Insurance Due Diligence in M&A Deals: Evaluating Coverage and Gaps, Mitigating Risks and Potential Liabilities

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Insurance Due Diligence in M&A Deals: Evaluating Coverage and Gaps, Mitigating Risks and Potential Liabilities THURSDAY, OCTOBER 29, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: B. Scott Burton, Partner, Sutherland Asbill & Brennan, Atlanta Amy J. Fink, Partner, Jones Day, Los Angeles Thomas S. Novak, Member, Sills Cummis & Gross, Newark, N.J. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Introduction This Presentation will: Provide an overview of best practices in evaluating risk exposure and risk mitigation in the context of the acquisition of a target business Identify and analyze risk management and mitigation processes and material insurance assets of the target and potential coverage gaps Discuss common insurance issues encountered in acquisitions Provide drafting tips related to key insurance oriented provisions of a purchase agreement Discuss the potential utilization of other insurance solutions that may be useful to produce a successful acquisition 5

6 Transaction Structures and Corresponding Risks Merger Liabilities of the target become liabilities of the combined entity Change of control clause may terminate target s policies Possible merger of the two companies insurance programs Stock Purchase Liabilities remain with the target, but may still impact consolidated financial statements Change of control clause may terminate target s policies Insurance programs may or may not be merged Asset Purchase Target s liabilities should not transfer with assets (excluding contractual obligations or transferred contracts) Use of additional insured coverage Potential successor liability for product liability claims 6

7 Insurance Coverage Due Diligence Evaluate the target s risk management and claim handling infrastructure In procuring insurance, does the target use a broker, a consultant or both? Is the target insured by a captive or risk retention group? Is the captive reinsured? Does it use an intermediary? Are claims handled by the carrier, a third party administrator, or inhouse by risk management? Does the target rely on additional insured status under its contractual counterparties policies? Is the target obligated to provide additional insured coverage to its contractual counterparties? Does the target lease employees from a professional employer organization (PEO)? 7

8 Insurance Coverage Due Diligence Identify the risk profile of the target Products liability Environmental liability Mass tort liability Professional liability Premises or other bodily injury Regulatory claims Fiduciary liability for ERISA plans Liability for employees of PEOs Retrospective premium Audit premium Workers compensation audit premium 8

9 Insurance Coverage Due Diligence Must-See Documents Current and prior insurance policies to confirm covered risks, limits, retentions, whether cost inclusive, retro dates, exclusions Schedule of historic insurance policies Policy applications Loss runs of the target and predecessor entities for the past 5-7 years to determine historical experience, possibly longer Litigation reports and pleadings for major claims Notices of circumstances Premium agreements Retrospective premium endorsements Premium audit reports 9

10 Insurance Coverage Due Diligence Must-See Documents (Continued) Third party administrator agreements Reinsurance agreements Contracts where the target is to be named an additional insured on counterparties policies Contracts where the target is obligated to name counterparties as additional insureds Declarations pages or certificates of insurance from subcontractors, contractual counterparties and PEOs PEO contracts 10

11 Insurance Coverage Due Diligence Assessing Adequacy of Coverage Evaluate financial quality and size of insurers and reinsurers Review A.M. Best s Evaluate financials of any risk retention groups or captives Evaluate current erosion of policy limits Determine whether change in control provisions will terminate current coverages Determine whether to purchase tail coverage Confirm implementation of additional insured status Beware the ISO blanket additional insured endorsement 11

12 Insurance Coverage Due Diligence Identifying and Avoiding Gaps in Coverage Compare target s and acquirer s insurance programs for quality, cost and coverage, utilize acquirer s broker or consultant Identify claims-made policies for change in control, retro date and tail coverage provisions Review key exclusions of D&O, E&O and products liability coverages, replace coverages Integrate target into acquirer s D&O coverage Transfer or replace property, general liability, workers compensation and auto policies Consider increasing limits if existing policies are substantially exhausted 12

