Enhanced duty of disclosure and care in the sale of a company
The current BGH ruling of 15.09.2023 (the German Federal Court of Justice - V ZR 77/22) requires sellers of companies to provide proper information. This increased duty of disclosure applies in particular to the accurate placement of information in a data room. The relevance of a well-structured data room becomes clear, as the disclosure of information in the data room does not automatically exclude the seller's liability for the breach of pre-contractual information obligations. In order to protect buyers, the BGH made this clear once again with the above-mentioned ruling.
Benefits of thorough sales preparation
Professional M&A processes deal with the preparation of a data room at an early stage when drawing up process documents for the target company. The transparency created on the M&A advisory side on the basis of available company information also facilitates strategy development, the identification of potential problem areas and the legal protection of the client. Thorough sales preparation also ensures that the required offer deadlines are met, as there are fewer open points to be checked by prospective buyers.
Nowadays, extensive functions are available for organizing and managing a virtual data room. These help to bundle confidential information in one place, in contrast to Dropbox, email accounts or other document exchange services. Each document can be individually declared as viewable, printable, storable or even editable for the respective group of interested parties. The activation for bulk downloads or for printing all documents in the data room is hardly used in practice anymore, as it contradicts the basic principle of the data room. In the age of data protection, the correct redaction of personal or highly sensitive data is possible with just a few clicks in virtual data rooms.
Communication in the M&A process
So-called due diligence process instructions, which are handed out to data room users before they are invited to the data room, provide a better understanding of the planned due diligence process and how to deal with Q&A sessions. In modern data rooms, questions from buyers can be attached directly to individual documents. To answer the questions from the seller side, you can create different teams, such as Finance, Tax, Legal or Corporate, to which these questions are assigned. Actively planned and well-managed communication is an important part of any successful M&A transaction.
When posting new or additional documents during the due diligence phase, it is essential to ensure that structures are organized and comprehensible so that data room users can find the relevant documents in the designated categories and review them with sufficient time available. To avoid legal disputes following the sale of a company, it is recommended that key information and documents be disclosed. This requires an active role of the seller or advisor in deciding between the obligation to disclose and the need to protect company information.
Data rooms create legal certainty
After completion of the due diligence, the seller and the selected prospective buyer jointly agree on a final status of the data room, at which point it is frozen and attached to the company purchase agreement in the form of a USB memory stick. All buyer and seller actions in a data room are thus documented and ultimately serve to release the seller from liability.
The buyer's findings, as well as checks on the information made available, have a direct influence on a company purchase agreement and its appendices. A professionally set up data room allows you to negotiate the content of key liability regulations, guarantee promises or indemnification obligations more quickly and precisely.
Virtual data rooms have become an indispensable tool in the context of corporate transactions. Active M&A advisory firms can draw on a wealth of knowledge, experience and proven methods in dealing with data rooms, which, in combination with the individual mandate design, avoid unnecessary imbalances along the process in order to be able to carry out transactions together with the client in a legally secure and successful manner.
Explore the essentials of successful M&A transactions with our Best Practice Guide, co-authored by Drooms and Promecon:
https://drooms.com/best-practice-guide-for-ma-transactions/