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PAG LIN 1 1 SENATE FILE 340 1 2 1 3 AN ACT 1 4 RELATING TO BUSINESS ENTITIES, BASED ON REVISIONS RELATED TO 1 5 THE IOWA BUSINESS CORPORATION ACT, INCLUDING ADDITION OF A 1 6 SAVINGS CLAUSE AND ADDITION OF PROVISIONS RELATED TO DIRECTOR 1 7 AND OFFICER LIABILITY, DUTY, AND INDEMNIFICATION FOR CERTAIN 1 8 INSURANCE COMPANIES AND INDEMNIFICATION FOR COOPERATIVE 1 9 ASSOCIATIONS. 1 10 1 11 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 1 12 1 13 Section 1. Section 490.1701, Code 2003, is amended by 1 14 adding the following new unnumbered paragraph: 1 15 NEW UNNUMBERED PARAGRAPH. A corporation organized under 1 16 chapter 496C may voluntarily elect to adopt the provisions of 1 17 this chapter by complying with the provisions prescribed by 1 18 subsection 3. 1 19 Sec. 2. Section 490.1701, subsection 3, paragraph b, Code 1 20 2003, is amended to read as follows: 1 21 b. The instrument shall be delivered to the secretary of 1 22 state for filing and recording in the secretary of state's 1 23 office, and. If the corporation was organized under chapter 1 24 176, 524, or 533, the instrument shall also be filed and 1 25 recorded in the office of the county recorder. The 1 26 corporation shall at the time it files the instrument with the 1 27 secretary of state deliver also to the secretary of state for 1 28 filing in the secretary of state's office any biennial report 1 29 which is then due. 1 30 If the county of the initial registered office as stated in 1 31 the instrument for a corporation organized under chapter 176, 1 32 524, or 533 is one which is other than the county where the 1 33 principal place of business of the corporation, as designated 1 34 in its articles of incorporation, was located, the corporation 1 35 shall forward to the county recorder of the county in which 2 1 the principal place of business of the corporation was located 2 2 a copy of the instrument and the corporation shall forward to 2 3 the recorder of the county in which the initial registered 2 4 office of the corporation is located, in addition to a copy of 2 5 the original instrument, a copy of the articles of 2 6 incorporation of the corporation together with all amendments 2 7 to them as then on file in the secretary of state's office. 2 8 The corporation shall, through an officer or director, certify 2 9 to the secretary of state that a copy has been sent to each 2 10 applicable county recorder, including the date each copy was 2 11 sent. 2 12 Sec. 3. Section 490.1703, subsection 1, Code 2003, is 2 13 amended to read as follows: 2 14 1. Except as provided in subsection 2, the repeal of a 2 15 statute by 1989 Iowa Acts, chapter 288, and the amendment or 2 16 repeal of a statute by 2002 Iowa Acts, chapter 1154, does not 2 17 affect: 2 18 a. The operation of the statute or any action taken under 2 19 it before its amendment or repeal. 2 20 b. Any ratification, right, remedy, privilege, obligation, 2 21 or liability acquired, accrued, or incurred under the statute 2 22 before its amendment or repeal. 2 23 c. Any violation of the statute, or any penalty, 2 24 forfeiture, or punishment incurred because of the violation, 2 25 before its amendment or repeal. 2 26 d. Any proceeding, reorganization, or dissolution 2 27 commenced under the statute before its amendment or repeal, 2 28 and the proceeding, reorganization, or dissolution may be 2 29 completed in accordance with the statute as if it had not been 2 30 amended or repealed. 2 31 Sec. 4. Section 490A.707, Code 2003, is amended to read as 2 32 follows: 2 33 490A.707 LIMITATION OF LIABILITY OF MANAGERS. 2 34 The articles of organization may contain a provision 2 35 eliminating or limiting the personal liability of a manager to 3 1 the limited liability company or to its members or of the 3 2 members with whom the management of the limited liability 3 3 company is vested pursuant to section 490A.702, to the limited 3 4 liability company or to its members formonetarymoney damages 3 5for breach of fiduciary dutyfor any action taken, or any 3 6 failure to take action, as a manager or a member with whom 3 7 management of the limited liability company is vested,if the3 8provision does not eliminate or limit the liability of a3 9manager or a member with whom management of the limited3 10liability company is vested forexcept for liability for any 3 11 of the following: 3 12 1.Breach of the manager's or member's duty of loyalty to3 13the limited liability company or to its membersThe amount of 3 14 a financial benefit received by a manager or member to which 3 15 the manager or member is not entitled. 3 16 2.Acts or omissions not in good faith or which involve3 17intentional misconduct or a knowing violation of lawAn 3 18 intentional infliction of harm on the limited liability 3 19 company or its members. 3 20 3.Transaction from which the manager or member derives an3 21improper personal benefit or a wrongful distribution in3 22violation of sectionA violation of section 490A.807. 