By Justin Escher Alpert
Due diligence is an art. It is a coordinated dance between skilled practitioners in creatively bringing Mergers and Acquisitions transactions together.
In a large public transaction, bankers and lawyers on each side will throw dozens of young associates on a project to develop disclosure schedules that are cross-checked over-and-over again. Money is no object in a $50 billion dollar transaction, but peel it back by several orders of magnitude, and whether your transaction is worth $500,000, $5 million, or $50 million, the due diligence process is still vitally important.
The buyer will obviously want an idea of what exactly it is buying, whether it be assets or securities. For the seller, the due diligence process is important to develop the disclosure schedules that will keep the seller’s representations and warranties in the purchase agreement accurate. In a good and complete due diligence process, it shouldn’t surprise the seller to discover things that it did not know about itself.
Due diligence is never perfect and you don’t know in advance what you will find. In a recent strategic acquisition, a large family business purchased a simple cash-flow generating company which the sole proprietor basically ran out of his head for thirty years. Contracts were mostly oral in an industry based on old school ties and firm handshakes. The due diligence process had to make the buyer comfortable with what it was getting, with representations and warranties that would match its understanding.
In another strategic acquisition, the buyer definitively told his attorneys to just paper the contracts because he knew that the seller had run a good business for years. Of course, the due diligence process would continually turn up issues which would then need to be resolved by the parties and their professional advisors. Your professional advisors are there to ask good questions, spot issues, and protect your interests as you make informed decisions.
It is not always just the seller who is forced through the due diligence introspection. If the seller is taking an earn-out over time or rolling-over part of the purchase price into buyer equity, it is important to know that the buyer will be able to continue operating as a going concern. A proper due diligence of the buyer becomes important. If the buyer is just a shell company, guaranties may be needed from a parent entity.
In all of these scenarios, getting beyond the terms of a letter of intent and into the details is vitally-important. In the corporate mating ritual, issues arise and the professional intermediaries are in a position to sort them out in a manner that crafts a common sense understanding, guiding a transaction towards closing. On larger transactions, it is not uncommon to hear from sellers that the due diligence process is “like drinking from a firehose.” There can be a tremendous amount of work that needs to be done (and that’s in addition to running the company). A smaller transaction does not necessarily scale down and may require much of the same efforts. For a buyer in a large institutional transaction, due diligence is just a cost of doing business. However, in a smaller acquisition, a life’s savings may be at stake. In either case, good adversarial process is the best way to check issues and resolve potential conflicts.
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