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Protecting your advisory board: uncertainty over liability exposure means that liability may exist, so various protections for an advisory board are still necessary.



IT'S NOT "directors, officers, and advisory board members insurance," and state corporation statutes don't generally mention advisory board members either. There is no clear legal role, no delineated de·lin·e·ate  
tr.v. de·lin·e·at·ed, de·lin·e·at·ing, de·lin·e·ates
1. To draw or trace the outline of; sketch out.

2. To represent pictorially; depict.

3.
 job responsibilities, and no decision-making authority of advisory board members in United States companies This is a list of companies from the United States:
  • #Current companies
  • #Former companies, including acquired and merged ones
  • #By industry
  • #By location
  • #See also
Current companies
:
.

Questions abound about the right of a company to establish an advisory board or an advisory committee, and about the purpose of such a board or committee. Does the standard board of directors have the authority to establish a separate advisory board for their own use? Can they, should they, or do they delegate A person who is appointed, authorized, delegated, or commissioned to act in the place of another. Transfer of authority from one to another. A person to whom affairs are committed by another.

A person elected or appointed to be a member of a representative assembly.
 responsibility to this advisory board? For individuals asked to serve in this advisory capacity, can they find protection from liability, either from the companies that they serve, or from insurance?

For many companies that establish advisory boards, or an advisory committee, the value of such additional advice is to have a separate, objective sounding board that can provide information and respond to ideas, without formal management or board responsibility. Smaller private companies, or family-owned companies, may establish advisory boards made up of the various advisers the company may retain for different purposes. This might include outside accountants, attorneys, major clients, bankers, vendors, or others. Certain industry sectors are also more likely to establish advisory boards or advisory committees, although these may function more as honorary roles (without compensation).

For certain jurisdictions outside the U.S., separate advisory boards entirely unaffiliated with the company may be considered mandatory. Public companies might establish advisory boards in response to a specific issue or event. For example, a company that has determined to expand on its diversity hiring might gather together individuals who are deemed to be high profile and to be well known for diversity issues. Sometimes, these types of advisory boards have limited life spans.

In considering whether to serve on an advisory board, most individuals are interested in knowing the degree of their potential for liability and the degree of protection available to them for their service in such capacity. First, are they entitled en·ti·tle  
tr.v. en·ti·tled, en·ti·tling, en·ti·tles
1. To give a name or title to.

2. To furnish with a right or claim to something:
 to indemnification Indemnification

Used in insurance policy agreements as to compensation for damage or loss. In the context of corporate governance, Director Indemnification uses the bylaws and/or charter to indemnify officers and directors from certain legal expenses and judgements resulting from
 from the companies that they serve? This is an important question because many companies that have established rights to indemnification have probably focused solely on directors and officers. Indemnification may extend to employees. It is less likely that companies automatically cover others, including agents or advisers.

Company Indemnification

To its directors, officers, and pertinent others (such as advisory board members), an organization's ability and willingness to indemnify To compensate for loss or damage; to provide security for financial reimbursement to an individual in case of a specified loss incurred by the person.

Insurance companies indemnify their policyholders against damage caused by such things as fire, theft, and flooding, which
 them for liability is crucial to their willingness to serve the organization. While the limit of this promise is conditioned by the law of the state where the organization is incorporated or domiciled dom·i·cile  
n.
1. A residence; a home.

2. One's legal residence.

v. dom·i·ciled, dom·i·cil·ing, dom·i·ciles

v.tr.
1.
, most organizations include broad indemnification provisions in their charter, certificate of incorporation certificate of incorporation n. some states issue a certificate to prove a corporation's existence upon the filing of Articles of Incorporation. In most states the Articles are sufficient proof. , or bylaws The rules and regulations enacted by an association or a corporation to provide a framework for its operation and management.

