Selling your Business? Learn How an Advance Internal Legal Due Diligence Process can Greatly Enhance a Sale
By Thomas J. Walsh, Jr.
A successful business sale requires strategy, preparation and hard work. Failure to complete a deal can be devastating and create unfortunate consequences such as disgruntled employees, a damaged reputation in the marketplace and, possibly, a lawsuit with the buyer. As such, legal advisors have a responsibility to reduce and mitigate risks that can negatively impact a sale. One truly effective method to improve the likelihood of a successful transaction is to conduct an internal legal due diligence process prior to a sale. This action can pave the way for a smooth legal due diligence phase that the buyer will undertake after a letter of intent is signed.
It is not uncommon for a buyer doing its due diligence to request from the selling company an extensive list of documents and information to assess the selling company’s business. During this phase, if the buyer turns up something previously undisclosed and unexpected (e.g., the discovery of a hazardous waste spill on company property years ago), it can lead to different scenarios. The best case is that the seller is able to explain why there is no current problem and the buyer elects to move on to the next inquiry. The worst case, if it is a complicated and unresolved problem, is that it might cause the buyer to lose interest in the purchase and walk. The “in-between” case is that it is fixable within a reasonable period of time but it has the effect of creating leverage for the buyer to renegotiate the price (in a “what else have you not told me that I need to be looking out for” moment).
Selling companies can mitigate this risk by getting in front of the process and potential problems well before a letter of intent is signed. Troublesome items can be spotted and fixed while the company has time and before top executives become distracted with the closing sale process. While the best thing to do, ideally, is to take care of problem items when they surface, comprehensive pre-sale legal due diligence and follow-up remedial action can add substantial dollars to the bottom line of a sale.
Some of the things that should be reviewed include the following:
- Compliance with environmental laws in all leased and owned facilities
- Performing a UCC lien search and real estate (if part of the sale) title search and obtaining the release of any prior and now irrelevant UCC financing statements, mortgages or assignments of leases
- Verifying that all business licenses are current
- Reviewing key company contracts for assignability
- Confirming ownership of all intellectual property rights, including the works of current and former employees and consultants
- Ensuring the corporate minute books and stock ledgers are up to date and that all Secretary of the State annual reports have been filed
One important thing for company executives to keep in mind is to be candid with your advisors about any “skeletons in the closet.” It is important to admit weaknesses now and correct them in order to avoid re-trading down the line.
Thomas J. Walsh, Jr. is an Attorney and Counselor at Law at Brody Wilkinson PC. He can be reached at (203) 319-7145 or at firstname.lastname@example.org.
Copyright 2010 Thomas J. Walsh, Jr. All Rights Reserved.