M&A Support
Prior to the Due Diligence
InTeLex Partners also assists colleagues in M&A transactions, especially when it comes to the specific aspects of IT and data protection law. A data protection-compliant structuring of data rooms is already a critical factor in order to avoid potentially notifiable data protection violations at the very beginning of an M&A transaction. This can be a challenge, particularly in international transactions. Additionally, the scope of the IT and data protection law-related due diligence should be clearly defined with the client in advance, and respective request lists be communicated to the target in a precise and comprehensible manner to ensure an efficient due diligence.
The Due Dilligence
During the due diligence itself, the legal topics to be assessed from an IT and data protection law perspective are manifold and can differ depending on the business activities of the target company. As regards targets in the tech field, the existence of all relevant copyrights of the IT assets will play a crucial role. Especially for young companies, missing usage rights or the use of open-source software with a so-called "copyleft effect" can be a dealbreaker. Furthermore, it is necessary to re-evaluate the assessment of existing usage and exploitation rights due to the continuously increasing use of artificial intelligence within the software development process. Finally, data protection measures taken by the target need to be included in a comprehensive legal assessment as well as the fact whether there has been any communication between the target and the competent data protection authorities.
After the Due Diligence
It goes without saying that findings identified in the due diligence report are to be secured through respective clauses in the purchase agreement (SPA, APA respectively). Not less important is the drafting of additional necessary IT and data protection guarantees regarding the target (especially in technology-driven transactions). Furthermore, carve-out scenarios often require additional IT service contracts between the companies involved in the transaction for a certain transition period (so-called Transitional Services Agreements) – possibly also with a migration to be conducted in parallel.
Do you need IT and/or data protection law-related support as part of your M&A transaction? With our longstanding experience in leading international major law firms and our participation in numerous M&A transactions, we are the perfect partner for you. Contact us!
