Nachfolgend ein „roter Faden“ für eine dem Austausch von Geschäftsinformationen im Falle eines Firmenkaufes vorzuschaltende Geheimhaltungsvereinbarung nach US-amerikanischem (bzw. beinahe schon „globalem“) Standard. Hinweis: Vertragsstrafen sind nach US-Recht unzulässig. Wenn es Ihnen jedoch gelingt, deutsches Recht und Gerichtsstand in Deutschland zu vereinbaren, dann sollten Sie versuchen – so denn Sie derjenige sind, der geheimhaltungswürdige Informationen herausgibt – eine Vertragsstrafe zu vereinbaren. Ein harter Kampf, wenn Ihr Vertragspartner ein US-Unternehmen ist. Im übigen gilt: Jeder Fall ist anders gelagert, individuelle Anpassungen des Dokuments sind notwendig.
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CONFIDENTIALITY AGREEMENT
In connection with your possible interest in an acquisition (the “Transaction”) involving our [●] (the “Business”), you have requested that as a representative of Seller we furnish you or your representatives with certain information relating to the Business or the Transaction. All such information (whether written or oral) furnished (whether before or after the date hereof) by us, by your company, or by your company’s directors, officers, employees, affiliates, representatives (including, without limitation, your company’s financial advisors, attorneys and accountants) or agents (collectively “your company’s Representatives”) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents or your potential sources of financing for the Transaction (collectively “your Representatives”) and all analyses, compilations, forecasts, studies or other documents prepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any such information is hereinafter referred to as the “Information”. The term Information will not, however, include information which (i) is or becomes publicly available to you on a nonconfidential basis from a source (other than us, your company or your company’s Representatives) which, to the best of your knowledge, is not prohibited from disclosing such information to you by a legal, contractual or fiduciary obligation to your company.
Accordingly, you hereby agree that:
1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, and only after compliance with paragraph 3 below) without your company’s prior written consent, disclose any Information, in whole or in part, in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided, however, that you may reveal the information or portions thereof to only your Representatives (a) who need to know the Information for the purpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the Information and who agree to act in accordance with the terms of this letter agreement. You will cause your Representatives to observe the terms of this letter agreement and you agree, at your sole expense, to take all reasonable measures (including, without limitation, court proceedings) to restrain your Representatives from prohibited or unauthorized disclosure or use of the Information. You will be responsible for any breach of this letter agreement by any of your Representatives.
2. You and your Representatives will not (except as required by applicable law and only after compliance with paragraph 3 below), without your company’s prior written consent, disclose to any person or entity the fact that the Information exists or has been made available to you and your Representatives, the fact that you or we are considering the Transaction or any other transaction involving the Business, or any of such Transaction’s or transaction’s terms, conditions or other facts (including such Transaction’s or transaction’s status) or that discussions or negotiations are taking or have taken place concerning the Transaction or any other transaction involving the Business.
3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law to disclose any of the Information, you will notify your company promptly of such request or requirement so that your company may seek a protective order or other appropriate remedy (and if your company seeks such an order or remedy, you will provide such cooperation as your company shall reasonably request), or, in your company’s sole discretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy is obtained, or that your company does not waive compliance with the terms of this letter agreement, and you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the case may be, will furnish only that portion of the Information which you are advised by counsel is legally required to be disclosed and you will give your company written notice of the Information to be disclosed as far in advance as practicable and exercise your best efforts to preserve the confidentiality of the Information, including without limitation, by cooperating with your company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information.
4. If you determine not to proceed with the Transaction, you will promptly inform us of that decision and, in that case, and at any time upon your company’s request, or upon the request of any of your company’s representatives, you will either (i) promptly destroy all of the written information and certify as to the destruction of all of the written Information (including all copies thereof and any notes, analyses, compilations, summaries, studies, interpretations or other documents prepared by you or your Representatives which contain, reflect or are based in whole or in part of any of the Information) that was delivered to you or your Representatives by your company or on your company’s behalf and confirm such destruction to your company in writing, or (ii) promptly deliver to the Business, at your own expense, all of the written information and copies of the written Information (including any notes, analyses, compilations, summaries, studies, interpretations or other documents prepared by your or your Representatives which contain, reflect or are based in whole or in part on any of the Information) that were delivered to you or your Representatives by your company or on your company’s behalf. Notwithstanding the destruction or return of the Information, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations under this letter agreement and all Information will continue to be subject to the terms of this letter agreement.
