Frequently Asked Questions about Transactional Insurance

Transcription

1 Aon Risk Solutions Financial Services Group Frequently Asked Questions about Transactional Insurance First Ten in a Series by: Aon Financial Solutions Aon Financial Solutions works with private equity and corporate clients and their principal legal, accounting and financial advisors to address transactional risk in M &A and financing transactions. Principal products are: representations and warranties insurance, tax insurance, litigation buyout insurance and environmental insurance in addition to customized one-off solutions.

2 Index Frequently Asked Questions 3 Aon Financial Solutions Team Contacts 12 Aon Risk Solutions Financial Services Group 2

3 Frequently Asked Questions 1. Can insurers work on deal time? YES! The following anecdote is an excellent example of insurers meeting tight time constraints of a deal. On Thursday, November 18th (4 ½ business days before Thanksgiving 2004), Aon Financial Solutions was asked to obtain quotes for approximately $40 million of representations and warranties insurance before our client left for the holiday. The request involved an approximately $400 million acquisition by a private equity fund. Documents were provided to Aon mid-day on Thursday. Aon had only a brief time period to analyze these materials, prepare the insurance submission and submit the risk to appropriate insurers. On Tuesday before the holiday, Aon received detailed written quotes from 2 insurers one for the entire program and one for a primary layer. On that same day an excess layer was quoted by a third insurer to supplement the second quote. On Wednesday morning, the client was provided with the quote letters and detailed summaries for its review over the holiday weekend. (The second phase of the process involves due diligence by insurers and generally takes about 1 to 2 weeks.) Needless to say, turnaround time often is dependent on available information and the specifics of a deal. However, we were extremely pleased with the responsiveness of the insurers and our ability to meet our client's deadlines during a holiday week. Aon Risk Solutions Financial Services Group 3

4 2. Is Tax Insurance different from Tax Opinion Insurance? Am I required to provide a tax opinion to obtain insurance? Tax Insurance and Tax Opinion Insurance refer to the same product. By either name, it is a risktransfer insurance product intended to provide comfort to a taxpayer that the intended tax treatment of a transaction or situation will be respected by the IRS or the relevant state, local or foreign tax authority. The policy can cover taxes, interest, penalties, contest costs and a gross up on insurance payments on a wide variety of transactional or ongoing tax situations. These range from tax-free reorganizations, spin-offs, REITs, S Corporation elections, golden parachute excise taxes, etc. Tax shelters are not generally insurable. Opinions are not required to obtain tax insurance, but can be helpful. Insurers form an independent view of the structure of a transaction and base their underwriting decision on that view. Some insurers use outside counsel; others use in-house expertise. In Aon s experience, however, there are benefits to an insured in providing an insurer with a well thought out and credible road map to understanding the risk. This may take different forms an opinion, a memorandum or even a ruling request. Providing such a document to an insurer also can be more cost-effective than paying the insurer s added cost of creating the analysis on its own. For a transaction in which no formal tax opinion is prepared (a scenario becoming more common under recently changed rules for tax opinions), Aon works with the client and the client s professional advisors to develop a description of the transaction and intended tax treatment. Such analysis has proven to be an excellent means to introduce insurers to the scenario for which coverage is sought and to begin the insurer s due diligence process. For information on the terms and conditions applicable to Tax Insurance and actual case studies, please contact the undersigned. Aon Risk Solutions Financial Services Group 4

