My post was not to defend MH and the BOD in any manner. I personally believe that it is clear that they breached their fiduciary duty to act in the best interests of the shareholders of IOC. The level of proof required to show a breach of fiduciary duty is much lower that that required to prove fraud. A proof of fraud requires proof of intent to defraud. Proof of breach of fiduciary duty requires only a showing that a person acted in their own self-interest, rather than in the interest of those to whom they owe the fiduciary duty--in this case IOC shareholders.
That being said, the proof to negate the IOC indemnification policy would require proof that the person acted dishonestly, with knowledge that their actions were unlawful. Again, this is a level of proof which requires proof of intent--a much higher bar than breach of fiduciary duty. And yes, a corporate officer taking action based on a legal opinion from a corporation's legal counsel, while not being a defense against a claim that the person breached a fiduciary duty, is generally enough to show of lack of intent to act unlawfully or defraud.
My point in this post was to note that IOC has a strong, though not complete, policy of indemnification of its officers and directors, which is backed by indemnification insurance. MH and the BOD can be indemnified for their actions, including any breach of fiduciary duty, up to a determination that they participated in criminal activities with intent and knowledge that such activities were unlawful.
