M&A transactions in a time of crisis

M&A transactions in a time of crisis

In Luxembourg, the rules on electronic signature and electronic agreements stem from the eIDAS Regulation 910/2014 (the “eIDAS Regulation”), as well as from the civil code and the e-commerce law of 14 August 2000, as amended (1). There are three forms of electronic signature, and they are not all presumed trustworthy to the same degree.

  • A standard electronic signature (“SES”) is defined as “data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign”: e.g. an e-mail signature, a scan of a handwritten signature, the tick used to accept a website’s terms and conditions when logged in to a user account, the fingerprint used to approve an online transaction, etc.
  • An advanced electronic signature (“AES”) is an SES with additional guarantees that ensure it is uniquely linked to the signatory, it can be used to identify the signatory and it is linked to the data in such a way that any subsequent change of the data can be detected.
  • A qualified electronic signature (“QES”) is an AES created by a QES creation device and based on a qualified certificate for electronic signatures. This certificate is issued by a qualified trust service provider (“QTSP”), and it attests to the authenticity of the electronic signature and the identity of the signatory: e.g. a smart card, USB token or mobile app that creates a one-time passcode complying with the requirements listed in Annex II to the eIDAS Regulation.

The requirement in civil law matters for acts containing agreements based on reciprocal obligations to be signed by the parties in their private capacity in as many originals as there are parties having a distinct interest does not apply to acts signed electronically (Article 1325 of the civil code).

A QES has the equivalent legal effect of a wet-ink signature and will be recognised as a QES in all EU Member States. In the current context, electronic signatures are thus an alternative to wet-ink signatures for signing unilateral acts or agreements, provided in the case of agreements that it is practically (and technically) feasible for all signatories to the agreements to sign with a QES. However, there is still the option for multiple counterparties to sign by wet-ink and exchange a PDF copy thereof initially, and then to exchange the originals afterwards.   

The QTSPs accredited in Luxembourg can be found on the website of the Institut Luxembourgeois de la Normalisation, de l'Accréditation, de la Sécurité et qualité des produits et services (“ILNAS”) (2). According to the internal market principle under the eIDAS Regulation, the parties can also chose a QTSP accredited in another EU Member State (3) because a qualified trust service based on a qualified certificate issued in one Member State should be recognised as a qualified trust service in all other Member States.

Nevertheless, in view of the technical complexity and expense associated with QES, companies often decide to use SES or AES instead. Note that such signatures do not enjoy the above-mentioned presumption of equivalence. However, the eIDAS Regulation does provide a principle of non-discrimination in that it stipulates that “an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures”.

In case of dispute, the validity of a QES is thus presumed, and the reverse burden of proof principle is applied. It will be up to the person who questions the signature’s trustworthiness to prove that it is not valid. Where an SES or AES is challenged, the burden of proof of the electronic signature’s validity falls to the signatory. Note that among merchants (exclusively in commercial matters where there is no implication of non-merchant parties) any form of evidence may be used (as per Article 109 of the commercial code). In any case, SES or AES are only seen as prima facie written proof (commencement de preuve par écrit), meaning they will need to be supplemented by other means of evidence if their validity is challenged.

Practically speaking, the choice of e-signature ought to depend on the type of document, the importance of the transaction and the degree of trust a company has in its counterparties.

As an alternative to wet-ink signature, it is therefore recommended to use QES exclusively whenever the process for deal or fund closings must involve electronic signatures.

Your contact for more details: Astrid Wagner (astrid.wagner@arendt.com) and Faustine Cachera (faustine.cachera@arendt.com)

Useful link(s) :

  1. A bill amending the e-commerce law of 14 August 2000 is currently under discussion (Bill n°7427) - French only.
  2. ILNAS – Liste des prestataires de services de confiance
  3. European Trusted List Browser

We expect to see reduced deal volumes, and for transactions to take longer than usual to close. The uncertainty and high volatility in the markets will mean increased difficulty getting precise valuations, as well as longer negotiations with counterparties (and, where applicable, R&W insurers). However, opportunistic buying (including in the private equity industry, which is sitting on record-breaking levels of dry powder) and possible divestitures of portfolio companies by businesses in need of cash should ultimately contribute to an M&A market recovery.

For deals signed before December 2019, parties will sometimes have the option of exercising exit rights or securing contract adjustments through recourse to acts of God or similar concepts (force majeure, imprévision/significant imbalance, MAC, hardship, etc.).

With respect to pricing and risk allocation, we will likely see an initial wave in which locked box deals (accounting for almost two thirds of deals in 2019) give way to more traditional price adjustment clauses, as the volatile and unpredictable environment will make buyers reluctant to be locked in. Moreover, we expect to see increased use of earn-outs as a means of linking deals to metrics that outlast the COVID situation, and increased deal settlement by payment in kind, with buyers issuing securities to sellers as a means of aligning both parties’ interests in this volatile environment.

Buyers are also likely to need more time for the due diligence phase of their activities. It will be particularly important to screen contracts for acts of God clauses. Moreover, employment law diligence will become more complex, as employees in many sectors are being paid through government programmes.  Representation and warranties, as well as covenants, will be impacted by COVID-specific wording or carve-outs (in particular, covenants dealing with target company operations in the interim period between signing and closing). Finally, COVID-19 is having a significant impact on deal mechanics, causing a freeze on in-person meetings which has in turn created a need for remote signing and closing and raised some new questions, especially with respect to the adequacy of electronic signatures.

Your contact for more details: Bob Calmes (bob.calmes@arendt.com)