Practitioner’s Guide

Overview

This is a founder-friendly unilateral (one-way) confidentiality agreement built to be handed to prospective buyers at the very front of an M&A process — before the CIM goes out, before any financial information is shared, and before the data room opens. The Recipient (the prospective buyer) agrees to keep all Evaluation Material strictly confidential, to use it only to evaluate a possible transaction, and to limit further disclosure to a narrowly defined ring of Representatives who are themselves bound by the agreement.

The Practical Law form is already nominally pro-seller, but this version tightens every dial that a founder cares about: a three-year confidentiality tail (with trade-secret protection running indefinitely), a narrow definition of Representatives (financing sources and co-bidders are gated behind express consent), a full standstill with no automatic fall-away on third-party bids, a broad no-solicit-and-no-hire with only a narrow general-advertising carve-out, express injunctive relief without proof of damages or bond, prevailing-party fee shifting, rejection of any residual knowledge clause, and a mandatory clean-team protocol hook for competitively sensitive information.

Unlike a letter of intent, this NDA is binding in its entirety the moment it is signed. There is no non-binding overlay. Every provision should be read and negotiated as a fully enforceable contract — because it is. This is the single most leveraged document in the seller’s toolkit: it sets the tone for the entire process, governs what information can be shared and how, and survives whether or not a deal happens.

When to Use

Use this NDA at the very front of an M&A process — before sharing a CIM, providing financial information, or granting data-room access. It is appropriate when the seller is the only party disclosing material non-public information and the buyer’s disclosure is limited to the fact of discussions. It is the right vehicle for (i) seller-led auctions where the same form is sent to every bidder, (ii) bilateral negotiations where the seller wants to control the information flow, and (iii) any situation in which the seller is a private company disclosing confidential financial, customer, employee, or technical information to a prospective buyer.

Use it for strategic buyers and financial sponsors alike, with the understanding that financial sponsors (private equity funds) will push harder on the definition of Representatives, the standstill, and the no-solicit because of their portfolio-company structure. For sponsors with multiple portfolio companies, consider a sponsor-specific rider that addresses the use of Evaluation Material by affiliated funds and portfolio companies and expressly prohibits use for any purpose other than evaluating the specific transaction.

If the target or any affiliate has publicly traded securities, keep Section 14 (Securities Law Compliance) and add a no-trading covenant covering the Recipient and its controlled affiliates for the duration of the Exclusivity Period or until the information is no longer material non-public information. If the target is privately held, Section 14 can be deleted.

Binding vs. Non-Binding Provisions

Unlike an LOI or term sheet, an NDA is binding in its entirety as soon as it is signed. There is no ‘non-binding’ section to carve out. The entire document — confidentiality covenant, standstill, no-solicit, return-or-destruction, term length, injunctive-relief remedy, governing law — is fully enforceable from the Effective Date.

The drafting question is therefore not which sections bind, but how aggressively each section is drafted and how long each obligation survives. Pay particular attention to: (i) the term length in Section 12 — once it expires, the confidentiality obligation falls away entirely unless trade-secret protection carries it forward; (ii) the standstill in Section 9, which is a standalone restriction on the buyer’s ability to acquire securities or propose a transaction and can run past the confidentiality term; (iii) the no-solicit in Section 8, which restricts hiring even after the deal dies; and (iv) Section 10 (Remedies), which provides for injunctive relief without bond and prevailing-party fee shifting — a meaningful remedy enhancement that buyers will try to soften.

For the seller, these binding provisions are the real leverage in the document. Treat the term length, the standstill duration, the no-solicit scope, and the remedies clause as if they were the pricing terms of the deal — because they are the pricing terms of the confidentiality relationship.

