INDEMNIFICATION

Iowa Code tit. XII, ch. 504, subch. VIII, pt. 5

in effect

Iowa Code § 504.851 Definitions.

504.851. Definitions. As used in this part, unless the context otherwise requires: 1. “Corporation” includes any domestic or foreign predecessor entity of a corporation in a merger. 2. “Director” or “officer” means an individual who is or was a director or officer of a corporation or an individual who, while a director or officer of a corporation, is or was serving at the corporation’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic business or nonprofit corporation, partnership, joint venture, trust, employee benefit plan, or other entity. A “director” or “officer” is considered to be serving an employee benefit plan at the corporation’s request if the director’s or officer’s duties to the corporation also impose duties on, or otherwise involve services by, the director or officer to the plan or to participants in or beneficiaries of the plan. “Director” or “officer” includes, unless the context otherwise requires, the estate or personal representative of a director or officer. 3. “Disinterested director” means a director who at the time of a vote referred to in section 504.854, subsection 3, or a vote or selection referred to in section 504.856, subsection 2 or 3, is not either of the following: a. A party to the proceeding. b. An individual having a familial, financial, professional, or employment relationship with the director whose indemnification or advance for expenses is the subject of the decision being made, which relationship would, in the circumstances, reasonably be expected to exert an influence on the director’s judgment when voting on the decision being made. 4. “Expenses” includes attorney fees. 5. “Liability” means the obligation to pay a judgment, settlement, penalty, or fine including an excise tax assessed with respect to an employee benefit plan, or reasonable expenses actually incurred with respect to a proceeding. 6. “Official capacity” means either of the following: a. When used with respect to a director, the office of director in a corporation. b. When used with respect to an officer, as contemplated in section 504.857, the office in a corporation held by the officer. “Official capacity” does not include service for any other foreign or domestic business or nonprofit corporation or any partnership, joint venture, trust, employee benefit plan, or other entity. 7. “Party” means an individual who was, is, or is threatened to be made a defendant or respondent in a proceeding. 8. “Proceeding” means any threatened, pending, or completed action, suit, or proceeding whether civil, criminal, administrative, or investigative and whether formal or informal. 2004 Acts, ch 1049, §101, 192; 2005 Acts, ch 19, §123, 126

Iowa Code § 504.852 Permissible indemnification.

504.852. Permissible indemnification. 1. Except as otherwise provided in this section, a corporation may indemnify an individual who is a party to a proceeding because the individual is a director against liability incurred in the proceeding if all of the following apply: a. The individual acted in good faith. b. The individual reasonably believed either of the following: (1) In the case of conduct in the individual’s official capacity, that the individual’s conduct was in the best interests of the corporation. (2) In all other cases, that the individual’s conduct was at least not opposed to the best interests of the corporation. c. In the case of any criminal proceeding, the individual had no reasonable cause to believe the individual’s conduct was unlawful. d. The individual engaged in conduct for which broader indemnification has been made permissible or obligatory under a provision of the articles of incorporation as authorized by section 504.202, subsection 2, paragraph “e”. 2. 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 requirements of subsection 1, paragraph “b”, subparagraph (2). 3. 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 relevant standard of conduct described in this section. 4. Unless ordered by a court under section 504.855, subsection 1, paragraph “b”, a corporation shall not indemnify a director under this section under either of the following circumstances: a. In connection with a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard of conduct under subsection 1. b. In connection with any proceeding with respect to conduct for which the director was adjudged liable on the basis that the director received a financial benefit to which the director was not entitled, whether or not involving action in the director’s official capacity. 2004 Acts, ch 1049, §102, 192; 2005 Acts, ch 19, §100

Iowa Code § 504.853 Mandatory indemnification.

504.853. Mandatory indemnification. 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 actually incurred by the director in connection with the proceeding. 2004 Acts, ch 1049, §103, 192

Iowa Code § 504.854 Advance for expenses.

504.854. Advance for expenses. 1. A corporation may, before final disposition of a proceeding, advance funds to pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding because the person is a director if the person delivers all of the following to the corporation: a. A written affirmation of the director’s good faith belief that the director has met the relevant standard of conduct described in section 504.852 or that the proceeding involved conduct for which liability has been eliminated under a provision of the articles of incorporation as authorized by section 504.202, subsection 2, paragraph “d”. b. The director’s written undertaking to repay any funds advanced if the director is not entitled to mandatory indemnification under section 504.853 and it is ultimately determined under section 504.855 or 504.856 that the director has not met the relevant standard of conduct described in section 504.852. 2. The undertaking required by subsection 1, paragraph “b”, must be an unlimited general obligation of the director but need not be secured and may be accepted without reference to the financial ability of the director to make repayment. 3. Authorizations under this section shall be made according to one of the following: a. By the board of directors as follows: (1) If there are two or more disinterested directors, by a majority vote of all the disinterested directors, a majority of whom shall for such purpose constitute a quorum, or by a majority of the members of a committee of two or more disinterested directors appointed by such vote. (2) If there are fewer than two disinterested directors, by the vote necessary for action by the board in accordance with section 504.825, subsection 3, in which authorization directors who do not qualify as disinterested directors may participate. b. By the members, but the director, who at the time does not qualify as a disinterested director, shall not vote as a member or on behalf of a member. 2004 Acts, ch 1049, §104, 192; 2004 Acts, ch 1175, §385; 2015 Acts, ch 45, §11

Iowa Code § 504.855 Court-ordered indemnification.

504.855. Court-ordered indemnification. 1. A director who is a party to a proceeding because the person is a director may apply for indemnification or an advance for expenses to the court conducting the proceeding or to another court of competent jurisdiction. After receipt of an application, and after giving any notice the court considers necessary, the court shall do one of the following: a. Order indemnification if the court determines that the director is entitled to mandatory indemnification under section 504.853. b. Order indemnification or advance for expenses if the court determines that the director is entitled to indemnification or advance for expenses pursuant to a provision authorized by section 504.859, subsection 1. c. Order indemnification or advance for expenses if the court determines, in view of all the relevant circumstances, that it is fair and reasonable to do one of the following: (1) To indemnify the director. (2) To indemnify or advance expenses to the director, even if the director has not met the relevant standard of conduct set forth in section 504.852, subsection 1, failed to comply with section 504.854, or was adjudged liable in a proceeding referred to in section 504.852, subsection 4, paragraph “a” or “b”, but if the director was adjudged so liable the director’s indemnification shall be limited to reasonable expenses incurred in connection with the proceeding. 2. If the court determines that the director is entitled to indemnification under subsection 1, paragraph “a”, or to indemnification or advance for expenses under subsection 1, paragraph “b”, it shall also order the corporation to pay the director’s reasonable expenses incurred in connection with obtaining court-ordered indemnification or advance for expenses. If the court determines that the director is entitled to indemnification or advance for expenses under subsection 1, paragraph “c”, it may also order the corporation to pay the director’s reasonable expenses to obtain court-ordered indemnification or advance for expenses. 2004 Acts, ch 1049, §105, 192

Iowa Code § 504.856 Determination and authorization of indemnification.

504.856. Determination and authorization of indemnification. 1. A corporation shall not indemnify a director under section 504.852 unless authorized for a specific proceeding after a determination has been made that indemnification of the director is permissible because the director has met the standard of conduct set forth in section 504.852. 2. The determination shall be made by any of the following: a. If there are two or more disinterested directors, by the board of directors by a majority vote of all the disinterested directors, a majority of whom shall for such purpose constitute a quorum, or by a majority of the members of a committee of two or more disinterested directors appointed by such vote. b. By special legal counsel under one of the following circumstances: (1) Selected in the manner prescribed in paragraph “a”. (2) If there are fewer than two disinterested directors, selected by the board in which selection directors who do not qualify as disinterested directors may participate. c. By the members of a corporation, but directors who are at the time parties to the proceeding shall not vote on the determination. 3. Authorization of indemnification shall be made in the same manner as the determination that indemnification is permissible, except that if there are fewer than two disinterested directors or if the determination is made by special legal counsel, authorization of indemnification shall be made by those entitled under subsection 2, paragraph “b”, to select special legal counsel. 2004 Acts, ch 1049, §106, 192; 2005 Acts, ch 19, §101

Iowa Code § 504.857 Indemnification of officers.

