An Acquisition Confidentiality Agreement is a crucial document required at the early stages of any potential acquisition or merger transaction in Germany. It serves as the foundation for protecting confidential information exchanged during preliminary discussions and due diligence processes. The agreement must comply with German legal requirements, including the German Trade Secrets Act (GeschGehG), the German Civil Code (BGB), and the GDPR. It typically covers detailed provisions about what constitutes confidential information, permitted uses, disclosure to representatives, data protection measures, and consequences of breach. This document is essential before any substantial business information is shared between parties and usually precedes other transaction documents such as term sheets or purchase agreements. Special attention is given to German-specific requirements regarding data protection, employee information, and trade secrets protection.
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1. Parties: Identification of the disclosing party, receiving party, and their legal representatives
2. Background: Context of the potential transaction and purpose of the agreement
3. Definitions: Definitions of key terms including 'Confidential Information', 'Representatives', 'Permitted Purpose', and 'Affiliate'
4. Confidentiality Obligations: Core obligations regarding non-disclosure, protection, and handling of confidential information
5. Permitted Use and Disclosure: Scope of permitted use of confidential information and conditions for sharing with representatives
6. Data Protection and GDPR Compliance: Obligations regarding personal data handling under GDPR and German data protection laws
7. Return or Destruction of Confidential Information: Requirements for handling confidential information upon termination or request
8. Duration and Survival: Term of the agreement and surviving obligations
9. Breach and Remedies: Consequences of breach, including injunctive relief and liquidated damages
10. General Provisions: Standard clauses including governing law, jurisdiction, entire agreement, and amendments
1. Securities Laws Compliance: Required if target is publicly traded, addressing insider trading regulations under WpHG
2. Standstill Provisions: Optional restrictions on acquiring target company shares or assets during negotiations
3. Non-Solicitation: Optional restrictions on soliciting employees or customers
4. Exclusivity: Optional period of exclusive negotiations
5. Anti-Trust Compliance: Required if deal size meets certain thresholds or involves competitors
6. Press Releases and Communications: Optional provisions governing public communications about the potential transaction
7. Cost Allocation: Optional provisions on bearing costs related to confidentiality measures
1. Schedule 1 - Confidential Information: Detailed categorization of information deemed confidential
2. Schedule 2 - Authorized Representatives: List of authorized representatives who may access confidential information
3. Schedule 3 - Security Measures: Required technical and organizational measures for protecting confidential information
4. Schedule 4 - Data Processing Terms: Detailed GDPR-compliant data processing terms if personal data is involved
5. Appendix A - Form of Representative Undertaking: Template confidentiality undertaking for representatives
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