Representations and warranties
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Representations and warranties Start Comparison
Materiality in representations — how is it quantified (e.g., by a USD amount)?

Frequency/market practice: Fairly common; materiality qualifiers are commonly seen but often not quantified (other than specific warranties, e.g., contract value).

How is knowledge qualified (e.g., specific people, actual/constructive knowledge)?

Frequency/market practice: Knowledge qualification is rare for private deals. It is common for private equity deals, including add-ons (both with respect to a specific group of people and having regard to constructive knowledge and due enquiry). Where a warranty and indemnity policy is entered into in connection with an acquisition a knowledge qualifier is less likely to be included (as warranty and indemnity policies usually require a low level of knowledge qualifiers in order to obtain satisfactory coverage).

Is a warranty that there is no materially misleading/omitted information common?

Frequency/market practice: Fairly common; this is still commonly requested by buyers but often resisted by sellers.

Is disclosure of the data room common?

Frequency/market practice: it has been historically rare but is becoming more common; disclosure of the data room is normally requested by the seller, but resistance from the buyer is still often successful.