• Exclusivity: It is common in a typical bilateral sale to include binding exclusivity provisions in a letter of intent or term sheet even where the letter of intent/term sheet itself is not binding, although this is a commercial term that is usually subject to negotiation.
• Break fee: It is not common to use break fees in private acquisition agreements but we do see it from time to time, e.g., in a competitive auction process where the conditions precedent are the primary responsibility of the buyer.
• Confidentiality: It is very common to include binding confidentiality provisions in a letter of intent or term sheet even where the letter of intent/term sheet itself is not binding.

If there are binding terms on confidentiality, exclusivity and break fee(s) in the term sheet then it would be very unusual to have separately negotiated agreements on these matters prior to execution of the definitive transaction documents (SPAs, etc.). To the extent any terms in the term sheet are expressed to be binding, the scope of these contractual terms should be sufficiently defined and certain to be legally enforceable and so there should be no need for additional agreements. In the case of exclusivity provisions, the exclusivity period and prohibited conduct should be set out clearly. Of course, the definitive transaction agreements may include confidentiality provisions and break fee clauses to deal with the position post-signing of the SPA in which case the prior provision in the term sheet would usually fall away.

A separate confidentiality agreement is usually negotiated as a preliminary agreement prior to the exchange of any information. Indeed this is always the case in the context of a competitive auction process where term sheets are not typical. The term sheet is far more common in a bilateral process but may be preceded by a confidentiality agreement so that the parties can conduct discussions over a draft term sheet and document the main terms of their proposed transaction in confidence.

Under Singapore law, pre-contractual agreements to negotiate in good faith (i.e., "lock in" agreements) are generally unenforceable, unless the agreement is to negotiate for a particular period or to use reasonable endeavors to come to an agreement as a result of the negotiations. That said, these exceptions have not been tested in Singapore courts, so parties should exercise particular caution in drafting such clauses. On the other hand, pre-contractual agreements not to enter into negotiations with any third party (i.e., "lock out" agreements) will be enforceable if there is sufficient certainty (e.g., duration).

The fact that a purchase agreement is not signed following the entry of the parties into a pre-contractual agreement, e.g., a letter of offer or term sheet, does not automatically provide a party who loses time and money any contractual recourse against the other party, unless it can be shown that the other party has breached its binding obligations under the pre-contractual agreement (in which case, the claiming party would be able to seek recourse against the defaulting party for a breach of contract).

In the case where a purchase agreement is signed, typically the parties will agree that the terms of the purchase agreement will supersede any pre-contractual agreement previously entered into by the parties in relation to the transaction. As such, if following signing the transaction does not complete, any recourse available to the parties will be determined in accordance with the terms of the signed purchase agreement.