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M & A restructuring and reorganization business lawyer due diligence investigation operation specification
Zhang Chun lawyer
The lawyer due diligence is the entrustment of the lawyer to accept the entrustment of the lawyer, to understand, review, and carry on the legal analysis, the appraisal and the judgment to the law, the finance, the management and so on the related enterprise of the mergers and acquisitions reorganization enterprise, so as to provide the full and appropriate , Reliable basic information.
In order to ensure that the information obtained in the qualitative and quantitative to meet the needs of the development of M & A restructuring plan, lawyers in due diligence, we must adhere to the four principles:
(A) the principle of authenticity, mergers and acquisitions restructuring and reorganization of enterprises has occurred and the fact that the truth of the original situation of the original reflected, not in order to meet the needs of the client packaging distortion of the facts.
(B) the principle of accuracy, to the enterprise a lot of information for the appropriate choice, choose, the business really need to reflect the information.
(C) the principle of integrity, lawyers in the process of collecting information, pay attention to the internal relations between the information, do not blindly, free choice, in order to maximize the comprehensive collection of business information.
(4) The principle of confidentiality, in the lawyer's investigation, involves the enterprise's core information, major decision-making and trade secrets have the obligation of confidentiality, usually both sides need to sign a confidentiality agreement.
The basic content of the lawyer's due diligence:
(1) The subject qualification of the enterprise must investigate whether the procedures, qualifications, conditions and methods established by the M & A and reorganization enterprise conform to the provisions of the laws, regulations and normative documents at that time, such as those that need to be approved to be established, Companies, foreign-invested enterprises, business projects involving enterprises approved by the enterprise, etc., must also check whether the approval of the relevant departments. It is necessary to check whether the relevant assets assessment, capital verification and other necessary procedures in the establishment process are in compliance with the provisions of the laws, regulations and normative documents at that time, especially when it involves state-owned assets. In addition, it is necessary to check whether the enterprise is in accordance with the law, whether there is legal obstacle to continuous operation, whether its business scope and mode of operation conform to the relevant laws, regulations and normative documents. So to focus on collecting the following information: 1, the history of enterprise development and history. 2, enterprises allowed to set up documents, asset evaluation, capital verification report, business license and corporate charter. 3, the enterprise industrial and commercial inspection certificate, the registration of the changes and proof, business qualification documents. 4, the capital structure of the enterprise, investors or asset holders of the basic situation. 5, mergers and acquisitions restructuring and reorganization of corporate shareholders after the qualifications and qualification documents. If the shareholder is a legal person, it shall have the approval document established by the legal person, the authorization document, the business license, the certificate of the industrial and commercial inspection, the change of the enterprise registration matters and the certificate, the articles of association, the organization and the agency The investment situation of the holding and shareholding enterprises and the basic situation of the invested enterprise; if the shareholder is a natural person, it shall have proof of identity and proof of the assets.
(2) The organization structure, decision-making procedures, execution procedures and related circumstances of the organization and organization of the enterprise are also the contents of the lawyer due diligence, which includes: 1. The organization of the enterprise. 2, the branch of the enterprise, the approval documents set up by the branch, the business license, the certification of the previous industrial and commercial inspection, the registration of the enterprise, the change and its proof. 3, the holdings, shares of enterprises, holding, equity participation of enterprises to set up approval documents, sponsor agreement or investment agreement, capital verification report, business license, the previous industrial and commercial inspection certificate, the articles of association, business registration matters and its proof, since its establishment Equity change and its related proof, business qualification documents. 4. The composition of the shareholders' meeting, the board of directors and the board of supervisors and the meeting.
