Clean Team Confidentiality Agreement

Summary

This template Clean Team Confidentiality Agreement is to be used in conjunction with a customary confidentiality agreement or non-disclosure agreement (NDA) to facilitate the exchange of highly sensitive and competitive information among parties that are contemplating a potential merger and acquisition transaction. This template includes practical guidance and drafting notes. Under United States federal and state laws, providing certain types of highly sensitive information may constitute an illegal violation of antitrust laws, especially when the parties are direct or indirect competitors of one another or operate in the same industry; for more on antitrust violations, see Due Diligence: Antitrust Issues. While antitrust laws are designed to prevent collusion and anticompetitive behavior in the market (such as price-fixing), such laws may present an obstacle to the due diligence process in an M&A transaction by preventing the exchange of information between parties. To enable parties to effectively perform due diligence and perform necessary evaluations, a "clean team" can be used to avoid antitrust violations and progress the deal. This agreement (i) designates a subset set of a buyer's or merger party's advisors and employees as a clean team, who can receive such highly competitive information and (ii) sets parameters on how the clean team can use and communicate information regarding highly competitive information to the rest of the buyer or merger party's deal team. Because the clean team confidentiality agreement will supplement an original NDA, terms should be conformed to those used in the NDA. For more information on NDAs, see Confidentiality/Non-Disclosure Agreements in Private M&A Deals and Confidentiality/Non-Disclosure Agreements in Public M&A Deals.