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W&I Insurance

Buyers

What's on this page:

We want to help you get your deal done.

We understand that you need an insurance partner to facilitate the transaction and that takes, reasoned, considered coverage positions – as an experienced group of M&A professionals our Team is able to meet challenging timelines and will proactively discuss coverage in order to offer the best position possible.

We offer a premium service to help our clients meet their commercial goals. Our Team are experts in providing W&I insurance – bringing together some of the most experienced practitioners in the W&I industry – which means we will get the deal done.

And afterwards our Claims process is capable of dealing with complex matters as efficiently as possible and is supported by robust Risk Capital from major insurers.

For more information about Brockwell and our appetite see About Us and Risk Appetite.

Get a quote here.

How can W&I insurance help me?

W&I protects a buyer against the unknown. No due diligence process or business is perfect and we can mitigate the impact of a potential risk.

W&I insurance can be used to mitigate risk and/or facilitate an M&A transaction. For example, a W&I policy can help a buyer by:

  • facilitating a seller’s clean exit (e.g. capping liability at £1 can enhance an auction bid)
  • protecting a financial model (/ returns to investors) against unforeseen liabilities
  • providing an alternative avenue of recourse (e.g. a private equity sponsor may not wish to sue its management team)
  • providing a greater limit of liability than a seller is willing / able to offer
  • increasing covenant strength and managing recoverability risk (see our Risk Capital)
  • giving a single counterparty to claim against (a buyer will proceed directly against the policy rather than, for example, multiple individual sellers)

Aside from cover, the W&I process provides access to an experienced M&A counterparty and their advisers, which can help highlight matters for a buyer’s attention (e.g. with exclusions) and stress test the due diligence process.

Transactional risk can arise outside of a share sale and our Team of expert M&A underwriters are able to cover contractual protections outside of typical private M&A share sales. For example, we are experienced in covering asset deals, as well as in Distressed M&A scenarios, and we often offer standalone Tax cover to protect the tax treatment of a such transactions.

What W&I policy enhancements can Brockwell offer?

We use our experience to give clients the best cover possible and may be able to offer the following enhancements in order to help you mitigate risk:

  • new breach – cover for warranty breaches in the signing/closing gap
  • knowledge/materiality scrape – removal of warranty qualifiers
  • synthetic tax covenant – a tax covenant under the policy
  • affirmative cover – specific limitation of disclosure under the policy

Please see the FAQs below for further details.

We want to facilitate your transactions – if you have any specific coverage requests please let us know and we will consider whether we can accommodate these or create a bespoke solution. For example, ‘new breach’ cover was developed by Brockwell underwriters to assist a particular client and is now offered more widely in the W&I insurance market.

Identified risks can cause a transaction to stall. It may be possible for us to provide a way forwards by completing a separate underwriting workstream to get comfortable, in which case our in-house experts will offer separate protection under a standalone Tax or Contingent policy. These products are often used to prevent the need for an indemnity / escrow or to protect a private equity sponsor’s modelling.

FAQs

Underwriting is a quick process that involves reviewing the due diligence reports and a short Q&A process with the buyer and its due diligence team in order to understand the target business.

Generally, we will not offer terms for transactions where written legal, financial and tax due diligence undertaken by external specialists is not available.

Yes. As we review the due diligence reports in order to get comfortable we require that it is written down. To the extent issues are partially explored or omitted we will need to raise Q&A to understand the position (and potentially exclude cover where information is not available).

W&I policies do not insure future events and so where there is a gap between signing and completion with warranties repeated at both dates a bring down of disclosure is required at completion. At bring down of disclosure any newly identified matters will be disclosed and so excluded from cover by the warranties given on the completion date.

New breach cover is a policy enhancement, which was developed by Brockwell’s underwriters, by which the W&I policy takes on the risk of warranty breaches arising between signing and completion.

This policy enhancement is available on a case-by-case basis for an additional premium. Typically we will offer this for deals where the gap between signing and completion is expected to be no more than two months.

Where the warranties given by a seller are all given subject to the awareness of the seller, this awareness qualifier can for an additional premium be disregarded (or ‘scraped’) for the purposes of the W&I policy.

The W&I policy would still implement an awareness qualification to specific warranties where such qualification would be in-line with market practice.

A synthetic tax covenant (or ‘phantom tax covenant’) contained in a W&I policy is a tax covenant that is given by the insurer as an indemnity within a buy-side W&I policy instead of by the seller.

This is available for an additional premium and operates in the same manner as a conventional tax covenant. It is often used as a way to limit the costs of negotiating a tax deed/covenant between transaction parties.

Where a matter is noted in due diligence, but is theoretical in that it does not relate to a substantive identified risk and is classified as a low, very low or remote risk and the quantum is not material, then notwithstanding the reference in the due diligence (for an additional premium) we may be able to undertake further underwriting and offer cover for such identified matter.

We are only able to offer affirmative cover where the risk noted in the due diligence is straightforward, we do not consider the quantum to be material, and there is sufficient due diligence (or further information available) to allow us to understand the risk.

Tax insurance provides an indemnity to the policyholder for an identified tax risk. We regularly cover international risks between £1m and £45m to assist buyers with managing risks identified during due diligence. For more information click here.

This insurance provides protection against uncertain legal interpretation. The policy includes an indemnity for an identified risk and can be used in both a contentious and non-contentious context. For more information click here.

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