17-6305.   Indemnification of officers, directors,employees and agents; advancement of expenses; insurance; definitions.(a) A corporation shall have power to indemnify any person who was or is aparty, or is threatened to be made a party, to any threatened, pending orcompleted action, suit or proceeding, whether civil, criminal, administrativeor investigative, other than an action by or in the right of the corporation,by reason of the fact that such person is or was a director, officer, employeeor agent of the corporation, or is or was serving at the request of thecorporation as a director, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise, against expenses,judgments, fines and amounts paid in settlement actually and reasonablyincurred by such person in connection with such action, suit or proceeding,including attorney fees, if such person acted in good faith and in a mannersuch person reasonably believed to be in or not opposed to the best interestsof the corporation; and, with respect to any criminal action or proceeding,had no reasonable cause to believe such person's conduct was unlawful. Thetermination of any action, suit or proceeding by judgment, order, settlement,conviction, or upon a plea of nolo contendere or its equivalent,shall not, of itself, create a presumption that the person did not act in goodfaith and in a manner which such person reasonably believed to be in or notopposed to the best interests of the corporation, and, with respect to anycriminal action or proceeding, had reasonable cause to believe that suchperson's conduct was unlawful.

      (b)   A corporation shall have power to indemnify any person who was or is aparty, or is threatened to be made a party, to any threatened, pending orcompleted action or suit by or in the right of the corporation to procure ajudgment in its favor by reason of the fact that such person is or was adirector, officer, employee or agent of the corporation, or is or was servingat the request of the corporation as a director, officer, employee or agent ofanother corporation, partnership, joint venture, trust or other enterpriseagainst expenses actually and reasonably incurred by such person in connectionwith the defense or settlement of such action or suit, including attorneyfees, if such person acted in good faith and in a manner such person reasonablybelieved to be in or not opposed to the best interests of the corporation andexcept that no indemnification shall be made in respect of any claim, issue ormatter as to which such person shall have been adjudged to be liable to thecorporation unless and only to the extent that the court in which such actionor suit was brought shall determine upon application that, despite theadjudication of liability but in view of all the circumstances of the case,such person is fairly and reasonably entitled to indemnity for such expenseswhich the court shall deem proper.

      (c)   To the extent that a present or former director, officer, employee oragent of a corporation has been successful on the merits or otherwise indefense of any action, suit or proceeding referred to in subsections (a) and(b), or in defense of any claim, issue or matter therein, such director,officer, employee or agent shall be indemnified against expenses actually andreasonably incurred by such person in connection therewith,including attorney fees.

      (d)   Any indemnification under subsections (a) and (b), unless ordered by acourt, shall be made by the corporation only as authorized in the specific caseupon a determination that indemnification of the present or former director,officer, employee or agent is proper in the circumstances because suchdirector, officer, employee or agent has met the applicable standard of conductset forth in subsections (a) and (b). Such determination shall be made, withrespect to a person who is a director or officer at the time of suchdetermination: (1) By a majority vote of the directors who were not parties tosuch action, suit or proceeding, even though less than a quorum; (2) by acommittee of such directors designated by majority vote of such directors, eventhough less than a quorum; (3) if there are no such directors, or if suchdirectors so direct, by independent legal counsel in a written opinion; or (4)by the stockholders.

      (e)   Expenses, including attorney fees, incurred by a director or officer indefending a civil, criminal, administrative or investigative action, suit orproceeding may be paid by the corporation in advance of the final dispositionof such action, suit or proceeding upon receipt of an undertaking by or onbehalf of the director or officer to repay such amount if it is ultimatelydetermined that the director or officer is not entitled to be indemnified bythe corporation as authorized in this section. Such expenses, includingattorney fees, incurred by former directors and officers or incurred by otheremployees and agents may be so paid upon such terms and conditions, if any, asthe board of directors deems appropriate.

      (f)   The indemnification and advancement of expenses provided by, or grantedpursuant to, the other subsections of this section shall not be deemedexclusive of any other rights to which those seeking indemnification oradvancement of expenses may be entitled under any bylaw, agreement, vote ofstockholders or disinterested directors or otherwise, both as to action in aperson's official capacity and as to action in another capacity while holdingsuch office.

      (g)   A corporation shall have power to purchase and maintain insurance onbehalf of any person who is or was a director, officer, employee or agent ofthe corporation, or is or was serving at the request of the corporation as adirector, officer, employee or agent of another corporation, partnership, jointventure, trust or other enterprise against any liability asserted against suchperson and incurred by such person in any such capacity, or arising out of suchperson's status as such, whether or not the corporation would have the power toindemnify such person against such liability under the provisionsof this section.

      (h)   For purposes of this section, references to "the corporation" shallinclude, in addition to the resulting corporation, any constituent corporation(including any constituent of a constituent) absorbed in a consolidation ormerger which, if its separate existence had continued, would have had power andauthority to indemnify its directors, officers and employees or agents, so thatany person who is or was a director, officer, employee or agent of suchconstituent corporation, or is or was serving at the request of suchconstituent corporation as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust or other enterprise, shall standin the same position under this section with respect to the resulting orsurviving corporation as such person would have with respect to suchconstituent corporation if its separate existence had continued.

      (i)   For purposes of this section, references to "other enterprises" shallinclude employee benefit plans; references to "fines" shall include any excisetaxes assessed on a person with respect to any employee benefit plan; andreferences to "serving at the request of the corporation" shall include anyservice as a director, officer, employee or agent of the corporation whichimposes duties on, or involves services by, such director, officer, employee oragent with respect to an employee benefit plan, its participants orbeneficiaries; and a person who acted in good faith and in a manner such personreasonably believed to be in the interest of the participants and beneficiariesof an employee benefit plan shall be deemed to have acted in a manner "notopposed to the best interests of the corporation" as referred to in thissection.

      (j)   The indemnification and advancement of expenses provided by, or grantedpursuant to, this section shall, unless otherwise provided when authorized orratified, continue as to a person who has ceased to be a director, officer,employee or agent and shall inure to the benefit of the heirs, executors andadministrators of such a person.

      History:   L. 1972, ch. 52, § 27;L. 1986, ch. 97, § 2;L. 1987, ch. 88, § 2;L. 2004, ch. 143, § 10; Jan. 1, 2005.