3 23 4. An intentional violation of criminal law. 3 24 A provision shall not eliminate or limit the liability of a 3 25 manager or member with whom management of the limited 3 26 liability company is vested for an act or omission occurring 3 27 prior to the date when the provision in the articles of 3 28 organization becomes effective. 3 29 Sec. 5. Section 491.5, subsection 8, Code 2003, is amended 3 30 by striking the subsection and inserting in lieu thereof the 3 31 following: 3 32 8. Any provision eliminating or limiting the personal 3 33 liability of a director to the corporation or its shareholders 3 34 or members for money damages as provided in section 490.202, 3 35 subsection 2, paragraph "d", except that section 490.202, 4 1 subsection 2, paragraph "d", subparagraph (3), shall have no 4 2 application. 4 3 Sec. 6. Section 491.5, Code 2003, is amended by adding the 4 4 following new subsection: 4 5 NEW SUBSECTION. 9. Any provision permitting or making 4 6 obligatory indemnification of a director as provided in 4 7 section 490.202, subsection 2, paragraph "e", except that 4 8 section 490.202, subsection 2, paragraph "e", subparagraph 4 9 (3), shall have no application. 4 10 Sec. 7. NEW SECTION. 491.16A DIRECTORS AND OFFICERS 4 11 DUTIES AND LIABILITIES. 4 12 Sections 490.830 through 490.842 apply to corporations 4 13 organized under or subject to this chapter. 4 14 Sec. 8. Section 496C.14, unnumbered paragraph 7, Code 4 15 2003, is amended to read as follows: 4 16 Notwithstanding the foregoing provisions of this section, 4 17 purchase by the corporation is not required upon the 4 18 occurrence of any event other than death of a shareholder if 4 19 the corporation is dissolved or voluntarily elects to adopt 4 20 the provisions of the Iowa business corporation Act, as 4 21 provided in section 490.1701, subsection 2, within sixty days 4 22 after the occurrence of the event. The articles of 4 23 incorporation or bylaws may provide that purchase is not 4 24 required upon the death of a shareholder if the corporation is 4 25 dissolved within sixty days after the death. Notwithstanding 4 26 the foregoing provisions of this section, purchase by the 4 27 corporation is not required upon the death of a shareholder, 4 28 if the corporation voluntarily elects to adopt the provisions 4 29 of the Iowa business corporation Act, as provided in section 4 30 490.1701, subsection 2, within sixty days after death. 4 31 Sec. 9. Section 496C.16, Code 2003, is amended to read as 4 32 follows: 4 33 496C.16 MANAGEMENT. 4 34 All directors of a professional corporation and all 4 35 officers of a professional corporation except assistant 5 1 officers, shall at all times be individuals who are licensed 5 2 to practice in this state a profession which the corporation 5 3 is authorized to practice.No person who is not licensed5 4shall have any authority or duties in the management or5 5control of the corporation. If any director or any officer5 6ceases to have this qualification, the director or officer5 7shall immediately and automatically cease to hold the5 8directorship or office.However, upon the occurrence of any 5 9 event that requires the corporation either to be dissolved or 5 10 to elect to adopt the provisions of the Iowa business 5 11 corporation Act, as provided in section 496C.19, provided the 5 12 corporation ceases to practice the profession that the 5 13 corporation is authorized to practice, as provided in section 5 14 496C.19, then individuals who are not licensed to practice in 5 15 this state a profession that the corporation is authorized to 5 16 practice may be appointed as officers and directors for the 5 17 sole purpose of carrying out the dissolution of the 5 18 corporation or, if applicable, the voluntary election of the 5 19 corporation to adopt the provisions of the Iowa business 5 20 corporation Act, as provided in section 496C.19. 5 21 Sec. 10. Section 496C.19, Code 2003, is amended to read as 5 22 follows: 5 23 496C.19 DISSOLUTION OR LIQUIDATION. 5 24 Violation of any provision of this chapter by a 5 25 professional corporation or any of its shareholders, 5 26 directors, or officers shall be cause for its involuntary 5 27 dissolution, or liquidation of its assets and business by the 5 28 district court, as provided in the Iowa business corporation 5 29 Act, chapter 490. Upon the death of the last remaining 5 30 shareholder of a professional corporation, or whenever the 5 31 last remaining shareholder is not licensed or ceases to be 5 32 licensed to practice in this state a profession which the 5 33 corporation is authorized to practice, or whenever any person 5 34 other than the shareholder of record becomes entitled to have 5 35 all shares of the last remaining shareholder of the 6 1 corporation transferred into that person's name or to exercise 6 2 voting rights, except as a proxy, with respect to such shares, 6 3 the corporation shall not practice any profession and it shall 6 4 either be promptly dissolved or shall promptly elect to adopt 6 5 the provisions of the Iowa business corporation Act, as 6 6 provided in section 490.1701, subsection 2. However, if prior 6 7 to such dissolution all outstanding shares of the corporation 6 8 are acquired by one or more persons licensed to practice in 6 9 this state a profession which the corporation is authorized to 6 10 practice, the corporation need not be dissolved and may 6 11 practice the profession as provided in this chapter. 