1 Due Diligence - An Overview

Transcription

1 Star Rating On the basis of Maximum marks from a chapter On the basis of Questions included every year from a chapter On the basis of Compulsory questions from a chapter Nil Nil Nil 1 Due Diligence - An Overview This Chapter Includes : Introduction; Nature; Needs objectives; Scope; Type of Due diligence; Factors; Stages/Process of due diligence. Marks of Short Notes, Distinguish Between, Descriptive & Practical Questions SHORT NOTES Dec [7] (b) Write notes on the following: (ii) Remedial actions to overcome hurdles in carrying out a due diligence. Actions to break hurdles in due diligence are as follow: (i) Focus on follow up questions. (ii) Ask several people the same questions and utilise appropriate professional Question upto June 2005 are from CS Inter Gr. II Old Course and From June 2009 onward are from CS Professional Programme New Course. Q&A-7.11

2 Q&A-7.12 O Solved Scanner CS Prof. Prog. M-IV Paper 7 (iii) (iv) acumen. Polite persistence may help to overcome this attitude. Independent check with regulatory authorities. Considering this hurdles, it is advisable to insert the necessary disclaimer clauses in the due diligence report Dec [7] Write notes of the following: (iv) Documents to be checked in due diligence process Answer: The following are the few types of information or documents to be checked, during the process of due diligence: (i) Basic Information (ii) Important Business Agreements (iii) Financial Data (iv) Marketing Information (v) Litigation Aspects (vi) IPR Details (vii) Taxation aspects (viii) Internal control system (ix) Human resources aspects (x) Insurance coverage (xi) Cultural aspects (xii) Environmental impact DISTINGUISH BETWEEN June [2] (c) Distinguish between the following : (i) 'Due diligence' and 'audit', (3 marks) Due Diligence and Audit Audit Due diligence Limited to financial analysis Includes not only analysis of financial statements, but also business plan, sustain ability of business, future aspects, corporate and managements structure, legal issues etc. Based on historical data Mandatory Covers future growth prospects in addition to historical data. Mandatory based on the transaction

3 [Chapter 1] Due Diligence... O Q&A-7.13 Positive assurance i.e. true and fairness of the financial statements Post mortem analysis Always uniform Recurring event Negative assurance i.e. identification of risks if any It is required for future decision Varies according to the nature of transaction Occassional event June [7] (b) Distinguish between the following: (i) Operational due diligence and strategic due diligence. (a) Operational due diligence : operational due diligence aims at the assessment of the functional operations of the target company, connectivity between operations, technological upgradation in operational process financial impact on operational efficiency etc. it also uncovers aspects on operational weakness, in adequacy of control mechanisms etc. (b) Strategic due diligence : strategic due diligence tests the strategic rationale behind a proposed transaction and analyses whether the deal is commercially viable, whether the targeted value would be realized. If considers factors such as value creation opportunities, competitive position critical capabilities Dec [7] (a) Distinguish between the following : (ii) Physical data room and virtual data room. (A) (B) (C) Particulars Physical Data Room Virtual Data Room (a) From of Papers, files, Electronic or document boxes or any soft copies of tangible thing documents including video or audio (b) Time Longer time Shorter time required required required for creation of data room (c) Cost High cost Low cost (d) Convenience Less convenient More convenient (e) Accessibility Restricted Any to data time time room (f) Facility to Not there Access can be

4 Q&A-7.14 O Solved Scanner CS Prof. Prog. M-IV Paper 7 restrict restricted access of document access (g) Ability to Possible Not possible copy documents DESCRIPTIVE QUESTIONS June [4] (b) Give the illustrative clauses in respect of `due diligence certificate' by book running lead manager. (7 marks) DUE DILIGENCE CERTIFICATE BY BOOK RUNNING LEAD MANAGER : Where the Public Issue of a Public Limited company is made through the route of Book Building for a portion there of, one of the Merchant Banker(s) to the issue shall be nominated by the issuer company as a book runner and their names will be mentioned in the prospectus. They are called the Book running lead Managers. In the case of a normal issue without book building the lead manager has to furnish to the SEBI along with a copy of the draft offer documents, a due diligence certificate in accordance with SEBI (Merchant Bankers) Regulations, This certificate is intended to ensure that all relevant disclosures required for investors protection have been made and all legal and other requirements have been complied with. The clauses of the due diligence certificate would contain the following. 1. That the lead Merchant Bankers have examined the various documents including those relating to litigation like commercial disputes, patent disputes, disputes with collaborators etc. and other materials in connection with the finalisation of draft prospectus, draft offer documents pertaining to the said offer. 2. That on the basis of such examination and discussions with the issuer its directors and other officers, other agencies, independent verification of statements concerning the objects of the offer, project profitability, price justification and the contents of the documents mentioned in the annexure and other papers furnished by the issuer, confirming that : (a) The Draft prospectus/letter of offer forwarded to SEBI is in confirmity with the documents, materials and paper relevant to the issue. (b) All the legal requirements connected with the said issue and the Guidelines, instructions etc. issued by SEBI, the Government and any other competent authority in this behalf have been complied with and.