(3) Financial investigation and financial evaluation, financial investigation includes profitability survey and financial status survey: 1. The financial statements and analysis of the Company for the last three years include: balance sheet, income statement and cash flow statement. Notes; the last three years of financial budget and implementation; calendar year financial statements of the audit and audit opinion. 2, enterprise assets, including: a fixed assets and other chattels, such as production equipment, equipment, vehicles and other assets of the summary list, asset name, the basic situation, access to the way, value, etc.; asset mortgage, pledge or other rights Exercise restrictions and their related documents. B long-term investment, such as the amount of investment, investment accounted for, investment proof, the basic situation of the invested enterprises. C account receivable details, aging analysis and account recovery analysis. The intangible assets of the enterprise and the legal use of the patent, such as the patent certificate, the patent license to use the contract (including the use of permission to license others); patented technology related to the use of the contract; Certificate, license to use the contract (including contracts with the relationship between the enterprise); proprietary technology; franchise and so on. Asset collateral, pledge or other rights to exercise restrictions and related documents. Real estate situation, such as the ownership of housing ownership, the description of the way; the basic situation of land, ownership certificate, land use right contract; construction of the basic situation, approval documents (including project approval documents, planning approval documents, land use Proof of title, commencement permit, etc.); asset collateral, pledge or other rights to exercise restrictions and related documents. 3, the external liabilities of enterprises, such as the list of corporate debt (including the list of major creditors, the amount of liabilities, the reasons for the formation of), accounts payable details and creditors, other details of the payment and creditors, and related enterprises, Details of the basic situation of the debt (including whether there is guarantee and guarantee, creditor 's rights and debts, whether litigation, etc). (Including mortgage, pledge, guarantee); may be due to environmental protection, intellectual property rights, product quality, labor safety, personal rights and other reasons arising from the infringement of the debt; the formation of related party transactions Claims and debts.
(4) the basic situation of personnel, personnel resettlement is the focus of corporate restructuring and reorganization, in the investigation of business personnel, the main understanding of the following: 1, the number of workers, workers to participate in working hours and mergers and acquisitions restructuring enterprises continuous working hours, Wages and positions, the basic situation of the job. 2, is not in the post (including laid-off, retreat, retirement, labor, **, secondment, pay leave or any other form of diversion) the basic situation of workers. 3, M & A restructuring and reorganization of enterprises and workers signed between the labor contract or agreement whether there is a violation of the provisions of the law or terms. 4, M & A restructuring and reorganization of enterprises whether there is arrears of wages or wages of social insurance and housing provident fund situation. 5, workers and occupational injuries and occupational diseases. 6, workers and mergers and acquisitions restructuring and reorganization of the enterprise whether there have been or may occur in the arbitration or litigation. 7, mergers and acquisitions after the reorganization may be affected or change the relevant welfare system. 8, mergers and acquisitions restructuring of the enterprise labor discipline and rules and regulations are in line with the "Labor Law" of the relevant provisions.
(5) the obligation investigation and the appraisal of the obligation, the main task is to target business existing business competitive advantage, profit level and development prospects to make judgments. 1, business scope survey, enterprise product or service category list; total accounted for the total operating income or 80% of the total profits of sub-enterprises or sector list. 2, the composition of corporate income composition, corporate income sources; regular income accounted for the proportion of total income and source. 3, competitor or market share survey, product market size, growth potential and market share distribution, the list of major competitors and business competitors to assess the market share. 4, product research and development strategy survey, the main product technology development direction, research focus and new products and products being developed; research and development of financial requirements and financing channels; enterprises have or have applied for patents and trademarks and other intangible assets. 5, enterprise resources and production process management: production equipment and the use of efficiency; research and development; procurement strategy; procurement channels; suppliers; major commercial contracts. 6, operating performance: accounting policy, annual audit opinion, three years of operating results, turnover and gross profit detailed analysis, three years of operating and management costs analysis, three years of non-operating items and abnormal project analysis, the branch on the overall Analysis of the contribution level of performance. 7, the main business of the industry analysis, industry status and development prospects, a special business environment and business risk analysis, enterprises in the industry status and impact. 8, profit forecast, profit forecast for the next three years, forecast assumptions, forecast data base, budget implementation this year.
