KEY PROVISIONS IN NDAS IN A COMPETITIVE M&A SALES PROCESS
In any M&A sales process, the seller’s counsel will negotiate a non-disclosure agreement (NDA) with potential buyers and their legal counsel. The one-way NDA that each buyer executes protects the seller’s confidential information. There could be 30, 40, 50 or more potential buyers in a highly competitive M&A sales process, which means an NDA for each potential buyer. Scott Rissmiller has counselled sellers in two different sales processes in the last nine months that involved over 30 and over 50 NDAs, respectively. While some buyers sign the NDA as provided, many buyers negotiate it. Comments on an NDA from the two types of buyers (i.e., strategic and financial sponsors) will vary, especially regarding certain NDA provisions.
