1 ADVANCE PRAISE FOR 2 Due Diligence for Global Deal Making 3 EDITED BY ARTHUR H. ROSENBLOOM 4 5 6 7 “Thoughtful due diligence has never been more important in deal 8 making, and this book gives you all the tools to get the job done. 9 It also goes beyond diligence to clarify strategy and long-term objectives. 10 It’s a critical business reference.” 11 RICK RICKERTSEN 12 Chief Operating Officer 13 Thayer Capital Partners 14 Author, Buyout: The Insider’s Guide to 15 Buying Your Own Company 16 17 18 “Arthur Rosenbloom has succeeded in compiling, distilling, and explain- 19 ing the many complex issues related to performing due diligence for 20 global opportunities. This excellent book provides valuable insights 21 for private equity principals, investment bankers, CEOs, CFOs, and 22 anyone else who participates in such transactions.” 23 PETER E. BERGER 24 Managing Director 25 Ripplewood Holdings LLC 26 27 “A nice primer on the importance and multidimensional facets of due 28 diligence in cross-border transactions. The due diligence checklists 29 included are 30 great reference tools for either the practitioner or the ” 31 student. 32 THOMAS A. MASTRELLI 33 Chief Operating Officer 34 VNU Inc. 35 36 37 1 “This is a timely book that brings back the commonsense, in addition to 2 the applied forensics, approach to due diligence. In light of recent dra- 3 matic due diligence failures, deal participants need to make sure they 4 fully understand the company that is undergoing a corporate transaction. 5 Due diligence issues are often exacerbated in cross-border deals, 6 making this book’s global focus very relevant.” 7 8 JAMES H. ZUKIN 9 Senior Managing Director 10 Houlihan Lokey Howard & Zukin Capital 11 12 “It’s hard to find a book more timely than Due Diligence for Global 13 Deal Making. The rapid growth of global markets in the last decade of 14 the twentieth century increased the risk of fraud and problems in under- 15 standing legal and financial documents and assessing operations. Arthur 16 Rosenbloom, a top authority on due diligence, has correctly diagnosed 17 the situation and edited a useful and strategically important book. Many 18 of the recent financial scandals to which we are witness might 19 have been avoided had the lessons appearing in this work been 20 heeded.” 21 VLADIMIR KVINT, PH.D. 22 Professor of Management Systems and International Business 23 Fordham University 24 Author, The Global Emerging Market in Transition 25 Contributing Editor, Forbes Global magazine 26 27 28 “The fact of globalization makes reading Due Diligence for Global Deal 29 Making a must for those contemplating cross-border transactions. 30 The work offers a much needed discussion of the strategic planning, 31 human relations, and critical operational components of the due diligence 32 process.” 33 MARK LOWENTHAL 34 Former President 35 Revlon Europe and the Middle East 36 37 1 2 3 4 5 6 7 8 Due Diligence 9 10 11 FOR 12 Global 13 14 15 Deal Making 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 1 2 3 4 5 6 7 8 9 ATTENTION CORPORATIONS 10 11 Bloomberg Press books are available at quantity discounts with bulk 12 purchase for sales promotional use and for corporate education or other 13 business uses. Special editions or book excerpts can also be created. For information, please call 609-750-5070 or write to: Special Sales Dept., 14 Bloomberg Press, P.O. Box 888, Princeton, NJ 08542. 15 16 17 18 19 A complete list of our titles is available at 20 www.bloomberg.com/books 21 22 23 BLOOMBERG MARKETS ™ is for and about professional investors, 24 the places they work, and the companies they invest in. It is specially 25 edited for the BLOOMBERG PROFESSIONAL™ service subscriber who needs to be constantly informed on new functions, trends, and 26 strategies that can help tilt the financial playing field in their favor. See 27 www.bloomberg.com for subscription information. 28 29 30 31 32 33 34 35 36 37 1 BLOOMBERG PROFESSIONAL LIBRARY 2 3 4 5 6 7 8 Due Diligence 9 10 11 FOR Global 12 13 14 15 Deal Making 16 17 18 19 20 THE DEFINITIVE GUIDE TO 21 Cross-Border Mergers and Acquisitions, 22 23 Joint Ventures, Financings, AND 24 Strategic Alliances 25 26 27 28 29 EDITED BY 30 31 ARTHUR H. ROSENBLOOM 32 33 34 35 BLOOMBERG PRESS 36 Princeton 37 1 2 3 Copyright © 2002 Arthur H. Rosenbloom. All rights reserved. Protected under the Berne Con- 4 vention. Printed in the United States of America. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photo- 5 copying, recording, or otherwise, without the prior written permission of the publisher except in 6 the case of brief quotations embodied in critical articles and reviews. For information, please write: 7 Permissions Department, Bloomberg Press, 100 Business Park Drive, P.O. Box 888, Princeton, NJ 08542-0888 U.S.A. 8 9 Books are available for bulk purchases at special discounts. Special editions or book excerpts can also be created to specifications. For information, please write: Special Markets Department, 10 Bloomberg Press. 11 12 BLOOMBERG, BLOOMBERG NEWS, BLOOMBERG FINANCIAL MARKETS, OPEN BLOOMBERG, BLOOMBERG PERSONAL, THE BLOOMBERG FORUM, COMPANY 13 CONNECTION, COMPANY CONNEX, BLOOMBERG PRESS, BLOOMBERG PROFES- 14 SIONAL LIBRARY, BLOOMBERG PERSONAL BOOKSHELF, and BLOOMBERG SMALL BUSINESS are trademarks and service marks of Bloomberg L.P. All rights reserved. 15 16 This publication contains the authors’ opinions and is designed to provide accurate and authori- 17 tative information. It is sold with the understanding that the editor, authors, publisher, and Bloomberg L.P. are not engaged in rendering legal, accounting, investment-planning, or other 18 professional advice. The reader should seek the services of a qualified professional for such advice; 19 the editor, authors, publisher, and Bloomberg L.P. cannot be held responsible for any loss incurred as a result of specific investments or planning decisions made by the reader. 20 21 First edition published 2002 22 1 3 5 7 9 10 8 6 4 2 23 Library of Congress Cataloging-in-Publication Data 24 Due diligence for global deal making : the definitive guide to cross-border mergers and acquisi- 25 tions, joint ventures, financings, and strategic alliances / edited by Arthur H. Rosenbloom. 26 p. cm. 27 Includes bibliographical references and index. ISBN 1-57660-092-0 28 1. Consolidation and merger of corporations--Handbooks, manuals, etc. 29 2. International business enterprises. 3. Joint ventures. 4. Strategic alliances (Business) I. Rosenbloom, Arthur H. 30 31 HD2746.5 .D84 2002 32 658.1’6--dc21 2002008649 33 Acquired and edited by Kathleen A. Peterson 34 35 36 37 1 2 Preface 3 4 5 6 7 8 9 10 FFECTIVE DUE DILIGENCE in all transactions—but especially 11 those involving parties across national borders—is a critical com- 12 E ponent of the deal process. This is an absolute if parties are to be 13 spared the enormous loss of time, money, and reputation (not to mention 14 personal anguish) of deals that fail to meet expectations. Cross-border 15 due diligence encompasses all of the elements found in purely domestic 16 transactions, overlain with an extra level of complexity due to its inter- 17 national character. (Thus, a double-barreled benefit for readers of this 18 book!) 19 Paradoxically, the transactions in which strategic, operational, finan- 20 cial, tax, legal and people/organizational due diligence is practiced effec- 21 tively often don’t make the headlines but are observable only dimly in 22 the accreted earnings of the acquirer. However with failed or aborted 23 transactions, the story is otherwise. Daimler-Chrysler’s shrunken market 24 capitalization evidences a corporate marriage flawed in many cultural, 25 financial, and operational ways. Better due diligence might have made a 26 difference. 27 Could better legal due diligence have more effectively anticipated the 28 European Union’s anti-monopoly response, now on appeal, in General 29 Electric-Honeywell? Perhaps. Had Enron, Global Crossing, Sunbeam, 30 Adelphia, or WorldCom been the subject of cross-border deal offers, 31 would the many issues surrounding these companies that later surfaced 32 have been unearthed by means of effective due diligence? Unprovable, 33 of course, but reasonably likely, we assert. 34 In many respects, twenty-first century cross-border due diligence 35 resembles the classic due diligence of prior periods, but in two distinct 36 ways it does not. One is the specter of international terrorism, whose 37 v VI DUE DILIGENCE FOR GLOBAL DEAL MAKING 1 implications for cross-border due diligence are the subject of the 2 Appendix to this book. A second is the proliferation of intellectual 3 property-driven transactions in fields like biotech, software, and com- 4 munications. These sorts of deals require new levels of due diligence 5 resourcefulness, and we have more than a little guidance for you in this 6 regard in the pages that follow. 7 To the corporate executives, attorneys, accountants, consultants, and 8 the graduate students and others who aspire to become skilled in any of 9 these areas, and to those who teach these aspirants, we hope and believe 10 that you’ll find in this volume a wealth of practical advice on how to 11 become more effective professionals in cross-border due diligence. Good 12 luck and good deals to you all.