Legal due diligence

Changing market conditions, expansion due to business development, or on the contrary, the intention to close the business. There are number of reasons why entrepreneurs decide to make a transaction of, accordingly, acquiring a new entity, or selling a currently conducted company.

A large number of factors that should be remembered in such a situation, cause that even the most experienced investor can have problems with an adequate assessment of the condition of the company. For this purpose, except from listening to the often-deciding voice of intuition, the best solution is to refer to the objective criteria, related to the financial parameters and the legal state of the company itself.

If you want to rest assured that the business valuation will be conducted with attention to every detail, decide to carry out the audit expertly called due diligence research.

The evaluation can take a number of forms, dependent on a role of the entity in the planned transaction, as well as the range of the factors checked. Depending on the entrepreneurs’ needs, the solutions offered on the market are mainly financial and tax services, or legal due diligence.

Acquisitions or sales of a company (enterprise) are commonly referred to as M&A transactions (Mergers and Acquisitions).

To make sure that the M&A transaction is undertaken safely, prospective acquirers have to become familiar with the condition of the acquired company (so-called target). Getting such data is getting information about the potential risks concerning the functioning of the taken entity, especially the legality of conducted activity and possible legal restrictions regarding execution of the potential transaction.

On the other hand, an adequate legal revision of a disposed company is an operation wanted from the perspective of a prospective seller, who thanks to the information obtained in this way, can properly prepare for the planned transaction. An entrepreneur will have a chance for an eventual correction of errors, preceding the process of selling, as well as will have the possibility to properly determine the value of the entity and prepare the right negotiating strategy, which considers the condition of the conducted company.

By the way, it should be noted that the planned transaction doesn’t always imply full disposal of a target. It often happens that its owners aiming at looking for the new sources of funding, pay attention to the investor, who is an external entity interested in acquiring only a part of the enterprise (or entering to collectively run a business). There is no doubt, that this type of transaction also requires the potential sides to become familiar with the condition of the acquired company.

Due diligence research is used to meet the solid familiarization with the condition of the economic entity which is the subject of the planned transaction. Due to the possibility (often the necessity) to carry out the research on various levels of types of a target’s business activity, as mentioned above financial and tax services, or legal due diligence should be brought up.

What is due diligence?

Speaking as simply as possible, due diligence in M&A transactions should be understood as a process of studying a given entity in the context of the planned transaction. Therefore, in case of legal due diligence we are talking about an analysis of the given entity with regard to the legality of its activity.

Due to the entity ordering to conduct due diligence, there should be distinguished:

• the research conducted on a potential vendor’s request (vendor due diligence – VDD)
• the research conducted on a potential buyer’s request (buyer due diligence – BDD).
   

The scope of legal due diligence

Unfortunately, it’s not easy to clearly determine the scope of the research necessary to efficiently undertake the transaction.

Properly conducted due diligence should have an individualized character, dependent on the character of the conducted business activity. Additionally, the preferences of the parties interested in a potential transaction are also very important, since any party may be interested in conducting due diligence only in a defined scope (or in more detailed evaluation of selected topics).

Corporate Advisory RSM Poland Team provides comprehensive services in the field of legal due diligence, dedicated not only to potential vendors, but also to business purchasers, covering a legal audit in the range settled with the client.

However, given the fact that the target is most commonly the entity who runs a business as a commercial company, especially in a form of a limited company (i.e., a company with limited liability, simple joint-stock company or joint-stock company) one of the core issues studied during legal due diligence by RSM Poland are so-called corporate affairs, concerning the compliance of the functioning of the company with the provisions of the Commercial Companies Code.

The research is conducted with regard to verifying:

• proper representation of a company in rights management or incurring liabilities, also proper keeping of internal documentation,
• proper contribution of partners (shareholders) and proper registration in the National Court Register all the changes concerning the target (company), including the changes in ownership structure and in company’s bodies.

These matters are fundamental for organizing the target’s activity; therefore, they are the starting point for further assessment of the correctness of its functioning.

