1 Preparing for and negotiating Insurance buy ins and buy outs Speakers Alison Brown Samantha Brown Partner, Herbert Smith Freehills Partner, Herbert Smith Freehills
2 Buy ins and buy outs Setting the Scene 31.6bn transacted from 2007 up to the end of Q bn transacted in the 12 months to end of Q bn transacted in Q At least 2bn transacted to date in Q individual transactions in the 12 months to end of Q (Source: Hymans Robertson Buy outs, buy ins and longevity hedging Q Report)
3 Buy ins and buy outs overview Buy in A bulk annuity contract with a life insurer, insuring defined scheme liabilities Held by scheme trustees as a scheme asset May be capable of conversion to a buy out Buy out Securing liabilities to scheme beneficiaries with individual annuities in the name of the member Usually starts as a buy in, which is converted to individual annuities Covers all of the known scheme liabilities Partial buy out A buy out of only part of the scheme liabilities
4 Preparation: trustee powers Buy in Is the investment permitted by the trustees investment power? Have the trustees amended the SIP (employer consultation and appropriate advice)? Full buy out Do scheme rules contain winding up power? Do rules require policies to contain particular features? Partial buy out Do scheme rules permit individual annuitisation when scheme is not in winding up? Is member consent required (either under rules or statute)?
5 Investment decisions Prudent man test (Re Whiteley) 2005 Investment Regulations Preparation: trustees legal duties? To act in the best (financial) interest of beneficiaries To exercise discretionary powers having regard to all relevant considerations and no irrelevant considerations and not to act perversely
6 Preparation: Trustees legal duties in practice Impact on the security of members benefits Are the trustees satisfied with the strength of the insurer? Will the transaction impact security for retained members? Are additional funds available from the sponsor? Is additional security available from the insurer? Other considerations Is it going to be necessary to terminate future accrual? How will benefit payments be administered? Are members being treated equally?
7 Preparation: people and advisers What is the dynamic between trustees and employer? How will the transaction be managed? Consider a working party What advice will be required? Actuarial advice (pricing terms/sensitivities/impact on scheme funding) Investment advice (from an appropriately qualified person) Legal advice (policy terms and benefit structure) Consider the need for separate advice for trustees and employers What are the issues for negotiation?
8 Preparation: Provision of Information What information do insurers require Data (membership and benefits) Benefit structure Key considerations in providing information Duty of disclosure on the insured Data protection Do the insured benefits match the scheme liabilities?
9 Longevity Negotiation: Price and Risk Transfer GMP equalisation? Inflation Indexation? Interest rate Investment Data errors (e.g. Proportion married/postcodes)? Benefit errors? Deflation protection?
10 Negotiation: When does the cover commence Inception of the insurance cover Receipt of premium Certainty for insurer Out of market risk for trustees On disinvestment/ asset transfer instructions Certainty for trustees Non payment risk for insurer Additional contractual protection for insurer against risk of non payment
11 Negotiation: When might the cover terminate Right of termination for trustees Not market standard Reserving implications for insurers Contrary to long term business model Right of termination for insurers Material breach of policy terms Non payment Disclosure breach/breach of warranty PPF assessment period Loss of registered pension scheme status
12 Negotiation: Remedies for breach Potential breaches Non payment Failure to make disclosures/notifications Failure to verify data Potential remedies Adjustment to scope of cover No ability to issue individual annuities Adjustment to pricing basis Financial remedies
13 Negotiation: inaccurate data Accuracy of data What level of inaccuracy will the insurer tolerate? Contractual protections for the insurer Pricing adjustment (consistent basis) Pricing basis adjustment (substantial change) Termination
14 Negotiation: Future proofing the policy Transfer/assignment e.g. on merger Reshaping benefits e.g. PIE exercise Additional beneficiaries GMP equalisation methodology risk cover
15 Negotiation: Moving to Buy out Can the buy in policy be converted to buy out? Are there additional costs associated with issuing individual annuities? On what terms will individual annuities be issued? What terms are required for trustees to obtain statutory discharge? Consider run off/missing beneficiary cover
17 Herbert Smith Freehills Insured Buy in and Buy out Team Key Contacts Alison Brown Partner, pensions group Samantha Brown Partner, pensions group Roderick Morton Partner, pensions group Paul Lewis Partner, insurance group