The Art of M&A® / Due Diligence
An excerpt from The Art of M&A, Sixth Edition: A Merger, Acquisition, and Buyout Guide by Alexandra Reed Lajoux
Note: This is a sample only; it should not be used as an exhaustive guide and should be modified for every transaction as appropriate (e.g., a public offering versus a private acquisition). For example, due diligence into the capitalization of a company may be less significant in an asset sale than in a stock sale. This document request list does not contain specialized sections dealing with intellectual property, environmental, and employment matters, and so forth. Parties to a transaction should develop customized lists to cover these items, as needed. 42
DOCUMENTS
Corporate Documents
Certificate of Incorporation (CI) Including All Amendments, Name Changes, Mergers. The CI is particularly helpful in determining what name to search for title to real estate. Special care should be taken not to overlook name variations, for example, “Rocket Airlines Inc.,” “Rocket Air Lines, Inc.,” and “Rocket Airlines Corp.” These are quite likely to be very separate legal entities. The date and state of incorporation are also critical. There may be different companies with identical names incorporated in different states.
Bylaws. Look for change of control provisions. Many bylaws contain “poison pill” provisions designed to place restrictions on changes in control, or to make such changes very expensive to the potential acquirer.
Minutes. Look in particular for information on past acquisitions or mergers and other transactions affecting capital; this will help trace ownership of assets and equity. Make certain the election and appointment of current directors and officers is duly reflected in board minutes, and that the issuance of all outstanding stock has been properly authorized.
Financial Statements
Develop breakdowns, by location, of assets (land, buildings, equipment, inventory, vehicles, and, if not billed out of a central office, receivables). Consider whether those provided are adequate for use in possible SEC filings and whether pro forma financials are needed. Examine footnotes as a source of information for more detailed inquiries into existing debt, leases, pensions, related party arrangements, and contingent liabilities. Especially in leveraged acquisitions, consider the target’s debt.
Engineering Reports
Try to find “as-built” drawings, especially if surveys are not available. Review for environmental problems or other concerns that might require major capital expenditures.
Market Studies/Reports on Company’s Product
These may be written in-house or by outside consultants. In the case of public companies, if findings are material, they may be mentioned in the company’s Management Discussion and Analysis section of its annual report/10-K.
Key Intangibles
Patents, Trademarks, Trade Names, and Copyrights. These items generally involve “registered” or “filed” rights that can be searched for at the US Patent and Trademark Office and, for copyrights, at the Library of Congress, Washington, D.C. However, such rights may not have been filed for. Also, corporations frequently have other key intangibles that are not filed for anywhere, such as trade secrets. This is especially true of companies that deal in high technology, including AI and quantum computing, and the like. Ask about their status and methods of protection. Review all related trade secrets, know-how, and license agreements. (For more on AI, see the checklist that appears in Chapter 3, on valuation and modeling.)
Licenses. Whether granted by the government or by a private third party, licenses may be absolutely essential to the ability of a corporation to continue legally to conduct its business. The buyer should ensure that all such necessary licenses are current and in good order and that these licenses will be readily transferable, or remain valid, in the context of the acquisition transaction. It is generally useful to obtain the advice of special counsel or experts in the particular field (for example, FCC counsel in the case of broadcasting licenses).
Key Tangibles
Mortgages. If these are significant, request closing binder. Look for notes or other evidence of indebtedness. In the case of International Development Bank (IDB) or other quasi-public financing, request the closing binder, and be sure to review indenture, and so on.
Title Documents to Real Estate and Personal Property. Review title policies and documents creating any encumbrance upon title and deeds or bills of sale by which the company acquired assets. If assets were acquired by stock purchase or merger, find evidence of filing of appropriate corporate documents in jurisdiction(s) where assets are located as well as in state(s) of incorporation.
Real Property and Assets Identification. Ask seller to give the complete address (including county) of every facility or piece of real estate owned or leased by the company, and describe each such facility using the following list of categories (indicate more than one category if appropriate):
■ Corporate offices
■ Production, manufacturing, or processing facilities
■ Warehouses, depots, or storage facilities
■ Distribution facilities
■ Sales offices
■ Repair/warranty work facilities
■ Apartments or other residential real property
■ Undeveloped real property
■ Any other facilities
If owned, the seller should indicate as “O” and provide full legal name in which title is recorded.
