introduction to warranty and indemnity insurance – 18 october 2012 mergers & acquisitions...
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Introduction to Warranty and IndemnityInsurance – 18 October 2012Mergers & Acquisitions Insurance GroupAdrian Furlonge – Assistant Vice PresidentSvetlana Soroka – Senior Underwriter
Introduction
• BackgroundWho we areWhat is Warranty and Indemnity Insurance?
• Insurance ProcessCoverage & exclusionsWhat the Insurer needs
• Claims• Other Transaction Liability Products
Who are we?
Largest, longest established and most experienced team in the global
transactional insurance market;
Provide bespoke insurance solutions for transactions: Warranty &
Indemnity, Tax Liability and Litigation Buy-Out risks;
Our global team of seventeen underwriters consists of corporate lawyers
and litigators drawn from private practice and based in Australia, France,
Germany, Spain, Sweden, the UK and USA;
We have global capacity with offices in all jurisdictions with Chartis
offices; and
We have placed insurance on 700 plus transactions (ex North America)
in 32 different jurisdictions.
Chartis History of GWP & Policy Count excl. US
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
US
D m
'
Po
licy
Co
un
t
GWP by Country 2012
Korea0.8%
Czech Republic0.6%
Austria0.6%
Sw itzerland0.4%
China0.3% Belgium
0.3%
New Zealand0.3%
Hong Kong1.5%
Italy1.5%
India1.3%
Finland1.7%
South Africa2.5%
Sw eden2.3%
Thailand2.2%
Japan1.2% Netherlands
1.1%
Spain4.1%
Singapore5.0%
Germany7.9%
France12.4%
Australia18.1%
UK34.1%
What is Warranty & Indemnity Insurance?
• We can insure either the buyer or the seller. • We insure:
share sales; and asset sales
• Premiums are generally 1% to 2% of the limit (subject to minimum premium of £40k).
• Maximum Chartis Limit USD50,000,000 • The policy will generally take five working days to
underwrite and bind.
What does it Cost?
• Considered Expensive
• Uncertainty of pricing
• Lack of competition
• Significant comparative reduction
• Supply side expansion
• Underwriting analysis vastly
improved
• Underwriters understand the M&A Industry
Pricing: 1% - 2% of policy limit; one off premium
Average Rate On Line - UK W&I
0
0.5
1
1.5
2
2.5
3
3.5
2007 2008 2009 2010 2011
Seller’s
risk
Buyer’s
risk
Policy of indemnity
Insurance
policy
Sale & Purchase Agreement
Limitation of liability for breach
of warranty under the
SPA
Transaction value
Policy limit
•Insured: The warrantors
•Objective: To provide coverage in the event that the buyer sues the seller for a breach of warranty or indemnity
•Structure: Can insure up to the warranty cap as defined by the sale document
•Policy of indemnity: Seller still retains liability under sale document, therefore is liable for any breach not picked up by the insurance policy
Sell – Side Policy
Seller’s
risk
Buyer’s
risk Policy to protect against financial loss
Insurance
policy
Sale & Purchase Agreement
Limitation of liability for breach
of warranty under the
SPA
Transaction value
Policy limit
(buyer’s risk
appetite to determine
limit)
•Insured: The buyer
•Objective: To provide coverage against financial loss suffered as a result of a breach of the seller’s warranties
•Structure: Warrantors give warranties but these are capped at a lower amount, the insurance policy sits in excess of this
•First party policy: Policy is independent of the seller, therefore the buyer is entitled to make a claim directly against the policy
Buy - Side Policy
Motivations for InsuranceSeller Side
• Sellers unwilling or unable to give financial support behind warranties
e.g. secondary buy-outs, acquisition from insolvent sellers;
• Reluctance of sellers to retain proceeds in escrow;
• Optimising a “clean” exit;
• Sale under a turnaround situation.
Buyer Side
• Investing in new or unfamiliar jurisdictions or industry sectors;
• Enhancing bidder status;
• Alternative to contractual recourse for a particular issue;
• Best practice risk management / corporate governance;
• Comfort to debt finance providers.
W&I Insurance - Policy Cover
• Bespoke policy tailored to the transaction• Back-to-back with the SPA
Breach of insured warranties - aim for full cover Duration matches survival period under SPA at a minimum Matching de minimis/thresholds under SPA Specific indemnities?
• Enhanced buyer protection: Removal of awareness qualified warranties Increase survival periods Reduce claims thresholds
• Defence costs• Fraud by the seller on a buyer-side policy• No requirement to pursue the seller before claiming under the policy
on a buyer-side policy
W&I Insurance - Exclusions Known issues
Completion account adjustments
Fines and penalties to the extent they are uninsurable by law
Fraud by the seller on a seller-side policy
Forward-looking warranties
Pensions Underfunding
Transfer Pricing
Post completion voluntary acts
Potentially transaction specific issues
Underwriting process
Day 1 Initial submission
Internal review
Heads of terms
Engagement letter
Detailed underwriting
Negotiate cover
Binding policy
Policyreview
Deal Signs
Ideally this will be about 14 days, but can be from 2
days to 18 months
Submissiona)Details of the Buyer and Seller
b)Details of the Target business
c)Transaction value
d)Limit of indemnity sought - Chartis capacity up to USD50,000,000
e)Retention insured is prepared to accept - N.B market standard is 1% of transaction value
f)Does the insured want cover for both the warranties and a tax covenant (if applicable) and any other transaction specific indemnities that are being given by the Seller.
g)Estimated signing or completion date of the transaction
h)Attach the following documents:
a) SPA
b) Disclosure Letter
c) Tax Covenant/Deed (if there is one)
d) Due diligence (not always available on Seller side)
e) Data room index
Underwriting Considerations
Identity of the buyer, seller and their advisors
Target business and location
Quality of the transaction process
Value of transaction
Scope of the insured warranties - buyer or seller friendly?