6 12 Sec. 11. Section 497.33, Code 2003, is amended to read as 6 13 follows: 6 14 497.33 PERSONAL LIABILITY. 6 15 Except as otherwise provided in this chapter, a director, 6 16 officer, employee, or member of the corporation is not liable 6 17 on the corporation's debts or obligations and a director, 6 18 officer, member, or other volunteer is not personally liable 6 19 in that capacity, for a claim based uponan act or omission of6 20the person performedany action taken, or any failure to take 6 21 action in the discharge of the person's duties, except fora6 22breach of the duty of loyalty to the corporation, for acts or6 23omissions not in good faith or which involvethe amount of a 6 24 financial benefit received by the person to which the person 6 25 is not entitled, an intentional infliction of harm on the 6 26 association or its members, or an intentionalmisconduct or6 27knowingviolation ofthecriminal law, or for a transaction6 28from which the person derives an improper personal benefit. 6 29 Sec. 12. Section 498.35, Code 2003, is amended to read as 6 30 follows: 6 31 498.35 PERSONAL LIABILITY. 6 32 Except as otherwise provided in this chapter, a director, 6 33 officer, employee, or member of the association is not liable 6 34 on the association's debts or obligations and a director, 6 35 officer, member, or other volunteer is not personally liable 7 1 in that capacity, for a claim based uponan act or omission of7 2the person performedany action taken, or any failure to take 7 3 action in the discharge of the person's duties, except fora7 4breach of the duty of loyalty to the association, for acts or7 5omissions not in good faith or which involvethe amount of a 7 6 financial benefit received by the person to which the person 7 7 is not entitled, an intentional infliction of harm on the 7 8 association or its members, or an intentionalmisconduct or7 9knowingviolation ofthecriminal law, or for a transaction7 10from which the person derives an improper personal benefit. 7 11 Sec. 13. Section 499.37, Code 2003, is amended to read as 7 12 follows: 7 13 499.37 OFFICERS AND EMPLOYEES. 7 14 1. The board of directors of the association shall select 7 15from their own number a president, one or more vice7 16presidents, a secretary-treasurer or a secretary and a7 17treasurerthe association's officers as provided in its 7 18 articles of incorporation or bylaws, and shall fill vacancies 7 19 in such offices. The articles of incorporation or bylaws 7 20 shall delegate to an officer the responsibility for all of the 7 21 following: 7 22 a. Preparing minutes of meetings of the directors and the 7 23 shareholders. 7 24 b. Authenticating the association's records. 7 25 2. Unless the association's articles of incorporation or 7 26 bylaws otherwise provide,saidthe association's officers 7 27 shallbe chosenserve for annual terms beginning at the close 7 28 of the first regular meeting of members in each year. 7 29The directors shall also choose and may remove such other7 30officers and employees as they deem proper, or as the articles7 31or bylaws may prescribe.7 32 Sec. 14. Section 499.59, Code 2003, is amended to read as 7 33 follows: 7 34 499.59 PERSONAL LIABILITY. 7 35 Except as otherwise provided in this chapter, a director, 8 1 officer, employee, or member of the association is not liable 8 2 on the association's debts or obligations, and a director, 8 3 officer, member, or other volunteer is not personally liable 8 4 in that capacity, for a claim based uponan act or omission of8 5the person performedany action taken, or any failure to take 8 6 action in the discharge of the person's duties, except fora8 7breach of the duty of loyalty to the association, for acts or8 8omissions not in good faith or which involvethe amount of a 8 9 financial benefit received by the person to which the person 8 10 is not entitled, an intentional infliction of harm on the 8 11 association or its members, or an intentionalmisconduct or8 12knowingviolation ofthecriminal law, or for a transaction8 13from which the person derives an improper personal benefit. 8 14 Sec. 15. Section 501.407, Code 2003, is amended to read as 8 15 follows: 8 16 501.407 PERSONAL LIABILITY INDEMNIFICATION. 