About the Course
Introduction
This CLE course will guide M&A counsel in negotiating and drafting indemnification provisions in acquisition agreements. The panel will share practical strategies for negotiating the full range of indemnification terms — from defining the scope of covered claims and structuring payment sources, to financial caps and baskets, procedural requirements, and the growing role of representation and warranty insurance.
Description
Indemnification provisions are standard clauses in M&A contracts that help parties minimize financial loss if a deal goes south. Counsel must think through every layer: what's covered, what damages are recoverable, how long claims can be brought, where the money comes from, and how financial and procedural limits shape the ultimate recovery. The risks of just relying on boilerplate provisions far offset the convenience.
Indemnity clauses are challenging to negotiate. Indemnification is a zero-sum negotiation: every protection the buyer gains is exposure the seller bears. Deal counsel must thread that needle — drafting provisions that are precise, internally consistent, and enforceable when it matters most.
Counsel should also evaluate and advise their clients on the benefits but also the shortfalls with respect to purchasing insurance products to supplement or replace indemnity provisions.
Listen to our authoritative panel as they cut through the complexity and deliver practical, deal-tested guidance on the full range of indemnification issues in private company M&A transactions.
Presented By
He concentrates in U.S. and cross-border mergers and acquisitions of public and private companies, representation of financial sponsors, and securities transactions. He is the immediate past Chair (2006–2009) of the Committee on Mergers & Acquisitions of the ABA Section of Business Law. He is a frequent lecturer on mergers and acquisitions topics.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Wednesday, April 15, 2026
- schedule
1:00 PM ET/10:00 AM PT
I. Introduction
II. Scope
a. Representations and warranties at signing and closing
b. Pre-closing covenants
c. Post-closing covenants
d. Line items, including non-meritorious claims
III. Sources of payment
a. Joint and several or proportional
b. Holdbacks and escrows
c. Set-off against future payments
d. Clawbacks
IV. Indemnifiable damages
a. Inclusions: diminution of value and attorneys fees
b. Exclusions: consequential, special, punitive, multiple of profits
V. Time limitations: general, fundamental and in-between
VI. Financial and other limitations
a. Caps, baskets (deductible or threshold) and mini-baskets
b. Materiality scrapes
c. Mitigation requirements/requirement to seek insurance/3rd party recovery
VII. Procedure: claims notices and control of defense of 3rd party claims
VIII. Sandbagging/benefit of the bargain and non-reliance
IX. Exclusive remedy - fraud?
X. Representation and warranty insurance
a. Introduction: positives and negatives
b. Buyer’s issues
c. Seller’s issues
The panel will review these and other key issues:
- What are the current trends in drafting and negotiating contractual indemnity provisions?
- What are the most commonly disputed issues in M&A indemnity, and what are some practical strategies for resolving them?
- How can counsel for buyers expand indemnification protection and counsel for sellers limit indemnification liability when drafting and negotiating indemnity clauses?
- How are damages for a breach measured under indemnification provisions?
- How do insurance products impact indemnification provisions?
