The private equity mini guide to risk management

Transcription

1 The private equity mini guide to risk management

2 5 Fundraising 7 Pre deal 9 Bid phases 13 Hold phase 15 Exit 17 Fund closing 18 Glossary

3 Risk management is fundamental throughout the fund cycle Risk is inherent in private equity. But higher demand for returns and tougher competition are making it more risk averse than ever. With credit institutions more demanding and investors more aware, there's also greater pressure for accurate facts, figures and forecasts. And due to globalisation and cross-border proliferation, private equity houses are finding themselves dealing in new and unfamiliar sectors and regions. So how do you deal with all this better than the next deal doer? The fact is that to be competitive requires specialist risk management thinking - offering not just topline advice but real solutions across all your sectors and regions. And at every stage of the fund cycle. Not only for covering you against disaster. But also for giving you a competitive edge where none previously existed. This guide is here to help enhance your risk management throughout the private equity cycle. 3

4 4 Once your fund is up and running, you need the best possible personal protection

5 Fundraising As soon as you market a fund, you have an exposure. If an investor feels mislead, they can potentially sue you. You're liable as soon as you publish your PPM. And that liability can be personal, not just corporate. In short, you're there to be shot at, so better make yourself bulletproof. It is worth noting that product and consultative options available through insurance advisors have and continue to evolve with many now more affordable and practical than ever before. Solutions: Management liability Page 21 5

6 6 It's best to get rid of potential headaches before they start

7 Pre deal Understanding your target portfolio companies and the way they are managed begs some serious questions. Are management running the target the way they say they are? As deal flow gets more difficult, are you going into a sector or country that's relatively unfamiliar territory? Do you fully understand the nuances and potential risk at this all important early stage? Whether you do or don't there are some invaluable tools that can help head off potential problems. Solutions: Capital markets advisory Page 18 Investigative due diligence Page 20 7

8 8 The smart bids are based on superior risk intelligence

9 Bid phase - initial bid Since 90% of transactions go to auction, this effects most private equity houses most of the time. It is vital to establish exactly what you are bidding for. There are a lot of material issues that can affect the bid price. Issues such as pension funding and valuations, environmental and material operational risk are just a few key areas that need flagging up at the earliest possible stage. So, are you bidding for a sound business at the right price? Solutions: Capital markets advisory Page 18 Claim/litigation buyout Page 23 Environmental due diligence Page 19 Insurance due diligence Page 19 Litigation cap Page 23 Pensions and benefits due diligence Page 21 Red flag report Page 20 Transaction liability Page 22 9

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11 Bid phase - final bids to closing This is the time when deals can stand or fall on risk issues and how they are addressed as part of the transaction. Serious digging for shortfalls and pitfalls can sharpen your bidding edge. As can your creativity in making the warranties and indemnities you receive more acceptable. Meanwhile, you're busy populating the business model, calculating exact costings, and creating the business plan. That requires knowing all the cost implications of issues such as pensions, environment factors, tax opinion issues and insurance itself. So it's useful to know that there are risk management tools to take care of each job, take the deal forward if it gets stuck and mitigate the risk factors before you're totally committed. Solutions: Compensation benchmarking Page 18 Environmental due diligence Page 19 Insurance due diligence (including 100 day plan) Page 19 Tax opinion Page 23 Trade credit Page 22 Warranties and indemnities Page 23 11

12 12 Is your portfolio risk strategy the perfect model for maximising value?

13 Hold phase You've made your acquisition. You're now implementing your 100 day plan. And this is when value maximising and ongoing risk management issues can arise. Is the company being run properly to cover potential exposure? Are uninsurable risks also being minimised as much as possible? This, like every other company in your portfolio needs risk insurance. How efficiently are you insuring your portfolio as a whole? Could you enjoy economy of scale? What about the ongoing risk issues associated with buy and build strategies or company divestments? And if you do need to make a claim, is there a robust claims management process in place to ensure a swift resolution? Solutions: Claims management Page 18 Compensation benchmarking Page 18 Enterprise risk management Page 19 Insurance due diligence Page 19 Pensions and benefits due diligence Page 21 Portfolio management Page 22 Transaction liability Page 22 13

14 14 Are you getting everything you can from the companies you sell?

