Can An Employment Agreement Be A Wee Bit Too Integrated?
The Bylaws of many public companies provide for mandatory indemnification of directors and officers (and sometimes other agents as well). Often, Bylaws describe these indemnity obligations as contract rights. For example the Bylaws of one well-known public company state:
The right to indemnification conferred in this Article shall be a contract right.
If Bylaws are contracts, it may be worth considering whether these contracts are in conflict with the company’s other contracts with its officers. Many employment agreements, for example, include integration clauses such as the following:
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, supersedes all prior and contemporaneous agreements, both written and oral, between the parties with respect to the subject matter hereof, and may be modified only by a written instrument signed by each of the parties hereto.
Does anyone think that this entire agreement clause is just a bit to constrictive?