Due Diligence and the Business Transaction

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1 Due Diligence and the Business Transaction Getting a Deal Done Jeffrey W. Berkman

2 Due Diligence and the Business Transaction: Getting a Deal Done Copyright 2013 by Jeffrey W. Berkman This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. ISBN-13 (pbk): ISBN-13 (electronic): Trademarked names, logos, and images may appear in this book. Rather than use a trademark symbol with every occurrence of a trademarked name, logo, or image we use the names, logos, and images only in an editorial fashion and to the benefit of the trademark owner, with no intention of infringement of the trademark. The use in this publication of trade names, trademarks, service marks, and similar terms, even if they are not identified as such, is not to be taken as an expression of opinion as to whether or not they are subject to proprietary rights. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. President and Publisher: Paul Manning Acquisitions Editor: Jeff Olson Developmental Editors: Robert Hutchinson, Ralph Moore Editorial Board: Steve Anglin, Mark Beckner, Ewan Buckingham, Gary Cornell, Louise Corrigan, James DeWolf, Jonathan Gennick, Jonathan Hassell, Robert Hutchinson, Michelle Lowman, James Markham, Matthew Moodie, Jeff Olson, Jeffrey Pepper, Douglas Pundick, Ben Renow-Clarke, Dominic Shakeshaft, Gwenan Spearing, Matt Wade, Steve Weiss, Tom Welsh Coordinating Editor: Rita Fernando Copy Editor: Cat Ohala Compositor: SPi Global Indexer: SPi Global Cover Designer: Anna Ishchenko Distributed to the book trade worldwide by Springer Science+Business Media New York, 233 Spring Street, 6th Floor, New York, NY Phone SPRINGER, fax (201) , orders-ny@springer-sbm.com, or visit Apress Media, LLC is a California LLC and the sole member (owner) is Springer Science + Business Media Finance Inc (SSBM Finance Inc). SSBM Finance Inc is a Delaware corporation. For information on translations, please rights@apress.com, or visit Apress and friends of ED books may be purchased in bulk for academic, corporate, or promotional use. ebook versions and licenses are also available for most titles. For more information, reference our Special Bulk Sales ebook Licensing web page at Any source code or other supplementary materials referenced by the author in this text is available to readers at For detailed information about how to locate your book s source code, go to

3 Apress Business: The Unbiased Source of Business Information Apress business books provide essential information and practical advice, each written for practitioners by recognized experts. Busy managers and professionals in all areas of the business world and at all levels of technical sophistication look to our books for the actionable ideas and tools they need to solve problems, update and enhance their professional skills, make their work lives easier, and capitalize on opportunity. Whatever the topic on the business spectrum entrepreneurship, finance, sales, marketing, management, regulation, information technology, among others Apress has been praised for providing the objective information and unbiased advice you need to excel in your daily work life. Our authors have no axes to grind; they understand they have one job only to deliver up-to-date, accurate information simply, concisely, and with deep insight that addresses the real needs of our readers. It is increasingly hard to find information whether in the news media, on the Internet, and now all too often in books that is even-handed and has your best interests at heart. We therefore hope that you enjoy this book, which has been carefully crafted to meet our standards of quality and unbiased coverage. We are always interested in your feedback or ideas for new titles. Perhaps you d even like to write a book yourself. Whatever the case, reach out to us at editorial@apress.com and an editor will respond swiftly. Incidentally, at the back of this book, you will find a list of useful related titles. Please visit us at to sign up for newsletters and discounts on future purchases. The Apress Business Team

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5 I dedicate this work to my amazing wife Dana for her unwavering love and support, to my father, Jordan W. Berkman, whose insightful advice regarding difficult legal issues, for an old-time country lawyer, never ceases to amaze me, to my mother Arlyne B. Berkman, whose intellect and spirit I miss every day, and to Bernice Kornfield, whose faith in me has no boundaries.

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7 Contents About the Author ix Preface xi Chapter 1: Introduction 1 Chapter 2: What Is Due Diligence? 7 Chapter 3: The Due Diligence Questionnaire 25 Chapter 4: Tailoring Due Diligence to the Transaction 51 Chapter 5: A Material Legal Issue Can Kill the Deal 79 Chapter 6: Chapter 7: Has Due Diligence Created an Opportunity to Improve the Deal Terms? 93 applying Due Diligence Principles: The Franchise Purchase 129 Chapter 8: Resolving the Issues 167 Chapter 9: the Due Diligence Process and Pragmatic Considerations 211 Appendix A: Due Diligence Plan for KMF Franchisee, LLC, Investment 231 Appendix B: Due Diligence Questionnaire for KMF Franchisee, LLC 239 Appendix C: Due Diligence Questionnaire for Overlook, Inc. 255 Appendix D: Due Diligence Questionnaire for ABB, Inc. 261 Index 269

