BILL NUMBER: AB 2668	INTRODUCED
	BILL TEXT


INTRODUCED BY   Committee on Banking and Finance (Assembly Members
Eng (Chair), Achadjian (Vice Chair), Fletcher, Fuentes, Gatto, Roger
Hernández, Morrell, and Torres)

                        MARCH 5, 2012

   An act to amend Sections 5238, 7237, 9246, and 12377 of the
Corporations Code, relating to corporate agents.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2668, as introduced, Committee on Banking and Finance.
Corporate agents: indemnification.
   Existing law authorizes a nonprofit public benefit corporation,
mutual benefit corporation, religious corporation, and consumer
cooperative corporation to indemnify its agents, as defined, in
proceedings, as defined. Existing law provides that the authority of
those corporations to so indemnify their agents does not apply to any
proceeding against any trustee, investment manager or other
fiduciary of an employee benefit plan. Existing law authorizes all
corporations, and the corporations described above specifically, to
indemnify and purchase and maintain insurance on behalf of a
fiduciary of specified employee benefit plans, trusts, or provisions
for directors, officers, employees, and persons providing services to
the corporation or its affiliates.
   This bill would apply the above provisions, instead, to a
fiduciary of a pension, deferred compensation, saving, thrift or
other retirement, incentive or benefit plan, trust or provision for
any or all of the corporation's directors, officers, employees, and
persons providing services to the corporation or any of its
subsidiary or related or affiliated corporations. The bill would
provide cross-references, as specified.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 5238 of the Corporations Code is amended to
read:
   5238.  (a) For the purposes of this section, "agent" means any
person who is or was a director, officer, employee or other agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director, officer, employee or agent of a
foreign or domestic corporation  which   that
 was a predecessor corporation of the corporation or of another
enterprise at the request of  such   the 
predecessor corporation; "proceeding" means any threatened, pending
or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes without
limitation attorneys' fees and any expenses of establishing a right
to indemnification under subdivision (d) or paragraph (3) of
subdivision (e).
   (b) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any proceeding
(other than an action by or in the right of the corporation to
procure a judgment in its favor, an action brought under Section
5233, or an action brought by the Attorney General or a person
granted relator status by the Attorney General for any breach of duty
relating to assets held in charitable trust) by reason of the fact
that  such   the  person is or was an agent
of the corporation, against expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with
 such   the  proceeding if  such
  the  person acted in good faith and in a manner
 such   the  person reasonably believed to
be in the best interests of the corporation and, in the case of a
criminal proceeding, had no reasonable cause to believe the conduct
of  such   the  person was unlawful. The
termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person did not act in
good faith and in a manner which the person reasonably believed to be
in the best interests of the corporation or that the person had
reasonable cause to believe that the person's conduct was unlawful.
   (c) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action by or in the right of the corporation,
or brought under Section 5233, or brought by the Attorney General or
a person granted relator status by the Attorney General for breach of
duty relating to assets held in charitable trust, to procure a
judgment in its favor by reason of the fact that  such
  the  person is or was an agent of the
corporation, against expenses actually and reasonably incurred by
 such   the  person in connection with the
defense or settlement of  such   the 
action if  such   the  person acted in good
faith, in a manner  such   the  person
believed to be in the best interests of the corporation and with such
care, including reasonable inquiry, as an ordinarily prudent person
in a like position would use under similar circumstances. No
indemnification shall be made under this subdivision:
   (1) In respect of any claim, issue or matter as to which 
such   the  person shall have been adjudged to be
liable to the corporation in the performance of  such
  the  person's duty to the corporation, unless and
only to the extent that the court in which  such 
 the  proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case,
 such   the  person is fairly and
reasonably entitled to indemnity for the expenses which  such
  the  court shall determine;
   (2) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
   (3) Of expenses incurred in defending a threatened or pending
action which is settled or otherwise disposed of without court
approval unless it is settled with the approval of the Attorney
General.
