Screen a director or officer indemnity against § 145
Key facts
- Human involvement
- YellowClose supervision
- How AI is used
- List the proceeding, whether it is brought by or in the right of the corporation, and the conduct the draft says was met. Do not say indemnification is available.
- What the lawyer must review
- You decide whether the corporation may indemnify. Section 145(a) gives a Delaware corporation power to indemnify a person made a party to a threatened, pending, or completed action, suit, or proceeding, other than one by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation, or served another enterprise at its request, against expenses including attorneys' fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and, in a criminal proceeding, had no reasonable cause to believe the conduct was unlawful. A judgment, order, settlement, conviction, or plea of nolo contendere does not, of itself, create a presumption against that standard. Section 145(b) is the power to indemnify expenses in an action by or in the right of the corporation, on that good-faith standard, except that no indemnification shall be made as to any claim, issue, or matter on which the person was adjudged liable to the corporation unless the Court of Chancery, or the court in which the action was brought, determines that the person is fairly and reasonably entitled to indemnity for such expenses as that court deems proper. Section 145(c)(1) requires indemnification of expenses where a present or former director or officer has been successful on the merits or otherwise. For an act or omission after 31 December 2020, officer in that paragraph has the narrower meaning the paragraph states. Section 145(e) permits the corporation to pay an officer's or director's defence expenses in advance upon an undertaking to repay if it is ultimately determined that the person is not entitled to indemnification. Section 174 is a different liability: directors under whose administration a wilful or negligent violation of § 160 or § 173 happens are jointly and severally liable for the unlawful dividend or the amount unlawfully paid to purchase or redeem stock. This task does not decide that liability, and it does not restate § 160. The tool does not decide that the standard of conduct was met.
- Written for / version
- United States versionUS
Who does what
| Role | What they do |
|---|---|
| Assistance | Potential support includes preparing preliminary structure or wording. Confirm the tool’s capability and permitted scope. |
| Lawyer | Set the scope, supervise the work closely, verify every part relied on, resolve omissions and exceptions, and approve the exact output. |
Checklist
- Confirm that the wording reflects the client’s instructions and contains no unintended admission, concession or commitment. Check the recipient and tone.
- Review the original source set for relevant material absent from the output, including contrary evidence, qualifications and remaining gaps.
- Confirm the output against the client’s instructions and the complete relevant source material, including omissions or contradictions.
- Resolve exceptions and record the responsible lawyer’s approval of the exact output and intended use.