Due Diligence Handbook

Part I: Corporate Matters

“Corporate matters” refers to matters regarding your company’s: establishment, governing documents (those are the documents which set out the rules for the company), corporate structure, shareholders and Board of directors, capital structure and share issuances and other related items.

Download this article as a PDF.

WHAT THEY ASKED FOR IN PLAIN ENGLISH THIS MEANS….
The certificate of incorporation of the Company; any Certificate of Name Change and any amendments to any of the foregoing to date. You receive a Certificate of Incorporation which gives the name of the company, the company’s ID number and the date the company was registered, when you set up your company.   If you change your company’s name, the government will issue you a certificate noting the name change.

You should (hopefully) have these documents. However, if you don’t, the government body that issued the certificate can issue you a copy.  Your legal counsel may have it on hand as well.

You may be asked to provide a certified copy of these documents.  In that case, before you pay lots of extra money to a government body, ask to see if certification by your legal counsel will suffice.  Faster, easier and quite possibly cheaper.

The Articles of Association or other applicable corporate governance documents. The Articles of Incorporation (may also be called Articles of Association or takanon) are drafted as part of the company’s setup and may be subsequently updated as the company develops (e.g. you create a new class of shares). See here for more on the Articles of Association.

Here as well, you should have this document.  If you don’t, these tend to be drafted for you by legal counsel or the folks who set up your company for you and they may well have it on file.

List of all subsidiaries and other entities in which the Company has an equity interest (stating the jurisdiction of organization and legal counsel for each), with an organization chart reflecting the corporate ownership structure. An easy way to do this is to set this up in one excel file, with the list set up as a chart in one tab and the organization chart in the next tab.   You can find an example here. This type of chart is good to have on hand in general, as your accountants will often ask for it as part of your annual audit or as part of any tax planning work, in particular if you have companies in different countries.

See here  for more on subsidiaries and equity interests.

All minutes of meetings (and/or written consents) of the Company, including of shareholder meetings, of the Board of Directors and of any committees of the Board of Directors. Provide a list of all committees of the Board of Directors. (Another annual audit item…). For this, you will be sending over the actual signed minutes and consents, together with all annexes and exhibits. Bear in mind that this is not necessarily going to include all of the backup support or records which you sent to the board nor related emails. If you aren’t sure what to send, read the minutes or consent and see which documents are discussed and included (or “attached hereto” in lawyer-speak) as an annex or exhibit and send those.  Try to combine each minutes/consent and its related annexes and exhibits into one document. If that isn’t possible, save related items in one file.  People are more cheerful when they get stuff in an organized fashion and don’t have to try and mix and match. You want the recipients to be cheerful.

You can send this with list of the meetings/ consents so that the other side can see that everything is there.   In the list,  note what type of document (e.g Board Committee written consent) and the date.

See here for more on minutes and written consents.

The capital structure of the Company giving the authorized and outstanding shares of each class as certified by the Company’s Chief Executive Officer, with the complete share register of the Company listing all shareholders and their holdings. Capital Structure

For the capital structure, you will want to put together a simple chart breaking down authorized, outstanding shares by class.    You will also need to send a cap table as well.  For more information on capital structure and cap tables, see here and here .  For an example of a capital structure chart and cap table, see here.

Share Register

If you are issuing share certificates yourselves, you need to make sure you are recording each certificate (again, broken down by class) in a share register. This can be electronic. If your legal counsel is issuing them for you (and then taking care of any registration!), they should be able to provide you with the register. It’s a good idea for you to match up your records and share certificate copies with your legal counsel periodically—mistakes happen!

All share transfer deeds or other documents of share transfer and all reports and correspondence filed with the corporate secretary, share transfer agent and/or governmental authorities; all share issuances and reports of filing thereof relating to share transfers.

 

Depending on where you are incorporated, you may also be asked to send over a company report from the local Companies Registrar. This report should include (among other things) your authorized share capital and a listing of shares issued. Your legal counsel may be able to get this report for you.. You want to make sure that your capital structure chart and cap table agree to the government report.
Any other contracts, agreements and arrangements relating to the issuance of securities (including debt) of the Company; And yet another thing your auditors will ask for as part of your annual audit!  For a clear and not overly complex definition of debt securities and the difference between debt and equity securities, see here.

