355.476. Indemnification of other persons.

MISSOURI STATUTES AND CODES

355.476. Indemnification of other persons.

Indemnification of other persons.

355.476. 1. A corporation created under the laws of thisstate may indemnify any person who was or is a party or isthreatened to be made a party to any threatened, pending orcompleted action, suit, or proceeding, whether civil, criminal,administrative or investigative, other than an action by or inthe right of the corporation, by reason of the fact that he is orwas a director, officer, employee or agent of the corporation, oris or was serving at the request of the corporation as adirector, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise, againstexpenses, including attorneys' fees, judgments, fines and amountspaid in settlement actually and reasonably incurred by him inconnection with such action, suit, or proceeding if he acted ingood faith and in a manner he reasonably believed to be in or notopposed to the best interests of the corporation, and, withrespect to any criminal action or proceeding, had no reasonablecause to believe his conduct was unlawful. The termination ofany 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 didnot act in good faith and in a manner which he reasonablybelieved to be in or not opposed to the best interests of thecorporation, and, with respect to any criminal action orproceeding, had reasonable cause to believe that his conduct wasunlawful.

2. The corporation may indemnify any person who was or is aparty or is threatened to be made a party to any threatened,pending or completed action or suit by or in the right of thecorporation to procure a judgment in its favor by reason of thefact that he is or was a director, officer, employee or agent ofthe corporation, or is or was serving at the request of thecorporation as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust or otherenterprise against expenses, including attorneys' fees, andamounts paid in settlement actually and reasonably incurred byhim in connection with the defense or settlement of the action orsuit if he acted in good faith and in a manner he reasonablybelieved to be in or not opposed to the best interests of thecorporation; except that no indemnification shall be made inrespect of any claim, issue or matter as to which such personshall have been adjudged to be liable for negligence ormisconduct in the performance of his duty to the corporationunless and only to the extent that the court in which the actionor suit was brought determines upon application that, despite theadjudication of liability and in view of all the circumstances ofthe case, the person is fairly and reasonably entitled toindemnity* for such expenses which the court shall deem proper.

3. To the extent that a director, officer, employee oragent of the corporation has been successful on the merits orotherwise in defense of any action, suit, or proceeding referredto in subsections 1 and 2 of this section, or in defense of anyclaim, issue or matter therein, he shall be indemnified againstexpenses, including attorney's fees, actually and reasonablyincurred by him in connection with the action, suit, orproceeding.

4. Any indemnification under subsections 1 and 2 of thissection, unless ordered by a court, shall be made by thecorporation only as authorized in the specific case upon adetermination that indemnification of the director, officer,employee or agent is proper in the circumstances because he hasmet the applicable standard of conduct set forth in this section.The determination shall be made by the board of directors by amajority vote of a quorum consisting of directors who were notparties to the action, suit, or proceeding, or if such a quorumis not obtainable, or even if obtainable a quorum ofdisinterested directors so directs, by independent legal counselin a written opinion, or by the shareholders.

5. Expenses incurred in defending a civil or criminalaction, suit or proceeding may be paid by the corporation inadvance of the final disposition of the action, suit, orproceeding as authorized by the board of directors in thespecific case upon receipt of an undertaking by or on behalf ofthe director, officer, employee or agent to repay such amountunless it shall ultimately be determined that he is entitled tobe indemnified by the corporation as authorized in this section.

6. The indemnification provided by this section shall notbe deemed exclusive of any other rights to which those seekingindemnification may be entitled under section 537.117, RSMo, anyother provision of law, the articles of incorporation or bylawsor any agreement, vote of shareholders or disinterested directorsor otherwise, both as to action in his official capacity and asto action in another capacity while holding such office, andshall continue as to a person who has ceased to be a director,officer, employee or agent and shall inure to the benefit of theheirs, executors and administrators of such a person.

7. A corporation created under the laws of this state shallhave the power to give any further indemnity, in addition to theindemnity authorized or contemplated under other subsections ofthis section, including subsection 6, to any person who is or wasa director, officer, employee or agent, or to any person who isor was serving at the request of the corporation as a director,officer, employee or agent of another corporation, partnership,joint venture, trust or other enterprise, provided such furtherindemnity is either (i) authorized, directed, or provided for inthe articles of incorporation of the corporation or any dulyadopted amendment thereof or (ii) is authorized, directed, orprovided for in any bylaw or agreement of the corporation whichhas been adopted by a vote of the shareholders of thecorporation, and provided further that no such indemnity shallindemnify any person from or on account of such person's conductwhich was finally adjudged to have been knowingly fraudulent,deliberately dishonest or willful misconduct. Nothing in thissubsection shall be deemed to limit the power of the corporationunder subsection 6 of this section to enact bylaws or to enterinto agreements without shareholder adoption of the same.

8. The corporation may purchase and maintain insurance onbehalf of any person who is or was a director, officer, employeeor agent of the corporation, or is or was serving at the requestof the corporation as a director, officer, employee or agent ofanother corporation, partnership, joint venture, trust or otherenterprise against any liability asserted against him andincurred by him in any such capacity, or arising out of hisstatus as such, whether or not the corporation would have thepower to indemnify him against such liability under theprovisions of this section.

9. Any provision of this chapter to the contrarynotwithstanding, the provisions of this section shall apply toall existing and new domestic corporations formed under thischapter.

10. For the purpose of this section, references to "thecorporation" include all constituent corporations absorbed in aconsolidation or merger as well as the resulting or survivingcorporation so that any person who is or was a director, officer,employee or agent of such a constituent corporation or is or wasserving at the request of such constituent corporation as adirector, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise shall standin the same position under the provisions of this section withrespect to the resulting or surviving corporation as he would ifhe had served the resulting or surviving corporation in the samecapacity.

11. For purposes of this section, the term "otherenterprise" shall include employee benefit plans; the term"fines" shall include any excise taxes assessed on a person withrespect to an employee benefit plan; and the term "serving at therequest of the corporation" shall include any service as adirector, officer, employee or agent of the corporation whichimposes duties on, or involves services by, such director,officer, employee, or agent with respect to an employee benefitplan, its participants, or beneficiaries; and a person who actedin good faith and in a manner he reasonably believed to be in theinterest of the participants and beneficiaries of an employeebenefit plan shall be deemed to have acted in a manner "notopposed to the best interests of the corporation" as referred toin this section.