Seller’s liability under the SPA
Gap between signing and completion?
Why do they want insurance?
Do both parties know about insurance?
Claims
Based on claims information for the period July 2000 to April 2012 from all non-US jurisdictions:
- Claim frequency of 13% (i.e. 1 in 7 policies).
- 160 alleged breaches
- France sees highest claim frequency.- less than 5% of claims fall outside of the remit of the Warranty &
Indemnity policy
2010-2011- 11 notifications on UK policies in 2010/2011 of which:- 2 claims paid- 7 circumstances- 2 third party demands being defended in conjunction with Insured
Claims: Warranties alleged to have been breachedThe majority of alleged breaches relate to tax/financial statements warranties
0%
5%
10%
15%
20%
25%
30%
Type of w arranty breach
Multiple - 16% Tax - 25% Financial Statements - 16%
IP - 6% Compliance - 4% Litigation - 4%
Employee - 4% Other - 22%
Claims: Delay between policy date andclaims date (global (ex-U.S.))
• 16% of claims are notified during the first 3 months following inception• 28% of claims are notified during the first 6 months following inception• 66% of claims are notified during the first 12 months following inception
Months 12-24 19%
Months 24+ 15%
Months 3-6 12%
Months 0-3 16%
Months 6-12 38%
Tax Insurance – motivation
A policy to enable a taxpayer to reduce/eliminate tax exposure arising where the underlying legal advice supporting a particular tax treatment may be subject to future challenge by tax authorities
Risk of tax audit/future litigation is transferred to insurer
Gives certainty as to the quantum of a contingent liability
Can be used pre or post transaction
Can facilitate a sale or acquisition by providing certainty and managing negative financial impact
Can resolve deadlocks in negotiations and avoid escrow arrangements
Can be used where parties have not obtained prior clearance from a tax authority due to time constraints or commercial considerations.
Tax Insurance – appetite
✓ Questions of law. We do not insure the facts relevant to the taxpayer’s position; we place reliance on the taxpayer’s factual representations
✓ Issues relating to the legal interpretation of tax legislation, administrative rulings or case law as applied to the facts presented
✓ Commercial purpose/M&A transaction related
✓ Strong opinion required from law firm, QC or accountants
✗ Promoter driven, repetitive or purely tax motivated transactions
✗ Transactions or issues already under audit or in litigation with tax authorities
✗ Legislative changes
✗ We don’t offer insurance in certain jurisdictions (where unstable or potential enforcement issues)
✗ Review of tax authority decisions (whether on technical or procedural grounds)
Tax Insurance - policyCoverage: Tax payable as a consequence of the transaction (after deducting off-setting
benefits) Defence costs (i.e. professional adviser expenses) may be paid in advance “Gross-up” of taxes payable with respect to the tax liability insurance proceeds Interest and non-criminal fines or penalties in the event of a non-favourable
determination
Policy to cover gap between “best case” and “worst case”
Policy Form: Period can be up to 7 years
Chartis’ capacity is £15 million
Policy negotiated on a case by case basis with Insured
Structured to ensure alignment of interest between taxpayer and Chartis
Pricing usually between 4% - 8% of the limit of liability
Deductible or excess starting point is generally based upon estimated defence costs or ‘best case’ scenario
Indemnity Insurance Enables liabilities to be ring-fenced which may arise from a current or
anticipated litigation, other dispute or identified risk.
Eliminates obstacles in the way of a pending sale or dispute
Term runs from the transaction closing date until settlement or final
adjudication of the dispute.
Prospects of a favourable outcome need to be good.
Typical underwriting period is 2 to 3 weeks from the date of the first
enquiry.
Limit £1.5m to £15m aggregate limit of liability.
Premium 4-8% of the limit purchased
Retention to be agreed by reference to the deal specifics.
Any questions
You can find further information about our M&A Insurance Group and our products on our homepage
http://www.chartisinsurance.com/_911_217012.html
Please feel free to contact us to discuss any questions you may have about our products.
Adrian Furlonge Svetlana SorokaAssistant Vice President Senior UnderwriterTel: +44 20 7954 4955 Tel: +44 20 7954 [email protected] [email protected]
Mergers & Acquisitions Insurance Group
Chartis Europe Limited
27
Chartis is a world leading property-casualty and general insurance organisation serving more than 70 million clients around the world. With one of the industry’s most extensive ranges of products and services, deep claims expertise and excellent financial strength, Chartis enables its commercial and personal insurance clients alike to manage risk with confidence. Within the UK, Chartis Europe Limited is one of the largest providers of general insurance. With offices throughout the country, we insure many of the UK’s top businesses, thousands of mid sized and smaller companies, as well as many public sector organisations and millions of individuals. For additional information please visit our website at www.chartisinsurance.com\uk.
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