Representations and Warranties Insurance (R&WI) provides insurance coverage for both buyers and sellers in a transaction against financial losses, including costs associated with defending claims, for certain unintentional and unknown breaches of the seller’s representations and warranties made in an acquisition or merger agreement. This differs from D&O insurance in that a D&O policy is designed to cover allegations of wrongful acts of a company’s directors and officers related to their decisions in running the company and is restricted by coverage for acts that occurred prior to the close versus post close.
A R&WI policy will typically have less exclusions and is specifically designed to cover alleged breaches of the deal’s R&W. Use of R&WI has increased substantially over the past several years. With the increased adoption in the marketplace, rates are lower, and terms have become friendlier to the parties making claims.
Benefits and Examples
Benefits to the seller include:
- Lowers the cap on a seller’s post-close exposure
- Frees up funds that had traditionally been placed in escrow
- Facilitates a “cleaner” break post-closing
Benefits to the buyer include:
- Can increase the scope of indemnification available under the acquisition agreement
- Extends the duration of the R&W survival periods
- Provides a 3rd party source of recovery post-closing, rather than seller, partially-owned firm or management--thereby preserving the ongoing relationships
Examples of “loss” definitions in R&W policies:
- “Loss” means the amount to which the insureds are contractually entitled in respect of a breach pursuant to the terms of the acquisition agreement
- “Loss” means the aggregate amount of any losses, liabilities, claims, damages, penalties, fines, judgments, awards, settlements, costs, fees and expenses incurred by any insured for, or in respect of, (A) a breach or (B) a third party
- Demand based upon, arising from, or attributable to an actual or alleged breach