Indemnification

O.C.G.A. tit. 14, ch. 3, art. 8, pt. 5

in effect

O.C.G.A. § 14-3-850 Definitions.

14-3-850. Definitions. As used in this part, the term: (1) '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. (2) 'Director' or 'officer' means an individual who is or was a director or officer, respectively, of a corporation who, while a director or officer of the corporation, is or was serving at the corporation's request as a director, officer, partner, trustee, employee, or agent of another domestic or foreign 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 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' or 'officer' includes, unless the context otherwise requires, the estate or personal representative of a director. (3) 'Disinterested director' means a director who at the time of a vote referred to in paragraph (1) of subsection (c) of Code Section 14-3-853 or a vote or selection referred to in subsection (b) or (c) of Code Section 14-3-855 or subsection (a) of Code Section 14-3-856 is not: (A) A party to the proceeding; or (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) 'Disinterested member' means a member who, at the time of a vote referred to in paragraph (2) of subsection (c) of Code Section 14-3-853, a vote referred to in paragraph (3) of subsection (b) of Code Section 14-3-855, or a vote referred to in subsection (a) of Code Section 14-3-856, is not: (A) A party to the proceeding; (B) Owned by or under the control of a director who does not qualify as a disinterested director with respect to the proceeding; or (C) 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 member's judgment when voting on the decision being made. A director who is also member, but who does not qualify as a disinterested director with respect to the proceeding, cannot qualify or vote as a disinterested member on any matters relating to the proceeding. (5) 'Expenses' includes attorney's fees. (6) '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 actually incurred with respect to a proceeding. (7) 'Official capacity' means: (A) When used with respect to a director, the office of director in a corporation; and (B) When used with respect to an officer, as contemplated in Code Section 14-3-858, the office in a corporation held by the officer. 'Official capacity' does not include service for any other domestic or foreign corporation or any partnership, joint venture, trust, employee benefit plan, or other entity. (8) 'Party' means an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. (9) 'Proceeding' means any threatened, pending, or completed action, suit, or proceeding whether civil, criminal, administrative, arbitrative, or investigative and whether formal or informal. (Code 1981, § 14-3-850, enacted by Ga. L. 1991, p. 465, § 1; Ga. L. 1997, p. 1165, § 14.) (Amended by Ga. L. 2023, Act 260 (SB 148), eff. July 1, 2023.)

O.C.G.A. § 14-3-851 Authority to indemnify director involved in legal proceeding.

14-3-851. Authority to indemnify director involved in legal proceeding. (a) Except as otherwise provided in this Code section, a corporation may indemnify an individual who is a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: (1) He or she conducted himself or herself in good faith; and (2) He or she reasonably believed: (A) In the case of conduct in his or her official capacity, that his or her conduct was in the best interests of the corporation; (B) In all other cases, that his or her conduct was at least not opposed to the best interests of the corporation; and (C) In the case of any criminal proceeding, that he or she had no reasonable cause to believe his or her conduct was unlawful. (b) A director's conduct with respect to an employee benefit plan for a purpose the director believed in good faith to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirements of subsection (a) of this Code section. (c) The termination of a proceeding by judgment, order, settlement, or 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 Code section. (d) A corporation may not indemnify a director under this Code section: (1) 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 this Code section; or (2) In connection with any other proceeding with respect to conduct for which the director was adjudged liable on the basis that personal benefit was improperly received by the director, whether or not involving action in the director's official capacity. (Code 1981, § 14-3-851, enacted by Ga. L. 1991, p. 465, § 1; Ga. L. 1997, p. 1165, § 14.) (Amended by Ga. L. 2023, Act 260 (SB 148), eff. July 1, 2023.)

O.C.G.A. § 14-3-852 Indemnification for reasonable expenses of successful defense.

14-3-852. Indemnification for reasonable expenses of successful defense. A corporation shall indemnify a director who was successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because the director was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding. (Code 1981, § 14-3-852, enacted by Ga. L. 1991, p. 465, § 1; Ga. L. 1997, p. 1165, § 14.) (Amended by Ga. L. 2023, Act 260 (SB 148), eff. July 1, 2023.)

O.C.G.A. § 14-3-853 Advance or reimbursement of litigation expenses.

14-3-853. Advance or reimbursement of litigation expenses. (a) 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 director is a director if the director delivers to the corporation: (1) A written affirmation of the director's good faith belief that the director has met the relevant standard of conduct described in Code Section 14-3-851 or that the proceeding involves conduct for which liability has been eliminated under a provision of the articles of incorporation as authorized by paragraph (4) of subsection (b) of Code Section 14-3-202; and (2) The director's written undertaking to repay any funds advanced if it is ultimately determined that the director is not entitled to indemnification under this part. (b) The undertaking required by paragraph (2) of subsection (a) of this Code section 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. (c) Authorizations under this Code section shall be made: (1) By the board of directors: (A) 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 a vote; or (B) If there are fewer than two disinterested directors, by the vote necessary for action by the board in accordance with subsection (c) of Code Section 14-3-824, in which authorization directors who do not qualify as disinterested directors may participate; or (2) By the disinterested members. (Code 1981, § 14-3-853, enacted by Ga. L. 1991, p. 465, § 1; Ga. L. 1997, p. 1165, § 14; Ga. L. 1998, p. 128, § 14.) (Amended by Ga. L. 2023, Act 260 (SB 148), eff. July 1, 2023.)

O.C.G.A. § 14-3-854 Court ordered indemnification and payment of expenses.

14-3-854. Court ordered indemnification and payment of expenses. (a) A director who is a party to a proceeding because he or she is a director may apply for indemnification or advances of expenses to the court conducting the proceeding or to another court of competent jurisdiction. After receipt of an application, after giving any notice it considers necessary, the court shall: (1) Order indemnification or advance for expenses if it determines that the director is entitled to indemnification under this part; or (2) Order indemnification or advance for expenses if it determines, in view of all the relevant circumstances, that it is fair and reasonable: (A) To indemnify the director; or (B) To advance expenses to the director, even if he or she has not met the relevant standard of conduct set forth in subsections (a) and (b) of Code Section 14-3-851, failed to comply with Code Section 14-3-853, or was adjudged liable in a proceeding referred to in paragraph (1) or (2) of subsection (d) of Code Section 14-3-851, but if he or she was adjudged so liable his or her indemnification shall be limited to reasonable expenses incurred in connection with the proceeding. (b) If the court determines that the director is entitled to indemnification or advance for expenses under paragraph (1) of subsection (a) of this Code section, it shall also order the corporation to pay the director's reasonable expenses to obtain court ordered indemnification or advance for expenses. If the court determines that the director is entitled to indemnification or advance for expenses under paragraph (2) of subsection (a) of this Code section, it may also order the corporation to pay the director's reasonable expenses to obtain court ordered indemnification or advance for expenses. (c) The court may summarily determine, without a jury, a corporation's obligation to indemnify or advance expenses. (Code 1981, § 14-3-854, enacted by Ga. L. 1991, p. 465, § 1; Ga. L. 1994, p. 97, § 14; Ga. L. 1997, p. 1165, § 14.) (Amended by Ga. L. 2023, Act 260 (SB 148), eff. July 1, 2023.)

O.C.G.A. § 14-3-855 Determination of right and authorization for payment of indemnification required.

14-3-855. Determination of right and authorization for payment of indemnification required. (a) A corporation may not indemnify a director under Code Section 14-3-851 unless authorized thereunder and a determination has been made for a specific proceeding that indemnification of the director is permissible in the circumstances because the director has met the relevant standard of conduct set forth in Code Section 14-3-851. (b) The determination shall be made: (1) 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 a vote; (2) By special legal counsel: (A) Selected in the manner prescribed in paragraph (1) of this subsection; or (B) If there are fewer than two disinterested directors, selected by the board of directors, in which selection directors who do not qualify as disinterested directors may participate; or (3) By the disinterested members. (c) Authorization of indemnification or an obligation to indemnify and evaluation as to reasonableness of expenses 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 and evaluation as to reasonableness of expenses shall be made by those entitled under paragraph (3) of subsection (b) of this Code section to select special legal counsel. (Code 1981, § 14-3-855, enacted by Ga. L. 1991, p. 465, § 1; Ga. L. 1997, p. 1165, § 14.) (Amended by Ga. L. 2023, Act 260 (SB 148), eff. July 1, 2023.)

O.C.G.A. § 14-3-856

14-3-856. (a) If authorized by the articles of incorporation or a bylaw, contract, or resolution approved or ratified by a majority of disinterested members unless otherwise specified in the articles or bylaws, or, in the case of a corporation without members, by a majority of disinterested directors unless otherwise specified in the articles or bylaws, a corporation may indemnify or obligate itself to indemnify a director made a party to a proceeding, including a proceeding brought by or in the right of the corporation, without regard to the limitations in other Code sections of this part. (b) The corporation shall not indemnify a director under this Code section for any liability incurred in a proceeding in which the director is adjudged liable to the corporation or is subjected to injunctive relief in favor of the corporation: (1) For any appropriation, in violation of the director's duties, of any business opportunity of the corporation; (2) For acts or omissions which involve intentional misconduct or a knowing violation of law; (3) For the types of liability set forth in Code Sections 14-3-860 through 14-3-864; or (4) For any transaction from which the director received an improper personal benefit. (c) Where approved or authorized in the manner described in subsection (a) of this Code section, a corporation may advance or reimburse expenses incurred in advance of final disposition of the proceeding only if: (1) The director furnishes the corporation with a written affirmation of the director's good faith belief that the director's conduct does not constitute behavior of the kind described in subsection (b) of this Code section; and (2) The director furnishes the corporation with a written undertaking, executed personally or on his or her behalf, to repay any advances for expenses if it is ultimately determined that the director is not entitled to indemnification under this Code section. (Ga. L. 2023, Act 260 (SB 148), eff. July 1, 2023.)

O.C.G.A. § 14-3-857 Indemnification of officers, employees, and agents.

14-3-857. Indemnification of officers, employees, and agents. (a) A corporation may indemnify and advance expenses under this part to an officer of the corporation who is a party to a proceeding because he or she is an officer of the corporation: (1) To the same extent as a director; and (2) If he or she is 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 liability arising out of conduct that constitutes: (A) Appropriation, in violation of his or her duties, of any business opportunity of the corporation; (B) Acts or omissions which involve intentional misconduct or a knowing violation of law; (C) The types of liability set forth in Code Sections 14-3-860 through 14-3-865; or (D) Receipt of an improper personal benefit. (b) The provisions of paragraph (2) of subsection (a) of this Code section shall apply to an officer who is also a director if the sole basis on which he or she is made a party to the proceeding is an act or omission solely as an officer. (c) An officer of a corporation who is not a director is entitled to mandatory indemnification under Code Section 14-3-852, and may apply to a court under Code Section 14-3-854 for indemnification or advances for expenses, in each case to the same extent to which a director may be entitled to indemnification or advances for expenses under those provisions. (d) A corporation may also indemnify and advance expenses to an employee or agent who is not a director to the extent, consistent with public policy, that may be provided by its articles of incorporation, its bylaws, general or specific action of its board of directors, or contract. (Code 1981, § 14-3-856, enacted by Ga. L. 1991, p. 465, § 1; Ga. L. 1994, p. 97, § 14; Ga. L. 1997, p. 1165, § 14; Ga. L. 2004, p. 508, § 44.) (Redesignated from § 14-3-856 and amended by Ga. L. 2023, Act 260 (SB 148), eff. July 1, 2023.)

O.C.G.A. § 14-3-858 Insurance.

14-3-858. Insurance. A corporation may purchase and maintain insurance on behalf of an individual who is a director, officer, employee, or agent of the corporation or who, while a director, officer, employee, or agent of the corporation, serves at the corporation's request as a director, officer, partner, trustee, employee, or agent of another domestic or foreign 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, officer, employee, or agent, whether or not the corporation would have power to indemnify or advance expenses to the individual against the same liability under this part. (Code 1981, § 14-3-857, enacted by Ga. L. 1991, p. 465, § 1; Ga. L. 1997, p. 1165, § 14.) (Redesignated from § 14-3-857 and amended by Ga. L. 2023, Act 260 (SB 148), eff. July 1, 2023.)

O.C.G.A. § 14-3-859 Applicability of indemnification provisions.

14-3-859. Applicability of indemnification provisions. (a) 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 or advance funds to pay for or reimburse expenses consistent with this part. Any such obligatory provision shall be deemed to satisfy the requirements for authorization referred to in subsection (c) of Code Section 14-3-853 or subsection (c) of Code Section 14-3-855. Any such provision existing on July 1, 1991, shall be valid to the extent it does not provide for broader indemnification than is allowed under this part. (b) Any provision pursuant to subsection (a) of this Code section 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, the bylaws, or a resolution of the board of directors, members, shareholders, partners, or, in the case of limited liability companies, members or managers of a predecessor of the corporation or other entity 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 paragraph (3) of Code Section 14-3-1105. (c) 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. (d) This part does not limit a corporation's power to pay or reimburse expenses incurred by a director or an officer in connection with his or her appearance as a witness in a proceeding at a time when he or she is not a party. (e) Except as expressly provided in Code Section 14-3-857, 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. (f) Any provision in a corporation's articles of incorporation or bylaws or in a resolution adopted or contract approved by its board of directors or members that obligates the corporation to provide indemnification to the fullest extent permitted by law shall, unless such provision or another provision in the corporation's articles of incorporation or bylaws or in a resolution adopted or a contract approved by its board of directors or members expressly provides otherwise, be deemed to obligate the corporation: (1) To advance funds to pay for or reimburse expenses in accordance with Code Section 14-3-853 or subsection (c) of Code Section 14-3-856 to the fullest extent permitted by law; and (2) To indemnify directors to the fullest extent permitted in Code Section 14-3-856, provided that such provision is duly authorized as required in subsection (a) of Code Section 14-3-856, and to indemnify officers to the fullest extent permitted in paragraph (2) of subsection (a) and subsection (b) of Code Section 14-3-857. (g) The provisions of this part may be incorporated by reference into a corporation's articles of incorporation, its bylaws, or a resolution of its members or board of directors. In such case, any such provision shall subsequently be deemed amended to conform with any amendments to this part, unless such provision otherwise expressly provides. (Code 1981, § 14-3-858, enacted by Ga. L. 1991, p. 465, § 1; Ga. L. 1992, p. 6, § 14; Ga. L. 1997, p. 1165, § 14; Ga. L. 2004, p. 508, § 45.) (Redesignated from § 14-3-858 and amended by Ga. L. 2023, Act 260 (SB 148), eff. July 1, 2023.)

Source: Official Code of Georgia (Legislative Counsel's copy via Public.Resource.Org) + acts (legis.ga.gov)URL: https://archive.org/download/gov.ga.ocga.2024/T14%20%28V12%29%202017.txtFetched: 10/24/2026