United States: Tips On Drafting, Negotiating Disclosure Schedules In M&A

One of the most time-consuming (and arguably one of the most important) aspects of an acquisition transaction is preparing the seller's disclosure schedules.1 Disclosure schedules are basically an extension of the acquisition agreement, containing supplemental disclosure information that would be too cumbersome to include in the main document. If the disclosure schedules contain inaccurate or incomplete information, the disclosing party could be liable for breach under the acquisition agreement. Because of this, it is important that disclosure schedules are carefully prepared and reviewed for accuracy. What makes preparing disclosure schedules particularly difficult is that often, information is needed from individuals who have little to no experience with acquisition transactions. For people unfamiliar with acquisition documents, the disclosure schedule process can seem daunting and confusing.

This article sets forth general information about disclosure schedules, what they are and how they are prepared, as well as common missteps and pitfalls. It is meant to serve as an introductory guide to assist individuals unfamiliar with the disclosure schedule process, as well as provide tips to deal lawyers managing the disclosure schedule process.

Types of Disclosure Schedules

There are two categories of information presented in disclosure schedules: lists and exceptions. A "list" schedule occurs when the seller makes a representation to the buyer that the schedule contains a complete and comprehensive record of certain aspects of its business. For example, a representation might state that the disclosure schedule lists all registered intellectual property owned by the seller. A "list" schedule is important for buyers because it ensures that they have a full picture of certain aspects of the buyer's business and, very often, they will then ask for additional representations for the items on such list (for example, the seller owns the registered intellectual property listed on such schedule free and clear of all liens). Common "list" schedules include lists of stockholders and subsidiaries, employee benefit plans, registered intellectual property, permits, insurance plans, indebtedness, and leased and owned real property.

The second type of disclosure schedule is an "exception" schedule. An "exception" schedule occurs when the seller is qualifying a representation or warranty made by it in the acquisition agreement. These disclosures limit the scope of the seller's representation or warranty and has the effect of limiting the seller's potential liability.

For example, the acquisition agreement may include a representation that the seller is not a defendant in any material litigation claims. If the seller is a defendant in a material litigation claim, it will need to revise the representation to state that: "Other than as indicated on the Disclosure Schedules, the Company is not a defendant in any material litigation claims." The disclosure schedules would then contain a list of material litigation claims where the seller is a party.

A very common, and very important, "exception" schedule is the non-contravention schedule. A non-contravention schedule sets forth any potential roadblocks to consummating the deal, such as required government or shareholder consents, and identifies negative business consequences as a result of the transaction, such as resulting termination rights in the seller's customer or supplier contracts.

The Drafting and Negotiation Process

The Initial Draft

Preparing the disclosure schedules is an iterative process occurring concurrently with the negotiation of the acquisition agreement. Sellers will prepare the first draft of the disclosure document, generally based on their initial draft of the acquisition agreement.2 Since the disclosure schedules will call for information from all aspects of a seller's business, including tax, employee benefits, accounting, finance, legal, etc., sellers will need to rely on employees in each unit of its organization to help identify the items that need to be listed or excepted out of the representation. Particularly in larger organizations, careful planning is needed in order to balance the demands of performing such a comprehensive review while also containing the number of people with knowledge of the transaction to a minimum. The seller's counsel can serve a valuable role of coordinating the process among all parties and assisting with the review.

Sellers generally will want to keep the existence of a potential sale transaction a carefully guarded secret, with only certain employees allowed "under the tent," because rumors of a sale process could have negative business repercussions (for example, employees getting nervous and quitting and vendors/customers ending their relationships with the seller). As additional company employees are added to the deal team, it is important to emphasize to each the importance of keeping the sale process confidential. Many companies will require that each new deal team member sign a short confidentiality agreement. In addition, if either the buyer or seller is publicly traded, company employees must be informed of the need to forego trading in securities of the relevant companies.