Key Variables to Complete

• [DISCLOSING PARTY] / [RECIPIENT] — full legal names of the parties. This form is unilateral (one-way only). Flip to mutual only if the buyer will also be disclosing material non-public information (e.g., stock-for-stock deals), and only with substantial revision throughout.
• [NUMBER] years — term of the confidentiality obligation (Section 12). Seller preference: three (3) years, with trade-secret protection surviving indefinitely until the information loses trade secret protection other than through Recipient’s act or omission. Buyer will push for one to two years.
• [NUMBER] years — no-solicit duration (Section 8). Seller preference: two (2) years, covering both solicitation and hiring, with only a narrow carve-out for general newspaper, internet, or job-board advertisements not specifically directed at the Company’s employees.
• [NUMBER] years — standstill duration (Section 9). Seller preference: eighteen (18) months to two (2) years, covering both direct acquisition activity and any group/13D activity, with no automatic fall-away on third-party bids unless the board affirmatively waives.
• [RELEVANT STATE] / [RELEVANT CITY] / [RELEVANT COUNTY] — governing law and exclusive venue (Section 15). Seller preference: Delaware or seller’s home state. Avoid buyer’s home jurisdiction.
• Section 6 Representatives scope — confirm that financing sources, debt providers, and limited partners are NOT automatically included in ‘Representatives’ and require express written consent and a joinder/acknowledgment before any disclosure.
• Permitted Co-Bidders (Section 1(c)) — list only if the seller has affirmatively approved a co-bidder structure; otherwise delete the bracket entirely and prohibit co-bidders by default.
• Clean Team protocol (Section 2) — reference a separate clean team agreement for competitively sensitive information (pricing, customer lists, strategic plans). Attach as an exhibit or cross-reference a standalone clean team agreement executed concurrently.
• Section 7 ‘Return or Destruction’ — seller preference: ‘Return and Destruction,’ with a written certification of destruction and a five (5) business day cure window; allow backup-tape retention only to the extent required by written records-retention policy, with continuing confidentiality obligation for the duration of retention.
• Notice addresses (Section 18) for both parties — include email addresses of both the business principal and counsel.
• Section 14 — retain if any affiliate has publicly traded securities; delete if target is entirely privately held.
• Effective Date — the date the last party signs. Confirm that Section 12 term runs from the Effective Date and not from the date of last disclosure (otherwise the term can become indeterminate).
• Trade-secret survival language (Section 12) — keep, and confirm it is drafted to survive indefinitely for trade secrets.
• Attorney’s fees provision (Section 10) — keep as prevailing-party fee shifting, not one-way to Disclosing Party (prevailing-party is more enforceable in most jurisdictions and still serves the seller’s interest given the asymmetry of likely breaches).
• Anti-assignment (Section 19) — confirm successor-and-assign language so that any purchaser of the Company inherits the benefits of the NDA automatically, regardless of whether the NDA is formally assigned.

Negotiation Points

• Term length (Section 12). Seller wants three (3) years or longer, with trade-secret protection surviving indefinitely. Buyer will push for one to two years and argue that beyond that horizon the information is stale. Seller counter: the confidentiality tail is cheap to the buyer and valuable to the seller, and the term should reflect the sensitivity of the information (technical, customer, pricing) rather than a default calendar. For targets with meaningful trade secrets or unique customer relationships, insist on three years minimum plus the indefinite trade-secret tail.
• Standstill (Section 9). Buyer will push for (i) a short duration (six to twelve months), (ii) an automatic fall-away on any third-party bid for the Company (‘don’t ask, don’t waive’ or fall-away provisions), and (iii) a carve-out permitting confidential private proposals to the board. Seller should resist all three for a private company target. For a private target, the standstill should be eighteen to twenty-four months, with no automatic fall-away and no ‘don’t ask, don’t waive’ carve-out — the board wants optionality, not a triggering right held by the Recipient. For a public target, some fall-away is customary but should be narrowly drafted.
• No-solicit / no-hire (Section 8). Buyer will push to (i) narrow from ‘no hire’ to ‘no solicit’ only, (ii) limit the covered employees to those actually contacted in diligence, and (iii) carve out general advertisements and unsolicited applications. Seller counter: keep no-hire (not just no-solicit) for employees above a designated seniority threshold (directors, officers, senior managers) and for any employee actually identified in the data room or management presentations; a narrow general-advertising carve-out (newspaper, internet, job board ads not directed at Company employees) is acceptable; explicitly prohibit hiring of any employee who responds to such general advertisements if the Recipient or its Representatives had been given non-public information about that employee.
• Definition of Representatives (Section 1(e)). Buyer (especially private equity) will push to include financing sources, debt providers, limited partners, and co-investors. Seller counter: the default Representatives ring should include only the Recipient’s directors, officers, employees, legal counsel, and accountants. Financing sources and co-bidders require express written consent, a joinder or separate confidentiality agreement with the Disclosing Party, and listing on an exhibit. Sponsors will resist; the compromise is to permit disclosure to bona fide institutional lenders on a need-to-know basis subject to a separate NDA or a written acknowledgment of this NDA, but to expressly prohibit disclosure to portfolio companies, operating advisors, or limited partners without specific written consent.
• Residual knowledge clause. Buyers — particularly strategics — will try to insert a ‘residual knowledge’ clause that permits Representatives to use ‘general ideas, concepts, know-how, or techniques’ retained in ‘unaided memory’ after access to Evaluation Material ends. Seller should refuse this clause in its entirety. Residual knowledge clauses are a Trojan horse for the use of Evaluation Material by the buyer’s own product, engineering, and commercial teams, and they substantially undermine the confidentiality covenant. For sensitive technical or customer information, the residual knowledge exception is fatal — do not accept it.
• Injunctive relief and fee shifting (Section 10). Buyer will try to (i) require a bond, (ii) limit or eliminate the irreparable harm presumption, and (iii) strip the attorney’s fees provision or make it one-way to the buyer. Seller should resist all three. Keep (i) express irreparable harm and inadequate-remedy-at-law language, (ii) express waiver of any bond requirement, and (iii) prevailing-party fee shifting (mutually enforceable and more likely to survive a public-policy challenge than a one-way clause).
• Required disclosure (Section 5). Buyer will push to limit notice obligations to those ‘legally permissible and practical.’ Seller counter: buyer must give written notice as far in advance as legally possible, must cooperate (at Disclosing Party’s cost) in seeking a protective order, must disclose only the minimum legally required portion, and must request confidential treatment where available. Keep the cost-shifting provision on the Disclosing Party — buyer should not bear the cost of seeking a protective order for the Disclosing Party’s information.
• Definition of Evaluation Material (Section 1(b)). Buyer will push for broader carve-outs (independently developed, lawfully obtained from third parties, publicly available). Seller should confirm all four standard exclusions are present (public domain, lawfully obtained from a third party not under confidentiality obligation, previously known to Recipient without confidentiality obligation, and independently developed without reference to Evaluation Material), but should require documentary evidence (not just Recipient’s say-so) for the ‘previously known’ and ‘independently developed’ exclusions, and should add the qualifier ‘after reasonable inquiry’ to the Recipient’s knowledge of any third-party source.
• Co-bidders (Section 6). Buyer will ask for broad permission to team with other bidders. Seller should prohibit co-bidding by default and require express written consent, a separately negotiated confidentiality agreement with the Disclosing Party, and listing on an exhibit. This prevents collusive bidding and preserves the auction dynamic.
• Return and destruction (Section 7). Buyer will try to keep archival copies, backup tapes, board materials, and committee records indefinitely. Seller counter: permit backup-tape retention only to the extent required by a written records retention policy, with continuing confidentiality for the duration of retention, and require written certification of destruction within five (5) business days. Board/committee materials can be retained in a restricted archive subject to continuing confidentiality.
• Clean team and antitrust (Section 2). For competitively sensitive information (customer lists, pricing, strategic plans), require a separate clean team agreement governing the specific information flow, the identity of the clean team members, and the restrictions on downstream use. Include an express hook in this NDA to the clean team agreement so that a breach of the clean team agreement is also a breach of this NDA.
• Assignment and successors (Section 19). Confirm that (i) the NDA cannot be assigned by the Recipient without the Disclosing Party’s prior written consent and (ii) any purchaser of the Company or substantially all of the Company’s assets automatically inherits the benefits of the NDA. This protects the seller against a buyer attempting to escape its obligations through a restructuring or parent-subsidiary transfer.

