Common use of Company Indemnification and Insurance Clause in Contracts

Company Indemnification and Insurance. (a) Except for acts or omissions of a Member Representative or an Officer outside the scope of authority of such Member Representative or Officer, or failing to meet the standard of conduct set forth in Section 9.3 the Company will indemnify, to the fullest extent permitted by Law and the Act, any current or former Member Representative or Officer 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 (other than an action by or for the right of the Company), by reason of the fact that such person: (i) is or was a Member Representative or Officer or (ii) is or was serving at the request of the Company as a member, member representative, director, officer, employee or agent of another Entity from and against expenses (including reasonable and documented attorneys’ fees and expenses), judgments, fines and amounts paid in settlement actually and reasonably incurred by such individual in connection with that action, suit or proceeding; provided that such individual acted in accordance with the standards set forth in Section 9.3 and, with respect to any criminal action or proceeding, had no reasonable cause to believe his/her conduct was unlawful. (b) The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, will not, of itself, create a presumption that a Member Representative or Officer did not act in accordance with the standards set forth in Section 9.3. (c) The Company will indemnify any Member Representative or Officer who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by or in the right of the Company to procure a judgment in its favor by reason of the fact that he or she is or was a Member Representative or Officer, against expenses (including reasonable and documented attorneys’ fees and expenses) actually incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in accordance with the standards set forth in Section 9.3; except that no indemnification will be made in respect of any claim, issue or matter as to which such Member Representative or Officer has been adjudged to be liable to the Company unless and only to the extent that the court in which such action or suit was brought determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, that Member Representative or Officer is fairly and reasonably entitled to indemnity for such expenses which the court will deem proper. (d) Any indemnification under this Article IX (unless ordered by a court) will be made by the Company only as authorized in the specific case upon a determination that indemnification of the Member Representative or Officer is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Section 9.3. Such determination will be made by a unanimous vote of the Governance Board. However, if a Member Representative or Officer of the Company has been successful on the merits or otherwise in defense of any action, suit or proceeding brought by or in the right of the Company, or in defense of any claim, issue or matter therein, he or she will be indemnified against expenses (including attorneys’ fees and expenses) actually and reasonably incurred and documented by him or her in connection therewith, without the necessity of authorization in the specific case. (e) Expenses incurred by any current or former Member Representative or Officer in defending or investigating a civil or criminal threatened or pending action, suit or proceeding may, upon a decision made in accordance with this Section, be paid by the Company in advance of the final disposition of such action, suit or proceeding, upon receipt of an undertaking by or on behalf of the Member Representative or Officer to repay such amount if it ultimately is determined that the Member Representative or Officer is not entitled to be indemnified by the Company as authorized in this Section.