Cross-Border Unilateral Confidentiality and Non-Disclosure Agreement

Summary

This template Cross-Border Unilateral Confidentiality and Non-Disclosure Agreement, or NDA, protects the confidential and proprietary information of a seller in a private cross-border asset, stock, or merger transaction during the due diligence and negotiation process. This template includes practical guidance, drafting notes, alternate clauses, and optional clauses. This NDA is (1) jurisdiction-neutral but styled as commonly drafted in the U.S. and (2) drafted in favor of the disclosing party, to unilaterally protect the confidential information of the selling side only, since only the seller's business and financial information will be reviewed in due diligence. For an example of a mutual NDA, see Mutual Confidentiality and Non-disclosure Agreement. This template is intended for use in a private M&A transaction and does not contain a standstill, but for a further discussion on confidentiality agreements involving public entities, see Confidentiality/Non-Disclosure Agreements in Public M&A Deals. Counsel should tailor this NDA to suit the relevant transaction structure and local custom. When drafting an NDA in the cross-border context: • Additional consideration is required regarding the enforceability of the NDA. This involves factors such as the forum, governing law, and dispute resolution mechanics of the underlying transaction, and also requires analysis of available enforcement rights (i.e., if the counterparty has no local assets in the jurisdiction of the dispute). Guidance on these points is given in the drafting notes. See Dispute Resolution in International Jurisdictions and Enforcement of Foreign Judgments in International Jurisdictions • Counsel should review jurisdiction-specific factors that have a large potential impact, such as those related to antitrust/competition and data privacy/protection. For additional information on antitrust/competitive concerns, see the Merger Control in International Jurisdictions and European Commission and Competition Law (EU). For more guidance regarding data privacy/protection, see Data Protection and Privacy in International Jurisdictions. A general data privacy provision in included in this template. • Depending on the industry or products involved in the transaction, export regulations may need to be considered (for instance, see ITAR, EAR, and FTR Fundamentals). For more general information regarding NDAs, see Confidentiality and Non-disclosure Agreements Resource Kit and Confidentiality and Non-disclosure Agreement Drafting Checklist. For additional guidance on cross-border preliminary steps, see Private M&A in International Jurisdictions and Cross-Border Acquisitions: Top 10 Pre-deal Considerations.