Overall concept: if a share has or may be issued, to anyone, and for any reason, you need to have the documents supporting that.

First, you want your investment agreements. Those can be for the sale of shares to an investor, for the sale of corporate bonds (less likely in a small company) or for convertible loans (more likely).  However “issuance of securities” also includes issuing shares to: founders; employees (e.g. an employee exercises their options); suppliers (you pay someone in shares); Board members, and so on.  Other places where share issuance potential may be hiding: joint venture agreements, partnership agreements or even non-convertible loan agreements.

The paperwork includes: signed agreements; all related annexes to the agreements; all referenced signed side agreements; share certificates and copies of payments (e.g. a copy of the wire transfer advice you got from the bank).  An potential investor may not ask to see the payment confirmations, but your auditors certainly will!

If you have been nice and organized and have been making sure that your friendly neighborhood legal counsel has been getting copies of stuff on a regular basis, they should be able to help you with this.

All shareholders’ agreements, voting trusts or other similar arrangements known to the Company relating to the voting of or restrictions on the transferability of, the share capital of the Company and all agreements and other documents pertaining to registration rights, pre-emptive rights, rights of first refusal, anti-dilution rights, warrants, options, and other agreements or commitments to sell, purchase, issue, convert or exchange shares of the Company.

 

A lot of these items are already covered in the stuff you provided above: Articles of Association, Share Purchase Agreements,  convertible loan agreements and documents supporting the actual or potential issuance of shares to founders, employees, suppliers, board members and others.  In addition, there may be additional agreements such as Investor Rights Agreements or side agreements between the shareholders themselves or the shareholders and the company which may or may not be in a formal document.

If you have an employee option plan for your company (and you should, if you want to issue options) that will include limitations as well.

All agreements and other documents relating to payment of dividends by the Company.

 

If you haven’t issued dividends up to this point, your Articles of Association and other basic corporate documents should cover the “rules of the game” for dividend calculation and payment.

If you have issued dividends in the past, you will also want to make sure that you hold onto the related documentation, including how the dividends were calculated and copies of payments. (Your auditors will want this as well.  Auditors want everything).

List of all current officers and directors.

 

A simple list, in word or excel, will do the job here.

For the officers, include the person’s position as well. If you have more than one company, include the name of the company employing each person.  Depending on how your company’s management is structured, you may choose to separate the lists by company. For example, if it is really one management team, and people are just in different places and therefore working for different subsidiaries, that may not be necessary. See here for more on officers, including a definition.

“Directors” are members of the Board of Directors. For directors, include which shareholder each director represents or if they are external (not representing any specific shareholder, e.g. an industry expert), note that. If a director has a certain role within the Board (e.g. Chairman or Secretary), add that as well.  If you have more than one company, list each company’s directors separately. See here and here for more on the Board of Directors.

 

Copies of all materials sent to all directors and/or all shareholders of the Company relating to the Company. We have already discussed Board and shareholder minutes and written consents up above and here.

In addition, you may send the shareholders and/or the Board updates and other information on the Company on an ongoing basis, without there being a meeting or without this being something they need to sign off on. For instance, you might send a Board deck covering quarterly results or you might provide an update on a process discussed at the last board meeting.  These should be kept on file.

All filings or other correspondence with the any governmental authority under which the Company was incorporated and any other governmental authority under which a subsidiary or material affiliate was formed or registered. Most countries (at least, those countries that you are liable to be incorporated in) require annual filings with the government, as well as updates for changes—e.g. issuance of shares or changes to the Board of Directors.  Hold onto these, as well as any correspondence with the government.  This is another area where you should be coordinating with your legal counsel, in particular as they are likely to have a better idea as to what filings are required.
All agreements between the Company and its subsidiaries, parent companies and affiliates. Assuming your company (1) includes more than one company and (2) there are transactions and activities between the different companies in the group, it can be a good idea to have some agreements in place backing up these transactions. We can discuss this another time, but this is particular important for tax purposes.

See here  for more on parents, subsidiaries and affiliates.

About the author

gilahalleli

Leave a Comment