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This agreement can be used for both officers and directors of the corporation. In some cases, a director will serve as a nominee of one or a group of investors (e.g., an individual venture capitalist serving as a nominee of a venture capital fund). Some investors request that they also be covered by the indemnification agreement. Since the indemnification rights provided by this agreement cover liability arising by virtue of "corporate status", this agreement would only work to indemnify investors in a case where the investor is acting as an agent of the corporation. See Fasciana v. Electronic Data Systems, No. 19753 (Del. Ch. Feb. 27, 2003). To the extent investors seek indemnification for actions other than those taken in an agency capacity, the circumstances and indemnity provided would be more appropriately covered in the Stock Purchase Agreement. At the 2007 and 2008 NVCA model legal document working group sessions there were discussions about the value of, and need for, "fund" indemnification agreements (general indemnification from the company for the benefit of the fund itself, going beyond actions taken in an agency capacity). There was a dramatic difference of opinion as to whether this additional indemnity protection is necessary or should become "market." A vocal minority of venture fund GCs strongly favor fund indemnification and require it in their deals. Those opposing the concept of fund indemnification agreements are equally passionate. At this point the working group has declined to develop a model fund indemnification agreement.
Section 145 of the Delaware General Corporation Law (“Section 145”) is the statutory authority for indemnification of directors, officers, employees and agents of the corporation. Section 145(a) permits (but does not require) indemnification of expenses (including attorneys’ fees) as well as judgments and amounts paid in settlement in third-party actions (i.e., actions not brought by or in the right of the corporation) if the applicable standard is met. Section 145(b) permits (but does not require) indemnification of expenses (including attorneys’ fees) but not judgments and amounts paid in settlement in derivative actions (i.e., actions brought by or in the right of the corporation) if the applicable standard is met. Thus, Section 145 draws a basic distinction between third-party and derivative actions. Section 145(c) requires indemnification of expenses (including attorneys’ fees) if the indemnitee is successful on the merits or otherwise in a proceeding referred to in Section 145(a) or (b). Section 145(d) sets forth requirements for determining whether indemnification is permitted under Section 145(a) or (b). Section 145(e) permits advancement of expenses before final disposition of a proceeding subject to certain conditions. Section 145(f) provides that the statutory rights and procedures regarding indemnification are not exclusive, thus permitting indemnification under bylaws, agreements and other circumstances beyond the limits specified in Section 145. Section 145(g) allows a corporation to obtain directors’ and officers’ liability insurance (“D&O insurance”). Sections 145(h) through (k) address various other aspects of indemnification, including provisions relating to survivorship of the obligations of the indemnifying corporation, survivorship of rights to indemnification upon ceasing to be a director, officer, employee or agent and the exclusive jurisdiction of the Delaware Court of Chancery over indemnification proceedings.
Section 102(b)(7) of the Delaware General Corporation Law is the other relevant statutory authority relating to the protection of directors from monetary liability. Section 102(b)(7) allows inclusion of a provision in the certificate of incorporation that eliminates or limits (i.e., caps) the personal liability of directors to the corporation or its stockholders for monetary damages for breach of fiduciary duty. The statute, however, prohibits limitations on director liability (i) for breach of a director’s duty of loyalty, (ii) for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law, (iii) for willful or negligent conduct in paying dividends or repurchasing stock out of other than lawfully available funds, or (iv) for any transaction from which a director derives an improper personal benefit. In essence, Section 102(b)(7) allows a corporation to protect its directors from monetary liability for duty of care violations
As noted above, Section 145(f) provides that statutory indemnification rights are not exclusive of indemnification rights that may be provided by a bylaw provision, agreement or otherwise. As discussed below, although Section 145(f) could be read broadly to allow a corporation to grant by contract indemnification rights beyond those permitted by Section 145, cases and commentators suggest that contractual indemnification rights may be held unenforceable if they violate other statutes (including Section 145), court decisions or public policy. As a result, the enforceability of contracts that purport to grant indemnification rights beyond those permitted by Section 145 is at best unclear. (For further discussion, see comment under Section 2 below.)