15 Exit You've driven the investment towards a profitable conclusion. But will it be the swift and glorious exit you're hoping for or a long, lingering and less fruitful farewell? Good management of the exit process can make all the difference. And the trick is to have all your bases covered off before the 'would be' vendors move in with their own game plan. That means getting your data room in order and ensuring that your prospectus can't have holes picked in it. Are potential future claims covered? Have you thought about protecting the selling price through pragmatic warranty and indemnity cover? Can you maximise returns by using insurance tools to minimise the bargaining power of buyers? There are many smart strategies you can enter into to manage your exit effectively Solutions: Claims management Page 18 Prospectus/IPO liability Page 22 Transaction liability Page 22 Vendor due diligence Page 24 15

16 16 It's never 'game over' unless you've got every angle covered

17 Fund closing You've exited your investments successfully. But you're not quite out of the door yet. There could still be residual liabilities, such as continuation indemnification obligations, which need resolving before any final distributions can be made to LPs. Fortunately it is possible to analyse and insure ongoing risk across the whole fund. So you can enjoy the peace of mind that closure always brings. Solutions: Fund wrap up cover Page 19 17

18 Glossary Capital markets advisory Capital markets advisory provides specialist help for the growing number of private equity firms looking to invest in financial services particularly insurance companies. This particular sphere has its own unique complex regulatory issues, business structures, jargon and culture, all requiring specialist advice. The ideal place to get that advice is from an advisory team that's actually part of an insurance broker. They can help you follow the regulations and avoid all the pitfalls in sourcing, restructuring, building and successfully exiting insurance companies in your portfolio. Claims management Resolution of a major loss can be a time consuming and lengthy process. To minimise the disruption to your business, a quick solution is needed and that's where the benefit of having a dedicated claims consultant pays dividends. An understanding of the strategic needs of the business is key and the consultant will address immediate areas of concern - injury, property damage, business interruption or potential adverse publicity. They will work with you on the appointment of loss adjustors, surveyors, and engineers and run any required tender processes. Your claims consultant should be involved in all stages of negotiation from document preparation to final settlement offer. Compensation benchmarking One of the issues determining the success of a portfolio company is how the management and personnel are compensated. The most efficient way to determine this is to benchmark pay and bonuses against industry standards using expert advice. This will tell you whether you're paying too little (and need to up the ante to attract and retain top personnel) or too much (which can help lead to cost efficiencies where permissible). It can also help you to incentivise management more effectively and be better informed of ongoing industry trends relating to compensation. 18

19 Enterprise risk management (ERM) Active ERM which seeks to address actual and perceived risk, can help you limit potential financial loss, enhance competitive advantage and potentially make an asset more attractive to future buyers. The purpose is to cast an expert eye over operational risks, decide what is insurable and what isn't and then implement optimal solutions to minimise those risks. This can cover a whole range of strategic and operational areas including insurance, compliance, accounting, planning, credit, marketing, quality assurance and customer service. Good ERM can also help the company's credit rating and therefore its ability to borrow. This is particularly relevant as Standard & Poor s credit rating now includes risk management in its evaluation - for both financial and non-financial companies. Environmental due diligence The environment can throw up potentially huge issues when buying or selling operating companies or land. If over-looked, you can find yourself or your companies suddenly liable for both current and historic pollution or environmentally related problems. Environmental due diligence is carried out by experts who can unearth contingent liabilities, advise on possible mitigation and recommend suitable insurance solutions. These can often avoid failure of a transaction to complete. Fund wrap up cover When a fund is coming to the end of its life and if there are any remaining liabilities, the fund has to stay open and distributions cannot be made. To address this problem, an insurance product has been created to 'sweep up' the outstanding liabilities enabling the fund to close. It acts in a similar way to warranties and indemnities insurance but has the advantage of simultaneously covering the liabilities of all the companies being divested by the fund in a single policy. Insurance due diligence Insurance due diligence is an equally important part of the process along with financial, commercial and legal diligence, often identifying risks (not always picked up by legal or financial due diligence) which can have an impact on transaction value as well as post completion. This should cover past, current and future exposures along with an analysis of the existing 19