Bylaws may specify the qualifications, rights, and liabilities of membership, and the powers, duties, and grounds for the dissolution of an
, demonstrating their commitment to protect their executives. Indemnification language contained in a company's bylaws or articles of incorporation The document that must be filed with an appropriate government agency, commonly the office of the Secretary of State, if the owners of a business want it to be given legal recognition as a corporation.  may look something like that reproduced in the accompanying box (see page 36).

In addition to indemnification that may be granted pursuant to an organization's bylaws or articles, some companies enter into individual indemnification agreements, either as part of an employment agreement or simply as a separate contractual document. In such an instance, the individual entering into the agreement will often feel more specifically protected because the document expressly applies to him or her.

State Corporation Statutes

As a general matter, organizations adopt indemnification provisions that are at least as broad as those allowed under state law in the state where they are incorporated. Even if no indemnification provisions are adopted by the organization, certain individuals are still entitled to indemnification pursuant to the state's corporate indemnification statute. State corporation laws differ from state to state, but many are modeled on the Delaware Code.

Section 145 of Title 8 of the Delaware Code provides for indemnification of "officers, directors, employees and agents" and allows for the purchase of D & O insurance as well. The provisions of the Code set forth instances where indemnification is permissible per·mis·si·ble  
adj.
Permitted; allowable: permissible tax deductions; permissible behavior in school.



per·mis
 and where it is mandatory. The Delaware Code specifically applies to directors, officers, employees, and agents. Some state codes reference only directors and officers, so it is important to review the state code where the company is domiciled to determine the scope of state-mandated indemnification.

Under the Delaware Code, the question becomes whether advisory board members fit within the category of "agents" in order to trigger protection under the state indemnification statute. In those states that refer only to directors and officers, there may be no recourse The right of an individual who is holding a Commercial Paper, such as a check or promissory note, to receive payment on it from anyone who has signed it if the individual who originally made it is unable, or refuses, to tender payment.  to or protection granted by state corporation laws. For this reason, it is all the more important to understand what protection the company gives, and to understand what protection may be available from insurance.

D & O Liability Insurance

Directors and officers liability insurance Directors and Officers Liability Insurance is insurance payable to the directors and officers of a company to cover damages or defence costs in the event they are sued for wrongful acts while they were with that company.  is specifically designed to protect individual directors and officers for acts in their capacity as such that result in claims against them. D & O insurance policies are not standardized standardized

pertaining to data that have been submitted to standardization procedures.


standardized morbidity rate
see morbidity rate.

standardized mortality rate
see mortality rate.
, so it is important to review the terms and conditions of the actual insurance policy in place to determine the amount of coverage, if any, afforded to advisory board members.

Typically, the insureds covered by the policy may include "Directors and Officers" or alternatively, "Individual Insureds" or "Insured Persons." In any of those instances, directors and officers are typically defined as "duly elected or appointed directors and officers." In the last several years, D & O insurers have attempted to recognize different corporate structures that may exist, and have amended the definition of "Directors and Officers."

In order to ensure that coverage exists for advisory board members, coverage must be specifically requested. In connection with that request, the entire advisory board should be identified as such in the application for D & O insurance. The information provided to the insurance carrier should include a description of the purpose of the advisory board--what it was constituted for and the anticipated length of its existence--as well as identification of its members.

It is not recommended that the actual list of advisory board members be attached to the policy, as that will not protect those who join later. It is also possible that the advisory board members do not want their names specifically attached to the policy by endorsement--out of concern that making them known might make them a target where they were not before.

The advisory board can be added to the definition of insureds by endorsement without further specificity. However, adding this coverage should specifically limit the extension of coverage to advisory board members only when they are acting in that capacity. Claims against an advisory board member for acts committed in his or her capacity as an executive of another company should be covered under that other company's D & O policy.

D & O policies also typically cover individuals for damages or loss that the individuals are legally liable to pay. It is an open question whether an advisory board member has or should have any legal liability for acting in the advisory capacity. While the board of directors that constituted the advisory board may have liability for improper
In mathematics
  • Improper rotation
  • Improper integral
  • Improper fraction
  • Improper prior
  • Improper distribution
  • Improper point
  • Improper limits
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  • Improper English
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 delegation of responsibility, if the advisory board is not legally recognized, it may not be legally liable. Of course, this uncertainty over liability exposure means that liability may exist, so protecting against liability is still necessary.