Common Pitfalls

• Forgetting to turn off the bracketed sections (8, 9, 13, 14) that are not appropriate for the deal — leaving stub headings or unconverted brackets in the executed version.
• Letting the Section 12 term run from the Effective Date when the parties intended it to run from the date of last disclosure — the difference can be material for a drawn-out process.
• Using this unilateral form when the buyer is also disclosing material information (e.g., stock-for-stock or merger-of-equals transactions) — convert to mutual with substantial revision throughout.
• Failing to align the no-solicit duration in Section 8 with the standstill duration in Section 9 — mismatched durations create odd cliff effects where one restriction drops away while the other continues.
• Including a standstill against a public-company buyer without a customary fiduciary-out — counsel for public buyers will not sign, and the entire deal can stall in NDA negotiations.
• Overlooking Section 11 (common-interest privilege) when the disclosing party is sharing privileged materials in diligence — the common-interest framing here is narrow and may not preserve privilege in all jurisdictions. Consider a separate common interest agreement for sensitive litigation materials.
• Not coordinating with any clean-team or antitrust protocol — competitively sensitive information may need a separate clean-team agreement that is cross-referenced in this NDA.
• Accepting a residual knowledge clause without thinking carefully about what information is actually being disclosed. Residual knowledge clauses are a Trojan horse and should be refused outright.
• Accepting a ‘financing sources’ carve-out in the definition of Representatives without requiring a separate NDA or joinder from each such source. A broad financing-sources carve-out effectively publishes the Evaluation Material to every bank on the Street.
• Failing to require documentary evidence for the ‘previously known’ and ‘independently developed’ exclusions from Evaluation Material. Without documentary evidence, these exclusions are effectively an honor system.
• Leaving the injunctive relief clause without express waiver of bond and without express irreparable harm language. Courts often require a bond absent express waiver, and the bond requirement can eliminate the practical value of injunctive relief.
• Using a one-way attorney’s fees clause rather than prevailing-party language. One-way clauses are vulnerable to public-policy challenges and to fee awards being denied; prevailing-party clauses are more enforceable and still serve the seller’s interest given the asymmetry of likely breaches.

