Representatives Clause Email Templates

Thank you for your comments on the draft NDA. We have reviewed your proposed definition of "Representatives" and have concerns about its breadth. Your current definition would permit disclosure to any employee, officer, director, advisor, or agent. Given the sensitive nature of the information we will be sharing, we require a more limited approach. We propose one of the following alternatives: Option A: Disclosure shall be limited to the individuals listed on Schedule A to this Agreement. Any additions to Schedule A shall require our prior written consent. Option B: The definition of Representatives shall be limited to those employees and advisors who (i) have a need to know the Confidential Information for purposes of evaluating the Transaction, and (ii) have been identified to us in writing prior to receiving any Confidential Information. Either approach ensures we have visibility into who is receiving our information and can assess whether appropriate protections are in place. We have had situations in the past where information was shared too broadly within an organization, and we must take steps to prevent that here. Please let us know which option works better for your organization. Best regards, [Name]

We have reviewed your proposed revision to include "potential financing sources" and "potential co-investors" in the definition of Representatives. We are not able to accept this change. The purpose of this NDA is to facilitate discussions between our two companies regarding a potential transaction. Disclosure to financing sources and co-investors introduces additional parties who have their own interests and who we have no relationship with or ability to monitor. If you determine that you need to share information with financing sources or co-investors, we would require: 1. Those parties to execute a separate NDA directly with us containing substantially similar terms; or 2. At minimum, a written acknowledgment from each such party agreeing to be bound by the confidentiality obligations in this Agreement, with you remaining fully liable for their compliance. We understand this may add some complexity to your process, but we cannot allow our confidential information to be shared with parties we have not vetted and who are not directly bound to us. Please confirm you can proceed on this basis. Best regards, [Name]

Thank you for clarifying that you may need to share Confidential Information with certain affiliates as part of your evaluation process. We are willing to permit disclosure to affiliates, subject to the following requirements: 1. Each affiliate must be bound by written confidentiality obligations that are at least as protective as those in this Agreement; 2. You must provide us with a list of affiliates who will receive Confidential Information within five business days of first sharing information with any affiliate; 3. You shall remain liable for any breach of confidentiality by your affiliates; and 4. Disclosure to affiliates shall be limited to those with a genuine need to know for purposes of evaluating the potential transaction. We would also ask that you confirm whether any of your affiliates compete with us in any material business line. If so, we may need to discuss additional protections or limitations. Please confirm these terms are acceptable, and we can incorporate them into the revised draft. Best regards, [Name]

We have reviewed your request to include "external consultants and industry advisors" in the definition of Representatives. We have significant concerns with this request. External consultants often work with multiple clients, including our competitors. Even with the best intentions, there is risk that insights gained from our Confidential Information could inform advice given to others. We are prepared to consider a limited exception for external consultants, but only if the following conditions are met: 1. You provide us with the identity of each consultant and their firm prior to any disclosure; 2. You confirm in writing that the consultant is not currently engaged by, and has not been engaged by within the past 12 months, any of our direct competitors (a list of which we can provide); 3. The consultant executes a confidentiality agreement directly with us; and 4. Disclosure to consultants is limited to specific categories of information that we agree upon in advance. If you have a specific consultant in mind, please provide their details and we can discuss whether we are comfortable with their involvement. Best regards, [Name]

Thank you for sending the draft NDA. We have reviewed the definition of Representatives and need to request an expansion to include our potential financing sources. As a private equity firm, our ability to evaluate and execute a transaction depends on our ability to share relevant information with potential lenders. Without this access, we cannot provide a credible indication of value or move forward with a binding proposal. We understand your concern about broadening the circle of recipients. To address this, we propose the following framework: 1. "Potential Financing Sources" would be added to the definition of Representatives; 2. We would require each financing source to enter into a customary confidentiality agreement or "big boy letter" acknowledging receipt of confidential information; 3. We would remain fully liable for any breach by our financing sources; 4. We would limit disclosure to financing sources to only that information reasonably necessary for them to evaluate and provide financing. This is standard practice in private equity transactions, and we are confident that the financing sources we work with have robust confidentiality procedures. Please confirm this approach is acceptable. Best regards, [Name]

We have reviewed the draft NDA and note that the current definition of Representatives does not include our affiliates. Our corporate structure requires that certain functions, including M&A analysis, tax planning, and treasury operations, be performed by affiliate entities within our group. To properly evaluate the potential transaction, we need to share Confidential Information with relevant personnel at these affiliates. We request that the definition of Representatives be expanded to include "affiliates" as defined below: "Affiliates" means any entity that directly or indirectly controls, is controlled by, or is under common control with the Receiving Party, where "control" means the ownership of more than 50% of the voting securities or equivalent ownership interest. We are comfortable confirming that: - We will be responsible for any breach by our affiliates; - Disclosure to affiliates will be limited to those with a need to know; and - We will inform each affiliate of the confidential nature of the information. This is a standard provision in NDAs involving large corporate groups, and we trust this will not be a concern. Best regards, [Name]

Thank you for the revised draft. We have one clarification regarding the definition of Representatives. The current definition includes "legal advisors," but we want to confirm this includes our external legal counsel and not only in-house lawyers. Our external M&A counsel will need to review the Confidential Information as part of our due diligence process, and we want to ensure there is no ambiguity on this point. If there is any concern, we would note that external legal counsel are already bound by professional obligations of confidentiality under their bar rules, which provide additional protection beyond the contractual terms of this NDA. We propose modifying the definition to read: "legal advisors, including external legal counsel retained by the Receiving Party." Alternatively, if you prefer, we are happy to have our external counsel sign onto this NDA directly or provide a separate acknowledgment of confidentiality. Please confirm this is acceptable so we can finalize the agreement. Best regards, [Name]

We have reviewed your proposed requirement that disclosure be limited to named individuals listed on a schedule to the agreement. While we understand the intent behind this approach, it is not practical for our organization. As we conduct due diligence, the specific individuals who need access to information will evolve based on what we learn and which expertise is required. Requiring us to seek your approval each time we need to add someone to the list would significantly slow down the process and create unnecessary administrative burden on both sides. We propose the following alternative approach that addresses your concerns while remaining practical: 1. Representatives shall include employees, officers, and directors who have a need to know the Confidential Information for purposes of evaluating the Transaction; 2. We will maintain a log of individuals who receive Confidential Information and will provide this log to you upon request; 3. Prior to sharing any Confidential Information, each Representative will be informed of its confidential nature and instructed to maintain its confidentiality; 4. We will remain fully liable for any breach by our Representatives. This approach ensures accountability and traceability while allowing us to operate efficiently. Please let us know if this is acceptable. Best regards, [Name]