8 17 1. The articles may contain a provision eliminating or 8 18 limiting the personal liability of a director, officer, or 8 19 interest holder of the cooperative formonetarymoney damages 8 20 forbreach of a fiduciary dutyany action taken, or any 8 21 failure to take action as a director, officer, or interest 8 22 holder,provided that the provision does not eliminate or8 23limitexcept liability for any of the following: 8 241.a.A breach of the duty of loyalty to the cooperative8 25or its interest holdersAn intentional infliction of harm on 8 26 the cooperative or its members. 8 272.b.An act or omission not in good faith or which8 28involves intentional misconduct or a knowingAn intentional 8 29 violation of criminal law. 8 303.c.A transaction from which the director, officer, or8 31interest holder derives an improper personal benefitThe 8 32 amount of a financial benefit received by the person to which 8 33 the person is not entitled. 8 344.d. An act or omission occurring prior to the date when 8 35 the provision in the articles becomes effective. 9 1 2. The articles may contain a provision permitting or 9 2 making obligatory indemnification of a director or officer for 9 3 liability, as defined in section 501.411, to any person for 9 4 any action taken, or any failure to take any action, as a 9 5 director or officer, except liability for any of the 9 6 following: 9 7 a. Receipt of a financial benefit to which the person is 9 8 not entitled. 9 9 b. An intentional infliction of harm on the corporation or 9 10 its shareholders. 9 11 c. An intentional violation of criminal law. 9 12 Sec. 16. Section 501.411, Code 2003, is amended to read as 9 13 follows: 9 14 501.411 DEFINITIONS. 9 15 As used in this part, unless the context otherwise 9 16 requires: 9 17 1. "Cooperative" includes any domestic or foreign 9 18 predecessor entity of a cooperative in a mergeror other9 19transaction in which the predecessor's existence ceased upon9 20consummation of the transaction. 9 21 2. "Director" or "officer" means an individual who is or 9 22 was a director or officer, respectively, of a cooperativeor9 23an individualwho, while a director or officer ofathe 9 24 cooperative, is or was serving at the cooperative's request as 9 25 a director, officer, partner, trustee, employee, or agent of 9 26 anotherforeign ordomestic or foreign cooperative, 9 27 corporation, partnership, joint venture, trust, employee 9 28 benefit plan, or otherenterpriseentity. A director or 9 29 officer is considered to be serving an employee benefit plan 9 30 at the cooperative's request if the director's or officer's 9 31 duties to the cooperative also impose duties on, or otherwise 9 32 involve services by, that director or officer to the plan or 9 33 to participants in or beneficiaries of the plan. "Director" 9 34 or "officer" includes, unless the context requires otherwise, 9 35 the estate or personal representative of a director or 10 1 officer. 10 2 3. "Disinterested director" means a director who at the 10 3 time of a vote referred to in section 501.414, subsection 3, 10 4 or a vote or selection referred to in section 501.416, 10 5 subsection 2 or 3, is not either of the following: 10 6 a. A party to the proceeding. 10 7 b. An individual having a familial, financial, 10 8 professional, or employment relationship with the director 10 9 whose indemnification or advance for expenses is the subject 10 10 of the decision being made, which relationship would in the 10 11 circumstances, reasonably be expected to exert an influence on 10 12 the director's judgment when voting on the decision being 10 13 made. 10 143.4. "Expenses" includes counsel fees. 10 154.5. "Liability" means the obligation to pay a judgment, 10 16 settlement, penalty, fine, including an excise tax assessed 10 17 with respect to an employee benefit plan, or reasonable 10 18 expenses incurred with respect to a proceeding. 10 195.6. "Official capacity" means: 10 20 a. When used with respect to a director, the office of 10 21 director in a cooperative. 10 22 b. When used with respect to anindividual other than a10 23directorofficer, as contemplated in section 501.417, the 10 24 office in a cooperative held by the officeror the employment10 25or agency relationship undertaken by the employee or agent on10 26behalf of the cooperative. 10 27 "Official capacity" does not include service for any other 10 28foreign ordomestic or foreign cooperative or any corporation, 10 29 partnership, joint venture, trust, employee benefit plan, or 10 30 otherenterpriseentity. 10 316.7. "Party"includesmeans an individual who was, is, or 10 32 is threatened to be made anameddefendant or respondent in a 10 33 proceeding. 10 347.8. "Proceeding" means any threatened, pending, or 10 35 completed action, suit, or proceeding, whether civil, 11 1 criminal, administrative, or investigative and whether formal 11 2 or informal. 11 3 Sec. 17. Section 501.412, Code 2003, is amended to read as 11 4 follows: 11 5 501.412AUTHORITY TO INDEMNIFYPERMISSIBLE 11 6 INDEMNIFICATION. 11 7 1. Except as otherwise provided insubsection 4this 11 8 section, a cooperative may indemnify an individualmadewho is 11 9 a party to a proceeding because the individual isor wasa 11 10 director against liability incurred in the proceeding ifall11 11 either of the following apply: 11 12 a. All of the following apply: 11 13a.(1) The individual acted in good faith. 11 14b.(2) The individual reasonably believedeither of the11 15following: 11 16(1)(a) In the case of conduct in the individual's 11 17 official capacitywith the cooperative, that the individual's 11 18 conduct was in thecooperative'sbest interests of the 11 19 cooperative. 11 20(2)(b) In all other cases, that the individual's conduct 11 21 was at least not opposed to thecooperative'sbest interests 11 22 of the cooperative. 11 23c.(3) In the case of any criminal proceeding, the 11 24 individual had no reasonable cause to believe the individual's 11 25 conduct was unlawful. 11 26 b. The individual engaged in conduct for which broader 11 27 indemnification has been made permissible or obligatory under 11 28 a provision of the articles of organization as authorized by 11 29 section 501.407, subsection 2. 11 30 2. A director's conduct with respect to an employee 11 31 benefit plan for a purpose the director reasonably believed to 11 32 be in the interests of the participants in and beneficiaries 11 33 of the plan is conduct that satisfies the requirement of 11 34 subsection 1, paragraph"b""a", subparagraph (2), 11 35 subparagraph subdivision (b). 12 1 3. The termination of a proceeding by judgment, order, 12 2 settlement, conviction, or upon a plea of nolo contendere or 12 3 its equivalent is not, of itself, determinative that the 12 4 director did not meet the relevant standard of conduct 12 5 described in this section. 12 6 4.AUnless ordered by a court pursuant to section 12 7 501.415, subsection 1, paragraph "c", a cooperative shall not 12 8 indemnify a directorunder this sectionin either of the 12 9 following circumstances: 12 10 a. In connection with a proceeding by or in the right of 12 11 the cooperative,in which the director was adjudged liable to12 12the cooperativeexcept for reasonable expenses incurred in 12 13 connection with the proceeding if it is determined that the 12 14 director has met the relevant standard of conduct under 12 15 subsection 1, paragraph "a". 12 16 b. In connection with anyotherproceedingcharging12 17improper personal benefit to the director, whether or not12 18involving action in the director's official capacity, inwith 12 19 respect to conduct for which the director was adjudged liable 12 20 on the basis thatpersonalthe director received a financial 12 21 benefitwas improperly received by the directorto which the 12 22 director was not entitled, whether or not involving action in 12 23 the director's official capacity. 12 245. Indemnification permitted under this section in12 25connection with a proceeding by or in the right of the12 26cooperative is limited to reasonable expenses incurred in12 27connection with the proceeding.12 28 Sec. 18. Section 501.413, Code 2003, is amended to read as 12 29 follows: 12 30 501.413 MANDATORY INDEMNIFICATION. 12 31Unless limited by its articles of association, aA 12 32 cooperative shall indemnify a director who was wholly 12 33 successful, on the merits or otherwise, in the defense of any 12 34 proceeding to which the director was a party because the 12 35 director is or was a director of the cooperativeagainst13 1reasonable expenses incurred by the director in connection13 2with the proceeding. 13 3 Sec. 19. Section 501.414, Code 2003, is amended to read as 13 4 follows: 13 5 501.414 ADVANCE FOR EXPENSES. 13 6 1. A cooperative may, before final disposition of a 13 7 proceeding, advance funds to pay for or reimburse the 13 8 reasonable expenses incurred by a director who is a party to a 13 9 proceedingin advance of final disposition of the proceeding13 10 because the person is a director ifany ofthe person delivers 13 11 all of the followingappliesto the cooperative: 13 12 a.The director furnishes the cooperative aA written 13 13 affirmation of the director's good faith belief that either 13 14 the director has met the relevant standard of conduct 13 15 described in section 501.412 or that the proceeding involves 13 16 conduct for which liability has been eliminated under a 13 17 provision of the articles of organization as authorized by 13 18 section 501.407, subsection 1. 13 19 b. Thedirector furnishes the cooperative adirector's 13 20 written undertaking, executed personally or on the director's13 21behalf,to repaythe advance ifany funds advanced if the 13 22 director is not entitled to mandatory indemnification under 13 23 section 501.413 and it is ultimately determined that the 13 24 directordid not meet thehas not met the relevant standard of 13 25 conduct described in section 501.412. 13 26c. A determination is made pursuant to section 501.41613 27that the facts then known to those making the determination13 28would not preclude indemnification under this part.13 29 2. The undertaking required by subsection 1, paragraph 13 30 "b", must be an unlimited general obligation of the director 13 31 but need not be secured and may be accepted without reference 13 32 to the financial ability of the director to make repayment. 