The Merger And Acquisition Agreement is a critical document used in corporate transactions where one company acquires or merges with another entity under Swiss jurisdiction. This document is essential when conducting corporate combinations, whether through share purchases, asset acquisitions, or statutory mergers under Swiss law. It encompasses detailed provisions required by Swiss legislation, including compliance with the Swiss Code of Obligations, Swiss Merger Act, and competition laws. The agreement is typically employed in transactions involving Swiss companies or foreign entities engaging in Swiss-based transactions, and requires careful consideration of local regulatory requirements, including merger control thresholds, employment law implications, and specific industry regulations. The document serves as the cornerstone of the transaction, containing all material terms, conditions, and obligations of the parties, while providing mechanisms for risk allocation and post-closing adjustments.
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1. Parties: Identification of the buyer(s) and seller(s), including full legal names and addresses
2. Background: Context of the transaction, description of the target company/business, and transaction rationale
3. Definitions: Defined terms used throughout the agreement
4. Sale and Purchase: Core transaction terms including what is being sold (shares/assets) and basic mechanics
5. Purchase Price: Consideration details, including amount, form of payment, and any adjustments
6. Conditions Precedent: Conditions that must be satisfied before closing
7. Pre-Closing Covenants: Obligations of parties between signing and closing, including conduct of business
8. Closing: Mechanics of closing, including timing, location, and deliverables
9. Representations and Warranties: Seller's and buyer's representations about the business, transaction, and authority
10. Indemnification: Rights and obligations regarding compensation for losses arising from breaches
11. Tax Matters: Allocation of tax liabilities and obligations
12. Employee Matters: Treatment of employees and related liabilities
13. Confidentiality: Obligations regarding confidential information
14. Governing Law and Jurisdiction: Choice of Swiss law and jurisdiction provisions
15. Miscellaneous: Standard boilerplate provisions including notices, amendments, and severability
1. Earn-out Provisions: Used when part of purchase price is contingent on future performance
2. Competition Restrictions: Non-compete and non-solicitation provisions, if applicable
3. Intellectual Property: Specific provisions for IP transfer and protection, relevant for technology companies
4. Real Estate: Special provisions when significant real estate assets are involved, particularly regarding Lex Koller
5. Environmental Matters: Specific provisions for businesses with environmental risks or obligations
6. Data Protection: Detailed FADP compliance provisions for data-intensive businesses
7. Financing Cooperation: When buyer requires seller's cooperation for transaction financing
8. Break-up Fee: Provisions for termination fees in larger transactions
9. Transition Services: When post-closing services are needed from seller
1. Disclosure Schedule: Exceptions to representations and warranties
2. Company Information: Details of target company including corporate documents, capitalization
3. Financial Statements: Recent financial statements of target company
4. Material Contracts: List and copies of important contracts
5. Real Property: Details of owned and leased real estate
6. Intellectual Property: List of IP rights and registrations
7. Employee Information: List of employees, benefits, and employment agreements
8. Permits and Licenses: List of governmental authorizations
9. Purchase Price Adjustment: Detailed mechanics for price adjustments
10. Closing Deliverables: List of documents to be delivered at closing
11. Form of Ancillary Agreements: Forms of employment agreements, escrow agreement, etc.
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