November 27, 2018
R&W Insurance for India Deals: Frequently Asked Questions
Financial investors, including private equity investors are currently embracing a second wave of exits from investments in India. The Indian investment market has matured over time, and financial investors are now warming up to providing indemnities to potential acquirers, something that was hitherto unheard of. As these financial investors have been reluctant to carry forward the possibility of payment of these indemnities (due to fund life issues, claw-back provisions being triggered), an important alternative that has emerged is transactional insurance, or more commonly referred to as representations and warranties insurance (R&W insurance).
1. Is R&W insurance available for all transactions?
While R&W insurance is available for most acquisition / investment transactions, insurance companies look at certain sectors / industries (sectors where fines / financial penalties have traditionally been extremely high) with a certain degree of skepticism, and hence R&W insurance may be available at a cost relatively higher than that for other sectors.
2. What are the various insurance policies available for a potential acquisition?
Insurance policies are generally transactional (or R&W insurance) or tax insurance. We would be covering the former in this piece.
3. What is an R&W insurance generally obtained for?
Insurance is generally obtained to cover financial implications arising from the breach of representations and warranties provided by the parties. Tax insurance may also be obtained for covering any withholding obligations.
4. What are the different forms of R&W insurance available?
The different insurance policies available are ‘buy-side’ and ‘sell-side’ insurance policies.
Insurance policies are also categorized as (i) recourse based or (ii) non-recourse based. In a buy-side policy which is recourse based, the insurance company may proceed against the seller after payment of the claim in limited cases (fraud, gross negligence, willful misconduct), while in the latter, the insured has no right to proceed against the insured, even if an insurance claim is raised and paid by the insured. In addition, there are situations where the parties may commercially determine the recourse / non-recourse based nature of the insurance being obtained as well. These are covered below.
Insurance policies (if obtained from a foreign insurer) may also vary depending on the governing law of the insurance policy. These are generally US style policies or UK style policies, and there are distinguishing factors between a US style policy and a UK style policy. For instance, US policies generally do not consider data rooms as disclosure, while UK style policies do. Additionally, a UK style policy specifically amends the warranties provided as mutually agreed, as opposed to the US style.
5. When is it beneficial for parties to acquire an R&W insurance policy?
Generally, an R&W insurance is obtained in one of the following situations:
6. What is the cost of an R&W insurance policy? When are the parties expected to pay the premium?
The premium on an R&W insurance policy generally ranges between 1 – 2.5% of the insurance coverage sought. However, the premium may vary depending on the circumstances, the sector of the target company and the extent of coverage being insured.
The payment of premium can be discussed and negotiated with the insurer. However, the insurance policy does not kick-in until the premium is paid. Parties may elect to pay the premium upon closing, i.e. on the day the transaction is actually consummated, and the policy is effective from such date. On the other hand, the parties may also pay the premium prior to closing, and in such cases, if the transaction is not consummated, a bulk of the premium is refunded to the parties. The insurer may require certain confirmations upon closing if the insurance is obtained prior.
The parties may also be required to pay certain amounts upfront prior to the underwriting process being initiated by the insurer, which amount is forfeited in case the policy is not bound ultimately. If the policy is bound, such amounts are generally subsumed in the insurance premium.
7. Are there any financial obligations of the parties, even if an R&W insurance has been obtained?
8. When can one approach the insurer for an R&W insurance? How much time should one factor in for the policy to bind from the time the insurers are approached? Does the insurer conduct a diligence before issuing the R&W insurance?
Parties can approach the insurer for underwriting at any time, even post the execution of the transaction documents.
One should factor in about 3-4 weeks to obtain an R&W insurance policy from an insurer from the time they provide the insurer access to all documents. The process entails a few procedural aspects, including execution of relevant documents and payment of a fees, which is generally subsumed into the final premium. However, one should always check with the broker on the timeline, since it may vary depending on the complexity of the transaction, number of target companies involved and the extent of diligence undertaken.
The insurer conducts a limited diligence. However, the insurer’s diligence is only meant to have a clear understanding of the diligence undertaken by the acquirer, and is not an independent diligence which may substitute the diligence undertaken by the acquirer. For the purpose, the insurer may, in addition to the transaction documents and disclosure letters, require all diligence reports (except the acquirer’s diligence report if the policy being obtained is a buy-side insurance policy), diligence materials, data room, Q&A logs to all be provided to the insurer.
9. Are there any restrictions on who can obtain an R&W insurance?
There are generally no restrictions on who can obtain an R&W insurance. However, if the proposed insured under the policy is a resident, a non-resident insurance company cannot underwrite such risks under the laws prescribed by the Indian insurance sector regulator, the Insurance Regulatory and Development Authority of India, and an Indian insurer would have to be considered for underwriting such policy.
10. What is the relevance of the indemnity clause under the transaction documents, where the indemnified risk is covered by way of an R&W insurance?
Even though the liability from breach of a representation / warranty may be covered by the R&W insurance generally, the indemnity provision is crucial from multiple aspects.
11. What happens if a claim is raised under the R&W insurance?
In case a claim is raised under an R&W insurance policy, the insurance company engages a legal counsel to ensure that the loss claimed is not excluded under the R&W policy, as a deal exclusion item, standard exclusion or a disclosed item. Further in case of sell-side policies, any loss incurred as a result of fraud is also excluded. Once the insurance company satisfies itself of the above, the claim is processed.
As the Indian market matures further and R&W insurance becomes a common product in the market, it is expected that R&W insurance products would be tailored further to be in tune with the Indian market and deal contours.