The indemnification rights conferred in Article V of our
regulations include the right to be paid by us the expenses
(including, without limitation, attorneys’ fees and expenses)
incurred in defending any action, suit or proceeding in advance of
its final disposition; provided, however, that, if the Ohio General
Corporation Law so requires, an advancement of expenses incurred by
an indemnitee in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by
the indemnitee, including, without limitation, service to an
employee benefit plan) will be made only upon delivery to us of an
undertaking, by or on behalf of the indemnitee, to repay all
amounts so advanced if it is ultimately determined by final
judicial decision from which there is no further right to appeal
that the indemnitee is not entitled to be indemnified for the
expenses.
The rights to indemnification conferred by our regulations are not
exclusive of any other right to which any person seeking
indemnification may have or acquire under any statute, our articles
of incorporation, our regulations, or any agreement, vote of
shareholders or disinterested directors, or otherwise, and will
continue as to a person who has ceased to be a director, officer,
employee or agent and will inure to the benefit of the heirs,
executors and administrators of such person.
Section 1701.13(E) of the Ohio Revised Code provides as
follows:
(E)(1) A corporation may indemnify or agree 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, other
than an action by or in the right of the corporation, by reason of
the fact that the person is or was a director, officer, employee,
or agent of the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against
expenses, including attorney’s fees, judgments, fines, and amounts
paid in settlement actually and reasonably incurred by the person
in connection with such action, suit, or proceeding, if the person
acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, if the
person had no reasonable cause to believe the person’s conduct was
unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement, or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceeding, the person had reasonable cause to
believe that the person’s conduct was unlawful.
(2) A corporation may indemnify or agree 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 or suit by or in the right
of the corporation to procure a judgment in its favor, by reason of
the fact that the person is or was a director, officer, employee,
or agent of the corporation, or is or was serving at the request of
the corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust, or other enterprise, against
expenses, including attorney’s fees, actually and reasonably
incurred by the person in connection with the defense or settlement
of such action or suit, if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, except that no
indemnification shall be made in respect of any of the
following:
(a) Any claim, issue, or matter as to which such person is adjudged
to be liable for negligence or misconduct in the performance of the
person’s duty to the corporation unless, and only to the extent
that, the court of common pleas or 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, such person is fairly and reasonably entitled to
indemnity for such expenses as the court of common pleas or such
other court shall deem proper;
(b) Any action or suit in which the only liability asserted against
a director is pursuant to section 1701.95 of the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to
in division (E)(1) or (2) of this section, or in defense of
any claim, issue, or matter in the action, suit, or proceeding, the
person shall be indemnified against expenses, including attorney’s
fees, actually and reasonably incurred by the person in connection
with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, 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, trustee,
officer, employee, member, manager, or agent is proper in the
circumstances because the person has met the applicable standard of
conduct set forth in division (E)(1) or (2) of this section.
Such determination shall be made as follows:
