Missouri Revised Statutes
Chapter 351
General and Business Corporations
←351.347
Section 351.355.1
351.360→
August 28, 2015
Officer, director, employee, or agent of corporation indemnified, when, methods authorized.
351.355. 1. A corporation created under the laws of this state may
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative or investigative, other than an action
by or in the right of the corporation, by reason of the fact that he or she
is or was a director, officer, employee or agent of the corporation, or is or
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, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The termination 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 good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his or her conduct was unlawful.
2. The corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he or she is or was a director, officer,
employee or agent of the corporation, or is or 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 against
expenses, including attorneys' fees, and amounts paid in settlement actually
and reasonably incurred by him in connection with the defense or settlement
of the action or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his or her duty to
the corporation unless and only to the extent that the court in which the
action or suit was brought determines upon application that, despite the
adjudication of liability and in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
3. Except as otherwise provided in the articles of incorporation or the
bylaws, to the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in subsections 1 and 2 of this
section, or in defense of any claim, issue or matter therein, he or she shall
be indemnified against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the action, suit, or proceeding.
4. Any indemnification under subsections 1 and 2 of this section, unless
ordered by a court, shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in this section. The
determination shall be made by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to the action, suit, or
proceeding, or if such a quorum is not obtainable, or even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in
a written opinion, or by the shareholders.
5. Expenses incurred in defending any civil, criminal, administrative, or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of the action, suit, or proceeding as
authorized by the board of directors in the specific case upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to
repay such amount unless it shall ultimately be determined that he or she is
entitled to be indemnified by the corporation as authorized in this section.
6. The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under the articles of incorporation or bylaws or any agreement, vote
of shareholders or disinterested directors or otherwise, both as to action in
his or her official capacity and as to action in another capacity while
holding such office, and shall 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 and administrators of such a person.
7. A corporation created under the laws of this state shall have the
power to give any further indemnity, in addition to the indemnity authorized
or contemplated under other subsections of this section, including subsection
6, to any person who is or was a director, officer, employee or agent, or to
any person who is or 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 further indemnity is
either (i) authorized, directed, or provided for in the articles of
incorporation of the corporation or any duly adopted amendment thereof or
(ii) is authorized, directed, or provided for in any bylaw or agreement of
the corporation which has been adopted by a vote of the shareholders of the
corporation, and provided further that no such indemnity shall indemnify any
person from or on account of such person's conduct which was finally adjudged
to have been knowingly fraudulent, deliberately dishonest or willful
misconduct. Nothing in this subsection shall be deemed to limit the power of
the corporation under subsection 6 of this section to enact bylaws or to enter
into agreements without shareholder adoption of the same.
8. The corporation may purchase and maintain insurance or another
arrangement on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or 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 against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him against such liability
under the provisions of this section. Without limiting the power of the
corporation to procure or maintain any kind of insurance or other arrangement
the corporation may for the benefit of persons indemnified by the corporation
create a trust fund, establish any form of self insurance, secure its
indemnity obligation by grant of a security interest or other lien on the
assets of the corporation, or establish a letter of credit, guaranty, or
surety arrangement. The insurance or other arrangement may be procured,
maintained, or established within the corporation or with any insurer or
other person deemed appropriate by the board of directors regardless of
whether all or part of the stock or other securities of the insurer or other
person are owned in whole or in part by the corporation. In the absence of
fraud the judgment of the board of directors as to the terms and conditions
of the insurance or other arrangement and the identity of the insurer or other
person participating in an arrangement shall be conclusive and the insurance
or arrangement shall not be voidable and shall not subject the directors
approving the insurance or arrangement to liability on any ground regardless
of whether directors participating in the approval are beneficiaries of the
insurance arrangement.
9. Any provision of this chapter to the contrary notwithstanding, the
provisions of this section shall apply to all existing and new domestic
corporations, including but not limited to banks, trust companies, insurance
companies, building and loan associations, savings bank and safe deposit
companies, mortgage loan companies, corporations formed for benevolent,
religious, scientific or educational purposes and nonprofit corporations.
10. For the purpose of this section, references to "the corporation"
include all constituent corporations absorbed in a consolidation or merger as
well as the resulting or surviving corporation so that any person who is or
was a director, officer, employee or agent of such a constituent corporation
or is or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise shall stand in the same position
under the provisions of this section with respect to the resulting or
surviving corporation as he or she would if he or she had served the
resulting or surviving corporation in the same capacity.