Policy Coverage Considerations

D & O policies contain certain exclusions that might operate to eliminate coverage for advisory board members. It is important to understand that by adding advisory board members as insureds, claims by them (regardless of capacity) will no longer be covered by the policy. This is due to the presence of an insured versus insured exclusion that provides that claims brought by one insured against another insured are not covered not covered Health care adjective Referring to a procedure, test or other health service to which a policy holder or insurance beneficiary is not entitled under the terms of the policy or payment system–eg, Medicare. Cf Covered. , regardless of what they allege To state, recite, assert, or charge the existence of particular facts in a Pleading or an indictment; to make an allegation.


allege v.
 or the capacity in which they bring the claim.

This also means that if the board of directors establishes an advisory board, seeks certain input from them, and then later feels that the advisory board misled mis·led  
v.
Past tense and past participle of mislead.
 or misinformed them, the company does not have any insurable recourse against the advisory board members. On the flip side Flip side

In the context of general equities, opposite side to a proposition or position (buy, if sell is the proposition and vice versa).
, if that scenario were to occur, the advisory board would not have any protection from insurance, either.

Adding advisory board members as insureds to the D & O policy also means a potential further dilution of the D & O limits. The more insureds there are under the policy, the greater the possibility of triggering coverage and spending the limits.

If advisory board members are added as insureds, then a claim solely against one or more of the advisory board members can erode Erode (ĕrōd`), city (1991 urban agglomeration pop. 361,755), Tamil Nadu state, S India, on the Kaveri River. The city is located in a cotton-growing region, and its industries include cotton ginning and the manufacture of transport equipment.  or even completely exhaust the entire D & O limits, so that there is no coverage left for the traditional directors and officers. It is possible to address this by adding coverage for advisory board members only when a claim against them also includes one or more other insureds (such as directors or officers). This is referred to as co-defendant coverage and is often used when adding coverage for employees. Another possible way to protect against significant erosion of the policy proceeds by claims against the advisory board is to provide this coverage expansion but with a specific sub-limit so that such claims cannot entirely spend the D & O policy. For example, if the company purchases $20 million in D & O insurance, add coverage for the advisory board members but provide only $5 million of coverage specifically for them.

Triggering a Claim

One of the biggest touch points on a D & O policy is the "claims made" feature of the policy and its strict notice obligation. Being a "claims made" policy means that the D & O policy provides coverage for claims that first arise during the term of the policy. It is not primarily a matter of when the alleged wrongdoing wrong·do·er  
n.
One who does wrong, especially morally or ethically.



wrongdo
 occurred, but of when the claim is "made." Equally important, notice of the claim must be given within the parameters set forth in the policy. In the context of providing coverage to advisory board members, it is important to relay information to them about the "claims made" feature of the policy and the notice requirements. Members must understand that the company itself has to be notified of claims on a timely basis to enable it to forward claims to the insurance carrier within the policy's required time frames.

When individuals who are not executives within the company or directors expressly serving the company are insured and can trigger coverage, the directors and officers of the company may lose some degree of control over the insurance. Once identified as an insured, an advisory board member can directly contact the insurance carrier, file notice of claims, and seek reimbursement Reimbursement

Payment made to someone for out-of-pocket expenses has incurred.
 of defense costs out of the policy proceeds. While the company can attempt to guard against this by expressly indicating that the company is responsible for providing notice of claims and negotiating coverage, this is not bulletproof Refers to extremely stable hardware and/or software that cannot be brought down no matter what unusual conditions arise. See industrial strength.

bulletproof - Used of an algorithm or implementation considered extremely robust; lossage-resistant; capable of correctly
.

Need for Assurance

Overall, advisory board members can serve a useful function to an organization and its directors and officers. Unless specifically addressed, however, it is debatable de·bat·a·ble  
adj.
1. Being such that formal argument or discussion is possible.

