Legal and Financial Diligence Request List for Data Room v11.2019
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NO.ITEM DESCRIPTIONPROVIDEDTO BE PROVIDEDNOT APPLICABLECOMMENTS
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I.CORPORATE ORGANIZATION
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a.Corporate Structure Chart. Diagram of corporate structure of each Entity (including those in which an Entity owns less than 100%). Detail percentage ownership and jurisdiction of incorporation and a brief description of activities/business for each Entity. For each Entity, list the names of the officers and directors.
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b.Governing Documents. Charter documents of each Entity. Certificates of incorporation, bylaws or their equivalents, as currently in effect and all prior versions and amendments.
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c. Jurisdictions. For each Entity, list the jurisdictions (city, state and foreign countries) in which it does business, owns or leases real property or maintains an office or has employees.
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d.Certificates of Status/Compliance. A schedule of all cities, states and countries where each Entity is qualified to do business, to the extent such concept is applicable, and for each such jurisdiction, evidence that such Entity is qualified or authorized to conduct business. Identify jurisdictions in which such certification or qualification to do business is required but has not been obtained.
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e. Minutes / Actions by Written Consent. All meeting minutes / actions by written consent of the board of direc­tors without a meeting, board committees and shareholders of each Entity for the past five years. Include all materials distributed (including financial projections) at each meeting or accompanying such consents.
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II.CAPITAL STRUCTURE / SHAREHOLDERS
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a.Entity Capitalization Table. Detailed capitalization table showing authorized and outstanding shares of each class of equity securities of each Entity. Include options, warrants, etc. For Entities which are not wholly owned by Company or another Entity, include the name of each equity holder and the number of shares held by such owner.
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b.Share Registers & Certificates. All share ledgers, share registers and forms of share certificates (or other evidence of ownership of equity or other ownership interests) of each Entity (if available).
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c. Options and Warrants. Detailed list of all outstanding options, warrants and other rights that may be exercisable for, convertible or exchangeable for, or otherwise represent the right to purchase or acquire securities of any Entity. For each such option, warrant or other right, include name of holder, date of grant, exercise price, the number of shares subject to such right and vesting schedule (if applicable) and any other material terms of such security.
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d.Shareholder Agreements. All agreements relating to any equity or debt securities of any Entity including any shareholder rights plan. Include all agreements and other documents among stockholders or management of any Entity relating to the management, ownership, voting or control of any Entity. Include all agreements containing pre-emptive rights, registration rights, co-sale rights, information rights, repurchase rights, redemption rights etc.
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e. Other Documents. Copies of all agreements and other documentation relating to repurchases, redemptions, exchanges, conver­sions, reorganizations or similar transactions involving any securities of any Entity.
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f.  Offering Documents. All documents relating to the issuance of equity or debt securities of any Entity (including issuances to employees). Include any prospectus, offering circular, private placement memorandum and transaction documents relating to such issuance.
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III.FINANCIAL MATTERS
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a.Bank Accounts. Schedule of all bank accounts, including lockbox accounts held by any Entity. Specify individuals authorized against each account and authorization thresholds.
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b.Inter-company Accounts. Description of all material inter-company accounts between Entities, including amount, terms of repayment and other material terms.
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c. Financing / Credit Arrangements.
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1.  Debt Obligations. A schedule of all outstanding debt securities and other borrowings of each Entity and the current outstanding principal amounts thereof.
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2.  Loan Documents. All documents and agreements evidencing borrowings, whether secured or unsecured, documented or undocumented of each Entity. All loan and credit agreements, lines of credit, indentures, promissory notes, guarantees, mortgages and other evidences of indebtedness, including all pledge agreements, security agreements, interest rate protection agreements and inter-company debt and guarantees, and any amendments, renewals, notices, waivers, etc. thereto of each Entity. The latest compliance certificates to covenants or restrictions under any such documents.
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3.  Bank Confirmations. Bank letters or agreements confirming lines of credit of each Entity.
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4.  Other Financings. All documents and agreements evidencing other financing arrangements, including, all operating and capital leases (by asset component), sale and leaseback arrange­ments, installment purchases, etc. of each Entity.
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5.  Guarantee Agreements. All contracts, agreements and other documentation of each Entity evidencing obligations or liabilities as guarantor, surety, co-signer, endorser, co-maker, indemnitor, or otherwise in respect of the obligation of any other person or entity.
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6.  Liens, Security Interests. All documents (whether or not recorded) purporting to create liens, deeds of trust, mortgages, security interests, pledges, charges, leasehold interests or other encumbrances on property of each Entity.
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7.  Miscellaneous. All other material agreements with creditors or documents evidencing other financial arrangements not covered above of each Entity, including sale of securities, sale and repurchase or leaseback arrangements, capitalized leases, bonds, real estate and other installment purchases, equipment leases, etc.
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IV.INTELLECTUAL PROPERTY
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a.Patents.
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1. List and provide copies of all U.S. and foreign issued patents and pending applications owned by or filed by or in the name of any Entity.
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2. Show for each such patent: the nature of the patent, patent number, date of issue and the date acquired.
