Negotiating Indemnification Provisions in M&A Deals
Crafting Provisions to Allocate Transaction Risks
Recording of a 90-minute CLE webinar/teleconference with Q&A
Conducted on Wednesday, November 4, 2009
Recorded event now available
This seminar will discuss strategies for negotiating indemnification provisions in M&A deals to protect buyers and sellers and reduce post-closing disputes.
Description
Indemnification provisions are among the most heavily negotiated terms in merger and acquisition transactions. Failure to properly allocate risks when structuring a deal can result in unintended legal and financial exposure for buyers and sellers.
When negotiating indemnification provisions, parties must consider time, subject matter and dollar limitations; how to identify indemnitors and indemnitees; escrowed funds and setoff rights; defense of third-party claims; and payment on indemnification. The use of boilerplate language is dangerous.
Listen as our authoritative panel—including deal attorneys, an accountant and an M&A consultant—explains the impact of the buyer's market on the negotiation of indemnification provisions and offers best practices for negotiating indemnification provisions in a way that benefits and protects buyers and sellers and reduces post-closing disputes.
Outline
- Current developments—impact of buyer’s market on indemnification provisions
- Materiality scrapes
- Survival periods
- Baskets
- Caps
- Escrow
- Closing deals without credit
- Negotiating common indemnification provisions
- Consequential and incidental damages
- Fraud exclusion
- Purchase price adjustment and double-dipping
- Dispute resolution trends and pitfalls
- Evaluating and addressing creditworthiness of indemnitors
Benefits
The panel will review these and other key questions:
- What key clauses should buyers and sellers include when crafting and negotiating indemnification provisions?
- What are the most commonly disputed issues in M&A indemnity and what are some effective strategies for resolving them?
- How can the parties to a deal best evaluate and address the creditworthiness of indemnitors?
Faculty
Todd B. Pfister,
Partner
Foley & Lardner, Chicago
He has significant experience representing public and private entities in merger and acquisition transactions. He has been involved in numerous public and private offerings of both debt and equity securities and regularly counsels publicly held companies regarding compliance matters under federal and state securities laws.
Kevin D. Kreb,
Partner
PricewaterhouseCoopers, Chicago
He consults with clients regarding the resolution of disputes arising from merger and acquisition transactions, including purchase price disputes, earn-out disputes and breach of representation and warranty claims, through negotiation, arbitration and litigation. He has served in the capacity of expert witness and sole arbitrator/neutral accountant on numerous occasions.
Jeff J. Litvak,
Senior Managing Director—Forensic Litigation
FTI Consulting, Chicago
He specializes in accounting and valuation matters, assessment of economic damages, analysis of lost profits, and merger and acquisition damages. He has provided expert opinions on matters involving post-acquisition disputes (including the Valassis v. ADVO case), breach of contract, damages, employee termination, lender liability, healthcare fraud and abuse, antitrust and lost profits.
Catherine B. Nelson,
Senior Counsel
Foley & Lardner, Chicago
She focuses her practice on mergers and acquisitions, private equity, corporate finance and general corporate counseling. She has represented start-ups and mature companies in mergers and acquisitions, private offerings, venture capital and various other financing transactions, as well as general business law representation such as contract review and negotiation.
Ordering
Online CLE - Audio Recording
Includes audio streaming of full program plus handouts (available 24 hours after live seminar).
CLE:
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Available 24 hours after the live event
Recorded Event
Includes full event recording plus handouts (available after live seminar).
CLE: Pre-approved for self-study credit in: AK, AZ, CA, CT, HI, MO, MT, NY, TX*, VT, WA, WV. Upon request, self-study credit is also available in: CO, FL, GA, ID, KY, ME, ND, NE, NH, NM, NV, OR, UT, WI, WY. If you are applying for self-study credit in one of these states, contact Strafford CLE at 1-800-926-7926 ext. 35 or CLE@straffordpub.com. (*Indicates that Strafford needs to process the CLE — see below to purchase this option.)
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Available ten business days after the live event
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Customer Reviews
I liked the substance of the program and the ease of participating.
Paul L. Hammann
First American Title Insurance Company
Very good and concise CLE.
Anthony DiSandro
Stevens & Lee
Strafford provided an excellent seminar on an interesting and important subject.
Joseph T. Mancuso
Hancock Estabrook, LLP
The real case examples and case citations were very helpful.
Tyler Wilkinson
Axley Brynelson, LLP
The webinar was very easy to use and I liked that the speakers were very knowledgeable.
E. Moses Vejil
Bingham Greenebaum Doll LLP
Finance Law Advisory Board
Partner
Gibson Dunn & Crutcher
Partner
Nixon Peabody
Partner
Alston & Bird
Counsel
Mayer Brown
Partner
O’Melveny & Myers
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