   (d) To the extent that an agent of a corporation has been
successful on the merits in defense of any proceeding referred to in
subdivision (b) or (c) or in defense of any claim, issue or matter
therein, the agent shall be indemnified against expenses actually and
reasonably incurred by the agent in connection therewith.
   (e) Except as provided in subdivision (d), any indemnification
under this section shall be made by the corporation only if
authorized in the specific case, upon a determination that
indemnification of the agent is proper in the circumstances because
the agent has met the applicable standard of conduct set forth in
subdivision (b) or (c), by:
   (1) A majority vote of a quorum consisting of directors who are
not parties to  such   the  proceeding;
   (2) Approval of the members (Section 5034), with the persons to be
indemnified not being entitled to vote thereon; or
   (3) The court in which  such   the 
proceeding is or was pending upon application made by the corporation
or the agent or the attorney or other person rendering services in
connection with the defense, whether or not  such 
 the  application by the agent, attorney  ,  or
other person is opposed by the corporation.
   (f) Expenses incurred in defending any proceeding may be advanced
by the corporation prior to the final disposition of  such
  the  proceeding upon receipt of an undertaking by
or on behalf of the agent to repay  such   the
 amount unless it shall be determined ultimately that the agent
is entitled to be indemnified as authorized in this section. The
provisions of subdivision (a) of Section 5236 do not apply to
advances made pursuant to this subdivision.
   (g) No provision made by a corporation to indemnify its or its
subsidiary's directors or officers for the defense of any proceeding,
whether contained in the articles, bylaws, a resolution of members
or directors, an agreement or otherwise, shall be valid unless
consistent with this section. Nothing contained in this section shall
affect any right to indemnification to which persons other than
 such   the  directors and officers may be
entitled by contract or otherwise.
   (h) No indemnification or advance shall be made under this
section, except as provided in subdivision (d) or paragraph (3) of
subdivision (e), in any circumstance where it appears:
   (1) That it would be inconsistent with a provision of the
articles, bylaws, a resolution of the members or an agreement in
effect at the time of the accrual of the alleged cause of action
asserted in the proceeding in which the expenses were incurred or
other amounts were paid, which prohibits or otherwise limits
indemnification; or
   (2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
   (i) A corporation shall have power to purchase and maintain
insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in such capacity
or arising out of the agent's status as such whether or not the
corporation would have the power to indemnify the agent against
 such   that  liability under the
provisions of this section; provided, however, that a corporation
shall have no power to purchase and maintain  such 
 that  insurance to indemnify any agent of the corporation
for a violation of Section 5233.
   (j) This section does not apply to any proceeding against any
trustee, investment manager  ,  or other fiduciary of
 an employee benefit plan   a pension, deferred
compensation, saving, thrift, or other retirement, incentive, 
 or benefit plan, trust, or provision for any or all of the
corporation's directors, officers, employees, and persons providing
services to the corporation or any of its subsidiary or related or
affiliated corporations,  in  such   that
 person's capacity as such, even though  such 
 the  person may also be an agent as defined in subdivision
(a) of the employer corporation. A corporation shall have power to
indemnify  such   the  trustee, investment
manager or other fiduciary to the extent permitted by subdivision (f)
of Section  207  5140  .
  SEC. 2.  Section 7237 of the Corporations Code is amended to read:
   7237.  (a) For the purposes of this section, "agent" means any
person who is or was a director, officer, employee or other agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director, officer, employee or agent of a
foreign or domestic corporation  which   that
 was a predecessor corporation of the corporation or of another
enterprise at the request of  such   the 
predecessor corporation; "proceeding" means any threatened, pending
or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes without
limitation attorneys' fees and any expenses of establishing a right
to indemnification under subdivision (d) or paragraph (3) of
subdivision (e).
