Sen. A. J. Wilhelmi

Filed: 4/8/2011

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1127

2    AMENDMENT NO. ______. Amend Senate Bill 1127 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Business Corporation Act of 1983 is amended
5by changing Section 8.75 as follows:
 
6    (805 ILCS 5/8.75)  (from Ch. 32, par. 8.75)
7    Sec. 8.75. Indemnification of officers, directors,
8employees and agents; insurance.
9    (a) A corporation may indemnify any person who was or is a
10party, or is threatened to be made a party to any threatened,
11pending or completed action, suit or proceeding, whether civil,
12criminal, administrative or investigative (other than an
13action by or in the right of the corporation) by reason of the
14fact that he or she is or was a director, officer, employee or
15agent of the corporation, or who is or was serving at the
16request of the corporation as a director, officer, employee or

 

 

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1agent of another corporation, partnership, joint venture,
2trust or other enterprise, against expenses (including
3attorneys' fees), judgments, fines and amounts paid in
4settlement actually and reasonably incurred by such person in
5connection with such action, suit or proceeding, if such person
6acted in good faith and in a manner he or she reasonably
7believed to be in, or not opposed to the best interests of the
8corporation, and, with respect to any criminal action or
9proceeding, had no reasonable cause to believe his or her
10conduct was unlawful. The termination of any action, suit or
11proceeding by judgment, order, settlement, conviction, or upon
12a plea of nolo contendere or its equivalent, shall not, of
13itself, create a presumption that the person did not act in
14good faith and in a manner which he or she reasonably believed
15to be in or not opposed to the best interests of the
16corporation or, with respect to any criminal action or
17proceeding, that the person had reasonable cause to believe
18that his or her conduct was unlawful.
19    (b) A corporation may indemnify any person who was or is a
20party, or is threatened to be made a party to any threatened,
21pending or completed action or suit by or in the right of the
22corporation to procure a judgment in its favor by reason of the
23fact that such person is or was a director, officer, employee
24or agent of the corporation, or is or was serving at the
25request of the corporation as a director, officer, employee or
26agent of another corporation, partnership, joint venture,

 

 

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1trust or other enterprise, against expenses (including
2attorneys' fees) actually and reasonably incurred by such
3person in connection with the defense or settlement of such
4action or suit, if such person acted in good faith and in a
5manner he or she reasonably believed to be in, or not opposed
6to, the best interests of the corporation, provided that no
7indemnification shall be made with respect to any claim, issue,
8or matter as to which such person has been adjudged to have
9been liable to the corporation, unless, and only to the extent
10that the court in which such action or suit was brought shall
11determine upon application that, despite the adjudication of
12liability, but in view of all the circumstances of the case,
13such person is fairly and reasonably entitled to indemnity for
14such expenses as the court shall deem proper.
15    (c) To the extent that a present or former director,
16officer or employee of a corporation has been successful, on
17the merits or otherwise, in the defense of any action, suit or
18proceeding referred to in subsections (a) and (b), or in
19defense of any claim, issue or matter therein, such person
20shall be indemnified against expenses (including attorneys'
21fees) actually and reasonably incurred by such person in
22connection therewith, if the person acted in good faith and in
23a manner he or she reasonably believed to be in, or not opposed
24to, the best interests of the corporation.
25    (d) Any indemnification under subsections (a), and (b), or
26(c) (unless ordered by a court) shall be made by the

 

 

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1corporation only as authorized in the specific case, upon a
2determination that indemnification of the present or former
3director, officer, employee or agent is proper in the
4circumstances because he or she has met the applicable standard
5of conduct set forth in subsections (a), (b), or (c) (b). Such
6determination shall be made with respect to a person who is a
7director or officer of the corporation at the time of the
8determination: (1) by the majority vote of the directors who
9are not parties to such action, suit or proceeding, even though
10less than a quorum, (2) by a committee of such the directors
11who are not parties to such action, suit, or proceeding, even
12though less than a quorum, designated by a majority vote of
13such the directors, (3) if there are no such directors, or if
14such the directors so direct, by independent legal counsel in a
15written opinion, or (4) by the shareholders.
16    (e) Expenses (including attorney's fees) incurred by an
17officer or director of the corporation in defending a civil or
18criminal action, suit or proceeding may be paid by the
19corporation in advance of the final disposition of such action,
20suit or proceeding upon receipt of an undertaking by or on
21behalf of such the director or officer to repay such amount if
22it shall ultimately be determined that such person is not
23entitled to be indemnified by the corporation as authorized in
24this Section. Such expenses (including attorney's fees)
25incurred by former directors and officers or other employees
26and agents of the corporation or by persons serving at the