2. Open to dispute; questionable.

3. In dispute, as land or territory claimed by more than one country.
 whether there is any actual protection for those advisory board members from the company's internal indemnification provisions, from state corporation statutes on indemnification, or from D & O insurance. It is likely that individuals asked to serve as advisory board members will seek some assurance of protection from the company making the request. Hopefully, the counsel expressed in this article can be useful.
Potential contributions of an advisory board

Consensus as perceived by 200 CEOs of leading growth companies

 1 Sounding board                           88%
 2 Strategy setting                         69%
 3 New ideas                                69%
 4 Management issues                        66%
 5 CEO mentoring                            63%
 6 Management mentoring                     34%
 7 Business contacts                        31%
 8 Business and competitive intelligence    31%
 9 Executive recruitment                    22%
10 Investment contacts                      22%
11 Training for formal board of directors   22%
12 Direct investments                        9%
13 Other                                     9%

Source: Queen's Centre for Enterprise Development report on
"High-Performing Advisory Boards" (www.qced.com).

Note: Table made from bar graph.


Terms of indemnification

To the fullest extent permitted by law, the directors and officers [or, even better, the individuals] shall have no liability of any kind or nature with respect to their conduct in serving the organization or any of its subsidiaries, their respective securities holders, or another enterprise at the request of the organization. However, this shall not apply and the directors' and/or officers' [individuals] liability shall not be eliminated for:

1. Any breach of the individual's duty of loyalty to such organizations, securities holders, or enterprises;

2. Any act or omission omission n. 1) failure to perform an act agreed to, where there is a duty to an individual or the public to act (including omitting to take care) or is required by law. Such an omission may give rise to a lawsuit in the same way as a negligent or improper act.  not in the best interests of such organizations, securities holders, or enterprises, or which involve intentional in·ten·tion·al  
adj.
1. Done deliberately; intended: an intentional slight. See Synonyms at voluntary.

2. Having to do with intention.
 misconduct MISCONDUCT. Unlawful behaviour by a person entrusted in any degree: with the administration of justice, by which the rights of the parties and the justice of the, case may have been affected.
     2.
 or a knowing violation of law; or

3. Any transaction from which any director or officer [individual] derived an improper personal benefit.

Without limiting the generality gen·er·al·i·ty  
n. pl. gen·er·al·i·ties
1. The state or quality of being general.

2. An observation or principle having general application; a generalization.

3.
 of the foregoing, and to the fullest extent permitted by law, the directors and officers [individuals] shall have no personal liability to the Organization or any of its subsidiaries, their respective securities holders, or any other person claiming derivatively through the organization, regardless of the theory or principle under which such liability may be asserted, for:

1. Punitive pu·ni·tive  
adj.
Inflicting or aiming to inflict punishment; punishing.



[Medieval Latin pn
, exemplary or consequential damages Injury or harm that does not ensue directly and immediately from the act of a party, but only from some of the results of such act, and that is compensable by a monetary award after a judgment has been rendered in a lawsuit. ;

2. Treble treble, highest part in choral music, thus corresponding in pitch to soprano, but associated with the voice of a boy or a girl. The term appeared in 15th-century English polyphony, probably as an anglicization of the Latin triplum,  or other damages computed based upon any multiple of damages actually and directly proved to have been sustained;

3. Fees of attorneys, accountants, expert witnesses, or professional consultants; or

4. Civil fines or penalties of any kind or nature whatsoever.

The Organization shall indemnify the directors and officers [individuals] in accordance Accordance is Bible Study Software for Macintosh developed by OakTree Software, Inc.[]

As well as a standalone program, it is the base software packaged by Zondervan in their Bible Study suites for Macintosh.
 with the provisions of this Indemnification Clause if the directors and/or officers [individuals] are made a party to any proceeding, against all expenses, judgments, fines, and amounts paid in settlement, actually and reasonably incurred by the directors and/or officers [individuals] in connection with such proceeding if the conduct of the directors and/or officers [individuals] was in good faith and the directors and/or officers [individuals] reasonably believed that their conduct was in the best interests of the organization, or at least not opposed to the organization's best interests, and, in the case of a criminal proceeding, had no reason to believe that the directors' and/or officers' [individuals] conduct was unlawful.