13 33 3.Determinations and authorizations of payments13 34 Authorizations under this section shall be madein the manner13 35specified in section 501.416.according to either of the 14 1 following: 14 2 a. By the board of directors, according to one of the 14 3 following: 14 4 (1) If there are two or more disinterested directors, by a 14 5 majority vote of all the disinterested directors, a majority 14 6 of whom shall for such purpose constitute a quorum, or by a 14 7 majority of the members of a committee of two or more 14 8 disinterested directors appointed by such a vote. 14 9 (2) If there are fewer than two disinterested directors, 14 10 if a quorum is present when the vote is taken, by the 14 11 affirmative vote of a majority of the directors present, 14 12 unless the articles or bylaws require the vote of a greater 14 13 number of directors, in which authorization directors who do 14 14 not qualify as disinterested directors may participate. 14 15 b. By the members, but voting interests owned by or voted 14 16 under the control of a director who at the time does not 14 17 qualify as a disinterested director shall not be voted on the 14 18 authorization. 14 19 Sec. 20. Section 501.415, Code 2003, is amended to read as 14 20 follows: 14 21 501.415 COURT-ORDERED INDEMNIFICATION. 14 22 1.Unless a cooperative's articles of association provide14 23otherwise, aA directorof the cooperativewho is a party to a 14 24 proceeding because the person is a director may applyfor14 25indemnificationto the court conducting the proceeding or to 14 26 another court of competent jurisdiction for indemnification or 14 27 an advance for expenses.OnAfter receipt of an application, 14 28the courtand after giving any notice the court considers 14 29 necessarymay order, the court shall proceed according to the 14 30 following: 14 31 a. Order indemnification ifitthe court determineseither14 32of the following:that the 14 331. Thedirector is entitled to mandatory indemnification 14 34 under section 501.413, in which case the court shall also14 35order the cooperative to pay the director's reasonable15 1expenses incurred to obtain court-ordered indemnification. 15 22. The director is fairly and reasonably entitled to15 3indemnification in view of all the relevant circumstances,15 4whether or not the director met the standard of conduct set15 5forth in section 501.412 or was adjudged liable as described15 6in section 501.412, subsection 4, but if the director was15 7adjudged so liable the director's indemnification is limited15 8to reasonable expenses incurred.15 9 b. Order indemnification or advance for expenses if the 15 10 court determines that the director is entitled to 15 11 indemnification or advance for expenses pursuant to a 15 12 provision authorized by section 501.419, subsection 1. 15 13 c. Order indemnification or advance for expenses if the 15 14 court determines, in view of all the relevant circumstances, 15 15 that it is fair and reasonable to do one of the following: 15 16 (1) To indemnify the director. 15 17 (2) To advance expenses to the director, even if the 15 18 director has not met the relevant standard of conduct set 15 19 forth in section 501.412, subsection 1, failed to comply with 15 20 section 501.414, or was adjudged liable in a proceeding 15 21 referred to in subsection 501.412, subsection 4, paragraph "a" 15 22 or "b", but if the director was adjudged so liable the 15 23 director's indemnification shall be limited to reasonable 15 24 expenses incurred in connection with the proceeding. 15 25 2. If the court determines that the director is entitled 15 26 to indemnification under subsection 1, paragraph "a", or to 15 27 indemnification or advance for expenses under subsection 1, 15 28 paragraph "b", the court shall also order the cooperative to 15 29 pay the director's reasonable expenses incurred in connection 15 30 with obtaining court-ordered indemnification or advance for 15 31 expenses. If the court determines that the director is 15 32 entitled to indemnification or advance for expenses under 15 33 subsection 1, paragraph "c", the court may also order the 15 34 cooperative to pay the director's reasonable expenses to 15 35 obtain court-ordered indemnification or advance for expenses. 16 1 Sec. 21. Section 501.416, Code 2003, is amended to read as 16 2 follows: 16 3 501.416 DETERMINATION AND AUTHORIZATION OF 16 4 INDEMNIFICATION. 16 5 1. A cooperative shall not indemnify a director under 16 6 section 501.412 unless authorizedin thefor a specificcase16 7 proceeding after a determination has been made that 16 8 indemnification of the director is permissiblein the16 9circumstancesbecause the director has met the relevant 16 10 standard of conduct set forth in section 501.412. 