By Daniel W. Gerber, Sarah J. Delaney and Paul D. McCormick, Attorneys, Goldberg Segalla LLP
Chapter 32 addresses a relatively new insurance product: Mergers and Acquisitions Insurance. The chapter begins with Section 32.01 explaining that the term “mergers and acquisitions insurance” is actually the catch-all title for several different types of insurance providing coverage for risks arising out of business transactions. These products are designed as tools to facilitate the closing of mergers, acquisitions, finance transactions or other business transactions. Often these policies are most beneficial where the parties require additional comfort on a variety of contingencies that, due to the parties’ respective differing views, threaten or impede the closing of a deal. Generally, these policies are highly specialized and designed to address a specific difficulty presented by a particular business transaction, such as a sale, merger or acquisition. Forms of Mergers and Acquisitions insurance, while relatively new, are gaining acceptance and have significant advantages to traditional directors and officers or errors and omissions policies for coverage losses resulting from business transactions. Underwriting is a complex process for such risks, however, and the premiums for such coverage can be prohibitive. Common types of insurance in this genre include representation and warranties insurance, tax insurance, and litigation buyout insurance.
Sections 32.01 – 32.01 provide an introduction to Representation and Warranty Insurance, Tax Insurance and Litigation Buyout Insurance. Representation and Warranty Insurance is introduced in Section 32.01 as coverage for losses resulting from inaccuracies in representations made by a seller in connection with a merger or sale. Examples are provided which illustrate how this insurance allows the parties to minimize escrow requirements. A seller wants to minimize not only the amount but also the duration of its indemnity to avoid placing more funds in escrow than is necessary. This maximizes the proceeds of the sale. A buyer wants to have as broad an indemnity as possible, both in terms of amount and duration post-closing. When purchased by the buyer, known as a “buyer-side” policy, it enables the buyer to recover its financial losses directly from the insurer, rather than proceeding first against the seller. When purchased by the seller, known as a “seller-side” policy, it reimburses the seller for amounts paid or payable to the buyer in connection with such financial losses.
Tax insurance is introduced in Section 32.01 as a vehicle providing certainty for tax issues arising from a transaction, including the amount of tax owed, tax treatment and classification, as well as interest, fines and penalties. The uncertainty of a tax issue could significantly impact the proposed transaction to the point where the parties involved may become unwilling to complete it. Tax Insurance provides assurance of receipt of a specific tax treatment in cases where no clear guidance exists.
Section 32.01 introduces Litigation Buyout Insurance as a mechanism for providing defense and indemnity for known events or ongoing disputes, especially known liabilities of a seller. Litigation Buyout Insurance is different than traditional liability insurance, which seeks to cover events that will occur after the effective date of the policy and that are unknown to either the insured or the insurer when the policy is issued. It removes the potential consequences of pending or imminent litigation, particularly when the parties to a transaction disagree on the exposure arising from such litigation.
Section 32.02 begins a closer examination of Representation and Warranty Insurance. An overview of the history and uses of Representations and Warranties Insurance is provided in Section 32.02[b]. Risks associated with mergers and acquisitions prior to the existence of such insurance are also examined, including traditional acquisition and indemnity agreements. Representation and Warranty insurance was first mentioned in the late 1970s, but did not become readily available in the United States until the late 1990s. Sellers are called upon to make representations regarding the company it is selling. This insurance eliminates the need for a large escrow, and affords parties flexibility to negotiate longer survival periods with respect to seller representations. Representations may include information regarding accounts receivable, intellectual property, employee benefits and real property. The number and detail of the representations are often a matter of dispute. Traditionally, agreements provided for sellers to indemnify purchasers for damages resulting from a breach, and for sellers to maintain the indemnification amounts via escrow or holdback. Representation and Warranties Insurance to some extent eliminates the need for a large escrow. Also, the insurance may resolve the parties disagreement on the survival of the seller’s representations. A Representation and Warranty policy may also allow the parties to negotiate a longer survival period of representations and warranties.
Section 32.02[c] compares Representation and Warranty Insurance to Directors and Officers coverage. Directors and Officers coverage applies to individuals in their capacities as directors or officers. In mergers and acquisitions, however, the representations made may be outside that scope, giving Directors and Officers coverage limited applicability. Representation and Warranty Insurance is in certain circumstances a broader form of coverage because it insures the representation regardless of who made it.
Section 32.02 details the difference between buyer-side Representation and Warranty Insurance and seller-side policies. Buyer-side coverage provides first-party coverage and pays the buyer directly for losses caused by the seller’s misrepresentation. It allows the buyer to make a claim without first pursuing the seller, which is useful in instances where the seller has little or no assets or is bankrupt. Seller-side coverage provides third-party coverage to sellers. It provides for the reimbursement of amounts paid to the buyer by the seller. A defense is not usually provided to the seller. Seller-side policies usually contain a fraud exclusion, which buyer-side policies do not. Therefore, buyer-side coverage is sometimes viewed as broader.
Section 32.02[a] analyzes the scope of coverage for Representation and Warranty Insurance, including discussions concerning what types of representations may be included within the policy and the limitation of coverage to specified representations. The distinction between covered and non-covered “representations and warranties” is important to understand. The insurer’s obligations are limited to the insured representations and warranties. Policies may be issued as “blanket” or single issue. Blanket policies cover all of the seller’s representations and warranties, except those that are specifically excluded. Single issue policies cover only specified representations and warranties.
Sections 32.02[b] and [c] discuss policy periods, limits and cancellation of Representation and Warranty Insurance. The policy period of a Representation and Warranty Insurance Policy is based usually upon the length of seller’s indemnity obligations under the asset purchase agreement. The policies typically commence with the closing of the transaction and end with the end of the survival period. Policy limits vary depending on the size of the deal insured, but the insurers will typically provide $50 million in coverage, and the market is capable of insuring up to $200 million via a combination of primary and excess coverage. The policy limit reflects an agreed upon percentage of the sale price. Representation and Warranty Insurance is not subject to cancellation, except for failure to pay the policy premiums.
Section 32.02[d] addresses retention of exposure by the insured in Representation and Warranty policies. Most insurers require that the insured maintain some degree of risk to encourage thorough vetting by the parties and discourage anticipatory breaches. This requires that the parties perform adequate due diligence and prevents parties from entering into purchases where breaches were anticipated. Terms of the retention vary among policies. Most provide for an aggregate retention, meaning the retention only need to be exhausted once regardless of the number of claims presented.
Section 32.02[e] covers the claims process involved with Representations and Warranties policies. This includes a discussion of the implications of claims-made coverage in the claims process, and how the claims process differs between buyer-side and seller-side policies. Buyer-side policies reflect the first-party nature of the coverage, and the insured must file a notice of claim. Seller-side policies involve investigation of the claim and require a demonstration of liability.
Section 32.02 describes the intensive underwriting process for Representation and Warranty Insurance. Details are provided regarding insurers performing a “shadow” due diligence process, which at a minimum requires the offering memorandum, financial reports and the purchase agreement. This Section also addresses premium calculations and policy length considerations. Premiums generally vary between 2% and 8% of the policy limits, and are based upon the insured’s retention and length of the policy as well as the strengths of the representations as determined by the insurer’s underwriting.
Policy exclusions, terms and conditions are then assessed in several portions of Section 32.05. This includes a discussion of policy language relating to subrogation and arbitration. Section 32.02[a] first discusses defense obligations, or lack thereof, as well as the insurer’s right to associate with the defense. Representation and Warranty Insurance does not contain a defense obligation, but the insurer retains the right to associate with the defense. Some policies may reimburse the insured for defense costs, but defense costs erode the policy limits. Although the insurer retains the right to affiliate with the defense, some policies are unclear as to the insurer’s obligations if the insured fails to defend itself.
Section 32.02[b] delves into exclusions common to Representation and Warranty Insurance. It is noted that compared to other standard policy types, these policies contain few exclusions. Standard Representation and Warranty exclusions include pollution, losses due to price adjustments, bodily injury, property damage, fraud, breaches of covenants, and prior knowledge. The exclusion for losses due to price adjustments is somewhat unique to Representations and Warranties insurance. It prevents the parties from entering into sales without proper analysis of the purchase price, and then seeking to recover the difference from the insurer. Likewise, excluding coverage for losses resulting from defective or unfulfilled projections is common. Representations and Warranty policies also contain exclusions for claims where the insured had knowledge of the facts giving rise to the breach before the policy incepted. It is important to understand what constitutes “knowledge” and who must “know” of the information. Also excluded are situations where the purchase price was calculated using a multiplier, or the use of multipliers in determining damages. This exclusion generally eliminates coverage for such “enhanced” damages, punitive damages, criminal penalties and fines and special damages. Last, Seller-Side policies usually contain exclusions eliminating coverage for fraud. Buyer-Side policies therefore provide broader coverage. Understanding the different types of fraud exclusions and the proof required under each is important in assessing the application of coverage to a particular situation.
Section 32.02[c] analyzes standard policy terms and conditions that Representation and Warranty policies have in common with most other insurance policies. This includes notice provisions, forwarding of suit papers language, and a cooperation clause. Additional conditions such as allowing the offset of losses by tax benefits received or indemnification from other sources are also examined. These policies typically provide that any loss under the policies is reduced by tax benefits, recovery from other insurance policies, or indemnification from other sources. Representation and Warranty policies also require that the insured maintain all due diligence records until after the policy period expires or the final resolution of all claims under the policy, whichever is later. Generally, the acquisition agreement is incorporated into and made part of the policy, and the agreement cannot be changed without the insurer’s consent. Although case law is scant addressing the subject, it is generally thought that the change would have to adversely affect the insurer’s rights before coverage will be impacted.
Section 32.02[d] considers the subrogation issues existing in Representation and Warranty Insurance scenarios, including the potential impact on buyers if the agreement contains a provision which ultimately makes the buyer liable.
Section 32.02 concludes with Section 32.02[e] discussing the standard arbitration provisions contained in Representation and Warranty policies. An outline of the arbitration procedure and mechanism is provided. Most disputes between insured and insurer are subject to arbitration, and often substantive issues are determined under New York law.
Section 32.03 examines Tax Insurance in detail. The section addresses the application of Tax Insurance to issues such as the inability to obtain expected tax treatment and the potential loss of the buyer’s desirable tax status after closing. Consideration is given as to how these policies help reduce contingent tax exposure. Further explanation is given concerning the scope of coverage and indemnification. Details are provided that show how Tax Insurance helps reduce contingent tax exposure where the basis supporting a favorable tax treatment may be subject to challenge by the authorities.
Section 32.03 details the concept of Tax Insurance. The insurance indemnifies the company for the losses incurred as a result of the taxing authority’s failure to provide the anticipated tax treatment of the transaction. It pays in the event that taxes are owed, and often covers the costs of challenging the tax authority’s ruling.
Section 32.03 addresses the scope of Tax Insurance coverage. Most policies are written on manuscript forms and provide coverage for taxes themselves, legal and accounting expenses, as well as interest, fines and penalties. The typical policy period is six years. Coverage is not owed until there is a “final determination” of the tax position, meaning a non-appealable judgment or decree or binding settlement.
Section 32.03 discusses the standard tax policy definitions of “loss,” and issues that can arise concerning the definition. It is important to examine whether the “loss” can be quantified, and whether the policy includes coverage for any interim payments to the taxing auhority – which most do not.
Section 32.03 compares the duty to defend with the duty to indemnify under Tax Insurance. Tax insurance policies do not impart a duty to defend on the insurer, but the insurer has the ability to associate with the defense. The mutual obligations of the insurer and insured in situations such as settlement, the right to associate, and admissions of liability must be understood. Most policies require that any decision regarding a claim that could result in a tax loss must be made based upon mutual agreement between the insured and the insurer. The insured may not admit liability or settle any claim that could give rise to tax liability without the insurer’s consent, and if the parties disagree regarding a proposed course, the insurer’s proposed course of action prevails.
Section 32.03 analyzes key exclusions in Tax Insurance policies. This includes an explanation of exclusions related to promoter driven tax issues, repetitive tax issues or purely tax motivated transactions that lack a legitimate business purpose. The policies also exclude coverage for losses resulting from the repeal of legislation or enactment of legislation. Misrepresentations and inaccuracies are also not insured, including fraud and criminal conduct. Knowing misrepresentations by the insured will void a policy from inception. Although current regulations do not consider the existence of Tax Insurance as a reportable transaction, there has been debate on the issue. As such, it is not uncommon for these policies to also exclude coverage relating to a dispute with the taxing authority as to whether the policy itself constitutes a reportable transaction.
Section 32.03 examines policy conditions particular to Tax Insurance. The two most relevant conditions are those related to contest expenses and offsetting benefits. Issues arising out of contest expenses are assessed, including what constitutes reasonable legal expenses incurred by the insured in conducting a contest with the relevant tax authority. Contest expenses do not include costs incurred in the normal course of business or benefits for persons participating the contest. The insured must advise the insurer that it intends to mount a contest and estimate the cost before embarking on such a course of action. Offsetting benefit is the amount realized by the insured based upon saving of taxes. It includes the present and future values. Most policies reduce coverage by the amount of any refund, credit, reduction of taxes, or other economic benefit relating to taxes as an offset.
Section 32.02 discusses the overlay of policy periods for Tax Insurance policies with the applicable statute of limitations – typically six years. The Section also explains the implications arising from Tax Insurance policies being claims-made policies.
Section 32.03 considers the impact of tax shelter regulation on Tax Insurance. With respect to tax shelters, the probability of prevailing on the merits must be greater to avoid penalties. If a merger and acquisition deal was registered as a tax shelter, it is likely to be uninsurable. Unlike insurance against legitimate legal uncertainty, this would be insurance against pure detection risk As such, even if the transaction is not required to be registered as a tax shelter, but lacks business purpose and economic substance, insurers will still not likely underwrite a policy.
Section 32.03 examines insurance for the Financial Accounting Standards Board’s Financial Interpretation Number 48 (“FIN 48”). As of 2007, companies must review the tax positions taken on all of their income tax returns. If a position is uncertain, a material liability is recorded for the potential tax. The entity must disclose the additional tax liability on its financial statements. This has the potential to greatly increase a company’s proposed tax liability and minimize future tax benefits. FIN 48 Insurance allows an entity to mitigate the results of potential liabilities under FIN 48 by paying it an amount equal to the tax, interest and penalties if a tax position taken as a result of FIN 48 is successfully challenged. FIN 48 Insurance varies from regular Tax Insurance in that it is written on an annual basis with a policy period of one to three years. It can also cover more than one tax liability. Unlike Tax Insurance, coverage may lapse though if not renewed, thus leaving exposure on unchallenged positions.
Section 32.03 describes the case-by-case underwriting process for Tax Insurance. Important factors in the process are enumerated, including the sufficiency of the legal basis for the taxpayer’s position. An opinion prepared by the taxpayer’s counsel is a prerequisite for insurance, and the insurer will require a comprehensive compilation of materials regarding the transaction to underwrite a tax policy.
Section 32.03 discusses privilege and confidentiality issues related to the sensitive financial information involved in underwriting Tax Insurance. Most insurers will provide a form of confidentiality agreement. Some policies require the insured to keep the policy and its existence confidential. If by law the insured must disclose the policy, it must give the insurer prior written notice and involve the insurer in the disclosure process.
Section 32.03 concludes with Section 32.03 noting the insurer’s potential for recourse against the tax advisors who provide the insured with an incorrect opinion. The insured is required to assign its legal rights and may not waive any rights that could impact subrogation.
Section 32.04 provides an in-depth examination of Litigation Buyout Insurance. Section 32.04 begins with an explanation of Litigation Buyout Insurance as a transactional product where the insurer agrees to take over the insured’s liability associated with past, current or prospective litigation and claims. This insurance can cover securities litigation, class action, intellectual policy claims, products liability claims and a host of other claims.
Section 32.04 explains that Litigation Buyout Insurance is different from traditional insurance in that it “insures” a known risk. It provides very broad coverage for specified claims and typically contains a co-insurance provision which requires the insured to maintain a certain level of exposure to the risk. This insurance can either follow the form of the existing underlying policies or afford broader coverage.
Section 32.04 details the scope of coverage and sets forth the three categories of Litigation Buyout Insurance (“buyout,” the “cap” and the “hedge”). “Buyout” provides coverage for all liability resulting from a specific litigation. It includes defense and indemnity costs and is the most common form. “Cap” insurance provides coverage for liability above a pre-determined amount. “Hedge” insurance is purchased when the insured has won a case or favorable ruling, but the matter has been appealed. It essentially locks in the favorable ruling’s benefits.
Section 32.04 and Section 32.04 address key policy terms and exclusions. Section 32.04 discusses the specifically tailored definition of “loss” in Litigation Buyout Insurance. Since, the insurance is purchased to cover a specific known risk or ongoing dispute, the “loss” is defined as any amount for which the insured is or will become legally liable and that arises out of the known past, current, or prospective litigation or claim made against the insured. Section 32.04 addresses the most common exclusions, including fraud, illegal profit, and costs to comply with nonmonetary relief in actions by regulatory agencies. There are generally two types of fraud and dishonesty exclusions: those that require a final adjudication of fraud or dishonesty and those that do not. The fraud exclusion is similar to those most often seen in Directors and Officers policies. The illegal profit exclusion excludes claims based on actions taken for personal profit, gain or advantage, such as claims involving insider trading or other of federal securities law violations. The regulatory exclusion excludes loss arising from any claim brought against the insured by or on behalf of any governmental or quasi-governmental body empowered with regulatory control or authority over the insured
Section 32.04 considers in greater detail the situation where the insurer takes the position that misrepresentations were made by the insured in the Litigation Buyout Insurance underwriting process. Consideration is given to the viability of the insurance when the insured makes a material misrepresentation, or allegedly fraudulently induces the policy. These determinations often turn on when the insured makes a misrepresentation, the materiality of the misrepresentation, intent to defraud and detrimental reliance by the insurer. As a general proposition, the misrepresentation or failure to disclose must be material to the risk in order for the court to enforce the insurers’ right to rescind the contract of insurance.
Section 32.04 discusses the insured’s control over the underlying litigation and considerations the insured has to make when purchasing the insurance. Specific examples are provided which illustrate varying degrees of control and risk borne by the insurer and insured. These examples also illustrate the importance of this issue in purchasing Litigation Buyout Insurance. The insured has to choose the level of control it wishes to retain when purchasing the insurance. For example, if the insured is using the coverage as excess coverage, it will want to retain control of the defense. On the other end of the spectrum, if the insured wants to avoid all exposure, the insurer will want to control. This varies by circumstance, but in the “buyout” category of insurance, the insurer assumes 100% of the liability and defense costs. Under any circumstance, the insured is required by the policy to cooperate with the defense.
Section 32.04 describes the underwriting process for Litigation Buyout Insurance, including the policy form, due diligence and the insurer’s access to the relevant information. There is no standard policy form, and each policy is tailored to the specific transaction. Insurers require full access to the relevant information. Access may include the ability to interview employees, officers and outside advisors. Additionally, due to the intense underwriting process, a non-refundable underwriting fee is usually charged.
Section 32.05 analyzes the privilege and confidentiality issues associated with Litigation Buyout Insurance. Special concerns during the underwriting process need to be weighed, and proactive options taken. Privileges are of utmost concern during the underwriting process due to the nature of the insured risk. The underwriting process requires information regarding the defense of the underlying action, including notes and impressions from defense counsel. Insureds and insurers should be creative about approaching privilege concerns, but no fool proof means has been identified to protect privilege during the underwriting process. Confidentiality agreements may aid the process. Privilege concerns are substantially alleviated, however, once a policy is bound. The insurer and defense counsel will have access to the same file, with no loss of privilege under the “common interest” rule. A separate issue of concern is that the insurer may want to prevent the insured from disclosing the existence of a policy to avoid plaintiff’s perception that a “deep pocket” exists.
Section 32.04 closes with Section 32.04 addressing subrogation in the context of Litigation Buyout Insurance, as well as waiver of subrogation rights. Generally, insurers waive their subrogation rights.
The chapter concludes with Section 32.05 analyzing non-mergers and acquisitions applications of transactional insurance products. Illustrations are provided to demonstrate how Representation and Warranty Insurance can be used for any transaction where a representation is made. One potential use is for a company’s initial public offering. Another is for real estate transactions where there are environmental questions or tax issues. Yet another use for Representation and Warranty Insurance is for Open Source components in software. Open Source components may be difficult to identify. Representation and Warranty Insurance could protect against unintentional infringement. Likewise, trademark and licensing agreements may benefit from Representation and Warranty Insurance.
Tax Insurance also has several non-mergers and acquisitions applications. These include: (1) tax issues arising from golden parachute payments under Section 280G; (2) tax liability from deferred compensation; (3) tax liability resulting from an employee’s use of non-recourse debt to finance a purchase of his employer’s stock; and (4) tax liability from discounted compensatory stock options.
Finally, uses of Litigation Buyout Insurance outside the mergers and acquisitions arena, including litigation outside of a merger or sale, are explored. Examples include securities litigation or other litigation outside of a merger or sale. In addition, Litigation Buyout Insurance allows a company to cap its exposure in advance of trial, and may help in negotiations by demonstrating to plaintiff that the company is no longer threatened by a runaway jury verdict.
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Daniel W. Gerber chairs Goldberg Segalla LLP’s Global Insurance Practice Group across the firm’s 10 offices in New York, Pennsylvania, New Jersey and Connecticut. He maintains an international practice in complex insurance coverage and reinsurance disputes. In addition, he advises insurance and reinsurance companies on the effective use of social media platforms and the mitigating risks associated with these strategies. Mr. Gerber has authored several chapters on discovery in insurance litigation, as well as risk shifting issues. He is an author for New Appleman's Insurance Law Practice Guide, as well as being a regular contributor to Mealey’s Emerging Insurance Disputes. Mr. Gerber is the editor of the Insurance and Reinsurance Report blog, and is the current chair of the Insurance and Reinsurance Committee of the International Association of Defense Counsel. He also chairs the Defense Research Institute’s (DRI) Counsel Task Force as well as its Social Media Task Force. He has served on DRI’s Annual Meeting Steering Committee, and is currently the Chair of DRI’s Insurance Roundtable. He has been appointed Vice-Chair of DRI’s Life Health and Disability Committee. In addition, Mr. Gerber is the past Chair of the 3,500 member Torts, Insurance and Compensation Law Section of the New York State Bar, and has served in the New York State Bar House of Delegates. He is a US ARIAS certified arbitrator, possesses an AV rating from Martindale Hubbell, a Super Lawyer designation from Law & Politics Magazine, and has been named by his peers to Business First's Who's Who in Law. Mr. Gerber is admitted to the United States Supreme Court, as well as all federal and state courts in New York and Pennsylvania.
Sarah J. Delaney is a long-time member of Goldberg Segalla LLP's Global Insurance Services team in New York. Ms. Delaney's insurance coverage experience covers a broad range, including life, health disability and ERISA claims, bad faith, personal and advertising injury, intentional torts, environmental claims, and fraud. She handles insurance coverage litigation and provides complex coverage opinions. She is the editor CaseWatch: Insurance, a bi-weekly insurance coverage newsletter capturing appellate decisions around the United States. She is a regular contributor to the Lexis Insurance Law Center and has been widely published on insurance coverage issues. Ms. Delaney is the former vice-chair of the Insurance Coverage Committee of the New York State Bar Association’s Torts, Insurance and Compensation Law Section.
Paul D. McCormick is a member of Goldberg Segalla LLP’s Global Insurance Service Group in Buffalo, New York. He practices in courts throughout New York, including the state’s appellate courts. He is admitted to the U.S. Court of Appeals for the Second Circuit and the U.S. Supreme Court. He concentrates his practice on defending corporations in insurance related matters. He is a member of Defense Research Institute, and the New York State Bar Association. He has served as chair of the New York State Bar Association’s “Law School for the Claim Professional” program. He is a past recipient of the Super Lawyer honor awarded by Law & Politics magazine, as well as the Who’s Who In the Law honor awarded by Business First Magazine. His article entitled “Countering Plaintiff’s Attempts to Maximize Damages: Communicating with Jurors about Money” was published in DRI’s September 2007 issue of For The Defense magazine. He is a frequent writer and panelist for continuing legal education seminars on insurance coverage issues.
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Im a manufacturer and another company is acguiring me 100% via stock. How do I protect myself again claims from products that were produced before I sold the company (sued for claim that ocurred AFTER the company was sold but for a product manufactured BEFORE the company was sold? Would the new company pick up that exposure?