DUE DILIGENCE CHECKLIST — MERGERS AND ACQUISITIONS

Table of Contents

1. Transaction Overview
2. Corporate Organization and Structure
3. Financial Information
4. Tax Matters
5. Material Contracts and Agreements
6. Intellectual Property
7. Real Property and Assets
8. Employment and Labor
9. Litigation and Legal Proceedings
10. Regulatory and Compliance
11. Insurance
12. Environmental
13. Technology and Cybersecurity
14. Customer and Vendor Relationships
15. Antitrust and HSR Filing
16. Completion Tracker

1. Transaction Overview

2. Corporate Organization and Structure

☐ Certificate/Articles of Incorporation (and all amendments)
☐ Bylaws (and all amendments)
☐ Good standing certificates from state of incorporation and each qualification state
☐ Organizational chart showing all subsidiaries, affiliates, and ownership percentages
☐ Minutes of Board of Directors meetings (past [____] years)
☐ Minutes of stockholder/member meetings (past [____] years)
☐ Written consents of directors and stockholders
☐ Capitalization table — all classes of equity, options, warrants, convertible instruments
☐ Stock ledger and stock transfer records
☐ Stockholders' agreement, voting agreements, and investor rights agreements
☐ Right of first refusal, co-sale, and drag-along agreements
☐ List of all jurisdictions where the company is qualified to do business
☐ List of all assumed names / DBAs
☐ Certificates of authority for foreign jurisdictions
☐ Joint venture, partnership, or consortium agreements

3. Financial Information

3.1 Financial Statements

☐ Audited financial statements (past [____] years)
☐ Unaudited interim financial statements (current year)
☐ Monthly/quarterly management financial reports (past [____] months)
☐ Revenue breakdown by product/service, customer, and geography
☐ Accounts receivable aging schedule
☐ Accounts payable aging schedule
☐ Inventory records and valuation methodology
☐ Fixed asset register and depreciation schedules

3.2 Projections and Budgets

☐ Annual budgets (past [____] years and current year)
☐ Financial projections and forecasts
☐ Capital expenditure plans
☐ Assumptions underlying projections

3.3 Debt and Financing

☐ All loan agreements, credit facilities, and lines of credit
☐ Promissory notes (issued and held)
☐ Security agreements, mortgages, and UCC filings
☐ Guarantees (given and received)
☐ Letters of credit
☐ Convertible notes, SAFEs, and other convertible instruments
☐ Subordination and intercreditor agreements
☐ Compliance certificates and covenant calculations

3.4 Working Capital

☐ Working capital analysis (trailing 12 months)
☐ Cash flow statements
☐ Bank statements (past [____] months)
☐ Net working capital calculation methodology

4. Tax Matters

☐ Federal, state, and local income tax returns (past [____] years)
☐ Sales and use tax returns
☐ Payroll tax returns
☐ Property tax assessments and returns
☐ Tax audit history and correspondence with taxing authorities
☐ Tax sharing or indemnification agreements
☐ Net operating loss (NOL) carryforwards and IRC § 382 analysis
☐ Transfer pricing documentation (if international operations)
☐ State and local tax nexus analysis
☐ R&D tax credit documentation
☐ IRC § 338(h)(10) or § 336(e) election analysis (for stock purchases)
☐ Tax-free reorganization analysis under IRC § 368 (for mergers)

5. Material Contracts and Agreements

☐ Customer contracts (top [____] customers by revenue)
☐ Supplier and vendor contracts (top [____] by spend)
☐ Distribution and reseller agreements
☐ License agreements (inbound and outbound)
☐ Service level agreements (SLAs)
☐ Government contracts
☐ Contracts with related parties
☐ Non-compete and non-solicitation agreements
☐ Indemnification agreements
☐ Letters of intent and pending proposals
☐ Contracts with change-of-control provisions or anti-assignment clauses
☐ Contracts requiring consent to assign
☐ Material contracts entered outside the ordinary course of business

6. Intellectual Property

☐ List of all patents (issued and pending applications)
☐ List of all trademarks, service marks, and trade dress (registered and unregistered)
☐ List of all copyrights (registered and unregistered)
☐ List of all domain names
☐ Trade secret policies and identification
☐ IP assignment agreements from founders, employees, and contractors
☐ IP license agreements (inbound and outbound)
☐ Open source software usage and licenses
☐ IP litigation history (past and pending)
☐ Freedom-to-operate opinions or analyses
☐ IP indemnification obligations
☐ Software development agreements and work-for-hire agreements

7. Real Property and Assets

☐ List of all owned real property (deeds, title insurance, surveys)
☐ List of all leased real property (lease agreements and amendments)
☐ Environmental assessments (Phase I and Phase II)
☐ Zoning and land use permits
☐ Personal property leases (equipment, vehicles)
☐ Asset appraisals
☐ Liens, encumbrances, and security interests (UCC search results)

