Non-disclosure agreement (NDA)
Definition of the confidential information, scope of authorised recipients, duration of the undertaking, sanctions in the event of breach, non-poaching and non-solicitation clauses.
→ M&A · Sub-expertise
Pre-contractual documents structure the exploratory phase of a transaction: they protect the information exchanged, set the timeline and bind the parties on the key parameters of the deal. We draft calibrated NDAs and letters of intent (LOI), neither too light (legal risk) nor too heavy (risk of commercial deadlock), tailored to the maturity of the project.
→ What we cover
Definition of the confidential information, scope of authorised recipients, duration of the undertaking, sanctions in the event of breach, non-poaching and non-solicitation clauses.
Outline of the main lines of the transaction: purpose, indicative price, structure, timeline, anticipated conditions precedent, binding clauses (exclusivity, confidentiality) and non-binding clauses.
A document more precise than the LOI, with the key parameters of the SPA: price mechanism, adjustments, contemplated representations & warranties (W&I / liability guarantee), post-closing governance, management package, precise timeline.
Undertaking to negotiate exclusively for a fixed period (4 to 12 weeks), with a possible break fee in the event of withdrawal, to enable the buyer to incur the costs of due diligence.
Undertaking by the seller not to solicit other offers, or even not to respond to unsolicited approaches (no-shop), to secure the process in favour of the exclusive buyer.
In structured sales (process auctions), drafting of the process letters framing the offer phases, the timeline and the requirements. Data-room access rules and rules of engagement.
→ Our approach
01
Identification of the level of maturity (first contact, advanced negotiation), the information to be protected and the undertakings to be made. Choice between NDA, LOI or term sheet.
02
Drafting of a draft tailored to the client's position (buyer or seller), the sensitivity of the information and the balance of power. Articulation between binding and non-binding clauses.
03
Exchanges with the counterparty to adjust the key parameters (price, exclusivity, timeline, conditions). Anticipation of the SPA's friction points to settle them upstream.
04
Signing and effective launch of the next phase (due diligence, SPA negotiation). Articulation with the other documents (financing undertakings, comfort letters).
→ Who we help
Mutual NDA to allow preliminary exchanges, sharing of financial and strategic information, without any commitment as to next steps. Confidentiality duration of 2 to 5 years.
Detailed letter of intent including an indicative price, conditions precedent, an 8-week exclusivity and a break fee in the event of withdrawal, to commit to due diligence costs.
Drafting of the phase 1 and phase 2 process letters of a competitive process, framing the terms for submitting offers, access to the data room and final negotiations.
Confidentiality agreement with a clean team, marking of highly sensitive information, strict restrictions on recipients and a non-poaching undertaking regarding key staff.
→ Q&A
In principle, the LOI is non-binding as to the transaction itself: it expresses an intention, not a commitment to complete. But certain clauses are binding: confidentiality, exclusivity, costs, governing law. A poorly drafted LOI may engage a party's liability if the break-off is found to be abusive.
Usually between 2 and 5 years depending on the sensitivity of the information exchanged. For highly strategic information (R&D, patents, industrial plans), longer durations are possible. The duration runs from disclosure, not from signing.
Yes for a serious buyer committing to costly due diligence: a duration of 4 to 12 weeks, sometimes extendable. For the seller, exclusivity should be limited and compensated if it interrupts a competitive process.
A lump-sum indemnity due by a party that withdraws from the transaction without legitimate cause. In LOIs, it remains rare in France (except for very large transactions). More common in listed or cross-border transactions, its amount generally represents 1 to 3% of the deal value.
→ Go further
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