The Director Indemnity Agreement is a fundamental document in Australian corporate governance, typically implemented when a director is appointed to a company's board or when updating existing indemnity arrangements. This agreement is essential for attracting and retaining qualified directors by providing them with protection against personal liability while performing their duties. It must carefully balance the director's need for protection with the limitations imposed by the Corporations Act 2001 (Cth), particularly sections 199A-C. The agreement typically accompanies D&O insurance arrangements and should be reviewed regularly to ensure continued compliance with evolving corporate law requirements and market standards. It forms part of the company's risk management framework and is often required by directors before accepting board positions.
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1. Parties: Identifies the company and the director who is being indemnified
2. Background: Explains the context of the agreement, including the director's appointment and the company's desire to provide indemnity
3. Definitions: Defines key terms including 'Claims', 'Liability', 'Loss', 'Proceedings', and other relevant terms
4. Indemnity: Sets out the core indemnification provisions, including scope and limitations in accordance with the Corporations Act
5. Exclusions: Specifies circumstances where indemnity will not apply, including statutory prohibitions
6. Insurance: Details the company's obligations regarding D&O insurance coverage
7. Claims Procedure: Outlines the process for making claims under the indemnity
8. Company's Rights and Obligations: Specifies the company's rights and obligations in relation to claims and proceedings
9. Director's Obligations: Details the director's obligations including notification requirements and cooperation
10. Duration and Termination: Specifies the term of the indemnity and any survival provisions
11. Confidentiality: Addresses confidentiality obligations regarding claims and proceedings
12. General Provisions: Standard boilerplate provisions including governing law, notices, and amendment procedures
1. Multiple Jurisdictions: Required when the director operates across multiple jurisdictions or states
2. Specific Role Provisions: Needed when the indemnity relates to specific roles or subsidiary directorships
3. Advancement of Costs: Optional section detailing provisions for advancing legal costs before final determination
4. Tax Indemnity: Required when tax implications of indemnity payments need to be addressed
5. Related Party Provisions: Needed when the director has relationships with other entities that might affect the indemnity
6. Alternative Dispute Resolution: Optional section specifying mediation or arbitration procedures
1. Schedule 1 - Claims Procedures: Detailed procedures for making and handling claims under the indemnity
2. Schedule 2 - Insurance Requirements: Specific details of required insurance coverage and minimum terms
3. Schedule 3 - Notice Requirements: Forms and procedures for giving notices under the agreement
4. Appendix A - Board Resolution: Copy of board resolution approving the indemnity arrangement
5. Appendix B - Deed of Access: Associated deed providing access to company documents and information
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