11. For purposes of this section, the term "other enterprise" shall
include employee benefit plans; the term "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and the
term "serving at the request of the corporation" shall include any service as
a director, officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to
in this section.
(L. 1949 p. 242 § 45a, A.L. 1972 H.B. 1149, A.L. 1975 S.B. 14, A.L.
1983 S.B. 367, A.L. 1986 S.B. 565, A.L. 2000 S.B. 896, A.L. 2004
H.B. 1664, A.L. 2006 H.B. 1715)
2004
2000
2004
351.355. 1. A corporation created under the laws of this state may
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative or investigative, other than an
action by or in the right of the corporation, by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation,
or is or 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, against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The
termination 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 good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
2. The corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, or is or 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
against expenses, including attorneys' fees, and amounts paid in settlement
actually and reasonably incurred by him in connection with the defense or
settlement of the action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance
of his or her duty to the corporation unless and only to the extent that
the court in which the action or suit was brought determines upon
application that, despite the adjudication of liability and in view of all
the circumstances of the case, the person is fairly and reasonably entitled
to indemnity for such expenses which the court shall deem proper.
3. Except as otherwise provided in the articles of incorporation or
the bylaws, to the extent that a director, officer, employee or agent of
the corporation has been successful on the merits or otherwise in defense
of any action, suit, or proceeding referred to in subsections 1 and 2 of
this section, or in defense of any claim, issue or matter therein, he or
she shall be indemnified against expenses, including attorneys' fees,
actually and reasonably incurred by him in connection with the action,
suit, or proceeding.
4. Any indemnification under subsections 1 and 2 of this section,
unless ordered by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
this section. The determination shall be made by the board of directors by
a majority vote of a quorum consisting of directors who were not parties to
the action, suit, or proceeding, or if such a quorum is not obtainable, or
even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or by the shareholders.
5. Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final
disposition of the action, suit, or proceeding as authorized by the board
of directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount
unless it shall ultimately be determined that he or she is entitled to be
indemnified by the corporation as authorized in this section.
6. The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under the articles of incorporation or bylaws or any agreement,
vote of shareholders or disinterested directors or otherwise, both as to
action in his or her official capacity and as to action in another capacity
while holding such office, and shall 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 and administrators of such a person.
7. A corporation created under the laws of this state shall have the
power to give any further indemnity, in addition to the indemnity
authorized or contemplated under other subsections of this section,
including subsection 6, to any person who is or was a director, officer,
employee or agent, or to any person who is or 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 further indemnity is either (i) authorized, directed, or
provided for in the articles of incorporation of the corporation or any
duly adopted amendment thereof or (ii) is authorized, directed, or provided
for in any bylaw or agreement of the corporation which has been adopted by
a vote of the shareholders of the corporation, and provided further that no
such indemnity shall indemnify any person from or on account of such
person's conduct which was finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct. Nothing in this
subsection shall be deemed to limit the power of the corporation under
subsection 6 of this section to enact bylaws or to enter into agreements
without shareholder adoption of the same.
8. The corporation may purchase and maintain insurance or another
arrangement on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or 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 against
any liability asserted against him or her and incurred by him or her in any
such capacity, or arising out of his or her status as such, whether or not
the corporation would have the power to indemnify him against such
liability under the provisions of this section. Without limiting the power
of the corporation to procure or maintain any kind of insurance or other
arrangement the corporation may for the benefit of persons indemnified by
the corporation create a trust fund, establish any form of self insurance,
secure its indemnity obligation by grant of a security interest or other
lien on the assets of the corporation, or establish a letter of credit,
guaranty, or surety arrangement. The insurance or other arrangement may be
procured, maintained, or established within the corporation or with any
insurer or other person deemed appropriate by the board of directors
regardless of whether all or part of the stock or other securities of the
insurer or other person are owned in whole or in part by the corporation.
In the absence of fraud the judgment of the board of directors as to the
terms and conditions of the insurance or other arrangement and the identity
of the insurer or other person participating in an arrangement shall be
conclusive and the insurance or arrangement shall not be voidable and shall
not subject the directors approving the insurance or arrangement to
liability on any ground regardless of whether directors participating in
the approval are beneficiaries of the insurance arrangement.
