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Getting The Deal Through

Technology M&A

Published: November 2019


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  • 1.

    Key laws and regulations
    What are the key laws and regulations implicated in technology M&A transactions that may not be relevant to other types of M&A transactions? Are there particular government approvals required, and how are those addressed in the definitive documentation?

  • 2.

    Government rights
    Are there government march-in or step-in rights with respect to certain categories of technologies?

  • 3.

    Legal title
    How is legal title to each type of technology and intellectual property asset conveyed in your jurisdiction? What types of formalities are required to effect transfer?

  • 4.

    Typical areas
    What are the typical areas of due diligence undertaken in your jurisdiction with respect to technology and intellectual property assets in technology M&A transactions? How is due diligence different for mergers or share acquisitions as compared to carveouts or asset purchases?

  • 5.

    Customary searches
    What types of public searches are customarily performed when conducting technology M&A due diligence? What other types of publicly available information can be collected or reviewed in the conduct of technology M&A due diligence?

  • 6.

    Registrable intellectual property
    What types of intellectual property are registrable, what types of intellectual property are not, and what due diligence is typically undertaken with respect to each?

  • 7.

    Can liens or security interests be granted on intellectual property or technology assets, and if so, how do acquirers conduct due diligence on them?

  • 8.

    Employees and contractors
    What due diligence is typically undertaken with respect to employee-created and contractor-created intellectual property and technology?

  • 9.

    Transferring licensed intellectual property
    Are there any requirements to enable the transfer or assignment of licensed intellectual property and technology? Are exclusive and non-exclusive licences treated differently?

  • 10.

    Software due diligence
    What types of software due diligence is typically undertaken in your jurisdiction? Do targets customarily provide code scans for third-party or open source code?

  • 11.

    Special or emerging technologies
    What are the additional areas of due diligence undertaken or unique legal considerations in your jurisdiction with respect to special or emerging technologies?

  • 12.

    Representations and warranties
    In technology M&A transactions, is it customary to include representations and warranties for intellectual property, technology, cybersecurity or data privacy?

  • 13.

    Customary ancillary agreements
    What types of ancillary agreements are customary in a carveout or asset sale?

  • 14.

    Conditions and covenants
    What kinds of intellectual property or tech-related pre- or post-closing conditions or covenants do acquirers typically require?

  • 15.

    Survival period
    Are intellectual property representations and warranties typically subject to longer survival periods than other representations and warranties?

  • 16.

    Liabilities for breach
    Are liabilities for breach of intellectual property representations and warranties typically subject to a cap that is higher than the liability cap for breach of other representations and warranties?

  • 17.

    Limitations on liabilities for breach
    Are liabilities for breach of intellectual property representations subject to, or carved out from, de minimis thresholds, baskets, or deductibles or other limitations on recovery?

  • 18.

    Does the definitive agreement customarily include specific indemnities related to intellectual property, data security or privacy matters?

  • 19.

    Walk rights
    As a closing condition, are intellectual property representations and warranties required to be true in all respects, in all material respects, or except as would not cause a material adverse effect?

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White & Case is an international law firm that serves companies, governments and financial institutions. We have approximately 2,100 lawyers, including US–, UK– and local–law qualified lawyers, providing legal services in the following areas: Antitrust/Competition, Asset Finance, Banking, Capital Markets, Commercial Litigation, Construction, Data, Privacy & Cybersecurity, Employment, Compensation & Benefits, Environment & Climate Change, Financial Restructuring and Insolvency, Intellectual Property, International Arbitration, International Trade, Islamic Finance, Mergers & Acquisitions, National Security, Project Finance, Regulatory & Compliance, Sourcing & Technology Transactions, Tax and White Collar/Investigations.

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