20 programme and recommendations for an optimal risk management structure. At initial bid phase, good insurance due diligence will present you with a Red flag report - which addresses material issues relating to risk assessment. This will give you the numbers that help determine your bid price. At final bid phase, the insurance due diligence findings will be presented to you in the form of a 100-Day plan of action that mirrors your conventional private equity 100-Day plan. During the hold phase, insurance due diligence applies equally for any acquisitions by your portfolio companies. Real estate due diligence applies to companies owning a significant portfolio of property such as factories, buildings or multiple tenancy complexes. The real estate side of transactions can be complex and can raise landlord related issues that need expert guidance. Real estate due diligence will flag up and help you understand what your landlord obligations are in terms of insurance, contractual obligations and specific legislation. This enables you to identify any potential gaps and find a solution and at the same time fulfil your corporate governance requirements without potentially expensive repercussions. (See also environmental due diligence on page 19 and pensions and benefits due diligence on page 21). Investigative due diligence In an industry where the key to success is the management team that you are backing, there are key questions that need to be addressed. Are they who say they are? Do the credentials on their CV stack up? While corporate fraud, unexpected company failure, business malpractice and corruption continue to occur, it's important to highlight human weaknesses that might otherwise slip under the radar of business focussed due diligence. That's where the specialism of investigative due diligence kicks in, enabling the credentials of those taking a business forward to be rigorously checked, giving you room for remedial action or favourable renegotiation if anything negative comes to light. 20

21 Management liability Nearly every private equity investor buys management liability protection but cost and quality can vary significantly. In insurance terms, management liability is principally a mix of directors' and officers', (or their equivalents in other corporate entities), general partner liability and professional indemnity. This enables individuals to be protected for the whole spectrum of roles in the private equity process without fear of being exposed by subsequent personal litigation and for defence costs. The best time to change provider or review the quality and scope of cover is during fundraising between first and final close prior to investing in a new fund. Pensions and benefits due diligence Pensions and reward liabilities are key areas of risk which can be easily missed or underestimated when acquiring a company. Without specialised due diligence, potential problems and issues are only discovered after the deal has completed. So it's important to turn to experts in this area at the earliest possible opportunity, using specialist advisors. Pensions can be particularly complex. Every country has different legislation regarding funding, contributions, takeovers and employer responsibility. It is therefore vital to get someone on your deal team who can calculate what the funding levels should be and examine all the valuation and trustee requirements in the event of a takeover. Many bidders have gone to the edge of a pension black hole before being pulled back from the edge by pensions due diligence. Similarly, employee benefits need very careful attention. Are they cost effective? Can improvements be made? What will it cost to maintain benefits at their current levels when taking over, bearing in mind the regulations in that region? These questions all need accurate answers before you proceed with a bid. In addition to helping your bid, all these pension and benefit issues need ongoing attention during the hold phase. So it's good to get specialist help that can also deal with the management and control of these schemes within your portfolio companies. 21

22 Portfolio management Minimising your exposure to unecessary costs will help to maximise the value of your portfolio companies. One solution to this is using the relatively new concept of portfolio management to collate the purchasing power of the insurance spend across your investee companies. As well as saving money on premiums through achieving 'bulk' discounts from insurers and broader coverage, this scheme can also be tailored to suit the nature of the portfolio companies. It makes the risks they encounter more transparent and saves time and effort for their management and that of the private equity house. Crucially, having a formal portfolio management programme in place can help you better understand and manage operational risks during the 'hold' phase. Prospectus/IPO liability As soon as the prospectus is written for a company being floated, the authors can become liable for errors, omissions or mis-statements within it. By taking out specific Prospectus/IPO cover, this liability can be 'ring-fenced' without exposing the company s other liability policies such as directors and officers insurance. The policy cover extends to the liability of the issuer, its directors and officers, employees and selling shareholders (if applicable). Trade credit In tough economic times, suppliers can take longer to pay invoices resulting in stretched creditor periods and an increase in aged debtors, which can impact cash flow. Trade credit insurance offers a solution by protecting the seller or financier against the risk of non-payment of trade debt. This can be a useful tool in emerging markets as it provides access to country, market and buyer intelligence. Trade credit insurance also has the 'knock on' effect of enhancing the receivable portfolio, which in turn allows competitive financing to be negotiated. Transaction liability When doing deals, it is useful to have options that can either add a competitive edge by covering off potential risk or enable you to resolve disputes when negotiations seem deadlocked. 22

