The Director Indemnity Agreement serves as a critical risk management tool for companies operating under German law, providing protection to directors while ensuring compliance with German corporate law requirements. This document becomes necessary when appointing new directors or updating existing indemnification arrangements, particularly in response to changing regulatory requirements or risk environments. It details the scope of protection, procedures for claiming indemnification, and interaction with D&O insurance, while respecting the limitations imposed by German law on director liability shields. The agreement is especially important given the increasing complexity of director responsibilities and the heightened focus on corporate governance in German businesses. It needs to be carefully drafted to balance director protection with mandatory German law requirements regarding director liability.
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1. Parties: Identification of the company and the director entering into the agreement
2. Background: Context of the agreement, director's appointment, and purpose of indemnification
3. Definitions: Key terms including 'Proceedings', 'Losses', 'Claims', 'Excluded Claims', and other relevant definitions
4. Scope of Indemnification: Detailed description of what types of losses and claims are covered by the indemnification
5. Exclusions: Specific circumstances where indemnification will not apply, including willful misconduct and gross negligence
6. Procedure for Claims: Process for making indemnification claims, including notification requirements and timing
7. Company's Right to Defend: Company's rights regarding defense of claims and settlement authority
8. Advancement of Expenses: Terms for advance payment of legal costs and other expenses
9. Insurance: Relationship between D&O insurance and indemnification obligations
10. Duration and Survival: Term of the agreement and survival of obligations after directorship ends
11. General Provisions: Standard contractual provisions including governing law, amendments, and notices
1. Tax Implications: Section addressing tax treatment of indemnification payments - relevant when tax implications need specific attention
2. Multiple Directorships: Additional provisions for directors serving on multiple boards within a corporate group
3. Subrogation Rights: Company's rights to pursue claims against third parties - relevant when specific recovery rights need to be preserved
4. International Coverage: Special provisions for international operations - relevant for directors with cross-border responsibilities
5. Regulatory Compliance: Specific provisions addressing regulatory requirements - relevant for regulated industries
1. Schedule 1 - Excluded Claims: Detailed list of specific exclusions from indemnification coverage
2. Schedule 2 - Claim Notification Form: Template form for directors to notify the company of claims
3. Schedule 3 - D&O Insurance Details: Current D&O insurance policy details and coverage summary
4. Appendix A - Board Resolution: Copy of board resolution authorizing the indemnification agreement
5. Appendix B - Undertaking Form: Standard form for director's undertaking to repay advanced expenses if required
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