| | | B. Order indemnification or an advance for expenses if the | | court determines that the director is entitled to | | indemnification or an advance for expenses pursuant to a | | provision authorized by section 859, subsection 1; or |
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| | | C. Order indemnification or an advance for expenses if the | | court determines, in view of all the relevant circumstances, | | that it is fair and reasonable: |
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| | | (1) To indemnify the director; or |
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| | | (2) To advance expenses to the director even if the | | director has not met the relevant standard of conduct | | set forth in section 852, subsection 1, failed to | | comply with section 854 or was adjudged liable in a | | proceeding referred to in section 852, subsection 4, | | paragraph A or B, but, if the director was adjudged so | | liable, the director's indemnification must be limited | | to reasonable expenses incurred in connection with the | | proceeding. |
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| | | 2. Entitlement to expenses. If the court determines that the | | director is entitled to indemnification under subsection 1, | | paragraph A or to indemnification or an advance for expenses | | under subsection 1, paragraph B, the court shall also order the | | corporation to pay the director's reasonable expenses incurred in | | connection with obtaining the court-ordered indemnification or | | advance for expenses. If the court determines that the director | | is entitled to indemnification or an advance for expenses under | | subsection 1, paragraph C, the court may also order the | corporation to pay the director's reasonable expenses to obtain | | incurred in connection with obtaining the court-ordered | | indemnification or advance for expenses. |
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| | | §856. Determination and authorization of indemnification |
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| | | 1. Prerequisites to indemnity. A corporation may not | | indemnify a director under section 852, subsection 1 unless | | authorized for a specific proceeding after a determination has | | been made that indemnification of the director is permissible | | because the director has met the relevant standard of conduct set | | forth in section 852. |
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| | | 2. Determination process. A determination under subsection 1 | | that indemnification is permissible must be made: |
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| | | A. If there are 2 or more disinterested directors, by the | | corporation's board of directors by a majority vote of all the | | disinterested directors, a majority of whom for this purpose | | constitutes a quorum, or by a majority of the |
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