23 Transaction liability insurance essentially gives you those options. It s a suite of tools or products enabling you to use insurance to arrive at a more creative range of risk cover solutions than standard methods such as baskets or escrows. Typical transaction liability products include: Warranties and indemnities This is insurance protection against unknown or undisclosed losses, resulting from breaches of warranties or indemnities in a sale agreement. The product can protect either the seller or the buyer. For the seller, it covers claims made by the buyer for breach of warranty plus the costs of defending against such allegations. For the buyer, it is a strategic, proactive tool that can be used to differentiate a bid in an auction, alleviate concerns over collectability from the seller or, simply enhance an insufficient level of financial warranty protection. Tax opinion liability When identified, tax issues can be deal breakers. In an M&A context, buyers and sellers cannot always agree on how (or who) will take the exposure forward particularly when the risk has an all or nothing downside. If the outcome of the tax authorities treatment of the position is uncertain, a tax opinion policy can resolve this problem by covering the liabilities should the tax authorities take a negative view. Claim or litigation buyout Uncertainty around ongoing or threatened litigation can cast a shadow over the present and future prospects of a business. By using this product, the costs of a court judgment, or an approved settlement and defence costs can be protected. The product provides certainty and closure, especially when certainty and allocation of risk is key to completion. Litigation cap This product is designed to protect against the catastrophic losses that would seriously damage a business should a court ruling exceed estimates and expectations. It allows a business to allocate funds for expected losses in litigation and be secure that, should the worst happen, they are protected from likely financial ruin. 23

24 24 Vendor due diligence To help streamline the selling process, vendor due diligence is becoming increasingly common practice. Preparing one 'master' report for all parties in a deal bid can offer certain strategic and financial advantages. For the seller, vendor due diligence is an open declaration of intent which can get negotiations moving fast. For the bidders, often in a speculative auction situation, it can initially save money on a potentially expensive (and possibly wasted) due diligence bill and save time that can be better spent chasing more investment opportunities. In a carve out situation, vendor due diligence can also include a pre-designated insurance programme for the carved out company as a 'stand alone' enterprise. This saves time and effort for all parties including the incoming management whose talents can be used to better effect.

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26 If you would like further guidance on any aspect of risk management throughout the deal and fund cycle please contact: Mark Roberts CEO, EMEA/Asia Pac T: +44 (0) E: Or your usual Aon contact. Athens Brussels Budapest Copenhagen Dubai Frankfurt Glasgow Helsinki Hong Kong Istanbul London Madrid Milan Mumbai Munich Paris Prague Rotterdam Seoul Singapore Stockholm Sydney Vienna Warsaw Zurich Aon Limited No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by an means, including photography or recording, without the written permission of the copyright holder, application for which should be addressed to the copyright holder. Aon Limited is authorised and regulated by the Financial Services Authority in respect of insurance and mediation activities only. FP ref:

27 Aon Mergers & Acquisitions Group (AMAG) provide risk management and insurance solutions throughout the deal and fund cycle. Our insurance and human capital advisory services are extensive and include due diligence, transaction liability solutions, pensions and benefits consulting, portfolio management, enterprise risk management and management liability. With over 200 dedicated private equity specialists working out of offices in 30 countries, we combine global presence with specific country expertise that can facilitate the most complex of cross-border transactions. AMAG gives you a single point of access to the extensive resources of the Aon Group and our market knowledge and experience. With 36,000 employees in more than 120 countries, Aon is a global leader in risk management services, insurance and reinsurance brokerage, human capital and management consulting, and specialty insurance underwriting.

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