Due Diligence - Explained
What is Due Diligence in an Equity Funding Deal?
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What is Due Diligence?
The due diligence process is where investors (mainly through there representatives) do a thorough inspection of the startup venture. The purpose is to verify the information supplied by the entrepreneurs and to identify any points of risk in investing in the firm. The extent of diligence varies depending on the stage of company development. In early-stage companies there is generally very little diligence, while later stage companies go through significant diligence.
Back to: Business Transactions
How does Due Diligence Work?
The party selling their business venture is expected to confirm a certain thing including financial records, viable planning, legal compliance etc., before entering an agreement, this is known as due diligence.
Due diligence can also refer to the sellers investigation prior to finalizing a deal with a buyer. The seller needs to know whether the buyer has the adequate fund to complete the transaction. He would also like to confirm a certain thing which might affect the seller or purchased entity after the acquisition.
Due diligence is not always a legal obligation, rather it refers to the voluntary investigation carried out by the parties involved in a transaction. Equity research analyst, fund managers, broker-dealers and investors perform due diligence in investment world, companies making an acquisition and venture capitalists investing in a startup are also expected to perform this investigation before finalizing the agreement. Individual investors are not legally obligated to perform due diligence but are recommended to, on the other hand broker-dealer are obligated by law to perform due diligence of a security before selling it.
In the U.S. the Securities Act of 1933 makes it mandatory for all the security dealers to disclose all the material information regarding security to a prospective buyer. Failing to do so is considered to be a criminal offense under this Act. Although, the Act also makes sure the security dealers and brokers do not face an unfair prosecution for not knowing an information about the security. They are obligated to perform due diligence before selling the equities of a company and disclose the information fully to the prospective investors, but they are not accountable for any information that they didn't find in due diligence process.
Back to: Entrepreneurship
A Due diligence meeting is a standard part of an Initial public offerings.
An underwriter needs to make sure that all the pertinent material information regarding the securities are disclosed to the potential investors. The underwriters, issuer and all other concerned individuals including syndicate members and attorneys meet before issuing the final prospective to confirm that the due diligence process prescribed under state and federal securities laws, is properly followed by the issuer and underwriter.
The due diligence process includes multiple steps of investigation in order to get a complete picture before taking the final call. It involves analyzing the total valuation of the company, examining the revenue, profit and margin trends, looking into the competitors, investigating valuation multiples, balance sheet examination, analyzing stock price history, considering stock options and dilution possibilities and inspecting long and short term risks.
The due diligence process also looks into the management and share ownership of the company and Wallstreet analysts consensus for earning growth, revenue and profit estimates of the company for next two-three years.
Areas Reviewed During Due Diligence
The areas of review are:
While the entrepreneur and investor must be aware of the diligence matters, the actual inspection should primarily be conducted by professionals (attorneys, accountants, and technologists). These individuals can do a far superior job in identifying the potential pitfalls or areas of risk. Below will provides some key points of research into each of these ares.
What is Financial Due Diligence
- Income Statement, Cash Flow Statement, and Balance Sheet - In early-stage firms, these documents can be very rudimentary. In any event the investor will verify ownership of assets and assess accounts receivable.
- Financial Projections - An accountant will compare the revenue and cost projections with the operational requirements. The purpose is to make certain that the cost projections match the necessary operational expenses associated with growth. Often there will be company, market, and economic risks associated with the operations that must be considered. Lastly, it will focus on the expectations for funding demand and the expected sources of capital.
- Capital Structure - What is the ownership structure and what effect does it have on the equity value of the company. This will include any debt instruments and their limitations on the company.
- Tax & Reporting Compliance - Has the company complied with all taxation and regulatory filing requirements. Are the tax filings accurately and appropriately executed.
What is Operational Due Diligence?
- Product/Service Review - Review the market trends and characteristics for the product or service being delivered.
- Customers, Suppliers, Purchasers, Partners - Review for any vulnerabilities in operational relationships.
- Competitive Analysis - Review of the operational characteristics of the firm in comparison to competitors in the market.
- Marketing and Sales Channels - Review of efficiency and vulnerabilities in the marketing and sales process. This may include a comparative analysis of compensation structure for internal and external sales units. This will include an analysis of the method for driving new customers/clients.
- Research and Development - Technically proficient individuals will review the intellectual property and R&D for feasibility and potential in the market.
- Management & Personnel - Review the corporate organization structure and the roles of individuals in the organization. This may include identifying performance of key individuals and the identification of indispensable parties. It will further outline the ownership and compensation structure of these individuals.
What is Legal Due Diligence?
- Corporate Governance Matters - Has the company complied with all corporate governance processes and procedures?
- Litigation - What litigation is pending by or against the company?
- Regulatory Environment & Compliance - What regulatory issues is the company facing. Most commonly, this may include tax, securities, environmental, and employee-labor compliance.
- Intellectual Property - Are the intellectual property rights secured in the company. How strong are the intellectual property rights?
- Insurance - What events are insured or bonded and where are the holes or risks in coverage.
Due Diligence Checklist
1. Corporate Structure & General Matters
- How and where are you organized?
- Who are the owners? Managers?
- What is their interest or capital structure? Any non-vested ownership?
- Are there any ownership agreements in place between the owners?
- Any dissents or issues with sale?
- Do you have records of all business actions taken? (Meeting minutes)
Need a list of current, existing assets:
- Inventory stock;
- Real estate/Leases;
- Equipment owned/leased;
- Technology owned/leased; and
- Research and development.
3. Intellectual Property/Licenses
- Have you filed for Trademark, Design Patent, Copyright Protections?
- Do you own your domain name/social media handles?
- Any trade secrets (processes, client lists, key connections, etc.)?
- Any IP notices, claims, or litigation?
- Any liens or encumbrances on IP?
4. Financial Performance
Copy of your financial statements?
- Revenue, fixed costs, variable costs – Past 5 years?
- Existing Assets/Accounts Receivable and Debts/Accounts Payable
- Owner distributions over past 5 years.
Production/Marginal Costs on item production?
- Line sheets for products and prices?
- Company lines of credit
D&B number – Company credit rating
Do you have your Federal, state, local, and foreign income, sales, and other tax returns filed in the last five years?
Is there any deferred profits or loss carryforwards?
Has there been an IRS audit?
Have there been in special allocations that need substantiation?
Has there been compliance with all employee withholdings?
Do you have retirement plans in place? (If so, IRS Form 5500 for 401(k) plans)
6. HR Issues
Any human resources issues?
- Unemployment filing,
- Worker’s Comp?
Need a list of all contracts in place.
- Customer and supplier contracts;
- Schedule of accounts receivable and payable;
- Guaranties, loans and credit agreements;
- Internal Agreements/ of partnership or joint ventures
- Equipment leases;
- Settlement agreements;
- License Agreements (IMPORTANT)
- Distribution, dealer, sales agency or advertising agreements;
- Employment Contracts
- Loan guarantee agreements
Disclose any litigation or potential litigation.
- Current actions,
- Demand letters,
- Cease and desist letters,
- Collection actions