When NOT to Use This Form

• Bilateral or stock-for-stock transactions where both parties are disclosing material non-public information — use a mutual NDA with substantial revision throughout.
• Ordinary-course commercial relationships such as vendor or customer diligence — use a commercial NDA drafted for the specific relationship.
• Employment-related confidentiality — use a separate employee confidentiality and assignment agreement drafted under the applicable state’s employment law.
• Joint venture or strategic alliance discussions — use a JV-specific NDA with IP, use-restriction, and residual-rights provisions tailored to the JV context.
• Hostile or unsolicited approaches to a public company target — use bespoke standstill and ‘don’t ask, don’t waive’ drafting, which is materially different from this form.
• Private equity sponsors with multiple portfolio companies where the Representatives definition and the use of Evaluation Material by affiliated funds requires a sponsor-specific rider.
• Any situation where the Disclosing Party is a public company and the Evaluation Material includes material non-public information — Regulation FD and insider-trading compliance require additional protections.

Key Founder Protections (Summary)

• Three (3) year confidentiality term with indefinite trade-secret survival.
• Narrow Representatives ring — financing sources and co-bidders gated behind express consent and separate NDAs or joinders.
• Full eighteen (18) month to two (2) year standstill with no automatic fall-away and no ‘don’t ask, don’t waive’ carve-out.
• Broad no-solicit AND no-hire covering directors, officers, and any employee identified in the data room or management presentations, with only a narrow general-advertising carve-out.
• Express rejection of residual knowledge — no ‘unaided memory’ or ‘general ideas and concepts’ exception.
• Injunctive relief without bond, with express irreparable harm language and waiver of the proof-of-damages requirement.
• Prevailing-party attorney’s fees in any enforcement action.
• Documentary evidence requirement for ‘previously known’ and ‘independently developed’ exclusions from Evaluation Material.
• Clean team protocol hook for competitively sensitive information (pricing, customer lists, strategic plans).
• Return AND destruction of Evaluation Material within five (5) business days of request, with written certification of destruction.
• Co-bidding prohibited by default; permitted only with express written consent, a separate NDA with Disclosing Party, and listing on an exhibit.
• Common-interest privilege language for diligence materials subject to attorney-client privilege or work product.
• Required disclosure (legal process) conditioned on prior written notice, cooperation with any protective order, and disclosure only of the minimum legally required portion.
• Successor-and-assign language so that any purchaser of the Company automatically inherits the benefits of the NDA.
• Delaware or seller’s-home-state governing law with exclusive venue; jury trial waiver; no carve-out for the buyer’s home forum.

Form Document

In connection with the Recipient’s consideration of a possible negotiated transaction (a “Possible Transaction” or the “Transaction”) with [DISCLOSING PARTY] (together with its subsidiaries, the “Disclosing Party” or the “Company”), the Disclosing Party is prepared to make available to the Recipient certain non-public information concerning the business, financial condition, operations, assets, and liabilities of the Disclosing Party and its subsidiaries. As a condition to such information being furnished to the Recipient and its Representatives (as defined below), the Recipient agrees, on behalf of itself and its Representatives, to treat such information in accordance with the provisions of this Confidentiality Agreement (this “Agreement”) and to take or refrain from taking the other actions set forth herein. The effective date of this Agreement is the date of the last signature below (the “Effective Date”).

1. Definitions.

For purposes of this Agreement, the following terms have the following meanings:

(a) “Affiliate” means, with respect to any Person, any other Person that is directly or indirectly Controlling, Controlled by, or under common Control with such Person, where “Control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

(b) “Evaluation Material” means all information, data, documents, agreements, files, and other materials (in any form or medium of communication, including whether disclosed orally or disclosed or stored in written, electronic, or other form or media) whether or not marked or otherwise identified as “confidential,” which is obtained from or disclosed by or on behalf of the Disclosing Party or its Representatives or otherwise, and whether obtained before or on or after the date hereof, relating directly or indirectly to the Company or any of its subsidiaries or any of their respective businesses, affairs, assets, properties, or prospects; including, without limitation, all notes, analyses, compilations, reports, forecasts, data, studies, samples, interpretations, summaries, and other documents and materials (in any form or medium of communication, whether oral, written, electronic, or other form or media) prepared by or for the Recipient which contain or otherwise reflect or are derived or based in whole or in part on such information, data, documents, agreements, files, or other materials (“Notes”). The term “Evaluation Material” as used herein does not include information that: (i) at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of its disclosure directly or indirectly by the Recipient or its Representatives in violation of this Agreement); (ii) was available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such source, to the Recipient’s knowledge after reasonable inquiry, is not and was not bound by a confidentiality agreement with respect to such information or otherwise prohibited from transmitting such information by a contractual, legal, or fiduciary obligation; (iii) the Recipient establishes by documentary evidence was in the Recipient’s possession before receiving such information from the Disclosing Party, provided that such information, to the Recipient’s knowledge after reasonable inquiry, is not and was not subject to another confidentiality agreement and is not and was not prohibited from being disclosed by any other contractual, legal, or fiduciary obligation; or (iv) the Recipient establishes by documentary evidence has been independently acquired or developed by the Recipient without reference to the Evaluation Material and without violating any of its obligations under this Agreement. For the avoidance of doubt, there is no “residual knowledge,” “unaided memory,” or similar exception to this Agreement, and any general ideas, concepts, know-how, or techniques that are derived from or would not have been known to the Recipient or its Representatives but for access to the Evaluation Material remain Evaluation Material.