   (b) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any proceeding
(other than an action by or in the right of the corporation to
procure a judgment in its favor, an action brought under Section 5233
of Part 2 (commencing with Section 5110) made applicable pursuant to
Section 7238, or an action brought by the Attorney General or a
person granted relator status by the Attorney General for any breach
of duty relating to assets held in charitable trust) by reason of the
fact that  such     the  person
is or was an agent of the corporation, against expenses, judgments,
fines, settlements and other amounts actually and reasonably incurred
in connection with  such   the  proceeding
if  such   the  person acted in good faith
and in a manner  such   the  person
reasonably believed to be in the best interests of the corporation
and, in the case of a criminal proceeding, had no reasonable cause to
believe the conduct of  such   the  person
was unlawful. The termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which the person
reasonably believed to be in the best interests of the corporation or
that the person had reasonable cause to believe that the person's
conduct was unlawful.
   (c) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action by or in the right of the corporation,
or brought under Section 5233 of Part 2 (commencing with Section
5110) made applicable pursuant to Section 7238, or brought by the
Attorney General or a person granted relator status by the Attorney
General for breach of duty relating to assets held in charitable
trust, to procure a judgment in its favor by reason of the fact that
 such   the  person is or was an agent of
the corporation, against expenses actually and reasonably incurred by
 such   the  person in connection with the
defense or settlement of  such   the 
action if  such   the  person acted in good
faith, in a manner  such     the 
person believed to be in the best interests of the corporation and
with such care, including reasonable inquiry, as an ordinarily
prudent person in a like position would use under similar
circumstances. No indemnification shall be made under this
subdivision:
   (1) In respect of any claim, issue or matter as to which 
such   the  person shall have been adjudged to be
liable to the corporation in the performance of  such
  the  person's duty to the corporation, unless and
only to the extent that the court in which  such 
 the  proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case,
 such     the  person is fairly
and reasonably entitled to indemnity for the expenses which 
such  the  court shall determine;
   (2) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
   (3) Of expenses incurred in defending a threatened or pending
action  which  that  is settled or
otherwise disposed of without court approval unless  such
  t   he  action concerns assets held in
charitable trust and is settled with the approval of the Attorney
General.
   (d) To the extent that an agent of a corporation has been
successful on the merits in defense of any proceeding referred to in
subdivision (b) or (c) or in defense of any claim, issue or matter
therein, the agent shall be indemnified against expenses actually and
reasonably incurred by the agent in connection therewith.
   (e) Except as provided in subdivision (d), any indemnification
under this section shall be made by the corporation only if
authorized in the specific case, upon a determination that
indemnification of the agent is proper in the circumstances because
the agent has met the applicable standard of conduct set forth in
subdivision (b) or (c), by:
   (1) A majority vote of a quorum consisting of directors who are
not parties to  such   the  proceeding;
   (2) Approval of the members (Section 5034), with the persons to be
indemnified not being entitled to vote thereon; or
   (3) The court in which  such   the 
proceeding is or was pending upon application made by the corporation
or the agent or the attorney or other person rendering services in
connection with the defense, whether or not  such 
 the  application by the agent, attorney or other person is
opposed by the corporation.
   (f) Expenses incurred in defending any proceeding may be advanced
by the corporation prior to the final disposition of  such
  the  proceeding upon receipt of an undertaking by
or on behalf of the agent to repay  such   the
 amount unless it shall be determined ultimately that the agent
is entitled to be indemnified as authorized in this section. The
provisions of subdivision (a) of Section 7235 do not apply to
advances made pursuant to this subdivision.
   (g) No provision made by a corporation to indemnify its or its
subsidiary's directors or officers for the defense of any proceeding,
whether contained in the articles, bylaws, a resolution of members
or directors, an agreement or otherwise, shall be valid unless
consistent with this section. Nothing contained in this section shall
affect any right to indemnification to which persons other than
 such   the  directors and officers may be
entitled by contract or otherwise.
