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

Recording of a 90-minute premium CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, April 3, 2024

Recorded event now available

or call 1-800-926-7926

This CLE course will guide M&A counsel in negotiating and drafting indemnification provisions in merger documents, asset purchase agreements, and stock purchase agreements. The panel will discuss best practices for addressing challenges that may arise with indemnification claims, explain the various theories of measuring damages for breach, and examine how insurance products interact with indemnification provisions.


Indemnification provisions are standard clauses in M&A contracts that help parties minimize financial loss if a deal goes south. Counsel negotiating indemnification terms must consider time, subject matter, dollar limitations, escrowed funds, setoff rights, and indemnification payment. The risks of boilerplate provisions far offset the convenience.

Indemnity clauses are challenging to negotiate. The seller usually seeks to limit its indemnification liability while the buyer wants as much indemnification protection as possible.

Deal counsel must ensure that the indemnity provisions clearly describe the appropriate coverages and limitations and are properly coordinated with other agreement provisions. Deal counsel must also make sure that the indemnity provisions are enforceable against the seller's stockholders.

Counsel should also consider how damages will be determined in the event of a breach. Further, deal attorneys should 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 as our authoritative panel of deal attorneys explains current trends in negotiating indemnification provisions in M&A contracts. The panel will discuss strategies for limiting or expanding indemnification liability and enforcing indemnity clauses, including determining damages. The panel will also explain how insurance products are being used to cover indemnities.



  1. Negotiating indemnification provisions
    1. Types of damages covered
    2. Caps, baskets, and other limitations
    3. Fraud exclusion
    4. Purchase price adjustment and double-dipping
    5. Defense of third-party claims
    6. Enforceability of indemnification obligations against non-signatories
    7. Evaluating and addressing creditworthiness of indemnitors
  2. Determining types of damages recoverable under indemnification provisions in the event of a breach
  3. The use of insurance products to cover indemnities


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?


Kao, Elaine
Elaine Kao

McDermott Will & Emery

Ms. Kao advises clients on corporate matters, focusing on cross-border and domestic mergers and acquisitions for public...  |  Read More

Keeley, Katherine
Katherine Keeley

Hogan Lovells

Ms. Keeley advises U.S. and multinational companies on corporate transactional and corporate governance matters. She...  |  Read More

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