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. Please contact the underwriting team for up to date pricing.
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 is a highly experienced underwriter with over 15 years’ experience.
With a proven, track record of getting complicated deals over the line with a commercial can do attitude, Kelly now oversees a team of 30 underwriters in setting underwriting strategy and ensuring all underwriting processes are adhered to.
Alongside this, Kelly also leads the US side of DUAL Asset’s product offering launching our Title to Shares/Excess Fundamental product stateside after being instrumental in developing and growing the product initially in the UK and Europe.
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 and is a nominee for Underwriting Professional of the Year 2020 at the Women in Insurance Awards.
When not travelling in the US you will find Kelly clocking up miles on her Peloton to get in shape for the next trip!
Head of AsiaPac
Head of AsiaPac
Chris is an Australian qualified solicitor who was admitted to the Supreme Court of Victoria, Australia in 2012. Following admission, Chris worked in the Real Estate team at Hall & Wilcox Lawyers in Melbourne until July 2018. Chris has acted for fund managers, listed and unlisted REITs, superannuation funds, utility companies and private and public investors and developers. Chris’ key areas of practice included property due diligence, sales and acquisitions, commercial and retail leasing, development agreements and construction contracts.
Chris joined DUAL Asset in October 2018 after relocating to London. His experience practising as a solicitor for over 6 years and advising clients in relation to a broad range of risks underwritten by DUAL will assist Chris in quickly becoming an independent and pragmatic underwriter.
Head of Italy
Head of Italy
After his Laurea Specialistica in Giurisprudenza in Trieste, Massimo worked as trainee lawyer and assistant at the European Parliament in a fully German speaking office.
In 2012 he started his career in Insurance, working in a leading broker firm in Milan, where he gained a solid experience in managing the insurance portfolio of public entities, utilities, power and energy companies as well as fulfilling various business development activities.
Massimo joined DUAL in June 2017, he is responsible for the Italian market and specializes in continental Europe risks, with a focus on CEE and Germany.
With his legal and insurance experience, together with his languages skills, he is a huge asset to the DUAL team and their clients.
Title Insurance Officer – CEE & SEE
Title Insurance Officer – CEE & SEE
Emilia is a qualified legal advisor with over 10 years’ experience on the Polish market. She specializes in real estate and construction law, with a main focus on spatial development, building and re-privatization law.
Emilia has provided international investors and developers with on-going legal assistance in relation to building law issues and assisted and consulted on acquisition and transfer of real estate. She has represented clients in proceedings concerning construction, zoning, heritage and environmental protection, including numerous successful cases before the Supreme Administrative Court. She has advised on regulating the legal status of the properties, being involved in many cases regarding re-privatization and statutory impropriation of state legal entities.
Prior to joining DUAL, she worked at the Warsaw offices of Beiten Burkhard and Wolf Theiss, leading law firms in Germany, Central, Eastern and South-Eastern Europe. Emilia studied law and applied linguistics at the University of Warsaw and at the University of Tübingen, Germany. She has also completed a secondment at ThyssenKrupp AG in Essen, Germany. Emilia is admitted to the Polish Bar and is fluent in English, German and Polish.
Head of DUAL Asset Ireland
Head of DUAL Asset Ireland
Paul brings a wealth of experience to DUAL Asset’s Title and Legal Indemnity offering with a particular focus on Ireland.
He has over 30 years’ experience as a lawyer in Ireland, advising property investors, developers and financial institutions in the Irish market.
His strong understanding of the legal environment surrounding the real estate and property financing sectors add invaluable insights into the delivery of DUAL Asset’s title to share and real estate offerings.