CHAPTER 37. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS - Indiana Statutes

IC 23-1-37
     Chapter 37. Indemnification of Directors, Officers, Employees, and Agents

IC 23-1-37-1
"Corporation" defined
     Sec. 1. As used in this chapter, "corporation" includes any domestic or foreign predecessor entity of a corporation in a merger or other transaction in which the predecessor's existence ceased upon consummation of the transaction.
As added by P.L.149-1986, SEC.21.

IC 23-1-37-2
"Director" defined
     Sec. 2. As used in this chapter, "director" means an individual who is or was a director of a corporation or an individual who, while a director of a corporation, is or was serving at the corporation's request as a director, officer, partner, member, manager, trustee, employee, or agent of another foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. A director is considered to be serving an employee benefit plan at the corporation's request if the director's duties to the corporation also impose duties on, or otherwise involve services by, the director to the plan or to participants in or beneficiaries of the plan. "Director" includes, unless the context requires otherwise, the estate or personal representative of a director.
As added by P.L.149-1986, SEC.21. Amended by P.L.8-1993, SEC.303.

IC 23-1-37-3
"Expenses" defined
     Sec. 3. As used in this chapter, "expenses" include counsel fees.
As added by P.L.149-1986, SEC.21.

IC 23-1-37-4
"Liability" defined
     Sec. 4. As used in this chapter, "liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding.
As added by P.L.149-1986, SEC.21.

IC 23-1-37-5
"Official capacity" defined
     Sec. 5. As used in this chapter, "official capacity" means:
        (1) when used with respect to a director, the office of director in a corporation; and
        (2) when used with respect to an individual other than a director, as contemplated in section 13 of this chapter, the office

in a corporation held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the corporation.
"Official capacity" does not include service for any other foreign or domestic corporation or any partnership, limited liability company, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not.
As added by P.L.149-1986, SEC.21. Amended by P.L.8-1993, SEC.304.

IC 23-1-37-6
"Party" defined
     Sec. 6. As used in this chapter, "party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding.
As added by P.L.149-1986, SEC.21.

IC 23-1-37-7
"Proceeding" defined
     Sec. 7. As used in this chapter, "proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal.
As added by P.L.149-1986, SEC.21.

IC 23-1-37-8
Indemnification of director against liability
     Sec. 8. (a) A corporation may indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if:
        (1) the individual's conduct was in good faith; and
        (2) the individual reasonably believed:
            (A) in the case of conduct in the individual's official capacity with the corporation, that the individual's conduct was in its best interests; and
            (B) in all other cases, that the individual's conduct was at least not opposed to its best interests; and
        (3) in the case of any criminal proceeding, the individual either:
            (A) had reasonable cause to believe the individual's conduct was lawful; or
            (B) had no reasonable cause to believe the individual's conduct was unlawful.
    (b) A director's conduct with respect to an employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection (a)(2)(B).
    (c) The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the director did not meet the standard of conduct described in this section. As added by P.L.149-1986, SEC.21.

IC 23-1-37-9
Mandatory indemnification of director against expenses
     Sec. 9. Unless limited by its articles of incorporation, a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director is or was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding.
As added by P.L.149-1986, SEC.21.

IC 23-1-37-10
Reimbursement of expenses in advance of final disposition
     Sec. 10. (a) A corporation may pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding in advance of final disposition of the proceeding if:
        (1) the director furnishes the corporation a written affirmation of the director's good faith belief that the director has met the standard of conduct described in section 8 of this chapter;
        (2) the director furnishes the corporation a written undertaking, executed personally or on the director's behalf, to repay the advance if it is ultimately determined that the director did not meet the standard of conduct; and
        (3) a determination is made that the facts then known to those making the determination would not preclude indemnification under this chapter.
    (b) The undertaking required by subsection (a)(2) must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment.
    (c) Determinations and authorizations of payments under this section shall be made in the manner specified in section 12 of this chapter.
As added by P.L.149-1986, SEC.21.

