6 ms·
The really critical point I'd like to highlight is this one: > Marin’s team sent over a list of hundreds of technical, legal, and business questions that we’d
by mattzito 12y ago
The really critical point I'd like to highlight is this one:
> Marin’s team sent over a list of hundreds of technical, legal, and business questions that we’d need to answer for the deal to go through...Tracking down document after document was tedious beyond compare.
Having your ducks in a row as much as possible can make a huge difference in the complexity, risk, and overall stress of doing a sale/acquisition.
I don't mean Day 1, of course, but once you're starting to have conversations around acquisitions, it's really helpful to make sure your books are clean, that you have clearly documented your software stack, all of the third-party code you use and licenses, all of the contracts and MSAs you might have signed iwth your customers, employment agreements with contractors, and so on.
It's annoying, but once you have it done it's relatively easy to keep up to date.
When we sold our last startup, our CFO had done this 10+ times before, and on the first day of the due diligence, he handed over a URL for a data room with hundreds of documents, categorized and neatly organized. The acquirer's lawyers said it was the easiest DD they'd ever seen.
EDIT: I sentence misplaced words in a
- orware 12y agoPoints like this are the best to learn about early on (this article was the first one to mention it that I've read, so it's definitely something I'm going to try and keep in mind in case I need it down the road...though I'm far away from Silicon Valley and probably won't build a company that'll be acquired anytime soon). Thanks for highlighting this point for others!
- beat 12y agoDon't let being far away from Silicon Valley stop you! Make it a strength rather than a weakness.
- taytus 12y agoI needed to read this. Thank you.
- beat 12y agoIt's one of my things. I'm based in Minneapolis, the land of a whole bunch of Fortune 500s and not a whole lot of startups. But I'm building new tools in the enterprise space, so I'm looking at it as better access to enterprise customers and experienced engineers who really grok the customer. It's all in your attitude.
- melvinmt 12y agoIs there a list of DD questions/requirements to refer to?
- jdhawk 12y agoList vary a lot, but generally here are the sections I see the most: Organizational Documents - all your formation docs, shares, etc.. Tax - 3-5 years of historical tax information (everything), along with a depreciation schedule of any assets you have Finance - mostly quickbooks or similar exports here - your CPA can help a lot. Tricky parts are usually the transactions between owners (their family members) and the company (capital infusions, distributions...can get messy) Intercompany stuff is also always a mess. You set up a LP to hold the stock of your LLC? stuff like this will get beat to death. Loans & Borrowings - anything dealing with loaned money, or personal guarantees Contracts/Confidentiality Agreements - FOR EVERYTHING. Cell Phone contracts, cleaning lady contract (or description of the agreement). They'll cross reference this with your A/P and A/R. Anything with a signature. Customers & Vendors - lists with detailed contact information and yearly spend/revenue HR - Everything related to employees, contractors, consultants, etc...including all your insurance, retirement, bonus, free crap you give employees (gifts and snacks) Corp Insurance Policies - all your policies you've had for the last 5 years, claims and dollars spent. IP - copyrights, licenses, trademarks, non-competes, confidentiality agreements, patents, blah blah. This is exhaustive with Tech Companies, since its what they're really buying (along w/ brains. not physical assets) Legal - Any lawsuits. Govt Compliance - Any permits required to do work? Any interaction w/ a Govt Agency other than the IRS. Environmental - if you own property or do anything with a hazardous substance....usually its an outside firm doing an environmental survey of your property. Property - both real and personal property - any leases you have. any offices you own (and loans associated) All your personal property you own (desks, computers, misc) with serial numbers and VIN's. What a nightmare. Import/Export - If you import and export stuff, they want all your documents. Schedules of shipments (all of them), customs audits, all your brokers that handle this stuff.
- chrisgd 12y agoThis is so true. As a former investment banker, trying to help a company set up this information is so tedious and difficult
- brandnewlow 12y agoI thought we were in good shape going into DD, but when people say that your documentation needs to be perfect, they really mean it. Your CFO sounds like a boss.
- jdhawk 12y agoSadly, this is a necessary evil from the Legal side. In you mind, leaving something out means that its not applicable. In their mind, leaving something out means that you're hiding it.
