Mutual Confidentiality and Non-disclosure Agreement

Summary

This template is a Mutual Confidentiality and Non-disclosure Agreement (NDA) which is intended to protect the confidential and proprietary information of both parties in an acquisition transaction during the due diligence and negotiation process. This template includes practical guidance, alternate clauses, and drafting notes. This template provides for mutual confidentiality and non-disclosure obligations in a friendly, non-auction scenario. In certain circumstances – for instance, where the buyer will be issuing stock to the seller – there will be a bilateral exchange of information, and thus the parties may enter into a mutual NDA. This template is not appropriate in an auction context, where the seller may have several bidders to choose from and thus is in a stronger negotiating position relative to the bidders regarding the use of its confidential information. Confidentiality agreements can pose complex information, personnel, and planning issues for the parties to a transaction, and the exchange of confidential information can also raise antitrust issues as it relates to the sharing of competitive or potentially competitive sensitive information. The primary areas of concern for the seller and buyer may vary from transaction to transaction. Counsel should discuss these issues thoroughly with its client and add additional provisions with respect to specific information or types of information as necessary. If the seller is publicly traded, it may consider including a standstill provision in this template. For comprehensive collections of resources organized by transaction structure, see Asset Acquisition Resource Kit, Stock Acquisition Resource Kit, Public Merger Transaction Resource Kit, and Private Merger Transaction Resource Kit. For additional resources relating to confidentiality agreements in M&A deals, see the following related content in Practical Guidance: • Confidentiality/Non-Disclosure Agreements in Private M&A Deals • Confidentiality/Non-Disclosure Agreements in Public M&A Deals • Confidentiality and Non-disclosure Agreement Drafting Checklist • Confidentiality and Non-disclosure Agreement (Merger Transaction) • Clean Team Confidentiality Agreement • Joinder Agreement (Non-Disclosure Agreement) • Confidentiality, Non-Disclosure, and Non-Circumvention Agreement (Unilateral, Pro-Disclosing Party) • Cross-Border Mutual Confidentiality and Non-Disclosure Agreement (Joint Venture) • Cross-Border Unilateral Confidentiality and Non-Disclosure Agreement For a treatise entry discussing the use of confidentiality agreements in M&A deals, see 1 M & A Practice Guide § 5.03.