 

 

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1request of the corporation as directors, officers, employees or
2agents of another corporation, partnership, joint venture,
3trust or other enterprise may be so paid on such terms and
4conditions, if any, as the corporation deems appropriate.
5    (f) The indemnification and advancement of expenses
6provided by or granted under the other subsections of this
7Section shall not be deemed exclusive of any other rights to
8which those seeking indemnification or advancement of expenses
9may be entitled under any by-law, agreement, vote of
10shareholders or disinterested directors, or otherwise, both as
11to action in his or her official capacity and as to action in
12another capacity while holding such office. A right to
13indemnification or to advancement of expenses arising under a
14provision of the articles of incorporation or a by-law shall
15not be eliminated or impaired by an amendment to such provision
16after the occurrence of the act or omission that is the subject
17of the civil, criminal, administrative or investigative
18action, suit or proceeding for which indemnification or
19advancement of expenses is sought, unless the provision in
20effect at the time of such act or omission explicitly
21authorizes such elimination or impairment after such act or
22omission has occurred.
23    (g) A corporation may purchase and maintain insurance on
24behalf of any person who is or was a director, officer,
25employee or agent of the corporation, or who is or was serving
26at the request of the corporation as a director, officer,

 

 

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1employee or agent of another corporation, partnership, joint
2venture, trust or other enterprise, against any liability
3asserted against such person and incurred by such person in any
4such capacity, or arising out of his or her status as such,
5whether or not the corporation would have the power to
6indemnify such person against such liability under the
7provisions of this Section.
8    (h) If a corporation indemnifies or advances expenses to a
9director or officer under subsection (b) of this Section, the
10corporation shall report the indemnification or advance in
11writing to the shareholders with or before the notice of the
12next shareholders meeting.
13    (i) For purposes of this Section, references to "the
14corporation" shall include, in addition to the surviving
15corporation, any merging corporation (including any
16corporation having merged with a merging corporation) absorbed
17in a merger which, if its separate existence had continued,
18would have had the power and authority to indemnify its
19directors, officers, and employees or agents, so that any
20person who was a director, officer, employee or agent of such
21merging corporation, or was serving at the request of such
22merging corporation as a director, officer, employee or agent
23of another corporation, partnership, joint venture, trust or
24other enterprise, shall stand in the same position under the
25provisions of this Section with respect to the surviving
26corporation as such person would have with respect to such

 

 

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1merging corporation if its separate existence had continued.
2    (j) For purposes of this Section, references to "other
3enterprises" shall include employee benefit plans; references
4to "fines" shall include any excise taxes assessed on a person
5with respect to an employee benefit plan; and references to
6"serving at the request of the corporation" shall include any
7service as a director, officer, employee or agent of the
8corporation which imposes duties on, or involves services by
9such director, officer, employee, or agent with respect to an
10employee benefit plan, its participants, or beneficiaries. A
11person who acted in good faith and in a manner he or she
12reasonably believed to be in the best interests of the
13participants and beneficiaries of an employee benefit plan
14shall be deemed to have acted in a manner "not opposed to the
15best interest of the corporation" as referred to in this
16Section.
17    (k) The indemnification and advancement of expenses
18provided by or granted under this Section shall, unless
19otherwise provided when authorized or ratified, continue as to
20a person who has ceased to be a director, officer, employee, or
21agent and shall inure to the benefit of the heirs, executors,
22and administrators of that person.
23    (l) The changes to this Section made by this amendatory Act
24of the 92nd General Assembly apply only to actions commenced on
25or after the effective date of this amendatory Act of the 92nd
26General Assembly.

 

 

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1(Source: P.A. 94-889, eff. 1-1-07.)
 