(c) “Permitted Co-Bidder” means any Person (and any Affiliates of such Person) whom the Disclosing Party has affirmatively approved in writing in its sole discretion to participate with the Recipient in the Transaction and who (i) has executed its own confidentiality agreement with the Disclosing Party with respect to the Transaction on terms not less restrictive than this Agreement, and (ii) is listed on Exhibit A hereto (if any). Absent such written approval and execution, co-bidding is prohibited.

(d) “Person” means any individual, corporation, limited or general partnership, limited liability company, limited liability partnership, trust, association, joint venture, governmental entity, or other entity.

(e) “Representatives” means, as to the Recipient, the Recipient’s directors, officers, employees, legal counsel, and independent accountants, in each case who have a need to know the Evaluation Material for the sole purpose of evaluating the Transaction and who have been informed of the confidential nature of the Evaluation Material and the terms of this Agreement and have agreed to be bound by terms of confidentiality no less restrictive than those contained in this Agreement. “Representatives” expressly does not include (and the Recipient shall not disclose Evaluation Material to): (i) any actual or potential source of debt or equity financing, (ii) any limited partner, co-investor, or other capital provider of the Recipient, (iii) any portfolio company, operating advisor, or operating partner of the Recipient, or (iv) any Affiliate of the Recipient that is engaged in a business that competes with the Company, in each case unless and until such Person has executed a separate confidentiality agreement with, or joinder to this Agreement acknowledged by, the Disclosing Party and has been added to Exhibit B hereto.

Other terms not specifically defined in this Section 1 shall have the meanings given them elsewhere in this Agreement.

2. Use of Evaluation Material and Confidentiality.

The Recipient shall keep the Evaluation Material strictly confidential and shall not use the Evaluation Material for any purpose other than to evaluate, negotiate, and consummate the Transaction. The Recipient shall not disclose or permit its Representatives to disclose any Evaluation Material except: (a) if required by law, regulation, or legal or regulatory process, and then only in strict accordance with Section 5; (b) to its Representatives, to the extent strictly necessary to permit such Representatives to assist the Recipient in evaluating, negotiating, and consummating the Transaction; or (c) to Permitted Co-Bidders expressly approved in writing by the Disclosing Party pursuant to Section 1(c); provided that, in each case, the Recipient shall require each such Representative or Permitted Co-Bidder to be bound by the terms of this Agreement to the same extent as if they were parties hereto. The Recipient shall be fully responsible for any breach of this Agreement by any of its Representatives and by any Permitted Co-Bidder. The Recipient acknowledges that competitively sensitive information (including, without limitation, pricing, customer lists, supplier terms, and strategic plans) may be designated by the Disclosing Party as subject to a separate clean team protocol, and the Recipient agrees that any such designated information shall be handled in accordance with a clean team agreement to be entered into between the parties prior to disclosure of such information. A breach of any clean team agreement shall be a breach of this Agreement.

3. Discussions to Remain Confidential.

Except for such disclosure as is necessary, in the written opinion of the Recipient’s counsel, to not be in violation of any applicable law, regulation, order, or other similar requirement of any governmental, regulatory, or supervisory authority, or any applicable rules and regulations of any national securities exchange, the Recipient shall not, and shall not permit any of its Representatives to, without the prior written consent of the Disclosing Party, disclose to any Person: (a) the fact that the Evaluation Material has been made available to the Recipient or its Representatives or that the Recipient or its Representatives has received or inspected any portion of the Evaluation Material; (b) the existence or contents of this Agreement; (c) the fact that investigations, discussions, or negotiations are taking or have taken place concerning the Transaction, including the status thereof; or (d) any terms, conditions, or other matters relating to the Transaction.

4. No Representations or Warranties; No Other Obligation.

The Recipient understands and agrees that none of the Disclosing Party, the Company, or any of their respective Representatives: (a) have made or make any representation or warranty hereunder, express or implied, as to the accuracy or completeness of the Evaluation Material; or (b) shall have any liability hereunder to the Recipient or its Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. The parties agree that unless and until a definitive agreement between the Disclosing Party and the Recipient has been executed and delivered with respect to the Transaction, neither the Company nor the Disclosing Party will be under any legal obligation of any kind whatsoever with respect to the Transaction, including any obligation to: (i) consummate a Transaction; (ii) conduct or continue discussions or negotiations; or (iii) enter into or negotiate a definitive agreement. The Disclosing Party reserves the right, in its sole discretion, at any time and for any reason or no reason, to reject any and all proposals made by the Recipient or on its behalf with regard to the Transaction, to terminate discussions and negotiations with the Recipient at any time, and to enter into any agreement with any other Person without notice to the Recipient or any of its Representatives.