If leased, seller should indicate as “L” and provide full name of lessor. The seller should indicate whether there is any inventory at any such facility by “I.”
The seller should indicate whether any goods, products, or materials at any such facility are there on consignment from a supplier, as “Supp C.” Ask the seller to provide the complete address (including county) of every site not described above where any of the company’s assets are located, including every facility of any customer, or processor at which the company has raw materials, goods, products, or inventory on consignment, and the name of the party in possession of such assets, including any such customer or processor.
Compare actual documents to title insurance. Look for encumbrances, easements, rights of third parties, and personal property encumbrances appearing on UCC records that should be checked. If in doubt, send someone to the site. (Remember Cascade International, whose founder, Victor G. Incendy, disappeared in 1991 following the discovery that the company had overstated not only its sales and profits but the number of stores and cosmetic counters it owned. By comparing financial records to state tax records and to industry rules of thumb, outside sources were able to determine that the exaggeration was at least 300 percent. Later investigation found that this was a conservative estimate.)
Contracts
Supply and Sales Agreements. Do these meet the company’s future business requirements? Review as to assignability, term, and expenditures required. (Some long-time distribution contracts will survive a merger but not an acquisition of assets.)
Employment and Consulting Agreements. These relate both to the current key employees the acquirer wishes to retain and to exposure to claims of past employees or those the acquirer does not wish to retain. They should also be reviewed to discover if they restrict the retaining of proprietary information such as customer lists.
Leases. Get legal descriptions. Have particular concern as to term and expiration dates and renewal rights, rent, and special provisions concerning assignment that may include change of corporate ownership.
License and Franchise Agreements. Look for correspondence concerning extension, expansion, disputes, and estoppels. Franchise relationships are likely to be stormy. Is there a franchise organization? Note assignment clauses and clauses creating a landlord’s lien. Are any prior consents required? Are these sufficient for the business’s requirements?
Loan Agreements. Review terms, intention, and assignability provisions as to any need to refinance or to obtain consents to an acquisition from lenders. Schedules and exhibits should be reviewed to glean useful information regarding the company’s assets and structure.
Shareholder Agreements. Review provisions and their effect on the proposed transaction and, if the agreement will survive, its effect on future transactions, that is, registration rights and antidilution or dissenters’ rights.
Sponsorship Agreements. Are these tax deductible to the giver and tax-free to the receiver?
Agreements with Labor. Obtain and study all agreements for unusual provisions that would unduly constrain management’s options. Review benefits, severance, and plant closing provisions.
■ Will the agreements terminate at sale or are they binding on the buyer?
■ Do the agreements provide for arbitration?29
■ Do they have provisions that restrict the buyer?
■ Is the company presently in compliance with the agreements?
■ Do any of the agreements expire soon? Will the buyer want to renegotiate them? (Notice may be required.) Is a strike likely?
■ Are there any grievances that raise general issues of contract interpretation?
Agreements with Management
■ Are there golden parachutes?
■ Is there excessive compensation? (Compare with current compensation studies by executive compensation firms.)
Security Agreements or Other Agreements Giving Other Parties the Right to Acquire Assets of the Company. Review financing statements or other evidence of perfected security interests. Lien searches conducted by professional services engaged in this business are usually the most efficient way of uncovering UCC financing statements of record, but it is also sometimes necessary to check for third-party interests recorded against particular assets of the seller, rather than against the name of the seller itself. For example, security interests in assets such as vessels or aircraft are recorded in special registries (outside of the scope of the usual UCC lien search) against the particular vessel or aircraft itself, rather than against the owning company.
Sales and Product Warranty Agreements. Review for provisions that vary from the description or understanding of such documents that are provided or held by management. Review for provisions that may be illegal and/or unenforceable. Review for indemnity obligations of the company.
Selected Correspondence. This is a useful means of uncovering past problems that may recur.
Acquisition Agreements. Review prior acquisition agreements concerning surviving provisions, that is, noncompete clauses and indemnification obligations.
Pension and Profit-Sharing Plans. Check out the fine print in all plans and trust documents and review the personnel handbook and any policy manual.
