Non-Disclosure Agreement for M&A Transactions
PricewaterhouseCoopers AG
This agreement is a Swiss-law governed form of confidentiality agreement for use in relation to a proposed acquisition of a target (shares, assets or a combination of both).
Author's Note
The Non-Disclosure Agreement for M&A Transactions is a Swiss-law governed form of confidentiality agreement for use in relation to a proposed acquisition of a target (shares, assets or a combination of both). This template is unilateral, and imposes a duty of confidentiality only on the purchaser, in relation to all information disclosed in connection with the potential transaction. It is primarily drafted from the perspective of the seller, and therefore offers the ability to restrict copies of the confidential information, require separate confidentiality undertakings from the purchaser’s representatives, limit contact with the seller to named individuals, and prevent solicitation of the seller’s key personnel. It is usually the case that if the proposed transaction is completed, the transaction documents will include confidentiality undertakings that supersede and replace a prior Non-Disclosure Agreement entered into between the parties....
Read moreThe Non-Disclosure Agreement for M&A Transactions is a Swiss-law governed form of confidentiality agreement for use in relation to a proposed acquisition of a target (shares, assets or a combination of both).
This template is unilateral, and imposes a duty of confidentiality only on the purchaser, in relation to all information disclosed in connection with the potential transaction. It is primarily drafted from the perspective of the seller, and therefore offers the ability to restrict copies of the confidential information, require separate confidentiality undertakings from the purchaser’s representatives, limit contact with the seller to named individuals, and prevent solicitation of the seller’s key personnel.
It is usually the case that if the proposed transaction is completed, the transaction documents will include confidentiality undertakings that supersede and replace a prior Non-Disclosure Agreement entered into between the parties.
Terms that are configurable to the user’s needs include:
- The nature of the proposed transaction
- The duration of the non-disclosure obligations if the transaction is not completed;
- Restrictions on copies;
- Authorised points of contact with the Seller;
- Non-solicitation obligations;
- Indemification and liability;
- Obligations on termination; and
- Jurisdiction.
Circumstances of Use
This document is suitable for at arm’s length business relationships where the parties have agreed that their relationship will be governed by Swiss law.
Terms of Use
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You (the registered user through whose account the purchase is made) may:
- Access the document-generation interview for 90 days from date of purchase;
- Export and download an unlimited number of copies of the document(s) in Word or pdf format;
- Share and use the document copies in connection with the circumstances described in this Author’s Note and only for the ordinary business purposes of the group of companies to which you belong.
Exclusions and Limitations
This template contains a standard form of non-solicitation clause which is typically requested by a Seller in the context of discussions to divest an entity or part of its business.
However, the scope and duration of a non-solicitation clause should always be assessed in light of the circumstances to ensure that the restriction imposed is reasonable and proportionate to protect the legitimate interests of the seller. No warranty or representation is given or made as to the appropriateness of the included clause in any particular situation or circumstances. It may also be more appropriate to deal with non-solicitation obligations at a later stage in the process of the transaction, for example in a letter of intent. The clause may therefore be omitted if not required.
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Frequently asked questions
(1) Seller and (2) Purchaser
Possibilities are: (1) shares in single entity, (2) assets of single entity, (3) shares and assets. The latter could be appropriate if a multi-national sells a whole business division.
It may be appropriate to prohibit copies if confidential information is being supplied in hard-copy format. If information is provided electronically, consider whether such a restriction is practical. If there is no such prohibition, the Purchaser can be obliged to keep records of who copies are given to.
The Purchaser might have to certify on request that it has lawfully returned the confidential information
Many companies apply policies requiring data retention. Retention of copies required by reasonable business practices may be allowed or disallowed. However, it is deemed unrealistic to expect every electronic record to be identified and deleted/returned. Nevertheless, this enables further assurance for the Purchaser.
This date is relevant for the duration of the confidentiality obligation if the transaction is not completed.
Consider the nature of the information to be disclosed and the likely duration of the discussions. For how long would you wish to protect the information if no subsequent agreement is entered into? In general, you can choose between: (a) until a fixed date, (b) for a period of specified years.
A subsequent agreement relating to the acquisition may contain its own confidentiality obligations and supersede this agreement.
Limiting contact to individuals is useful to help manage the flow of information. Purchaser's contact with the Seller can thus be limited to named representatives.
Yes. However, the non-solicitation obligation is limited to employees holding managerial or executive positions. Care should be taken to ensure the duration of any restriction is appropriate to protect the seller's legitimate interests. The non-solicitation period may start (a) on date of the agreement or (b) after the discussions have ended.
Yes. But an indemnification for a breach or non-performance must be stated in the contract.
The Burden of Proof may be reversed in case confidential information becomes public knowledge or known by a third party. If reversed Burdon of Proof is stated in the contract, the Purchaser will be deemed to be responsible for the breach of confidentiality, unless the Purchaser can prove the contrary.
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