Buying or selling a business can be time-consuming and challenging. While every phase of a transaction has its own set of potential problems, the due diligence period can be especially daunting. In the worst case, disorganization, misunderstandings, and inaccurate information provided during due diligence can send a deal spiraling down the drain. However, with advance planning, and a methodical, organized, and efficient process, the due diligence process can actually be a straight-forward step that moves the buyer and seller to a successful closing.
The term “due diligence” was first coined in the Securities Act of 1933. So long as stock brokers exercised "due diligence" in their investigation into the company whose stock they were selling, and disclosed to the investor what they found, they would not be held liable for nondisclosure of information that was not discovered in the process of that investigation.
As applied to the process of selling or acquiring a business today, due diligence generally refers to the buyer’s process of verifying company information before closing. Most transactions include a formal due diligence phase, which starts after the buyer and seller have agreed to the broad terms of the agreement, generally by signing a letter of intent. Information reviewed in due diligence can include financial information and bank records, corporate formation and legal documents, employee information, intellectual property, equipment and inventory, real estate and leases, marketing and client records, and much, much more.
The amount of time required to conduct due diligence can vary depending on the size and complexity of the company to be acquired, the seller’s ability to produce and share documentation in a timely manner, and the experience of the buyer and his or her team. In most small and mid-sized business transactions, the due diligence phase will last between two and six weeks.
Whether you’re considering buying or selling a business, here are a few tips for handling due diligence:
Handling due diligence as a seller
We believe that methodical preparation is the best way of ensuring a successful sale and avoiding last-minute surprises that can kill a deal. As a seller, you should start preparing for the due diligence process as soon as you decide to put the company on the market. An intermediary or broker will also help you prepare a due diligence package for prospective buyers. Your ability to quickly provide documentation that supports and verifies information on your business will go a long way in building trust with a buyer, and can help ensure the transaction closes successfully. Conversely, if you’re unable to locate documents, or if you provide conflicting or inaccurate information, seeds of doubt can grow in the buyer’s mind. The buyer may then try to renegotiate the previously agreed price or walk away.
Handling due diligence as a buyer
Before starting the due diligence process, it’s critical to think through the information you need to verify. In addition to ensuring that all business records and the seller’s representations are accurate and honest, your acquisition criteria and goals will also drive your approach to due diligence. For example, if you’re acquiring a company to merge into your existing operations and will shortly be moving inventory to your existing warehouse, you’ll want to verify the lease can be cancelled, while you probably don’t care about future warehouse rent increases.
While due diligence can be time-consuming and frustrating, an organized, methodical process can help both the buyer and seller, leading to a successful closing. To receive our latest due diligence checklist, email us at firstname.lastname@example.org.
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