■ Form 5500
■ Summary Plan Description (SPD)
■ Actuarial valuation
■ Auditor’s report and accompanying management reports
■ Investment manager agreements
■ Fiduciary insurance and bonds
■ Investment contracts
■ Investment policy
■ Accrued, unfunded liabilities
■ Fringe benefits
Welfare Benefit Plans. Be aware that potential liabilities in this area can be substantial and that valuation of plans requires expert guidance. Check out fiduciary insurance and bonds.
Multiemployer Plans. As shown in Chapter 7, these can be a major problem.
Deferred Compensation Plan and Stock Option Plan. The TCJA created a new IRC provision, section 83(i), that can delay the taxation of compensation paid to employees of “eligible corporations” in the form of “qualified stock” for up to five years. An eligible corporation is a private company that has a written plan in place to grant stock options or restricted stock units (RSUs) to at least 80 percent of all its full-time, US-based employees. Qualified stock must be received by an employee of the corporation in connection with the exercise of stock options or the settlement of RSUs.
Supplemental or Excess Pension Plan
■ Is the plan exempt from ERISA?
■ Will future law affect costs or benefits?
■ Are large claims anticipated?
■ Are reserves on company books adequate?
■ Can the plan be terminated or amended?
■ Are there any benefits in pay status?
■ Are the benefits in effect funded with insurance?
Insurance Policies
Review all policies and ask at least these questions:
■ Do policies cover the areas of risk exposure? (Consider a risk analysis consultant to review this very technical area.)
■ What is the deductible?
■ What are the liability limits per occurrence? In total?
■ Are punitive or treble damages excluded by the policy or by state law?
■ Are policies written for claims incurred or claims made?
■ Must a tail be purchased to extend coverage?
■ Is there a reservation of rights clause?
■ Is there a regulatory exemption clause?
■ What about coverage for director and officer liability?
■ What about environmental liability?
KEY INFORMATION FROM THE COMPANY’S MANAGEMENT
Financial Information. Perform an analysis of the company’s past operating and financial performance. Document any planned substantive changes. In conducting such an analysis keep in mind the latest tax and accounting changes. For example, under current Financial Accounting Standards Board rules, companies may report their projections of how current losses may offset future gains, even if it is not certain the losses will trigger an offsetting tax benefit. Under previous rules, companies could not report such projections on the grounds that they were not certain to materialize. (See also Chapter 5.)
Relative Profitability of the Company’s Various Classes of Products and Business Segments. Compare to companies of similar size in the industry.
Ownership of Company’s Securities. Trace title of present owners of corporation (if privately held). Review for existing pledges or liens that must be released to permit transaction.
Litigation Matters
Potential Defaults Under Existing Contracts or Potential Litigation. Identify as many as possible and obtain waivers, consents, and so on. Ask for summary of all pending or threatened legal actions that are material:
■ Names and addresses of all parties
■ The nature of the proceedings
■ The date of commencement
■ Current status
■ Relief sought
■ Estimated actual cost
■ Insurance coverage, if any
■ Any legal opinions rendered concerning those actions
Summaries should also be provided for the following:
■ All civil suits by private individuals or entities
■ Suits or investigations by governmental bodies
■ Criminal actions involving the target or any of its significant employees
■ Tax claims (federal, state, and local)
■ Administrative actions
■ All investigations
■ All threatened litigation
Ask for copies of all material correspondence during the past five years with government agencies. In rough order of likely importance, these include the following:
■ Department of Justice
■ Internal Revenue Service
■ Securities and Exchange Commission
■ Environmental Protection Agency
■ Department of Labor
■ Federal Trade Commission
■ Occupational Safety and Health Administration
■ Equal Employment Opportunity Commission
■ Public Utility Commissions
■ Federal Energy Regulatory Commission
Recent or Pending Changes in Laws or Regulations That Might Affect the Company’s Business. Evaluate the risk of potential noncompliance with federal and state laws, including tax laws.43
Product Backlogs, Purchasing, Inventory, and Pricing Policies. Is the company accurately tracking the flow of goods in a company? Falsification of records can abet fraudulent schemes of massive proportions.
Pending Negotiations for the Purchase or Disposition of Assets or Liens. The buyer may want to drop real property that it is planning to dispose of into another entity (such as an affiliated partnership) to avoid gain recognition or to provide for means of early investment return to acquiring persons.
Charitable Contributions Claimed. Are valuations accurate? If not, this can lead to IRS challenges.
