(1) Except as provided in Subsection (4), a nonprofit corporation may indemnify an individual made a party to a proceeding because the individual is or was a directorfn1, against liability incurred in the proceeding if:
(a) the individual's conduct was in good faith;
(b) the individual reasonably believed that the individual's conduct was in, or not opposed to, the corporation's best interests; and
(c) in the case of any criminal proceeding, the individual had no reasonable cause to believe the individual's conduct was unlawful.
(2) A director's conduct with respect to any employee benefit plan for a purpose the director reasonably believed to be in or not opposed to the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of Subsection (1)(b).
(3) The termination of a proceeding by judgment, order, settlement, 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 section.
(4) A nonprofit corporation may not indemnify a director under this section:
(a) in connection with a proceeding by or in the right of the nonprofit corporation in which the director was adjudged liable to the nonprofit corporation; or
(b) in connection with any other proceeding charging that the director derived an improper personal benefit, whether or not involving action in the director's official capacity, in which proceeding the director was adjudged liable on the basis that the director derived an improper personal benefit.
(5) Indemnification permitted under this section in connection with a proceeding by or in the right of the nonprofit corporation is limited to reasonable expenses incurred in connection with the proceeding.
Enacted by Chapter 300, 2000 General Session
Footnote 1: Officers, Employees, Agents Included. Unless the articles of incorporation provide otherwise, a nonprofit corporation may indemnify and advance expenses to an officer, employee, fiduciary, or agent of the nonprofit corporation to the same extent as to a director; and if the individual is not a director, to a greater extent if not inconsistent with public policy, and provided for by: (i) its articles of incorporation or bylaws; (ii) general or specific action of its board of directors; or (iii) contract.
See Section 16-6a-907.
Comment 1: Indemnification Provisions - See Also. Regarding provisions for indemnification and limitations on liability of board members, see also the following sections in the Condo Act and Community Association Act authorizing the association's rules to provide for indemnification of board members, and authorizing any of the documents related to the formation or operation of the nonprofit corporation to provide for liability limitation, as well as indemnification:
- Utah Code Sections 57-8-8.1(5)(d) and 57-8a-218(13)(d) (2018) ("(13) Unless otherwise provided in the declaration, an association may by rule: . . . (d) provide for the indemnification of the association’s officers and board consistent with Title 16, Chapter 6a, Utah Revised Nonprofit Corporation Act." 57-8a-218(13)(d)).
- Utah Code Sections 57-8-40(4) and 57-8a-228(4) (2018) ("Notwithstanding any conflict with the declaration or any recorded bylaws, the organizational documents of a nonprofit corporation or other entity formed in accordance with Subsection (2) may include an additional indemnification and liability limitation provision for: (a) board members or officers; or (b) similar in a position of control." 57-8a-228(4)).
Comment 2: Liability. What liability do directors and officers have under the law? None, if they act with what is commonly called "business judgment," which is carrying out of the director's duties:
(1) in good faith,
(2) with care an ordinarily prudent person in a like position would exercise under similar circumstances, and
(3) in a manner the director reasonably believes to be in the best interests of the corporation.
The law states that a director or officer is not liable to the nonprofit corporation or its members for any action taken, or any failure to take any action, as an officer or director, as the case may be, unless:
(1) the director or officer has breached or failed to perform the duties of the office:
(a) in good faith,
(b) with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and
(c) in a manner the director reasonably believes to be in the best interests of the corporation, and
(2) the breach or failure to perform constitutes:
(a) willful misconduct; or
(b) intentional infliction of harm on the nonprofit corporation or the members; or
(c) gross negligence.
(See Utah Code Subsections 16-6a-822(2) and (6)).
A director who relies on counsel of an attorney may be entitled to a stronger presumption that the director acted with "business judgment," and thus that the director is entitled to liability protection. See Utah Code Subsections 16-6a-822(3).
For indemnification of directors and advance of defense expenses of directors, see Sections 16-6a-901 through 910.