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What Must We Do if We’re Going to Be Acquired?

photo of document binders standing next to one another

A successful exit by acquisition is one of the great thrills of entrepreneurship. That exit does not come easily, however. This post discusses, by category, the most important documents and information that you will need to provide during the acquirer’s due diligence process.

Corporate Documentation

  • Articles of incorporation and bylaws, as amended
  • Minutes of board and shareholder meetings and actions
  • Share transfer ledger, including name and address of each shareholder
  • Agreements pertaining to shares and shareholders’ rights (buy-sell, voting rights, etc.)
  • List of holders of option or warrants and all applicable agreements

Personnel

  • List of all directors, officers and employees and their respective positions
  • All agreements between the foregoing and the corporation
  • All policies and plans pertaining to the foregoing – employee handbook, compensation, benefits, etc.

Business Activities

  • States in which the corporation is qualified to do business
  • Business licenses
  • Fictitious business names (“FBN”, or “DBA” for “doing business as”)
  • Material contracts with customers, suppliers and other parties
  • Actual and threatened litigations and regulatory proceedings

Other Administrative

  • Financial statements and shareholder reports for five years
  • List of assets and any related agreements
  • List of liabilities and any related agreements
  • Tax returns and any proceeding or agreements with taxing authorities
  • Insurance policies

Intellectual Property

  • Patent applications and issued patents
  • Copyright applications and registrations
  • Trademark applications and registrations
  • Domain name registrations
  • Trade secrets
  • Agreements and security interests pertaining to the foregoing

As discussed further in the following related posts, there is good reason to keep the foregoing information up to date at all times to avoid a last-minute scramble when the acquisition is about to take place:

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Dana H. Shultz, Attorney at Law  +1 510 547-0545  dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.

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