Savvy proprietors of businesses who have been waiting for the right time to sell, merge, or attract investors, are doing due diligence on their own companies before approaching anyone else. No manager wants to look like a deer in the headlights when a potential investor asks about an employee with a criminal record, a publicly registered customer complaint, or late property tax payment. Company leaders need to anticipate the records suitors will request, both from the company and from public sources, like the Internet, the bank, and licensing agencies. Prepared companies scrutinize themselves, as others with checkbooks invariably will, enabling management to approach suitors with a realistic valuation and a knowledgeable evaluation of the company’s strengths and vulnerabilities. In addition, the process can save firms tens of thousands of dollars on professional service fees.
Internal records: A functional due diligence file will contain about fifteen sections. A company with few employees and assets can expect to organize about 50 documents, some of which will need to be updated quarterly or annually. Many companies already have many of these items in separate files, such as “Employees,” “Sales,” “Taxes,” and “Legal.” Pulling them together for a purchasing or investing audience serves two useful purposes: it encourages internal management to review their records with the eyes of interested outsiders and it reveals gaps that may not be obvious when records are segregated. The files should encompass records of the company’s:
- Organization and Good Standing
- Capitalization and Stockholders
- Authorization of Acquisitions and the Transactions
- Financial Statements
- Tax Matters
- Employees Records, Benefit Plans, Salaries, Labor Disputes
- Material Contracts and Commitments
- Litigation, corporate and personal
- Patents and Trademarks
- Real Properties owned and leased
- Books and Records
- Operating Plans Some information will strike a potential investor differently than a potential merger partner, while other information will be equally important to both groups. Knowing the interests of each will enable the principals of a company to assemble records that matter to that target group. For example: Corporate structure: Is the firm a corporation or a partnership? In what state? The answer has implications that make your company more or less attractive to your target audience than competing firms. Ask your attorney.
Stockholders: What do the bylaws say about the rights of major/minor stockholders? Who are they? How many are there? Is management invested? Stockholders, like staff, can be perceived as either an asset or a liability to a deal. Do the shareholders bring value beyond money or do they have a history of litigiousness?
Potential buyers will demonstrate particular interests. One might care about owner expense add-backs or owner assets; another may be concerned about related party transactions. Others will have strong wishes for management to leave or to stay. A company can’t anticipate everything, but its records will be scrutinized for “deal breakers,” omissions, and evasions. Anticipate logical questions Practice your answers to them.
Management: Be prepared for tough questions. Have background checks, performance reviews, and updated resumes handy. Explain attrition. Know which managers wish to remain with the company after a deal is struck and who wishes to leave. Are non-compete documents in order? Do any have relevant outside businesses? Check LinkedIn, Facebook, SEC.gov, secretary of state corporation websites and other sources. What will your suitors see?
Material contracts and commitments: Have customer lists, letters of credit, installment plan purchases, and current and pending contracts filed in an organized fashion. If there are any insider contracts, be sure to show those, too. Are there any performance guarantees? Are any deals imperiled by a change in management? What about agreements with dealers and distributors?
Cash flow: How well does the company manage seasonal or other fluctuations in its costs and cash? Your accountant can help you design cash flow projections to show likely future scenarios. Such analysis may reveal financing options for you, too, such as factoring receivables during short term shortfalls.
Licenses: Technology companies often base their valuations on their intellectual property, so records can quickly inflate or deflate suitor interest. Patents “to be filed” or “pending” are a lot less attractive than patents awarded or defended. Equally important is who owns the technology. Is it clearly the company or could it be an employee – one who remains or a disgruntled one who has left? Was it developed in conjunction with another firm or university? The answers can substantially raise or lower the valuation. Professional service firms should have current records of all licenses, compliance forms, and proof of professional good standing.
Insurance: Physical assets can be strengths or liabilities, too. If the company owns buildings or land, have records of ecological due diligence. A building with a demonstrated lack of mold or property with no history of chemical storage or oil spills is worth a lot more than one without such a pedigree. How is inventory insured in case of flooding the day the contract is signed? Does the company have key man insurance? What about Errors and Omissions? Such evidence assures suitors that they are unlikely to suffer buyer’s remorse, and therefore, can move a deal along faster than a company that leaves such questions unanswered.
Public records: In addition to organizing records for outsider scrutiny, a company’s strategy should include a survey of its electronic presence. It is very easy to check up on other companies, so each firm should do a regular Internet search of its company name and staff. For example, www.hcad.org indicates whether Harris County based companies (and home owners) have paid their taxes for the year, how much they are, and the appraised value of the property. Licensing agencies, like the FINRA, have websites (www.finra.org) (as do such professional associations as realtors, lawyers, doctors, nurses, engineers) which the public can search for the names of broker-dealers (or other professionals) in good standing. A company’s own website can be very revealing. Is it current? Clear? If you contact the business through its website, does someone actually get back to you? A search on www.google.com or another search engine for the company or management team names can reveal useful information – positive or negative. For example a Google search I performed on potential clients revealed: (1) a businessman who has gotten a Cease and Desist Order from California for a business he was now trying to register in Maryland (2) a CEO who lied about his education background (he made up a university) in his SEC filings and (3) a company seeking investment that hadn’t paid its property taxes for the year.
Surely none of these is the first professional impression one wants to make on the World Wide Web. Some records can be purged by corrective action; others can be buried by generating appropriate news items, like press releases, speeches, and article bylines. In general, if your company seeks the trust, respect, and money of other people, make sure that your financial and administrative records are clean and orderly. Many other companies are knocking on the same doors you are, and they have done so.