Negotiating Contractual Indemnity in M&A Deals: Transactional and Litigation Considerations
Structuring Terms to Minimize Financial Risks
A live 90-minute premium CLE webinar with interactive Q&A
This CLE webinar will guide M&A counsel on 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 are being used to cover indemnities.
- Negotiating indemnification provisions
- Types of damages covered
- Caps, baskets and other limitations
- Fraud exclusion
- Purchase price adjustment and double-dipping
- Defense of third-party claims
- Enforceability of indemnification obligations against non-signatories
- Evaluating and addressing creditworthiness of indemnitors
- Determining types of damages recoverable under indemnification provisions in the event of a breach
- 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 breach measured under indemnification provisions?
- How are insurance products being used to cover indemnities?
Ms. Diakos is a litigation partner in the firm's New York City office. Her practice involves the representation of... | Read More
Ms. Diakos is a litigation partner in the firm's New York City office. Her practice involves the representation of numerous Fortune 500 companies and individuals in a broad range of complex commercial litigation matters, including disputes arising out of M&A deals, stockholder class actions, trademark litigation, trade secret litigation, and business-to-business disputes (e.g., breach of contract, fraudulent and negligent misrepresentation, tortious interference, unfair competition, defamation, breach of fiduciary duty). She has extensive experience in all aspects of commercial litigation, including large scale discovery, motion practice, and trial.Close
Peter N. Flocos
Mr. Flocos is a litigator whose practice emphasizes business and commercial disputes, including “deal... | Read More
Mr. Flocos is a litigator whose practice emphasizes business and commercial disputes, including “deal litigation” and insurance coverage disputes. He litigates a variety of “deal” disputes arising in connection with merger and acquisition transactions, including post-closing disputes involving claims under an indemnity contained in the transactional agreements.Close
Frank C. Koranda, Jr.
Mr. Koranda practices in corporate and finance transactional matters, principally in mergers and acquisitions. He... | Read More
Mr. Koranda practices in corporate and finance transactional matters, principally in mergers and acquisitions. He represents both financial and strategic buyers and sellers of businesses and product lines, primarily in the private middle market. His practice also includes complex debt financings, including senior and mezzanine financing, joint ventures, and the representation of entrepreneurs and start-up companies.Close
Jessica C. Pearlman
Ms. Pearlman represents companies in various corporate, securities and finance matters, with an emphasis on... | Read More
Ms. Pearlman represents companies in various corporate, securities and finance matters, with an emphasis on M&As for both public and private clients, domestic and international. She chairs the Mergers & Acquisitions Market Trends Subcommittee of the M&A Committee of the ABA’s Section of Business Law and is a member of the Thomson Reuters Business Law Solutions Advisory Board.Close
Lisa R. Stark
Ms. Stark has nearly 15 years of corporate experience in mergers and acquisitions, strategic investments, initial... | Read More
Ms. Stark has nearly 15 years of corporate experience in mergers and acquisitions, strategic investments, initial public offerings, proxy contests, and hostile takeovers. She also has experience advising private and public companies and their boards of directors on corporate governance matters.Close
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