However, no indemnification shall be available under this paragraph if any director and/or officer [individual] is adjudged to have unlawfully profited from the complained-of conduct. In such instance, indemnification may still be available if a court of competent jurisdiction determines, upon application, that despite the adjudication The legal process of resolving a dispute. The formal giving or pronouncing of a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case.  of liability, the director and/or officer [individual] is fairly and reasonably entitled to indemnification in view of all the relevant circumstances CIRCUMSTANCES, evidence. The particulars which accompany a fact.
     2. The facts proved are either possible or impossible, ordinary and probable, or extraordinary and improbable, recent or ancient; they may have happened near us, or afar off; they are public or
.

Source: HRH HRH
abbr.
Her (or His) Royal Highness


HRH Her (or His) Royal Highness

HRH abbr (= His (or Her) Royal Highness) → S.A.R.
 Executive Risk Solutions

RELATED ARTICLE: Trends in advisory boards

The Sarbanes-Oxley Act See SOX.  has increased the prevalence and profile of corporate advisory boards across America. Coupled with rapid changes in technology, globalization globalization

Process by which the experience of everyday life, marked by the diffusion of commodities and ideas, is becoming standardized around the world. Factors that have contributed to globalization include increasingly sophisticated communications and transportation
, and market demand, corporate advisory boards are a must-have for a growing percentage of business--from family-owned companies to large multinationals. Leading trends include:

* Advisory Boards for Family-Controlled Companies: Advisory boards can help deal with succession issues and discuss appropriate daily involvement of family members in these businesses.

* Advisory Boards for Nonprofits: Advisory boards can assist with increasing nonprofit A corporation or an association that conducts business for the benefit of the general public without shareholders and without a profit motive.

Nonprofits are also called not-for-profit corporations. Nonprofit corporations are created according to state law.
 credibility in the community and offer fresh perspectives without infringing on the board of directors.

* Global Membership: Companies are increasingly creating international advisory boards to better manage a global consumer base and gain broader perspectives.

* Technology Advisers: Technical advisory councils are a new trend, helping management better understand current technology requirements and define long-term strategic direction.

* Wildcard/Futures Advisory Boards: Advisory boards can help companies anticipate unexpected, wildcard See wild cards and wildcard mask.  events and help them prepare for the future.

* New Market or Community Advisory Boards: Advisory boards help management be effective globally as well as locally by suggesting new concepts to apply to projects and services.

* Design Advisers: These boards provide an efficient way for firms to get the best and most innovative ideas on form and functionality, packaging, and presentation.

Source: Susan Stautberg, president of PartnerCom Corp., a consultancy that has assembled advisory boards for companies such as Avon, Avis Rent-A-Car, Cigna, and Merrill Lynch Merrill Lynch & Co., Inc. (NYSE: MER TYO: 8675 ), through its subsidiaries and affiliates, provides capital markets services, investment banking and advisory services, wealth management, asset management, insurance, banking and related products and services on a global basis. , and government and nonprofit organizations Nonprofit Organization

An association that is given tax-free status. Donations to a non-profit organization are often tax deductible as well.

Notes:
Examples of non-profit organizations are charities, hospitals and schools.
.

Susanne Murray, Esq., is executive vice president and leads the Directors and Officers Liability Practice at HRH Executive Risk Solutions, a division of Hilb Rogal & Hobbs, one of the country's largest insurance brokerage firms (www.hrh.com).

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No portion of this article can be reproduced without the express written permission from the copyright holder.
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Title Annotation:D & O INSURANCE
Author:Murray, Susanne
Publication:Directors & Boards
Geographic Code:1USA
Date:Jun 22, 2004
Words:2712
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