Due Diligence Checklist: What You Need to Know

Acquiring a company, whether through a sale or merger, represents a pivotal moment in the evolution of a business. Yet while any new acquisition holds great promise in terms of growth and opportunities, these transactions can also expose the acquiring business to big problems.

Balancing the rewards and risks inherent in such an undertaking requires a thoughtful and intentional approach to due diligence. To help with this process, we have crafted a checklist designed to drive prudent decision-making.

What is a Due Diligence Checklist?

A due diligence checklist is a way to analyze a company that you are acquiring through a sale or merger.

In the context of an M&A transaction, “due diligence” describes a thorough and methodical investigation and assessment. It scrutinizes every facet of a target company's key operations, finances, legal standing and more. The process of due diligence ensures that potential acquirers gain an accurate and complete understanding of a company. It helps evaluate a company's strengths, weaknesses, risks, and opportunities.

The creation of a due diligence checklist provides the detailed roadmap required to guide such an extensive analysis. Businesses preparing to expand their footprint through an M&A transaction should not view the due diligence checklist as a simple formality. Instead, it is a strategic imperative that can mean the difference between a successful undertaking and a costly setback. A setback can have far-reaching negative consequences for both the acquirer and its target.

So what should a comprehensive due diligence checklist cover? Let’s take a closer look at the necessary steps for conducting due diligence.

Step 1: Legal and Regulatory Due Diligence

Legal and regulatory due diligence aims to thoroughly examine the legal and compliance aspects of the target company. This stage of the due diligence process ensures that the acquiring party is fully aware of any potential legal risks, obligations, and liabilities. It also helps inform the negotiation and decision-making process.

This component of a due diligence checklist should encompass:

• Company Structure and Legal Standing
  Verify the existing legal entity of the target company to ensure compliance with all applicable laws. This involves a thorough examination of its articles of incorporation, bylaws, certificates of good standing, and any changes in legal structure over time.
• Contracts and Agreements
  Examine each of the targeted company’s contractual relationships including agreements with customers, suppliers, partners, employees, and third parties, to assess their terms, obligations, and potential risks.
• Intellectual Property (IP) and Trademarks
  Evaluate all IP assets, including patents, trademarks, copyrights, and trade secrets, to confirm ownership, validity, and potential infringement issues.
• Regulatory Compliance and Permits
  Review all regulatory obligations, licenses, permits, and certifications required for the target company's operation, with an eye toward identifying any potential violations or non-compliance with industry-specific regulations.
• Litigation and Legal Disputes
  Conduct a comprehensive analysis of ongoing and past litigation, disputes, and regulatory actions to identify potential financial exposure and reputation risks.
• Environmental and Sustainability Concerns
  Examine environmental assessments and compliance with environmental regulations to determine if the target company is operating in an environmentally responsible manner.
• Data Privacy and Security
  Evaluate the target’s data protection and cybersecurity measures to ensure compliance with applicable data privacy laws and identify potential vulnerabilities.
  
  

Step 2: Financial Due Diligence

The primary objective of financial due diligence is to assess the accuracy, reliability, and sustainability of the target's financial data. It also identifies potential financial risks and opportunities. This process provides the acquiring party with a clear picture of the target's financial health and performance, enabling informed decision-making and negotiation.

Areas to target for scrutiny in the due diligence checklist should include:

• Historical Financial Statements
  Conduct a thorough review of the target company's historical financial statements, including income statements, balance sheets, and cash flow statements. Use audited financial statements to assess past financial performance and trends.
• Revenue and Expense Analysis
  Examine all sources of revenue, sales contracts, pricing strategies, and expense breakdowns to understand what’s driving the target’s financial results.
• Assets and Liabilities Review
  Assess the valuation and condition of assets such as property, equipment, inventory, and intangible assets. Identify all liabilities, including debt, outstanding loans, and contingent liabilities.
• Taxation and Tax Compliance
  Scrutinize the target's tax obligations, tax returns, and potential tax risks to ensure compliance with tax laws and regulations. Identify any tax contingencies or pending audits.
• Debt and Financing Agreements
  Review existing debt agreements, financing arrangements, and related terms to better understand the target's capital structure, repayment obligations, and potential financial constraints.
• Working Capital Analysis
  Evaluate the target's working capital management, including accounts receivable and accounts payable, to assess the efficiency of its operations.
• Financial Projections and Assumptions
  Evaluate all financial projections or forecasts provided by the target company. Look for reasonableness, accuracy, and alignment with historical data and industry trends.
• Cash Flow Analysis
  Review cash flow generation, cash conversion cycle, and liquidity position. Determine the target’s ability to meet financial obligations and support future growth.