   (h) No indemnification or advance shall be made under this
section, except as provided in subdivision (d) or paragraph (3) of
subdivision (e), in any circumstance where it appears:
   (1) That it would be inconsistent with a provision of the
articles, bylaws, a resolution of the members or an agreement in
effect at the time of the accrual of the alleged cause of action
asserted in the proceeding in which the expenses were incurred or
other amounts were paid, which prohibits or otherwise limits
indemnification; or
   (2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
   (i) A corporation shall have power to purchase and maintain
insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in  such
  that  capacity or arising out of the agent's
status as such whether or not the corporation would have the power to
indemnify the agent against  such   that 
liability under the provisions of this section.
   (j) This section does not apply to any proceeding against any
trustee, investment manager  ,  or other fiduciary of
 an employee benefit plan   a pension, deferred
compensation, saving, thrift, or other retirement, incentive, or
benefit plan, trust, or   provision for any or all of the
corporation's directors, officers, employees, and persons providing
services to the corporation or any of its subsidiary or related or
affiliated corporations,  in  such  that
 person's capacity as such, even though  such 
 the  person may also be an agent as defined in subdivision
(a) of the employer corporation. A corporation shall have power to
indemnify  such   the  trustee, investment
manager or other fiduciary to the extent permitted by subdivision
 (f)   (e)  of Section  207
  7140  .
  SEC. 3.  Section 9246 of the Corporations Code is amended to read:
   9246.  (a) For the purposes of this section, "agent" means any
person who is or was a director, officer, employee or other agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
or other enterprise, or was a director, officer, employee, or agent
of a foreign or domestic corporation which was a predecessor
corporation of the corporation or of another enterprise at the
request of  such precedessor   that predecessor
 corporation; "proceeding" means any threatened, pending, or
completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes without
limitation attorneys' fees and any expenses of establishing a right
to indemnification under subdivision (d) or paragraph (3) of
subdivision (e).
   (b) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any proceeding
(other than an action by or in the right of the corporation to
procure a judgment in its favor, an action brought under Section
9243, or an action brought by the Attorney General pursuant to
Section 9230) by reason of the fact that  such  
the  person is or was an agent of the corporation, against
expenses, judgments, fines, settlements and other amounts actually
and reasonably incurred in connection with  such 
 the  proceeding if  such   the 
person acted in good faith and in a manner  such 
 the  person believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of  such 
 the  person was unlawful. The termination of any proceeding
by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which the person believed to be in the best interests of the
corporation or that the person had reasonable cause to believe that
the person's conduct was unlawful.
   (c) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action by or in the right of the corporation,
or brought under Section 9243, or brought by the Attorney General
pursuant to Section 9230, to procure a judgment in its favor by
reason of the fact that  such   the  person
is or was an agent of the corporation, against expenses actually and
reasonably incurred by  such   the  person
in connection with the defense or settlement of  such
  the  action if the person acted in good faith, in
a manner in which  such   the  person
believed to be in the best interests of the corporation and with
 such   that  care, including reasonable
inquiry, as an ordinary prudent person in a like position would use
under similar circumstances. No  idemnification 
 indemnification  shall be made under this subdivision:
   (1) In respect of any claim, issue, or matter as to which 
such   the  person shall have been adjudged to be
liable to the corporation in the performance of  such
  the  person's duty to the corporation, unless and
only to the extent that the court in which  such 
 the  proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case,
 such   the  person is fairly and
reasonably entitled to indemnity for the expenses which  such
  the  court shall determine;
   (2) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
   (3) Of expenses incurred in defending a threatened or pending
action which is settled or otherwise disposed of without court
approval unless it is settled with the approval of the Attorney
General.
   (d) To the extent that an agent of a corporation has been
successful on the merits in defense of any proceeding referred to in
subdivision (b) or (c) or in defense of any claim, issue or matter
therein, the agent shall be indemnified against expenses actually and
reasonably incurred by the agent in connection therewith.
