NDA before selling your business

A business sale starts with disclosure: the fact that the business is for sale, then the information memorandum, then the accounts, contracts, customer lists and staff details in a data room, to buyers who may be competitors and who may not buy. A non-disclosure agreement signed before the memorandum is sent protects the sale process, the information and the business's staff and customers, and remains the seller's only protection until the sale agreement is signed. I review the NDA a broker or a buyer has produced, or draft one for the seller, for a fixed fee of £495 in three working days.

Who this is for

Owners and shareholders of businesses in England and Wales preparing to sell, whether through a broker, an adviser or their own approach to buyers, and buyers asked to sign a seller's NDA before receiving information. The seller and the buyer contract as businesses; individual shareholders may sign personally.

What matters in an NDA before selling your business

The fact of the sale is confidential

The NDA should define the confidential information to include the fact that the business is for sale, the identity of the seller and the buyer, the existence and progress of the discussions and the terms proposed, since staff, customers, suppliers and competitors learning of a sale can damage the business before any buyer has committed. The review checks that the buyer may not disclose the approach to anyone outside its permitted recipients and may not contact the business's staff, customers, suppliers or landlord without the seller's consent.

The memorandum, the data room and the buyer's advisers

The information will be shared with the buyer's directors, advisers, funders and, later, insurers, and the NDA should permit disclosure to named categories who need to know, on condition that they are bound by equivalent obligations and that the buyer is responsible for them. The review checks the treatment of data room access, the buyer's right to take copies, and the position of a private equity buyer's investment committee and portfolio companies, which should be permitted recipients only so far as the seller agrees.

Competitors as buyers and the information held back

Where a prospective buyer is a competitor, the NDA cannot make the disclosure safe; it can only give a remedy. The review advises on staging the disclosure, with customer names, pricing and margins by customer and staff details held back until the buyer has committed under heads of terms, and drafts the NDA so that the most sensitive information is disclosed only to a clean team of the buyer's advisers where the buyer will agree. A sale to a competitor may also engage the merger control provisions of the Enterprise Act 2002, which is a matter for the sale process rather than the NDA.

Non-solicitation of staff and customers

A buyer that has seen the business's staff list and customer list should be prevented from using it: the NDA should prohibit the buyer soliciting or employing the business's key staff and soliciting its customers and suppliers for a period after the discussions end, whether or not the sale proceeds. The review drafts the restriction proportionately, since a restriction between businesses in the same market can raise issues under section 2 of the Competition Act 1998, and confines it to the people and customers disclosed under the NDA.

Personal data in the data room

Staff information, customer contact details and supplier contacts in the data room are personal data, and disclosing them to a buyer is a disclosure the seller must be able to justify under the UK GDPR and the Data Protection Act 2018, with the buyer becoming a controller of what it receives. The review advises on anonymising staff and customer data at the memorandum stage, on the lawful basis for disclosure in due diligence, and drafts the NDA so that the buyer's use of personal data is confined to evaluating the transaction and the data is deleted if the buyer withdraws.

Standstill, exclusivity, and when a buyer walks away

The NDA should require the buyer to return or destroy the information and to confirm deletion if it withdraws, with a carve-out for copies its advisers must retain, and should say that the seller may end the process at any time and is not obliged to accept any offer. It should not grant exclusivity, which belongs in heads of terms if at all, and any restriction on the buyer bidding for the seller's shares in a way the seller has not agreed should be drafted as a standstill. The obligations should last for a stated period and, for trade secrets, for as long as they remain secret under the standard in the Trade Secrets (Enforcement, etc.) Regulations 2018, with disclosures required by law or a regulator carved out.

What it costs

NDA review or drafting, £495. Three working days.

Buying online forms the engagement on payment. The scope is what the contract review page describes, you accept the Terms of Service at checkout, and I email you within four working hours to get started. If you would rather ask something first, email me.

What you get

• Your own contract returned with my amendments as tracked changes, plus a clean version with every change accepted, ready to send to the other side
• Comments in the document where a point needs explaining
• A written explanation of what I have changed and why, by email or as an attachment if it is lengthy, marking the points I would hold firm on and the ones that are negotiable
• A view on what is normal market practice and what is the other side pushing their luck
• One round of follow-up questions by email, included

What is not included

• Negotiating directly with the other side, which I quote separately once I know who is on the other side. Where the other side is willing to share a live document, I can work in that document directly
• Drafting a replacement contract from scratch
• Advice on the law of any jurisdiction other than England and Wales
• Tax, accounting or regulatory advice
• Disputes about a contract that is already signed

Questions I am often asked

A competitor wants to look at the business. Should we let them see everything?

Not before they have committed. The review advises on staging disclosure, with customer names, margins by customer and staff details held back until heads of terms are signed, and drafts the NDA so that the most sensitive information goes only to the buyer's advisers where the buyer will agree to that.

The buyer's NDA lets it share our information with its investors and portfolio companies. Is that normal?

Investors and funders are normal permitted recipients; portfolio companies that compete with you are not. The review limits the permitted recipients to those who need to know for the transaction and makes the buyer responsible for their compliance.

Can the buyer hire our staff if the deal falls through?

Only if the NDA fails to stop it. The review adds a non-solicitation clause covering the key staff and customers disclosed under the NDA, for a period after the discussions end, whether or not the sale proceeds.

Related guidance and services

• Contract review, £495, the service this page describes
• Shareholders agreement, £995
• NDA before sharing financial information with a buyer
• Reviewing heads of terms before a deal

This page is general guidance for businesses in England and Wales, not advice on your own circumstances. Last reviewed: September 2026. Email geoffrey@caesar.co.uk.