The Confidentiality Agreement Mergers And Acquisitions is a critical document used in the early stages of any M&A transaction in Germany. It serves as the foundation for sharing sensitive business information during the due diligence process and preliminary negotiations. This agreement is particularly important in the German legal context, where strict data protection laws (GDPR and BDSG) and trade secret protection (GeschGehG) must be observed. The document typically precedes any substantial information exchange and is often a prerequisite for accessing virtual data rooms or participating in management presentations. It protects both the target company's business secrets and the potential buyer's interest in the transaction, while ensuring compliance with German corporate law requirements, particularly relevant for transactions involving German GmbHs or AGs.
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1. Parties: Identification of the disclosing and receiving parties, including corporate details as required under German law
2. Background: Context of the potential transaction and purpose of sharing confidential information
3. Definitions: Key terms including 'Confidential Information', 'Permitted Purpose', 'Authorized Recipients', 'Affiliated Companies', and 'Representatives'
4. Scope of Confidential Information: Detailed description of what constitutes confidential information, including exceptions
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 third parties
7. Data Protection: GDPR compliance provisions and handling of personal data
8. Information Security Measures: Required technical and organizational measures to protect confidential information
9. Return or Destruction of Confidential Information: Obligations regarding the handling of confidential information upon termination or request
10. Duration and Survival: Term of the agreement and surviving obligations
11. Non-Solicitation: Restrictions on soliciting employees or customers
12. Remedies: Legal remedies including injunctive relief and contractual penalties (Vertragsstrafe)
13. General Provisions: Standard clauses including governing law, jurisdiction, severability, and entire agreement
1. Insider Trading Provisions: Required if target company is publicly listed, addressing securities law compliance
2. Exclusivity: Optional provisions preventing the disclosing party from engaging with other potential buyers for a specified period
3. Standstill Provisions: Restrictions on acquiring securities or assets without consent, typically for public companies
4. Anti-Trust Compliance: Special provisions for handling competitively sensitive information if parties are competitors
5. Process Letters: References to and interaction with separate process letters in competitive auction scenarios
6. Non-Circumvention: Prevents recipient from circumventing disclosing party to deal directly with its customers, suppliers, or other business contacts
7. Cost Allocation: Provisions on bearing costs related to the potential transaction and due diligence
1. Schedule 1 - Authorized Recipients: List of individuals or categories of persons authorized to access confidential information
2. Schedule 2 - Security Measures: Detailed technical and organizational measures required for protecting confidential information
3. Schedule 3 - Data Processing Terms: Detailed GDPR-compliant data processing terms if personal data will be shared
4. Schedule 4 - Form of Confidentiality Undertaking: Template confidentiality undertaking for representatives and advisors
5. Schedule 5 - Destruction Certificate: Form of certificate confirming destruction of confidential information
Relevant legal definitions
Affiliated Company (Verbundenes Unternehmen)
Agreement
Authorized Recipients (Berechtigte Empfänger)
Business Day (Geschäftstag)
Confidential Information (Vertrauliche Informationen)
Controller (Verantwortlicher)
Data Protection Laws (Datenschutzgesetze)
Disclosing Party (Offenlegende Partei)
Effective Date (Datum des Inkrafttretens)
Group (Konzern)
Information Security Measures (Informationssicherheitsmaßnahmen)
Inside Information (Insiderinformation)
Material Adverse Effect
Notes (Aufzeichnungen)
Party/Parties (Partei/Parteien)
Permitted Purpose (Erlaubter Zweck)
Personal Data (Personenbezogene Daten)
Processor (Auftragsverarbeiter)
Professional Advisors (Professionelle Berater)
Project Name (Projektname)
Receiving Party (Empfangende Partei)
Representatives (Vertreter)
Residual Information (Residualinformationen)
Subsidiaries (Tochtergesellschaften)
Target Company (Zielgesellschaft)
Term (Laufzeit)
Trade Secrets (Geschäftsgeheimnisse)
Transaction (Transaktion)
Virtual Data Room (Virtueller Datenraum)
Agreement
Authorized Recipients (Berechtigte Empfänger)
Business Day (Geschäftstag)
Confidential Information (Vertrauliche Informationen)
Controller (Verantwortlicher)
Data Protection Laws (Datenschutzgesetze)
Disclosing Party (Offenlegende Partei)
Effective Date (Datum des Inkrafttretens)
Group (Konzern)
Information Security Measures (Informationssicherheitsmaßnahmen)
Inside Information (Insiderinformation)
Material Adverse Effect
Notes (Aufzeichnungen)
Party/Parties (Partei/Parteien)
Permitted Purpose (Erlaubter Zweck)
Personal Data (Personenbezogene Daten)
Processor (Auftragsverarbeiter)
Professional Advisors (Professionelle Berater)
Project Name (Projektname)
Receiving Party (Empfangende Partei)
Representatives (Vertreter)
Residual Information (Residualinformationen)
Subsidiaries (Tochtergesellschaften)
Target Company (Zielgesellschaft)
Term (Laufzeit)
Trade Secrets (Geschäftsgeheimnisse)
Transaction (Transaktion)
Virtual Data Room (Virtueller Datenraum)
Clauses
Confidentiality Obligations
Information Use
Information Protection
Permitted Disclosures
Return or Destruction of Information
Data Protection
Non-Solicitation
Non-Circumvention
Insider Trading
Term and Survival
Contractual Penalties
Injunctive Relief
Information Security
Exceptions to Confidentiality
Authorized Recipients
Process and Notice Requirements
Governing Law
Jurisdiction
Assignment
Severability
Entire Agreement
Amendments
No Rights or Licenses
No Obligation to Proceed
Costs and Expenses
Notices
Third Party Rights
Force Majeure
Counterparts
Language
Information Use
Information Protection
Permitted Disclosures
Return or Destruction of Information
Data Protection
Non-Solicitation
Non-Circumvention
Insider Trading
Term and Survival
Contractual Penalties
Injunctive Relief
Information Security
Exceptions to Confidentiality
Authorized Recipients
Process and Notice Requirements
Governing Law
Jurisdiction
Assignment
Severability
Entire Agreement
Amendments
No Rights or Licenses
No Obligation to Proceed
Costs and Expenses
Notices
Third Party Rights
Force Majeure
Counterparts
Language
Relevant Industries
Manufacturing
Technology
Financial Services
Healthcare
Real Estate
Retail
Energy
Telecommunications
Automotive
Pharmaceuticals
Industrial
Consumer Goods
Media and Entertainment
Professional Services
Infrastructure
Agriculture
Transportation and Logistics
Relevant Teams
Legal
Mergers & Acquisitions
Corporate Development
Finance
Strategy
Information Security
Data Protection
Risk Management
Corporate Secretariat
Business Development
Executive Leadership
Investment Banking
Due Diligence
Relevant Roles
Chief Executive Officer
Chief Financial Officer
General Counsel
Head of Mergers & Acquisitions
Corporate Development Director
Investment Banking Director
Due Diligence Manager
Legal Counsel
Data Protection Officer
Chief Information Security Officer
Head of Strategy
Transaction Manager
Investment Director
Corporate Secretary
Business Development Manager
Integration Manager
Risk Manager
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