Tips and traps—key issues in negotiating a confidentiality agreement
Tips and traps—key issues in negotiating a confidentiality agreement

The following Banking & Finance guidance note provides comprehensive and up to date legal information covering:

  • Tips and traps—key issues in negotiating a confidentiality agreement
  • When are confidentiality agreements required?
  • What are the various types of confidentiality agreements?
  • Reviewing and negotiating confidentiality agreements—common clauses
  • Reviewing and negotiating confidentiality agreements—additional clauses specific to the primary syndication confidentiality agreement
  • Reviewing and negotiating confidentiality agreements—other clauses that are sometimes included
  • Back-to-back confidentiality agreements

It is very common for confidentiality agreement to be signed between parties when no external counsel has yet been appointed. As such the onus will fall on the in-house counsel to review and negotiate these. This Practice Note is intended to provide tips, guidance and highlights potential issues to in-house counsel working on lending transactions who are involved in reviewing and negotiating such confidentiality agreements.

This Practice Note explains:

  1. when and why confidentiality agreements might be necessary

  2. what the different types of confidentiality agreements are

  3. the main points to check when reviewing a confidentiality agreement—this is split into:

    1. key common clauses and negotiating points in confidentiality agreements, such as the definition of 'confidential information' and the 'permitted purpose' of the transaction

    2. clauses specific to the primary syndication confidentiality agreement, such as the standstill provision and no front running

    3. other clauses that are sometimes included such as non-solicitation and exclusivity

  4. what is meant by back-to-back confidentiality agreements

When are confidentiality agreements required?

At the very initial stages of a potential transaction, parties will be looking to exchange information which is deemed confidential and sensitive in order to ascertain whether or not to take a potential deal or relationship forward. In order to control and monitor how this information is shared, disclosed and controlled, such parties will be expected to enter into confidentiality