Regardless of whether you are buying a business as an asset purchase, a division purchase, a company stock purchase, or a corporate merger, you (and/or your corporate attorney) must conduct due diligence on the target company or corporate division. Due diligence involves an in-depth investigation of the business. It requires review of a lot of documents by your corporate attorney and a review of the financial reports and tax returns by your financial advisor or accountant. By conducting due diligence on the target business, you and your corporate attorney will have a thorough understanding of the business — being better able to ascertain a fair purchase price of the business, and identify any surprise business liabilities for which you likely will be liable after you become the business owner. Due diligence also is important because, depending on the outcome of the due diligence, you (perhaps with the help of your corporate attorney) may want to incorporate certain seller obligations in the term sheet of the deal (e.g., clearing any liens on the assets of the business, obtaining required third party consents, etc.).
Here is my due diligence checklist of the most common items to investigate when conducting due diligence in the buying or merging of a small business (of course, these are among other things to review depending on the facts and circumstances of the specific transaction):
Legal Due Diligence
1. Corporate Documents (or LLC Documents)
If the target business is a corporation, you (or your corporate attorney) should review the certificate of incorporation, good standing certificate, by-laws, minutes of shareholder and director meetings, shareholder agreements, and any outstanding warrants and option agreements.
If the target business is a limited liability company (LLC), you (or your corporate attorney) should review the articles of organization, good standing certificate, operating agreement, minutes of membership meetings, manager agreement, and any outstanding purchase rights agreements and option agreements.
In New York, you can order a good standing certificate from the New York Department of State, Division of Corporations.
Major Contracts: You (or your business lawyer) should review all major distributor, supplier and customer agreements, all confidentiality and non-compete agreements, all intellectual property agreements (licenses into and out of the company), and all equipment leases.
Real Estate: You need to review all real estate leases entered into by the target company (whether as a tenant or a landlord), purchase agreements, surveys (if a long term lease or fee owned), title insurance policies (if fee owned); you should ascertain whether any consents are needed for the contemplated business sale (or merger) transaction, how much the rent liabilities are, whether there are sufficient term(s) remaining on the lease(s), among other things.
Insurance Policies: Have your risk advisor or insurance agent review all insurance policies carried by the target business to determine if the present coverage is adequate for the business as it is conducted (or plans to be conducted).
3. Licenses and Permits. Is the target business required to maintain licenses and permits with the local and state authorities (such as a liquor license or other operating permit)? If so, you (or your corporate attorney) need to obtain all copies and determine which licenses may require the seller’s obtaining prior consent for the contemplated sale or merger of the business. To find out what licenses and permits may be required in New York, you can visit the New York State’s Online Permit Assistance and Licensing website.
4. List of all (major) Assets and Liabilities. Regardless of whether you are buying the business as an asset purchase or a stock purchase, you want to be sure of what the target company owns and owes. The target company’s assets may include cash, securities, equipment, inventory, intellectual property (copyrights, trademarks, patents, domain names, and other proprietary rights), notes and accounts receivables, real property (leased and owned). Liabilities may include bank debt, employee benefits and bonuses earned and not yet paid, threatened, pending and current lawsuits, licensing violations, etc. You should be provided with a list of all employees and their current salaries. You should identify which employees are key to a successful transition and continued operation of the business.
5. UCC Liens. Uniform Commercial Code (UCC) information is important to any business or financial institution contemplating entering into a lien transaction as the secured party (the party providing funds or financing collateral). Knowing the current financial status of the target debtor business before extending credit is crucial, and it is the number of active, existing liens already in effect for that particular debtor party that most interests any future lender or secured party. You can search the New York Uniform Commercial Code Bureau files and records to see what financial obligations (including IRS liens) have been incurred by the target business and to see what, if any, liens exist on the selling business’ assets.
6. Customer Problems. You can easily search the internet to see if there is any negative publicity or customer complaints about the target business. The internet is a very powerful tool for viral marketing and unfortunately, for flaming a business. You don’t want to buy a business that is saddled with a lot of negative consumer awareness.
Financial Due Diligence
You should have your accountant or financial advisor review the following diligence materials. She or he should check whether there are any questionable accounting practices.
1. Tax Returns. Up to 5 years’ prior federal, state and local tax returns, including any sale and use tax returns. In New York and in other states, the successor to a business may be liable for tax liabilities incurred in the years prior to its purchase of the business. In order to be certain that you have the same returns that were filed with the taxing authorities, you can have the seller provide the applicable written consent so you can request copies of the actual tax returns directly from the applicable taxing authority.
2. Financial Statements. The seller of the business should provide detailed financial statements (including balance sheets and profit and loss statements) for the prior 3 to 5 years. If the target business is large enough, your financial advisor or accountant might request to review “audited” financial statements that have been prepared and certified by a certified public accountant.
3. Tax Liens. Your accountant or financial advisor should review the any tax liens filed on any assets owned by the target business.