Exercising Good Board Governance in M&A Due Diligence

Mergers and acquisitions (M&A) remain a powerful lever for corporate growth, transformation, and value creation. Yet, the risks inherent in these transactions are significant, and the consequences of poor due diligence by an acquiror can be long-lasting. Boards of directors play a critical governance role in helping to ensure that M&A deals are thoroughly vetted, strategically sound, and positioned for successful integration. By asking the right questions and challenging management’s assumptions, boards can help mitigate the most common pitfalls in M&A due diligence.

Key Pitfalls and the Board’s Oversight Role

1. Strategic Alignment: Boards should probe whether the identified target fits the company’s long-term strategy and core competencies. 
   ASK: Is this deal consistent with our vision and mission? What are the strategic alternatives?
2. Financial Due Diligence: Directors must make sure that management has rigorously analyzed the target’s financials, including hidden liabilities, quality of earnings, and working capital needs. 
   ASK: Are revenue projections realistic? Are assets properly valued? Have all liabilities been identified?
3. Cultural Compatibility: Successful integration depends on cultural fit. Boards should ask whether cultural differences have been identified and how they will be addressed and what plans exist for aligning values and practices.
4. Legal and Regulatory Risks: Boards must confirm that legal and regulatory risks, including compliance issues and pending litigation, have been thoroughly assessed. ASK: What is our exposure to regulatory changes or legal disputes?
5. Operational Synergies and Integration: Directors should challenge assumptions about synergies and integration costs.
   ASK: Are projected synergies achievable? Is there a robust integration plan? How will this be monitored?
6. IT and Cybersecurity Risks: Boards need to help ensure that technology debt of the target, including IT compatibility and cybersecurity vulnerabilities, has been evaluated. ASK: What risks may arise related to data governance, data security, and system integration?
7. Human Capital and Key Talent: Retaining key personnel is vital. Boards should ask about plans for onboarding, talent retention, and leadership continuity.
8. Customer and Supplier Relationships: Directors should review the stability of major customer and supplier contracts. 
   ASK: Are there dependencies that could pose risks post-transaction?
9. Communication and Stakeholder Management: Boards must oversee stakeholder engagement and communication strategies to minimize uncertainty and resistance.
10. ESG Issues: Environmental, social, and governance risks can impact reputation and value. Boards will want to know how management plans to assess and address significant ESG factors as part of the due diligence process.

To fulfill their fiduciary duties, protect shareholder interests, and enhance the likelihood of a successful M&A transaction, board should further consider the following actions: 

• Establish Clear Strategic Rationale - Review and challenge the strategic reasons for the transaction. Ensure alignment with the company’s long-term goals and core competencies. “Don’t fall in love with a bad deal.”
• Form a Special Committee or Task Force - Create a dedicated M&A committee or task force to oversee the process. Include independent directors to minimize conflicts of interest.
• Engage Independent Advisors - Retain financial, legal, and industry experts to provide objective advice. Seek third-party valuations and fairness opinions.
• Assess Risks and Mitigation Plans - Review risk assessments and management’s plans to address identified risks. Ask for scenario analyses and stress tests.
• Evaluate Integration Planning - Require detailed post-merger integration plans, including cultural alignment, IT systems, and talent retention. Monitor integration progress and milestones.
• Review Deal Structure and Terms - Scrutinize the transaction structure, pricing, financing, and key contractual terms in the context of realistic market conditions. Assess the impact on shareholder value and dilution.
• Oversee Stakeholder Communication – Require board approval of key messaging and disclosure strategies.
• Conduct Independent Board Deliberations - Hold executive sessions without management to discuss concerns and alternatives. Document board deliberations and decisions for accountability.
• Approve or Reject the Transaction - Exercise the board’s authority to approve, reject, or seek modifications to the deal. Ensure decisions are based on comprehensive information and analysis.

Effective board governance in M&A due diligence is not about micromanaging the process, but about asking incisive questions, demanding thorough analysis, and challenging assumptions. By focusing on these common pitfalls, boards can help steer management away from costly mistakes and toward deals that create sustainable value. Exercising strong oversight ensures that M&A transactions are not only strategically sound but also executed with the rigor and discipline required for long-term success.

The BDO Center for Corporate Governance endeavors to support directors in engaging in effective governance by providing insights, learning, and networking opportunities in collaboration with BDO subject matter specialists and advisors designed specifically for boards of directors.