Moreover, the most frequent topics of due diligence conducted by RSM Poland are:

• property law, with particular emphasis on analysis of the legal status of the property belonging to the company,
• labour law,
• trade agreements (including the agreements with related parties),
• intellectual property rights,
• administrative law (with particular emphasis on granted authorisations, licences and concessions),
• legal and enforcement proceedings carried out with the participation of the target (in the context of their impact on the functioning of the sold entity),

though, this list contains only the most important matters concerning the operation on the market. An entrepreneur should always remember that an effective assessment of the scope of the research each time should include the individual condition of the given entity.

Proper specifying the scope of due diligence may be very important for the transaction. On the one hand, too superficial research raises the risk of a lack of adequate familiarization with the target’s functioning, therefore it can lead to acquirer’s distrust (such a situation can often make the vendor provide additional assurances or can cause the necessity to add a significant number of objections concerning the payment of all or the part of the agreed sale price). On the other hand, specifying the scope of due diligence in a too detailed way may be excessively problematic, and consequently complicate the whole process, and can even discourage the parties from making a deal.

Why is it worth deciding on a legal audit with RSM Poland?

Proper conducting due diligence requires not only extensive knowledge, but also experience and adequate planning of the whole process. Deciding to entrust due diligence to RSM Poland, you choose:

• cooperation with the team of specialists who have extensive experience in providing comprehensive services to business entities, constantly improving their qualifications and following the changing market trends;
• our experts’ full commitment to a project;
• service fully adjusted to your individual needs and cooperation based on mutual understanding and trust;
• modern way of communication, providing the smooth and convenient exchange of information;
• possibility to cooperate with the other departments of RSM Poland to simultaneously conduct financial and tax due diligence, and if necessary, the services concerning a search for investors, as well as the assistance at the execution stage of the transaction;
• possibility to cooperate with the entity affiliated in the RSM group, one of the top advisory groups in the World.
   

The course of due diligence

Bearing in mind that due diligence serves to research the specific entity, RSM Poland team during this process relies on analysing the data on the functioning of the enterprise. Usually, regardless of the type of due diligence (VDD or BDD), the data comes from the documents and the explanations provided by the target.

Firstly, each time we prepare the list of the documents and the explanations essential for conducting the research. Then, after receiving it, the team carrying due diligence start to diligently analyse them. At this stage, depending on the agreements made by the parties, additional questions and the requests to present further documentation may arise. Moreover, received documents and the explanations are verified with the information in publicly available registers (such as the National Court Register, land registers, trademark and industrial design registers conducted by The Polish Patent Office and The European Union Intellectual Property Office – EUIPO).

Often, it is helpful to get acquainted with the register files about the company that is the subject of the potential transaction. This type of action is undertaken by the RSM Poland team especially in the case of difficulties in obtaining the specific information directly from the entity examined.

There, it should be indicated, that in the era of computerization, to ensure the effective exchange of information, a practical solution is to create a VDR platform (Virtual  Data Room), thanks to which the representatives of the disposed entity provide the RSM Poland team conducting due diligence with access to all the required documents and information.

The final effect of the analysis conducted, is a proper report, of which the scope and the editing depend on the agreements made with the client. In practice, the most frequent solution used by RSM Poland is to prepare a comprehensive report covering the practical and transparent recognition of the research results, containing both descriptive elements and pointed distinction of the most important topics.

This form of providing information is most frequently recommended due to practical reasons, depending on the circumstances or client’s individual preferences, we are ready to prepare a report of only descriptive character or a report of only point character in which we will only point the most important risks identified during the research (so-called red flag report).

Our offer of legal due diligence

Bearing in mind the aim of conducting legal due diligence, we are ready to prepare an offer adjusted to your individual needs, in the case of both, the planned disposal (VDD) or acquiring (BDD) the target.

The scope of the research and the type of the report (also the way of calculating the remuneration for the services provided) each time is discussed with the client. Our goal is to recognize your expectations and, if necessary, suggest the optimal solutions with regard to the planned transaction, which will allow the effective conducting of the whole process.

We provide services in the Polish language, as well as in the English language.

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