5. Required Disclosure.

If the Recipient or any of its Representatives is required, in the written opinion of the Recipient’s counsel, to disclose any Evaluation Material by law, regulation, or legal or regulatory process, the Recipient shall: (a) take all reasonable steps to preserve the privileged nature and confidentiality of the Evaluation Material, including requesting that the Evaluation Material not be disclosed to non-parties or the public; (b) give the Disclosing Party prompt prior written notice of such request or requirement (and, to the fullest extent permitted by applicable law, as far in advance as possible) so that the Disclosing Party may seek, at its sole cost and expense, an appropriate protective order or other remedy; and (c) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s sole cost and expense, to obtain such protective order. In the event that such protective order or other remedy is not obtained, the Recipient (or such other Persons to whom such request is directed) will furnish only that portion of the Evaluation Material which, on the written advice of the Recipient’s counsel, is legally required to be disclosed and, upon the Disclosing Party’s request, use its best efforts to obtain assurances that confidential treatment will be accorded to such information.

6. Co-Bidders; Financing Sources.

(a) The Recipient hereby represents and warrants that the Recipient is not acting as a broker for or Representative of any other Person in connection with the Transaction, and is considering the Transaction only for its own account and for the account of its controlled Affiliates. Except with the prior written consent of the Disclosing Party, the Recipient agrees that: (i) it will not act as a joint bidder or co-bidder with any other Person with respect to the Transaction, other than Permitted Co-Bidders approved in writing by the Disclosing Party; and (ii) neither the Recipient nor any of its Representatives (acting on behalf of the Recipient or its Affiliates) will enter into any discussions, negotiations, agreements, arrangements, or understandings (whether written or oral) with any other Person regarding the Transaction, other than the Disclosing Party and its Representatives and the Recipient’s Representatives (to the extent permitted hereunder).

(b) The Recipient hereby represents and warrants that neither it nor any of its Representatives is party to any agreement, arrangement, or understanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity, or otherwise) to any other Person for the Transaction or any similar transaction, and the Recipient hereby agrees that neither it nor any of its Representatives will directly or indirectly restrict the ability of any other Person to provide any such financing.

(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Disclosing Party (which may be granted or withheld in the Disclosing Party’s sole discretion), the Recipient agrees that neither the Recipient nor any of its Representatives will disclose any Evaluation Material to any actual or potential source of financing (debt, equity, or otherwise). Any source of financing approved by the Disclosing Party in writing must (i) execute a separate confidentiality agreement with the Disclosing Party on terms not less restrictive than this Agreement, or acknowledge in writing that it is bound by the terms of this Agreement as if a party hereto, (ii) be listed on Exhibit B hereto, and (iii) be limited to bona fide institutional lenders on a strict need-to-know basis. For the avoidance of doubt, limited partners, co-investors, portfolio companies, and operating partners of the Recipient are not sources of financing for purposes of this Section 6 and require separate written approval of the Disclosing Party under Section 1(e).

7. Return and Destruction of Evaluation Material.

In the event the Recipient decides not to proceed with a Transaction, the Recipient shall promptly inform the Disclosing Party in writing. In that case, or at any time upon the Disclosing Party’s written request in its sole discretion and for any reason or no reason, the Recipient shall promptly, and in any event no later than five (5) business days after the request, return to the Disclosing Party and destroy all Evaluation Material in the Recipient’s or its Representatives’ possession (including all Notes and all copies, extracts, and other reproductions thereof in any form or medium), and certify in writing to the Disclosing Party, signed by an authorized officer of the Recipient, that such Evaluation Material (including any Evaluation Material held electronically) has been returned and/or destroyed. Notwithstanding the foregoing, the Recipient may retain: (i) Evaluation Material stored on routine backup tapes or other similar backup media in the ordinary course, solely to the extent required by written records retention policy or applicable law, and (ii) one archival copy of any board or investment committee materials containing Evaluation Material, solely to the extent required to evidence the Recipient’s deliberative record; provided that, in each case, such retained Evaluation Material shall continue to be subject to the confidentiality and use restrictions of this Agreement for so long as it is retained, without regard to the expiration of the term in Section 12. Notwithstanding the return or destruction of Evaluation Material, the Recipient and its Representatives shall continue to be bound by their obligations of confidentiality and other obligations hereunder.