KEY INFORMATION FROM OUTSIDE SOURCES
Market and Product Studies. Whether or not the company has conducted market and product studies, it’s always a good idea to consult independent research. (See Chapter 2 for a list of sources.) Try also to obtain product test data from regulatory agencies. Contact major customers to determine their level of satisfaction and copies of test programs they have run.
Capital Confirmation. Confirm outstanding capitalization from the company’s stock transfer agent.
Lien Search
Acquirers will want to confirm the absence of liens or judgments via searches of public records. Note that names of debtors to be searched are often difficult to determine.
■ Prior names—four-month rule regarding after-acquired collateral—cannot rely on creditor
■ Fictitious names or other false information
■ Continuation statements
Sometimes a search must be conducted at the state or local level. In such cases it may be necessary to do the following:
■ Coordinate between the search firm and title company (sometimes not done)
■ Consult Uniform Commercial Code (UCC) and related procedures to determine if state(s) at issue has additional or unusual search requirements
■ Obtain the lender’s or borrower’s approval
Ordering a Search. Send a letter to the search firm or title company listing names, location, cost, and deadline, and request copies of all liens found. Send a copy to the client and lender’s or borrower’s counsel.
Reviewing a Search. What is your client buying, selling, liening, or loaning against? Are certain equipment, goods, and intangibles supposed to be free and clear? Are they vital to the business? To the closing? If so, watch for liens against those items.
■ If certain secured debt is to remain in place, one would expect related UCC-1s to show up on the search report.
■ If secured debt is to be paid off at closing, the seller must produce UCC-3 or other required forms of releases from the relevant parties.
■ What does the appraisal say? What does the commitment or finance package say?
Check the report for names and jurisdictions. Review the UCC-1s sent for:
■ Debtor
■ Secured party
■ Date (five-year rule)
■ Description of collateral
Compare against schedules to be incorporated into loan documents, contracts, and bills of sale. Often, local counsel will need copies of lien searches in order to deliver a priority opinion.
Bring-down of Search. A search bring-down is a telegram or telephone update of lien searches and of corporate good standing certificates. It is often difficult to obtain closer than a few days before closing, but every effort should be made to close on the basis of the most recent bring-downs possible.
Creditor Check
Assumption of Debt. If secured debt is not to be paid off, get security documents to see if, for example, incurring of acquisition debt, imposition of related liens, merger, change of control, or sale of assets is permitted. Are there burdensome covenants? Is prepayment permitted, with or without penalty? (See Chapter 4.)
Confirm absence of defaults from the principal lenders.
Confirm absence of defaults from lessors (landlords).
Recognizing the Unusual or the Potential Problem. The key here is detail and curiosity.
■ Is the affiliate of the seller named as a secured party?
■ Are the names of the debtor not exactly right, but must be related?
Other Searches
■ Patent and trademark searches for possible infringement of products or product names
■ Certificates of good standing for all corporate subsidiaries whether active or inactive
■ Title search/acquisition of title insurance
■ Appraisals of company-owned real property and improvements
■ Any equipment appraisals made by or for insurance companies
DOCUMENT LIST
Preliminary Document and Information Request List for [Name of Company]
PRIVILEGED AND CONFIDENTIAL
[Draft (Date)]
All references in the following list to the “Company” include [Name of Company] and each of its subsidiaries or divisions.
I. Corporate Records
1. Charter documents and bylaws of the Company, as amended to date.
2. Minute books of the Company for the last five years (including copies of reports to members not set forth in the minutes).
3. Stock books, stock ledgers, and other records of the issuance of stock by the Company.
4. A copy of the most current organizational chart available for the Company, including all entities or investments in which the Company owns less than a 100 percent interest.
5. Schedule showing for the Company and each of its subsidiaries: name, jurisdictions where qualified to do business, and jurisdictions where it owns or leases real property.
II. Public Filings and Financial Information
1. Audited consolidated financial statements and the notes thereto for the past five years (or the earliest date available) for the Company.
2. Interim financial statements for quarters since the last audit for the Company.
3. Most recent internal financial statements for the Company (i.e., for the period since the last quarterly statements).
4. Audited financial statements for any enterprises merged with, or acquired by, the Company in the last five years.
5. Current internal budget, operating and financial plans and projections, and any reports or papers relating to any long-term budget, capital development, restructuring program, or strategic plan, including any plans regarding systems and operations, of the Company.
