An Acquisition NDA is a crucial document used in the early stages of merger and acquisition transactions in Switzerland, typically executed before detailed due diligence begins. This document, governed by Swiss law, establishes the framework for protecting confidential information exchanged during the evaluation and negotiation of a potential acquisition. It addresses specific requirements under Swiss legislation, including the Swiss Code of Obligations and Federal Act on Data Protection, while incorporating international best practices for M&A transactions. The agreement typically precedes other transaction documents and remains effective regardless of whether the acquisition proceeds. It's particularly important in the Swiss business environment, where data protection and confidentiality are heavily emphasized in both law and business practice.
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1. Parties: Identification of the disclosing party (typically the seller) and receiving party (typically the potential buyer), including full legal names and addresses
2. Background: Context of the potential acquisition and purpose of the NDA, including brief description of the contemplated transaction
3. Definitions: Key terms including 'Confidential Information', 'Permitted Purpose', 'Representatives', 'Affiliated Companies', and 'Transaction'
4. Scope of Confidential Information: Detailed description of what constitutes confidential information in the context of the potential acquisition
5. Confidentiality Obligations: Core obligations regarding use, protection, and non-disclosure of confidential information
6. Permitted Disclosures: Circumstances under which confidential information may be shared with representatives and advisors
7. Information Security Measures: Required security measures for protecting confidential information
8. Return or Destruction of Confidential Information: Obligations regarding the handling of confidential information if the transaction does not proceed
9. Duration of Obligations: Term of the agreement and survival of confidentiality obligations
10. No Commitment to Transaction: Clarification that the NDA does not oblige parties to proceed with the transaction
11. Remedies: Available remedies in case of breach, including injunctive relief
12. Governing Law and Jurisdiction: Specification of Swiss law as governing law and jurisdiction for disputes
1. Non-Solicitation: Restrictions on soliciting employees or customers, included when talent retention is a key concern
2. Standstill Provisions: Restrictions on acquiring target company shares outside the transaction, relevant for listed companies
3. Exclusivity/No Shop: Provisions preventing the seller from seeking other buyers, included when buyer requires exclusivity
4. Data Protection Compliance: Specific provisions for FADP compliance, included when personal data is involved
5. Anti-trust Compliance: Provisions regarding competition law compliance, included when parties are competitors
6. Deal Team Restrictions: Restrictions on which personnel can access information, included for sensitive competitive situations
7. Press Announcements: Provisions regarding public communications, particularly important for listed companies
1. Schedule 1: Authorized Representatives: List of individuals authorized to receive and handle confidential information
2. Schedule 2: Security Protocols: Detailed information security requirements and procedures
3. Schedule 3: Data Room Rules: Specific rules and procedures for accessing and using the data room
4. Appendix A: Description of the Proposed Transaction: Detailed description of the contemplated transaction
5. Appendix B: Clean Team Procedures: Procedures for handling commercially sensitive information, if applicable
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