N.Y. Not-for-Profit Corporation Law § 722: Authorization for indemnification of directors and officers

§ 722. Authorization for indemnification of directors and officers.

(a) A corporation may indemnify any person, made, or threatened to be

made, a party to an action or proceeding other than one by or in the

right of the corporation to procure a judgment in its favor, whether

civil or criminal, including an action by or in the right of any other

corporation of any kind, domestic or foreign, or any partnership, joint

venture, trust, employee benefit plan or other enterprise, which any

director or officer of the corporation served in any capacity at the

request of the corporation, by reason of the fact that he, his testator

or intestate, was a director or officer of the corporation, or served

such other corporation, partnership, joint venture, trust, employee

benefit plan or other enterprise in any capacity, against judgments,

fines, amounts paid in settlement and reasonable expenses, including

attorneys' fees actually and necessarily incurred as a result of such

action or proceeding, or any appeal therein, if such director or officer

acted, in good faith, for a purpose which he reasonably believed to be

in, or, in the case of service for any other corporation or any

partnership, joint venture, trust, employee benefit plan or other

enterprise, not opposed to, the best interests of the corporation and,

in criminal actions or proceedings, in addition, had no reasonable cause

to believe that his conduct was unlawful.

(b) The termination of any such civil or criminal action or proceeding

by judgment, settlement, conviction or upon a plea of nolo contendere,

or its equivalent, shall not in itself create a presumption that any

such director or officer did not act, in good faith, for a purpose which

he reasonably believed to be in, or, in the case of service for any

other corporation or any partnership, joint venture, trust, employee

benefit plan or other enterprise, not opposed to, the best interests of

the corporation or that he had reasonable cause to believe that his

conduct was unlawful.

(c) A corporation may indemnify any person made, or threatened to be

made, a party to an action by or in the right of the corporation to

procure a judgment in its favor by reason of the fact that he, his

testator or intestate, is or was a director or officer of the

corporation, or is or was serving at the request of the corporation as a

director or officer of any other corporation of any kind, domestic or

foreign, of any partnership, joint venture, trust, employee benefit plan

or other enterprise, against amounts paid in settlement and reasonable

expenses, including attorneys' fees, actually and necessarily incurred

by him in connection with the defense or settlement of such action, or

in connection with an appeal therein, if such director or officer acted,

in good faith, for a purpose which he reasonably believed to be in, or,

in the case of service for any other corporation or any partnership,

joint venture, trust, employee benefit plan or other enterprise, not

opposed to, the best interests of the corporation, except that no

indemnification under this paragraph shall be made in respect of (1) a

threatened action, or a pending action which is settled or otherwise

disposed of, or (2) any claim, issue or matter as to which such person

shall have been adjudged to be liable to the corporation, unless and

only to the extent that the court in which the action was brought, or,

if no action was brought, any court of competent jurisdiction,

determines upon application that, in view of all the circumstances of

the case, the person is fairly and reasonably entitled to indemnity for

such portion of the settlement amount and expenses as the court deems

proper.

(d) For the purpose of this section, a corporation shall be deemed to

have requested a person to serve an employee benefit plan where the

performance by such person of his duties to the corporation also imposes

duties on, or otherwise involves services by, such person to the plan or

participants or beneficiaries of the plan; excise taxes assessed on a

person with respect to an employee benefit plan pursuant to applicable

law shall be considered fines; and action taken or omitted by a person

with respect to an employee benefit plan in the performance of such

person's duties for a purpose reasonably believed by such person to be

in the interest of the participants and beneficiaries of the plan shall

be deemed to be for a purpose which is not opposed to the best interests

of the corporation.