Due diligence is the stage during a business sale, where the business is investigated by the purchaser.
The process entails the purchaser (or rather those acting for purchaser) reviewing the documents and information belonging to the business to verify the accuracy of all representations and assumptions that have been made about the business. It is a crucial stage in the transaction as it enables the purchaser to be satisfied that it wishes to continue with the purchase and to learn more about what it is buying.
The process entails the purchaser submitting a list of questions that the seller must answer and making requests for information to be provided. The purchaser will provide the seller reasonable time which to respond.
The information requested can often be extensive and usually takes some time to collate and prepare. Careful preparation by the seller and its legal team in advance of the request can assist to accelerate the process. A smooth due diligence process will increase the odds of an early completion and reduce the risk of the purchaser being lost or attempting to renegotiate the deal.
There are competing agendas for the parties engaged in due diligence.
The purchaser’s aim is to:
• identify any material issues that may arise as a consequence the current business;
• determine whether the valuation agreed for the business is correct and where possible, seek to negotiate the valuation downwards;
• identify matters that will require specific drafting in the same purchase agreement; and
• determine whether there is any reason not to proceed with the purchase.
The seller’s agenda is to:
• present the business in the best possible light to ensure the value remains as agreed;
• provide answers to any concerns or queries that the purchaser may have; and
• enable the purchaser to satisfy itself quickly as is possible so as to ensure the transaction remains on track.
To assist maintaining confidentiality and avoiding disruption of the businesses operations, the due diligence process is usually kept offsite. Modern due diligence processes often involve the seller setting up a “data room” in which to provide the key documents electronically.
The data room, electronic or physical, enables the parties to inspect the relevant information and to record what has been considered. It provides a critical record of the core information in the transaction that the parties have relied upon when negotiating the deal and preparing the sale and purchase agreement to complete the sale.
In most business sales, the due diligence process is the most vital part of the transaction and must be handled carefully. Mistakes made during the due diligence stage can result in unforeseen liabilities for the purchaser or the loss of a sale for a seller.
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Disclaimer
Ashbrooke Law publications are intended to provide guidance and general information. They should not be relied upon as legal advice. Formal legal advice should be sought on matters of interest arising from this article.