M&A experts worldwide are using an insurance policy known as a Representation and Warranty (R&W) to transfer risk from the parties in a transaction to an insurance company. R&W policies are designed to, “step in the shoes” of a seller to pay indemnification claims made by the buyer for inaccuracies of the representations and warranties outlined in the purchase/sale agreement. Due to the low cost of R&W insurance, sellers are driving the demand for these policies rather than accept large, lengthy escrow or withhold terms. Buyers are discovering how R&W insurance can enhance their bid without having to raise their offer.
Limit Capacity – Up to $100M on a single policy. Excess capacity up to an additional $400M available as needed.
Retentions – commonly 1% to 3% of the purchase price. Reduces over time
Premium – 3% to 4.5% of the limits purchased (including taxes and fees). Minimum premium is $300,000
Underwriting Fee – From $25,000 to $35,000 in addition to the premium. Covers the cost of Insurer’s attorney’s fees and due diligence costs to review and manuscript a policy. Non-refundable.
Terms – designed to match the survival period. Post survival extensions available upon request.
The nature of risk in M&A deals has changed, and it’s made specialized insurance coverage more important than ever.
Data security is now, more than ever, one of the biggest concerns for those involved in M&A. And for good reason. It’s creating more risk in deals, especially those involving tech companies.
These days, businesses need to be aware of how the businesses they acquire collect data, secure data, and use data. There are several factors at play here.
Increased data privacy regulations in the European Union, known as GDPR, as well as the California Privacy Act (with similar policies sure to be put in place in other jurisdictions across the country), can put Buyers at severe risk, particularly when they acquire companies with less than effective data security.
And Buyers are taking notice.
In fact, according to Deloitte’s annual The State of the Deal: M&A Trends 2020, 70% of respondents (from Strategic Buyers and PE firms) stated that protection of data in a company they were acquiring was more of a concern than it was a year ago.
Andy Wilson, a partner in the M&A Services division of Deloitte & Touche, put it nicely:
“Data privacy can be a diligence issue. A target company may bring a cybersecurity weakness into the organization, or a transaction that involves layoffs or other workforce changes may create data security risks.
At the same time, data protection and management can be an integration issue, with a newly combined organization perhaps reaching into new geographies where regulations differ for the handling of data.”
GDPR (General Data Protection Regulation) was instituted in 2018 in the European Union and outlines strict guidelines for the collection, organization, storage, use, and destruction of personal data. Fines for violations, based on annual revenue, can run into the millions. For example, Marriott International in the U.K. was fined £99 million in July 2019 for a data breach of 339 million guest records.
Investigators believe the incident goes back to 2016, when Marriott acquired Starwood hotels group. The group had its systems compromised in 2014, but it was only discovered in 2018. Regulators faulted Marriott for not conducting proper due diligence prior to the acquisition or doing enough to secure its systems.
Elizabeth Denham, with the Information Commissioner’s Office, which administers these regulations, said this about the case:
“The GDPR makes it clear that organizations must be accountable for the personal data they hold. This can include carrying out proper due diligence when making a corporate acquisition and putting in place proper accountability measures to assess not only what personal data has been acquired, but also how it is protected.
Personal data has a real value so organizations have a legal duty to ensure its security, just like they would do with any other asset. If that doesn’t happen, we will not hesitate to take strong action when necessary to protect the rights of the public.”
As you can see, they’re taking it seriously, targeting businesses of every size in every industry. These days, every company has sensitive customer data. It’s not just tech or financial industries like banks or credit card companies that have to worry. Any business that touches the internet is vulnerable.
Plus, not only can you run afoul of regulators due to a privacy breach or data leak, but you can also introduce vulnerabilities to your own secure system by blending it with the newly acquired company’s system.
Purchase the right Cyber insurance.
Cyber Liability coverage is a must-have for virtually every M&A deal in today’s climate, due not only to regulatory penalties but also the financial damages from a data security breach. There are measures to take to protect data, of course, on the tech systems side. But hackers are ever more sophisticated and can get around even the most sophisticated protections.
The need for Cyber Liability coverage may sound obvious, but be aware that not all Cyber policies are alike. Avoid the cheaper versions that only cover data breaches. The top policies now offer coverage for malware attacks (which happen 5x more often than loss of data), electronic theft and ransomware attacks – all of which can seriously damage a company’s value if left unprotected. The difference in cost for a more comprehensive Cyber policy is negligible.
