How many times have you heard about acquisitions that went bad shortly after the deal was signed?
If you are thinking about buying or selling a business or investing in one, you want to make sure it doesn't happen to you.
This is why we always discuss Investigating before Investing. Either you Investigate now or you litigate later.
The best way to protect yourself is to do enough "due diligence" to ensure that you know what you are buying or investing in.
What is due diligence?
Due Diligence is really a form of risk management most commonly known as doing your homework before you invest. "We want to make sure we believe the story before we invest."
The Due Diligence Check List and Investigative Due Diligence
There are a number of forms of Due Diligence. The most common form of Due Diligence is that of the "Due Diligence Check List."
This is a checklist which a corporate lawyer will request that the seller complete prior to closing or making the investment on behalf of the client.
This can be a very small list, or in some situations the check list can be very lengthy and exhaustive. In some cases the list can be up to 100 pages of items to be provided before closing.
Here are just a few examples that might be found on a standard due diligence check list:
Standard Due Diligence Check List
What You Should Be Asking For?- Letters from Provincial/Federal/State/County government confirming that all tax returns are filed to date with no arrears owing (i.e. payroll, sales tax, health tax and taxes from year-ends).
- Articles of Incorporation.
- Minute Books.
- Shareholder Agreements.
- All Tax Returns Filed To Date.
- All Year-end Reports To Date.
- External and Internal Auditors Reports.
- Letters of verification confirming that all Provincial/Federal/State/County taxes have been paid.
- Letter from Commercial Landlord confirming lease terms and no arrears.
- Powers of Attorney.
- Government licenses, permits, approvals etc.
- Litigation/Execution confirming no judgments, pending or threatened litigation, claims or disputes.
- Listing of outside contractors.
- Loan agreements, lines of credit, debt instruments, notes payable, guarantees (by or in favor of the company), and any other agreements collateralized or secured by the assets.
You may wish to obtain more information on your due diligence check lists, we have a number of samples. Alternatively, it is really best to consult a corporate lawyer.
Investigative Due Diligence
Investigative Due Diligence is a whole different ball game. It is in fact a background investigation on the individual and/or the company.
Investigative Due Diligence can be conducted with or without the knowledge of the individual or the company being investigated. This is your decision to make.
It is perfectly lawful for you to retain an investigation company to conduct a background investigation without anyone knowing about it.
You must first make a decision whether you want to have the owner or the company investigated, or both. Our position is to always do both.
The Owner Of The Company
If you are investing funds in a company, it is the owner(s) who will be responsible for how the funds are spent within the company.
What happens if the owner is in great financial difficulty?
What if there are outstanding lawsuits, judgments, child support obligations and credit card debts? Where do you honestly expect the invested funds to end up first?
The owner may have told his or her outstanding creditors that payment would be resolved once company financing is in place. This could suggest that much of the funds invested will go to paying off personal debts instead of using the funds to expand the company as proposed in the business plan.
In many cases where troubled companies are looking for capital, the owners have exhausted much of their personal reserves. You can expect that paying off personal debts will happen in most of these situations. It is important, however, to know just how bad the debt situation is.
We need to get a rough idea just how much of the investor's money will actually make it into the company.
We also want to find out as much as possible about the past tactics of the owner.
- Have there been other companies owned by this individual that have gone bankrupt shortly after financing was obtained?
- Are there any old or current lawsuits against the owner or the company?
- Has the owner ever been bankrupt?
- Can this owner be trusted ?
- What kind of person is he?
- Does he get on well with employees and managers?
- Is he a proven leader with vision?
- Has this person ever been written up in the media, a trade journal, or an industry publication? Was it a good or bad article ?
- Where does he live? What kind of car does he drive? How much money does he have in the bank? What is the status of the mortgage on his home?
In a recent reported case an owner who had obtained financing for his company was deeply indebted to creditors. The owner did everything possible to get money out of the company and into his pocket.
Numerous fictitious invoices and companies had been created by the owner. The owner wrote cheques to these companies which appeared on the books as nothing more than valid business expenditures.
Thousands went into his pocket through one company name or another. It is the oldest trick in the book.
(Credit Searches, Criminal Records & The Law)
The Controversial Stuff
Two very important investigations to conduct on the owner, in the background stage, are a credit search and a criminal record search.
The credit search is important because it will yield information about the balance on credit cards, collection matters, previous addresses, past employment, the works.
Credit Searches
The Fair Credit Reporting Act (USA), and the
Consumer Reporting Act (CAN) make it illegal for anyone to conduct a credit search on an individual without their consent. This means that you will have to advise the owner that you wish to conduct a credit search on him or her or you will not invest.
Just like applying for a loan, it is expected that a credit search will be conducted. It is best for you to draw up a simple written authorization and have the owner sign it. This is a very important search in the investigative due diligence process.
Criminal Record Searches
The law in regard to criminal record searches varies from state to state in the United States. In Canada it is not public record so it is completely illegal for you to obtain a criminal record search on an individual without their consent.
If the owner resides in a location where criminal record information is not public record, you are going to have to instruct the owner to go out and obtain his or her own Certificate of Non-Conviction from their local police station. How to obtain this document will vary from county to county. Inquiries will have to start at your local police division.
If an owner should refuse to give consent in these two areas, your alarm bells should start ringing.
There may very well be a skeleton in the closet.
Unlike the employee and employer relationship, in most investment situations you have the right to refuse to invest for any reason; you may not even have to give a reason at all.
