Item 6. |
Indemnification of Directors and Officers. |
The Indiana Business Corporation Law, as amended (the IBCL), provides that a corporation, unless limited by its articles of
incorporation, is required to indemnify a director or an officer of the corporation who is wholly successful, on the merits or otherwise, in the defense of any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal, to which the director or officer is a party because of his or her service as a director or officer of the corporation against reasonable expenses, including counsel fees, incurred in
connection with the proceeding.
The IBCL also permits a corporation to indemnify a director, officer, employee or agent who is made a
party to a proceeding because the person is or was a director, officer, employee or agent of the corporation against liability incurred in the proceeding if (i) the individuals conduct was in good faith and (ii) the individual
reasonably believed (A) in the case of conduct in the individuals official capacity with the corporation, that the conduct was in the corporations best interests and (B) in all other cases that the individuals conduct was
at least not opposed to the corporations best interests and (iii) in the case of a criminal proceeding, the individual either (A) had reasonable cause to believe the individuals conduct was lawful or (B) had no reasonable
cause to believe the individuals conduct was unlawful. The IBCL also permits a corporation, under certain circumstances, including that the individual furnishes the corporation a written affirmation of his or her good faith belief that he or
she has met the above standard of conduct and a written undertaking to repay the advance if it is ultimately determined that he or she did not meet such standard of conduct, to pay for or reimburse reasonable expenses incurred before the final
disposition of the proceeding and permits a court of competent jurisdiction to order a corporation to indemnify a director, officer, employee or agent if the court determines that the person is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not the person met the standards for indemnification otherwise provided in the IBCL.
As permitted by the IBCL, the Companys amended and restated articles of incorporation provide for indemnification of the Companys
directors, officers, employees and agents to the fullest extent authorized or permitted by the IBCL, or otherwise consistent with the public policy of the State of Indiana, including, but not limited to, against any and all liability and reasonable
expense that may be incurred by them, in connection with or resulting from any pending, threatened or completed claim, action, suit or proceeding and all appeals thereof (whether brought by or in the right of the Company or any other corporation or
otherwise), civil, criminal, administrative or investigative, formal or informal, in which they may become involved as a party or otherwise by reason of being or having been a director, officer, employee or agent thereof or serving or having served
at the Companys request as a director, officer, employee, partner, trustee, member, manager, agent, or fiduciary of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other organization or
entity, whether for profit or not, or by reason of any action taken or not taken by such individual in such capacity. To be entitled to indemnification, those persons must have been wholly successful in the claim, action, suit or proceeding or the
board of directors must have determined, based upon a written finding of legal counsel or another independent referee, or a court of competent jurisdiction must have determined, that such persons acted in good faith in what they reasonably believed
to be the best interest of the Company (or at least not opposed to its best interests) and, in addition, in any criminal action, had reasonable cause to believe their conduct was lawful (or had no reasonable cause to believe that their conduct was
unlawful). The Companys amended and restated articles of incorporation authorize the Company to advance funds for expenses to an indemnified person, but only upon receipt of an undertaking that he or she will repay the same if it is ultimately
determined that such party is not entitled to indemnification.
The rights of indemnification provided by the Companys amended and
restated articles of incorporation are not exhaustive and are in addition to any rights to which a director or officer may otherwise be entitled by contract or as a matter of law. Irrespective of the provisions of the Companys amended and
restated articles of incorporation, the Company may, at any time and from time to time, indemnify directors, officers, employees and other persons to the full extent permitted by the provisions of applicable law at the time in effect, whether on
account of past or future transactions.
In addition, the Company has obtained a directors and officers liability and company
reimbursement policy that insures against certain liabilities under the Securities Act, subject to applicable retentions.