What is a merger and acquisition due diligence
Due Diligence is a procedure for an independent audit of a company. Usually it is preceded by an agreement on merger and acquisition (M&A), the creation of a joint venture or cooperation.
Due Diligence mainly includes a compliance check, during which operational activities, relationships with counterparties and government agencies, possible adverse factors in the enterprise activities, and so on are comprehensively studied.
It should be noted that almost all market participants offer Due Diligence services in the Ukrainian legal market. Sometimes state bodies are the customer of this type of audit, however, despite this, the Ukrainian legislation lacks sufficient regulation of the Due Diligence issue. Moreover, when training lawyers in national universities, neither the specific issue of Due Diligence nor the general issues of legal due diligence are studied, which means that the approaches and quality of such legal due diligence in the market differ significantly among different companies.
Legal Due Diligence creates the basis for the continuation of the acquired company or the successful completion of the transaction; allows you to bring the company activities in line with applicable law, as well as prevent possible major disputes that could lead to inevitable consequences. Of course, appropriate knowledge and experience are required to identify all risks.
Due diligence procedure
In the process of Due Diligence, experts analyze the financial and economic activities of the company, study the constituent and statutory documents, assess the project risks, its current cost, business model, financial performance, reliability of available information about the financial condition of the business, external factors affecting the company, as well as a forecast for the development and growth of the value of the company assets.
- Legal analysis begins with the collection of information.Information can be obtained from the object owner, as well as from independent sources, including insiders.Today, obtaining information is somewhat simplified, including thanks to the so-called information explosion, as a result of which such open sources of mass information as the Internet, printed sources, etc., may well become material for analysis.
- Then the information is examined.Legal analysis, being part of a comprehensive study, is quite complex in itself.In particular, issues related to property, title are subject to study;administrative and legal aspects are studied, for example, the availability of permits for the special activities of the enterprise – licenses, patents, etc.
- Finally, the report is prepared.Such a report has its own structure.Introduction, analysis, risks and conclusions – the simplest structure of a due diligence report.In the introduction, you can describe the legal basis for the audit – an agreement with the customer;documents used as the subject of analysis;regulations applied in the process of legal analysis;questions asked by the customer.