(1) Unless limited by its bylaws, a nonprofit corporation shall indemnify a directorfn1 described in Subsection (2) against reasonable expenses incurred by the director in connection with the proceeding or claim with respect to which the director has been successful.
(2) Subsection (1) applies to a director who was successful, on the merits or otherwise, in the defense of:
(a) any proceeding to which the director was a party because the director is or was a director of the nonprofit corporation; or
(b) any claim, issue, or matter in the proceeding, to which the director was a party because the director is or was a director of the nonprofit corporation.
Amended by Chapter 228, 2006 General Session
Footnote 1: Officers Included. To the same extent as a director, an officer is entitled to:
(a) mandatory indemnification under Section 16-6a-903; and
(b) apply for court-ordered indemnification under Section 16-6a-905.
(Unless the articles of incorporation provide otherwise).
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.