2    Section 10. The General Not For Profit Corporation Act of
31986 is amended by changing Section 108.75 as follows:
 
4    (805 ILCS 105/108.75)  (from Ch. 32, par. 108.75)
5    Sec. 108.75. Indemnification of officers, directors,
6employees and agents; insurance.
7    (a) A corporation may indemnify any person who was or is a
8party, or is threatened to be made a party to any threatened,
9pending or completed action, suit or proceeding, whether civil,
10criminal, administrative or investigative (other than an
11action by or in the right of the corporation) by reason of the
12fact that he or she is or was a director, officer, employee or
13agent of the corporation, or who is or was serving at the
14request of the corporation as a director, officer, employee or
15agent of another corporation, partnership, joint venture,
16trust or other enterprise, against expenses (including
17attorneys' fees), judgments, fines and amounts paid in
18settlement actually and reasonably incurred by such person in
19connection with such action, suit or proceeding, if such person
20acted in good faith and in a manner he or she reasonably
21believed to be in, or not opposed to, the best interests of the
22corporation, and, with respect to any criminal action or
23proceeding, had no reasonable cause to believe his or her
24conduct was unlawful. The termination of any action, suit or

 

 

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1proceeding by judgment, order, settlement, conviction, or upon
2a plea of nolo contendere or its equivalent, shall not, of
3itself, create a presumption that the person did not act in
4good faith and in a manner which he or she reasonably believed
5to be in or not opposed to the best interests of the
6corporation or, with respect to any criminal action or
7proceeding, that the person had reasonable cause to believe
8that his or her conduct was unlawful.
9    (b) A corporation may indemnify any person who was or is a
10party, or is threatened to be made a party to any threatened,
11pending or completed action or suit by or in the right of the
12corporation to procure a judgment in its favor by reason of the
13fact that such person is or was a director, officer, employee
14or agent of the corporation, or is or was serving at the
15request of the corporation as a director, officer, employee or
16agent of another corporation, partnership, joint venture,
17trust or other enterprise, against expenses (including
18attorneys' fees) actually and reasonably incurred by such
19person in connection with the defense or settlement of such
20action or suit, if such person acted in good faith and in a
21manner he or she reasonably believed to be in, or not opposed
22to, the best interests of the corporation, provided that no
23indemnification shall be made in respect of any claim, issue or
24matter as to which such person shall have been adjudged to be
25liable for negligence or misconduct in the performance of his
26or her duty to the corporation, unless, and only to the extent

 

 

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1that the court in which such action or suit was brought shall
2determine upon application that, despite the adjudication of
3liability, but in view of all the circumstances of the case,
4such person is fairly and reasonably entitled to indemnity for
5such expenses as the court shall deem proper.
6    (c) To the extent that a present or former director,
7officer or employee of a corporation has been successful, on
8the merits or otherwise, in the defense of any action, suit or
9proceeding referred to in subsections (a) and (b), or in
10defense of any claim, issue or matter therein, such person
11shall be indemnified against expenses (including attorneys'
12fees) actually and reasonably incurred by such person in
13connection therewith, if that person acted in good faith and in
14a manner he or she reasonably believed to be in, or not opposed
15to, the best interests of the corporation.
16    (d) Any indemnification under subsections (a), and (b), or
17(c) (unless ordered by a court) shall be made by the
18corporation only as authorized in the specific case, upon a
19determination that indemnification of the present or former
20director, officer, employee or agent is proper in the
21circumstances because he or she has met the applicable standard
22of conduct set forth in subsections (a), (b), or (c) (b). Such
23determination shall be made with respect to a person who is a
24director or officer of the corporation at the time of the
25determination: (1) by the majority vote of the directors who
26are not parties to such action, suit or proceeding, even though

 

 

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1less than a quorum, (2) by a committee of such the directors
2designated by a majority vote of the directors, even though
3through less than a quorum, designated by a majority vote of
4such directors, (3) if there are no such directors, or if such
5the directors so direct, by independent legal counsel in a
6written opinion, or (4) by the members entitled to vote, if
7any.
8    (e) Expenses (including attorney's fees) incurred by an
9officer or director of the corporation in defending a civil or
10criminal action, suit or proceeding may be paid by the
11corporation in advance of the final disposition of such action,
12suit or proceeding, as authorized by the board of directors in
13the specific case, upon receipt of an undertaking by or on
14behalf of such the director or officer to repay such amount,
15unless it shall ultimately be determined that such person is
16entitled to be indemnified by the corporation as authorized in
17this Section. Such expenses (including attorney's fees)
18incurred by former directors and officers or other employees
19and agents of the corporation or by persons serving at the
20request of the corporation as directors, officers, employees or
21agents of another corporation, partnership, joint venture,
22trust or other enterprise may be so paid on such terms and
23conditions, if any, as the corporation deems appropriate.
24    (f) The indemnification and advancement of expenses
25provided by or granted under the other subsections of this the
26Section shall not be deemed exclusive of any other rights to

