Non-Disclosure and Other Preliminary Agreements in Business Transactions

A Confidentiality Agreement (also sometimes referred to as an Non-Disclosure Agreement) is typically the first stage for the due diligence process in a transaction. These agreements can effectively act as a standstill agreement and can take many different approaches including disclaiming reliance or being non-binding. Letters of Intent are an intermediate step between NDAs and definitive binding agreements. The Texas Supreme Court’s opinion in Energy Transfer Partners, L.P. v. Enterprise Products Partners, L.P. makes clear that Texas embraces the principles of freedom of contract among sophisticated businesses, and that they can trust that their legal documents will be enforced as written. This means that in Texas companies can rely on conditions precedent to avoid an unintended partnership or joint venture, and those conditions precedent can be set forth in a confidentiality agreement, letter of intent or other preliminary agreement. This article includes a seller oriented confidentiality agreement and letter of intent.

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Tax Reform Act Texas Revised Partnership Act Uniform Partnership Act Revised Partnership Act Revised Uniform Partnership Act Secrets Act Trade Secrets Act Texas Uniform Trade Secrets Act Uniform Trade Secrets Act National Stolen Property Act Economic Espionage Act Rodino Antitrust Improvements Act HSR Act TBOC § 152.052 25 A.3d 813 68 A.3d 1208 56 A.3d 1072 926 A.2d 58 59 A.3d 418 1999 WL 1054255 2013 Del. Ch. LEXIS 131 2013 WL 5631233 45 A.3d 107 595 S.W.3d 688 595 S.W.3d 668 526 S.W.3d 471 490 S.W.3d 468 178 S.W.3d 763 238 S.W.2d 181 840 S.W.2d 952 482 S.W.3d 559 758 S.W.2d 744 309 S.W.3d 635 547 S.W.3d 27 519 S.W.3d 95 593 S.W.3d 732 729 S.W.2d 768 288 S.W.3d 886 366 S.W.3d 275 695 S.W.2d 699 171 S.W. 703 421 S.W.3d 198 171 F.3d 733 751 F.2d 69 404 F.2d 495 2011 WL 318400 861 F. Supp. 2d 220 864 S.W.2d 563 485 U.S. 994 925 S.W.2d 604 117 S. Ct. 612 248 A.2d 625 762 F. Supp. 998 850 F.2d 1217 96 Cal. App. 4th 1251 670 F. Supp. 491 884 F.2d 69 331 F. Supp. 597 795 F.2d 1086 727 F.2d 257 469 U.S. 828 637 A.2d 34 Work Product Warranties Waiver Vendor Unfair Competition Trade Secrets Tort Terms and Conditions Termination Temporary Restraining Order Summary Judgment Subpoena Strict Liability Stockholder Statute of Frauds Specific Performance Source Code Shareholder Severability Service of Process Securities Restraining Order Restatement of the Law Representations and Warranties Public Company Protective Order Promissory Note Promissory Estoppel Preliminary Injunction Parent Company Oral Contract Obligations of Confidentiality Nonprofit Corporation Misappropriation Mergers & Acquisitions Limited Partnership Limited Partner Limited Liability Jury Charge Joint Venture Agreement Joint Venture Investment Injunctive Relief Indemnify Implied Covenant of Good Faith and Fair Dealing Implied Contract Good Faith General Partner Fraud Final Judgment Fiduciary Duty Fair Dealing Exclusive Escrow Agent Duty of Care Due Diligence Documentary Evidence Divestiture Directors and Officers Directors Counteroffer Contract Law Contract Consideration Confidentiality Confidential Information Condition Precedent Common Law Commercial Law Civil Procedure Certification Capital Stock Burden of Proof Breach of Contract Board of Directors Bad Faith Attorney Client Privilege Assignment Antitrust Accounts Receivable Acceptance