5 3. Does Representations and Warranties Insurance cover the Environmental Representation? Most underwriters of representations and warranties insurance will cover the environmental representation if it is not an environmentally sensitive business. Those insurers, which also underwrite environmental insurance, typically will cover the environmental representation provided it meets their underwriting guidelines. However, environmental liability insurance often provides a better solution. Representations and warranties insurance is designed to cover the accuracy of the information conveyed by a seller to a buyer in the form of reps and warranties. The scope of the coverage is necessarily dependent on the representation itself. Is a seller merely stating it is not aware of a pollution liability? Or is it going further and stating that there is no basis for pollution liability? Rarely will a seller make such an absolute representation. To the extent that a seller is aware of an environmental situation which breaches such representations, seller coverage would not provide a source of recovery. Similarly, knowledge of a buyer would prevent a claim under buyers reps and warranties coverage. Environmental liability insurance on the other hand will cover a buyer for cleanup costs and third-party liability for bodily injury or property damage relating to an insured property or group of properties. The scope of the coverage is free-standing and not limited by the representations and warranties in a stock purchase agreement. Similarly, knowledge of the potential environmental situation will not directly impact the coverage (although an accurate application is required.) Aon often recommends to clients buying or selling companies that they consider environmental insurance as a companion coverage to reps and warranties insurance because of the greater breadth of coverage. Aon Risk Solutions Financial Services Group 5

6 4. How extensive is an Insurer s due diligence with respect to Representations and Warranties Insurance? The process to purchase reps and warranties insurance typically involves 2 steps: (1) an initial nonbinding indication of interest and (2) our focus here, the due diligence phase in which an insurer seeks to confirm that its insured has approached the transaction as if it was uninsured. The due diligence conducted by insurers however is not very extensive or time consuming. This is particularly the case when one considers the broad scope of topics covered in the typical 20+ pages of representations and warranties in a stock purchase agreement. The various insurers approach due diligence in different fashions. In all cases, the due diligence effort begins after the potential insured has selected one or more insurers to work with based upon their nonbinding indications of interest. Some insurers use outside counsel; others rely on in-house capabilities. Clearly, there is neither time nor a budget for an insurer to undertake the extensive due diligence effort a buyer would normally require. In contrast, an insurer s due diligence generally takes no more than a week +/-and tends not to be particularly intrusive to the deal process. An insurer will do a high level check that the buyer s advisors (in the case of buyer-side coverage ) have performed the sort of due diligence the insurer would expect. This typically takes the form of an initial conference call with the deal team to provide the insurer with an overview of the due diligence process. The insurer will have reviewed a due diligence report (if one exists) and/or relevant document requests and responses between buyer and seller. It is rare for an insurer to visit a data room. Following the initial call, the insurer may select several substantive areas for the expert on the insurer s team to discuss further with the counterpart on the buyer s team. Seller-side coverage engenders an effort focused on how the seller has conducted itself vis-a-vis the buyer s due diligence. This similarly will begin with a document review and a conference call with appropriate executives of the seller to go over the buyer s process and to assure the insurer that the seller s reps were made with an eye toward what the seller was in a position to represent. As in due diligence for buyer-side coverage, the insurer s counsel may investigate further into selected areas. Overall, the due diligence process is an appropriate balance to satisfy their underwriting requirements, while allowing the transaction process to proceed toward signing an SPA or to closing without undue delay. Aon Risk Solutions Financial Services Group 6