5 [Chapter 1] Due Diligence... O Q&A-7.15 (c) The disclosure made in the Draft prospectus/letter of offer are true fair and adequate to enable the investors to make a well informed decision as to the investment in the proposed issue. 3. That they confirm that besides themselves, all the intermediaries named in the prospectus/letter of offer are registered with SEBI and till date such registration is valid. 4. That they have satisfied themselves about the work of the underwriters to fulfill their underwriting commitments. 5. That written consent from share holders has been obtained for inclusion of their securities as part of promoters contribution subject to lock in and the securities proposed to form part of promoters contribution subject to lock in, will not be disposed/sold/transferred by the promoters during the period starting from the date of filing the draft prospectus with the Board till the date of commencement of lock - in period as stated in the draft prospectus June [7] (b) What is meant by 'due diligence'? How does a merchant banker perform due diligence of a prospective IPO client? Due Diligence : Due Diligence is the industry jargon for all the activities that are associated with evaluating a proposal. It includes carrying out reference checks on the proposal related aspects. The Lead Merchant Banker is responsible for verification of the contents of a prospectus or the letter of offer in respect of an issue and reasonableness of the views expressed therein and to submit to SEBI at least 2 weeks prior to the opening of the issue for subscription, a due diligence certificate in the prescribed form confirming that the draft prospectus/letter of offer forwarded to SEBI is in conformity with the documents. materials and papers relevant to the issue, that all the legal requirements. connected with the said issue have been duly complied with and that the disclosure made in draft prospectus/letter of offer are true, fair and adequate to enable the investors to make a well informed decision as to the investments in the proposed issue. Merchant Banker examines various documents including those relating to litigation like commercial disputes, patents disputes, disputes with collaborators etc. and also discuss with the company its directors and other officers and other agencies on matters including objects of the issue, projected profitability, price justification etc. before giving the Due Diligence Certificate June [2] (b) Write a note on 'intellectual property due diligence'. Intellectual Property due diligence :

6 Q&A-7.16 O Solved Scanner CS Prof. Prog. M-IV Paper 7 Concept of valuation of intangible assets related to Intellectual Property like Patents, Copy rights, Design, trademarks, brands etc., also getting greater importance as these. Intellectual properties of the business are now often sold and purchased in the market by itself, like any other tangible assets. The objectives of intellectual property due diligence is to ascertain the nature and scope of target company's right over the intellectual property, to evaluate the validity of the same and to ensure whether there are no infringement claims June [3] (c) Explain the following terms used in due diligence report (i) Deal breakers (ii) Deal diluters. (2 marks each) (i) Deal Breakers : In the report the findings can be very glaring and may expose various non - compliance that may arise - any criminal proceedings for known liabilities. (ii) Deal Diluters : The findings arising out a diligence may contain violations which may have an impact in the form of quantifiable penalties and in turn may result in diminishing the value of company June [8] Critically examine and comment on the following: (i) A key step in any due diligence exercise is to develop an understanding of the purpose for the transaction. The Statement is correct. The nature of due diligence varies from the type of transaction, its volume, the motive and objective of parties to a transaction. The nature and the extent of due diligence depends upon the risk perceived by parties to a transaction. The scope of due diligence is transaction based and is depending on the needs of the people who is involved in the potential investments, in addressing key uncovered issues, areas of concern and in identifying other opportunities. The goal of due diligence is to provide the party proposing the transaction with sufficient information to make a reasoned decision provide a basis for determining the appropriate terms and price for the transaction incorporating consideration of the risks inherent in the proposed transaction. Due diligence is also necessary to ensure that there are no onerous contracts or agreements that affects the acquirer s return s on investment Dec [8] Critically examine and comment on the following : (i) The objective of due diligence is to allow the investigator to consider the various options, considering the facts found in the course of due diligence.

7 [Chapter 1] Due Diligence... O Q&A-7.17 The goal of due diligence is to provide the party proposing the transaction with sufficient information to make a reasoned decision as to whether or not to complete the transaction as proposed. It should provide a basis for determining or validating the appropriate terms and price for the transaction incorporating consideration of the risks inherent in the proposed transaction. Withdrawal of deal - If the due diligence uncovers information that disclosed the investments, loan or participation, a risky or undesirable one and which cannot be adequately resolve then the investigator may withdrawal from the deal. Adjusting the valuation of the investing-the investigator may revise his valuation of the company or reassess the price at which it will provide services. More often, the information will be adverse and therefore the valuation will go down or the price will go up. Solving of problems uncovered it may be possible for a problem uncovered by the due diligence to be solved before the goals goes ahead Dec [8] Critically examine and comment on the following: (iv) The concept of data room and its need in due diligence. A data room provides all important business documents/information which may be on financial, regulatory, IPR, marketing, press report or any important material aspect pertaining to a business transaction. Otherwise it provides for a common platform/place where all records of important business information are kept for the review by a potential buyer after signing of a Non Disclosure Agreement (NDA). A data room discloses confidential data which is not available for public and may relate to business process, trade secret, technology information etc, the access to data room is made after signing of Non Disclosure Agreement. Need for Data Room: 1. Removes ambiguity in the minds of buyer about the profitability, growth prospectus and sustainability of business. That is proposed to be bought. 2. Provides material information that helps in doing a SWOT analysis. 3. It enables the buyer to do a better bargain through the analysis of the data. 4. May expose the weakness of the seller which is not directly provided to the buyer. For example, a material off balance sheet transaction. 5. Provides data that helps in better valuation of business for both buyer and seller June [8] Critically examine and comment on the following: (ii) A key step in any due diligence exercise is to develop an understanding of the purpose for the transaction.

8 Q&A-7.18 O Solved Scanner CS Prof. Prog. M-IV Paper 7 Please refer to June [8] (i) on page no Dec [8] Critically examine and comment of the following: (iii) Due diligence investigations are generally for corporate mergers and acquisitions. Answer: Due diligence investigations are generally for corporate acquisitions and mergers i.e. investigation of the company being acquired or merged. The buyer or transferee company wants to make sure to know what it is buying. Some other transactions where due dilligence is appropriate could be: (i) Strategic Alliances and joint-ventures (ii) Strategic Partnership (iii) Partnering Agreements (iv) Business Coalitions (v) Outsourcing Arrangements (vi) Technology and Product Licensing (vii) Technology sharing and cross Licensing Agreements (viii) Distribution Relationship, etc.