16 11 2. The determination shall be made byanyone of the 16 12 following: 16 13 a.By the board of directors by majority vote of a quorum16 14consisting of directors not at the time parties to the16 15proceedingIf there are two or more disinterested directors, 16 16 by the board of directors by a majority vote of all the 16 17 disinterested directors, a majority of whom shall for such 16 18 purpose constitute a quorum, or by a majority of the members 16 19 of a committee of two or more disinterested directors 16 20 appointed by such a vote. 16 21b. If a quorum cannot be obtained under paragraph "a", by16 22majority vote of a committee duly designated by the board of16 23directors, in which designation directors who are parties may16 24participate, consisting solely of two or more directors not at16 25the time parties to the proceeding.16 26c.b. By special legal counsel. 16 27 (1) The special legal counsel shall be selectedby the16 28board of directors or its committeein the mannerprescribed16 29 described in paragraph "a"or "b". 16 30 (2) Ifa quorum of the board ofthere are fewer than two 16 31 disinterested directorscannot be obtained under paragraph "a"16 32and a committee cannot be designated under paragraph "b", the16 33 special legal counsel shall be selected bymajority vote of16 34 thefullboard of directors, in which selection directors who 16 35are partiesdo not qualify as disinterested directors may 17 1 participate. 17 2d.c. By the members, but voting interests owned by or 17 3 voted under the control ofdirectorsa director whoareat the 17 4 timeparties to the proceedingdoes not qualify as a 17 5 disinterested director shall not be voted on the 17 6 determination. 17 7 3. Authorization of indemnificationand evaluation as to17 8reasonableness of expensesshall be made in the same manner as 17 9 the determination that indemnification is permissible, except 17 10 that if there are fewer than two disinterested directors or if 17 11 the determination is made by special legal counsel, 17 12 authorization of indemnificationand evaluation as to17 13reasonableness of expensesshall be made by those entitled 17 14 under subsection 2, paragraph"c""b", to select special legal 17 15 counsel. 17 16 Sec. 22. Section 501.417, Code 2003, is amended to read as 17 17 follows: 17 18 501.417 INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND17 19AGENTS. 17 20Unless a cooperative's articles of association provide17 21otherwise, all of the following apply:17 221. An officer of the cooperative who is not a director is17 23entitled to mandatory indemnification under section 501.413,17 24and is entitled to apply for court-ordered indemnification17 25under section 501.415, in each case to the same extent as a17 26director.17 272.1.TheA cooperative may indemnify and advance expenses 17 28 under this part to an officer, employee, or agentof the 17 29 cooperative who isnot a director toa party to the proceeding 17 30 because the person is an officer, according to both of the 17 31 following: 17 32 a. To the same extent as to a director. 17 333.b.A cooperative may also indemnify and advance17 34expenses to an officer, employee, or agent who is not a17 35director to the extent consistent with law thatIf the person 18 1 is an officer but not a director, to such further extent as 18 2 may be provided byitsthe articles of association, the 18 3 bylaws,general or specific actiona resolution ofitsthe 18 4 board of directors, or contract, except for either of the 18 5 following: 18 6 (1) Liability in connection with a proceeding by or in the 18 7 right of the cooperative other than for reasonable expenses 18 8 incurred in connection with the proceeding. 18 9 (2) Liability arising out of conduct that constitutes any 18 10 of the following: 18 11 (a) Receipt by the officer of a financial benefit to which 18 12 the officer is not entitled. 18 13 (b) An intentional infliction of harm on the cooperative 18 14 or the interest holders. 18 15 (c) An intentional violation of criminal law. 18 16 2. The provisions of subsection 1, paragraph "b", shall 18 17 apply to an officer who is also a director if the basis on 18 18 which the officer is made a party to a proceeding is an act or 18 19 omission solely as an officer. 18 20 3. An officer of a cooperative who is not a director is 18 21 entitled to mandatory indemnification under section 501.413, 18 22 and may apply to a court under section 501.415 for 18 23 indemnification or an advance for expenses, in each case to 18 24 the same extent to which a director may be entitled to 18 25 indemnification or an advance for expenses under those 18 26 provisions. 18 27 Sec. 23. Section 501.418, Code 2003, is amended to read as 18 28 follows: 18 29 501.418 INSURANCE. 