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3. Show for each such patent application: the nature of the patent, date of filing, names of inventors and date of assignment of each inventor’s rights, date and substance of any rejections and the current status of the application.
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4. Copies of all ownership and assignment records for such patents and applications, as well as correspondence with the patent office.
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5. Identify all opposition, reexamination, interference, reissue, confirmation of scope, nullity, inter partes and post grant proceedings for each such patent.
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6. Identify R&D which may be appropriate for future patent protection.
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7. From the above patents, identify key patents and their respective inventors. Identify whether these inventors are still employed by an Entity.
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8. All agreements relating to such patents. Include licenses (outbound and inbound) and settlement agreements. Identify revenue streams or royalty obligations associated with each agreement.
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9. Copies of all prior searches, conclusions, reports and opinions, whether internal or external, that an Entity possesses concerning the validity of its patents, the infringement of its patents by others, the infringement of third party patents by its products and the validity of such third party patents.
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b.Copyrights/Mask Works.
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1. List all registered and pending copyrighted materials and mask works owned by any Entity. Provide copies of applications and registrations therefor, related assignment documents (including waivers of moral rights, if applicable), and applicable security agreements.
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2. List all material unregistered copyrights of each Entity and describe all precautions taken to protect them.
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3. All agreements relating to copyrights/mask works of each Entity. Include licenses (outbound and inbound), and identify whether any Entity is licensor or licensee. Identify revenue streams or payment obligations associated with each agreement.
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4. Copies of all searches, conclusions, reports and opinions, whether internal or external, that an Entity possesses concerning the validity of copyright registrations, the scope of rights, the infringement of copyrights/mask works by others, and infringement of third party copyrights/mask works by its activity.
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5. Copies of all correspondence relating to copyright disputes, cease and desist letters, letters alleging infringement, letters threatening lawsuits and other legal notices received or sent by any Entity.
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c.Trademarks / Service Marks / Tradenames.
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1. List all federal, state and foreign trademark and service mark registrations and pending applications owned by any Entity and the corresponding renewal fee due dates.
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2. Show for each such trademark or service mark: the registration number (or serial number for applications), date of registration, registrant and use.
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3. Please provide copies of all ownership, assignment, and lien records for trademarks and applications owned by any Entity.
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4. List the products on which each mark owned or otherwise used, is used, by mark.
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5. Identify any non-use of any trademarks and the applicable period of time.
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6. Copies of all opposition, cancellation, inter partes, concurrent use and registration proceedings involving any Entity.
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7. Copies of all agreements relating to the trademarks. Include consent letters, mutual use agreements, licenses (outbound and inbound) or opposition settlement agreements, identify whether any Entity is licensee of licensor, and identify revenue streams or payment obligations associated with each agreement.
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8. Copies of all searches, conclusions, reports and opinions, whether internal or external, that an Entity possesses concerning the validity of trademark registrations, the scope of rights, geographical limitations, expansion restrictions, the infringement of trademarks by others, and infringement of third party trademarks by its activities.
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9. Copies of all correspondence relating to trademark disputes, cease and desist letters, letters alleging infringement, letters threatening lawsuits, or other legal notices received or sent by any Entity.
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10. List all interests in trade names, corporate names, brand names, brands and slogans and describe any registrations or filings pertaining thereto.
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d.Trade Secrets.
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1. List all trade secrets and know-how used in or associated with any Entity. Identify confidential information that any Entity licensed or otherwise acquired from a third party.
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2. Provide all internal policies regarding the protection of trade secrets and describe all precautions taken to protect trade secrets.
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3. Provide copies of all agreements relating to trade secrets. Include license, secrecy, or non-analysis agreements, identify whether any Entity is licensor or licensee, and identify revenue streams or payment obligations associated with each agreement. Include a copy of the form of agreement(s) that employees and consultants sign related to confidentiality of trade secrets and confidential information.
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4. Copies of all correspondence relating to trade secret disputes, cease and desist letters, letters alleging misappropriation, letters threatening lawsuits and other legal notices received or sent by any Entity.
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e.Licenses.
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1. Provide copies of any royalty, license or other agreements relating to the licensing to third parties of patents, trademarks, trade names, copyrights, mask works, trade secrets or other intellectual property owned or licensed by any Entity.
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2. Provide copies of all license or other agreements under which any Entity licenses intellectual property from a third party (other than commercially available off the shelf software)
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3. Identify all third party software or other intellectual property, including open source software and commercially licensed software, that is incorporated into or used in developing, building, compiling, testing, distributing or supporting any of the products and provide licenses for same.
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4. Any and all other agreements relating to the acquisition, distribution or use of intellectual property, whether by any Entity from third parties or to third parties from any Entity.
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f.Infringement.
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1. Describe in reasonable detail any claims, allegations, notices or pending litigation involving any Entity’s intellectual property or alleged infringements by any Entity of the intellectual property of others.
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2. Copies of all correspondence from third parties regarding potential infringement of intellectual property rights of others.
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g.Other IP Matters.
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1. List all other interests in any inventions, patents, patent rights and patent applications, trademarks, service marks, trade names, brand names, brands, copyrights, registrations and any other proprietary right not commercially available, which relate to any Entity’s operations or names, whether or not held by any Entity.