IC 23-1-37-11
Application to court for indemnification
     Sec. 11. Unless a corporation's articles of incorporation provide otherwise, a director of the corporation who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court after giving any notice the court considers necessary may order indemnification if it determines:
        (1) the director is entitled to mandatory indemnification under section 9 of this chapter, in which case the court shall also order the corporation to pay the director's reasonable expenses incurred to obtain court-ordered indemnification; or
        (2) the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances,

whether or not the director met the standard of conduct set forth in section 8 of this chapter.
As added by P.L.149-1986, SEC.21.

IC 23-1-37-12
Authorization of indemnification
     Sec. 12. (a) A corporation may not indemnify a director under section 8 of this chapter unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because the director has met the standard of conduct set forth in section 8 of this chapter.
    (b) The determination shall be made by any one (1) of the following procedures:
        (1) By the board of directors by majority vote of a quorum consisting of directors not at the time parties to the proceeding.
        (2) If a quorum cannot be obtained under subdivision (1), by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties may participate), consisting solely of two (2) or more directors not at the time parties to the proceeding.
        (3) By special legal counsel:
            (A) selected by the board of directors or its committee in the manner prescribed in subdivision (1) or (2); or
            (B) if a quorum of the board of directors cannot be obtained under subdivision (1) and a committee cannot be designated under subdivision (2), selected by majority vote of the full board of directors (in which selection directors who are parties may participate).
        (4) By the shareholders, but shares owned by or voted under the control of directors who are at the time parties to the proceeding may not be voted on the determination.
    (c) Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection (b)(3) to select counsel.
As added by P.L.149-1986, SEC.21.

IC 23-1-37-13
Officers, employees, and agents; indemnification and advance of expenses
     Sec. 13. Unless a corporation's articles of incorporation provide otherwise:
        (1) an officer of the corporation, whether or not a director, is entitled to mandatory indemnification under section 9 of this chapter, and is entitled to apply for court-ordered indemnification under section 11 of this chapter, in each case to the same extent as a director;         (2) the corporation may indemnify and advance expenses under this chapter to an officer, employee, or agent of the corporation, whether or not a director, to the same extent as to a director; and
        (3) a corporation may also indemnify and advance expenses to an officer, employee, or agent, whether or not a director, to the extent, consistent with public policy, that may be provided by its articles of incorporation, bylaws, general or specific action of its board of directors, or contract.
As added by P.L.149-1986, SEC.21.

IC 23-1-37-14
Insurance against liability
     Sec. 14. A corporation may purchase and maintain insurance on behalf of an individual who is or was a director, officer, employee, or agent of the corporation, or who, while a director, officer, employee, or agent of the corporation, is or was serving at the request of the corporation as a director, officer, partner, member, manager, trustee, employee, or agent of another foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by the individual in that capacity or arising from the individual's status as a director, officer, member, manager, employee, or agent, whether or not the corporation would have power to indemnify the individual against the same liability under section 8 or 9 of this chapter. The:
        (1) corporation may purchase insurance under this section from; and
        (2) insurance purchased under this section may be reinsured in whole or in part by;
an insurer that is owned by or otherwise affiliated with the corporation whether the insurer does or does not do business with other persons.
As added by P.L.149-1986, SEC.21. Amended by P.L.8-1993, SEC.300; P.L.8-1993, SEC.305; P.L.1-1994, SEC.116.

IC 23-1-37-15
Indemnification rights under articles of incorporation, bylaws, or resolutions
     Sec. 15. (a) The indemnification and advance for expenses provided for or authorized by this chapter does not exclude any other rights to indemnification and advance for expenses that a person may have under:
        (1) a corporation's articles of incorporation or bylaws;
        (2) a resolution of the board of directors or of the shareholders; or
        (3) any other authorization, whenever adopted, after notice, by a majority vote of all the voting shares then issued and outstanding.
    (b) If the articles of incorporation, bylaws, resolutions of the

board of directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses limit indemnification or advance for expenses, indemnification and advance for expenses are valid only to the extent consistent with the articles, bylaws, resolution of the board of directors or of the shareholders, or other duly adopted authorization of indemnification or advance for expenses.
    (c) This chapter does not limit a corporation's power to pay or reimburse expenses incurred by a director, officer, employee, or agent in connection with the person's appearance as a witness in a proceeding at a time when the person has not been made a named defendant or respondent to the proceeding.
As added by P.L.149-1986, SEC.21.