- ionwake 12y agoHi, I enjoyed the article - just a simple question really. When you pitched your first bootstrapped project for Ycombinator - did you have a team? Have you still got your original pitch? Thank you
- jdhawk 12y agoI do this for a living, bringing companies up to speed when they're lacking in DD. You can definitely tell when this is not the leadership's first acquisition. They're well versed in what records to maintain and archive. It doesn't mean they always have them packaged and ready to go, but at least they've kept them somewhere logical. Tip for startups - buy a filing cabinet and a bunch of folders. Come up with some system - any system - it doesn't really matter. The worst one is better than none at all. Put everything in there and don't worry about cleaning it out. I'm talking about all your insurance crap, leases, property records, blah blah...things that are not "core business" If you want to go paperless, get a Fujitsu ScanSnap for $400 and scan everything to Evernote - or a Directory Tree - or some other DMS. You'll make life EASY EASY when compared to the alternative of having someone like me in your office for 3 weeks keeping you from running your company while I piece back together everything you've shredded. EDIT: oh yeah - don't try and "hide" shit. M&A guys are experts at sniffing out things you're not telling us, intentional or simply forgotten. I've got forensic accountants who are incredible at their job sifting through everything under the sun finding this stuff. Most of the time, you just forgot, and thats fine. Everyone does. If you're trying to hide a skeleton, we're gonna find it. Talk to the M&A guy who's on your side (the sellers side) and be honest. We've got a better chance of presenting the information honestly that won't alter the deal.
- jmvoodoo 12y agoThis. And get any skeletons out as early as possible. M&A people love to use them during DD to knock down valuations. If you've already disclosed them, especially before entering exclusivity, then you have a much stronger negotiating position during the process.
- njudah 12y agoI sold my company ~ 6 months ago, and was grateful I had put some much effort into deliberate document / book keeping for preciously that reason. There is no detail too small in the DD process, and the only way to manage it is good record keeping. All it takes is a document scanner and well curated Dropbox folder(s).
- lawnchair_larry 12y agoIt would not be wise to use Dropbox for data that sensitive. It's dangerously convenient, but it isn't safe from unauthorized viewing.
- CamperBob2 12y agoDetails?
- amirmc 12y agoI'd argue you could/should be doing this kind of stuff from day 1. IP assignments, clean books, documented agreements etc are part of your business, not a secondary concern. Having this stuff under control throughout the life of your business can become a selling point to an acquirer, in that you've created an internal culture that cares about (and scales) its business processes as much as its product and customers (I'm speculating here, but it seems reasonable to me). Of course, this is the least sexy part of building a company and is actually quite easy to ignore as long as you're hiring highly competent people.
- mattzito 12y agoFor sure, there's a basic amount of stuff that you should always be doing: - Employee agreements - Updated financials (potentially get them audited once a year) - Insurance paperwork - etc. There's no reason you should ever not have those things. But there's other stuff that can creep in - for example, we were using a variety of perl modules in our software. We had made sure from a policy perspective that all of the modules were in CPAN and licensed apporpriately. But during DD they wanted us to identify every module, and provide them with a copy of the license for every single module. They wanted to see a written DR plan, and a list of business operational risks, both personnel and office-wise. Just two examples of the sorts of things that can come up in DD that probably aren't worth doing day 1.
- ojilles 12y agoHaving been on the other side, one can always ask for the DR plan, half expecting the seller side not to have it. Then you know where they stand (which is the objective of DD anyways). So not having the answers is in my opinion okay, depending on the topic.
- mikeyouse 12y agoFor those asking, I put a 'Due Diligence Checklist' in Google Docs from a fundraising round we did a few years ago. It should give you a starting point of what information to have on hand: https://docs.google.com/spreadsheets/d/17uAmJBwB3pztdmt4ozMyDz1Kn7noqrtMhQjHT8dCYWk/edit?usp=sharing https://docs.google.com/spreadsheets/d/17uAmJBwB3pztdmt4ozMy... It's more geared toward 'physical' companies as compared to software ones, but many of the requirements are the same.
- beat 12y agoThank you for sharing this! I've been thinking about how to get such a list, and it's a good start.
- phpnode 12y agoSee also http://jacquesmattheij.com/Due+Diligence+survival+guide http://jacquesmattheij.com/Due+Diligence+survival+guide and http://jacquesmattheij.com/Due+Diligence+survival+guide-part+II-Nuts+and+Bolts http://jacquesmattheij.com/Due+Diligence+survival+guide-part...
- pathy 12y agoThanks for sharing! Interesting and potentially useful for a fair number of people.
