5
PLAYBOOK TEMPLATES
Investment Subscription Agreement
An Investment Subscription Agreement sets the terms for an investor‚ purchase of securities in a company or fund. This playbook addresses representations, closing conditions, and investor rights under applicable securities laws.
Indemnity & Liability Caps
Negotiation strategy
Negotiate for higher liability caps to ensure adequate protection against potential losses. Insist on including carve-outs for fraud and willful misconduct to safeguard against egregious actions.
Aim to limit liability exposure by negotiating lower caps and thresholds. Ensure indemnity baskets are reasonable and aligned with the transaction size to avoid excessive liability.
Essential elements
1
Indemnity Clause
Protects against losses from breaches.
2
Liability Cap
Limits total financial exposure.
3
Indemnity Basket
Sets threshold for claims.
Action framework
ACCEPT
Propose edits when liability caps are too low or indemnity baskets are unreasonably high.
EDIT
Reject clauses that lack carve-outs for fraud and willful misconduct.
ADD
Add language to address specific high-risk scenarios or jurisdictions.
PRO TIP
Always ensure that indemnity and liability clauses are tailored to the specific risks and size of the transaction.
Real-world examples
FAVORABLE
Comprehensive Indemnity Protection
"The Indemnifying Party shall indemnify, defend, and hold harmless the Indemnified Party from and against any and all losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees) arising out of or resulting from any breach of this Agreement by the Indemnifying Party, except to the extent such losses, liabilities, damages, costs, and expenses are caused by the Indemnified Party's fraud or willful misconduct."
NEUTRAL
Standard Liability Cap
"The total aggregate liability of either party under this Agreement, whether in contract, tort (including negligence), or otherwise, shall not exceed the total amount of fees paid or payable under this Agreement, except in cases of fraud or willful misconduct."
UNFAVORABLE
Excessive Liability Exposure
"The Indemnifying Party shall be liable for all claims without any cap or threshold, regardless of the nature of the breach."
Alternative scenarios & positions
High-Risk Jurisdictions
In high-risk jurisdictions, additional protections or adjustments to standard clauses may be necessary. Consult with local legal experts to tailor indemnity and liability provisions to mitigate jurisdiction-specific risks.
Large-Scale Transactions
For large-scale transactions, ensure that liability caps and indemnity baskets are proportionate to the deal size to prevent disproportionate risk allocation.
Technology Agreements
In technology agreements, consider specific carve-outs for intellectual property infringement and data breaches to address unique risks.
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WEEK 1
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WEEK 2
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WEEK 3
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WEEK 4
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