The Acquisition Confidentiality Agreement is a crucial document in the early stages of any potential merger or acquisition transaction in Hong Kong. It is typically executed before detailed discussions or due diligence commence, when a potential acquirer requires access to sensitive business information of the target company. The agreement ensures compliance with Hong Kong's regulatory framework, including requirements under the Securities and Futures Ordinance for listed companies and the Personal Data (Privacy) Ordinance for handling personal information. This document is essential for protecting proprietary information, trade secrets, and sensitive business data while allowing necessary information sharing for transaction evaluation. It typically includes provisions for data room access, digital information sharing, and specific requirements tailored to Hong Kong's business and legal environment.
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1. Parties: Identification of the disclosing party (typically the target company) and receiving party (potential acquirer), including full legal names and registered addresses
2. Background: Context of the potential acquisition and purpose of sharing confidential information
3. Definitions: Key terms including 'Confidential Information', 'Representatives', 'Permitted Purpose', and 'Affiliate'
4. Scope of Confidential Information: Detailed description of what constitutes confidential information in the context of the potential acquisition
5. Confidentiality Obligations: Core obligations regarding the use, protection, and non-disclosure of confidential information
6. Permitted Disclosures: Circumstances under which confidential information may be shared with representatives and advisors
7. Security Measures: Required procedures and safeguards for protecting confidential information
8. Return or Destruction of Confidential Information: Obligations regarding the handling of confidential information if the acquisition does not proceed
9. Duration and Survival: Term of the agreement and which provisions survive termination
10. Remedies: Available remedies in case of breach, including injunctive relief
11. General Provisions: Standard clauses including governing law, jurisdiction, entire agreement, and amendments
1. Securities Laws Compliance: Required when either party is a listed company, addressing insider trading and market disclosure obligations
2. Personal Data Protection: Detailed provisions for compliance with the Personal Data (Privacy) Ordinance when personal data is involved
3. Standstill Provisions: Restrictions on acquiring target company shares or approaching other stakeholders, typically used for listed companies
4. Non-Solicitation: Restrictions on soliciting employees, customers, or suppliers, included when there are specific concerns about poaching
5. Reverse Engineering Prohibition: Specific restrictions on reverse engineering products or technology, used when technical information is shared
6. Competition Law Compliance: Required when the parties are competitors or when merger control issues may arise
7. Social Media and Public Communications: Guidelines for public communications and social media usage, particularly relevant for high-profile transactions
1. Schedule 1 - Specified Representatives: List of authorized representatives who may access the confidential information
2. Schedule 2 - Security Protocols: Detailed security procedures and requirements for handling confidential information
3. Schedule 3 - Excluded Information: List of specific information explicitly excluded from confidentiality obligations
4. Appendix A - Form of Confidentiality Undertaking: Template undertaking to be signed by representatives accessing confidential information
5. Appendix B - Data Room Rules: Rules and procedures for accessing and using the data room, if applicable
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