7 5. How can a Buyer use Reps and Warranty Insurance to enhance limited Seller indemnities for Breaches? Those involved in the Private Equity and M&A business likely have witnessed the emergence of a Seller s market in which it is not uncommon for Seller s to be seeking as is sales or sales with very limited indemnity for Breaches of Representations and Warranties. For example, many transactions are being structured with relatively short indemnities (say 12 to 18 months) with caps as low as 3% to 5% of purchase price. Others are being structured without any survival of reps and warranties. For Buyers used to receiving higher caps (all or partially backed by an escrow) and longer survival periods to statute of limitations for the tax, title, ERISA and environmental representations, this can be difficult to swallow. Is it acceptable for a Buyer to accept these terms even though prior acquisitions have been structured with more protection? Buyer-side Reps and Warranties Insurance offers a solution. Buyers can incorporate this coverage into their transactions to resolve the mismatch of Buyer requirements and Seller market power. The insurance can supplement a Seller s indemnity by adding an additional layer of coverage and extending the survival period to as much as 6 years. Insurers generally seek a deductible of 2 to 3% of purchase price, which often can drop down after an initial period of 12 to 18 months. For example, take a hypothetical $100M transaction in which the Seller provides a $5M (5%) indemnity for 1 year above a $1.5M (1.5%) Buyer basket. The Buyer then supplements the Seller s indemnity with an additional $20M of coverage. In year 1, coverage would sit excess of the Seller s indemnity. For the remainder of the 6-year term, the policy would be excess of a smaller retention, say $1M. (Survival of the general business reps however would be limited to a shorter period, say 2 to 3 years). Similarly, Buyer coverage can be used in a transaction which provides for no survival of reps and warranties. Buyer Representations and Warranties Insurance is first party coverage running directly to the Buyer and requiring no involvement by Seller in the claims process. The cost of the coverage generally is 3 to 5% of the amount of coverage purchased (payable one time, upfront). Environmental insurance can also be used in a similar manner to address transactions where the principle concern relates to pollution and environmental matters. We invite you contact Aon Financial Solutions to discuss potential transaction structures and how these tools can be utilized in a particular situation. Aon Risk Solutions Financial Services Group 7

8 6. Is a Run-Off D&O Policy (aka a Tail ) Needed to Protect Directors and Officers after an M&A Transaction? Generally, the answer is YES with respect to the target company. D&O polices usually have a change in control provision which has the effect of covering wrongful acts up to the effective date of the transaction. Directors and officers protection will come to an end once the current claims-made policy period expires (generally at the next annual renewal.) The Tail coverage provides protection for former acts and protects the past directors and officers from claims which might arise from those actions for a longer run-off period (up to 6 years). A Tail will provide coverage for claims arising out of wrongful acts that occur prior to a merger or acquisition. The Tail policy will protect the directors and officers against claims made during the runoff period (which is after the acquisition) for wrongful acts prior to the transaction. Types of transactions that require the purchase of Tail coverage: Mergers, acquisitions and stock sales Any transaction where there is a contractual requirement to purchase directors and officers liability insurance for the acquired entity (non-surviving entity) Types of transactions when purchasing a Tail is not required, but prudent: Transaction where the acquirer assumes, but is not contractually obligated to buy insurance Transactions where the acquirer is contractually obligated to indemnify the old board of directors but is not required to provide insurance, such as purchase of a subsidiary/ affiliate of a company. Tail coverage can be a key component of the insurance arrangements surrounding an M&A deal. It is critical to involve the right expertise to ensure that a Target s directors and officers are appropriately covered on an ongoing basis. We invite you contact Aon Financial Solutions to discuss use of Tail coverage and related products and the process to obtain such coverages. Aon Risk Solutions Financial Services Group 8

9 7. Why buy Tax Insurance if I can get a Private Letter Ruling? Parties to a transaction often do not see the PLR process as a viable route to obtaining comfort on a tax position (even if a ruling is available). While a tax insurance policy and a private letter ruling can accomplish similar goals for a taxpayer, namely adding certainty that a tax position or structure will be respected by the taxing authorities, time may be of the essence the PLR process is not fast. Imagine putting an auction process on hold to allow for a ruling. Tax insurance on the other hand can be put in place fairly quickly (although not recommended) it has been done in 10 days. There also are confidentiality concerns a buyer or seller may not wish to make the disclosures required for a ruling on a pending transaction. All parties to the tax insurance process routinely sign confidentiality agreements. PLRs are not available on many issues. The IRS is authorized, but not required, to provide a PLR to a taxpayer. Hence, for example, where issues are particularly factual, the law or regulations are in flux or the IRS simply does not wish to provide a public road map to taxpayers on a particular topic, the IRS may decline to rule. See Rev. Proc which sets for the 19 pages of topics which rulings cannot be obtained. A PLR also will not typically rule on factual issues or valuations, but tax insurance may be structured to provide comfort where there are factual or valuation issues. Tax insurance (aka Tax Opinion Insurance) is an insurance product which provides comfort that the intended tax treatment of a transaction or situation will be respected by the IRS or the relevant state, local or foreign tax authority. The policy can cover tax imposed, interest, penalties, contest costs and a gross up on insurance payments on a wide variety of transactional or ongoing tax situations. These range from tax-free reorganizations, spin-offs, REITs, S Corporation elections, golden parachute excise taxes, etc. Tax shelters however are not insurable. While the cost of tax insurance is more than the cost of a ruling, the amount frequently makes sense in the context of the overall transaction. Aon Risk Solutions Financial Services Group 9

