This NDA Mergers And Acquisitions template is specifically tailored for use in Australian M&A transactions where parties need to exchange sensitive business information during due diligence and negotiation phases. The document is designed to comply with Australian corporate law requirements and market practice, providing comprehensive protection for confidential information while facilitating necessary business discussions. It incorporates provisions addressing modern due diligence practices, including virtual data rooms and digital information sharing, while ensuring compliance with Australian privacy laws and securities regulations. This template is particularly suitable for transactions involving Australian companies or Australian assets, and includes specific provisions addressing ASX requirements for listed entities where relevant.
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1. Parties: Identification of the disclosing party, receiving party, and any affiliated entities involved in the M&A transaction
2. Background: Context of the proposed M&A transaction and purpose of the confidentiality agreement
3. Definitions: Key terms including Confidential Information, Transaction, Representatives, and Affiliated Entities
4. Confidentiality Obligations: Core obligations regarding the use, protection, and non-disclosure of confidential information
5. Permitted Disclosures: Circumstances under which confidential information may be shared with representatives and advisors
6. Security Measures: Required procedures and standards for protecting confidential information
7. Return or Destruction of Information: Obligations regarding the handling of confidential information if the transaction does not proceed
8. Duration of Obligations: Time period for which confidentiality obligations remain in effect
9. Non-Circumvention: Restrictions on using confidential information to compete or circumvent the transaction
10. Remedies: Available legal remedies including injunctive relief for breach of confidentiality
11. General Provisions: Standard clauses including governing law, jurisdiction, and entire agreement
1. Standstill Provisions: Used when the target is a public company to prevent unauthorized share acquisitions
2. Non-Solicitation of Employees: Added when there are concerns about poaching key employees during due diligence
3. Reverse Break Fee: Included when parties want to specify damages for breach of confidentiality
4. Clean Team Arrangements: Required when sharing competitively sensitive information between competitors
5. Data Protection Compliance: Added when personal data will be shared during due diligence
6. Anti-Trust Compliance: Included when the transaction may have competition law implications
7. Securities Laws Compliance: Required when dealing with listed companies and inside information
1. Schedule 1 - Defined Confidential Information: Specific categories and types of confidential information covered
2. Schedule 2 - Authorized Representatives: List of individuals and advisors authorized to access confidential information
3. Schedule 3 - Security Protocols: Detailed procedures for handling and protecting confidential information
4. Schedule 4 - Data Room Rules: Procedures and requirements for accessing virtual data room
5. Appendix A - Confidentiality Undertaking: Form of confidentiality undertaking for representatives to sign
6. Appendix B - Destruction Certificate: Form of certificate confirming destruction of confidential information
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