In any transaction, whether acquiring a business, a set of business assets, or shares in a company, it is critical to understand what you are buying and the risks that come with it. Failing to do so can lead to costly surprises long after settlement, which is why transaction due diligence plays such a critical role in mergers and acquisitions.
Due diligence is a structured and strategic process designed to identify, assess and, where possible, mitigate the legal, regulatory, financial, and operational risks associated with a potential acquisition. When undertaken properly, due diligence enables buyers to make informed commercial decisions, balance risk, and implement strategies to mitigate unknown or underestimated liabilities.
1. Building a robust due diligence framework
Effective due diligence is tailored to the target business and industry, and requires asking the right questions at the outset and seeking substantive evidence from a Seller. It allows buyers to evaluate:
- Whether identified risks impact the viability or structure of the transaction
- How due diligence findings might affect the purchase price or valuation
- What conditions precedent may be needed before the transaction completes
- What Seller warranties or indemnities are required to allocate risk appropriately
2. Asking the right questions
Key areas of focus typically include regulatory compliance, tax, litigation and disputes, material commercial arrangements, and regulatory engagement. Buyers should also pay close attention to several commonly under appreciated risk areas:
Scope of assets
Understanding what assets are owned and used in the business (as opposed to leased), what assets are proposed to be sold (as opposed to anything excluded or to be retained by the Seller), and whether there are any encumbrances or third-party rights affecting them.
Disputes and litigation
Identifying all pending, threatened or historical litigation, disputes, or material complaints that may give rise to liability or reputational damage.
Commercial arrangements
Examining service agreements, side arrangements, or non standard contracts that may not be immediately apparent from core transaction documents or which might have assignment consent requirements.
Regulatory engagement
Obtaining copies of correspondence, advice, investigations, or enforcement actions involving regulators or government authorities, such as ASIC, the ACCC, local councils, or industry specific licensing bodies.
Intellectual property
Identifying relevant intellectual property ownership and registration, as well as any IP related risks, for example with respect to licensed IP or potential infringement.
Compliance
Reviewing evidence of regulatory compliance, internal policies and procedures, and the validity of business or industry specific authorisations held.
Tax
Thoroughly reviewing a target’s tax position can reveal hidden liabilities which may transfer to a buyer, impact the structure of a deal, and influence both purchase price and post-completion considerations.
Inquiries will often uncover issues which might not be immediately apparent, but which could significantly affect the risk profile associated with a potential acquisition.
3. Mitigating Risks
It is not uncommon for due diligence to reveal areas of concern. The key is determining how best to address them within the transaction structure. Depending on the nature and severity of the issue, buyers may consider a number of potential responses.
Conditions precedent
Certain risks can be managed by requiring issues to be resolved before completion. For example, making settlement of a dispute, remediation of a compliance breach, or a satisfactory regulatory outcome a condition precedent to closing.
Asset purchase versus share purchase
Where a target has historical or contingent liabilities which are identified during due diligence (for example, with respect to tax liabilities), it may be preferable to acquire specific business assets rather than the company itself, limiting exposure to such liabilities, which will remain with the Seller.
Purchase price adjustments
Identified risks may warrant a reduction in or adjustment to the purchase price to reflect diminished value of the business/company, liabilities assumed by the buyer, or the cost of managing or rectifying the issue post completion.
Warranties and indemnities
Warranties and indemnities are a contractual way to manage risk and where appropriate, allocate it to the Seller. However, often warranties and indemnities will be qualified by what the Seller has told you, and are only as valuable as the party standing behind them. That is, if you have to make a warranty or indemnity against the Seller, will they still have assets or financial ability to meet such claim, or will the sale proceeds already have been distributed out of the Seller entity?
4. Using due diligence as a commercial tool and how Russell Kennedy can help
Due diligence is not about derailing transactions, it is about understanding and addressing risks to facilitate a smoother acquisition. When approached strategically and with the right advice, it provides valuable leverage in negotiations, informs transaction structuring, and helps ensure that risk is identified, priced, and allocated appropriately in order to avoid costly surprises post-completion.
At Russell Kennedy, our M&A team works closely with clients to design and implement tailored due diligence strategies that align with commercial objectives and risk appetite, with a focus on practical and effective solutions to risks identified. If you are considering an acquisition, investment or business purchase, please contact our Mergers and Acquisitions team to discuss how we can support your next transaction.