Very Noob question: First year here that has done DD for a couple of deals representing the seller now. Essentially all I did was note whether certain agreements have change of control provisions, and if so, what the specific language is. I understand what the CoC do, but why am I doing this? Specifically, what does the buyer do with this? It seems like these provisions should trigger but nothing then happens...

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These affect the Seller’s reps and warranties. Typically have to disclose anything that requires third party consent in the schedules, so very important

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Agree with this too. You’ll need to note the third party consents for the schedules so it is normal for seller to diligence it’s own agreements for this purpose. But as to what the buyer does with it, see my comment.

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If it’s a stock sale, they need to know whether key agreements have CoC provisions. The seller (and the buyer when the deal closes) would then be in breach of those agreements if they don’t go through the process for noting that there is a change of control, or receiving consent. Lots of buyers will close over immaterial consents like for copier contracts, etc, but may request consents if it is a key agreement with a vendor, customer. The buyer usually creates a list of required consents that they will require as a closing condition. It’s a buyer discretion thing so you wouldn’t see the analysis on your end. They’re looking at financials, talking with seller/seller’s counsel to determine which to require.

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In the exec comp realm, these CoC provisions determine: 1) what can be done with outstanding options; and in the common case where the board may do anything, 2) it is likely awards will accelerate and vest. So, need to figure out for whom such awards accelerate and vest for 280G purposes (if applicable, based on the entity’s tax structure).

Buyer needs this info to the extent payments need to be made to certain individuals, and if certain individuals are to be hired post-closing, then this all affects any go-forward agreements.

Usually when sell side does this diligence (again, EBEC), we are looking for potential 409A issues or any issues generally with their equity incentive plan/individual grants.

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If your deal is a change of control and there are contracts with CoC provisions then (assuming your client , the seller, will need to obtain these) your next task will probably be drafting forms of consents and notices (depending on provisions in relevant contracts) so you can deliver those to the other parties and obtain consents or notify them as necessary for the change of control prior to closing. Another helpful thing to check in this situation is how are those agreements that have coc provisions terminated, so you know what happens in the unlikely event you fail to obtain consent and need to terminate the contract prior to closing

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Kind of odd to be doing sell side DD. Usually that’s the buyer responsibility.

Not odd at all! How else would you accurately draft the R&Ws? Or disclosures?

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Just wanted to add that this is absolutely the type of question you should be asking midlevels/ seniors above you.

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