Transactional solutions to ensure Mergers & Acquisitions are completed smoothly, providing peace of mind for investors and security for lenders.
When buying a company, it is common to negotiate warranties and indemnities from the seller. These then form part of the Sale and Purchase agreement (SPA). Often, the seller is unable to stand behind these warranties, often due to a fund being wrapped up and a desire to redistribute back to investors. Warranty & Indemnity insurance (W&I) is designed to transfer the risks associated with mergers, acquisitions or recapitalisations to the insurance market.
Our M&A insurance products are designed to protect purchasers against fundamental warranty breaches. Our policy provides a wide suite of coverages, which is wider than that found in most sale and purchase agreements, offering the insured comprehensive protection. These risks include the capacity to sell, the ownership of the asset/shares and the ability to transfer amongst others.
A title to shares policy is often used in conjunction with Warranty & Indemnity insurance. W&I policies are often more limited in scope and the indemnity level is usually taken between 10% and 20% of the value of the transaction. Unlike W&I policies, there is no need to prove a breach of warranty, the risk must simply come under one of our widely worded insured events. Our policy will also insure the asset for its full value, so if the worst were to occur and the entire asset was lost, you are fully covered and protected from loss.
Our policies can be placed so they sit in excess of a W&I policy or as a standalone product, allowing you to cover the share and property warrants out of a W&I policy. When the W&I policy coverage falls away (these policies are time limited), our policy can increase to cover the full value of the assets.
In general, our policy protects against unknown risks and complements the due diligence process. Our policy protects you for the length of time you own the asset, unlike time limited W&I insurance.
Where specific risks are discovered, we can look at building cover for them into the policy. These insured specific risks would pass to any new buyer, improving the asset and its saleability.
Our standard list of coverages for a title to share policy includes:
- The Seller is not the legal and beneficial owner of all of the Shares.
- The Shares are not free from mortgage, charge or encumbrance.
- The Target is not the legal and beneficial owner of all of the shares in the company in whom title to the Property is vested
- The title to the Shares is defective due to a previous document not being properly registered, signed, completed and/or executed.
- A third party claims a better legal ownership than you to the Shares.
- The seller’s power of attorney was defective
- The Target is not the company in whom title to the Property is vested
- The Seller is not duly incorporated;
- The Seller lacks necessary power and authority. In addition, you are insured if the Seller does not have legal capacity to transfer the Shares to you for any of the following reasons:
Our standard list of coverages for a title to property policy includes:
- The title to the Property is not Good and Marketable and is subject to restrictions, covenants, easements, charges or encumbrances
- A third party claims a better legal ownership than you to the Property.
- There is an existing mortgage, charge or encumbrance registered against the Property.
- The title to the Property is defective due to a previous document not being properly registered, signed, completed and/or executed.
- The Property has been built, altered and/or is currently used in a way that is not compliant with any restrictive covenants or other legal obligations.
- The Property does not have the correct permits, planning consents (including heritage building consent) and/or building regulation approval for its construction and Insured Use.
- The Property is subject to an enforceable restriction which affects its value or its future marketability.
- Before the Policy Commencement Date, a local authority has started a compulsory purchase process that affects the Property.
- The seller’s power of attorney was defective.
- Disputes relating to boundary structures and/or encroachment of buildings on to the neighbour’s land or onto the property itself by a neighbour.
- The Property does not have adequate Easements to legally use the existing access, for vehicles and/or on foot, services, drainage and/or water supply.
- A third party has an Easement or right of way that affects your use of the Property.
Please ask for a copy of the policy wording for the full list of Insured Events.
What’s Not Covered
We do not cover known issues or matters revealed in the due diligence process, unless they have been specifically included as known risks. We also do not insure the following:
- We shall not have liability for any mortgages, charges, pledges or encumbrances that existed on Policy Commencement Date which were reported to you during your due diligence process
- Future events causing risks that didn’t exist on the day the policy was issued
- Pollution and contamination
- War and terrorism
- Compulsory taking e.g. by a government (unless the legal process has started before the policy is issued)
- Risks that are insured by a household policy
Please ask for a copy of the policy wording for a full list of the Uninsured Matters.
How much does it cost?
Pricing will depend on the due diligence undertaken, issues discovered and the nature of the transaction. Prices range per jurisdiction:
Speak to the team
Fergus has extensive experience underwriting real estate title, share title, legal indemnity and real estate transactional liability risk throughout the UK, Ireland, continental Europe and internationally. He has a particular interest in French and Spanish real estate and emerging markets.
Fergus is flexible and commercially minded with a strong reputation for helping clients complete transactions quickly and securely.
Kelly has been underwriting legal indemnity risks since 2005 when she first entered the market and she joined DUAL Asset Underwriting in 2014 as a Senior Underwriter with a predominant responsibility for UK risks.
Since then she has been heavily involved in underwriting and growing DUAL Asset Underwriting’s global title to share and real estate offering across the UK and Europe. Kelly works closely with both our M&A Real Estate clients and has recently underwritten a €2bn title to share and real estate deal whilst still taking a keen interest in English restrictive covenant risks.
Kelly is ACII qualified and a Chartered Insurer and was awarded the Crawford Prize in 2013 for her completion of the ACII with the best result nationally.
Kirstin entered the legal indemnities market straight from law school and has been underwriting high net worth commercial and residential defective title policies for Scotland, Northern Ireland and the Republic of Ireland. This involves a detailed knowledge of commercial and residential property law and keeping up to date with case law and legislative changes. She then went on to be a Customer Relations Manager at Millar & Bryce (Scotland’s premier provider of legal searching) before returning to her love of underwriting as a Senior Underwriter at DUAL Asset Underwriting in 2016.
Since joining the team, Kirstin’s specialisms have grown very much internationally as well as into the corporate sphere with DUAL Asset Underwriting’s global title to share and real estate offering. Kirstin works very closely with our M&A and Real Estate clients on matters great and small and from around the world to ensure deals happen.