13 Insurance Coverage Due Diligence Identifying and Avoiding Gaps in Coverage (Continued) Consider whether target has uninsured risks Confirm notices of claim timely sent on new claims Consider whether to send a Notice of Circumstances on target s expiring claims-made policies Look for adverse loss development/possible retrospective premium liability Compare pro forma premium estimates with actual premium Amend contracts and leases to implement additional insured provisions of contracts Confirm workers compensation coverage of subcontractors, PEOs and contractual counterparties 13

14 Insurance Coverage Due Diligence Special Issues with acquisition of assets of manufacturing companies Negotiate additional insured provisions with the seller to protect against legacy liabilities Where seller will terminate operations post transaction, obtain discontinued products insurance to insure successor liability 14

15 Impact upon the Purchase Agreement Provisions The representations and warranties along with the covenants contained in a negotiated purchase agreement should be used to confirm your insurance diligence efforts and to ensure that the anticipated insurance coverage will be available until and after the closing. With respect to representations and warranties, the buyer should consider requiring assurance regarding the following: The seller has provided copies of all relevant insurance policies and current pending insurance applications The seller has provided accurate descriptions of any self-insurance, retention arrangement or captive insurer facilities used to manage liabilities The seller has provided accurate information regarding claim history and experience under its insurance policies That all insurance policies are valid and enforceable against the insurer 15

16 Impact upon the Purchase Agreement Provisions (cont.) The insurance policies were issued by financially sound insurers The insurance coverage is adequate (perhaps by comparison with companies in the same business as the target) The insurance policies will continue in full force and effect following the closing (and listing any consents or notices that may be needed to assure such continuation) That all required premiums to be paid with respect to such insurance have been paid and other obligations by the insured have been performed The target/seller has given proper notice to the insurer of all insured claims The target/seller has not been notified of any cancellation of coverage, any material change in coverage or policy terms or of a material increase in future premiums That all information provided to any insurer in connection with coverage, including the application for insurance, was accurate and that the target/seller has not provided any other information to any insurance company that could likely result in the cancellation of an insurance policy or the denial of coverage for a specific risk/claim 16

17 Impact upon the Purchase Agreement Provisions (cont.) Likewise, the buyer should request a number of covenants from the seller/target. For example, the buyer should consider requiring: The seller/target manage its insurance program through the closing in a manner consistent with past practices The seller/target continue to pay all required premiums and otherwise continue to maintain its insurance coverage The seller/target continue to timely file all relevant claims that arise prior to the closing The seller/target cooperate with the buyer to transfer all insurance coverage to the buyer/target following closing The seller/target cooperate with the buyer in the event that the buyer wishes to procure tail or other coverage on the target post-closing The seller/target will provide the buyer with the historical records (or access thereto) so that potential future claims can be adequately managed 17

18 Transferring Insurance Coverage Assignment Change of Control Bifurcation of Coverage Tail Policies 18

19 Additional Insurance Solutions Representations and Warranties Insurance What is it? Most commonly known and widely used type of transactional insurance. Covers financial losses resulting from any defects or deficiencies in the due diligence process. Covers loss resulting from breach of representations and warranties made in purchase agreement. Either Buyer or Seller may be the Insured. Two types of R&W policies Buy-Side policy Sell-Side policy Different functions and coverage triggers. 19

20 Additional Insurance Solutions (Cont.) Why Purchase Buy-Side R&W Insurance? Buyer wants to enhance protection for breaches of representations and warranties. Can be Buyer s sole remedy for breaches or recourse for limited breaches. Additional protection beyond the indemnity cap in the purchase agreement. Can replace indemnification obligations of Seller. Can extend the duration of indemnification. Public company deals. Distinguish bid in auction. May be easier to recover losses from insurer than the Seller. Examples: Seller financial status is an issue. Logistics of locating numerous Sellers or geographically dispersed Sellers. Seller may not exist post-closing. Protection of key relationships with business partners as well as employees of acquired entity. Obviates need for continuing relationship with difficult Seller. Can supplement due diligence efforts. 20