8. No Solicitation; No Hire.

Except with the express written permission of the Disclosing Party, the Recipient agrees that for a period of two (2) years from the Effective Date, neither the Recipient nor any of its Representatives or controlled Affiliates will, directly or indirectly: (a) solicit for employment or for the provision of services any officer, director, or employee of the Disclosing Party, the Company, or any of their respective subsidiaries; or (b) hire any such officer, director, or employee. The foregoing shall not prohibit the Recipient or its Representatives from (i) engaging in general newspaper, internet, job-board, or similar general solicitation of employment that is not specifically directed at any such employee; provided that, the Recipient shall not hire any employee who responds to such general solicitation if the Recipient or any of its Representatives had received or been given access to non-public information about such employee through the Evaluation Material or the diligence process; or (ii) hiring any such employee whose employment with the Disclosing Party, the Company, or any subsidiary thereof was involuntarily terminated by the Disclosing Party at least six (6) months prior to the date of the applicable hire. The Recipient acknowledges that the restrictions in this Section 8 are reasonable and necessary to protect the Disclosing Party’s confidential information and employee relationships, and that damages for breach would be difficult to quantify and inadequate as a remedy.

9. Standstill Agreement.

Unless approved in advance in writing by the board of directors of the Disclosing Party (which approval may be granted or withheld in the board’s sole discretion), the Recipient agrees that neither it nor any of its Representatives that has received Evaluation Material, nor any Person acting on behalf of or in concert with the Recipient (or any of its Representatives), will, for a period of two (2) years after the Effective Date, directly or indirectly:

(a) make any statement or proposal to the board of directors of the Disclosing Party, any of the Disclosing Party’s Representatives, or any of the Disclosing Party’s stockholders regarding, or make any public announcement, proposal, or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to, or otherwise solicit, seek, or offer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media): (i) any business combination, merger, tender offer, exchange offer, or similar transaction involving the Disclosing Party or any of its subsidiaries; (ii) any restructuring, recapitalization, liquidation, or similar transaction involving the Disclosing Party or any of its subsidiaries; (iii) any acquisition of any of the Disclosing Party’s loans, debt securities, equity securities, or assets, or rights or options to acquire interests in any of the foregoing; (iv) any proposal to seek representation on the board of directors of the Disclosing Party or otherwise seek to control or influence the management, board of directors, or policies of the Disclosing Party; (v) any request or proposal to waive, terminate, or amend the provisions of this Agreement (including this Section 9, and including any “don’t ask, don’t waive” waiver); or (vi) any proposal, arrangement, or other statement that is inconsistent with the terms of this Agreement, including this Section 9(a);

(b) instigate, encourage, or assist any third party (including forming, joining, or participating in a “group” as defined in the Exchange Act and the rules promulgated thereunder) to do, or enter into any discussions or agreements with any third party with respect to, any of the actions set forth in Section 9(a);

(c) take any action that would reasonably be expected to require the Disclosing Party or any of its Affiliates to make a public announcement regarding any of the actions set forth in Section 9(a);

(d) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity securities, or assets of the Disclosing Party or any of its subsidiaries, or rights or options to acquire interests in any of the foregoing; or

(e) enter into any discussions, negotiations, or arrangements with any Person with respect to any of the foregoing. The Recipient further agrees that it will not publicly or privately request that the Disclosing Party or any of its Representatives amend or waive any provision of this Section 9 (including this sentence), and the Recipient acknowledges that the parties do not intend for this Agreement to contain any “don’t ask, don’t waive” or similar provision. For the avoidance of doubt, the restrictions in this Section 9 shall not automatically terminate upon the announcement of any third-party proposal for the Disclosing Party or any of its Affiliates, and any such automatic fall-away is expressly disclaimed.

10. Remedies.

The parties agree that money damages would not be a sufficient remedy for any breach or threatened breach of this Agreement by the Recipient or any of its Representatives (treating the Recipient’s Representatives as if they were signatories hereto), that any such breach would cause the Disclosing Party immediate and irreparable harm, and that the Disclosing Party shall have no adequate remedy at law for any such breach or threatened breach. Without prejudice to any other rights and in addition to all other remedies it may be entitled to, the Disclosing Party shall be entitled to seek and obtain specific performance and injunctive or other equitable relief, including a temporary restraining order, preliminary injunction, and permanent injunction, without proof of actual damages and without the necessity of posting any bond or other security or proving the inadequacy of legal remedies, as a remedy for any such breach or threatened breach. In the event that the Disclosing Party or the Recipient institutes any legal suit, action, or proceeding against the other arising out of or relating to this Agreement, the prevailing party in the suit, action, or proceeding as determined by a final, non-appealable judgment of a court of competent jurisdiction shall be entitled to receive, in addition to all other damages to which it may be entitled, the reasonable costs incurred by such party and its Representatives in conducting the suit, action, or proceeding, including reasonable attorneys’ fees, expert fees, and expenses and court costs.