9. Any provision of this chapter to the contrary notwithstanding, the
provisions of this section shall apply to all existing and new domestic
corporations, including but not limited to banks, trust companies,
insurance companies, building and loan associations, savings bank and safe
deposit companies, mortgage loan companies, corporations formed for
benevolent, religious, scientific or educational purposes and nonprofit
corporations.
10. For the purpose of this section, references to "the corporation"
include all constituent corporations absorbed in a consolidation or merger
as well as the resulting or surviving corporation so that any person who is
or was a director, officer, employee or agent of such a constituent
corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise shall
stand in the same position under the provisions of this section with
respect to the resulting or surviving corporation as he or she would if he
or she had served the resulting or surviving corporation in the same
capacity.
11. For purposes of this section, the term "other enterprise" shall
include employee benefit plans; the term "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
the term "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in
a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
2000
351.355. 1. A corporation created under the laws of this state may
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit, or proceeding,
whether civil, criminal, administrative or investigative, other than an
action by or in the right of the corporation, by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation,
or is or 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, against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or
proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The
termination 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 good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
2. The corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, or is or 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
against expenses, including attorneys' fees, and amounts paid in settlement
actually and reasonably incurred by him in connection with the defense or
settlement of the action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance
of his or her duty to the corporation unless and only to the extent that
the court in which the action or suit was brought determines upon
application that, despite the adjudication of liability and in view of all
the circumstances of the case, the person is fairly and reasonably entitled
to indemnity for such expenses which the court shall deem proper.
3. Except as otherwise provided in the articles of incorporation or
the bylaws, to the extent that a director, officer, employee or agent of
the corporation has been successful on the merits or otherwise in defense
of any action, suit, or proceeding referred to in subsections 1 and 2 of
this section, or in defense of any claim, issue or matter therein, he or
she shall be indemnified against expenses, including attorneys' fees,
actually and reasonably incurred by him in connection with the action,
suit, or proceeding.
4. Any indemnification under subsections 1 and 2 of this section,
unless ordered by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
this section. The determination shall be made by the board of directors by
a majority vote of a quorum consisting of directors who were not parties to
the action, suit, or proceeding, or if such a quorum is not obtainable, or
even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or by the shareholders.
5. Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final
disposition of the action, suit, or proceeding as authorized by the board
of directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount
unless it shall ultimately be determined that he or she is entitled to be
indemnified by the corporation as authorized in this section.
6. The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under the articles of incorporation or bylaws or any agreement,
vote of shareholders or disinterested directors or otherwise, both as to
action in his or her official capacity and as to action in another capacity
while holding such office, and shall 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 and administrators of such a person.
7. A corporation created under the laws of this state shall have the
power to give any further indemnity, in addition to the indemnity
authorized or contemplated under other subsections of this section,
including subsection 6, to any person who is or was a director, officer,
employee or agent, or to any person who is or 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 further indemnity is either (i) authorized, directed, or
provided for in the articles of incorporation of the corporation or any
duly adopted amendment thereof or (ii) is authorized, directed, or provided
for in any bylaw or agreement of the corporation which has been adopted by
a vote of the shareholders of the corporation, and provided further that no
such indemnity shall indemnify any person from or on account of such
person's conduct which was finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct. Nothing in this
subsection shall be deemed to limit the power of the corporation under
subsection 6 of this section to enact bylaws or to enter into agreements
without shareholder adoption of the same.
8. The corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
corporation, or is or 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 against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
or her status as such, whether or not the corporation would have the power
to indemnify him against such liability under the provisions of this
section.
9. Any provision of this chapter to the contrary notwithstanding, the
provisions of this section shall apply to all existing and new domestic
corporations, including but not limited to banks, trust companies,
insurance companies, building and loan associations, savings bank and safe
deposit companies, mortgage loan companies, corporations formed for
benevolent, religious, scientific or educational purposes and nonprofit
corporations.
10. For the purpose of this section, references to "the corporation"
include all constituent corporations absorbed in a consolidation or merger
as well as the resulting or surviving corporation so that any person who is
or was a director, officer, employee or agent of such a constituent
corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise shall
stand in the same position under the provisions of this section with
respect to the resulting or surviving corporation as he or she would if he
or she had served the resulting or surviving corporation in the same
capacity.
11. For purposes of this section, the term "other enterprise" shall
include employee benefit plans; the term "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
the term "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in
a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
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