The Agreement And Plan Of Merger is a fundamental document used in German corporate transactions when two or more companies intend to combine their businesses through a merger (Verschmelzung). This document is essential for both private and public company mergers in Germany and must strictly comply with the requirements of the German Transformation Act (Umwandlungsgesetz), the Stock Corporation Act (Aktiengesetz), and other relevant corporate laws. It serves as the primary agreement governing the entire merger process, including detailed provisions on valuation, share exchange ratios, employee protection, works council rights, and regulatory compliance. The agreement is particularly important as German law imposes specific requirements regarding employee co-determination, corporate governance, and shareholder protection that must be carefully addressed in the merger documentation.
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1. Parties: Identification of the merging entities and their legal forms under German law
2. Background (Recitals): Context of the merger, including corporate history and transaction rationale
3. Definitions and Interpretation: Defined terms and interpretation rules, including German legal concepts
4. The Merger: Core merger provisions, including method of combination and surviving entity structure
5. Merger Consideration: Details of payment, share exchange ratio, or other consideration including any adjustments
6. Representations and Warranties: Statements of fact and assurances from both parties about their business and operations
7. Pre-Closing Covenants: Obligations of parties between signing and closing, including conduct of business
8. Closing Conditions: Requirements for completing the merger, including regulatory approvals
9. Employee Matters: Treatment of employees, works council rights, and co-determination obligations
10. Tax Matters: Tax treatment of the merger and related obligations
11. Termination Rights: Circumstances under which parties can terminate the agreement
12. Governing Law and Jurisdiction: Confirmation of German law application and jurisdiction
13. Miscellaneous: Standard provisions including notices, amendments, and severability
1. Public Announcement: Required for listed companies or significant transactions requiring public disclosure
2. Financing Provisions: Needed if the merger involves external financing arrangements
3. Intellectual Property Transfer: Required when significant IP assets are involved in the merger
4. Real Estate Provisions: Necessary when significant real estate assets are involved
5. Competition Compliance: Detailed antitrust provisions for transactions requiring merger control clearance
6. Environmental Matters: Required for industries with significant environmental impacts or liabilities
7. International Operations: Needed when dealing with cross-border aspects of the merger
8. Industry-Specific Regulations: Additional provisions for regulated industries (e.g., financial services, healthcare)
1. Schedule 1 - Merger Plan: Detailed merger plan as required by German Transformation Act (Verschmelzungsplan)
2. Schedule 2 - Corporate Resolutions: Shareholder and board resolutions approving the merger
3. Schedule 3 - Exchange Ratio Calculation: Detailed calculation of share exchange ratio and valuation methods
4. Schedule 4 - Employee Information: Details of affected employees and works council arrangements
5. Schedule 5 - Material Contracts: List and details of important contracts affected by the merger
6. Schedule 6 - Real Estate: List of real estate assets and related rights
7. Schedule 7 - Intellectual Property: Schedule of IP rights being transferred
8. Schedule 8 - Permits and Licenses: List of governmental permits and licenses
9. Schedule 9 - Disclosure Schedule: Exceptions and qualifications to representations and warranties
10. Schedule 10 - Closing Checklist: List of all required closing deliverables and actions
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