A Nondisclosure Agreement (NDA) has become one of the basic standard documents in every company’s wallet. Between the rising swell of Baby Boomer owners entertaining exit planning, and greater caution surrounding the legal issues of strategic partnering, an NDA is now the standard next step following many initial exploratory conversations.
What should you protect in an NDA? (Note: I am not an attorney, and I don’t create Nondisclosure Agreements for clients.)
First, there is the question of who is covered by the agreement. Most allow for advisors to each party to see the agreement. That can encompass accountants, attorneys, consultants, bankers and employees. I think employees present the greatest risk, since they are the most likely to personally benefit from information about customers, vendors and pricing.
Some attorneys include language requiring every person who shares the information to sign and return a separate copy. That is cumbersome, and opens the question of enforcement. If you talk to someone on the other side of the transaction, and don’t have a signed copy of the agreement first, have you voided that condition yourself?
Try to keep the responsibility for protecting information with the other side. One mechanism is to have each person who sees information add their signature to the agreement, with language that makes it the other party’s responsibility to only share with signatories. At a minimum, the other party should be required to make certain everyone on their side is informed of the confidential nature of the information. Electronically stamping everything “Confidential” and converting it into pdf is also a basic caution.
Then there are decisions about what information to share. Most potential acquirers are concerned about customer concentration in sales. They will ask for customer purchasing history as one of the first items in preliminary examination of your company.
That is a legitimate concern, but it doesn’t mean they need the names of the customers until much later in the process. We provide redacted reports, identifying customers by letters or numbers.
The same type of common sense applies to vendors, employee compensation and margins by product line. You can provide sufficient information for valuing the business without the details. No matter how honest or well intentioned the other party may be, he or she will remember that you are making 10% more on a specific product, or are selling substantial amounts to a customer they thought was all theirs.
Finally, we recommend that the Nondisclosure Agreement go beyond just keeping information confidential. It should always include a non-employment clause regarding your employees. Non-solicitation is okay, but it’s hard to prove if the company claims the employee approached them. Just make it simple; they can’t hire any employee for two years following your discussions. You may be surprised at how many potential partners balk at this condition.
Always have a qualified attorney draft any Nondisclosure Agreement, but there is no need to go wild. One page is typically insufficient, but more than two pages and you are usually loading it up with conditions that are either irrelevant or unenforceable.
No NDA will stop someone from being dishonest. It is intended to make plain what you consider yours, and how you expect it to be handled. As in any other business transaction, what’s written on the paper doesn’t replace trust.
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In some areas an NDA requirement preventing hiring any your employees have been found not legal because of is effect on freedom to find new employment for the employee. EG where there are limited opportunities for certain skill sets in the geographic area.
Good point Jim. That is why an attorney familiar with your jurisdiction is a must.
In many areas, employees’ response to an open advertised employment solicitation is normally not covered by the NDA’s restrictive provisions….while direct contact is. From a client perspective, it is important to note the difference and that the risk exists, but is essentially the same as it is in “normal” times.
Good point Richard. Actually most large companies won’t agree to a non-employment clause for just that reason. They don’t want liability (or screening responsibility) for normal recruiting activities. With smaller acquirers, JV and merger discussions, I have seen it included (subject to state unemployment law, as was previously noted.)
One of the biggest mistakes too many searchers/buyers make entering the buy/sell playing field is not getting their own NDA signed by brokers, owners and sellers of companies. (Not to mention some of the horrible NDAs foisted on searchers.)
• What about protecting the fact that you want to buy a business . . . and you don’t want your employer to know about it?
• How about the content of your financial statement and borrowing power?
This is why the advisory teams of savvy buyers and sellers include experts with a proven record of facilitating win-win deals that should occur.
• I, for example, won’t collaborate with buyers unless they hire the right kind of attorney and tax advisor at the right time and then properly engage those specialists. It’s good for all of us.
BTW, it’s 2 a.m. right now at home in Florida and I’m awake reading John Dini’s excellent website (awakeat2oclock.com) while awaiting a call from someone I’m helping in the UK.
• “Awake at 2 o’clock” . . . I wish I had thought of that title!!!!