What is Due Diligence?

Due diligence, from a legal perspective, means the process of collecting and evaluating all legal documents and information related to a civil/commercial transaction or the activity of a company. Through the due diligence service, the Legality team offers clients, through its professional experience and thorough knowledge in civil and commercial matters, the possibility to analyze the legal risks of a transaction in which the client wishes to engage.

For example, if a client wants to buy a property, implement a securities acquisition or real estate development project or participate in a merger, it is useful and, most of the time, necessary to hire a legal consultant because the risks assumed by participating in these operations to be reduced to a minimum.

What is followed by due diligence?

Due diligence seeks to reduce the risk inherent in a transaction or to avoid the occurrence of damage by materializing the risk.

In general, any civil/commercial operations assume the assumption by the participants of some risks. These risks can come from the history of a real estate property, from the way in which the activity of a company involved in the merger/acquisition process was conducted, essentially from any legal situation prior to the transaction that is intended to be concluded after the due diligence process.

Why is due diligence important?

Many times the risks taken by concluding some transactions can be more expensive than the transaction itself.

That’s why we draw attention to the fact that a transaction with a history, no matter how simple it may seem at first glance, can hide risks that even the parties involved may not be aware of!

The preventive, diligent attitude can save the parties from unwanted litigation, unpleasant financial consequences or even effects that can be more serious, ranging from financial losses to insolvency.

What are the types of due diligence? How is due diligence performed?

The due diligence service can be restricted or extended.

The employment of the legal assistant for the due diligence is decided by the lawyer and the client based on a prior diagnosis provided to the client by the lawyer. If, following the preliminary analysis of the case, the lawyer considers that the transaction may involve the assumption of some risks by the client, he will inform him that due diligence is useful and even necessary for the protection of his patrimony and will suggest to him several verification methods. The client will be the one to decide on the scope of the due diligence verification.

Due diligence is a long process involving several parties and phases. Due diligence legal assistance can include, for example, the following:

1. verification of the property documents of a building or goods that are the object of a procurement project;

2. verification of the legal documents concluded by a company participating in the merger or sale of shares, in a determined period, immediately prior to the conclusion of the transaction;

3. verification of the existence of litigations or enforced executions that will affect the transaction in the future;

4. cross-checking of legal documents, by providing specialized legal assistance with checks of financial and accounting records performed by accounting experts or financial auditors;

5. extended verification through the collaboration of the lawyer with other specialists from various areas of activity, with the purpose of providing the client with a complex report regarding the transaction in which he wishes to participate.

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The main management structure of the company in Romania is the general meeting of associates / shareholders. The constitutive act establishes the rules for convening and adopting decisions and whether the exercise of the vote can be delegated by special mandate by the associate / shareholder who cannot take part in the meeting. In the limited liability company, each shareholder entitles the holder to one vote in the respective meeting. The general meeting of associates has the following main obligations: ✓ to approve the annual financial statement and to establish the distribution of the net profit. ✓ to appoint the administrators and the censors, to revoke / dismiss them and to discharge them, as well as to decide to contract the financial audit, when it is not obligatory, according to the law; ✓ to decide the pursuit of the administrators and censors for the damages caused to the company, designating also the person in charge to exercise it; ✓ to modify the constitutive act.
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The limited liability company is the most common form of company in Romania, being the legal entity that best serves the interests of investors both from the point of view of the reliability of the activity, and from the perspective of its management. The limited liability company is abbreviated "SRL" in Romania and is the equivalent of the American limited liability company Limited Liability Company (abbreviated to LLC) or the German economic structure "Gesellschaft mit beschränkter Haftung" (abbreviated to GmbH), or the structure called "limited" , the structure used in most Latin American states.
The limited liability company is characterized by:
✓ the character intuitu personae, which means that this economic structure is based on the trust between the associates;
✓ the division of the share capital into fractions called shares, which cannot be negotiable securities;
✓ the liability of the associates is limited to their contribution to the share capital.
The limited liability company may also have a single partner, natural or legal person, of Romanian or foreign nationality, who will be the owner of all shares. Instead, the maximum number of associates is 50 people.
At present, the Romanian law no longer conditions the subscription and payment of a certain amount as share capital.
Through registration, the company acquires legal personality, becoming, under the law, a collective subject of law. The conclusion given by the judge is sent, ex officio, to the Official Gazette of Romania for publication at the expense of the company and to the Financial Administration in whose territorial area is the main headquarters of the company for fiscal registration, mentioning the registration number in the Trade Register .

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