.

4. Protective Provisions

Non-solicitation (when appropriate): covers employees contacted or learned about during evaluation. Typically 1–3 years. Includes direct and indirect solicitation.

Standstill (acquisitions, especially public targets): prohibits acquiring securities, proposing mergers, proxy solicitation, forming shareholder groups. Typically 6 months–2 years. Exceptions: board consent, unsolicited proposals, third-party acquisition announcements.

No obligation to transact: binding commitments arise only from definitive written agreements. LOIs and term sheets non-binding except provisions expressly designated.

5. Term & Return/Destruction

• Confidentiality duration: 2–5 years (3 typical); trade secrets indefinite
• On written request or termination: return or destroy all materials, copies, excerpts, analyses, and derivatives
• Reasonable steps to delete electronic copies; backups remain subject to obligations
• Written certification by authorized officer confirming compliance

6. IP, Remedies & Boilerplate

IP disclaimers: no license or rights granted by disclosure; no representations on accuracy/completeness.

Remedies: breach causes irreparable harm; equitable relief (TRO, injunction) available without bond, in addition to damages. Consider prevailing-party fees and liquidated damages.

Governing law: specified state, without conflicts-of-law principles. Exclusive jurisdiction in chosen venue. Consider jury waiver or arbitration.

Standard boilerplate: entire agreement, written amendments only, no waiver by conduct, severability with reformation, no assignment without consent.

7. Execution

Signature blocks: signature, printed name, title, date per party. Verify signatory authority.

Pitfalls & Checks

• Mutual symmetry — if mutual, all obligations must apply symmetrically to both parties
• Public companies — address Regulation FD, insider trading, MNPI restrictions; coordinate standstill with securities counsel
• Cross-border — address GDPR (EU parties), export controls, cross-border enforcement
• Electronic execution — ensure E-SIGN Act / UETA compliance [VERIFY]
• Scope calibration — exploratory partnerships need narrower terms than full M&A due diligence
• Do not override legal compulsion to disclose (unenforceable)
• Do not add standstill for private companies unless specifically requested