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Portrait ofBob Barnhoorn

Bob Barnhoorn

Advocaat

Contact
CMS Derks Star Busmann
Atrium - Parnassusweg 737
1077 DG Amsterdam
PO Box 94700
1090 GS Amsterdam
Netherlands
Languages Dutch, English

Bob Barnhoorn is a junior associate in our Corporate/M&A Practice Area Group. He specialises in corporate law. Bob advises mid- to large size companies on national and international mergers, acquisitions and other matters.

Bob Barnhoorn has been with CMS since 2020.

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Education

  • International Business Law, Leiden University
  • Corporate law, Leiden University
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Expertise

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25/03/2024
CMS advises Oliver Wyman on acquisition Innopay
CMS advised Oliver Wyman on its acquisition of all shares in the capital of Innopay. Innopay is an international consultancy firm specialised in digital transactions. They help companies anywhere in the...
14/11/2023
CMS advises Naïf on investment from Future Business Partnership
CMS has advised Naïf Good Care (B Corp) on raising EUR 23m from European impact investor Future Business Partnership (FBP). This is a significant milestone in Naïf’s journey towards transforming the...
10/11/2023
Navigating the AI Act in Tech M&A
The use of artificial intelligence (AI) in various sectors is transforming the landscape of mergers and acquisitions (M&A), requiring companies and their M&A advisors to keep up with the rapidly changing technological and regulatory environment. On 21 April 2021, the European Commission proposed the 'Regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence' (AI Act), which aims to establish a regulatory framework, inter alia for the providers (including product manufacturers), users, distributors and importers of AI systems. The AI Act is expected to be formally adopted in the first half of 2024. In our last contribution, we discussed the concept of 'Tech M&A'. In this article, we will take a look at how the AI Act will affect Tech M&A. AI Act The AI Act introduces a new legal framework that classifies AI systems according to the level of risk they pose in respect of the rights and freedom of individuals. Four levels of risks are dis­tin­guished:Un­ac­cept­able risk: AI systems which are classified in the first category are prohibited by the AI Act. High risk: With respect to high-risk AI systems, the AI Act imposes requirements and obligations regarding, inter alia, (i) technical documentation; (ii) risk management systems; (iii) conformity assessment procedures; (iv) log keeping; and (v) quality management systems. Limited risk: Title IV of the AI Act concerns certain AI systems to take account of the specific risks of manipulation they pose. The transparency obligations set out therein apply for systems that (i) interact with humans, (ii) are used to detect emotions or determine association with (social) categories based on biometric data, or (iii) generate or manipulate content ('deep fakes'). Low or minimal risk: Lasty, the AI Act creates a framework for the creation of codes of conduct, which aim to encourage providers of non-high-risk AI systems to voluntarily apply and implement the mandatory requirements for high-risk AI systems. The task of monitoring and enforcing the provisions of the AI Act is assigned to a national supervisory authority in each Member State. In the Netherlands, the competent authority is the Personal Data Authority (Autoriteit Per­soonsgegevens). Failure to comply with the obligations and requirements laid down in the AI Act may result in a penalty. Further rules on penalties shall be determined by each European member state individually, taking into account the maximum penalties provided for specific infringements of the AI Act. For example, infringements of Article 5 (regarding prohibited AI practices) shall be subject to administrative fines of up to EUR 30,000,000 or up to 6 % of its total worldwide annual turnover for the preceding financial year. Due diligence As the AI Act will come into force in the near future, assessing the risk level(s) of the relevant AI system(s) and their compliance with the AI Act is already – and will increasingly become – an important part of the due diligence in Tech M&A transactions. In addition, depending on the role of the target company (e.g. as a provider or user of AI), it will be crucial in such due diligence investigations to assess information on the ownership of AI-generated intellectual property rights, compliance with data protection regulations and liability for AI decision-making. Transaction documentation The AI-related risks identified in the due diligence phase should be addressed in the share purchase agreement through appropriate warranties and indemnities, signing or closing conditions. These due diligence findings may also affect the valuation, negotiation and structuring of the M&A transaction. Representations and warranties: the seller should provide more specific and comprehensive representations and warranties regarding compliance with the AI Act. Signing or closing conditions: the parties may need to include more tailored conditions relating to the target company's AI systems, such as obtaining or maintaining any necessary authorizations, registrations, certifications or notifications under the AI Act in order to comply with any ongoing or reporting requirements. Furthermore – in the event of W&I-insured transactions – the parties and their insurers should adapt the scope of their due diligence, disclosure, negotiations and underwriting processes to account for AI risks and to ensure that the W&I insurance provides adequate coverage for these risks. The introduction of the AI Act and the expected development of associated national legislation may result in uncertainty regarding the (legal) risks involved. Therefore, we expect W&I insurances will be in demand by parties in Tech M&A transactions Conclusion In the dynamic landscape of Tech M&A, the development and application of AI and the introduction of the proposed AI Act are transforming M&A processes. AI-related transactions require a tailored approach at each stage of the transaction, focusing on identifying specific AI risks and incorporating such risks into the transaction documentation. The AI Act, once enacted, will impose various requirements, obligations and other aspects to be considered by all stakeholders to an M&A process. Time will tell how the Tech M&A market will respond to the development of further legislation to regulate AI systems. We consider the adoption of the AI Act a confirmation of the significant potential of AI companies and foresee a bright future for Tech M&A.
20/09/2023
CMS advises Bynder on the acquisition of EMRAYS
CMS has advised Bynder, the market-leading digital asset management (DAM) platform on its acquisition of EMRAYS, a specialist provider of AI search solutions for DAM. The CMS team was led by Roman Tarlavski...
