ARTICLE IX - INDEMNIFICATION AND INSURANCE
Section 9.1. Definitions.
The following definitions apply for purposes of this Article IX:
(a) “indemnified person” means an individual who is or was
(i) a director or officer of the Corporation, or
(ii) while a director or officer of the Corporation, is or was serving at the Corporation’s request as a director, officer, employee, agent, partner or trustee (or in a similar capacity) of another foreign or domestic corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or other enterprise.
(a) “proceeding” means a threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including a grand jury proceeding) and whether formal or informal;
(a) “serving at the Corporation’s request” shall include any service as a director, officer, employee, agent, member or volunteer of the Corporation which also imposes duties on, or otherwise involves services by, such director, officer, employee, agent, member or volunteer to an employee benefit plan or to participants in or beneficiaries of the plan.
Section 9.2. Indemnity.
(a) The Corporation shall indemnify and advance expenses to any individual who was, is, or is threatened to be made a party to or witness in any proceeding, by reason of the fact that he or she is or was an indemnified person, to the maximum extent it is empowered to indemnify and advance expenses to a director or officer by the Articles, the Revised Act or other applicable law as all of the same now exists or may hereafter be amended or changed (but, in the case of any such amendment or change, only to the extent that such amendment or change empowers the Corporation to provide broader indemnification than said law empowered the Corporation to provide prior to such amendment or change), against expenses (including attorneys’ fees), judgments, penalties, fines, including an excise tax assessed with respect to an employee benefit plan, and amounts paid in settlement actually and reasonably incurred by such person in connection with such claim, action, suit or proceeding or any appeal thereof.
(b) Unless ordered by a court under Section 504.855(1)(b) of the Revised Act, the Corporation shall not indemnify an indemnified person under this Section 9.1 under either of the following circumstances:
(i) In connection with a proceeding by or in the right of the Corporation, except for reasonable expenses incurred in the relevant standard of conduct under Section 504.855(1) of the Revised Act.
(ii) In connection with any proceeding with respect to conduct for which the indemnified person was adjudged liable on the basis that the director received a financial benefit to which the indemnified person was not entitled, whether or not involving action in the indemnified person’s official capacity.
Section 9.3. Payment and Advancement of Expenses.
(a) Any indemnification or advancement of expenses required under Sections 9.1 through 9.8 shall be made promptly upon, and in any event within 30 days after, the written request of the indemnified person entitled thereto. Regardless of any limitations on indemnification under Sections 9.1 through 9.8 or otherwise, the Corporation shall, before final disposition of a proceeding, advance funds to pay for or reimburse the reasonable expenses incurred by an indemnified person who is a party to a proceeding because the person is an indemnified person if the indemnified person delivers the all of the following to the Corporation:
(i) A written affirmation of the indemnified person’s good faith belief that he or she has met the relevant standard of conduct described in Section 504.852 of the Revised Act or that the proceeding involved conduct for which liability has been eliminated under Article 12 of the Articles.
(ii) The indemnified person’s written undertaking to repay any funds advanced if he or she is not entitled to mandatory indemnification under Section 504.853 of the Revised Act and it is ultimately determined that he or she is not entitled to indemnification under Section 9.1 or the Articles.
(b) The undertaking required by subsection (a)(ii) must be an unlimited general obligation of the indemnified person, but need not be secured and may be accepted without reference to the financial ability of the director to make repayment.
(c) If the Corporation denies a written request by an indemnified person for indemnity or advancement of expenses under Sections 9.1 through 9.8 (or as of right under applicable law), in whole or in part, or if payment in full pursuant to such request is not made within 30 days of the date such request is received by the Corporation, the person seeking indemnification or advancement of expenses may at any time within the applicable statute of limitations bring suit against the Corporation in any court of competent jurisdiction to establish such person's right to indemnity or advancement of expenses. Such person's costs and expenses incurred in connection with successfully establishing his or her right to indemnification in any such action or proceeding shall be reimbursed by the Corporation upon a final unappealable disposition of the issue finding the Corporation liable for non payment.
