Assignment Clause Email Templates - NDA Clause Library

Request M&A Assignment Carve-Out

Receiving Party M&A Flexibility

When to use: The NDA prohibits assignment without consent, which could create complications in an M&A transaction. Use this to request a carve-out for change of control situations.

Subject: Re: NDA - Assignment Clause Modification

[Name], Thank you for the draft NDA. We have one comment on Section [X] regarding assignment. As currently drafted, neither party may assign the agreement without the other's prior written consent. While we understand the rationale for controlling voluntary assignments, this language could create complications in corporate transactions that neither party should need to worry about at the NDA stage. We request adding a standard carve-out for change of control transactions: "Notwithstanding the foregoing, either party may assign this Agreement without consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that the assignee agrees in writing to be bound by the terms of this Agreement." This carve-out is mutual and protects both parties' flexibility in corporate transactions. It is standard in commercial NDAs and ensures that neither party needs to revisit this agreement as part of M&A due diligence or deal execution. Please confirm this addition is acceptable. Best regards, [Your Name]

Limit M&A Carve-Out Scope

Disclosing Party Protect Information

When to use: The other party requested a broad M&A carve-out, but you are concerned about your information ending up with a competitor or hostile acquirer. Use this to add protective conditions.

Subject: Re: NDA - Assignment Carve-Out Concerns

[Name], Thank you for your comments on the assignment clause. We understand the desire for flexibility in M&A transactions, but we have significant concerns about an unconditional carve-out. Our concern is straightforward: we are sharing sensitive competitive information under this NDA. An unrestricted M&A carve-out could result in our confidential information being held by a competitor, a company we have specifically chosen not to do business with, or an entity with inadequate security practices. We are willing to include an M&A carve-out, but with the following conditions: 1. Notice Requirement: The assigning party must provide written notice to the non-assigning party at least [30] days prior to closing (or, if prohibited by confidentiality requirements, promptly upon public announcement). 2. Competitor Exclusion: The carve-out shall not apply if the acquirer is a direct competitor of the non-assigning party. [We can provide a list of excluded entities if that would be helpful.] 3. Return of Information Option: Upon notice of an M&A transaction, the non-assigning party shall have the option to require return or destruction of all Confidential Information prior to closing. 4. Successor Obligations: The acquirer must assume all obligations of the assignor in writing and acknowledge familiarity with the confidentiality requirements. 5. No Relief from Liability: Assignment shall not relieve the assignor from any liability for breaches occurring prior to the assignment. This provides you with M&A flexibility while protecting our legitimate interests in controlling who has access to our confidential information. Would this modified approach work for your team? Best regards, [Your Name]

Request Affiliate Assignment Rights

Receiving Party Affiliate Flexibility

When to use: Your company operates through multiple entities and needs the flexibility to assign NDA rights to affiliates without requiring consent each time.

Subject: Re: NDA - Affiliate Assignment Rights

[Name], Following up on the NDA review, we need to discuss assignment rights for affiliated entities. As you may know, [our company] operates through a group of affiliated companies, and the entity that signs this NDA may not always be the entity that needs to access confidential information for the contemplated business discussions. The current assignment restriction would require us to seek consent each time a different affiliate needs involvement, which is impractical. We propose the following modification to Section [X]: "Either party may assign this Agreement, in whole or in part, to any Affiliate without consent, provided that: (a) the assignor provides written notice to the other party within [10] business days of such assignment; (b) the Affiliate agrees in writing to be bound by all terms of this Agreement; and (c) the assignor remains jointly and severally liable for the Affiliate's performance and compliance. For purposes of this Agreement, 'Affiliate' means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where 'control' means ownership of more than 50% of the voting securities or equivalent voting interest." This provides flexibility for legitimate intra-group transfers while maintaining accountability through the joint and several liability provision. The notice requirement ensures you know who holds your information at all times. Please let us know if this works for your team. Best regards, [Your Name]

Require Prior Written Consent

Disclosing Party Tighten Restrictions

When to use: The draft NDA has loose assignment language or automatic carve-outs. Use this to insist on prior written consent for all assignments, with limited exceptions.

Subject: Re: NDA - Assignment Consent Requirement

[Name], We have reviewed the assignment provision in Section [X] and have concerns about the current language, which permits assignment [describe: without consent / with broad carve-outs / to affiliates without restriction]. Given the sensitive nature of the confidential information we will be sharing, we need stronger controls over who can become a party to this agreement and hold our information. Specifically: Our core requirement: All assignments must require our prior written consent, which consent shall not be unreasonably withheld or delayed. We understand this may seem restrictive, but consider the context: - We are sharing [describe: proprietary technology / trade secrets / strategic business plans / customer data] - We have carefully evaluated [your company] and decided to share this information with you specifically - We have not evaluated or approved sharing with unknown future assignees We are willing to include the following accommodations: 1. Consent Standard: We will commit to not unreasonably withhold consent, so legitimate assignments will be approved 2. Response Time: We will respond to assignment requests within [15] business days 3. Deemed Consent: If we fail to respond within the specified period, consent will be deemed granted 4. Internal Reorganization: Assignments resulting from purely internal reorganizations (same ultimate parent, same personnel) may proceed with notice only However, we cannot accept blanket M&A carve-outs or unlimited affiliate assignment rights. Please revise Section [X] accordingly. Best regards, [Your Name]

Negotiate Consent Standard

Receiving Party Reasonable Consent

When to use: The other party is requiring consent for assignments. Use this to ensure the consent standard is reasonable and cannot be used to block legitimate transactions.

