(1) Except as provided in sub. (2), ss. 185.035 and 185.037 do not preclude any additional right to indemnification or allowance of expenses that a director or officer may have under any of the following: (a) The articles or bylaws. (b) A written agreement between the director or officer and the cooperative. (c) A resolution of the board. (d) A resolution, after notice, adopted by a majority vote of members who are entitled to vote. (2) Regardless of the existence of an additional right under sub. (1), the cooperative may not indemnify a director or officer, or permit a director or officer to retain any allowance of expenses unless it is determined by or on behalf of the cooperative that the director or officer did not breach or fail to perform a duty he or she owes to the cooperative which constitutes conduct under s. 185.035 (2) (a) 1., 2., 3. or 4. A director or officer who is a party to the same or related proceeding for which indemnification or an allowance of expenses is sought may not participate in a determination under this subsection. (3) Sections 185.034 to 185.042 do not affect a cooperative’s power to pay or reimburse expenses incurred by a director or officer in any of the following circumstances: (a) As a witness in a proceeding to which he or she is not a party. (b) As a plaintiff or petitioner in a proceeding because he or she is or was an employee, agent, director or officer of the cooperative.
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