Section 9.4. Contract.
The provisions of Sections 9.1 through 9.8 shall be deemed a contract between the Corporation and each indemnified person who serves in such capacity at any time while Sections 9.1 and 9.2 and the relevant provisions of the Articles and the Revised Act are in effect, and any repeal or modification of any such law, of the Articles, or of Sections 9.1 through 9.8 shall not adversely affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any claim, action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.
Section 9.5. Nonexclusive.
The indemnification and advancement of expenses provided by, or granted pursuant to, this Article IX shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any provision in the Articles, These Bylaws, any agreements, any votes of members or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding the office, and shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of his or her heirs, executors, administrators and legal or personal representatives.
Section 9.6. Applicability.
This Article IX shall be applicable to all claims, actions, suits or proceedings commenced after the effective date hereof, whether arising from acts or omissions occurring before or after the effective date hereof. Each person who is now serving or who shall hereafter serve as a director or officer of the Corporation shall be deemed to be doing so in reliance upon the rights of indemnification provided for in Sections 9.1 and 9.2, and such rights of indemnification shall continue as to a person who has ceased to be a director or officer, and shall inure to the benefit of his or her heirs, executors, administrators and legal or personal representatives.
Section 9.7. Validity and Enforceability.
If this Article IX or any portion hereof shall be held to be invalid or unenforceable on any ground by any court of competent jurisdiction, such holding shall not affect the validity or enforceability of the remaining provisions of this Article IX, and the Corporation shall nevertheless indemnify each indemnified person to the maximum extent permitted by any applicable portion of this Article IX that shall not have been invalidated.
Section 9.8. Initiation of Claims.
Notwithstanding anything in this Article IX to the contrary, except with respect to proceedings initiated to enforce rights of indemnification to which such person is entitled under this Article IX or otherwise, the Corporation shall indemnify any such person in connection with a claim, action, suit or proceeding (or part thereof) initiated by such person only if the initiation of such claim, action, suit or proceeding (or part thereof) was authorized by the Board.
Section 9.9. Indemnification of Employees, Agents, Members and Volunteers.
The Corporation may, by action of the Board of Directors, provide indemnification and advancement of expenses to such of the employees, agents, members or volunteers of the Corporation to such extent and to such effect as the Board may determine to be appropriate and authorized by applicable law.
Section 9.10. No Self-Dealing.
Notwithstanding anything in this article to the contrary, the Corporation shall not indemnify or advance expenses to any person if such indemnification or advancement of expenses would give rise to excise tax liability on the part of any person under Section 4941 or Section 4958 of the Internal Revenue Code of 1986 (or the corresponding provision of any future United States Internal Revenue Law).
Section 9.11. Insurance.
The Corporation may purchase and maintain insurance, at its expense, on its own behalf or on behalf of an individual who is or was a director, officer, employee, agent, member or volunteer of the Corporation, or is or was serving at the Corporation’s request as a director, officer, member, employee, agent, partner, trustee (or in a similar capacity) of another foreign or domestic corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or other enterprise, against any liability asserted against or incurred by such person in any such capacity, or arising from his or her status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Article IX, the Revised Act, or otherwise. The Corporation may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or similar arrangements), as well as enter into contracts providing for indemnification to the maximum extent permitted by law and including as part thereof any or all of the foregoing, to ensure the payment of such sums as may become necessary to effect full indemnification. The Corporation’s obligation to make indemnification and pay expenses pursuant to this Article IX shall be in excess of any insurance purchased and maintained by the Corporation and such insurance shall be primary. To the extent that indemnity or expenses of a person entitled to indemnification and payment of expenses pursuant to this Article IX are paid on behalf of or to such person by such insurance, such payments shall be deemed to be in satisfaction of the Corporation’s obligation to such person to make indemnification and pay expenses pursuant to this Article IX.
Return to ICARC Bylaws main page.
Last updated June 11, 2004 by KØCF