18 30 A cooperative may purchase and maintain insurance on behalf 18 31 of an individual who isor wasa director,or officer,18 32employee, or agentof the cooperative, or who, while a 18 33 director,or officer, employee, or agentof the cooperative,18 34is or was servingserves at therequest of the cooperative18 35 cooperative's request as a director, officer, partner, 19 1 trustee, employee, or agent of anotherforeign ordomestic or 19 2 foreign cooperative, corporation, partnership, joint venture, 19 3 trust, employee benefit plan, or otherenterpriseentity, 19 4 against liability asserted against or incurred by that 19 5 individual in that capacity or arising from the individual's 19 6 status as a director,or officer,employee, or agent,whether 19 7 or not the cooperative would have power to indemnify or 19 8 advance expenses to that individual against the same liability 19 9 undersection 501.412 or 501.413this part. 19 10 Sec. 24. Section 501.419, Code 2003, is amended to read as 19 11 follows: 19 12 501.419 VARIATION BY CORPORATE ACTION -- APPLICATION OF 19 13 THIS PART. 19 14Except as limited in section 501.412, subsection 4,19 15paragraph "a", and subsection 5 with respect to proceedings by19 16or in the right of the cooperative, the indemnification and19 17advancement of expenses provided by, or granted pursuant to,19 18sections 501.411 through 501.418 are not exclusive of any19 19other rights to which persons seeking indemnification or19 20advancement of expenses are entitled under a provision in the19 21articles of association or bylaws, agreements, vote of the19 22members or disinterested directors, or otherwise, both as to19 23action in a person's official capacity and as to action in19 24another capacity while holding the office. However, such19 25provisions, agreements, votes, or other actions shall not19 26provide indemnification for a breach of a director's duty of19 27loyalty to the cooperative or its interest holders, for acts19 28or omissions not in good faith or which involve intentional19 29misconduct or knowing violation of the law, or for a19 30transaction from which the person seeking indemnification19 31derives an improper personal benefit.19 32 1. A cooperative may, by a provision in its articles of 19 33 organization or bylaws or in a resolution adopted or a 19 34 contract approved by its board of directors or members, 19 35 obligate itself in advance of the act or omission giving rise 20 1 to a proceeding to provide indemnification in accordance with 20 2 section 501.412 or advance funds to pay for or reimburse 20 3 expenses in accordance with section 501.414. Any such 20 4 obligatory provision shall be deemed to satisfy the 20 5 requirements for authorization referred to in section 501.414, 20 6 subsection 3, and in section 501.416, subsection 3. Any such 20 7 provision that obligates the cooperative to provide 20 8 indemnification to the fullest extent permitted by law shall 20 9 be deemed to obligate the cooperative to advance funds to pay 20 10 for or reimburse expenses in accordance with section 501.414 20 11 to the fullest extent permitted by law, unless the provision 20 12 specifically provides otherwise. 20 13 2. Any provision pursuant to subsection 1 shall not 20 14 obligate the cooperative to indemnify or advance expenses to a 20 15 director of a predecessor of the cooperative, pertaining to 20 16 conduct with respect to the predecessor, unless otherwise 20 17 specifically provided. Any provision for indemnification or 20 18 advance for expenses in the articles of organization, bylaws, 20 19 or a resolution of the board of directors or members of a 20 20 predecessor of the cooperative in a merger or in a contract to 20 21 which the predecessor is a party, existing at the time the 20 22 merger takes effect, shall be governed by section 501.618, 20 23 subsection 3. 20 24 3. A cooperative may, by a provision in its articles of 20 25 organization, limit any of the rights to indemnification or 20 26 advance for expenses created by or pursuant to this part. 20 27 4. This part does not limit a cooperative's power to pay 20 28 or reimburse expenses incurred by a director or an officer in 20 29 connection with the director's or officer's appearance as a 20 30 witness in a proceeding at a time when the director or officer 20 31 is not a party. 20 32 5. This part does not limit a cooperative's power to 20 33 indemnify, advance expenses to, or provide or maintain 20 34 insurance on behalf of an employee or agent. 20 35 Sec. 25. NEW SECTION. 501.420 EXCLUSIVITY. 21 1 A cooperative may provide indemnification or advance 21 2 expenses to a director or an officer only as permitted by this 21 3 chapter. 21 4 21 5 21 6 21 7 MARY E. KRAMER 21 8 President of the Senate 21 9 21 10 21 11 21 12 CHRISTOPHER C. RANTS 21 13 Speaker of the House 21 14 21 15 I hereby certify that this bill originated in the Senate and 21 16 is known as Senate File 340, Eightieth General Assembly. 21 17 21 18 21 19 21 20 MICHAEL E. MARSHALL 21 21 Secretary of the Senate 21 22 Approved , 2003 21 23 21 24 21 25 21 26 THOMAS J. VILSACK 21 27 Governor
Text: SF00339 Text: SF00341 Text: SF00300 - SF00399 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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