ARTICLE IX – INDEMNIFICATION
Section 1 – The Corporation shall have the 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, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that that person is or was a Member, Director, Officer, Committee Member or volunteer of the Corporation, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by that person in connection with such actions, suits or proceedings; provided that no indemnification may be provided for any person with respect to any matter as to which that person shall have been finally adjudicated:
a. Not to have acted honestly or in the reasonable belief that that person’s actions was in or not opposed to the best interests of the Corporation; or
b. With respect to any criminal action or proceeding, to have had reasonable cause to believe that that person’s conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order or conviction adverse to that person, or by settlement or plea of nolo contendere or its equivalent, shall not of itself create a presumption that that person did not act honestly or in the reasonable belief that that person’s action was in or not opposed to the best interests of the Corporation or, in the case of a person serving as a fiduciary of an employee benefit plan or trust, in or not opposed to the best interest of that plan or trust or its participants or beneficiaries and, with respect to any criminal action or proceeding, had reasonable cause to believe that that person’s conduct was unlawful.
Section 2 – Notwithstanding any provision of Section 1 of this Article XIII, the Corporation shall not have the power to indemnify any person with respect to any claim, issue or matter asserted by or in the right of the Corporation as to which that person is finally adjudicated to be liable to the Corporation unless the court in which the action, suit or proceeding was brought shall determine that, in view of all the circumstances of the case, that person is fairly and reasonably entitled to indemnity for such amounts as the court shall deem reasonable.
Section 3 – Any provision of Sections 1,2, or 4 of this Article XIII to the contrary notwithstanding, to the extent that a Director of Officer of a Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 1. or 2., or in defense of any claim, issue or matter therein, that Director or Officer shall be indemnified against expenses, including attorneys’ fees actually and reasonably incurred, by that Director or Officer, in connection therewith. The right to indemnification granted by this Section 3 may be enforced by a separate action against the Corporation, if an order for indemnification is not entered by a court in the action, suit or proceeding wherein that Director or Officer was successful on the merits or otherwise.
Section 4 – Any indemnification under Section 1., unless ordered by a court, shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Director or Officer is proper in the circumstances and in the best interests of the Corporation. That determination shall be made by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to that action, suit or proceeding, or if such a quorum is not obtainable, or even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in a written opinion. Such a determination once made may not be revoked and, upon the making of that determination, the Director or Officer may enforce the indemnification against the Corporation by a separate action notwithstanding any attempted or actual subsequent action by the Board of Directors.
Section 5 – Expenses incurred in defending a civil, criminal, administrative or investigative action, suit or proceeding may be authorized and paid by the Corporation in advance of the final disposition of that action, suit or proceeding upon a determination made in accordance with the procedure established in Article XIII Section 4 that, based solely on the facts then known to those making the determination and without further investigation, the person seeking indemnification satisfied the standard of conduct prescribed by Section 1 of this Article XIII. Those persons making such determination may, in their discretion, require such person to provide the following to the Corporation:
a. A written undertaking by or on behalf of the Officer or Director to repay that amount if that person is finally adjudicated:
1. Not to have acted honestly or in the reasonable belief that the person’s action was in or not opposed to the best interests of the Corporation:
2. With respect to any criminal action or proceeding, to have had reasonable cause to believe that the person’s conduct was unlawful; or
3. With respect to any claim, issue or matter asserted in any action, suit or proceeding was brought by or in the right of the Corporation to be liable to the Corporation unless the Court in which that action, suit or proceeding was brought, permits indemnification in accordance with Section 3; and
b. A written affirmation by the Officer or Director that the person has met the standard of conduct necessary for indemnification by the Corporation as authorized in this section. The undertaking required by Paragraph A shall be an unlimited general obligation of the person seeking the advance, but need not be secured and may be accepted without reference to financial ability to make the repayment.
Section 6 – The indemnification and entitlement to advances of expenses provided by this Article shall continue as to a person who has ceased to be a Director or Officer, Trustee, Partner, or Fiduciary and shall inure to the benefit of the heirs, executors and administrators of such a person. A right to indemnification may be enforced by a separate action against the Corporation, if an order of indemnification has not been entered by a court in any action, suit or proceeding in respect to which indemnification is sought.
Section 7 – The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a Member, Director, Officer, Committee Member, or volunteer of the Corporation against any liability asserted against that person and incurred by that person in any such capacity, or arising out of that person’s status as such, whether or not the Corporation would have the power to indemnify that person against such liability under this article.