6. Any private placement memoranda or offering circulars prepared and used by the Company in the last five years.
7. All annual or other letters or reports from the Company’s independent public accountants or internal auditors to management during the last five years regarding accounting control systems, methods of accounting, and other procedures. Any other reports prepared by the Company, its internal auditors, counsel, or others regarding similar accounting matters.
8. List of tax returns of the Company and the years thereof which have been audited by state or federal tax authorities, and copies of the determination letters related thereto. List of tax years open. Specify whether the Internal Revenue Service or similar authorities have indicated that there may be a claim relating to open tax years.
III. Corporate Agreements
1. All agreements or documents evidencing borrowings (including bank lines of credit) or guarantees by the Company or any partnership in which the Company holds interests, or security related to borrowings or guarantees of the Company.
2. All documents and agreements evidencing other financial arrangements of the Company, including sale and repurchase or leaseback arrangements, capitalized leases, real estate and other installment purchases, equipment leases, and so on.
3. Any agreement to loan funds or to provide working capital to non–wholly owned subsidiaries, partnerships in which the Company owns an interest, or other third parties.
4. Material correspondence of the Company with lenders during the past five years, including any compliance reports prepared by the Company or its auditors and any waivers provided by the lenders.
5. Any agreements (other than those previously described) that restrict additional indebtedness or the sale, lease, or transfer (by dividend or otherwise) of the assets or capital stock of the Company.
6. All contracts relating to the Company’s securities to which the Company is a party, or among shareholders of the Company, or between shareholders and the Company, including (i) any agreements relating to the purchase, issuance, transfer, or voting of securities of the Company (e.g., stock option plans, forms of stock option agreements, private placement agreements, registration rights agreements, or subscription agreements); (ii) all stockholders’ agreements, voting trusts, or other restrictive agreements relating to the sale or voting of shares of the Company; and (iii) any agreements under which any person has any rights concerning issued or unissued securities of the Company (e.g., rights of purchase or sale, preemptive rights, rights of first refusal, registration rights, options, warrants, or convertible securities).
7. Any agreements to which the company is a party, including shareholders’ agreements, memorandums of understanding, operating agreements, management contracts, and partnership agreements.
8. All divestiture or acquisition agreements and related documents entered into by the Company in the last five years (or earlier if the Company has any material ongoing commitments in respect of any divestiture or acquisition), including all documents relating to any proposed material divestiture or acquisition by the Company.
9. List of material customers of the Company, giving annual dollar amounts purchased during the last three years, and copies of contracts with such persons.
10. List of all distribution agreements and copies of material distribution contracts (or any form contracts) to which the Company is a party.
11. List of material suppliers and volume of purchases made from each listed source in the last two fiscal years. Copies of material supply contracts of the Company and any correspondence with material suppliers, including the agreements and correspondence with sole source suppliers. Copies of any reports or internal memoranda relating to potential supply or inventory problems.
12. List of all principal properties owned or leased by the Company. Copies of all material leases of real property and personal property to which the Company is a party either as lessee or lessor. Copies of all mortgages and related agreements or other security agreements concerning properties owned or leased by the Company.
13. List of all patents, trademarks, trade names, copyrights, and so on (“Intellectual Property”) owned or used in the business of the Company, giving brief descriptions of the use, registration numbers, and dates of issuance of registration, names of any persons to or from whom such Intellectual Property is licensed, and brief descriptions of such arrangements. Description of any claims asserted or threatened by any third party with respect to any intellectual property.
14. Copies of all material agreements relating to competition, noncompetition, nonsolicitation, licensing, territorial arrangements, distributorships, or franchises to which the Company is a party, and any Hart-Scott-Rodino filings.
15. Copies of tax-sharing agreements among the Company and any of its affiliates or subsidiaries.
16. Schedule of material insurance policies of the Company.
17. Form of product warranties of the Company.
18. Records relating to customer complaints during the last two years.
19. Material research and development reports prepared by the Company in the last three years.
20. Any material contracts and agreements, not otherwise described previously, to which the Company is a party.
IV. Employees
1. All material employment agreements, consulting agreements, retention agreements, agency agreements, noncompete agreements, collective bargaining agreements, and similar agreements to which the Company is a party, including employment contracts of executive officers.
