In today's episode, we are talking about the due diligence process from the perspective of a seller and what to expect.
What's in before an LOI:
Corporate performance
Financial performance
Market conditions
Once a seller has disclosed with a degree of accuracy these 3 main metrics (with several sub metrics) it is acceptable to expect a letter of intent (LOI) surrounding a combination. In that letter a seller should expect a valuation (at least a range), a methodology for getting to the valuation (so that adjustment to the purchase price are based on actuals vs a change in perceived value levers), a list of terms including the currency (cash, equity, earn-out / or a combination of all) as well as a detailed allocation of where the IP value sits and how it is measured.
Post LOI due diligence:
An extensive list of disclosures, documents, and artifacts that verify the information gathered prior to the execution of an LOI.
Below is a sample of the information gathered post LOI but ahead of definitive agreements (whether asset purchase or stock purchase):
| Organization |
| Articles of Incorporation |
| Company bylaws |
| Organization Charts |
| Capital structure |
| Certificate of Good Standing from state in which company is incorporated |
| List of regions in which the company is authorized to do business |
| List of regions in which the company has employees, contract relationships, leases facilities, or transacts business |
| List of any names (and documentation) under which the company may operate |
| Financial Items |
| Financial statements for previous three years |
| Company/Auditor correspondence from previous three years |
| Credit report |
| Capital budget |
| Strategic planning documents |
| Financial schedules |
| Contingent liabilities |
| Indebtedness |
| Inventory |
| Accounts receivable |
| Accounts payable |
| Depreciation and amortization procedures and accounting methods in previous three years |
| Financial model containing revenue, fixed and variable expenses, and gross margins |
| Analysis of internal control procedures |
| Physical Assets |
| Listing of fixed assets and their respective locations |
| Any filings for Uniform Commercial Code |
| Equipment leases |
| Transactions relating to major capital equipment in previous three years |
| Real Estate |
| Detailed listing of business locations |
| Copies of |
| real estate leases |
| mortgages |
| deeds |
| titles |
| surveys |
| zoning approvals |
| variances |
| use permits |
| Intellectual Property (IP) |
| Listing of patents (domestic and foreign) and respective applications |
| Listing of trademark and trade names |
| Listing of copyrights |
| Documentation |
| technical know-how |
| agreements regarding inventions |
| licenses or assignments of IP |
| patent clearance |
| Listing of any claims or grievances against the company regarding IP |
| Employees |
| List of employees and associated employment agreements (noncompetes, nonsolicitations, nondisclosure, etc) |
| Resumes for management and key managerial personnel |
| Employee handbook outlining key benefits and holiday, vacation, and sick leave policies |
| Plan outlines of company-sponsored retirement plans |
| Documentation of any employee issues in previous three years (harassment, discrimination, etc.) |
| Listing of any workers compensation claims |
| Lisitng of unemployment claims |
| Documentation of employee stock option and stock purchase plans information |
| Licenses and Permits |
| Copies of government licenses, consents, or permits |
| Correspondence or documents relating to proceedings of any regulatory agency |
| Environmental Issues |
| Environmental audits relating to properties leased by the company |
| Listing of hazardous materials used by company in operations |
| Documentaiton of company procedures relating to disposal of hazardous materials |
| Listing of environmental permits and licenses |
| Correspondence relating to EPA or other regulatory agencies |
| Listing of environmental litigation of investigations or possible superfund exposure |
| Listing of contingent environmental liabilities or indemnification obligations |
| Taxes |
| Federal, state, local, and foreign income tax returns for the last three years |
| States sales tax returns for the last three years |
| Audit and revenue agency reports |
| Any tax settlement documents for the last three years |
| Employment tax filings for three years |
| Excise tax filings for three years |
| Any tax liens |
| Material Contracts |
| Listing of all subsidiary, partnership, or joint venture relationships and obligations |
| Contracts between the Company and any officers, directors, 5-percent shareholders or affiliates |
| Loan agreements, bank financing arrangements, line of credit, or promissory notes to which the Company is a party |
| Security agreements, mortgages, indentures, collateral pledges, and similar agreements |
| Guaranties to which the company is a party |
| Installment sale agreements |
| Distribution agreements, sales representative agreements, marketing agreements, and supply agreements |
| Letters of intent, contracts, and closing transcripts from any mergers, acquisitions, or divestitures within last five years |
| Options and stock purchase agreements involving interests in other companies |
| Product or Service Lines |
| Listing of all existing products or services and products or services under development |
| Correspondence and reports related to any regulatory approvals or disapprovals of any company's products or services |
| Summary of all complaints or warranty claims |
| Summary of results of all tests, evaluations, studies, surveys, and other data regarding products or services |
| Customer Information |
| Listing of the company's twenty largest customers in terms of sales over the previous three year period |
| Supply or service agreements |
| Description or copy of the Company's purchasing policies |
| Description or copy of the Company's credit policy |
| Schedule of unfilled orders |
| Listing and explanation for any major customers lost over the last two years |
| Customers by ZIP trailing 90 days |
| Average Order Value by ZIP |
| Description of the Company's major competitors |
| Litigation |
| Listing of all pending litigation |
| Description of any threatened litigation |
| Copies of insurance policies |
| Documentation relating to any injunctions, consent decrees, or settlements |
| Listing of unsatisfied judgments |
| Insurance Coverage |
| Listing of the Company's insurance policies |
| Listing of the Company's insurance claims history for past three years. |
| Service Providers |
| Listing of all law firms, accounting firms, consulting firms, and similar professionals engaged by the company during past five years |
| Marketing Awareness |
| Documentation of articles and press releases relating to the company within the past three years |
In summary:
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