Negotiating the Schedules

Buyers will review the sellers' initial draft of the disclosure schedules, examining them against the information gained from their due diligence review and provide comments. Typical comments include asking the seller to add items the buyer believes should be listed or disagreeing with the seller that certain items qualify for listing. Buyers will also request any items listed on the schedules that were not previously provided during the due diligence process and follow-up information based on items included in the schedules (e.g., an amendment referenced in the title of an agreement listed on a disclosure schedule). Sellers should carefully check any data rooms they have set up to ensure, to the extent possible, these items have been provided prior to submitting the initial draft of the disclosure schedules. As the buyer and seller continue to engage in this back-and-forth, the schedules will be continuously updated with each round of discussion. Also, as the acquisition agreement gets negotiated, the disclosure schedules often have to be revised. For example, as part of the negotiation, a new representation may be added that requires a "list" or "exception" schedule, or an existing representation may be expanded that requires new items to be disclosed on an existing disclosure schedule.

Drafting Concerns

Overdisclosure

Sellers often face a tension between protecting themselves by overdisclosing items on the schedules and alarming the buyer with an overpopulated schedule. Overdisclosure can be useful to a seller because it reduces the risk of liability for breaching its representations and warranties for failure to disclose an item. Since many of the schedules provide exceptions to representations made in the acquisition agreement, more disclosure limits the scope of the representation and therefore limits the seller's potential liability.

On the other hand, pages and pages of disclosure might make the buyer concerned over the level of risk it is taking from the seller, or concerned that the seller is trying to hide an issue by burying it within voluminous lists. For the seller's counsel, it is often helpful to tell the person drafting the disclosure schedule to lean more on the side of overdisclosure and then, upon review of the schedule, decide whether it should be dialed back.

Materiality Qualifiers

An important, and sometimes contentious, point of discussion when preparing the disclosure schedules is the materiality standards used to qualify which items will need to be listed. Let's say a representation in the acquisition agreement asks the seller to list all contracts to which it is a party. Seller would be required to produce an extremely long and unwieldy list of contracts, ranging from its most important agreements to purchase orders for sugar packets in its kitchen. This representation is dangerous for sellers because an inadvertent omission would result in a breach of the acquisition agreement, and not particularly helpful to the buyer from a diligence perspective because a full list of all contracts would not help it identify which contracts are material to the seller's business.

A materiality standard, such as limiting the list to contracts whose potential liabilities exceed $500,000, serves to reduce the chance that the seller will inadvertently miss listing an agreement (because the list itself will be shorter) and will limit listed items to those that are useful to a buyer's understanding and valuation of the business.

Setting a disclosure qualifier at a set dollar amount (or a set time period — i.e., only actions that took place in the last three years) serves as a bright-line materiality test. The parties are agreeing that anything over that dollar amount, or within that time period, is material and should be disclosed on the schedule. Another, less clear, standard is items that occur outside of the seller's ordinary course of business. While less clear, generally, disclosure schedule drafters have a good sense of disclosure items that are not ordinary course and do not have a difficult time making the determination regarding whether something should be listed on the schedule.

A more difficult (and, unfortunately, very common) formulation is the vague "materiality" standard. This occurs when the acquisition agreement calls for a schedule to list or except out "material" items. What constitutes "material" is often undefined and is a question of fact. "Materiality" qualifiers often drive the people compiling the disclosure schedules crazy because it is not an easy threshold to identify. When faced with an undefined "materiality" qualifier, it is important for the seller's legal team to discuss the effected disclosure schedule with the schedule drafters to discuss what "materiality" may mean and whether specific disclosures may meet the threshold. Preparing a disclosure schedule for a representation that has a "materiality' standard is a good example of where overdisclosure would be the preferred drafting strategy.

Sellers in particular should keep in mind that materiality thresholds are subject to change as negotiation of the acquisition agreement progresses. When the thresholds are lowered, items that originally may have been disregarded as not applicable in prior drafts will then become subject to disclosure. For this reason, a good practice is to anticipate these changes by keeping an internal list of items that will likely become disclosable should the thresholds be lowered. For instance, if an initial draft of the acquisition agreement sets a $500,000 threshold, the seller should undergo its review as if the threshold was some lower amount. This will avoid the extra time and expense of having to review the same set of materials multiple times after every alteration to the materiality standards.

