• videocam Live Webinar with Live Q&A
  • calendar_month April 15, 2026 @ 1:00 PM ET/10:00 AM PT
  • signal_cellular_alt Intermediate
  • card_travel Commercial Law
  • schedule 90 minutes

Contractual Indemnity in M&A Deals: Transactional and Litigation Considerations, Terms to Minimize Financial Risks

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

Tracy A. Belton
Partner, Co-Chair Global Mergers & Acquisitions Practice
Arnold & Porter Kaye Scholer, LLP

Ms. Belton represents strategic and private equity buyers and sellers of public and private companies across a variety of industries, including technology, insurance brokerage, healthcare, medical devices and defense. This breadth of experience allows her to offer innovative and flexible solutions in complex transactions. Understanding there is no “one size fits all” approach to transactions, she takes the time to understand her clients’ concerns and drivers and deliver practical, cost-efficient solutions. In addition to her M&A experience, Ms. Belton is experienced in securities matters, including initial and secondary public offerings and compliance with SEC, NASDAQ, and NYSE reporting requirements. She also advises publicly held and private companies on a wide variety of corporate governance and day-to-day corporate as well as transactional matters.

Joel I. Greenberg
Senior Counsel
Arnold & Porter Kaye Scholer, LLP

Mr. Greenberg concentrates in U.S. and cross-border mergers and acquisitions of public and private companies, representation of financial sponsors, and securities transactions. He also advises publicly held and private companies on a wide variety of corporate governance and day-to-day corporate as well as transactional matters. He is a former Chair of the Committee on Mergers & Acquisitions of the ABA Section of Business Law. Mr. Greenberg is a frequent lecturer on M&A topics, and has spoken at programs sponsored by the ABA, the Association of the Bar of the City of New York, the Association of Corporate Counsel, the Center for International Legal Studies, Columbia Law School, Cornell Law School, Harvard Law School, the Inter-Pacific Bar Association, International Financial Law Review, Penn State Dickinson School of Law, Stanford Law School, and UCLA School of Law, among others. He co-chairs the ABA’s annual National M&A Institute. 

Credit Information
  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.


  • Live Online


    On Demand

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?