Standard Form Confidentiality Agreement for Buyouts by BVCA
The BVCA Standard Confidentiality Agreement for Buyouts is a structured, lawyer-drafted agreement that protects sensitive information shared between buyers and sellers during corporate buyout discussions. It is part of BVCA’s widely trusted library of open, lawyer-vetted standard agreements.
Standard Confidentiality Agreement for Buyouts
[on the seller letterhead]
To:
[buyer name] (the Buyer)
[buyer address]
Dear Sirs
Project [project name] - Confidentiality undertaking¹
¹ Note that this letter does not contain an indemnity or standstill provision.
THE PURPOSE OF THIS LETTER
OPTION 1 The Buyer has expressed an interest in buying the [entire] issued [and to be issued] share capital [business and assets] of [company name] (the Company) through a newly incorporated company controlled by funds [managed or advised]² by the Buyer [or the affiliates of the buyer] (Newco). In this letter, that potential purchase is referred to as the Proposed Transaction.
² Tailor to fund's specific requirements.
OPTION 2 The Buyer has expressed an interest in buying the [entire] issued [and to be issued] share capital [business and assets] of [company name] (the Company) through a newly incorporated company controlled by the Buyer (Newco). In this letter, that potential purchase is referred to as the Proposed Transaction.³
³ Option 1 to be used where a manager/adviser entity is entering into the letter. Option 2 to be used where the Fund is entering into this letter directly.
This letter sets out undertakings by the Buyer about the use of the Information. The Buyer is giving these undertakings in favour of the Seller and the Seller's Group. It is giving them in return for the Seller agreeing to make the Information available to the Buyer and its Recipients.
Capitalised terms and expressions are defined in the main body of this letter or in the schedule (Schedule).
CONFIDENTIALITY UNDERTAKINGS ATTACHING TO INFORMATION
The Buyer and each Recipient shall hold the Information in strict confidence and may not, directly or indirectly, disclose it to any person other than to another Recipient or the Buyer (as the case may be). For these purposes, ‘disclosing' Information includes making it available in any way, whether deliberately or not.
The Buyer and each Recipient shall only use the Information for the purpose of the Proposed Transaction.
In this letter the obligations in this paragraph 2 are referred to as the Undertakings.
EXCEPTIONS TO THE CONFIDENTIALITY UNDERTAKINGS IN PARAGRAPH 2
The Undertakings and the provisions in paragraph 5 shall not apply to Information to the extent that any of the following circumstances apply to that Information:
the Information is already in the public domain when it is first disclosed to the Buyer or a Recipient;
the Information subsequently enters the public domain, other than through a breach of any of the Undertakings by the Buyer or a Recipient;
when the Information was first disclosed to the Buyer, it was already in the lawful possession of the Buyer or a Recipient;
when the Information was first disclosed to a Recipient, it was already in the lawful possession of the Buyer or such Recipient;
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About this template
What is this template?
This document is a unilateral confidentiality undertaking given by a prospective buyer to a seller in the context of a corporate buyout. It contains specific private equity provisions such as exclusions for portfolio companies and restrictions on exclusive debt finance arrangements. It is not a mutual NDA as the confidentiality obligations primarily bind the Buyer.
When should you use it?
Use this template when a private equity fund or corporate buyer is performing due diligence on a UK-based target company. Use a standard mutual NDA instead if both parties are exchanging sensitive commercial information of equal value outside of a buyout context.
What's inside
| Clause | Name | What it does |
|---|---|---|
| 1 | PURPOSE OF THIS LETTER | Defines the Proposed Transaction as the purchase of share capital or business and assets of the Company via a Newco entity. |
| 2 | CONFIDENTIALITY UNDERTAKINGS ATTACHING TO INFORMATION | Obliges the Buyer and Recipients to hold Information in strict confidence and use it solely for the Proposed Transaction. |
| 5 | THE SELLER MAY ASK FOR INFORMATION TO BE DESTROYED OR RETURNED | Requires the Buyer to destroy or return Information within 20 days of a written request from the Seller. |
| 7 | RESTRICTIONS ON THE BUYER'S AND RECIPIENTS' CONTACT | Prohibits the Buyer from soliciting Restricted Persons or contacting Group suppliers for a period of one year. |
| 12 | TERM | Sets the duration of the confidentiality obligations at the second anniversary of the letter unless the transaction completes earlier. |
| 18 | GOVERNING LAW TO BE ENGLISH LAW | Establishes that the letter and non-contractual obligations are governed by and construed in accordance with English law. |
Who it's for
- a private equity fund manager evaluating the acquisition of a target company's share capital
- a seller providing sensitive business and asset data to a prospective corporate buyer
- parties involved in a buyout using a newly incorporated Newco entity
- a recipient outside the EEA receiving personal data as part of an M&A diligence process
How long it runs and how it's signed
Law it's drafted under
England & Wales note
This version is drafted for England & Wales. Scotland and Northern Ireland differ on some points — for example notice periods and tribunal procedure. Tell GitLaw where you hire and it adjusts the draft.
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