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2. Copies of all source code escrow agreements. List of all third parties in possession of any Entity’s source code.
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3. List of all third party IP included in the products and/or source code.
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4. List of all third party tools used in the operation of the business.
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5. Name of the law firm(s) that handles patent, trademark or copyrights matters and the contact person at such law firm(s).
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6. List of any other technology that any Entity jointly owns with a third party.
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7. List of any other technology owned or developed by third parties and acquired by any Entity, and copies of all documents evidencing the transfer thereof.
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8. All IP joint development agreements and any agreements related to joint ventures or strategic alliances involving intellectual property.
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V.LITIGATION / Disputes
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a.Past and Present Litigation Matters. List and summarize all pending litigation or threatened litigation matters (including, but not limited to, arbitration, court, governmental and administrative proceedings) and all such matters that have been pending or threatened within the last three years, including a brief description of the parties, the nature of the proceeding, the date and method commenced, the court or arbitration panel where pending, status, the amount of alleged damages and nature of other relief sought, and a summary of attorneys’ fees and costs. Include copies of key related documents, including, but not necessarily limited to, any (i) demand letters and responses, (ii), complaints, answers, appeals and other material pleadings; (iii) dispositive motions and orders; (iv) currently pending motions; (v) current scheduling information; (vi) tenders and related correspondence with insurance carriers; (vii) settlement offers and communications; and (viii) judgments and dismissals.
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b.Orders / Decrees. All orders, consent decrees, stipulations, judgments, settlement agreements and injunctions. You may exclude from this request non-material discovery and scheduling orders and stipulations.
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c.Communications with Auditors and Accountants. All “litigation letters” from counsel sent to any Entity’s auditors for year-end and cur­rent interim audits and all letters from counsel to independent public accountants in the past three years regarding litigation.
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d.Warranty Claims. Documents relating to warranty claims made against any Entity, and a description of the resolution of such claims.
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e.Customer Complaints. All documents relating to material customer complaints or patterns of repeated customer complaints or small claims court actions.
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f.Governmental Actions. All documents relating to pending or threatened notices, citations, claims or investigations by any government agency. Include correspondence, inquiries, compliance reports, findings, penalties, etc.
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g.Financial Reserves. Details of the extent to which financial reserves have been established in respect of outstanding or potential litigation.
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h.Other Dispute-Related Documents. All consent decrees, judgments, other decrees or orders, settlement agreements and other agreements not otherwise referred to in this request list to which any Entity is a party or is bound, requiring or prohibiting any future activities.
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VI.CONTRACTS & AGREEMENTS
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a.Agreements Requiring Consents. Any contracts, leases, security and privacy (data protection) agreements, etc., which may require the consent of or providing of notice to any third party to or of the proposed transaction. Include all government contracts to which the consent of the contracting officer will be required.
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b.Change of Control Agreements. Any agreements (other than provided pursuant to the prior item) under which, as a result of the proposed transaction, a default may occur, the obligations of an Entity may be increased or accelerated, or the rights of an Entity may be diminished or deferred, including any employment, option or other compensatory agreements.
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c.Material Agreements
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1. Mergers, Acquisitions, Dispositions. All documentation and other materials related to mergers, acquisitions, dispositions, reorganizations, asset sales or other extraordinary corporate events, whether or not consummated, or in which any Entity retained liability or may have contingent liability. Include disclosure schedules, due diligence materials and full closing sets.
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2. Joint Ventures / Partnerships. All partnership, joint venture, minority investment or similar agreements.
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3. Customer / Clients. List of customers by revenue for the most recently completed fiscal year. All customer, sales, licensing, take-and-pay and conditional sales contracts, agreements or other arrangements and client agreements or which are otherwise material.
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4. Government Contracts. All government contracts. Include all contracts with a federal, state or local government or as a subcontractor under a government contract. Include all correspondence, reports and other documents relating to any government contracts.
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5. Warranty and Service Agreements. All material warranty, service or support agreements relating to any products or services provided by any Entity.
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6. Exclusivity Arrangements. All agreements that contain an exclusivity provisions relating to services, content provision, development or otherwise.
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7. Non-Compete Arrangements. All non-competition, non-solicitation and other similar agreements or other agreements limiting the activities of any Entity or an Entity’s ability to compete in any market, or any non-competition agreements or other agreements purporting to limit any third parties’ business activities to which an Entity is a party or is a third party beneficiary.
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8. Confidentiality Arrangements. All confidentiality contracts, agreements and other arrangements, including employee non-disclosure agreements, (or other contracts, agreements or other arrangements containing confidentiality provisions).
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9. Sales / Commission Arrangements. All agreements with brokers, finders, sales agents, commission agents, resellers, franchises, distributors and other similar parties.
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10Vendors / Suppliers. List of top 20 vendors and suppliers by expenditures for the most recently completed fiscal year. Copies of all material vendor and supplier agreements or which are otherwise material. List any sole source suppliers (including service suppliers). List any agreement offering most favoured nations pricing.
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11. Outsourcing Arrangements. All material outsourcing contracts, agreements or other arrangements.
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