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M&A & Insurance
Mergers & Acquisitions Capabilities Presentation
RIMS Fairfield/Westchester Chapter
May 14th, 2013
WILLIS M&A VALUE PROPOSITION
Experience of M&A Team– FRESH SET OF EYES!– Understand how risk impacts returns across all industries regardless of size.– Expertise gained through over 5,000 transactions of experience enables us to
anticipate and move quickly.
Definition of Due Diligence– Go far beyond the “commodity” of insurance products.– Perform review of financial, legal, and risk management exposures, quantify those and
provide opportunities to control costs both on and off balance sheet.
Fully integrated production and execution resources providing single point of contact delivering resources where and when needed.
Transaction Insurance Products
Representations & Warranties
Insures a seller or a buyer for loss arising from a breach of warranties &/or indemnities in an acquisition agreement
TaxInsurance to protect the insured against liability to pay additional tax, fines and penalties, typically relating to an identified specific contingent tax issue or treatment
Environmental
Insurance against historic or operational environmental liability or loss arising from a pollution or contamination event
Contingent RisksInsurance for contingent liabilities identified in a transaction e.g. litigation buy-out or possible legal interpretation
Current Market ConditionsR&W Insurance: Market for R&W and other transactional risk has evolved New entrants in the market driving competition – better pricing R&W Insurance coverage has improved substantially in recent years and has become more aligned with acquisition agreements and underlying indemnification provisions (actual knowledge, removal of subject matter exclusions, lower pricing and overall better policy terms available)
M&A Market Activity and Demand: Increased demand for Representations and Warranties Insurance. In excess of 350 policies were placed in the entire market in 2010 and over 500 in 2011 and 2012. Willis placed in excess of 150 policies globally in 2012. Strategic utilization of R&W insurance increasing Growth in strategic transactions and need for “security” Lenders driving interest in securing indemnification rights Increased sensitivity to risk and risk transfer capabilities
Page 5
R&W Insurance
Protects against financial losses resulting from inaccuracies in the representations and warranties relating to the target company or selling shareholders
Buyer-side and Seller-side policies – knowledge implications Capacity to insure limits from $1 million to $300,000,000+ Pricing generally 2% to 4% of the limit of liability – more often in range of
2% to 3% of limits in current market Policy period typically matches survival period in acquisition agreement (up
to 6 years) or extends survival period up to 6 years Retention: Generally 1% to 3% of the transaction value
- Drops down as escrow is released Items not covered: forward looking statements and projections, covenants
(can be considered in some situations), known or disclosed items (may be addressed via a separate contingency policy)
Page 6
Reasons for Using R&W Insurance Indemnification dynamics – seller versus buyer objectives
Strategic use by buyers and sellers- Distinguish a bid in a competitive auction- Build into seller offering to achieve cleaner exit
Increase the size or length of indemnity for a buyer – e.g. supplement escrow/cap with additional indemnification and/or increase survival term
Protect passive investors
Allow seller to limit indemnification – lower escrows/caps and shorter survival
Strategic buyer / Private Equity seller applications
Security where concern over collecting indemnification
Provide indemnification in non-recourse deals such as bankruptcy sales, take private transactions, and ESOP transaction
TRANSACTIONAL SOLUTIONSREPRESENTATIONS &
WARRANTIES INSURANCE
– Seller Side Policy.– Buyer Side Policy.– Can be structured in conjunction
with a bid to offer more preferred deal terms.
– Assists in facility deal process where there might otherwise me an impasse.
– Waiver subrogation against seller (except fraud) so that seller parties can provide more complete reps.
TAX INSURANCE
– Insurance Proceeds avoid negative cashflow
– Disclosure issues backstopped– Respond to tax positions– Provides a solution in a transaction
where a specific tax position might be in question
CONTINGENT LIABILITY INSURANCE
– Successor Liability Insurance– Legislative Contingency– Specific Peril Contingency
LITIGATION BUYOUT COVERAGE
– Loss Portfolio Transfer– Contingent Exposure Coverage– Can be structured to respond excess
over existing insurance– Can provide a catastrophic cap over a
calculated damage analysis– Can be fully transferred to a 3rd party