Due to the heightened exposures businesses face from cyber-related losses, most R&W policies will require a Cyber Liability policy be in place for the target company, and will impose exclusions for Cyber-related losses if no such coverage is in place.
In the case of both Cyber Liability and R&W coverage being in place, here’s how it works:
In the event of a breach, the insurance companies will let the Cyber Liability claim be paid first and then the R&W policy will cover any damages not covered. Keep in mind, the deductible on a Cyber policy is a fraction of a R&W policy retention, so Cyber provides a cost-effective first line of defense.
It’s comprehensive protection that’s very necessary today.
As a broker with extensive experience with both Cyber Liability and R&W insurance, I’d be happy to discuss coverage for your next M&A deal.
Please contact me, Patrick Stroth, at pstroth@rubiconins.com.
When it comes to insurance – in any realm – most people aren’t as concerned about what the policy covers as much as what is excluded.
That’s the number one factor in whether or not they get the policy.
Why would something be excluded?
There are three principal reasons:
1. Something is flat out uninsurable. An example of this would be a moral hazard, which is a situation in which one party engages in risky behavior because they know it is protected… and the other party (in this case, the insurance company) will pay the price. You can’t intentionally misbehave to trigger a policy and get paid – that would be like suing yourself. If you could, there’d be no incentive to be on good behavior.
2. Underwriters want more information on a specific point before they are willing to insure an exposure in the Purchase-Sale Agreement, so they put in an exclusion until they are satisfied with the extra information provided. Once they have that information, they’ll make a value judgement about whether or not to remove the exclusion and what, if any, additional premium charge is applicable. For example, if the standard policy costs $120K, the Underwriter might say we will remove a particular exclusion… for another $30K.
3. An exclusion might be included because the exposure is simply better covered on a separate policy. Environmental Liability is routinely excluded in R&W policies because the risk is best insured by a broader (and less expensive) Pollution Liability policy.
All that being said, here are some of the most common exclusions we see today.
(Disclaimer: This is subject to any specific terms in a deal, due diligence performed or not performed, and each particular Underwriter – whose opinion can vary.)
1. Actual Knowledge
This is when you want to buy a policy, but during diligence you discover the financials aren’t accurate… and you buy the policy anyway. In this case, any damages related to issues you knew about won’t be covered. If you notice anything unusual about a target, which would trigger a breach, you can’t suppress it until after closing. If you do, this is known as “sand bagging” and is excluded.
2. Interim Breaches Between Signing and Closing
If there are any breaches between the time of signing the deal and closing it – and the parties knew about it – it’s not covered. For smaller deals, signing and closing are usually on the same day, so there’s no problem. But for bigger deals with regulatory or funding issues (like the bank offering financing won’t sign off until signing) to sort out, this comes into play. For example, when Amazon bought Whole Foods, they had to wait six months for regulators to okay the deal as far as potential anti-trust issues.
3. Full Disclosure Representations and Rule 10b-5
These are catch-all Reps that go way beyond standard Reps and Warranties. They are excluded– because you can’t cover everything out there, especially something with unknown potential financial impact. As a result of this “universal exclusion” the 10b-5 reps are being removed from agreements.
4. Purchase Price Working Capital Adjustments
Sellers have complete control in calculating and providing sufficient cash in the company’s accounts to cover operating expenses for a period post-closing. Since it’s in the Seller’s interest to have as little cash left behind as possible, a moral hazard exists. R&W Insurers therefore exclude any failure by the Seller to accurately estimate and adequately fund the company’s accounts. If, for some reason, the Buyer discovers they’ve been “shortchanged” after closing, the Buyer has to go after the Seller directly.
5. Fines and Penalties
Any misbehavior that results in government action may be excluded where deemed uninsurable by law (i.e. punitive damages in CA are uninsurable).
6. Deduction of Tax Benefits from Recovery Amount
If you have losses and related expenses after closing, that breach often nets you a tax break. If the insurance company pays the claim for your damages, they’ll deduct the amount of the tax break accordingly.
7. Wage and Hours Laws Violations
Misclassification of employees versus independent contractors is common, especially in the tech sector in places like California. With contractors, companies don’t offer benefits or pay employment taxes. But often the line between contractors and actual employees is blurred and companies can be sued. With that much exposure, insurers won’t cover it, without extensive information and at a higher premium.
8. Major Environmental Issues
Say you buy a company that owns a building which had a major fire or chemical spill in its past. These are hazards that a R&W policy won’t pick up because it should be covered by a Pollution Liability policy you can buy elsewhere.