- simonholroyd 12y agoAnother great tool to help with this process is Pivotal Labs' LicenseFinder: https://github.com/pivotal/LicenseFinder https://github.com/pivotal/LicenseFinder Disclosure: I work there
- comron 12y agoThis is a great insight, and I couldn't agree more. I agree so much in fact that my company is building data room software. Although some people do use it just for a single deal, we try to espouse the notion that you should use a data room from the start; keeping your documents nicely organized for the day when that phone call comes, rather than scramble to compile everything together at the last minute. Check us out at www.securedocs.com, or email me at comron@ that domain if you have questions.
- lawnchair_larry 12y agoCurious about the "secure" portion of your name, I looked at your site. "There are different levels of data encryption but AES (Advanced Encryption Standard) 256-Bit Encryption is so secure that it is certified for use by the U.S. government for top-secret documents." I realize this is usually written for the layperson, so the ambiguity of this claim is forgivable, but can you provide a more detailed explanation for how your encryption works? As you're probably aware, simply using AES does not actually provide any security.
- tptacek 12y agoSince there's a whole subthread here about how startups should keep their ducks in a row for acquisition DD, it's worth considering whether this is extremely premature optimization for most startups. Even if you do everything right, an acquisition is astonishingly expensive --- low-mid six figures in a lot of cases. If a deal is worth doing, it's probably not going to live or die based on how many tens of thousands of dollars you can whittle off closing costs. That's not to say there aren't deal-killer sloppy mistakes to be made early on (vesting! keep cap table clean! get your contracts reviewed as you sign them!), but a lot of what I'm reading here doesn't sound like that kind of stuff. Maybe someone on HN has a horror story about a deal they really wanted dying in warrants-and-reps DD; I'd love to read it. (Like all my comments, this reads more demonstrative than I really mean it to; I'm really asking, more than arguing.)
- mikecb 12y agoI've never really thought about warrant DD before. Makes me wonder about what to do with gag orders. My guess is inform the issuer and they will reissue to the new party, but it would be a stressful situation.
- tptacek 12y agoIn DD, "warrant" is short for "warranty"; these are the legal docs that value your assets and receivables and set the factual terms under which the purchase price can be clawed back if you misstate something. Based on my experience of it, negotiation took a couple weeks, and warrants/reps took sixteen thousand years. My partners went into the process looking like young David Lo Pan, and ended it looking like old David Lo Pan. (I spent the whole process as the weird floating orb of goo with the big eyeball).
- mikecb 12y agoAhhh, I just came from the Vodaphone comments, and my context switching is slow. It's true that the legal side is onerous. We like to think that it prevents more trouble than it causes, but reasonable minds may differ. I still think my question is an interesting one, even if it's not what you were saying. I don't know that there's any public precedent on the matter, but I imagine it's not as rare as one might think given all the different sort of public and private NDAs that exist.
- jgalt212 12y agoDepending on how motivated the acquirer/investors are, you can push back a lot on due diligence. Not in the same sector, but an immediate example that comes to mind is Bernie Madoff. He let his investors do almost no due diligence. Many walked on this condition, but more than a few $billion just closed their eyes and bought. It all comes down to how best to spend your time. Is every minute spent pre-organizing stuff for a probability of a DD better spent in front of customers or with your engineering team? If so, then don't be too concerned too early. Of course, if the exit plan from the day 1 is to sell to a larger shop, then get those books/records in order from the get go.
- 6cxs2hd6 12y agoIANAL and I'm not in the deal flow lately, but: There's usually some leeway in the strength of the representations and warrants. As seller you want them as weak as possible. You want minimal grounds for the buyer to come back later and claim, "You promised X would be true but it turned out not to be; and you agreed you'd make us whole". Instead you want the deal to be done so you can move on with your life. The more complete your due diligence materials, probably the more you can negotiate the R&Ws to be milder and more reasonable for you. Or even if you can't, at least the R&Ws are covering less unknown territory. Whereas if you have big holes in your documentation, naturally the buyer will want you to be on the hook for surprises, and may require some proceeds to be set aside in escrow, or whatever.
- campbellmorgan 12y agoThanks for the advice - a question - if I use node.js does this mean that EVERY module recursively required must have its licence documented?
- mcherm 12y agoYes.
- peterjancelis 12y agoSounds like a potential SaaS app to me. Companies who want to be acquired at some point may want help in keeping them "acquirable".
- edwinnathaniel 12y agoA pre-defined checklist and a DMS (Document management systems)?
- matnewton85 12y agoto me, it just sounds like an S. The monthly business model isn't appropriate in ALL niches...
- CamperBob2 12y agoI disagree. If there were a way to outsource all aspects of operations for (very) small companies, I'd probably be surprised myself at how much I'd be willing to pay for it.