Is Knowledge King?

Knowledge is king”, so the adage goes.

What is the relationship between ‘knowledge’ and merger and acquisition (“M&A”) transactions? In M&A transactions, representations and warranties are made by the seller with respect to the target company. What does knowledge have to do with this? The answer is simple: risk allocation.

Representations and warranties not only serve to provide information to the buyer, but more crucially play the role of allocating risk as between buyer and seller. A seller will attempt to keep its representations and warranties as narrowly drawn as possible. A buyer, at the other end of the spectrum, will seek to have the seller’s representations and warranties pitched broadly.

During negotiations, one detail that lawyers lovingly quibble over are the ‘qualifiers’ to the representations and warranties. The categories of qualifiers are aplenty. The focus here will be on the introduction of ‘knowledge qualifiers’.

Assuming the parties have crossed the hurdle and agree to use a knowledge qualifier, that is not the end of the matter. Parties will still need to discuss the following: Continue reading “Is Knowledge King?”