NVCA's model agreement makes the company indemnify first

The record

The National Venture Capital Association publishes a model Indemnification Agreement, listed on NVCA's document page as updated July 2020 and retrieved on 16 September 2026, 'for both officers and directors of the corporation.' The agreement's operative text states the company 'shall indemnify Indemnitee against all Expenses actually and reasonably incurred' in a successfully resolved claim, and separately 'shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall... advance... such expenses' when the indemnitee brings an action to enforce the agreement itself. The preliminary notes tie the form to Delaware law directly, citing Section 145 of the Delaware General Corporation Law as 'the statutory authority for indemnification of directors, officers, employees and agents of the corporation.'

What the documents establish

The document's preliminary notes distinguish what Section 145 permits from what this agreement adds: the statute 'permits (but does not require) indemnification' in most circumstances, so the model agreement exists to convert a discretionary power into a contractual obligation. The agreement addresses a scenario specific to venture-backed boards, where a director serves as a fund's nominee: it designates the fund as a 'Fund Indemnitor' and states that the company 'is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary and any obligation of the Fund Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary),' and that the company 'irrevocably waives... any and all claims against the Fund Indemnitors for contribution.' The notes add that the working group 'has not taken a position as to whether investor indemnification is market,' meaning NVCA itself does not assert every investor requires this specific provision.

The operating read

For a founder who becomes a board member, or who seats an investor's nominee, the practical reading is that this agreement is meant to sit ahead of, not alongside, whatever coverage an investor's own fund might separately carry for its nominee directors. Editorially, a company negotiating this document should treat the first-resort language as a real cost commitment tied to the company's own balance sheet and insurance, not a formality, since the agreement explicitly shifts the fund's potential exposure back onto the company. NVCA's own model-legal-documents page lists this agreement as a distinct document a company can adopt separately from its certificate of incorporation, so its absence from a financing's paperwork is itself worth noticing.

What to check before you decide

Before signing or accepting this form, check these points against the company's own circumstances and coverage.

• Does the company maintain directors' and officers' insurance sized to the primary-indemnitor obligation this agreement creates?
• Which specific individuals and any nominating funds are named as parties, and does the fund-indemnitor language apply to them?
• Does the agreement's advancement-of-expenses timeline match what the company can actually fund if a claim arises?

This is a description of NVCA's own template as retrieved on 16 September 2026; whether a particular company or investor actually uses this exact form, and on what terms, is a matter for that company's own board minutes and counsel.