21 Additional Insurance Solutions (Cont.) Why Purchase Sell-Side R&W Insurance? Acts as backstop to Seller s indemnification obligations. Can reduce Seller s negotiated indemnity obligation and escrow. Protects passive sellers. Financially distressed sellers can use sale proceeds to pay down existing debt. May attract better offers by ability to provide more indemnity. Allows a clean exit to a business or industry. 21

22 Additional Insurance Solutions (Cont.) Process and Timing Will it Slow/Delay the Deal? Selection of insurer and due diligence fees. Dedicated broking and underwriting teams, ex-m&a lawyers. Can move very quickly. Cost Is it Prohibitively Expensive? Premium 2-4% of coverage limits purchased; party responsible for premium is negotiated. Deductible 1-3% of purchase price. Buyer-side policies may use the holdback as a deductible. Value What is covered? Blanket Policies v. Single Issue Policies. Purchase agreement is made part of policy application and policy itself. Insurer s obligations limited to the insured representations and warranties. 22

23 Additional Insurance Solutions (Cont.) What are the Potential Pitfalls? R&W Policies One Size Fits All Be aware of exclusions and coverage limitations. Terms may not mirror the terms of the R&W in the agreement; watch out for gaps in coverage and retention issues. Can provide extension of the survival periods for many representations but for fundamental representations, where survival period is indefinite, policy will not cover the entire survival period. Policy limits generally higher than indemnity cap for breaches of certain R&W under the sale and purchase agreement, fundamental representations may not be covered in their entirety since indemnification for breaches of such R&W is generally capped. Watch out for privilege and disclosure issues. Timing of notice is critical because they are claims made and reported policies. 23

24 Additional Insurance Solutions (Cont.) Other Transactional Insurance Products Tax Indemnity Insurance (aka Tax Opinion Insurance): Covers taxes, interest, penalties, legal costs, and a gross up on insurance payments if the relevant tax authorities federal, state or local or foreign do not respect the insured tax positions. Loss Mitigation Insurance (aka Contingent Liability Insurance): Insures known but not yet quantifiable risks. Pollution Legal Liability Insurance: Stand-alone pollution coverage. Can be modified to insure the representations, warranties and indemnities in a transaction that relate to unknown environmental liabilities. Loss Portfolio Transfer Insurance: Allows a Buyer or Seller to bundle up a company s Workers Compensation, Directors & Officers and General Liability claims incurred before a transaction and transfer those claims to an insurer at a fixed cost. 24

25 Speaker Information B. Scott Burton, Partner, Sutherland Asbill & Brennan LLP, Atlanta, GA Scott focuses on corporate mergers and acquisitions, corporate finance and securities, and general corporate and securities matters. He heads the firm s Financial Services Industry Transactional Practice Group. His experience includes representing buyers and sellers in acquisitions and dispositions of private and publicly held life and property and casualty insurance companies, blocks of insurance business, broker-dealers and investment advisers. scott.burton@sutherland.com Amy J. Fink, Partner, Jones Day, Los Angeles, CA Amy is a partner in Jones Day s Insurance Recovery Practice. She represents clients on a wide range of insurance-related issues, including providing advice on insurance issues in the context of corporate transactions as well as a wide variety of claims including professional liability, product liability, environmental, asbestos, intellectual property, construction, product recall, directors' and officers', toxic tort, employment practices, and securities-related claims. afink@jonesday.com Thomas S. Novak, Member, Sills Cummis & Gross, Newark, NJ Tom chairs the Insurance and Reinsurance Practice Group at Sills Cummis where he has practiced for 35 years. He served as Special Counsel to the New Jersey Department of Insurance for 20 years in connection with various insurer liquidations. He litigates insurance and reinsurance coverage disputes, and acts as a consultant to M&A attorneys on insurance issues arising from such transactions. He also assists clients in the design and placement of insurance programs. tnovak@sillscummis.com 25