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Let's talk about Reps & Warranties

In mergers and acquisitions, representations and warranties (reps & warranties) play a critical role in the negotiation and documentation of the transaction. These provisions are intended to allocate risk between the buyer and seller, and ensure that the parties are aware of any potential liabilities associated with the target company. As a buyer or seller, the investment in the acquisition process can easily exceed $100,000. Reps & warranties can help alleviate some of the risk in this investment. In this blog post, we will discuss what reps & warranties are, how they work, and the role of reps & warranties insurance in M&A transactions.


What are reps & warranties?

Reps & warranties are statements made by the seller about the target company. These statements cover a wide range of topics, such as the accuracy of financial statements, the ownership of assets, the compliance with laws and regulations, and the absence of litigation. The buyer relies on these statements when deciding whether to proceed with the transaction and how much to pay for the target company.


If any of the reps & warranties turn out to be untrue, the buyer may be entitled to compensation from the seller for any resulting damages. This is known as a breach of reps & warranties.


What is reps & warranties insurance?

Reps & warranties insurance is a type of insurance policy that can be purchased by the buyer or the seller to protect against losses arising from a breach of reps & warranties. This insurance policy provides coverage for losses resulting from a breach of reps & warranties, such as financial losses, legal fees, and other expenses.


Reps & warranties insurance can be useful for both buyers and sellers. For buyers, it can help reduce the risks associated with an acquisition and provide peace of mind that they will be compensated in the event of a breach. For sellers, it can help reduce the need for escrow arrangements and provide additional protection against potential claims.


Who provides reps & warranties insurance?

Reps & warranties insurance is typically provided by specialized insurance companies or underwriters. These providers typically have significant experience in the M&A market and can offer a range of coverage options to meet the needs of both buyers and sellers.


The cost of reps & warranties insurance varies depending on a number of factors, including the size of the transaction, the nature of the target company, the perceived risk associated with the deal, and the specific terms and conditions of the policy. The cost of the insurance policy is typically borne by the party who purchases it, although this can be subject to negotiation.


In addition to reps & warranties insurance, other mechanisms can be used to mitigate the risks associated with a breach of reps & warranties. These include setting aside a portion of the purchase price in escrow, obtaining indemnification from the seller, or negotiating specific remedies in the event of a breach.


In conclusion, reps & warranties are an essential part of any M&A transaction, and they play a critical role in allocating risk between the buyer and seller. Reps & warranties insurance is an important tool that can be used to provide additional protection against the risks associated with a breach of reps & warranties. It is important to work with experienced advisors and insurance providers to ensure that the reps & warranties and insurance provisions of the transaction are properly structured to meet the needs of all parties involved.

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