July 25, 2014

Sample Reps & Warranties: Conflict Minerals

Recently, we got the question from a member who was marking up a definitive agreement for the purchase of target company – a manufacturer of metal products – whom they believed to be utilizing conflict minerals. The member asked “Has anyone seen and reps and warranties being given for the use/non-use of conflict minerals in stock purchase agreements and, if so, what is being represented/warranted?”

My response was: These reps are pretty boilerplate. In the first example below, note that Oracle/Micros has a covenant that the seller has undertaken commercially reasonable efforts to eliminate conflict minerals from its supply chain:

Oracle/Micros (covenant Section 5.23)
Allergan/MAP Pharmaceuticals (see Section 3.29)
Valeant/OBAGI Medical (see Section 4.5)
Met-Pro/CECO Environmental (see Section 4.7(e))
Citrix Systems/Bytemobile (see Section 2.32)
Salix Pharmaceuticals/Santarus (see Section 5.26)