The Reverse Triangular Merger Agreement is a sophisticated transaction document used in German corporate acquisitions where the acquiring company wishes to maintain the target company's separate legal existence while gaining full control. This structure is particularly useful when the target company has valuable contracts, licenses, or permits that might be disturbed by a direct merger. The agreement must comply with the German Transformation Act (Umwandlungsgesetz) and includes detailed provisions for corporate approvals, share exchanges, employee protection, and regulatory compliance. It is commonly used in situations where preserving the target's corporate identity is crucial, while ensuring the acquiring company achieves full ownership and control. The document includes comprehensive representations and warranties, conditions precedent, and detailed mechanisms for implementation under German law.
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1. Parties: Identification of the principal parties: Acquiring Company (Parent), Merger Subsidiary, and Target Company
2. Background: Recitals explaining the business context and basic structure of the reverse triangular merger
3. Definitions: Comprehensive definitions of terms used throughout the agreement
4. The Merger: Detailed description of the merger structure, including survival of Target Company and conversion of Merger Subsidiary
5. Effect on Capital Stock: Treatment of Target Company shares, conversion ratios, and payment mechanisms
6. Exchange of Certificates: Procedures for exchange of Target Company shares for acquisition consideration
7. Representations and Warranties of Target Company: Target's warranties regarding corporate status, authority, financial statements, assets, liabilities, etc.
8. Representations and Warranties of Parent and Merger Subsidiary: Parent and Merger Sub's warranties regarding corporate status, authority, and transaction capability
9. Conduct of Business Prior to Closing: Operating covenants governing Target's business between signing and closing
10. Additional Agreements: Covenants regarding approvals, notifications, and other actions required before closing
11. Conditions to Closing: Conditions precedent that must be satisfied before closing obligations arise
12. Termination: Circumstances under which parties may terminate the agreement
13. Employee Matters: Treatment of employees, benefits, and works council requirements under German law
14. Tax Matters: Tax treatment of the merger and related covenants
15. General Provisions: Standard provisions including governing law, notices, amendments, etc.
1. Financing Cooperation: Include when Parent requires Target's cooperation in obtaining transaction financing
2. Regulatory Compliance: Include detailed section when transaction requires specific regulatory approvals
3. Real Property Matters: Include when Target has significant real estate holdings requiring special treatment
4. Intellectual Property Matters: Include detailed section when IP assets are a key transaction driver
5. Environmental Matters: Include when Target has significant environmental exposures or compliance requirements
6. Data Protection: Include detailed section when significant personal data processing is involved
7. Competition Compliance: Include when detailed antitrust compliance procedures are necessary
8. Post-Closing Integration: Include when specific post-closing integration steps need to be agreed upon
1. Disclosure Schedule: Target's exceptions to representations and warranties
2. Required Consents: List of third-party and governmental consents required for closing
3. Material Contracts: List of Target's material contracts and treatment post-closing
4. Intellectual Property: Schedule of Target's IP assets and registrations
5. Real Property: List of owned and leased real property
6. Employee Matters: Details of employment agreements, benefit plans, and works council arrangements
7. Merger Steps: Detailed technical steps of merger implementation under German law
8. Calculation of Exchange Ratio: Detailed methodology for calculating share exchange ratios
9. Form of Shareholder Resolution: Form of required shareholder resolutions under German law
10. Form of Commercial Register Applications: Templates for required German commercial register filings
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