Alexander J. Davie
The operational portion of due diligence involves ensuring that the business will be able to function as the purchaser expects after it has been acquired. The business, in the hands of the seller, may be generating a handsome profit; however, upon transfer that profitability may be impaired due to a whole host of reasons. Key employees may quit or key contracts may be non-assignable and thus end up being terminated upon the sale of the business, or worse yet, may even go into default. This is especially true in the context of leases and existing indebtedness. Leases and loan documents often prohibit the transfer of the agreement, even indirectly through a stock purchase. In addition, if applicable, the buyer will also need to make an inquiry into the ownership of the IP of the company, including the company’s trade names.
Below, I’ve created a non-exhaustive list of the types of documents that a buyer should request as part of the operational portion of due diligence. Obviously, every deal is different, so there are likely to be additional documents that would be necessary in any particular deal.
- List of directors, officers, and key employees and their compensation.
- Employment agreements of directors, officers, and key employees, including any confidentiality or non-competition agreements.
- Confidentiality and non-competition agreements to which employees and consultants are parties with their prior employers.
- Any collective bargaining or labor agreements.
- Personnel manuals and employee handbooks.
- All loan documents for any indebtedness of the company or indebtedness which encumbers company assets.
- All other financing documents, such as documentation of sale and leaseback transactions, installments sales contracts, letters of credit, vendor financing programs, and capital lease agreements.
- License agreements of any intellectual property, including software, patents, copyrights or trademarks.
- Lease agreements (as landlord and tenant).
- Contracts with outside brokers, agents, distributors, or franchisees.
- Supplier and vendor contracts.
- Customer contracts.
- Maintenance agreements and warranties for any essential equipment.
- Any agreements which place any material limitation on the method of conducting or scope of the Company’s business.
- All other material agreements, such as: (i) joint venture and partnership agreements, (ii) agreements which have a value over a certain dollar threshold, and (iii) agreements which have a term over one year.
- All documents evidencing title to real estate, including title insurance policies.
- Any environmental reports on company real estate.
- Documentation of all patents, trademarks, service marks, copyrights, and other intellectual property owned or used by the Company.
- Evidence of ownership or rights to all proprietary software.
- Evidence of ownership of all domain names.
- Correspondence dealing with actual or alleged infringement by the company of others’ intellectual property or by others of the company’s intellectual property.
- If material to the company’s business, the Buyer should also conduct its own independent evaluation of the company’s intellectual property to evaluate its validity and potential for infringement.
Conducting due diligence for a business acquisition involves reviewing a large amount of documentation. It is a major undertaking, but a necessary one to ensure that the buyer is buying what he thinks he is.