(6) legal investigation and evaluation, the main task: First, the company's past legal matters related to the investigation and evaluation to determine the legal issues in the past will not affect the restructuring of the new enterprise after the reorganization; the second is to mergers and acquisitions Reorganization of their own legal matters and such legal matters on the reorganization of mergers and acquisitions after the completion of the operation of the new business development may have to determine the impact in order to eliminate the legal risks. The investigation of the past legal matters of the enterprise usually includes the following information and documents: 1, various provisions. Memorandum, industry regulations or other legal documents, various statements and audited accounts in the past three years, unmanaged management accounts and shareholders' resolutions required to be filed, focusing on the collection of corporate restructuring and reorganization, Decisions, resolutions, etc. that may result in or result in legal consequences. 2, the situation of borrowing, the details of all loans, bank accounts, various guarantees, a copy of the contract, the various arrangements within the enterprise, the main collection ** contracts, security contracts and creditors with the documents, business managers Situation statement. 3, pending arbitration and litigation and unsuccessful executed arbitration and litigation, outstanding or unsuccessful administrative penalties and other unqualified legal matters. Major cases (including litigation as a plaintiff or defendant) need to provide case documents, the merger and reorganization of the restructuring of the project has little effect, the summary can be. 4, the signing of the contract, including the means of production to buy the contract, sales contracts, agency contracts, import and export contracts, insurance contracts, transport contracts, construction projects related to the contract, lease contracts, contracts with affiliated enterprises, other contracts. Mainly to provide enterprises involved in mergers and acquisitions restructuring and reorganization, can explain the property rights of enterprises, which may result in such property rights arising from or have the legal consequences of the contract, agreement and other documents. 5, whether the shareholders, directors and major managers of the enterprise have irregularities, whether the enterprise has any significant illegal operation, the major problems affecting the enterprises, the main problems faced by the enterprises (explain the difficulties or positive factors and the countermeasures).
(7) the decision-making level of the enterprise decision-making on the restructuring of the basic ideas or initial plan, the lawyer due diligence is not the purpose of the purpose is to design mergers and acquisitions restructuring and reorganization plan for the preparation of the basic understanding of the basic business situation have to understand The initial ideas and basic ideas of the enterprise decision-making on the reorganization of M & A are regarded as important reference contents of the scheme design.
The main method of lawyer due diligence:
(A) access to information, lawyers can be surveyed to provide survey outline. Ask the respondents to provide relevant information according to the information list. Usually from the respondents to provide business license, charter, shareholder register, minutes, financial statements, various rights documents, important contracts and other documents which can be collected to the required information. Be sure to check the original copy of the written material and focus on the authority of the information carrier. Under normal circumstances, the information provided by the respondents is accurate, true and complete, but for some important matters, should be prudent in accordance with the principle of the third party by issuing a letter of verification, independent investigation and other means of certification, and should not only Depends on the material provided by the person being investigated.
(2) site inspection, through the mergers and acquisitions restructuring and reorganization of corporate office space, plant, warehouse, land, major machinery and equipment such as on-site investigation, familiar with the production of nuclear products to provide production methods to observe the daily operation of enterprises, both Through other means of access to information, but also can find some useful clues to serve other ways to investigate. Need to pay attention to, to distinguish the observed phenomenon is naturally generated or deliberately artificial, to avoid being confused by false phase.
(C) visit the inquiry, when the mergers and acquisitions restructuring and reorganization of certain enterprises can not rely on their own information that need to be provided by other relevant units to understand the information provided. By visiting these units, by means of the information they have mastered and the materials issued to determine the situation of mergers and acquisitions restructuring enterprises, for example, to the industrial and commercial registration authority to check the end of the enterprise, you can understand the merger and reorganization of the restructuring date, Registered capital and ownership structure, the nature of the enterprise, the constitution and other basic conditions; to the housing land management department to understand the transfer of real estate, mortgage registration; to the municipal sector to understand the merger and reorganization of corporate assets, such as expropriation, demolition, Planning; can also from the tax, environmental protection, product quality management and other departments to understand the merger and reorganization of corporate tax restructuring, involving the relevant environmental protection, product quality responsibility and other issues. The material provided by the above ** management department can be considered as a matter of course. However, some units, such as the competent authorities, collaboration units and other enterprises may have a certain relationship with the restructuring, and its issued by the material sometimes does not necessarily reflect the actual situation, should pay attention to screening. If necessary, the lawyer needs to meet with the directors, senior management, key technical staff and legal adviser of the restructuring enterprise to verify the fact that some written information can not be confirmed. When talking and asking, please pay attention to whether the survey object has the relevant knowledge and the degree of knowledge.
(D) analysis and summary, in the collection of sufficient relevant information floor, lawyers to undergo a careful screening, screening, comparison, induction, analysis, to determine the authenticated facts, to be certified facts, unidentified facts, the final Making it a material for the development of M & A restructuring plan. On the basis of the law, regulations and policies, the use of their own expertise to form a lawyer due diligence report.