 

 

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1which those seeking indemnification or advancement of expenses
2may be entitled under any by-law bylaw, agreement, vote of
3members or disinterested directors, or otherwise, both as to
4action in his or her official capacity and as to action in
5another capacity while holding such office, and shall continue
6as to a person who has ceased to be a director, officer,
7employee or agent, and shall inure to the benefit of the heirs,
8executors and administrators of such a person. A right to
9indemnification or to advancement of expenses arising under a
10provision of the articles of incorporation or a by-law shall
11not be eliminated or impaired by an amendment to such provision
12after the occurrence of the act or omission that is the subject
13of the civil, criminal, administrative or investigative
14action, suit or proceeding for which indemnification or
15advancement of expenses is sought, unless the provision in
16effect at the time of such act or omission explicitly
17authorizes such elimination or impairment after such act or
18omission has occurred.
19    (g) A corporation may purchase and maintain insurance on
20behalf of any person who is or was a director, officer,
21employee or agent of the corporation, or who is or was serving
22at the request of the corporation as a director, officer,
23employee or agent of another corporation, partnership, joint
24venture, trust or other enterprise, against any liability
25asserted against such person and incurred by such person in any
26such capacity, or arising out of his or her status as such,

 

 

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1whether or not the corporation would have the power to
2indemnify such person against such liability under the
3provisions of this Section.
4    (h) In the case of a corporation with members entitled to
5vote, if a corporation indemnifies or advances expenses under
6subsection (b) of this Section to a director or officer, the
7corporation shall report the indemnification or advance in
8writing to the members entitled to vote with or before the
9notice of the next meeting of the members entitled to vote.
10    (i) For purposes of this Section, references to "the
11corporation" shall include, in addition to the surviving
12corporation, any merging corporation (including any
13corporation having merged with a merging corporation) absorbed
14in a merger which, if its separate existence had continued,
15would have had the power and authority to indemnify its
16directors, officers, employees or agents, so that any person
17who was a director, officer, employee or agent of such merging
18corporation, or was serving at the request of such merging
19corporation as a director, officer, employee or agent of
20another corporation, partnership, joint venture, trust or
21other enterprise, shall stand in the same position under the
22provisions of this Section with respect to the surviving
23corporation as such person would have with respect to such
24merging corporation if its separate existence had continued.
25    (j) For purposes of this Section, references to "other
26enterprises" shall include employee benefit plans; references

 

 

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1to "fines" shall include any excise taxes assessed on a person
2with respect to an employee benefit plan; and references to
3"serving at the request of the corporation" shall include any
4service as a director, officer, employee or agent of the
5corporation which imposes duties on, or involves services by
6such director, officer, employee, or agent with respect to an
7employee benefit plan, its participants, or beneficiaries. A
8person who acted in good faith and in a manner he or she
9reasonably believed to be in the best interests of the
10participants and beneficiaries of an employee benefit plan
11shall be deemed to have acted in a manner "not opposed to the
12best interests of the corporation" as referred to in this
13Section.
14    (k) The indemnification and advancement of expenses
15provided by or granted under this Section shall, unless
16otherwise provided when authorized or ratified, continue as to
17a person who has ceased to be a director, officer, employee, or
18agent and shall inure to the benefit of the heirs, executors
19and administrators of that person.
20    (l) (k) The changes to this Section made by this amendatory
21Act of the 92nd General Assembly apply only to actions
22commenced on or after the effective date of this amendatory Act
23of the 92nd General Assembly.
24(Source: P.A. 92-33, eff. 7-1-01.)"; and
 
25    Section 99. Effective date. This Act takes effect upon

 

 

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1becoming law.".