8. Employment and Labor

8.1 Workforce

☐ Employee census (names, titles, hire dates, compensation, location)
☐ Organizational chart
☐ Independent contractor list and agreements
☐ Employment agreements for key executives
☐ Offer letter templates
☐ Employee handbook and policies

8.2 Compensation and Benefits

☐ Equity incentive plans and all outstanding grants (options, RSAs, RSUs)
☐ 409A valuation reports (most recent and prior)
☐ Summary of all employee benefit plans (health, retirement, etc.)
☐ 401(k) or other retirement plan documents and compliance testing
☐ Bonus and commission plans
☐ Severance plans or agreements
☐ Change-of-control payments and golden parachute analysis (IRC § 280G)
☐ Deferred compensation arrangements (IRC § 409A compliance)

8.3 Labor Relations

☐ Collective bargaining agreements
☐ NLRB proceedings or charges
☐ WARN Act analysis (layoff history and post-closing workforce plans)
☐ EEOC charges and complaints
☐ Workers' compensation claims history
☐ I-9 compliance and immigration records for foreign nationals

9. Litigation and Legal Proceedings

☐ Schedule of all pending litigation, arbitration, or administrative proceedings
☐ Schedule of all threatened claims or demands
☐ Settlement agreements (past [____] years)
☐ Consent decrees, injunctions, or court orders
☐ Legal opinions received regarding material matters
☐ Litigation reserves and accruals
☐ Product liability claims history
☐ Regulatory enforcement actions

10. Regulatory and Compliance

☐ List of all permits, licenses, and governmental approvals
☐ Regulatory filings and correspondence
☐ Compliance program documentation
☐ Anti-corruption/FCPA compliance policies
☐ AML/KYC policies (if applicable)
☐ Export control and sanctions compliance
☐ Industry-specific regulatory approvals (FDA, FCC, EPA, etc.)
☐ Data privacy compliance (CCPA, GDPR, HIPAA, as applicable)
☐ SEC filings and securities law compliance (if public company)
☐ Consent or approval requirements from regulatory bodies for the transaction

11. Insurance

☐ List of all insurance policies (general liability, D&O, E&O, cyber, property, etc.)
☐ Claims history (past [____] years)
☐ Pending claims under existing policies
☐ Key person life insurance
☐ Representations and warranties insurance (RWI) analysis
☐ Tail coverage requirements for D&O and E&O policies

12. Environmental

☐ Environmental permits and compliance records
☐ Phase I Environmental Site Assessments
☐ Phase II Environmental Site Assessments (if triggered)
☐ Hazardous materials handling, storage, and disposal records
☐ Environmental litigation or regulatory actions
☐ Underground storage tank records
☐ CERCLA/Superfund liability analysis
☐ Environmental remediation obligations

13. Technology and Cybersecurity

☐ IT infrastructure overview (systems, platforms, hosting)
☐ Software architecture and technical documentation
☐ Third-party SaaS and cloud service agreements
☐ Data security policies and incident response plans
☐ History of data breaches or security incidents
☐ Penetration testing and vulnerability assessment reports
☐ Business continuity and disaster recovery plans
☐ SOC 2, ISO 27001, or other security certifications
☐ AI/machine learning systems and related IP ownership

14. Customer and Vendor Relationships

☐ Top [____] customers (revenue, contract terms, renewal dates)
☐ Customer concentration analysis (percentage of revenue from top customers)
☐ Customer churn data (past [____] years)
☐ Key vendor and supplier dependencies
☐ Vendor concentration risk analysis
☐ Customer satisfaction data or NPS scores
☐ Backlog and pipeline reports

15. Antitrust and HSR Filing

☐ Market share analysis and competitive landscape
☐ Prior antitrust investigations or proceedings
☐ HSR filing threshold analysis (current thresholds for 2026: transaction valued at $[________________________________] or more)
☐ HSR pre-filing notification preparation
☐ Antitrust counsel engagement
☐ Foreign competition/antitrust filing requirements

16. Completion Tracker

Sources and References

• Securities Act of 1933, §§ 11, 12 — Liability for Registration Statements and Prospectuses
• Securities Exchange Act of 1934, § 10(b) and Rule 10b-5 — Antifraud Provisions
• Delaware General Corporation Law, Title 8, §§ 141, 251, 259, 271
• Hart-Scott-Rodino Antitrust Improvements Act, 15 U.S.C. § 18a
• IRC §§ 338, 368, 381, 382 — Tax Treatment of Acquisitions
• IRC § 280G — Golden Parachute Payments
• WARN Act, 29 U.S.C. § 2101 — Worker Adjustment and Retraining Notification
• Bloomberg Law M&A Due Diligence Checklist — https://pro.bloomberglaw.com/insights/contracts/ma-due-diligence-checklist/