Available for both buyers and sellers in a transaction, this policy provides protection against financial losses¹, including costs associated with defending claims, for certain unintentional and unknown breaches of the seller’s representations and warranties made in the acquisition or merger agreement.
¹In excess of retention
Policy Highlights
Benefits of a Buyer-Side Policy
- Offers additional protection to the buyer beyond the negotiated indemnity cap and survival limitations in a purchase agreement
- Provides the seller with a “clean exit” by reducing or eliminating the need to establish escrows or purchase price holdbacks, thereby enabling the seller to more quickly distribute greater portions of the purchase price to its investors in a private equity context or to retain proceeds in an owner/operator context
- Enables the seller to reduce the amount of funds held back in escrow, enhancing the seller’s return on its capital in the current low interest rate environment
- Protects buyers against the collectability or solvency risk of an unsecured indemnity provided by a seller (e.g., a financially distressed or foreign seller or multiple sellers)
- Distinguishes a buyer’s bid in a competitive auction process by requiring a seller to provide short survival periods, modest liability caps and reduced escrow amounts for breaches of representations and warranties in a bidder’s draft purchase agreement
- Preserves key relationships by mitigating the need for a buyer to pursue claims against management sellers working for the buyer
- Affords an alternative recourse to shareholders in public to private transactions
Benefits of a Seller-Side Policy
- Backstops negotiated indemnity obligations — a key benefit for private equity or venture capital funds at the end of their life cycle
- Protects minority/passive sellers concerned with joint and several liability for indemnifying the buyer
- Provides additional comfort for individual or family sellers