The seller should also identify early on in the process what thresholds will make a disclosure schedule unwieldy and difficult to compile in the allotted time frame and convey that to the negotiation team. For example, if a threshold of $250,000 results in 50 contracts being listed, but a threshold of $200,000 results in 1,500 contracts being listed, the negotiation team should be alerted so they do not agree to such reduced thresholds. If the deal lawyers are unsure during the acquisition agreement negotiation process whether a requested lower threshold will result in an unwieldy disclosure schedule, the deal lawyers may reserve response on the lower threshold until they have a chance to discuss it with their disclosure schedule drafters.

Disclosing Bad News

One issue that might come up in the disclosure schedule drafting process is how a seller handles disclosing a particularly negative piece of information. For issues such as a potentially expensive litigation claim or an upcoming expiration of a key piece of intellectual property, the disclosure schedules should not be considered the proper forum in which to first inform the buyer. In practice, these issues are more commonly conveyed to the buyer prior to appearing on the disclosure schedules, as otherwise it might give the impression that the seller is attempting to sneak such disclosure into the deal documentation without the buyer noticing. A good practice is to have a businessperson-to-businessperson conversation about the issue early on in the sale process, so that it can be referenced later by the seller.

Depending on the level of materiality of the issue, the seller might also remind the buyer of these conversations at the time the disclosure schedules are distributed. Careful communication of these issues is crucial in order to avoid surprises and the tainting, or even destruction, of the trust between the parties. Sensitive matters, such as the status of pending litigation or claims, may benefit input from counsel.

A Common Mistake — "Why Do I Need to Put This on the Disclosure schedules? I've Already Disclosed It to the Buyer During the Due Diligence Process"

Providing an item to the buyer separately from the disclosure schedules generally does not relieve the seller of its obligation to also list such item on the schedules. A seller will often have uploaded all relevant documents and other information relating to a disclosable item in a virtual data room to which the buyer has access. The seller may have also verbally informed the buyer of certain disclosure matters during due diligence sessions. These items will nonetheless still need to be included in the disclosure schedules.

For schedule drafters without experience in acquisition transactions, they will often (understandably) view disclosure schedules as a way to disclose items that the buyer doesn't already know about. It is imperative that, at the start of the disclosure schedule process, the seller's counsel makes sure none of its disclosure schedule drafters are operating under this mistaken assumption. Indeed, as noted above, the data room disclosures offer a good check to make sure everything is disclosed in the schedules.

Parting Comments

Disclosure schedules are an integral part of the acquisition process and the process of preparing and negotiating these schedules must be carefully managed by members of the seller's deal team, working hand in hand with the seller's employees. Input from the seller's employees is critical, as they are often the only ones with the information required to complete their assigned sections of the schedules. While acquisitions are often fast-paced, with deal lawyers pulled in many different directions, it is imperative that they take the time to ensure that these employees understand the purpose of the schedules and precisely what information needs to be included. This can be accomplished by implementing a well-organized system with the deal lawyers as facilitators and open and frequent communication between all parties. Without such a system, the process becomes chaotic and the chance that something is mistakenly omitted from the schedule increases dramatically, along with the seller's liability for such omissions.

Footnotes

1 While buyers may also prepare disclosure schedules, seller disclosure schedules generally are more extensive and will be the focus of this article.

2 While generally, sellers will try to prepare the first draft of the disclosure schedules based on their initial draft of the acquisition agreement, in deals where there is no auction process, the buyer may have prepared the initial draft. In any case, the parties will likely negotiate the agreement, including representations and warranties to which the schedules relate, while the disclosure schedules are being prepared. Sellers should keep in mind that there will likely be some issues that are pending negotiation at the time the initial draft of the disclosure schedules are submitted. For instance, a seller may object to the buyer's inclusion of certain representations in the acquisition agreement or propose to include certain qualifications. As a consequence, there will likely be sections in the initial draft of the disclosure schedules that are reserved until these negotiations conclude.

Read the full article on Law360.

Appeared in Law360 on December 4, 2015. Originally appeared in the Kaye Scholer M&A and Corporate Governance Newsletter, Fall 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions