M&A and Transaction Solutions:

Risk in Review

Aon has led the way in developing bespoke

insurance solutions to meet the M&A

industry’s needs for the past 20 years.

The volume of policies written and the breadth of our client base coupled with the expertise and acumen of our global team provide us with tremendous insight into market trends across industries and geographical regions. Aon is sharing this data and insight in its first annual M&A and Transaction Solutions Risk in Review with a focus on North America and highlights in EMEA and APAC.

M&A Insurance: Changing the Global Landscape


2017 and the first half of 2018 posted extraordinary growth in the use of representations and warranties insurance, tax insurance and bespoke contingent insurance, making a noticeable impact on the M&A landscape. Around the world, whether it's the increased use of insurance in public deals, the growing prevalence of nil recourse transactions in EMEA or the heavy use of insurance by corporate acquirers in Asia in lieu of more traditional indemnities or escrows, M&A insurance has changed the way deal professionals allocate risk, using insurance as a tool to bridge the gap on one of the most fundamental issues in any M&A transaction: the potential post-closing erosion of value, either of the consideration received by the seller or the business acquired by the buyer.

96%

growth in the number of
deals from 2014-2017

34%

increase in the number of
deals from 2016-2017

$27.2 billion

in limits placed by Aon in 2017

GLOBAL TRENDS

2017 TOTAL AON'S TRANSACTION LIABILITY DEALS

Demonstrable Impact

We estimate over 34% of the addressable North American M&A market (private deals with enterprise values between $25 million and $10 billion) used Representations & Warranties insurance (“R&W insurance”), up from 20% in 2016. Within this market, we see a stark difference between strategic acquirer and financial sponsor (private equity) adoption rates, noting that more than 75% of private equity/financial sponsor deals utilized R&W insurance compared to less than 20% of deals completed by strategic buyers1. The adoption rate among strategic buyers, however, is increasing dramatically year over year as noted later in this report and is a trend we expect to continue as strategic buyers recognize the need to offer more competitive deal terms relative to private equity buyers.

Impacting over a third of this defined M&A market, recent data suggests R&W insurance is moving the needle on the amount of indemnification as a percentage of deal value. Based on a 2018 M&A Deal Terms Study2, the number of deals with indemnity caps of 5% of enterprise value or less grew from 13% in 2016 to over 30% in 2017 with the percentage of deals with indemnity caps greater than 5% falling or flat.

This decline in indemnity caps as a percentage of deal value coupled with the growing tendency toward no seller indemnity structures demonstrate buyers’ acceptance of insurance as a viable alternative to indemnities and escrows and that sellers are now exiting investments with less at risk than ever before.

REFLECTING INDUSTRY TRENDS, AON OBSERVED “NO SELLER INDEMNITY” POLICIES INCREASED FROM 2016 TO 2017

Sources:
1. Pitchbook.
2. SRS Acquiom 2018 M&A Deal Terms Study, May 2018.

Strategic Buyers: Increasing Competitiveness and Value in Corporate Deals

Reflecting 2017’s increase in the use of R&W insurance, 120 deals were completed for strategic buyers representing $4.7 billion in insurance limits, narrowing the usage gap between strategic/corporate and financial sponsor/private equity buyers.

Strategic buyers cite increased competition for deals, the need to show sellers value on levers in addition to price, and the growing trend of seller-introduced R&W insurance as drivers for their turn to insurance as a viable alternative to traditional escrows and indemnification.

R&W insurance has had a transformative effect on how deals are structured and the changing perspective around risk allocation, pushing strategic buyers to think outside of the box of large indemnity caps and escrows. As with non-corporate private deals, M&A insurance has become a necessary tool for strategic buyers in the competitive sales process and proprietary deals alike.

Over the course of 2017 and into 2018, a sharp uptick occurred in the utilization of R&W insurance for “take private” transactions and acquisitions of public companies by other public companies. The overall increase in available insurance capacity and the expansion of carrier appetite for a broadening range of deals has enabled R&W insurance to provide meaningful protection even for large public M&A transactions. Corporate buyers’ comfort in using R&W insurance is expected to fuel continued growth and penetration in the public M&A sector.

GROWTH IN USE OF R&W

Industry Insights

Increased competition for deals among insurers led to the opportunity to create interest for deals in more challenging sectors with Aon securing R&W insurance for deals across an array of highly regulated industries including commercial lending operations and trading platforms as well as medical device and specialty pharmaceutical companies.

HEALTHCARE

In the healthcare industry, we successfully placed policies in 2017 for complex hospital systems and large hospice providers. Through Aon’s introduction of the first healthcare regulatory R&W insurance policy in 2014, the market has followed the demand with several insurers now considering tougher healthcare risks with a more streamlined underwriting process and greater ability to perform secondary diligence on healthcare regulatory matters.

TECHNOLOGY

Current M&A press notes the hotbed of activity in technology deals with the sector experiencing the highest annual deal count in 2017 that we have seen for several years3. Aon similarly recorded an uptick in the use of R&W insurance among strategic buyers in the technology space with such deals attracting greater scrutiny of cyber and data security risks and more focused attention on the sufficiency of underlying cyber insurance, coincidentally the other high growth area in the insurance market currently.

INTELLECTUAL PROPERTY

The spotlight on the technology sector creates increased pressure on certainty around valuation and validity of core intellectual property assets, particularly those material to buyers’ view on the value of technology targets. To address this critical need, Aon introduced Intellectual Property Solutions to help clients address these challenges and enhance enterprise value through intellectual property-based value creation strategy development, risk assessment and insurance solutions, and accurate and timely valuation of a target’s intellectual property or across a client’s portfolio.

Sources:
3. Mergermarket Global & Regional M&A Report FY2017.

A Compelling Global M&A Solution

TAX INSURANCE

Tax insurance continues to be a powerful tool for M&A professionals where uncertainty around taxes creates hurdles in the deal. The number of tax insurance policies placed for M&A deals has been increasing year over year, representing between 35% and 45% of the tax policies Aon placed annually since 2016. Insurer appetite has expanded to include a willingness to insure the accuracy of numbers and valuation as well as the more traditional tax opinion matters, such as the tax treatment of a preclose reorganization being respected. Interestingly, policies insuring real estate investment trust deals (“REITs”) comprised over one third of the M&A tax insurance policies since 2013.

Mirroring the trends in the R&W insurance market, tax insurance has also attracted a growing number of active insurers, translating into competitive premium rates and mushrooming of insurance capacity approaching $2 billion in limits per deal.

Global Bespoke Insurance Solutions that are Improving Deal Outcomes

Aon continues to lead the development of bespoke solutions that address many of our clients’ challenges. Previously insurmountable issues such as pending litigation or global regulations such as the Committee on Foreign Investment in the United States (“CFIUS”) that can derail a cross-border deal can be addressed with carefully crafted insurance policies.

LITIGATION INSURANCE

Of these bespoke solutions, litigation insurance which clients use to cap the maximum exposure in connection with existing or threatened litigation, is the most common. As with other types of M&A insurance, litigation insurance helps sellers avoid substantial escrow requirements and allows buyers to ring fence the cost of damages from an adverse judgement. And like tax insurance, it can be used outside of an M&A transaction for ongoing business risk management to protect companies from catastrophic loss from an adverse judgement. As we have seen with other M&A insurances, the market has matured to over greater capacity and experienced underwriters who are can evaluate these complex opportunities.

REVERSE BREAK FEE INSURANCE

Aon has also seen increased use of insurance to manage exposure to break fees, another potentially contentious negotiation point. One way this type of insurance is being applied is when deals fall within the jurisdiction of the Committee on Foreign Investment in the United States ("CFIUS"), where foreign buyers of US businesses are at risk of the transaction being prohibited resulting in large break fees.

CONTINGENT LIABILITY INSURANCE

The flexible nature of transaction insurance has evolved to offer highly customizable solutions to keep deal negotiations on track. Rather than walking away from a transaction, Aon is seeing more and more clients explore how insurance can ring-fence damages that are outside the scope of traditional insurance.

INTELLECTUAL PROPERTY LITIGATION INSURANCE

With the massive shift from tangible to intangible assets, there has been increased exposure to patent, trademark, and copyright infringement litigation which can affect a deal and erode value from portfolio companies. To address this risk, new insurance products have emerged that can protect private equity firms and corporations against losses resulting from intellectual property litigation, covering both defense costs and awarded damages. Aon sees the intellectual property market growing exponentially as intellectual property is recognized as its own asset class, and risk transfer tools develop around this asset class to reduce risk and create enterprise value.

The Markets

As the use and demand for M&A insurance grew, the insurance markets committed a significant increase in capacity. This expansion in available insurance limits and number of active insurers, coupled with a decrease in rates continues to fuel the market with signs pointing to a sustained period of growth in the near term.

Despite the softening of premium rates, appetite by insurers for a broadening range of deals has grown, both from deal size (EV) and level of risk tolerance. Based on 2017 results, Aon experienced growth at both ends of the M&A market, noting that the number of R&W policies placed for deals with enterprise values of less than $50M more than doubled from 2015 while deals with enterprise value of $1B or more tripled over the same period. While R&W insurance has historically been known as a middle market solution, the expansion of the insurance market has created more opportunities to serve a wider class of deals.

The Growth Narrative Continues

In the EMEA region, the growth narrative continues. Despite headwinds of political uncertainty and bolstered by a strengthening economy, M&A activity in Europe grew to its largest percentage of global M&A in years4. Notably, the number of EMEA-based R&W insurance policies (also known as “Warranty & Indemnity” insurance or “W&I”) also comprised a material percentage of Aon’s global book of business — mirroring the strong M&A market in the United Kingdom and on the continent.

