Mergers & Acquisitions Reps & Warranty Insurance
M & A
M&A experts worldwide are
using an insurance policy known as a Representation and Warranty (R&W) to transfer risk from the parties in a transaction
to an insurance company. R&W policies are designed to, "step in the shoes" of a seller to pay indemnification
claims made by the buyer for inaccuracies of the representations and warranties outlined in the purchase/sale agreement. Due
to the low cost of R&W insurance, sellers are driving the demand for these policies rather than accept large, lengthy
escrow or withhold terms. Buyers are discovering how R&W insurance can enhance their bid without having to raise their
offer.
For the seller:
- An R&W
policy replaces the indemnification provision and reduces the escrow to 1% or less of the purchase amount.
- Enables early and final distribution of proceeds to investors.
- Locks
in the return and provides a clean exit as contingent liabilities are covered.
- Expedites
the sale by getting the Indemnification issue "off the table".
For
the buyer:
- Distinguishes bid in a competitive auction, without raising
the offer price.
- Eases concerns about collecting on seller's indemnification.
- Preserves relationship with seller. In the event the seller is remaining with the company, the
buyer pursues the R&W insurer, and NOT the seller in the event of a breach.
- Expedites
the sale by getting the Indemnification issue "off the table".
Underwriting
& Placement Process:
- Secure information for underwriters:
- Acquisition agreement (draft version is acceptable)
- Seller's
audited financials
- Seller's disclosure statements (if available)
- Offering memo
- Within 3 to 5 business days, a
no cost, no obligation, non-binding indication (NBI) is provided.
- Due diligence
process is commenced with selected market - requires payment of non-refundable underwriting fee.
- Conference call is arranged between the underwriters and the applicant's attorneys.
- Final
terms are issued within 2 business days of the final conference call.
POLICY
BASICS
Limit Capacity - Up to $100M on a single policy. Excess capacity up to an additional
$400M available as needed.
Retentions - commonly 1% to 3% of the purchase price. Reduces over
time
Premium - 3% to 4.5% of the limits purchased (including taxes and fees). Minimum premium
is $300,000
Underwriting Fee - From $25,000 to $35,000 in addition to the premium. Covers the
cost of Insurer's attorney's fees and due diligence costs to review and manuscript a policy. Non-refundable.
- Seller's policy - checks how seller developed R/W
- Buyer's policy
- checks how buyer vetted the Seller's R/W
Terms - designed to match the survival period.
Post survival extensions available upon request.