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9 About the Author Jeffrey W. Berkman, principal at the Berkman Law Firm, PLLC, has represented entrepreneurs, companies, and investors in connection with domestic and cross-border transactions, M&A, venture capital, private equity, secured financing, joint venture agreements, and other business transactions in the US, Asia, and Europe. He also provides corporate advice in a number of areas, including business formation and start-up issues, advising small, emerging and established businesses as an outside general counsel, partnership matters, licensing, distribution, franchise, employment and other commercial contracts, commercial real estate transactions and providing advice on numerous other business law matters. Berkman is a member of the Board of Directors of Carmike Cinemas, Inc. (NASDAQ: CKEC). The Berkman Law Firm was chosen as a 2012 finalist by the New York Enterprise Report s Best Accountants and Attorneys for Privately Held Companies. Berkman writes about business law issues relating to small and emerging businesses on his blog has been a lecturer for continuing legal education classes and a presenter at a variety of seminars and business workshops. The Berkman Law Firm ( is a corporate/business law firm advising startups, emerging and established companies, investors, entrepreneurs, inventors and business ventures in a variety of industries, including IT, Internet-based retailers and services, software and hardware development, e-learning, entertainment and new media, retailers, food/restaurant outsourcing, management consulting, healthcare, and real estate.

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11 Preface The genesis of Due Diligence and the Business Transaction: Getting a Deal Done is a blog post I wrote about the importance of companies conducting due diligence on their own business before going to market to sell the company or raise financing. Although this book focuses primarily on the due diligence investigation from the perspective of an entrepreneur or company purchasing or investing in a closely-held business, it eventually comes full circle in the final chapter to the benefits to the target company of conducting internal due diligence. The due diligence investigation is not the exclusive tool of purchasers of, or investors in, a business but should be conducted by the parties on both sides of any of a variety of proposed business transactions. Although even the most seasoned entrepreneur or professional advisor will benefit from this book, my main goal is to explain the fundamental concepts of due diligence to entrepreneurs and investors who are less experienced in the process, to provide them a road map for conducting a due diligence investigation, and to show them how to organize and assess the information gathered in an investigation to make prudent determinations on how and whether to proceed with the proposed transaction at hand. I illustrate and develop these lessons through eight hypothetical case studies constructed to demonstrate the different ways of conducting due diligence in various types of business deals. All the case studies and associated due diligence questionnaires that recur throughout this book are distilled from my many years of professional experience as a venture capital lawyer and business lawyer and are devised for pedagogic purposes only. Any resemblance to identifiable entities or situations is unintended and purely coincidental. The legal, financial, and business concepts and issues that inform the hypothetical transactions and questionnaires in this book should nonetheless be fully understood so that you can adapt them with suitable modifications to the specific business proposals you will have occasion to investigate. Because each deal involves its own financial and legal issues, complexities, and risks, you are strongly advised to consult legal counsel and other professional advisors with experience in handling corporate matters before entering any transaction. When considering entering into a business deal, you will benefit from a strong grasp of the fundamentals of due diligence presented in this book, which will enable you to engage with your professional advisors as a knowledgeable participant in the due diligence process.

12 xii Preface This book examines the following topics regarding due diligence of a nonpublic company: The fundamental goals of the due diligence process and how a well-prepared due diligence plan will define the strategy for the investigation. The components of the due diligence questionnaire, including the standard, transaction-type, and deal-specific questions that generally comprise the questionnaire. The necessity of tailoring the due diligence questionnaire to the actual facts underpinning the transaction. A review of circumstances in which material, legal, financial, technological, operational, or other business issues will result in termination of the transaction. Determining when the results of the due diligence investigation do not require termination of the deal and can instead create an opportunity to renegotiate transaction terms more favorably. The application of the due diligence concepts discussed in the book to real-world transactions, such as purchasing an interest in a fast-food franchisee. Factors affecting the timing of the due diligence investigation, deal exclusivity, drafting the due diligence clause, and utilizing pre-closing conditions, post-closing covenants and related post-closing enforcement mechanisms (adjustments, escrow and indemnification) to address issues discovered during the due diligence investigation. Practical considerations affecting the due diligence investigation, including the possible role of a non-binding letter of intent; factors influencing the scope of the review; forming the due diligence team; the necessity of expanding the investigation beyond the due diligence questionnaire; and the importance of self-imposed due diligence before a company seeks to sell its business or bring on investors.

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