When They Propose One-Sided Assignment Rights
"We notice the current draft allows your company to freely assign while requiring our consent for any assignment. In a mutual NDA where both parties are sharing information, the assignment provisions should be mutual. We're both subject to the same business realities - either of us might be acquired, merge, or restructure. We need the same flexibility you've given yourself."
When They Resist M&A Carve-Outs
"We understand the concern about information ending up with unknown parties. However, requiring consent for M&A transactions creates significant issues. First, it gives you effective veto power over our corporate transactions. Second, in a competitive M&A process, we can't disclose this restriction to bidders without also disclosing we're in an NDA with you. We propose permitting M&A assignments automatically, with a requirement that the assignee assume all obligations in writing and that we provide prompt notice."
When They Want Sole Discretion to Deny Consent
"'Sole discretion' consent gives you an absolute veto over any assignment for any reason - or no reason at all. This is too one-sided. We're willing to require consent for voluntary assignments to third parties, but that consent needs to be 'not unreasonably withheld.' If we're proposing to assign to a reputable, financially sound party who agrees to assume all obligations, there's no reasonable basis to refuse."
When You Want Competitor Protection
"We're comfortable with the M&A carve-outs for most situations. However, we are concerned about our confidential information ending up with our direct competitors. We propose adding a provision that if the assignee is a Competitor (which we can define specifically), the assignment requires our consent, not to be unreasonably withheld. This protects both of us while allowing normal business transactions."
When They Require Extensive Conditions on Assignment
"We see that any assignment requires modification of terms, payment of fees, and execution of a new agreement by the assignee. These conditions effectively make assignment impractical and could delay or derail legitimate transactions. We're willing to require the assignee to assume obligations in writing and to provide reasonable notice. However, fees and term modifications for ordinary course business changes are not acceptable."