504.857. Indemnification of officers. 1. A corporation may indemnify and advance expenses under this part to an officer of the corporation who is a party to a proceeding because the person is an officer, according to all of the following: a. To the same extent as to a director. b. If the person is an officer but not a director, to such further extent as may be provided by the articles of incorporation, the bylaws, a resolution of the board of directors, or contract, except for either of the following: (1) Liability in connection with a proceeding by or in the right of the corporation other than for reasonable expenses incurred in connection with the proceeding. (2) Liability arising out of conduct that constitutes any of the following: (a) Receipt by the officer of a financial benefit to which the officer is not entitled. (b) An intentional infliction of harm on the corporation or the members. (c) An intentional violation of criminal law. 2. The provisions of subsection 1, paragraph “b”, shall apply to an officer who is also a director if the basis on which the officer is made a party to a proceeding is an act or omission solely as an officer. 3. An officer of a corporation who is not a director is entitled to mandatory indemnification under section 504.853, and may apply to a court under section 504.855 for indemnification or an advance for expenses, in each case to the same extent to which a director may be entitled to indemnification or advance for expenses under those provisions. 2004 Acts, ch 1049, §107, 192; 2005 Acts, ch 19, §102

Iowa Code § 504.858 Insurance.

504.858. Insurance. A corporation may purchase and maintain insurance on behalf of an individual who is a director or officer of the corporation, or who, while a director or officer of the corporation, serves at the request of the corporation as a director, officer, partner, trustee, employee, or agent of another domestic business or nonprofit corporation, partnership, joint venture, trust, employee benefit plan, or other entity, against liability asserted against or incurred by the individual in that capacity or arising from the individual’s status as a director or officer, whether or not the corporation would have power to indemnify or advance expenses to that individual against the same liability under this part. 2004 Acts, ch 1049, §108, 192

Iowa Code § 504.859 Application of part.

504.859. Application of part. 1. A corporation may, by a provision in its articles of incorporation or bylaws or in a resolution adopted or a contract approved by its board of directors or members, obligate itself in advance of the act or omission giving rise to a proceeding to provide indemnification in accordance with section 504.852 or advance funds to pay for or reimburse expenses in accordance with section 504.854. Any such obligatory provision shall be deemed to satisfy the requirements for authorization referred to in section 504.854, subsection 3, and in section 504.856, subsection 2 or 3. Any such provision that obligates the corporation to provide indemnification to the fullest extent permitted by law shall be deemed to obligate the corporation to advance funds to pay for or reimburse expenses in accordance with section 504.854 to the fullest extent permitted by law, unless the provision specifically provides otherwise. 2. Any provision pursuant to subsection 1 shall not obligate the corporation to indemnify or advance expenses to a director of a predecessor of the corporation, pertaining to conduct with respect to the predecessor, unless otherwise specifically provided. Any provision for indemnification or advance for expenses in the articles of incorporation, bylaws, or a resolution of the board of directors or members of a predecessor of the corporation in a merger or in a contract to which the predecessor is a party, existing at the time the merger takes effect, shall be governed by section 504.1104. 3. A corporation may, by a provision in its articles of incorporation, limit any of the rights to indemnification or advance for expenses created by or pursuant to this part. 4. This part does not limit a corporation’s power to pay or reimburse expenses incurred by a director or an officer in connection with the director’s or officer’s appearance as a witness in a proceeding at a time when the director or officer is not a party. 5. This part does not limit a corporation’s power to indemnify, advance expenses to, or provide or maintain insurance on behalf of an employee or agent. 2004 Acts, ch 1049, §109, 192

Iowa Code § 504.860 Exclusivity of part.

504.860. Exclusivity of part. A corporation may provide indemnification or advance expenses to a director or an officer only as permitted by this part. 2004 Acts, ch 1049, §110, 192