As mentioned in our
previous Article, due diligence exercise empowers a buyer in assessing the
value of the target business, verify the business information and assess risks
associated with an acquisition.
Due Diligence is a
lengthy procedure undertaken to fully evaluate the business, assets,
capabilities and financial performance of the target company. There are various
modes of due diligence, discussed hereunder.
PROCESS OF DUE
DILIGENCE
Due
diligence process is a revolutionary fact-finding task that helps you to
evaluate your target and determine whether or not the transaction is suitable
for your business. If properly accomplished, the due diligence process will
allow you to identify potential deal breakers / shapers and provide guarantees
that the acquisition is the correct resolution on the proper value.[1]
The
due diligence process includes the principal (the buyer or investor), an
accountant, and an attorney. In a company acquisition, due diligence is
sometimes done after the agreement to buy documents is signed but before the
formal acquisition settlement.[2]
Subjects included in the
due diligence process includes:
Monetary
information, stability sheets, income statements for previous years, estimated
monetary statements, insurance, tax returns, and funding statements are the
most important subjects for the due diligence course. Part of the company's
investigation can involve viewing the incorporation articles and by-laws,
minutes of the meeting, and state-submitted creation paperwork.[3]
Areas of Focus in a Due
Diligence Report[4]:
i.
Viability:
Accessing the viability of the target firm can be done through an in depth
analysis of the firm’s business and financial strategies.
ii.
Monetary Aspect:
To understand the full picture, key financial data and a ratio analysis would
be necessary.
iii.
Environment:
No firm operates in isolation, Hence, the macro environment and its impact on
the target firm must be examined.
iv.
Personnel:
Important factors to remember are the skills and credibility of the people who
are operating the company.
v.
Existing & Potential
Liabilities: Any form of pending litigation and regulatory
concerns should be considered.
vi.
Technology:
An important factor which must be considered is the assessment of the
technology available with the firm. It will determine the future course of
action of the firm.
Process
of due diligence includes[5]:
i.
compliance
concerns
The
number of regulations levied upon the company continues to increase in the
ever-growing corporate environment. For compliance of these regulations, it is
necessary that firm is aware of these regulations in the 1st
instance.
ii.
corporate
objectives
The
due diligence process needs to comply with the firm's possible economic,
political, reputational, and financial risks.
iii.
gathering
key information
Information
must be collected on a variety of bases, such as political ties, board members,
incorporation papers, main shareholders, etc.
iv.
screen
prospective third parties against watchlists
Watchlist
screenings will decide whether some sort of significant risk is raised by the
particular party. The organization should be tested against law enforcement
points lists, global sanctions list, debarred company lists released, and so
on.
v.
conducting
a risk assessment
Preparation
of the risk assessment has to be made. The evaluation must take into account
points such as high rates of government intervention, country risk and
financial risks resulting from internal factor deficiencies.
vi.
validate
the information collected
When
the risk evaluation phase has been completed, the next phase in the due
diligence process is to check and confirm all the information that has been
procured.
vii.
record
the process
a record of due diligence
process must be maintained. All related reports and documentation should be
included on the record. This record will allow an individual to measure the
return on investments later.
viii.
draft
an on-going monitoring plan
There
needs to be careful monitoring throughout to prevent any sort of unforeseen
issues.
ix.
review
the process regularly
A
company will continue to adapt to the changes. Periodic evaluations should be
carried out, and appropriate changes should be integrated into the process.
CONCLUSION
If
any modification or addition in the entity is considered as a contract with a
new supplier or an acquisition of another entity, a due diligence report will
give the necessary knowledge and confidence to achieve the desired goal of the
deal. This report identifies issues one can address early in the process. The
results will provide accurate details while allowing an organization to assess
the true value or business expense. Due diligence also applies to negotiating
the agreement which helps the company to negotiate the best terms and
conditions.
Thorough
due diligence is very crucial for any successful acquisition. It is difficult
to make the best-informed decisions on mergers and acquisitions without full
and detailed knowledge of the target company. In a proposed merger or in a
situation where stock shares in the acquiring company constitute a major part
of the purchase transaction, the target company may look to the acquirer to
perform its own due diligence.
Ms. Megha Kamboj & Ms. Monika Sainik are 3rd year students of Maharastra National Law University, Mumbai & are interns at Corp Comm Legal under Mr. Bhumesh Verma
[1] “Due Diligence Process:
Everything You Need to Know”, Upcounsel, April
1, 2020, https://www.upcounsel.com/due-diligence-process
[2] Ibid.
[3] Supra note 46.
[4] “Due Diligence
Report-Process, Importance and Types”, Cleartax,
April 1, 2020, https://cleartax.in/s/due-diligence#areas
[5] Supra note 46.
- To Read, Due Diligence: A practical overview by Anshul Ramesh and Avesh Harshan- PART-I, Click Here
- To Read, Due Diligence: Need and Benefits by Anshul Ramesh and Avesh Harshan- PART-II , Click Here
- To Read, Due Diligence: It's Types by Megha Kamboj & Monika Saini- PART-III, Click Here
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