A Director And Officer Indemnification Agreement is a crucial corporate governance document used to protect individuals serving in leadership positions from personal liability for actions taken in their corporate capacity. This agreement becomes necessary when a company wishes to attract and retain qualified leadership by providing comprehensive protection beyond what may be available in the corporate bylaws or applicable law. The document, governed by US federal and state laws, typically includes detailed provisions for indemnification rights, advancement of expenses, procedures for making claims, and coordination with D&O insurance. It's particularly important in the context of increasing regulatory scrutiny and litigation risks facing corporate leaders. The agreement must comply with both federal requirements and state-specific corporate laws, particularly Delaware General Corporation Law Section 145 for Delaware corporations.
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1. Parties: Identification of the company and the indemnitee (director or officer)
2. Background: Recitals explaining the context, including the indemnitee's role and the company's desire to attract and retain qualified personnel
3. Definitions: Key terms including 'Proceeding', 'Expenses', 'Corporate Status', 'Indemnifiable Losses', and other relevant definitions
4. Indemnification Rights: Core indemnification obligations of the company, including scope and nature of covered proceedings
5. Advancement of Expenses: Terms for advancement of legal and other expenses before final disposition of proceedings
6. Procedures for Claims: Process for making indemnification claims, including notice requirements and company response obligations
7. Determination of Entitlement: Process and standards for determining whether indemnification is proper in specific circumstances
8. Standard of Conduct: Required conduct standards for indemnification eligibility, including good faith and reasonable belief requirements
9. Insurance: Provisions regarding D&O insurance maintenance and coordination with indemnification
10. Duration of Agreement: Term of the agreement and survival of rights after termination of corporate status
11. Severability: Provisions ensuring partial invalidity does not affect other parts of the agreement
12. General Provisions: Standard contractual provisions including notices, amendments, governing law, and entire agreement
1. Non-Exclusivity: Clarification that rights are in addition to other indemnification rights, used when multiple sources of indemnification exist
2. Subrogation: Company's rights to recover payments from third parties, included when there's significant likelihood of third-party liability
3. Contribution: Rights to contribution from other indemnitors, used when multiple parties may share indemnification obligations
4. Change in Control: Special provisions triggered by change in control, important for public companies or those contemplating transactions
5. Defense of Claims: Detailed procedures for defense of claims, used when company wants active role in defense
6. No Duplication of Payments: Provisions preventing double recovery, used when multiple sources of indemnification exist
7. Spousal Extension: Extension of indemnification to spouse/family, used when personal assets may be at risk
1. Schedule A - Specific Indemnified Matters: List of specific matters or types of proceedings explicitly covered by indemnification
2. Schedule B - Notice Information: Detailed contact information and procedures for notices under the agreement
3. Appendix 1 - Form of Undertaking: Standard form for indemnitee's undertaking to repay advanced expenses if required
4. Appendix 2 - Form of Claim Notice: Template for submitting indemnification claims
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