The Director Indemnity Agreement is essential for companies seeking to attract and retain qualified directors by providing them with comprehensive protection against personal liability. This document is typically implemented upon a director's appointment or as part of a company's corporate governance update. Under Swiss law, while companies cannot indemnify directors for willful misconduct or criminal acts, they can provide protection for actions taken in good faith and in the company's best interests. The agreement details the scope of indemnification, claims procedures, and the relationship with D&O insurance, ensuring directors can perform their duties without undue concern about personal liability exposure. It's particularly important in today's complex business environment where directors face increasing scrutiny and potential liability from various stakeholders.
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1. Parties: Identification of the company and the director entering into the indemnity agreement
2. Background: Context of the agreement, director's appointment, and company's intention to provide indemnification
3. Definitions: Key terms including 'Proceedings', 'Losses', 'Indemnified Events', and 'Excluded Events'
4. Scope of Indemnification: Detailed description of what events, actions, and costs are covered by the indemnity
5. Exclusions: Specific circumstances where indemnification will not apply, including willful misconduct and criminal acts
6. Procedure for Claims: Process for director to make claims under the indemnity, including notification requirements and timing
7. Advancement of Expenses: Terms for advancing legal and other expenses before final disposition of proceedings
8. Company's Right to Defend: Company's rights to participate in defense and settlement of claims
9. Insurance: Relationship between this indemnity and D&O insurance coverage
10. Duration and Survival: Term of the agreement and survival of indemnification rights after directorship ends
11. General Provisions: Standard clauses including governing law, jurisdiction, amendments, and notices
1. Tax Implications: Section addressing tax treatment of indemnification payments - include for executive directors or where significant payments are anticipated
2. Multiple Directorships: Additional provisions for directors serving on boards of multiple group companies
3. Regulatory Compliance: Specific provisions for regulated entities or financial institutions
4. Corporate Group Coverage: Extended coverage for directorships in subsidiaries and affiliated companies
5. Security for Indemnification: Provisions for trust fund or other security mechanisms to ensure payment capability
1. Schedule 1 - Claim Notice Form: Standard form for director to notify company of claims requiring indemnification
2. Schedule 2 - Excluded Events: Detailed list of specific situations where indemnification will not apply
3. Schedule 3 - Group Companies: List of subsidiaries and affiliates covered by the indemnity (if applicable)
4. Schedule 4 - Insurance Policies: Details of existing D&O insurance policies and their interaction with the indemnity
5. Appendix A - Board Resolution: Copy of board resolution approving the indemnification agreement
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