Mitigating Indemnity Risks in PE / M&A deals in India

 

Thursday, March 9, 2017

4:30 PM TO 6:00 PM (IST) : ROUND TABLE + WEBINAR

VENUE: MUMBAI – BKC AUDITORIUM, NISHITH DESAI ASSOCIATES, 2ND FLOOR, 3, NORTH AVENUE, MAKER MAXITY, BANDRA-KURLA COMPLEX, MUMBAI – 400 051, INDIA

6:00 PM TO 7:30 PM (IST) : COCKTAILS

VENUE: LIMA, MAKER MAXITY, BANDRA-KURLA COMPLEX, MUMBAI – 400 051, INDIA

 

PRELUDE

Increasing action in Indian PE/ M&A space has prompted emergence of new issues that impact acquirers, sellers and investors alike. Assessment of risks and how to mitigate the same has become crucial. One of the most important negotiation points in Indian PE / M&A deals is representations and warranties (R&W), covenants and indemnities.

R&W has a different connotation when provided by founders, as opposed to when provided by financial investors. With increasing distressed and controlling funds stepping into the Indian landscape, this distinction is getting more and more blurred. While negotiation on concepts like diminution of value of shares, tipping and non-tipping baskets, and de-minimus take up substantial time in deal negotiations, we have seen substantial surge in insurance policies being used to mitigate indemnity risks.

We cordially invite you to join us for our round table and webinar to have an elaborate discussion on indemnities, the different perspectives on indemnities and how to mitigate risks.

Focus Area

Market standards in primary deals

  • R&W by company

  • R&W by founders

  • R&W by minority financial investors

  • R&W by majority financial investors

Market standards in secondary deals

  • R&W by company

  • R&W by founders

  • R&W by minority financial investors

  • R&W by majority financial investors

  • R&W in portfolio buy-out deals 

General indemnities

  • Indemnities vs damages

  • Limited fund life issue for PE funds

  • Liability on founders as individuals

  • Escrow arrangements

  • Limitation of liability clauses

Tax indemnities

  • Market standards

  • Nil withholding

  • Escrow agreements

Insurance for indemnities

  • Overview

  • What to keep in mind

  • Tricky issues

Other insurance products

  • Tax insurance

  • Contingent risk insurance

Flow of the session

4:30 PM–6.00 PM :

Round Table + Webinar

6:00 PM–7:30 PM :

Cocktails

Speakers

ANGUS MARSHAL

AIG M&A Insurance Group

Angus Marshall is the manager of the AIG M&A Insurance Group in the UK. Angus is an Australian qualified lawyer with experience of working for PricewaterhouseCoopers in their international tax and mergers and acquisitions group and Norton Rose Fulbright in their mergers and acquisitions practice. Angus joined AIG London in 2013 as a Senior Underwriter focussing on emerging markets. He holds a Bachelor of Commerce and a Bachelor of Laws from the Australian National University and a Masters of Laws from the University of Sydney.

MARK STORRIE

AIG M&A Insurance Group

Mark Storrie is a Senior Underwriter in the AIG M&A Insurance Group. Based in London, Mark focuses on emerging markets transactions and has particular experience in private equity. Mark qualified as a solicitor at Clifford Chance in London in 2009 and worked in the M&A and Private Equity practice for over four years post-qualification, where he gained particular experience in emerging markets transactions. Mark joined AIG from the private equity team of Travers Smith in 2015. He holds a Bachelor of Laws from Durham University.

MANDIRA GUPTA

Marsh India

Mandira leads the Transactional Insurance (India) for Marsh’s Private Equity and M&A practice, with a focus on Warranty and Indemnity Insurance and Tax Indemnity Insurance. Mandira has developed the Transactional Risk practice in India with the responsibility for marketing, business development and execution of insurance solutions for Marsh's private equity and corporate clients. Mandira also works closely with the Asia region by collaborating on regional Transactional Risk insurance placements. Mandira brings 10 years of experience in investment banking during which she has successful led transactions aggregating over $150 million. She brings with her expert understanding of M&A deals and a wide industry network. Prior to joining Marsh, Mandira was heading the consumer practice at Cipher Capital for over three years, before which she was a senior banker with the UK headquartered boutique investment bank Langham Capital focused on cross-border transactions.

NISHCHAL JOSHIPURA

Nishith Desai Associates

Nishchal Joshipura is a leader of the Mergers & Acquisitions and Private Equity Practice at Nishith Desai Associates. He is a Lawyer, Chartered Accountant and MBA.