11. No Waiver of Privilege.

To the extent that any Evaluation Material includes materials or other information subject to the attorney-client privilege, work product doctrine, or any other applicable privilege or doctrine concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention, and mutual understanding that the sharing of such material or other information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under the attorney-client privilege, work product doctrine, or other applicable privilege or doctrine as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or threatened litigation) to the Recipient or any of its Representatives. The parties may enter into a separate common interest agreement with respect to any particular privileged materials if necessary to preserve privilege in a given jurisdiction.

12. Term.

This Agreement shall continue for a period of three (3) years after the Effective Date; provided that, with respect to Evaluation Material that is a trade secret under the laws of any jurisdiction, such rights and obligations shall survive such expiration until, if ever, such Evaluation Material loses its trade secret protection other than due to an act or omission of the Recipient or its Representatives; provided further, that no termination or expiration shall relieve either party from a prior breach or from any obligation that by its terms survives termination or expiration (including, without limitation, Sections 7, 8, 9, 10, and 11).

13. Terms of This Agreement Control.

The terms of this Agreement shall control over any additional or different purported confidentiality requirements imposed by any offering memorandum, web-based database, data room, or similar repository of Evaluation Material to which the Recipient or any of its Representatives is granted access in connection with the evaluation, negotiation, or consummation of the Transaction, notwithstanding acceptance of such an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon, or other indication of assent to such additional confidentiality conditions; it being understood and agreed that the confidentiality obligations with respect to Evaluation Material are exclusively governed by this Agreement and may not be enlarged, reduced, or modified except by a written agreement that is hereafter executed by each of the parties hereto.

14. Securities Law Compliance.

The Recipient hereby acknowledges that it understands that: (a) the Evaluation Material and the information described in Section 3 of this Agreement may contain or constitute material non-public information concerning the Disclosing Party, the Company, and their Affiliates; and (b) trading in the Disclosing Party’s or the Company’s securities while in possession of material non-public information, or communicating that information to any other Person who trades in such securities, could subject the Recipient to liability under the U.S. federal and state securities laws, and the rules and regulations promulgated thereunder, including Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder. The Recipient agrees that it and its controlled Affiliates will not trade in the Disclosing Party’s or the Company’s securities while in possession of material non-public information or at all until the Recipient and such controlled Affiliates can do so in compliance with all applicable laws and without breach of this Agreement.

15. Governing Law; Jurisdiction and Venue; Jury Trial Waiver.

This Agreement shall be governed by and construed in accordance with the internal laws of the State of [RELEVANT STATE: Delaware preferred] without giving effect to any choice or conflict of law provision or rule (whether of the State of [RELEVANT STATE] or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of [RELEVANT STATE]. Any legal suit, action, or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of [RELEVANT STATE], in each case located in the City of [RELEVANT CITY] and County of [RELEVANT COUNTY], and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Service of process, summons, notice, or other document by mail to such party’s address set out herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

16. Entire Agreement; Amendments.

This Agreement sets forth the entire agreement between the parties regarding the Evaluation Material, and supersedes all prior negotiations, understandings, and agreements, whether written or oral. No provision of this Agreement may be modified, amended, or changed except by a writing signed by the parties hereto.

17. Severability.

If any provision of this Agreement, or the application thereof to any Person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such provision as applied to other Persons, places, or circumstances shall remain in full force and effect, and the parties shall negotiate in good faith to replace the invalid provision with a valid provision that most closely approximates the economic effect and intent of the invalid provision.

18. Notices.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set out in the preamble or signature pages to this Agreement (or to such other address that may be designated by a party from time to time in accordance with this Section 18), with copies (which shall not constitute notice) to the parties’ respective counsel.

19. Assignment; Successors.

Neither this Agreement nor any of the rights or obligations hereunder may be assigned by the Recipient without the prior written consent of the Disclosing Party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser of the Company or all or substantially all of the assets or equity of the Company (whether by merger, consolidation, stock or asset purchase, or otherwise) shall automatically be entitled to the benefits of this Agreement as if named as the Disclosing Party hereunder, whether or not this Agreement is formally assigned to such purchaser, and the Recipient’s obligations hereunder shall continue in full force and effect as to such successor.

20. Waivers.

No waiver by any party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

21. Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by email in portable document format (.pdf), by DocuSign or other electronic signature platform, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the Effective Date.

[DISCLOSING PARTY]

By: ____________________________

Name: [NAME]

Title: [TITLE]

Date: ____________________________

[RECIPIENT]

By: ____________________________

Name: [NAME]

Title: [TITLE]

Date: ____________________________

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This template is provided for informational purposes only and does not constitute legal advice or create an attorney-client relationship. Every transaction is different; consult qualified M&A counsel before using or adapting this document. This NDA is drafted from the seller’s perspective as a unilateral confidentiality agreement; for bilateral disclosures (stock-for-stock deals, JVs), convert to mutual with substantial revision.