Town of Henlopen Acres, DE
Sussex County
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[HISTORY: Adopted by the Commissioners of the Town of Henlopen Acres at time of adoption of Code (see Ch. 1, General Provisions, Art. I). Amendments noted where applicable.]
The Town of Henlopen Acres shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Town), by reason of the fact that he is or was a Commissioner, officer or employee of the Town or is or was serving at the request of the Town or the Commissioners of Henlopen Acres as a Commissioner, officer or employee of the Town against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Town, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contenders or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Town, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
The Town shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Town to procure a judgment in its favor by reason of the fact that he is or was a Commissioner, officer or employee of the Town or is or was serving at the request of the Town or the Commissioners of Henlopen Acres as a Commissioner, officer or employee of the Town, against expenses (including attorney's fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith or in a manner he reasonably believed to be in or not opposed to the best interest of the Town except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Town unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
To the extent that such Commissioner, officer or employee has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in §§ 13-1 and 13-2, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorney's fees) actually and reasonably incurred by him in connection therewith.
Any indemnification under §§ 13-1 and 13-2 of this chapter (unless ordered by a court) shall be made by the Town only as authorized in the specific case upon a determination that indemnification of the Commissioner, officer or employee is proper in the circumstances because he has met the applicable standard of conduct set forth therein. Such determination shall be made:
A. 
By the Commissioners by a majority vote of a quorum consisting of Commissioners who were not parties to such action, suit or proceeding; or
B. 
If such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested Commissioners so directs, by independent legal counsel in a written opinion; or
C. 
By the members.
Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Town in advance of the final disposition of such action, suit or proceeding as authorized by the Commissioners in the specific case upon receipt of an undertaking by or on behalf of the Commissioner, officer or employee, to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Town as authorized by this chapter.
The indemnification provided in this chapter shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of members or disinterested Commissioners or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a Commissioner, officer or employee, and shall inure to the benefit of the heirs, executors and administrators or such a person.
The Town, when authorized by the Commissioners, shall purchase and maintain insurance on behalf of any person who is or was a Commissioner, officer, employee or agent of the Town, against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the Town would have the power to indemnify him against such liability under the provisions of this chapter.
Neither a Commissioner nor an officer of the Town shall be liable to the Town or its policyholders for monetary damages for breach of fiduciary duty as a Commissioner or as an officer, except to the extent such exemption from liability or limitation thereof is not permitted under the laws of the State of Delaware as the same exists or may hereafter be amended. Any repeal or modification of the foregoing sentence shall not adversely affect any right or protection of a Commissioner or officer of the Town existing hereunder with respect to any act or omission occurring prior to the time of such repeal or modification.