Public companies typically include provisions in their articles and bylaws that mandate indemnification of directors and officers. Often, these provisions include a statement to the effect that the rights to indemnification are a contract right. However, declaring that a contract exists does not necessarily establish a contract. Fortunately, the California Civil Code provides some rules for answering the question of whether charter provisions constitute a contract.
Article and Bylaw provisions mandating indemnification would appear to meet the definition of a contract under California law, i.e., ”an agreement to do or not to do a certain thing”. Cal. Civ. Code § 1549. In this case, the “thing” being agreed to is to provide indemnification. Section 1549 defines what a contract is, but it doesn’t explain how it is birthed. Pursuant to Civil Code Section 1550, a contract does not exist without all of the following:
- Parties capable of contracting;
- Their consent;
- A lawful object; and
- A sufficient cause or consideration.
Unless the officer is a minor, of unsound mind or deprived of her civil rights, capacity should not be an issue with corporate charters. Cal. Civ. Code § 1556. I also don’t expect that there will be much issue regarding consent (provided the indemnitee is informed of the provision). Cal. Civ. Code § 1565. Because Corporations Code Section 317 explicitly authorizes indemnification, lawfulness does not appear to be an issue. See Is An Immoral Contract Unlawful? Finally, the indemnitee’s agreement to serve as a director or officer would seem to fulfill the requirement of consideration. Cal. Civ. Code § 1605.
But what about the statute of frauds? The California Civil Code generally requires that contracts of suretyship be in writing and signed. Cal. Civ. Code § 2793. Articles and Bylaws are in written. Thus, the only remaining issue is whether they are signed. The California Corporations Code requires that articles be signed. Cal. Corp. Code § 200. Bylaws are not usually signed, but they are often certified by the corporate secretary.