9. Forward-Looking Reps
With R&W coverage, you’re insuring Reps of what you know up until the close. Any projections or forward-looking statements are simply uninsurable. For example, if you’re projecting $14M in revenue in the quarter following the acquisition, up from $10M in the quarter before the deal, the insurance company can’t protect that estimate. Projected revenue or growth is not covered.
10. Consequential/Multiplied Damages
In the past, R&W insurers considered consequential damages/multiplied damages uninsurable; however, competition and favorable claims experience has changed this position. Today, insurers are willing to either cover these broader damages outright (mirroring the Purchase -Sale Agreement) or will agree to remove any specific exclusion language (be “silent”) on consequential/multiplied damages if the Purchase-Sale Agreement concurrently omits “consequential/multiplied damages” in its definition of “damages”.
A savvy Buyer will insist on consequential damages being included in the Agreement. It’s therefore essential for R&W Brokers to address this point with all Insurers to ensure proper coverage is either provided or limitations disclosed to the prospective policyholder.
As you can see, R&W insurance is not a catch-all that will pay claims on any sort of issue post-closing. What’s covered is narrowly defined by necessity. It’s also essential to note that exclusions can be flexible where Underwriters are provided the right information. This highlights the importance of Engaging an experienced R&W Broker to negotiate with Underwriters on a Buyer’s behalf.
Still, when you consider all that these policies do cover and the other benefits, including transferring the indemnification risk to a third party, speedier negotiations, and more, it’s well worth pursuing this coverage for most M&A deals – for both Buyers and Sellers.
It would be my pleasure to discuss potential exclusions and other coverage details with you. Please contact me, Patrick Stroth, at pstroth@rubiconins.com.
You’ve no doubt heard of the best-selling book from author Nassim Nicholas Taleb, The Black Swan: The Impact of the Highly Improbable.
In it, Taleb denotes “black swan” events as those that are unexpected or unpredictable. Examples include the 9/11 terrorist attacks, World War I, the rise of the internet, and the fall of the Soviet Union.
However, despite the worldwide, devastating impact on society, economies, entire industries, healthcare infrastructure, and more, the COVID-19 pandemic is not a black swan.
Taleb himself says so, noting that many experts, including Bill Gates, who has closely studied and funded epidemic research, have long said a global pandemic like this happening was a matter of when, not if. Taleb says this is actually a “white swan.”
This is not a black swan, despite the tumultuous times we’ve had in the face of this crisis, including economic downturns, widespread unemployment, travel bans, and more. We won’t go into the details here as to how this might have been prevented or who holds the blame, if anyone.
We’re concerned with the results and what happens moving forward.
As far as COVID-19, as countries see decreasing cases and are exiting government-mandated lockdowns, we can now see we are at the beginning of the end.
Economic activity is set to return, as people go back to work and those businesses that survived, large and small, start up again.
As I wrote previously, expect M&A activity to resume, but in a different form due to impacts of this crisis. We’ll see:
This strong M&A market is also a result of previously existing conditions, such as:
This is a recipe for PE firms to come in and find low-cost but high-quality gems to invest in and turn a profit, in many cases, faster than pre-COVID-19. Private Equity has the capital, resources, and expertise to take on the challenge of many struggling companies out there right now.
This is not to say that the economy will not experience a downturn due to the pandemic. Its impact will be felt in many sectors for a long time, including companies, investors, and consumers.
But there is opportunity. And this is very different than the 2008 Crash, at which time M&A activity slowed considerably for the most part.
As Sander Zagzebski, partner with Greenspoon Marder LLP, put it in a recent article for C-Suite Quarterly:
“Shrewd dealmakers will sense opportunities by purchasing discounted debt and providing debtor-in-possession financing packages. Smaller debtors may seek to take advantage of the new Subchapter V Small Business Debtor Reorganization provisions, which as drafted provide a more streamlined process for debtors with less than $2.725M in debt. As part of the recently passed CARES Act, that limit was increased to $7.5M for the next year.”
Sander likens this opportunity to that which a select few savvy investors took advantage of in the 2008 crisis.
“While capital market and traditional M&A transactions slowed significantly during the financial crisis, distressed investors became presented with numerous attractive options. Howard Marks and Bruce Karsh at Oaktree Capital were later lauded by The New York Times for their timely $6B bet on corporate debt during the height of the financial crisis, as was Leonard Green & Partners for its timely $425M minority investment in Whole Foods.”
