Draft Due Diligence Report Project Morningstar

Transcription

1 Draft Due Diligence Report Project Morningstar of December 2016.dk

2 Table of Contents 1. List of Schedules 2. Scope of Due Diligence Investigation 3. Red Flag Findings 4. Additional Findings 2

3 1. Schedules Schedule A Schedule B Schedule C Schedule D Schedule E Schedule F Schedule G Schedule H Data Room Index as of xx Additional Requests and Answers as of Overview of leasing agreements Overview of lease agreement Overview of sublease agreement Overview of Framework Agreement Overview of individual customer agreements Overview of supplier agreements 3

4 2. Scope of Investigation 4

5 2. Scope of Investigation Scope of Work We have prepared this high-level Red Flag Legal Due Diligence Report in connection with XXXX A/S ( XXXX ) possible acquisition of 100% of the shares in YYYY Holding A/S (the Company ), incl. 100% of the shares in ZZZZ A/S (the Subsidiary ) from the selling shareholders (collectively the Sellers ) (the Transaction ). As agreed with XXXX, our due diligence investigation (the Due Diligence Investigation ) has been limited to the following sections in the Data Room Index as specified in Schedule A, hereunder Corporate Matters, Contracts with Customers (top 20 customers) and Suppliers, IPR, Real Property, Insurance, Related Party Matters, Disputes, Public Permits and Change of Control. XXXX has informed that XXXX will conduct due diligence with respect to Business/Commercial, HR, Information Technology, Other Technical Matters and Competition and that XXXX has engaged other professional advisors in relation to advice on Tax, Accounting and Financial Economic Matters. Accordingly, in preparing this report, we have limited our review to other matters of a legal nature specifically mentioned in Schedule A and express no opinion regarding the suitability of the Company, the Subsidiary or any other entities participating in the Transaction. Without limiting the generality of the foregoing, our Due Diligence Investigation has not covered any issues concerning non-legal commercial, operational or technical issues relating to or otherwise affecting or capable of affecting, directly or indirectly, the Company or Subsidiary, nor do we express any opinion regarding such matters. To the extent that any information relating to such matters is given in this report, it is included for purposes of general information only, and we do not accept any liability with respect to any descriptions relating thereto. Sources of Information This report is based on: Review of the documents made available to us in the VDR prepared by the Sellers and hosted by Merrill Datasite(Schedule A); answers to requests forwarded by us during the due diligence (Schedule B); and certain public sources, e.g. the Danish Business Register. Effective Date Our Due Diligence Investigation has been conducted in the period from 29 November2016 to 27 December This report replaces earlier forwarded drafts, if any. 5

6 2. Scope of Investigation Benefit of the Report The report is for the sole use of XXXX and its advisors solely for the purpose of the Transaction, and the report is not intended to be relied upon by, nor should it be made available to (in whole or in part), any other party without our prior written consent. Though, XXXX may make the report available to AAA bank, on a non-reliance basis. XXXX undertakes that by allowing the report and the information contained therein available for the third parties mentioned above, Lawfirmhave not assumed any duties or obligations that Lawfirmwould not otherwise have had. XXXX agrees to indemnify and hold harmless Lawfirmfrom any claim by the above mentioned third parties or any other third party that arises as a result of disclosure of the report. No representation or warranty, express or implied, is made to any other than XXXX as to the accuracy, reliability or completeness of the information contained in this report. In no event will we be liable for any direct, indirect, special, incidental or consequential damages or any other damages, including, but not limited to, loss of revenues, loss of profits, loss of goodwill and loss of prospective economic advantage, resulting from reliance by any third party on the information contained in this report. Contact Information If the content of this report give rise to any questions, please contact: BBBB Partner Direct phone: (+45) Mobile phone: (+45) Purpose of the Due Diligence Investigation Our Due Diligence Investigation has been carried out for the purpose of identifying matters of importance for XXXX s evaluation of the Transaction (the Red Flag Findings ). Matters which cannot be qualified as important compared to the Transaction s size but may nonetheless be of significant interest have been listed under ( Additional Findings ). We have also provided contract summaries for selected contracts, cf. Schedule C H. If any of the Findings gives rise to questions or comments, please contact us as soon as possible. Structure of the Report Our Red Flag Findings are listed in clause 3 and Additional Findings in clause 4. If a Finding listed in clauses 3 or 4 below is described in more detail in a schedule, the number of the schedule has been inserted in the column marked Sch.. Our Recommendations Based on our Findings and the risks related thereto, we have made a number of recommendations. The recommendations are divided into three main areas: 6

7 2. Scope of Investigation SPA: recommendations regarding the contents (e.g. warranties) of the Share Purchase Agreement to be concluded between XXXX and the Sellers (the SPA ). Value: the Findings and/or risks could have an impact on the valuation of the Company and the Subsidiary; and Other comments: recommendations not covered by (1) and (2). Regardless of the classification of the recommendations, the Findings and/or risks could affect other areas as well. Assumptions, Qualifications and Limitations Our report is subject to the assumptions, qualifications and limitations set out below. In connection with our review of the documents made available to us in the VDR, we have assumed: that all copies made of original documents are true and complete copies (whether certified true copies or not) and that such original documents are authentic and complete, and that there are no provisions in any documents, information or oral agreements or understandings that have not been provided or communicated to us which would have implications for our review; that all documents made available to us are valid and binding regardless of such documents being signed in full or in part; that all oral information provided to us, if any, is complete, true and correct; that all signatures appearing on documents submitted to us as originals or copies of originals are genuine; that the Company and the Subsidiary had the requisite corporate power to enter into all contractual arrangements to which it is a party and to perform its obligations thereunder; that all contractual documents have been duly authorised, executed, and delivered by the parties thereto and constitute legally enforceable obligations on the parties thereto under Danish law or such other laws as are expressed in such documents to apply; that the parties to any contractual documents to which the Company or the Subsidiary is a party have not breached or is expected to breach any of the terms of such document; and 7

8 2. Scope of Investigation that the Company and the Subsidiary has not since 29 November 2016 passed any voluntary winding-up resolution and that no petition has been presented to any court for the winding-up of the Company or the Subsidiary. If we during our review, have identified matters that render it possible that the assumptions outlined above are not correct such matters will have been specifically addressed in the Report. This Due Diligence Report is made subject to the following qualifications: except as expressly stated in this report, we have not investigated and made comments in relation to the Company or the Subsidiary in connection with matters pertaining to Business/Commercial, HR, Information Technology, Other Technical Matters, Competition, Tax, Accounting and Financial Economic Matters. we are qualified to practise law in Denmark only and we express no opinion as to any laws other than Danish law. This report was prepared on the basis of and relates to the application of Danish laws as they exist and are interpreted at the date of this report. Matters Subject to Foreign Law As we are only qualified to advice on Danish law we have in our review of any documents subject to foreign law applied Danish legal principles. Thus, to the extent that any information relating to foreign law is given in this report, it is included for purposes of general information only, and we do not accept any liability with respect to any descriptions relating thereto. we have at all times during the course of our investigations relied on the information provided to us. Except to the extent expressly stated in this report, we have not been able to verify and have not verified any information disclosed to us; our review has been undertaken following consultation with and on the basis of instructions received from XXXX; and 8

9 3. Red Flag Findings 9

10 3. Red Flag Findings Index Document Finding Recommendations Sch. SPA Value Other comments 10

11 4. Additional Findings 11

12 4. Additional Findings Index Document Finding Recommendations Sch. SPA Value Other comments 12