South Dakota § 47-1A-851 - Permissible indemnification.

§ 47-1A-851. Permissible indemnification.

Except as otherwise provided in § 47-1A-851.1, a corporation may indemnify a director who is a party to a proceeding by reason of being a director, against liability incurred in the proceeding if the director:

(1)    Acted in good faith; and

(2)    Reasonably believed:

(a)    In the case of conduct in an official capacity, that the conduct was in the best interests of the corporation; and

(b)    In all other cases, that the conduct was at least not opposed to the best interests of the corporation; and

(3)    In the case of any criminal proceeding, had no reasonable cause to believe the conduct was unlawful.

A corporation may also, except as provided in § 47-1A-851.1, indemnify a director who is a party to a proceeding against liability incurred in the proceeding if the director engaged in conduct for which broader indemnification has been made permissible or obligatory under a provision of the articles of incorporation, as authorized by subdivision 47-1A-202.1(5).

A director's conduct with respect to an employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in, and the beneficiaries of, the plan is conduct that satisfies the requirement of subsection (2)(b).

The termination of a proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, is not, of itself, determinative that the director did not meet the relevant standard of conduct described in this section.

Source: SL 2005, ch 239, § 172.