The Director and Officer Indemnification Agreement is a crucial document used by Canadian corporations to provide protection to their leadership against potential personal liability arising from their service to the organization. This agreement becomes necessary when individuals take on director or officer positions, as these roles carry significant responsibilities and potential personal liability risks under various Canadian federal and provincial laws. The document typically includes detailed provisions for indemnification scope, expense advancement, claims procedures, and insurance requirements, all structured to comply with Canadian corporate law requirements. It serves as both a risk management tool and a means to attract and retain qualified individuals for leadership positions by providing them with assurance of legal and financial protection while performing their duties.
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1. Parties: Identifies the corporation and the indemnitee (director or officer)
2. Background: Explains the context of the agreement, including the indemnitee's role and the corporation's desire to attract and retain qualified personnel
3. Definitions: Defines key terms including 'Proceeding', 'Expenses', 'Liability', 'Change in Control', and other relevant terms
4. Agreement to Serve: Confirmation of the indemnitee's agreement to serve as director/officer
5. Indemnification: Core section detailing the scope and extent of indemnification obligations
6. Advancement of Expenses: Provisions for advancing legal and other expenses before final disposition
7. Procedures for Making Claims: Process and requirements for submitting and handling indemnification claims
8. Determination of Entitlement: Process for determining whether indemnification is proper in specific circumstances
9. Insurance: Provisions regarding D&O insurance maintenance and claims
10. Non-Exclusivity: Clarification that rights are not exclusive of other indemnification rights
11. Severability: Standard clause ensuring survival of valid provisions if others are invalidated
12. Governing Law: Specifies applicable Canadian law and jurisdiction
13. Term and Continuation: Duration of the agreement and survival of rights after termination
14. Notices: Process for giving formal notices under the agreement
15. Entire Agreement: Standard integration clause
1. Spousal Coverage: Extends certain protections to the indemnitee's spouse, used when required by local law or specific circumstances
2. Third Party Indemnification: Addresses situations where the indemnitee serves at corporation's request on other boards
3. Change in Control Provisions: Enhanced protections triggered by change in corporate control, important for public companies
4. Contribution: Provisions for cases where others are jointly liable, used in more complex corporate structures
5. Security Fund: Establishment of trust fund or other security for indemnification, used for higher-risk situations
6. Subrogation: Corporation's rights to recover from third parties, included when significant third-party exposure exists
7. Public Policy Limitations: Specific limitations based on public policy concerns, needed in regulated industries
8. Tax Matters: Specific provisions addressing tax treatment of indemnification payments, relevant for executive-level agreements
1. Schedule A - Form of Undertaking: Standard form for indemnitee to request advancement of expenses
2. Schedule B - Certificate of Insurance: Details of D&O insurance coverage maintained by corporation
3. Schedule C - Board Resolution: Copy of board resolution approving indemnification
4. Appendix 1 - Specific Positions Covered: List of specific roles and responsibilities covered by the agreement
5. Appendix 2 - Excluded Claims: Detailed list of any specific exclusions from indemnification coverage
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