10 8. How does a Seller benefit from M&A Insurance? We have seen a number of situations in which astute Sellers have sought to address risks through insurance in their pre-sale process. These may relate to a tax issue, pending litigation, an environmental concern or another type of risk nor falling into one of these categories. By wrapping such a risk with insurance, a Seller often can minimize the due diligence requirements of a potential Buyer or financing party because the coverage will add certainty to their analysis. The existence of a policy will avoid the natural inclination of a Buyer, lender and their advisors to overvalue a risk due to the uncertainty felt by an outsider having to understand and size a potential liability. A Buyer often will pay more (or stated another way demand less in the way of price adjustments) for such an asset as the potential risk has been taken off the table or at least quantified. Take for example a Seller facing a tax risk in a foreign country. In one situation, our client had committed huge resources to understand the risk and develop a strategy to address the case with tax authorities if challenged. They were extremely concerned that a Buyer s diligence process would be bogged down by having to figure this risk out for themselves. This Seller arranged for tax insurance for the Buyer s benefit and a smoother process resulted. In another case involving taxes, our client believes that it realized a higher sales price because a price adjustment by the Buyer was avoided since it could look to the tax insurance. We also have seen a similar dynamic in the environmental context where a Seller arranged for a combination cleanup cost cap and pollution liability policy and required a Buyer to purchase it for both the benefit of Buyer and Seller. It was important that it covered the Seller because of the ongoing legal liability to both Buyer and Seller. PE funds winding down a fund also may wish to consider the use of representations and warranties insurance as an alternative to indemnifications by a fund. By arranging for a Buyer to look exclusively to a "Buyer" policy covering it against Seller breaches (or perhaps a policy plus a short escrow), the Seller can avoid a potential long-term contingent liability against the fund and the need to hold back assets to satisfy such a claim. While a "Seller" policy would practically transfer the risk, it must sit behind a Seller indemnity and mechanically would not be as effective as the "Buyer" policy. Aon Risk Solutions Financial Services Group 10

11 9. Where is the market for Transactional Insurance Products today? The market for transactional insurance most often thought of as mainly reps and warranties insurance and various other one-off products, such as tax insurance, litigation buyout insurance and environmental insurance is a dynamic market and is constantly developing as it responds to clients' needs, competitive forces and underwriting results. This summarizes some of the key recent developments. New Insurers Since mid-2007, in addition to continued participation by a number of long-standing markets, several insurance companies have introduced a reps and warranties insurance product. These include new Lloyd's capacity and Zurich. AWAC and ACE also have added excess capacity to the market. The entrance of new insurers has served to create a more competitive environment benefiting buyers of the product (whether M&A buyers or sellers) in various ways ranging from terms and conditions, appetite for different industries and countries, and more aggressive retentions and pricing. Reduced Pricing The most notable impact of the increase in competition is a reduction in insurance premium cost. Today, we typically see US pricing for "standard R&W coverage" ranging from a 2.5%-3.5% rate on line. For example, the one-time up-front premium for a $10M policy would be $250K-$350K, plus taxes. This is an approximately 25% reduction from a year ago. The European and Asia Pacific markets have experienced even more severe price competition with rates starting as low as 1% on line. Underwriting Prowess/Flexibility We continue to see an increase an underwriting flexibility. As the products mature and insurers become more experienced, there is an increased receptivity to handling ancillary risks along with reps and warranties breaches. For example, this may include coverage for contingent liabilities scheduled on disclosure schedules and other specific indemnifications being provided to buyers by sellers. The ability to cover issues beyond breaches of reps and warranties also offers an ability to use reps and warranties insurance as a vehicle to wind-up a funds' hanging liabilities and protect a buyer acquiring a holding company along with an operating company. Streamlined Process The insurers' due diligence process has become more efficient over time as well. In this regard, we have seen a decline in insurers due diligence costs and an ability when needed by a transactional timeline to work quickly. While 7-10 days normally should be allowed for R&W buyer due diligence, on one transaction, the insurer was able to complete due diligence over a weekend. Claims Experience An important benefit of transactional insurance policies continues to be that it facilitates the negotiation process between buyer and seller. However, the insurers who have been in the business for a while all have paid R&W insurance claims. Broadened Client Base Private equity funds remain the largest users of transactional insurance products. We also are seeing interest by strategic buyers and sellers, parties to real estate transactions and lenders. Aon Risk Solutions Financial Services Group 11