“Overshadowed in the media by high-profile, pre-crisis bets on the overheated real estate market by the investors profiled in Michael Lewis’ 2010 book The Big Short and others, these blood-in-the-streets bets at the bottom of the market later proved to be enormously profitable.”
There are similar prospective valuable deals out there now… for those that can recognize them.
As Sander writes:
“Many investors are starting to view the world today as Karsh viewed it in 2008 and are seeking those unique buying opportunities.”
Still, there is plenty of uncertainty surrounding deal-making, as future impacts of the ongoing pandemic are unknown. Watch for Representations and Warranty (R&W) Insurance, which had already been enjoying a renaissance amongst lower middle market deals, to be a strong presence in deals going forward.
To discuss R&W coverage with a broker with hands-on experience with this product, I invite you to contact me, Patrick Stroth, at pstroth@rubiconins.com.
The COVID-19 pandemic has changed trade, commerce, and business in so many ways already… with more changes to come. The world of M&A has reacted as well. But as I noted in my previous piece, No Significant Drop in M&A Activity During This Recession, we won’t see the slowdown happening.
Instead, we’ll see a shift to a Buyer-friendly market. Also, watch for PE firms with plenty of cash to look for opportunities – and bargains… struggling companies they can turnaround.
The pandemic will impact a key part of M&A activity: the due diligence process and the use of Representations and Warranty (R&W) insurance to cover breaches of reps in the Purchase and Sale Agreement.
Just as with any insurance product, COVID-19 must be addressed with R&W policies. And expect pandemic-related questions from Underwriters in the due diligence process.
Not every company, of course, has been affected by COVID-19 in the same way. For example, a software company that already had a largely remote workforce is in much better shape than a retailer forced to close brick-and-mortar locations.
But overall, insurers are closely monitoring the impact of COVID-19 on operations of any acquisition target. This is how I expect it to impact R&W coverage moving forward:
As a worldwide pandemic affecting billions, nobody can claim that COVID-19 is an “unknown” prior to a deal being signed. And R&W policies only cover breaches that were unknown, “historical,” or related to issues that were not disclosed by the Seller.
The impact of the virus on the workforce, including layoffs and supply chain disruptions will be the focus on enhanced due diligence in particular, and not considered breaches. Claims related to a drop in revenue are right out the window. These will be excluded, but perhaps covered in another M&A related policy, such as business interruption insurance.
That being said, you can limit exclusions for specific things related to the pandemic, not just anything COVID-19 – that exclusion would be too broad. Despite its seriousness, the pandemic can’t touch every rep. So expect very careful language.
Since R&W policies are largely written for each individual transaction, a broker has the ability to identify the right Underwriters and products and make the exclusionary language in a policy as favorable/narrow as possible for the policyholder.
Take the Fraud Exclusion for example. Fraud is absolutely excluded in virtually every insurance policy because it’s a moral hazard. However, savvy Brokers and Underwriters can create wording in a policy to provide legal defense of a policyholder accused of fraud until the alleged fraudulent behavior is proven. If there is no proof of fraud, the exclusion cannot be triggered, therefore, a policyholder benefits from the protection provided by the policy. Depending on the rep in question and the amount of diligence shown to Underwriters, a Broker can negotiate wording that can lessen the scope of a COVID-19 related exclusion.
With some M&A transactions, there can be a long period between signing the Purchase and Sale Agreement and actually closing the deal, especially with large and complex deals. For example, it took months for Amazon’s acquisition of Whole Foods to win regulatory approval and close.
Imagine if a deal like this had been done recently, and COVID-19 swooped in during that interim period. Remember, to be considered a breach, the issue must be unknown and/or result from failure to disclose a harmful issue by the Seller.
But a change in the overall economic environment or the industry such as this pandemic, can’t be considered an “unknown” and therefore would not be covered.
Thankfully, this is not much of an issue with lower middle market companies because interim periods between signing and closing are rare, and if there is an interim, it is likely measured in days, not months.
One last thing to watch out for. For now, R&W coverage pricing and deductibles haven’t changed. They should be increasing as more claims are coming in in this time of crisis.
The previous trend had been for consistently falling prices and its use in ever-smaller deal sizes – down to $15 million, which was one of the factors in its growing use by middle market companies. It’s something to watch out for.
To discuss the impact of COVID-19 on R&W and other M&A-related insurance, I invite you to contact me, Patrick Stroth, at pstroth@rubiconins.com.