Step 3: Operational Due Diligence

This section of a due diligence checklist should allow for a comprehensive evaluation of the target's core business operations. It should evaluate internal processes, supply chain, technology infrastructure, human resources, and other operational elements. The goal is to identify any operational strengths, weaknesses, risks, and opportunities that may impact the success of the acquisition and subsequent integration efforts.

Key components of this process include:

• Understanding Business Operations
  Gain a comprehensive understanding of the target company's core business operations, including products, services, customer base, geographic presence, and industry positioning.
• Assessing Internal Processes
  Examine the target's internal processes and workflows to identify efficiency levels, bottlenecks, and potential areas for improvement. This requires an in-depth analysis of key business functions such as production, sales, marketing, and customer service.
• Supply Chain Evaluation
  Assess the target's supply chain management, including suppliers, vendors, distribution channels, and inventory management practices to identify potential risks and vulnerabilities.
• Technology Infrastructure
  Review the target's technology systems, software applications, data management practices, and IT infrastructure. Gauge their effectiveness, security, and compatibility with the acquiring company's systems.
• Health and Safety Compliance
  Examine the target's health and safety practices. Ensure compliance with relevant regulations and assess the potential impact on employee well-being and operation.
• Cultural Fit and Integration
  Consider the cultural alignment between the acquiring and target companies by evaluating the compatibility of values, management styles, and employee engagement.

Step 4: Commercial Due Diligence

The various components of commercial due diligence allow the acquiring company to gain a comprehensive understanding of the target company. It provides insight into market position, competitive landscape, customer relationships, sales strategies, and growth prospects. Once complete, stakeholders should have a clear picture of the target's market dynamics, revenue-generating capabilities, and potential for future success and growth.

This stage of due diligence should involve:

• Market Analysis and Industry Trends
  Conduct a thorough analysis of the target company's industry, market trends, growth drivers, and competitive forces to understand market size, segmentation, and projected growth rates.
• Competitor Analysis
  To better understand the target’s competitive advantages and challenges, assess the competitive landscape by identifying key competitors, their strengths and weaknesses, market share, and positioning.
• Customer and Client Contracts
  Review existing customer contracts and relationships to assess customer concentration, contract terms, renewal rates, and potential revenue risks, and to gain insight into customer satisfaction and loyalty.
• Sales and Marketing Strategies
  Evaluate the target's sales and marketing strategies, including pricing, distribution channels, and branding. Review their effectiveness and alignment with market trends.
• Product and Service Portfolio
  Examine the target company's product or service offerings to gauge differentiation, innovation, and relevance in the market. Look for any potential gaps or opportunities for expansion.
• Revenue Model Assessment
  Conduct a detailed examination of the target's revenue sources, revenue streams, and its revenue model. Assess recurring revenue, one-time sales, and potential upsell or cross-sell opportunities.
• Market Entry and Expansion Strategies
  If relevant, evaluate the target's strategies for entering new markets or expanding to new locations. Look for associated risks and growth potential.

Step 5: Human Resources Due Diligence

This comprehensive analysis of a target's human resources policies, procedures, contracts, culture, and talent management strategies allows stakeholders to better assess the acquisitions’ impact on the workforce, identify potential HR-related risks, and ensure a smooth transition for employees during and after the acquisition.

The main components of human resources due diligence include:

• Organizational Structure and Leadership
  Review the target company's organizational chart, reporting lines, and leadership team members, including management roles, key executives, and their responsibilities.
• Employee Contracts and Agreements
  Review all employment contracts, offer letters, non-compete agreements, and other employment-related documents. Assess terms, obligations, and potential liabilities. Pay particular attention to executive contracts and key employee retention plans.
• Employee Benefits and Compensation
  Conduct a detailed analysis of employee benefit plans, including health insurance, retirement plans, stock options, stock purchase agreements, and other incentives to understand the total compensation package the target offers employees.
• Labor Agreements and Union Relationships
  Review any labor agreements, collective bargaining agreements, and relationships with unions to assess potential labor-related risks and obligations.
• HR Policies and Procedures
  Evaluate the target's human resources policies and procedures, including recruitment, performance management, training, and employee development. Evaluate their alignment with industry best practices and legal compliance.
• Workforce Composition and Talent
  Analyze workforce compensation, employee demographics, skill sets, and talent retention strategies. Determine the potential impact of the acquisition on human capital.
• Cultural Assessment
  Gain an understanding of the target company's organizational culture, values, and work environment to assess cultural fit and potential integration challenges.
• Employment Compliance
  Review employment-related compliance matters, including labor laws, anti-discrimination regulations, workplace safety, and any pending or historical employment-related litigation.

