M & A

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.

For the seller:

  1. An R&W policy replaces the indemnification provision and reduces the escrow to 1% or less of the purchase amount.
  2. Enables early and final distribution of proceeds to investors.
  3. Locks in the return and provides a clean exit as contingent liabilities are covered.
  4. Expedites the sale by getting the Indemnification issue “off the table”.

For the buyer:

  1. Distinguishes bid in a competitive auction, without raising the offer price.
  2. Eases concerns about collecting on seller’s indemnification.
  3. Preserves relationship with seller. In the event the seller is remaining with the company, the buyer pursues the R&W insurer, and NOT the seller in the event of a breach.
  4. Expedites the sale by getting the Indemnification issue “off the table”.

Underwriting & Placement Process:

  1. Secure information for underwriters:
    • Acquisition agreement (draft version is acceptable)
    • Seller’s audited financials
    • Seller’s disclosure statements (if available)
    • Offering memo
  2. Within 3 to 5 business days, a no cost, no obligation, non-binding indication (NBI) is provided.
  3. Due diligence process is commenced with selected market – requires payment of non-refundable underwriting fee.
  4. Conference call is arranged between the underwriters and the applicant’s attorneys.
  5. Final terms are issued within 2 business days of the final conference call.

POLICY BASICS

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.

  • Seller’s policy – checks how seller developed R/W
  • Buyer’s policy – checks how buyer vetted the Seller’s R/W

Terms – designed to match the survival period. Post survival extensions available upon request.

NEWS

  • Liberty Announces Key Acquisition to Expand M&A Insurance Services
    POSTED 10.12.21 M&A

    Liberty Company Insurance Brokers is pleased to announce the acquisition of Rubicon M&A Insurance Services, LLC to its national network of specialty insurance brokerages. Rubicon is led by its founder Patrick Q. Stroth, ARM, a trusted authority in executive liability for over 30 years.

    Given that there was unprecedented demand for M&A insurance in 2021, with all signs pointing to a continuation of this growth in 2022, this is a natural move that will allow Liberty direct access to this market.

    Not only that, but this acquisition makes Liberty the only national broker network with a specific focus on micromarket M&A transactions, those that are sub $10M in transaction value. This is the fastest-growing segment of M&A.

    Patrick, who written extensively on Transaction Liability and hosts the M&A Masters Podcast, brings his decades of experience and knowledge to lead Liberty’s new Transactional Liability practice.

    “I consider M&A to be the most exciting event in business,” says Patrick, “One that has the ability to create life changing, even generational impacts for owners, founders, and their families. I’m thrilled to have the opportunity to move Rubicon’s M&A practice onto a national platform which can scale to meet the ever-increasing demand for owners, founders, and their investors to secure a ‘clean exit.’”

    According to Liberty CEO, Jerry Pickett. “We recognized the emergence of Transaction Liability as an essential coverage need for any Commercial Insurance Broker.  With the addition of Patrick and Rubicon M&A Insurance Services, LLC, Liberty Company Insurance Brokers immediately becomes a leading source of M&A insurance expertise and solutions.”

  • Limited Bandwidth for R&W Insurance in 2021
    POSTED 9.7.21 M&A

    We’re well into the second half of 2021 now…and Representations and Warranty insurance is more popular than ever. Given the protection it provides both Buyers and Sellers in an M&A deal that should be a good thing.

    However, that popularity, based on the trust both sides of the table have placed on this coverage, has also brought about an unintended consequence that has resulted in PE firms and Strategic Buyers scrambling to get their deals covered.

    Here’s the deal: insurance companies are declining to cover otherwise great risks due to bandwidth. In other words, they don’t have the teams of Underwriters they need to research and understand the deals and then determine coverage and terms for all those parties wanting coverage.

    As a result, if your deal is under $400M in transaction value (TV), you can’t go to one of the major nationwide insurance brokers. They’re just stretched thin and are concentrating on the deals that will bring in the most substantial fees. They’re no longer looking at $100M or even $200M deals.

    So, at this point, if you come under that threshold and are interested in R&W insurance, you must find a boutique firm to secure your coverage.

    Why is this happening… and why now?

    There are a few factors:

    • Everybody wants R&W insurance now – overall volume is increasing. People understand its benefits, that claims are paid promptly, and that it can speed up a deal to closing and smooth out negotiations. So many users of RW are so satisfied with the coverage that they are using it on all their deals – and telling the others how effective it is. As a result it is on the verge of becoming ubiquitous.
    • M&A activity overall is ramping up. In fact, it increased by 48% in Q1 2021 compared to the same period in 2020, according to a report from GlobalData, which also noted that momentum from the last half of 2020 continued into this year. The cause: low interest rates, Buyers with cash to spend, surging stock market, and flood of deals postponed by the pandemic now moving forward. And with valuations only going up for target companies, there is an urgency to get through a merger or acquisition quickly. The attitude is to get it done now.

    More M&A activity = more demand for R&W insurance.

    • The number of “mega deals,” those $1B+, in particular is going up – and they get priority from insurers because they’ll make more money in fees than on smaller deals.
    • Companies can’t add Underwriters fast enough to meet demand. This is partly due to COVID but it’s also because upstart new insurance companies are poaching entire underwriting teams from established companies—further hamstringing their work. In fact. One leading R&W insurer recently had a very significant number of their Underwriters recruited away by a competitor, who wanted an experienced workforce right away.

    Who Is Behind This Trend?

    M&A activity is at record levels right now, across the board. Driving demand are:

    • PE firms that are sitting on a ton of dry powder.
    • Strategic Buyers that have sat on the sidelines and are now getting back in the game.
    • SPACs – There are 400 out there actively looking for targets. These special purpose acquisition companies are created solely to acquire an existing private company in a process that is a much easier, quicker, and cheaper way to go public than a traditional IPO. SPACs must make an acquisition within two years of being formed…and the deadline for many of them is looming.

    3 Steps to Take Now in Light of This Trend

    Despite these trends, all hope is not lost to secure R&W coverage this year, even if you’re deal is under $400M in TV. But you do have act quickly and put in some extra effort to make an insured deal happen. (And you should still prepare yourself for waiting until 2022.)

    Here’s what you should do now:

    1.  Line up all your diligence experts right now, e.g. lawyers and accountants.

    R&W policies right now are being placed on $400M TV deals and up. If your deal is smaller than that, look for boutique broker. Go to solid, experienced regional boutique firms in law, accounting, and insurance to get response you need. If you need a Quality of Earnings report, the big 5 nationwide accounting firms won’t touch you at this point.

    Contact these smaller firms and get on their calendar now.

    2.  Engage with an experienced, boutique regional R&W insurance broker now. The sooner you get your engagement lined up, the better, even if you are at the Letter of Intent stage.

    In both cases you want to avoid the backlog at bigger, national/international players.

    3.  Expect and plan for increases in diligence costs, insurance costs, and R&W premiums. The sooner you act, the better as costs continue to rise. It’s simple supply and demand.

    To give you an idea, the total cost for a $5M Limit R&W policy was under $200,000, now it’s running $225,000 to $240,000.

    But also remember that the protection and peace of mind these policies offer is well worth even the increased costs… and all things considered this coverage is cheap.

    As you can see, there is real urgency here.

    If you’ve got a deal in the pipeline and are thinking of using R&W insurance to cover it, we should talk now so I can help guide you through the process.

    You can contact me Patrick Stroth, at pstroth@rubiconins.com.

  • 9 Reasons Why TLPE is Amazing – and One More
    POSTED 8.10.21 M&A

    An innovative new product, very similar to Representations and Warranty (R&W) insurance, is available now and will provide coverage for small, or “micro,” M&A deals.

    Transaction Liability Private Enterprise (TLPE) insurance is available for deals with a Transaction Value of $250,000 to $10M.

    London-based insurer CFC Underwriting is the company behind this innovative new insurance product, and with 230,000 deals in that range of TV, they decided to go after this underserved market.

    While similar to more traditional R&W insurance, TLPE coverage differs in key ways, and not just in that R&W is intended for much larger deals.

    One of the most noteworthy differences is that TLPE policies are sell-side only, which means they are triggered only when the Buyer brings a claim against the Seller because of a loss caused by a breach of the Seller representations in the Purchase and Sale Agreement.

    Also, deals can be insured for up to 100% of enterprise value.

    This is a very new product. Not many people have heard of it. But it definitely reaches an underserved market, and many Buyers and Sellers involved in micro-deals will get a lot of value out of it.

    (If you haven’t already, I’d recommend you read my first article on TLPE insurance to get more of the basics about this unique coverage.)

    Why Is TLPE Insurance a Good Idea?

    Securing TLPE coverage is a no-brainer if you’re involved in a deal under $10M. TLPE insurance is new, it’s just launched. It’s meeting a big need out there.

    And while this may be controversial… I’d say it’s as good as R&W coverage, if not better in some cases.

    It’s better for Sellers, that’s for sure. Here’s why:

    1, Availability

    In professional sports, the greatest “ability” is “availability”. You may be the best athlete, but if you don’t show up on game day, your talents are useless to your team.

    By the same token, R&W insurance is an invaluable tool. But it’s simply not available at any cost to the lower middle market transactions.

    2. The Cost

    The cost of a sell-side TLPE policy is less than a similar sized R&W policy, by as much as one-third. There are several reasons for this.

    3. No Underwriting Fee

    In addition to lower premiums, there is no underwriting fee for TLPE. These policies are underwritten by the Seller completing an application (just like any other insurance policy). Underwriters then use that application as a basis for evaluating risk. This method reduces the overall cost for the program by $35,000 to $50,000 per deal.

    4. The Deductible Is Less

    To further reduce costs, the retention, or deductible, for TLPE policies is significantly less than a traditional R&W policy. TLPE will feature deductibles as low as $10,000, all the way up to $100,000 for a $10M limit – that’s 1%. Compare that to R&W with a minimum retention of $250,000 to $300,000.

    5. Lower Escrows and More Cash at Closing

    The lower deductible enables Sellers to negotiate lower escrows, or withholds, with Buyers. This further increases the amount of cash Sellers get at closing.

    6. Sellers Are Not Beholden to Buyers

    With TLPE insurance, Sellers are not forced to ask permission of Buyers for protection from breaches of Reps and Warranties. In a traditional R&W policy, no matter how much the Seller wants it or thinks they need it for peace of mind, if the Buyer doesn’t agree to include coverage in the deal, it doesn’t happen.

    The alternative in the past was a traditional sell-side R&W policy. However, the Underwriters on sell-side policies in these cases would not be able to rely on an application as they do with TLPE.

    In fact, they would conduct even more stringent due diligence. This costs more and can even limit coverage because Underwriters are not equipped to underwrite R&W on that side. (In buy-side policies, they rely on the Buyer’s diligence.)

    Sellers don’t need the Buyer’s input at all for underwriting a TLPE policy as everything hinges on the Seller’s input, not the Buyer’s. Seller’s seeking peace of mind can acquire it entirely independent of an uncooperative buyer.

    7. The Short Timeframe

    The underwriting time in TLPE is in most cases a matter of days, definitely less than a week. Compare this to the minimum timetable for traditional R&W insurance underwriting of two to three weeks from beginning to end.

    8. Peace of Mind

    The Seller has control of policy placement and coverage terms, which means they feel better knowing that whatever proceeds they’re supposed to get from the transaction… they are going to keep.

    9. Legal Defense Costs Covered

    A sell-side TLPE policy provides legal defense to help the Seller against Buyer claims. The lawyer for the policyholder (Seller), who will protect them and try to negotiate a lower settlement, is at the cost of the insurer, not the Seller. It’s built into the policy.

    With traditional R&W insurance, even if there is a claim brought by the Buyer, the Seller would have to engage an attorney to respond to make sure they aren’t taken advantage of. In fact, the Seller usually isn’t involved – the Buyer is taking action against the insurer to get their claim paid.

    But if the Seller has a $1M to $3M escrow they still need their own attorney for that piece of it.

    Where to Go Next

    If you have an upcoming deal under $10M, it’s clear that if you’re the Seller, TLPE is a must-have.

    If R&W is Wall Street, then TLPE is Main Street. Insurers in this space want to insure mom & pop retail stores, franchise restaurants, small tech companies, or maybe a small manufacturer.

    The cost is super low thanks to the three ways TLPE saves you money (lower deductible, no underwriting fee, more cash at closing), the process is quick and easy, and this new type of insurance offers a lot of protection to make sure you take home the proceeds you deserve from your sale.

    All this being said, there is a key similarity between TLPE and R&W coverage:

    The claims paying ability is no different between the two. You can count on great claims services with TLPE, just as you’ve heard about R&W.

    I’m happy to speak with you about both TLPE and R&W insurance, whichever is most appropriate for your deal. It is important to work with a broker experienced in TLPE insurance when trying to secure this coverage as there are key conditions and limitations.

    And one last thing about TLPE:

    10. TLPE Policies Can Be Placed Post-Closing

    This means if you did not get protection for a previous deal, and it is in that $250,000 to $10M range, it can actually be revisited if you’re interested.

    To get more details on how TLPE might fit your specific deal, be sure to contact me, Patrick Stroth, at pstroth@rubiconins.com.

  • Rep and Warranty Insurance Now Available for “Micro-Deals”
    POSTED 7.20.21 M&A

    In recent years, Representations and Warranty (R&W) insurance has become available to smaller and smaller deals.

    The eligible deal size dropped to under $20M… then under $15M. This is already quite a feat when you consider that the average transaction value (TV) for deals with R&W coverage in place is $500M. And to be honest, most insurers won’t go lower than $100M—Underwriters are already backed up on processing policies and insurance companies don’t always want to take the time to work on smaller deals that won’t generate large amounts of fees.

    Now, for the first time ever, this unique type of coverage is available for deals with a TV of $250,000 to $10M. This opens up R&W coverage to a whole new universe of deals.

    How did this breakthrough come about? As with many business ideas, someone saw a gap in the market and decided to fill it with what is officially called Transaction Liability Private Enterprise (TLPE) insurance.

    According to CFC Underwriting, the London-based insurer that innovated this new insurance product, there were 230,000 deals in which the TV was between $250,000 and $10M. They decided to create a product for this vast unserved market and came up with TLPE insurance as the first to market solution.

    Here are the basics on this coverage, which is available worldwide:

    1. It covers deals with TV from $250,000 to $10M.
    2. The policies are sell-side only. (In standard R&W insurance there are sell-side and buy-side policies, although the vast majority are buy-side.)
    3. It offers competitive terms at rates lower than traditional R&W coverage.
    4. A streamlined underwriting process to ensure both timely execution and sustainability.
    5. A deal can be insured up to 100% of Enterprise Value (EV).
    6. Policy period: six years.

    Covered industries include professional services, technology service and product businesses, transportation and aviation, and insurance brokers. CFC generally declines deals involving businesses in healthcare, financial services, oil and gas, mining, pharmaceuticals and regulated industries (such as telecommunications).

    How It Works

    Similar to standard R&W insurance, TLPE covers innocent misrepresentations made by the Seller to the Buyer.

    This provides the Sellers peace of mind because they know they won’t have to risk some or all of their proceeds from the deal in the event of a breach. On the other side, Buyers enjoy a feeling of confidence because there is a guaranteed source of funds available to cover their loss.

    Unlike the vast majority of R&W policies, TLPE is strictly a sell-side product. The policy is “triggered” only by a claim brought by the Buyer against the Seller for a loss caused by a breach of the Seller’s representations in the Purchase and Sale Agreement.

    As part of this coverage, the Seller is entitled to have their legal defense to contest the Buyer’s claim paid for by the insurer. Underwriters have full authority on the selection of the Seller’s defense counsel, which enables them to control claims costs. The insurance company will also cover any damages or settlement amounts.

    Something not in a standard Buyer-side R&W policy is the exclusion for Seller fraud.

    While no insurance policy will cover known fraudulent acts, TLPE will pay the legal fees to defend the Seller against allegations of fraud. However, they will cease providing defense costs if actual fraud is established in court.

    Important: if the Buyer sues the Seller for something not related to a breach, the insurer does not provide legal defense.

    Quick and Easy

    TLPE offers streamlined and cost-effective underwriting:

    • An application is required, but Underwriters depend on the Seller’s knowledge of their own business. Who knows the business better than an owner/founder?
    • There are no underwriting fees, which saves policyholders $30,000 to $50,000.
    • No underwriting call is required.
    • The turnaround time is just three days after transaction documentation is submitted and responses to any underwriting questions are provided.

    This quick and easy process is possible because the Underwriters are not viewing the reps. They’re not looking at the due diligence collected. They are simply underwriting the application that the Seller provided.

    TLPE in Action

    TrenData is a Dallas-based SaaS company that offers various human resources services. A larger human resources technology firm was planning to acquire them. The TV was about $5M.

    What held up the deal was the Buyer insisted that in the event of a breach of the intellectual property (IP) rep, that the target company would be responsible for any legal expenses or loss. At the same time, the Buyer would retain the sole authority for selecting their own legal counsel and determining the legal strategy.

    As the target company noted, this is like essentially writing a blank check. The Buyer could easily hire high-priced attorneys and/or drag the case on and on. They would not go for it.

    Neither side would budge on this issue, and it seemed like the deal was lost.

    However, less than a week later, the Seller reached out to my firm, Rubicon Insurance Services. We discussed TLPE coverage and how it could work in this deal. The Seller contacted the Buyer, and once they found out that the Seller would pay for the policy, that legal costs would be covered in the event of a loss, and that the deal could be insured up to the full $5M in TV…the gap between the two sides was bridged and the deal closed within a week.

    What to Do If You’re Interested in Coverage

    TLPE seems simple enough. However, there are key conditions and limitations with this new product. So it’s essential you have an insurance broker experienced in M&A handle the process of securing this coverage.

    Something to keep in mind: TLPE policies can be placed post-closing, so if you were unable to get protection for a previous deal, it can actually be revisited.

    If you’re interested in seeing if TLPE coverage could be a fit for an upcoming – or past – deal, you can contact me, Patrick Stroth, at pstroth@rubiconins.com.

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