15%

of the deals completed by Aon in EMEA represented in-bound U.S. buyers buying assets in EMEA

Sources:
4. Mergermarket Global & Regional M&A Report FY2017.

Insurance Trends

Utilization of R&W insurance in EMEA includes a mix of private equity, corporate buyers and real estate investors with both private equity and corporate buyers comprising a growing percentage of policies placed in 2017. 15% of the deals completed by Aon in EMEA represented in-bound U.S. buyers buying assets in EMEA, contributing to a growing trend of U.S. buyers seeking “U.S.-style” deal and R&W policy features such as limited knowledge and more specific disclosure regimes. Nil recourse or “no seller indemnity” deal/policy structures are common in EMEA challenged with a very competitive premium rate environment which is consistently below North American pricing – likely enhanced by the growth in insurance capacity from nine insurers in 2014 to over 30 in 2017 amassing approximately $1.4 billion in limits available per deal.

$1.4 billion

in limits available per deal amassed by the growth in insurance capacity from nine insurers in 2014 to nearly 30 in 2017

Country Trends

Key developments in EMEA include the evolution of local insurer and brokerage expertise on the continent with particular expertise in the Nordics, Benelux and Germany. More recently, Italy, Spain and France have developed lively local markets with activity growing in Central and Eastern Europe, South Africa, and the Middle East. The localization of expertise provides for focused specialization around language, culture, as well as familiarity with local legal systems and regulations, complimented with the historical expertise and capacity through the London market.

Asia

Echoing the approach by other deal professionals around the globe, similarly Asian buyers are using R&W insurance to gain more protection in lieu of (or in addition to) a more modest seller indemnity or escrow, noting that over 94% of deals completed by Aon’s team involved buyerside R&W policies. Asia has seen a significant increase in the placement of R&W insurance over the past few years, with Aon placing $1.2B in aggregate limits in 2017 up from $255M in 2015. We continue to see growth in the first half of 2018 and are on track to surpass 2017.

Private equity acquirers were the main drivers of growth in 2017, but the type of clients interested in R&W insurance continues to diversify as more clients gain increased comfort and understanding of its use and benefits. More sellers are “stapling” R&W insurance programs to bid packages, setting the stage early on for insurance in lieu of traditional indemnities and allowing sellers to get ahead in negotiating a sale with limited trailing risk – a trend seen around the globe. Chinese and other Asian companies are also increasingly using M&A insurance to enhance their bids on cross-border transactions.

On the insurer front, there remains only 3 international insurers who have a physical underwriting presence in Asia, however local insurers are now entering the market in China and Japan along with increasing interest in underwriting Asian risks from insurers in London, Europe, Australia and Bermuda. Total available capacity for any one R&W insurance placement for an Asian deal could be as high as $780M, depending on the industry and geographies in which a target operates.

Aon has placed insurance for deals across a broad range of target industries including those for which insurers would have had limited appetite a few years ago. Complementing R&W insurance, interest in tax insurance is growing to address specific known matters that would not otherwise be covered by R&W insurance. Notably, Aon was successful in placing a first of its kind tax liability policy in Korea, allowing the sellers of a Korean asset to return funds to limited partners of policies that would otherwise have been tied up in escrow.

94%

of deals completed by Aon's team involved buyer-side R&W policies.

70%

of policies placed were for private equity buyers.

R&W insurance by strategic buyers has increased steadily in recent years — from 10 deals with $255 million in limits for 2015 to 17 deals with $1.2 billion in limits for 2017.

Australia & New Zealand

Reflecting the growth in demand across the globe and the corresponding expansion in available insurance capacity, the insurance market in Australia has grown with over $1 billion in capacity available for any one deal. The increase in insurance capacity has contributed to plummeting premium rates for large layered insurance programs where excess limits have become cheaper than ever, resulting in 19% decline in average blended premium rates.

Despite the fall in premium, the competitive market has allowed insurance terms to remain favorable for buyers with, for example, tipping retentions (deductible) purchased on nearly half of the of the deals placed by Aon in 2017. Tipping retention provisions have been a common feature in the Australian market for some time with several insurers now allowing the retention to tip to zero, thereby enabling loss to be covered from dollar one once the retention amount has been met. Retention amounts overall declined in 2017 with sub-1% (of enterprise value) retention options regularly offered by insurers — this development contributed to average retention amounts as a percentage of enterprise value decreasing by .12% in just the last year.

Private equity and corporate buyers continue to actively use R&W insurance, noting equal numbers of policies placed for both sets of buyers — a trend seen around the globe in which the competitive M&A market has encouraged more corporate buyers to consider and deploy R&W insurance as an effective tool to level the playing field with private equity investors.

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