§ 9009 — Other provisions affecting indemnification of directors and officers

§ 9009. Other provisions affecting indemnification of directors and\nofficers. 1. All expenses incurred in defending a civil or criminal\naction or proceeding which are advanced by the corporation under\nsubdivision three of section nine thousand seven or allowed by a court\nunder subdivision three of section nine thousand eight shall be repaid\nin case the person receiving such advancement or allowance is ultimately\nfound, under the procedure set forth in this article, not to be entitled\nto indemnification or, where indemnification is granted, to the extent\nthe expenses so advanced by the corporation or allowed by the court\nexceed the indemnification to which he is entitled.\n 2. No indemnification, advancement or allowance shall be made under\nthis article in any circumstance where it appears:\n (a) That the indemnification would be inconsistent with a provision of\nthe organization certificate, a by-law, a resolution of the board or of\nthe shareholders, an agreement or other proper corporate action, in\neffect at the time of the accrual of the alleged cause of action\nasserted in the threatened or pending action or proceeding in which the\nexpenses were incurred or other amounts were paid, which prohibits or\notherwise limits indemnification; or\n (b) If there has been a settlement approved by the court, that the\nindemnification would be inconsistent with any condition with respect to\nindemnification expressly imposed by the court in approving the\nsettlement.\n 3. If any expenses or other amounts are paid by way of\nindemnification, otherwise than by court order or action by the\nshareholders, the corporation shall, not later than the next annual\nmeeting of shareholders unless such meeting is held within three months\nfrom the date of such payment, and, in any event, within fifteen months\nfrom the date of such payment, mail to its shareholders of record at the\ntime entitled to vote for the election of directors a statement\nspecifying the persons paid, the amounts paid, and the nature and status\nat the time of such payment of the litigation or threatened litigation.\n 4. If any action with respect to indemnification of directors and\nofficers is taken by way of amendment of the by-laws, resolution of\ndirectors, or by agreement, then the corporation shall, not later than\nthe next annual meeting of shareholders, unless such meeting is held\nwithin three months from the date of such action and, in any event\nwithin fifteen months from the date of such action, mail to its\nshareholders of record at the time entitled to vote for the election of\ndirectors a statement specifying the action taken.\n 5. No payment of indemnification, advancement or allowance under this\narticle shall be made unless a notice has been filed with the\nsuperintendent, not less than thirty days prior to such payment,\nspecifying the persons to be paid, the amounts to be paid, the manner in\nwhich such payment was authorized, and the nature and status at the time\nof the notice of the litigation or threatened litigation.\n