The Confidentiality Agreement Mergers And Acquisitions is a crucial document used in the early stages of M&A transactions in Hong Kong. It serves as the foundation for protecting sensitive business information before parties enter into detailed negotiations or due diligence. This agreement is essential when companies are exploring potential mergers, acquisitions, or strategic investments, as it enables the sharing of confidential information while maintaining legal protection. The document is drafted in compliance with Hong Kong law, including considerations for data privacy, securities regulations, and common law principles of confidentiality. It typically precedes other transaction documents and remains relevant throughout the M&A process, covering aspects such as financial data, trade secrets, customer information, and strategic plans. The agreement is particularly important in Hong Kong's dynamic business environment, where cross-border transactions and international business practices frequently intersect.
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1. Parties: Identification of the disclosing party, receiving party, and their registered addresses
2. Background: Context of the potential transaction and purpose of sharing confidential information
3. Definitions: Key terms including 'Confidential Information', 'Representatives', 'Permitted Purpose', 'Transaction'
4. Scope of Confidential Information: Detailed description of what constitutes confidential information in the M&A context
5. Obligations of Confidentiality: Core confidentiality obligations, including use restrictions and standard of care
6. Permitted Disclosures: Circumstances under which confidential information can be shared with representatives and advisors
7. Security Measures: Required procedures for protecting confidential information
8. Return or Destruction of Confidential Information: Obligations regarding confidential information upon termination or request
9. Duration and Survival: Term of the agreement and survival of obligations
10. Non-Circumvention: Restrictions on using information to circumvent the disclosing party in the transaction
11. Remedies: Available remedies including injunctive relief and damages
12. General Provisions: Standard clauses including governing law, jurisdiction, entire agreement, and amendments
1. Non-Solicitation: Restrictions on soliciting employees or customers, included when human capital or customer relationships are crucial
2. Standstill Provisions: Restrictions on acquiring securities or assets, included when the receiving party could be a competitor
3. Privacy and Personal Data Protection: Specific provisions for handling personal data, required if personal data will be shared
4. Anti-Trust Compliance: Provisions ensuring compliance with competition laws, needed when parties are competitors
5. Clean Team Arrangements: Special provisions for handling commercially sensitive information, used when parties are competitors
6. Securities Laws Compliance: Specific provisions regarding insider trading, needed for listed companies
7. Reverse Engineering Prohibition: Prohibitions on reverse engineering products or technology, needed for technical due diligence
1. Schedule 1 - Authorised Representatives: List of individuals authorized to receive and handle confidential information
2. Schedule 2 - Security Protocols: Detailed security measures and procedures for handling confidential information
3. Schedule 3 - Excluded Information: List of information specifically excluded from confidentiality obligations
4. Appendix A - Form of Confidentiality Undertaking: Template undertaking for representatives and advisors to sign
5. Appendix B - Data Room Rules: Rules and procedures for accessing and using the data room
6. Appendix C - Clean Team Protocol: Procedures for clean team members handling commercially sensitive information
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