   (e) Except as provided in subdivision (d), any indemnification
under this section shall be made by the corporation only if
authorized in the specific case, upon a determination that
indemnification of the agent is proper in the circumstances because
the agent has met the applicable standard of conduct set forth in
either subdivision (b) or (c) by:
   (1) A majority vote of a quorum consisting of directors who are
not parties to  such   the  proceeding;
   (2) Approval of the members (Section 5034), with the persons to be
indemnified not being entitled to vote thereon; or
   (3) The court in which  such  the 
proceeding is or was pending upon application made by the corporation
or the agent or the attorney or other person rendering services in
connection with the defense, whether or not  such 
 the  application by the agent, attorney ,  or
other person is opposed by the corporation.
   (f) Expenses incurred in defending any proceeding may be advanced
by the corporation prior to the final disposition of  such
  the  proceeding upon receipt of an undertaking by
or on behalf of the agent to repay  such   the
 amount unless it shall be determined ultimately that the agent
is entitled to be indemnified as authorized in this section.
   (g) No provision made by a corporation to indemnify its or its
 susidiary's   subsidiary's  directors or
officers for the defense of any proceeding, whether contained in the
articles, bylaws, a resolution of members or directors, an agreement
or otherwise, shall be valid unless consistent with this section.
Nothing contained in this section shall affect any right to
indemnification to which persons other than  such 
 the  directors and officers may be entitled by contract or
otherwise.
   (h) No indemnification or advance shall be made under this
section, except as provided in subdivision (d) or paragraph (3) of
subdivision (e), in any circumstance where it appears that:
   (1) It would be inconsistent with a provision of the articles,
bylaws, a resolution of the members or an agreement in effect at the
time of the accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or other amounts were
paid, which prohibits or otherwise limits indemnification; or
   (2) It would be inconsistent with any condition expressly imposed
by a court in approving a settlement.
   (i) A corporation shall have power to purchase and maintain
insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in  such
  that  capacity or arising out of the agent's
status as such whether or not the corporation would have the power to
indemnify the agent against  such   that 
liability under the provisions of this section; provided, however,
that a corporation shall have no power to purchase and maintain
 such  insurance to indemnify any agent of the
corporation for a violation of Section 9243.
   (j) This section does not apply to any proceeding against any
trustee, investment manager  ,  or other fiduciary of
 an employee benefit plan   a pension, deferred
compensation, saving, thrift, or other retirement, incentive, or
benefit plan, trust, or provision for any or all of the corporation's
directors, officers, employees, and   persons providing
services to the corporation or any of its subsidiary or related or
affiliated corporations,  in  such   the
 person's capacity as such, even though  such 
 the  person may also be an agent as defined in subdivision
(a) of the employer corporation. A corporation shall have power to
indemnify  such   the  trustee, investment
manager or other fiduciary to the extent permitted by subdivision (f)
of Section  207   9140  .
  SEC. 4.  Section 12377 of the Corporations Code is amended to read:

   12377.  (a) For the purposes of this section, "agent" means any
person who is or was a director, officer, employee or other agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation
of the corporation or of another enterprise at the request of
 such   the  predecessor corporation;
"proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative;
and "expenses" includes without limitation attorneys' fees and any
expenses of establishing a right to indemnification under subdivision
(d) or paragraph (3) of subdivision (e).
   (b) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any proceeding
(other than an action by or in the right of the corporation to
procure a judgment in its favor) by reason of the fact that 
such   the  person is or was an agent of the
corporation, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with
 such   the  proceeding if  such
  the  person acted in good faith and in a manner
 such   the  person reasonably believed to
be in the best interests of the corporation and, in the case of a
criminal proceeding, had no reasonable cause to believe the conduct
of  such   the  person was unlawful. The
termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person did not act in
good faith and in a manner  which   that 
the person
reasonably believed to be in the best interests of the corporation or
that the person had reasonable cause to believe that the person's
conduct was unlawful.
