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Article VIII
Indemnification
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Section 8.1
Mandatory Indemnification
of Directors and Officers
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The Council shall indemnify, to
the fullest extent now or hereafter permitted by law (including but not limited to the
indemnification provided by Chapter 57, Subchapter D of the NPCL), each Director and/or officer
(including each former Director or officer) of the Council who was or is or is threatened to be made
a party to or a witness in any threatened, pending or completed action or proceeding, whether civil,
criminal, administrative or investigative other than an action by or in the right of the Council, by
reason of the fact that the Director or officer is or was an authorized representative of the
Corporation, or is or was serving at the request of the Council as a representative of another
domestic or foreign corporation for profit or not-for-profit, partnership, joint venture, trust or other
enterprise, against all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the Director or officer in connection with such
action, suit or proceeding if such Director or officer acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interest of the Council and, with respect to
any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.
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Section 8.2
Mandatory Advancement
of Expenses to Directors
and Officers
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The Council shall pay
expenses (including attorneys' fees) incurred by a Director or officer of the Council referred to in
Section 7.1 hereof in defending or appearing as a witness in any civil or criminal action, suit or
proceeding described in Section 7.1 hereof in advance of the final disposition of such action, suit or
proceeding. The expenses incurred by such Director or officer shall be paid by the Council in
advance of the final disposition of such action, suit or proceeding only upon receipt of an
undertaking by or on behalf of such Director or officer to repay all amounts advanced if it shall
ultimately be determined that the Director or officer is not entitled to be indemnified by the
Council as provided in Section 8.4 hereof.
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Section 8.3
Permissive Indemnification
and Advancement of
Expenses
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The Council may, as
determined by the Board of Directors from time to time, indemnify, in full or in part, to the fullest
extent now or hereafter permitted by law, any person who was or is or is threatened to be made a
party to or a witness in, or is otherwise involved in, any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative (other than an action by or in
the right of the Council), by reason of the fact that such person is or was an authorized
representative of the Council or is or was serving at the request of the Council as a representative
of another domestic or foreign corporation for profit or not-for-profit, partnership, joint venture,
trust or other enterprise, both as to action in his official capacity and as to action in another
capacity while holding such office or position, against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in
conjunction with such action, suit or proceeding if such Director or officer acted in good faith and
in a manner he or she reasonably believed to be in, or not opposed to, the best interest of the
Council and, with respect to any criminal proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The Council may, as determined by the Board of Directors from time to
time, pay expenses incurred by any such person by reason of such person's participation in an
action, suit or proceeding referred to in this Section 8.3 in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay
such amount if it shall ultimately be determined that such person is not entitled to be indemnified
by the Council as provided in Section 8.4 hereof.
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Section 8.4
Scope of Indemnification
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Indemnification under this article shall not be made by the
Council in any case where a court determines that the alleged act or failure to act giving rise to the
claim for indemnification is expressly prohibited by Chapter 57, Subchapter D of the NPCL or any
successor statute as in effect at the time of such alleged action or failure to take action.
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Section 8.5
Miscellaneous
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Each Director and officer of the Council shall be deemed to act in such
capacity in reliance upon such rights of indemnification and advancement of expenses as are
provided in this Article. The rights of indemnification and advancement of expenses provided by
this Article shall not be deemed exclusive of any other rights to which any person seeking
indemnification or advancement of expenses may be entitled under any agreement, vote of
disinterested Directors, statute or otherwise, both as to action in such person's official capacity and
as to action in another capacity while holding such office or position, and shall continue as to a
person who has ceased to be an authorized representative of the Council and shall inure to the
benefit of the heirs, executors and administrators of such person. Indemnification and advancement
of expenses under this Article shall be provided whether or not the indemnified liability arises or
arose from any threatened, pending or completed action by or in the right of the Council. Any
repeal or modification of this Article by the Board of Directors of the Council shall not adversely
affect any right or protection existing at the time of such appeal or modification to which any
person may be entitled under this Article.
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Section 8.6
Definition of Authorized
Representative
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For the purposes of this Article, the term,
"authorized representative" shall mean a Director, officer or employee of the Council or of any
corporation controlled by the Council, or a trustee, custodian, administrator, committeeman or
fiduciary of any employee benefit plan established and maintained by the Council or by any
corporation controlled by the Council, or person serving another corporation, partnership, joint
venture, trust or other enterprise in any of the foregoing capacities at the request of the Council or a
consultant to the Council, as designated by the Board as an authorized representative. The term
"authorized representative" shall not include money managers or investment advisors (or any
employees thereof) hired by the Council, and shall not include agents of the Council unless
indemnification thereof is expressly approved by the Board of Directors.
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Section 8.7
Procedure for Effecting
Indemnification
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Unless ordered by a court, any indemnification
under this Article VIII or of the NPCL shall be made only following a determination that the
indemnification is proper in the circumstances because the person seeking indemnification has met
the applicable standard of conduct. Such determination shall be made
- by the Board of Directors by a majority vote of a quorum consisting of Directors who were
not party to the action or proceeding;
- if such a quorum is not obtainable or if obtainable and a majority vote of a quorum of
disinterested Directors so directs, by independent legal counsel in a written opinion; or
- by the Directors.
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