As buyers seek acquisition opportunities worldwide, they often encounter sellers resistant to accepting meaningful (if any) liabilities for potential pre-closing exposures, causing buyers to look to the insurance market for protection. Depending on the jurisdiction, such insurance may come as representations and warranties (R&W) or warranty and indemnity (W&I) insurance. Although they serve the same basic purpose — coverage for unknown historical issues — their pricing, underwriting process, and scope of coverage are markedly different. Such differences mirror cultural differences between the United States and Europe in how buyers and sellers allocate risks in M&A transactions, and how insurance has developed to solve jurisdiction-specific issues. Generally speaking, the US is more buyer-friendly and policyholder-friendly, while “buyer beware” is the norm in Europe.
Here we compare key differences in relevant M&A backgrounds and insurance terms. While this summary shows basic frameworks, brokers commonly negotiate enhancements, allowing buyers to choose from a menu of options, but also requiring assessment of how they interact with one another and their pricing impact. In addition, each transaction is unique and local practices and insurance markets (e.g., the UK, Germany, France) can vary. In fact, as more insurers expand geographically to serve cross-border buyers, the choice between R&W and W&I insurance is becoming less binary, and buyers increasingly have the option to create a blended option.
A. Differences in Economic Terms
B. Differences in Underwriting Process
[1] These rates are for M&A transactions, and real estate and other transactions are priced differently. Insurance pricing changes over time and is currently at historically low levels concentrating in the lower half of the range for the US. Indicative premium ranges will vary depending on the type of business or transaction, locations of the business, the governing law of the transaction agreement, and the domicile of the policyholder, among others.
[2] The definition of “fundamental” representations and warranties is narrower in Europe than the US. All operational representations and warranties are typically considered “general” in both jurisdictions.
C. Coverage Differences
[3] Whether information is “generally disclosed” requires a complex analysis, including an evaluation of whether the information was “fairly disclosed” as defined in the transaction agreement.
[4] Synthetic representations and warranties mean going beyond the representations and warranties in the transaction agreement and involve the policyholder and the insurer negotiating the wording of representations and warranties to be covered.
[5] Both W&I and RWI policies typically contain standard exclusions such as breaches known to the buyer’s deal team; purchase price adjustments; injunctive, equitable or other nonmonetary relief; asbestos or polychlorinated biphenyls; pension underfunding; uninsurable fines and penalties; transfer pricing; and loss of tax assets or relief (net operating losses).
In cross-border deals in which the buyer and the seller are accustomed to different M&A and insurance styles, depending on the competitive dynamic and relative bargaining power, the transaction agreement may follow the tradition of either party’s jurisdiction or adopt a unique hybrid approach. At the same time, as more insurers operate in multiple jurisdictions, the insurance market is better able to provide a bespoke solution, to a degree. To find an insurance solution that best fits the needs of a particular transaction, key steps include:
- Discussing specific attributes of the transaction, jurisdictions of the parties, and the buyer’s objectives with broker and counsel to determine if insurance coverage would be W&I, R&W, or a hybrid.
- Obtaining quotes and negotiating with an appropriate pool of insurers, depending on their licensure, appetite, expertise, and underwriting approach.
- Anticipating issues that would arise from cultural differences and proactively managing the underwriting process with the buyer’s advisers for optimal outcome.
At Goodwin and HWF Partners, we leverage a global team based in the United States and across Europe that capitalizes on valuable experience and expertise to navigate the complex issues that arise in cross-border transactional risk insurance placements.
[6] Due to legal differences between the terms “warranties” and “representations” in certain European jurisdictions, it is uncommon for European sellers to make “representations” in transaction agreements.
[7] Commonly referred to as “representations” or “reps.”
[View source.]