Subject: Re: NDA - Assignment Consent Standards

[Name], Thank you for agreeing to include assignment language that allows for consent. We would like to clarify the consent standard to ensure it works for both parties. We have seen situations where "consent required" language is used to block legitimate transactions or extract concessions unrelated to the NDA. To avoid this, we propose the following clarifications: 1. Reasonableness Standard: "Such consent shall not be unreasonably withheld, conditioned, or delayed." 2. Permitted Considerations: Consent may be withheld only if the proposed assignee: - Is a direct competitor of the non-assigning party - Has demonstrated inadequate information security practices - Is subject to legal restrictions that would prevent compliance with the NDA - Does not agree in writing to assume all obligations 3. Prohibited Considerations: Consent may not be withheld based on: - The commercial terms of the underlying transaction - Requirements for additional payments or consideration - Matters unrelated to the protection of Confidential Information 4. Response Timeline: "The non-assigning party shall respond to any assignment request within [15] business days. Failure to respond within such period shall be deemed consent." 5. Dispute Resolution: "Any dispute regarding whether consent has been unreasonably withheld shall be resolved by expedited arbitration." This framework ensures that consent requirements serve their legitimate purpose (protecting confidential information) without becoming a tool for commercial leverage. Would these clarifications be acceptable? Best regards, [Your Name]

Require Successor Liability Provisions

Disclosing Party Ensure Accountability

When to use: You are willing to permit some assignments but want to ensure clear accountability from successors. Use this to add robust successor liability provisions.

Subject: Re: NDA - Successor and Assign Obligations

[Name], Regarding the assignment provisions, we are prepared to accommodate your request for [M&A carve-out / affiliate assignment rights], subject to the addition of clear successor liability language. Our goal is to ensure that any permitted assignment does not create a gap in accountability. Please add the following to Section [X]: "SUCCESSOR OBLIGATIONS: (a) Written Assumption: Any permitted assignment shall not be effective until the assignee executes a written agreement, in form reasonably acceptable to the non-assigning party, assuming all obligations of the assignor under this Agreement. (b) Continuing Liability: No assignment shall relieve the assignor of any liability for breaches occurring prior to the effective date of assignment. (c) Joint Liability Period: For a period of [12/24] months following any assignment, the assignor and assignee shall be jointly and severally liable for performance of all obligations under this Agreement. (d) Successor Bound: This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any successor or assign shall be entitled to enforce this Agreement only to the extent it has assumed the corresponding obligations. (e) No Novation: Assignment shall not constitute a novation or in any way release the assignor from any obligation or liability unless expressly agreed in writing by the non-assigning party." These provisions ensure that permitted assignments do not undermine the protection this NDA is designed to provide. Please confirm you can incorporate this language. Best regards, [Your Name]

Push Back on Restrictive Assignment Terms

Receiving Party Remove Restrictions

When to use: The assignment clause is overly restrictive with requirements like competitor veto rights, security audits of assignees, or extended liability periods that are not appropriate for an NDA.

Subject: Re: NDA - Assignment Terms Are Too Restrictive

[Name], I have reviewed your proposed assignment language and need to push back on several provisions that we cannot accept. To be direct: the assignment restrictions you have proposed are more appropriate for a strategic partnership agreement or significant commercial contract than a mutual NDA. The requirements are disproportionate to the nature of this agreement. Specifically, we cannot accept: 1. [24-month joint liability period] - This is an unusually long tail that would complicate any corporate transaction. Industry standard is [6-12 months] at most. 2. [Security audit of assignee] - Requiring us to make a potential acquirer available for your security assessment as a condition of assignment is not workable in the context of M&A. 3. [Absolute competitor veto] - You have proposed an absolute right to block any assignment to a "competitor," but your definition of competitor is overbroad and could block most strategic transactions in our industry. 4. [Approval of successor agreement form] - Requiring your approval of the written assumption agreement gives you excessive control over the transaction mechanics. Here is what we consider reasonable and can accept: - Notice of assignment within [10] business days of closing - Written assumption of obligations by assignee (form not subject to your approval) - [6-month] joint liability period - No assignment to [list of specifically named competitors], rather than a general category Please revise Section [X] to reflect reasonable, market-standard terms. We want to finalize this NDA and move forward with our discussions. Best regards, [Your Name]

Accept M&A Carve-Out with Enhanced Notice

Disclosing Party Compromise

When to use: You have decided to accept an M&A carve-out but want to ensure you have adequate notice and the ability to protect your information. Use this to confirm acceptance with conditions.

Subject: Re: NDA - Assignment Compromise Proposal

[Name], Thank you for your continued engagement on the assignment clause. After internal discussion, we are prepared to accept an M&A carve-out with the following conditions, which we believe represent a fair compromise: ACCEPTED: - Assignment without consent in connection with a merger, acquisition, or sale of all or substantially all assets - Assignment to affiliates with notice (not consent) - 6-month joint liability period CONDITIONS: 1. Advance Notice: Written notice at least [30] days prior to closing, or if prohibited by applicable law or transaction confidentiality requirements, within [5] business days of public announcement. 2. Information Return Option: Upon receiving notice of an M&A transaction, we may elect to require return or destruction of our Confidential Information. This election must be made within [15] days of notice. If we make this election, the NDA terminates as to our Confidential Information upon completion of the return/destruction process. 3. Named Competitor Carve-Out: The M&A carve-out shall not apply to a transaction where the acquirer is [list 3-5 specific competitors]. This is a short, specific list, not a general category. 4. Successor Acknowledgment: The assignee must provide a written acknowledgment of the NDA obligations directly to us within [30] days of closing. 5. Survival of Existing Claims: Assignment shall not affect any claims arising from conduct prior to the assignment. Please confirm these terms are acceptable, and we can finalize the agreement. Best regards, [Your Name]