12 Aon Financial Solutions Team Contacts Michael J. Schoenbach, CPA, Managing Director / michael_schoenbach@aon.com Michael has been responsible for the creation of new markets for difficult to place risks as well as the development of new and unique M&A insurance products and litigation buyout insurance programs. Other duties include negotiation and placement of financial guaranties, credit enhancements, professional liability and lender liability coverages. Michael has 28 years of experience in accounting, financial services and insurance brokerage. (Education: Northeastern University, B.S. Business Administration (1978); New York University, Real Estate Diploma Program (1980)). Gary P. Blitz, Esq., Managing Director / / gary_blitz@aon.com Gary joined Aon in 2004 after a 20-year legal career during which he became a nationally recognized expert in the insurance of financial and transactional risks, such as M&A insurance, insurance programs covering tax and regulatory risks, litigation buyouts, environmental insurance and credit enhancements. Gary was a founder of the insurance brokerage affiliate of his former law firm. (Education: The University of Michigan School of Business Admin., B.B.A., with Distinction (1980); New York University School of Law, J.D. (1983)). Doug Fleischman, Vice President / doug_fleischman@aon.com Doug Fleischman joined Aon in 2002, as a Syndicator with Aon s Financial Services Group, working both in NY and Bermuda. As a syndicator he has he has designed, placed and consulted on complex risk solutions for PE firms and Financial Institutions. Prior to joining AON, he was an Underwriter in the Professional Associate program at AIG for 2 years specializing in Directors and Officers, Employment Practices, Fiduciary, Professional, Fidelity and other related Management Liability products. He is currently an active member of the Professional Liability Underwriting Society. (Education: B.S.M, Finance Freeman School of Business, Tulane University (2000)). Aon Risk Solutions Financial Services Group 12

13 About Aon Aon Corporation (NYSE: AON) is the leading global provider of risk management services, insurance and reinsurance brokerage, and human capital consulting. Through its more than 36,000 colleagues worldwide, Aon delivers distinctive client value via innovative and effective risk management and workforce productivity solutions. Aon's industry-leading global resources and technical expertise are delivered locally through more than 500 offices in more than 120 countries. Named the world's best broker by Euromoney magazine's 2008, 2009 and 2010 Insurance Survey, Aon also ranked highest on Business Insurance's listing of the world's largest insurance brokers based on commercial retail, wholesale, reinsurance and personal lines brokerage revenues in 2008 and A.M. Best deemed Aon the number one insurance broker based on brokerage revenues in 2007, 2008 and 2009 and Aon was voted best insurance intermediary, best reinsurance intermediary and best employee benefits consulting firm in 2007, 2008 and 2009 by the readers of Business Insurance. For more information on Aon, log onto aon.com. Aon Risk Solutions Financial Services Group 13