   (c) A corporation shall have power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action by or in the right of the corporation,
to procure a judgment in its favor by reason of the fact that
 such   the  person is or was an agent of
the corporation, against expenses actually and reasonably incurred by
 such   the  person in connection with the
defense or settlement of  such   the 
action if  such   the  person acted in good
faith, in a manner  such   the  person
believed to be in the best interests of the corporation and with
 such   that  care, including reasonable
inquiry, as an ordinarily prudent person in a like position would use
under similar circumstances. No indemnification shall be made under
this subdivision:
   (1) In respect of any claim, issue or matter as to which
such   the  person shall have been adjudged to be
liable to the corporation in the performance of  such
  the  person's duty to the corporation, unless and
only to the extent that the court in which  such 
 the  proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case,
 such   the  person is fairly and
reasonably entitled to indemnity for the expenses which  such
  the  court shall determine;
   (2) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
   (3) Of expenses incurred in defending a threatened or pending
action which is settled or otherwise disposed of without court
approval.
   (d) To the extent that an agent of a corporation has been
successful on the merits in defense of any proceeding referred to in
subdivision (b) or (c) or in defense of any claim, issue, or matter
therein, the agent shall be indemnified against expenses actually and
reasonably incurred by the agent in connection therewith.
   (e) Except as provided in subdivision (d), any indemnification
under this section shall be made by the corporation only if
authorized in the specific case, upon a determination that
indemnification of the agent is proper in the circumstances because
the agent has met the applicable standard of conduct set forth in
subdivision (b) or (c), by:
   (1) A majority vote of a quorum consisting of directors who are
not parties to  such   the  proceeding;
   (2) Approval of the members (Section 12224), with the persons to
be indemnified not being entitled to vote thereon; or
   (3) The court in which  such   the 
proceeding is or was pending upon application made by the corporation
or the agent or the attorney or other person rendering services in
connection with the defense, whether or not  such 
 the  application by the agent, attorney or other person is
opposed by the corporation.
   (f) Expenses incurred in defending any proceeding may be advanced
by the corporation prior to the final disposition of  such
  the  proceeding upon receipt of an undertaking by
or on behalf of the agent to repay  such   the
 amount unless it shall be determined ultimately that the agent
is entitled to be indemnified as authorized in this section.
   (g) No provision made by a corporation to indemnify its or its
subsidiary's directors or officers for the defense of any proceeding,
whether contained in the articles, bylaws, a resolution of members
or directors, an agreement or otherwise, shall be valid unless
consistent with this section. Nothing contained in this section shall
affect any right to indemnification to which persons other than
 such   the  directors and officers may be
entitled by contract or otherwise.
   (h) No indemnification or advance shall be made under this
section, except as provided in subdivision (d) or paragraph (3) of
subdivision (e), in any circumstance where it appears:
   (1) That it would be inconsistent with a provision of the
articles, bylaws, a resolution of the members or an agreement in
effect at the time of the accrual of the alleged cause of action
asserted in the proceeding in which the expenses were incurred or
other amounts were paid, which prohibits or otherwise limits
indemnification; or
   (2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
   (i) A corporation shall have power to purchase and maintain
insurance on behalf of any agent of the corporation against any
liability asserted against or incurred by the agent in  such
  that  capacity or arising out of the agent's
status as such whether or not the corporation would have the power to
indemnify the agent against  such   that 
liability under the provisions of this section.
   (j) This section does not apply to any proceeding against any
trustee, investment manager  ,  or other fiduciary of
 an employee benefit plan   a pension, deferred
compensation, saving, thrift, or other retirement, incentive, or
benefit plan, trust, or provision for any or all of the corporation's
directors, officers, employees, and persons providing services to
the corporation or any of its subsidiary or related or affiliated
corporations,  in  such   the  person'
s capacity as such, even though  such   the
 person may also be an agent as defined in subdivision (a) of
the employer corporation. A corporation shall have power to indemnify
 such   the  trustee, investment manager
or other fiduciary to the extent permitted by subdivision 
(f)   (e)  of Section  207  
12320  .