The Director Indemnification Agreement is a crucial document used to protect individuals serving as directors on company boards in South Africa. It is typically implemented upon the appointment of new directors or when updating existing indemnification arrangements to align with current legal requirements. The agreement provides detailed provisions for protecting directors from personal liability while performing their duties, subject to limitations under the Companies Act 71 of 2008 and other relevant legislation. This document becomes particularly important in the context of increased scrutiny of director responsibilities and the growing complexity of corporate governance requirements in South Africa. It should be reviewed alongside the company's D&O insurance policies and updated to reflect any changes in corporate governance standards or relevant legislation.
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1. Parties: Identification of the company and the director entering into the agreement
2. Background: Context of the appointment and purpose of the indemnification agreement
3. Definitions: Key terms used throughout the agreement, including 'Indemnified Events', 'Claims', 'Losses', and 'Proceedings'
4. Appointment and Term: Confirmation of director's appointment and duration of the indemnification coverage
5. Scope of Indemnification: Detailed description of events and circumstances covered by the indemnification
6. Limitations and Exclusions: Circumstances where indemnification will not apply, aligned with Companies Act restrictions
7. Procedure for Claims: Process for director to notify and seek indemnification from the company
8. Company's Defense Rights: Company's rights to participate in or assume defense of claims
9. Insurance Provisions: Relationship between this indemnification and D&O insurance coverage
10. Duration and Survival: Continuation of indemnification after directorship ends
11. Confidentiality: Obligations regarding confidential information related to claims and proceedings
12. General Provisions: Standard clauses including governing law, jurisdiction, and amendment procedures
1. Advancement of Expenses: Provisions for company to advance legal costs before final disposition, used when immediate financial support is needed
2. Multiple Claims and Jurisdictions: Additional provisions for handling claims across different jurisdictions, used for international directors
3. Change in Control: Special provisions maintaining indemnification rights after company ownership changes, important for listed companies
4. Tax Implications: Specific provisions dealing with tax treatment of indemnification payments, used when tax consequences are material
5. Alternative Dispute Resolution: Procedures for resolving disputes through mediation or arbitration, used when preferred over court proceedings
6. Subsidiary Coverage: Extension of indemnification to director's roles in subsidiary companies, used for group structures
1. Schedule 1: Excluded Events: Specific list of events or circumstances explicitly excluded from indemnification
2. Schedule 2: Claims Procedure: Detailed step-by-step procedure for making and processing indemnification claims
3. Schedule 3: 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: Companies Act Excerpts: Relevant sections of the Companies Act regarding director indemnification
6. Appendix C: Notification Forms: Standard forms for notifying the company of claims or proceedings
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