Draft Indemnification Agreement

---
name: indemnification-agreement-incoming-independent-director
task_id: corporate-governance/draft-indemnification-agreement
description: Indemnification agreement for an incoming independent director with cross-entity service and litigation conflict, addressing advancement conditioned solely on an undertaking to repay, officer exculpation updates under the applicable corporate statute, contribution and partial indemnification provisions that may be absent from standard forms, cross-jurisdictional service restrictions, and deferred-payment compliance considerations, with a cover memo identifying form deviations and open items.
activates_for: [planner, solver, checker]
---

# Skill: Indemnification Agreement for Incoming Independent Director

## 1. Subject-matter triage
- Treat the agreement as the primary deliverable and the cover memo as secondary.
- Map the director’s service across every entity in scope before drafting; if service is limited to one entity, say so expressly and draft to that scope only.
- Identify whether any affiliated entity sits in a different legal regime, because that can affect indemnity, contribution, and fine/penalty coverage.
- Separate contractual indemnification from any charter-level exculpation issue; they are related but not interchangeable.
- Verify whether the incoming role may include officer service now or later, because that changes the need to address exculpation and insurance.

## 2. Failure modes the skill is correcting
- Requiring merits determinations, board approval, or other extra conditions before advancement, instead of making advancement turn only on the required undertaking to repay.
- Leaving out contribution or partial indemnification language when the form is silent, which can create a protection gap if full indemnification is unavailable.
- Failing to flag whether the charter already reflects the current officer-exculpation regime, which can leave a gap even if the agreement is strong.
- Drafting cross-entity coverage too broadly without checking legal limits on self-liability, fines, penalties, or foreign-law restrictions.
- Omitting a deferred-compensation compliance proviso where payment timing could push indemnity into a later tax year.
- Neglecting the post-service survival period, or failing to align insurance tail coverage with that survival period.
- Treating the cover memo as a summary only, rather than a decision memo that identifies deviations, rationale, and open items.

## 3. Legal frameworks / domain conventions that apply
- Use the governing corporate indemnification statute as the baseline and draft in mandatory, not merely permissive, terms to the extent the statute allows.
- Advancement should be conditioned only on an undertaking to repay if it is ultimately determined the director is not entitled to indemnification, consistent with the governing statute and the company form.
- Non-exclusivity should preserve, not narrow, rights under the certificate of incorporation, bylaws, and any applicable statutory protection.
- If the governing law provides officer exculpation only by charter amendment, the agreement can supplement protection but cannot substitute for charter text.
- Contribution should address the allocation of loss when indemnification is unavailable or incomplete, including where fault allocation or legal limits prevent full coverage.
- Partial indemnification should cover the portion of loss or expense to which the indemnitee is entitled even if full indemnity is not available.
- For cross-entity service, check the governing law of each covered entity and any restrictions on indemnifying against intra-entity liability or criminal fines and penalties.
- If payments may be deferred beyond the tax year of the expense, include a compliance proviso keyed to applicable deferred-compensation rules and exceptions.
- A determination mechanism should be timely, with a deemed-approval concept if no decision is made by the deadline.
- The agreement should state a post-service tail covering claims based on acts during the service period.
- Insurance maintenance should require D&O coverage during service and a run-off tail after service ends, at a level tied to the current policy or client instruction.
- Cite the governing statute, charter provision, bylaws, tax rule, or other controlling authority whenever stating a legal proposition in the memo or drafting rationale.

## 4. Analytical scaffolds
- Compare the form against the required protection set: advancement, indemnification, contribution, partial indemnification, non-exclusivity, tail survival, insurance tail, deferred-payment compliance, and determination timing.
- Review each advancement clause to confirm the only condition precedent is the undertaking to repay; remove any added preconditions unless the governing law plainly requires them.
- Review the charter and bylaws together; if the charter lacks needed officer-exculpation language, flag that as an open item rather than implying the agreement fixes it.
- For each service entity, identify the governing-law constraint and draft the broadest lawful protection available without promising prohibited coverage.
- If the director will serve more than one entity, draft the agreement so coverage tracks each role without collapsing all entities into one assumed regime.
- Test the insurance clause against the current policy and requested tail period; note any mismatch for the cover memo.
- In the memo, distinguish between form deviations chosen for policy reasons and deviations required by law or by the client’s risk allocation.
- Treat open items as client decisions, not drafting omissions; identify what must be confirmed before execution.
- Use controlling authority in the memo and drafting notes for any proposition about indemnification breadth, advancement, exculpation, or tax timing.

## 5. Vertical / structural / temporal relationships
- The agreement should work prospectively for new service, retrospectively for covered acts during the service period, and residually after service ends through the tail period.
- If the charter does not yet reflect a needed exculpation update, the agreement can provide contractual coverage now, but the charter change remains a separate structural remedy.
- Insurance tail and indemnification tail should be coordinated so that the company does not promise post-service protection without backing coverage.
- If cross-entity service involves entities organized under different legal systems, the broadest clause for one entity may need to be narrowed for another to stay enforceable.
- Deferred-payment language should be drafted so that timing mechanics do not accidentally conflict with the indemnity promise or advancement right.

## 6. Output structure conventions
- Draft a complete, execution-ready indemnification agreement first, with operative provisions rather than commentary.
- Include clearly labeled definitions, advancement, indemnification, contribution, partial indemnification, non-exclusivity, determination, tail, insurance, and deferred-payment compliance sections as needed by the form.
- Use bracketed drafting only for genuine open choices that require client input; do not leave avoidable blanks in the operative text.
- Prepare a cover memorandum addressed to the client team that is organized around key drafting decisions, form deviations with rationale, open items requiring direction, and any charter-update recommendation.
- In the memo, state the controlling authority for each legal point you rely on and identify the specific document or provision that should be checked.
- End the memo with an explicit Recommended Actions section that assigns the next step to the relevant role and ties it to the execution timeline.
- Before finalizing, confirm that the agreement file exists and is non-empty, and that the memo file separately exists and is non-empty, with the agreement containing the operative provisions, not merely a description of them.