2. All bonus, retirement, profit-sharing, stock option, incentive compensation, pension, and other employee benefit plans or agreements of the Company. Provide a schedule of all outstanding options and warrants, identifying the holders thereof; issue dates, exercise price, expiration date, price of underlying shares at time of issue, and other material terms.
3. List of any strikes, unusual labor relationships, work stoppages, or employment-related proceedings during the last five years.
4. All contracts or agreements with or pertaining to the Company and to which directors, officers, or beneficial owners of more than 5 percent of the common shares of the Company are parties. All documents relating to any other transaction between the Company and any director, officer, or beneficial owner of more than 5 percent of the common shares of the Company.
5. Indemnification arrangements with officers and directors of the Company, including a description of any pertinent insurance policies.
V. Governmental Regulation and Environmental Compliance
1. List of all material government permits, licenses, and so on, of the Company (obtained or pending).
2. Any correspondence with, reports filed with, or other communications between the Company and regulatory authorities within the last five years with respect to significant regulatory matters, including any correspondence, memoranda, or other communication relating to [specific regulatory authority].
3. Any correspondence, memoranda, or other communications relating to existing or pending governmental regulations affecting the Company’s businesses, including any correspondence, memoranda, or other communications relating to any proposed legislation.
4. Any information concerning environmental matters and compliance with environmental law and governmental regulations, including descriptions of any contaminated properties, spills, liabilities to third parties, current or prospective environmental remediation efforts, potentially responsible party letters, and administrative orders.
5. Copies of waste-generation records including generation registration, hazardous waste manifests, and any correspondence, directions, or orders relating to waste disposal sites, including PCB waste disposal sites.
6. Copies of all environmental audits, inspections, surveys, questionnaires, and similar reports (internal or external) relating to the Company, including any commissioned by legal counsel to the Company.
VI. Legal Matters
1. A schedule and status report of any material litigation, administrative proceedings, or governmental investigation or inquiry, pending or threatened, affecting the Company or any of its respective officers or directors, including a brief description (amount in controversy and name of attorney handling matter, etc.) of all such pending or threatened matters.
2. Any memoranda of or correspondence with counsel with respect to pending or threatened litigation or litigation settled or otherwise terminated within the last three years.
3. Any material consent decrees, judgments, other decrees or orders, settlement agreements, or other agreements to which the Company or any of its officers or directors is a party or is presently bound, requiring or prohibiting any future activities.
4. All letters from the Company or from counsel for the Company to the Company’s independent public accountants or to any regulatory authority in the last three years regarding material litigation in which the Company or any of its respective officers or directors may be involved, including updates thereof to the most recent practicable date.
VII. Other Material Information
1. Any recent analyses of the Company prepared by the Company, investment bankers, commercial bankers, engineers, management consultants, accountants, federal or state regulatory authorities, or others, including appraisals, marketing studies, future plans, credit reports, and other types of reports, financial or otherwise.
2. Copies of customer profile studies and any other major research projects conducted, undertaken, or completed in the last three years.
3. Press releases issued during the last three years.
4. Any reports or communications to shareholders for the last three years.
5. Responses to the directors’ and officers’ questionnaires.
6. Product brochures and other marketing material.
7. Backlog and order summary records for the last fiscal year.
8. Copies of accident reports for the Company for the last three years.
9. Any other documents or information which, in the judgment of the officers of the Company, are significant with respect to the business of the Company or which should be considered and reviewed in making disclosures regarding the business and financial condition of the Company.
Note: Add additional specific requests according to the type of company involved in the transaction.
42 For a checklist including those elements, see Alexandra R. Lajoux and Charles M. Elson, The Art of M&A Due Diligence: Navigating Critical Steps and Uncovering Crucial Data (New York: McGraw-Hill, 2009).
43 Standard 2405 of the Public Accounting Standards Board, currently under review, addresses this issue. Proposed revisions of this standard have raised concerns of increased liability for auditors, corporate directors, and corporate management.
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Lajoux, Alexandra Reed with Capital Expert Services. The Art of M&A, 6th Edition: A Merger, Acquisition, and Buyout Guide. United States of America: McGraw Hill, 2024.