He has led several high profile M&A and Private Equity deals and set up multiple offshore and domestic India focussed funds. He specializes in legal and tax structuring of complex cross-border transactions. He also advises major MNCs on Corporate & Securities laws, Transfer Pricing, International Taxation, Globalization, Structuring of Inbound/ Outbound Investments, Taxation of E-Commerce and Exchange Control Laws.

He has been “Highly Recommended” by various legal directories for legal and tax advice on M&A, Private Equity and Investment Funds. He has recently been nominated as a “Young Achiever” at the Legal Era Awards 2015 based on industry research, reviews, rating and surveys conducted by Legal Era.

SIMONE REIS

Nishith Desai Associates

Simone Reis is a leader of Mergers & Acquisitions and Private Equity Practice at Nishith Desai Associates. She is qualified to practice law in India and in New York and holds an LLM degree from Duke University, North Carolina, USA. She is also a part of the Competition Law practice at the firm.

Both domestic and international, Simone Reis has led several high profile deals and focuses on M&As, competition law, private equity and venture capital investments. She has advised a wide spectrum of MNCs across several sectors such as manufacturing, pharma, information technology and banking and financial services.

Karan Kalra

Nishith Desai Associates

Karan is a leader of M&A and Private Equity practices at Nishith Desai Associates. Karan focuses largely on domestic and cross border M&As, fund investments, structured finance transactions and on providing regulatory and general corporate advice. With a specific industry focus on the banking and financial services sector, he has advised clients across several jurisdictions and sectors.

Prior to joining Nishith Desai Associates, Karan has experience working with one of the largest private banks in India. Karan completed his LL.B. from Symbiosis Law School, Pune and has also pursued an LL.M. from Northwestern University School of Law, Chicago, USA. He is eligible to practice law both in India and New York, USA.

Karan has been credited for his work in IFLR 1000, Legal 500 and the Financial Times - RSG Consulting Survey.

Partners

 

AIG has one of the largest and most experienced M&A teams in the world with well over a decade of experience in underwriting M&A Insurance products, enhanced by AIG’s unparalleled multi-national presence and global underwriter footprint. AIG’s underwriters have all practiced as M&A professionals and assess and underwrite M&A risks in a commercial manner, underpinned by technical expertise. AIG has an unmatched claims history and offers a unique and efficient claims handling function, with claims handling and adjusting functions in every jurisdiction in which it has regulated entity. In addition, for large and complex claims, AIG has Major Claims Handlers with specialised M&A claims experience in every regional economic centre including London, New York, Sydney, Frankfurt and Hong Kong. As a consequence, any claim made under a warranty and indemnity insurance policy will be dealt with by an experienced claims handler who has particular expertise in dealing with warranty and indemnity insurance claims.


Marsh is a wholly owned subsidiary of Marsh & McLennan Companies (NYSE: MMC), a global team of professional services companies offering clients advice and solutions in the areas of risk, strategy and human capital. With 52,000 employees worldwide and annual revenue exceeding $13 billion, Marsh & McLennan Companies is also the parent company of Mercer, a global leader in human resource consulting and related services; Oliver Wyman, a global leader in management consulting; and Guy Carpenter, a global leader in providing risk and reinsurance intermediary services. 


 

The Indian Private Equity and Venture Capital Association (IVCA) is the oldest, most influential and largest member-based national organization of its kind. It represents venture capital and private equity firms to promote the industry within India and overseas. It seeks to create a more favorable environment for private equity, venture capital investment and entrepreneurship. It is an influential forum representing the industry to governmental bodies and public authorities.

IVCA members include leading venture capital and private equity firms, institutional investors, banks, corporate advisers, accountants, lawyers and other service providers of the venture capital and private equity industry. These firms provide capital for seed ventures, early stage companies, later-stage expansion and growth equity for management buyouts/ buy-ins.

IVCA aims to support entrepreneurial activity and innovation as well as the development and maintenance of a private equity and venture capital industry that provides long term equity capital. It helps establish high standards of ethics, business conduct and professional competence. IVCA also serves as a powerful platform for investment funds to interact with each other.

The Association stimulates the promotion, research and analysis of private equity and venture capital in India, and facilitates contact with policy makers, research institutions, universities, trade associations and other relevant organizations. IVCA collects, circulates and disseminates commercial statistics and information related to the private equity & venture capital industry.