Step 6: Real Estate and Asset Due Diligence

It's important to assess the quality, condition, ownership, and potential risks associated with real estate holdings, properties, and other valuable assets. This phase of the due diligence process ensures the acquiring party has a clear understanding of the target's asset portfolio and any related obligation.

This section of the due diligence checklist should include:

• Valuation of Tangible Assets
  Obtain appraisals of real property, equipment, machinery, inventory, and other physical assets to determine their fair market value. Assess each asset's contribution to the overall transaction value.
• Lease Agreements and Rental Income
  Review the target’s real estate properties and lease agreements. Assess rental income, terms, options, and potential risks associated with these agreements.
• Environmental Site Assessments
  Evaluate the presence of hazardous materials and compliance with environmental regulations. Ascertain any potential environmental risks and liabilities associated with the target's real estate holdings.
• Infrastructure and Facility Condition
  Conduct physical inspections to assess the condition, maintenance, and operational status of the facilities. Inspect the target’s buildings, facilities, equipment, and other tangible assets. Identify any maintenance needs or upcoming capital expenditures.
• Liabilities and Obligations
  Review existing obligations related to real estate properties. Review mortgages, liens, property taxes, utility payments, and maintenance agreements to assess any potential financial liabilities.

Step 7: IT Systems and Digital Security Due Diligence

This phase of the due diligence process focuses on assessing the target company's information technology infrastructure, systems, data security, and cybersecurity measures. The goal is to identify potential IT-related risks, vulnerabilities, and compliance issues that could impact the security of sensitive data, the continuity of operations, and the success of the integration process.

When developing this section of the due diligence checklist, the acquiring entity’s team should focus on:

• Inventory of IT Systems and Software
  Create an inventory of the target company's IT systems, software applications, databases, networks, servers, and hardware. Determine the complexity of the IT environment.
• Data Security and Privacy Measures
  Review the target's data security and privacy practice. Evaluate the protection of sensitive information. Review compliance with data protection regulations and the adequacy of data breach prevention measures.
• Cybersecurity Vulnerability Assessment
  Conduct a comprehensive assessment of the target's cybersecurity posture. Identify potential vulnerabilities, threats, and weaknesses that malicious actors could exploit.
• Disaster Recovery and Business Continuity Plans
  Evaluate the effectiveness of disaster recovery and business continuity plans. Determine the target's readiness to handle disruptions, data loss, or other IT-related emergencies.
• IT Compliance and Regulatory Adherence
  Evaluate the target IT systems and practices for compliance with industry-specific regulations, data protection laws, and other relevant IT-related standards.
• Technology Infrastructure Integration
  Assess the compatibility of the target's IT infrastructure with the acquiring company's systems and technology stack, identifying potential integration challenges.
• Software Licensing and Contracts
  Review all IT systems and software licenses, contracts, and agreements to ensure proper ownership, compliance, and adherence to licensing terms.
• Employee IT Training and Awareness
  Evaluate the level of employee training and awareness related to IT security and best practices. Gauge the target's commitment to a strong cybersecurity culture.

Acquiring or buying a business is an enormous undertaking that requires a high degree of due diligence. It is essential to mitigate risk and ensure successful integration with the acquiring company.

Axiom offers access to the world’s deepest bench of on-demand legal talent. We can help your team tackle your due diligence checklist. Our bench includes hundreds of M&A lawyers with extensive experience supporting mergers, acquisitions, divestitures, strategic investments, and joint ventures.

Find an experienced M&A lawyer now or get in touch to learn more about how we can help.

Axiom is not a law firm and does not provide legal advice. Our clients' legal teams supervise the legal work of the Axiom lawyer.

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