06/09/2023
Decoded: traditional M&A vs. Tech M&A
Mergers and acquisitions (M&A) are crucial to the growth and evolution of businesses across industries. M&A in its most traditional form involves companies in various sectors coming together to consolidate resources, expand market reach, and enhance overall competitiveness. However, with the rapid advancement of technology, a new paradigm has emerged: Tech M&A. Tech M&A focusses on new sorts of technology that can create great value to businesses, but creates new challenges as well. Our specialised Tech M&A team will explore the key challenges of Tech M&A in a series of articles. In this first article, we explore the key differences between traditional M&A and Tech M&A. Traditional M&A Traditional M&A refers to the consolidation of companies in various industries, such as manufacturing, and retail. In traditional M&A, the primary objectives often include achieving economies of scale, synergizing operations, gaining access to new markets, and diversifying products or services. The legal and other processes involved in these transactions are well-established and generally of a static nature, with extensive precedents and routines governing the entire process. Companies meticulously assess each other's financials, assets, liabilities, and risks. Tangible assets, such as real estate, machinery, and inventory are an important element of such assessment. Tech M&A Tech M&A, on the other hand, refers to acquisitions that involve technology driven companies. Unlike traditional M&A, where tangible assets are at the forefront, Tech M&A centres around intangible assets like intellectual property, data, software, and innovative technology such as artificial intelligence. The legal and other processes for Tech M&A transactions are therefore tailored to focus on such assets during every stage of the transaction.  Strategic value is placed on a company's proprietary technology, talent, and potential for future growth. Consequently, Tech M&A transactions are dynamic and complex, while time is of the essence. Key differences and challenges Need for alternative valuation methods Traditional M&A primarily relies on financial metrics and historical performance to determine valuation. In contrast, Tech M&A requires a keen assessment of a company's intellectual property, technology, market potential, and future growth prospects. Valuation methods like discounted cash flow and comparable analysis are still relevant, but new metrics and tools are required to evaluate the potential of a prospect accurately. Continuous technological advancements The fast-paced nature of technology requires the acquiring party to carefully consider the sustainability and scalability of the technology they are acquiring. This is far from a static assessment and may even change during the course of a transaction. When designing the process for a Tech M&A transaction, parties should consider which developments are especially relevant for the target. Furthermore, the process should provide for sufficient flexibility to address any such developments without jeopardising the overall timeline. ESG concerns around use of AI and data privacy ESG considerations have unmistakably become an important topic in any M&A transaction. Technology driven companies, often operating in dynamic and innovative environments, tend to be more re­source-ef­fi­cient and carbon-light compared to traditional companies, aligning well with ESG goals. However, the technological advancements on which such companies are based may raise concerns on their impact on society, including in respect of artificial intelligence, automation and data privacy. Rapidly changing regulatory landscape Regulatory requirements and developments are key to both traditional M&A transactions and Tech M&A transactions. Technology driven companies used to manoeuvre more often in a unregulated legal landscape than traditional companies. This landscape is changing as a result of European legislation focused on shaping Europe's digital future, including the Digital Services Act, Digital Markets Act and the EU AI Act, the world's first comprehensive AI law. The impact of such legislation on tech companies will soon become a decisive factor for Tech M&A transactions and will force these companies to regulate their businesses. Conclusion As technology continues to shape the business landscape, the differences between traditional M&A and Tech M&A become more pronounced. Actors in the Tech M&A space must adapt to the unique challenges posed by Tech M&A, including complex valuations, regulatory matters, and the fast-paced nature of the industry. Staying informed on the latest trends will be crucial to navigating the Tech M&A landscape. Stay up-to-date Stay up-to-date by subscribing to our Corporate M&A and TMC newsletters to receive future articles and event invitations about Tech M&A directly in your mailbox.
03/07/2023
CMS advises Royal Unibrew on its acquisition of Vrumona
CMS has advised Royal Unibrew A/S on its acquisition of Vrumona from Heineken for a consideration of EUR 300 million. Vrumona is the second largest soft drinks player in the Dutch market with a range...
01/05/2023
CMS assists Witec shareholders in sale of majority stake to Gimv
CMS has assisted the shareholders of Witec, a developer and manufacturer of high-end precision and high-tech parts and systems, in the sale of a majority stake to Gimv, a listed investor in innovative...
07/04/2023
CMS advises T&S Groupe on the acquisition of TOPIC
CMS has assisted Technology & Strategy Groupe (T&S), a European leader in engineering and digital consulting, with the acquisition of Topic Ventures B.V. and its 13 subsidiaries. TOPIC is active as an...
30/11/2022
CMS has advised Groupe BBL on its acquisition of the Share Logistics group
CMS has advised Groupe BBL on its acquisition of the Share Logistics group, an international freight forwarding services provider, predominantly active in the field of air and ocean freight, with offices...
17/06/2022
CMS has advised Zehnder Group on its acquisition of all shares in Filtech
CMS has advised Zehnder Group, a leading provider of indoor climate solutions listed on the Swiss Exchange, on its acquisition of all shares in Filtech. Filtech is a leading manufacturer of high quality...
08/02/2022
CMS advises FD Mediagroep on the sale of Springest
CMS has advised FD Mediagroep in connection with the sale of Springest, a comparison and booking site for training, e-learning and trainers to Studytube, a fast growing Dutch based online training platform...
20/12/2021
CMS advises Garden Capital Group on the sale of a majority stake in Eden...
CMS has advised Garden Capital Group, an entity controlled by the Dijkstra family, on its sale of a majority stake in the Dutch hotel group Eden Hotels to an affiliate of KSL Capital Partners (KSL)...