An indemnification agreement may serve several purposes. First, and most importantly, it may provide more secure protection than a provision in a certificate of incorporation or bylaw because it cannot be amended without the approval of the indemnitee. Second, it can be used to make mandatory indemnification that is permissive under Section 145, to specify various procedures and presumptions that make indemnification more favorable to the indemnitee than is provided by Section 145 and to perhaps provide for indemnification rights that go beyond those that are expressly provided by Section 145. While such provisions could also be included in the certificate of incorporation or bylaws, an agreement permits different rights to be granted to specific directors, officers, employees and agents, rather than in a one size fits all approach.
Some companies choose to provide mandatory indemnification for directors (i.e., the company is required to indemnify a director if the applicable conditions are met) and discretionary indemnification for officers (i.e., indemnification is at the discretion of the company even if the applicable conditions are met). With respect to indemnification of directors, as discussed in the comment under Section 6(b), there may be no disinterested directors to consider approval of discretionary indemnification for directors. Accordingly, absent mandatory indemnification a board decision to indemnify itself may not be subject to the court deference under the business judgment rule. With respect to indemnification of officers, there may be situations (e.g., termination of employment, sexual harassment) where mandatory indemnification of officers would expose the Company to the possibility of funding the defense of litigation either brought by the Company or in which the Company wants to distance itself from the activities of the officer in question. Care should be taken to anticipate such situations.
Also note that if the company decides to indemnify directors but not officers, the indemnification agreement should make it clear that an employee director is indemnified only in his or her capacity as a director.
Section 145(g) specifically authorizes a corporation to obtain D&O insurance for directors and officers for liability asserted against them in such capacity or arising out of such status whether or not the corporation has the power to indemnify such persons against such liability under Section 145.
D&O insurance coverage is important for several reasons. First, even though indemnification may be permitted under Section 145, the corporation may be unwilling or unable to indemnify the individual. The former situation may arise after a change in corporate control where the corporation is unwilling to indemnify the individual. This may be the case, for example, if the director is the subject of litigation resulting from efforts to prevent the change in control. Alternative, a corporation may be unable to provide indemnification because it is insolvent. Under Chapter 11 of the Bankruptcy Code, for example, indemnification claims by directors or officers would generally be treated as unsecured claims payable only to the extent that other unsecured claims are payable as part of an approved plan of reorganization.
Second, D&O insurance may insure against liabilities where indemnification is not allowed under Section 145. This occurs most frequently in the context of derivative actions and securities law actions. In particular, Section 145(g) permits a corporation to obtain insurance for (i) judgments or amounts paid in settlement in derivative actions and (ii) for expenses incurred when a director has been adjudged liable in some respects, even though indemnification under such circumstances would not be allowed under Section 145(b). In addition, a D&O insurance policy may insure against liabilities under the Securities Act of 1933, as amended (the “1933 Act”) and the Securities Exchange Act of 1934, as amended (the “1934 Act”), even though the Securities and Exchange Commission (“SEC”) has taken the position that indemnification for liabilities under Section 11 of the 1933 Act are against public policy and courts have held that indemnification for violations of the 1933 and the 1934 Act are contrary to the public policy in certain circumstances. (See comment under Section 1(a) of the Agreement.) As a result, D&O insurance may be particularly important for publicly held companies where there is greater risk of liability for derivative actions and securities law claims.
However, D&O insurance policies generally contain a number of qualifications and limitations that narrow the scope of coverage. In particular, D&O insurance coverage is limited by applicable insurance law as well as public policy considerations. In addition, D&O insurance polices generally exclude certain conduct from coverage, including short-swing profit liability under Section 16(b) of the 1934 Act, unauthorized remuneration, personal profit to which the insured individual is not legally entitled, claims arising out of contests for corporate control and claims brought by corporations against their own directors and officers.
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