HARRY HUGHES, Governor

2761

(I)  A WRITTEN AFFIRMATION BY THE DIRECTOR
OF THE DIRECTOR'S GOOD FAITH BELIEF THAT THE STANDARD OF
CONDUCT NECESSARY FOR INDEMNIFICATION BY THE CORPORATION AS
AUTHORIZED IN THIS SECTION HAS BEEN MET; AND

(II)  A WRITTEN UNDERTAKING BY OR ON BEHALF
OF THE DIRECTOR TO REPAY SUCH THE AMOUNT IF IT SHALL
ULTIMATELY BE DETERMINED THAT SUCH THE STANDARD OF CONDUCT
HAS NOT BEEN MET.

(2)  THE UNDERTAKING REQUIRED BY SUBPARAGRAPH
(II) OF PARAGRAPH (1) OF THIS SUBSECTION SHALL BE AN
UNLIMITED GENERAL OBLIGATION OF THE DIRECTOR BUT NEED NOT BE
SECURED AND MAY BE ACCEPTED WITHOUT REFERENCE TO FINANCIAL
ABILITY TO MAKE THE REPAYMENT.

(3)  DETERMINATIONS AND AUTHORIZATIONS OF
PAYMENTS UNDER THIS SUBSECTION SHALL BE IN THE MANNER
SPECIFIED IN SUBSECTION (E) OF THIS SECTION.

(G) A PROVISION FOR THE CORPORATION TO INDEMNIFY A
DIRECTOR WHO IS MADE A PARTY TO A PROCEEDING, WHETHER
CONTAINED IN THE CHARTER, THE BYLAWS, A RESOLUTION OF
STOCKHOLDERS OR DIRECTORS, AN AGREEMENT OR OTHERWISE, EXCEPT
AS CONTEMPLATED BY SUBSECTION (K) OF THIS SECTION, MAY NOT
BE IS NOT VALID UNLESS CONSISTENT WITH THIS SECTION OR, TO
THE EXTENT THAT INDEMNITY HEREUNDER UNDER THIS SECTION IS
LIMITED BY THE CHARTER, CONSISTENT THEREWITH WITH THE
CHARTER.

(H) THIS SECTION DOES NOT LIMIT THE CORPORATION'S
POWER TO PAY OR REIMBURSE EXPENSES INCURRED BY A DIRECTOR IN
CONNECTION WITH AN APPEARANCE AS A WITNESS IN A PROCEEDING
AT A TIME WHEN THE DIRECTOR HAS NOT BEEN MADE A NAMED
DEFENDANT OR RESPONDENT IN THE PROCEEDING.

(I) FOR PURPOSES OF THIS SECTION:

(1)  THE CORPORATION SHALL BE DEEMED TO HAVE
REQUESTED A DIRECTOR TO SERVE AN EMPLOYEE BENEFIT PLAN WHERE
THE PERFORMANCE OF THE DIRECTOR'S DUTIES TO THE CORPORATION
ALSO IMPOSES DUTIES ON, OR OTHERWISE INVOLVES SERVICES BY,
THE DIRECTOR TO THE PLAN OR PARTICIPANTS OR BENEFICIARIES OF
THE PLAN;

(2)  EXCISE TAXES ASSESSED ON A DIRECTOR WITH
RESPECT TO AN EMPLOYEE BENEFIT PLAN PURSUANT TO APPLICABLE
LAW SHALL BE DEEMED FINES; AND

(3)  ACTION TAKEN OR OMITTED BY THE DIRECTOR WITH
RESPECT TO AN EMPLOYEE BENEFIT PLAN IN THE PERFORMANCE OF
THE DIRECTOR'S DUTIES FOR A PURPOSE REASONABLY BELIEVED BY
THE DIRECTOR TO BE IN THE INTEREST OF THE PARTICIPANTS AND
BENEFICIARIES OF THE PLAN SHALL BE DEEMED TO BE FOR A
PURPOSE WHICH IS NOT OPPOSED TO THE BEST INTERESTS OF THE
CORPORATION.