NDA Review Checklist

Confirm the definition of "Confidential Information" is appropriately broad or narrow for the transaction

Verify whether the NDA is mutual or one-way, and confirm this matches the parties' intent

Check that standard exclusions are included (publicly available, independently developed, prior knowledge, third-party disclosure)

Review whether oral disclosures are covered or only written/marked materials

Confirm whether derivative works or analyses based on confidential information are covered

Check if the definition inadvertently captures the existence of the deal itself

Verify the NDA covers both the target company's and the buyer's information if mutual

Confirm that "Representatives" includes legal counsel, accountants, financial advisors, and lenders

Check whether disclosure to potential equity co-investors or financing sources is permitted

Verify that disclosure required by law, regulation, or legal process is permitted with advance notice

Review whether the disclosing party must be notified before any court-ordered or regulatory disclosure

Confirm whether "Representatives" includes potential consortium members or joint bidders

Check if the receiving party is responsible for breaches by its Representatives

Review whether Representatives must sign separate acknowledgments or be bound by the NDA's terms

Determine whether the NDA includes a standstill provision restricting unsolicited acquisition proposals

Review the standstill duration and confirm it aligns with the anticipated deal timeline

Check for a "fall-away" provision that lifts the standstill if the target agrees to a deal with another party

Verify whether the standstill restricts public proposals, proxy contests, or 13D filings

Review any employee non-solicitation provisions and their scope and duration

Check whether the non-solicitation carves out general advertisements and unsolicited applications

Confirm whether the standstill applies to affiliates and financing sources

Confirm the NDA term (typically 12 to 24 months) and whether it survives termination of deal discussions

Review return-or-destroy obligations and whether a certification of destruction is required

Check whether automatic backup systems and archived copies are exempt from destruction requirements

Verify that equitable relief (injunction) is available without requiring proof of irreparable harm

Review whether the NDA includes a liquidated damages provision or references actual damages

Confirm governing law and jurisdiction provisions

Check whether the NDA restricts the receiving party from trading in the disclosing party's securities