5. You acknowledge that neither your company nor your company’s Representatives, nor any of your company’s or its respective officers, directors, employees or agents makes any express or implied representation or warranty as to the accuracy or completeness of the Information, and you agree that no such person will have any liability relating to, or resulting from the use of, the Information. You further agree that you are not entitled to rely on the accuracy or completeness of the Information, and that you will be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and restrictions as may be contained therein.
6. You agree that, for a period of two years from the date of this letter agreement, neither you nor your subsidiaries or affiliates will directly or indirectly solicit for employment or hire any employee of the Business, your company or any of your company’s subsidiaries with whom you have had contact or who became known to you in connection with your consideration of the Transaction or any transaction involving the business; provided, however, that the foregoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct solicitation by or encouragement from you.
7. You agree that neither you nor your Representatives, subsidiaries or affiliates shall make any contact, whether direct or indirect, with your company’s or your company’s subsidiaries’ or affiliates’ customers, suppliers or business partners that became known to you in connection with your consideration of the Transaction or any transaction involving the Business, nor shall any of you cause any other person or entity to make such contact on your behalf, without prior written consent.
8. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours, or management meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to us and not to the Business, except as your company may instruct you otherwise. You acknowledge and agree that (a) your company and your company’s Representatives are free to conduct the process leading up to a possible Transaction as your company and your company’s Representatives, in their sole discretion, determine (including, without limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or definitive agreement to reflect a Transaction without prior notice to you or any other person), (b) your company reserves the right, in its sole discretion, to change the procedures relating to its consideration of the transaction at any time without prior notice to you or any other person, to reject any and all proposals made by you or any of your Representatives with regard to the Transaction, and to terminate discussions and negotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed, neither your company nor any of your company’s Representatives will have any liability to you with respect to the Transaction, whether by virtue of this letter agreement, any other written or oral expression with respect to the Transaction otherwise.
9. You acknowledge that remedies at law, including money damages, would be inadequate to protect your company against any actual or threatened breach of this letter agreement by you or by your Representatives, and you agree to the granting of equitable relief, including injunctive relief and specific performance in your company’s favor, without proof of actual damages. You agree that such remedies shall not be the exclusive remedies for any actual or threatened breach of this letter agreement by you or by your Representatives but shall be in addition to all other remedies available at law or equity to your company. In the event of litigation relating to this letter agreement, if a court of complaint jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by you or by your Representatives, then you will reimburse the Business for its costs and expenses (including, without limitation, reasonable legal fees and expenses) incurred in connection with all such litigation.
10. You agree that no failure or delay by us, or by your company or any of your company’s Representatives in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof;
12. Any notice required by this letter agreement shall be given in hand, sent by first class or overnight mail or forwarded electronically to the applicable address set forth below. Each party may from time to time specify as its address for purposes of this agreement and any other address upon giving ten (10) days written notice thereof to the other party.
13. This letter agreement shall be binding upon and inure to the benefit of your company, the signatories hereto, and each of their respective successors and assigns. By signing this letter agreement, you agree that your company shall have the benefit of all of the rights set forth in this letter agreement, including, but not limited to, the right to directly enforce all of the restrictions in this letter agreement against you and your Representatives.
14. This letter agreement contains the entire agreement between you, your company and us concerning the confidentiality of the Information and no provision of this letter agreement – including this paragraph 14. – may be waived, supplemented, amended or modified, in whole or in part, nor any consent given unless approved in writing by a duly authorized representative of your company, which writing specifically refers to this letter agreement and the provision as supplemented, amended or modified or for which such waiver or consent is given. In the event that any provision of this letter is deemed invalid, illegal or unenforceable, the reminder of this letter agreement shall not be in any way affected or impaired thereby and shall remain binding to the fullest extent possible, taking into consideration the purposes and spirit of this letter agreement.
Please confirm your agreement with the foregoing by signing and returning to the undersigned a duplicate copy of this letter.
Very truly yours, [●]
Accepted and agreed as of the date [●]
[●]
