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Indemnification Provisions in Contracts, 1 CLE hour
First Run Broadcast: October 4, 2016
1:00 p.m. E.T. (60 minutes)
Indemnity agreements are central to the risk allocation and limitation of liability system built into most transactions and employment arrangements. The indemnitor agrees to indemnify the indemnitee for breaches of certain reps, warranties and covenants or on the occurrence of defined events. The scope of liability in these agreements is very carefully defined, often including actual costs but excluding consequential damages or any damages arising from third-party claims. All of the pieces of the indemnity – scope, measure of damages, exclusions and disclaimers of implied or equitable indemnity – must be very carefully considered, negotiated and drafted, or the value of the underlying transaction and the indemnity itself will be lost. This program will provide you with a practical guide to drafting the key provisions of indemnity agreements in transactions and employment agreements.
• Role of indemnity agreements in allocating risk in contracts – commercial, business, and employment
• Defining types of losses subject to indemnity – breaches of reps and warranties, covenants, losses, specific circumstances
• Drafting scope of indemnity – indemnity v. hold harmless, damages v. liabilities, direct v. third-party claims
• What damages and costs (including attorneys’ fees) recoverable?
• Implied or equitable indemnity – and use of disclaimers to limit liability
• Difference between the duty to defend v. indemnification
• Exclusions, limitations, carve-outs from indemnity
• Integration of indemnity agreements with other risk allocation provisions
Joel R. Buckberg is of counsel in Nashville office of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., where he has more than 30 years’ experience in corporate and business transactions. His practice focuses on corporate and asset transactions and operations, particularly in hospitality, franchising and distribution. He also counsels clients on strategic planning, financing, mergers and acquisitions, system policy and practice development, regulatory compliance and contract system drafting. Prior to joining Baker Donelson, he was executive vice president and deputy general counsel of Cendant Corporation. Mr. Buckberg received his B.S. form Union College, his M.B.A. from Vanderbilt University, and his J.D. from Vanderbilt University School of Law.
William J. Kelly, III is a founding member of Kelly & Walker LLC, and has more than 25 years’ experience in the areas of employment and commercial litigation. In the area of employment law, he litigates trade secret, non-compete, infringement and discrimination claims in federal and state courts nationwide and has advised Fortune 50 companies on workplace policies and practices. In the area of commercial litigation, his experience includes class action litigation, breach of contract and indemnity, mass-claim complex insurance litigation, construction litigation and trade secrets. Earlier in career, he founded 15 Minutes Music, an independent music production company. Mr. Kelly earned his B.A. from Tulane University and his J.D. from St. Louis University School of Law.