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Indemnify is a Funny Word Carrying Historical Baggage—Be Aware and Use with Care

Glenn D. West — Tue, 17 Dec 2019 05:34:06 +0000

Despite the proliferation of R&W insurance as the sole recourse for buyers with respect to sellers’ breach of representations and warranties, an indemnification remedy against sellers (subject to a cap) continues to find its way into many private company acquisition agreements. Indemnification, as a concept, originated in the context of one party to a contract […]

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While Time Marches On—Breach of Representations & Warranties, Survival Periods, and New York’s Statute of Limitations

Glenn D. West — Mon, 05 Nov 2018 14:57:38 +0000

Introduction On October 16, 2018, New York’s highest court held that freedom of contract is strictly constrained by the state’s statute of limitations regime.[1] Parties are simply not permitted, at the time they enter into a contract, to contractually agree to delay the commencement, or extend the expiration date, of New York’s six-year statute of […]

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How a 12 Month Survival Period Can Become A Lot Longer (or Not)—the Required Notice of Claim

Glenn D. West — Thu, 22 Mar 2018 08:48:49 +0000

Private equity sellers and buyers carefully negotiate the time periods during which post-closing indemnification claims may be made in the acquisition agreement for a target company, assuming in the current market there is any post-closing indemnification at all. For the private equity seller, the survival period is intended to demark the time after which there […]

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Representation and Warranty Insurance – To Insure, or Not to Insure, That is the Question

Brian Gingold — Mon, 05 Mar 2018 14:29:09 +0000

In today’s competitive, seller-friendly M&A environment, buyers are often left with the choice to insure using representation and warranty insurance or to self-insure by accepting all post-closing risk. The days of sellers standing behind their representations and warranties in the purchase agreement appear to be trending away. This note highlights several considerations for a buyer […]

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Weil’s Q3 2016 Quarterly Private Equity Update: Preparing for Exits – Key Issues for Sponsors Across the U.S., Europe and Asia

Christopher R. Machera — Wed, 09 Nov 2016 17:56:21 +0000

Weil’s Global Private Equity Update provides updates on current topics and trends in global private equity. This issue provides a comparison of some of the interesting trends and issues related to sponsor exits across the U.S., Europe and Asia. View Weil’s Q3 2016 Global Private Equity Update.

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Weil’s Q2 2016 Quarterly Private Equity Update: Insuring Deals Around the World: Variations on Rep & Warranty Insurance Across the U.S., Europe and Asia

Simon Lyell — Thu, 18 Aug 2016 21:14:56 +0000

Weil’s Global Private Equity Update provides updates on current topics and trends in global private equity. This issue summarizes the key terms of Rep & Warranty insurance and highlights the key differences in the U.S., European and Asian markets. View Weil’s Q2 2016 Global PE Update.

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Please Buckle Your Seatbelts and Check Your D&O Insurance: A Gloomy Forecast Is Ahead

Ronit Berkovich — Wed, 20 Apr 2016 13:54:04 +0000

Despite the initial glee of the prospect of a United States that was independent of Middle East oil, beginning in the fourth quarter of 2014, the price of oil started dropping precipitously. As noted in a recent article, over 80 bankruptcies in the oil industry were filed in 2015, up 471 % over calendar year […]

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R&W Insurance, Part II: Pros and Cons for Sellers

Private Equity Alert — Thu, 28 May 2015 15:15:59 +0000

The key advantage of R&W insurance to sellers is limiting (or eliminating) their post-closing liability for breaches of reps and warranties made in the acquisition agreement.

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R&W Insurance, Part I: Pros and Cons for Buyers

Private Equity Alert — Wed, 27 May 2015 15:05:58 +0000

In today’s seller-friendly PE market, buyers are increasingly faced with sellers offering no (or a very low) seller indemnity. As a result, R&W insurance may be the only realistic option for the buyer to obtain something similar to a historically customary seller indemnity.

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Weil’s Q2 2014 Quarterly Private Equity Update: Unlocking “Locked Box” Deals

Global Private Equity Watch — Thu, 24 Jul 2014 00:00:26 +0000

Weil’s Global Private Equity Update provides updates on current topics and trends in global private equity. In this issue: Unlocking “Locked Box” Deals Representation and Warranty Insurance – Back In Fashion… Recent Weil Representations View Weil’s Q2 2014 Global PE Update.

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