By-Laws
of
The Black Rose
Acoustic Society
Article VIII - Indemnification
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(a) "Corporation" includes any domestic or foreign predecessor entity of the corporation in a merger or other transaction in which the predecessor’s existence ceased upon consummation of the transaction;
(b) "Director" means an individual who is or was a director of the Corporation or an individual who, while a director of the corporation, is or was serving at the Corporation’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic business or nonprofit corporation, any partnership, joint venture, trust, employee benefit plan or other enterprise. "Director" includes, unless the context requires otherwise, the estate or personal representative of a Director;
(c) "Expenses" includes attorney fees;
(d) "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan) or reasonable expense actually incurred with respect to a proceeding.
(e) "Official capacity" means: (i) when used with respect to a Director, the office of director in the Corporation and, (ii) when used with respect to a person other than a Director, the office in the Corporation held by the Officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" does not include service for any other foreign or domestic corporation or nonprofit corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise;
(f) "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding:
(g) "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal.
Section 2: PERMISSIVE INDEMNIFICATION OF DIRECTORS
Except as provided in Section 4 of this Article, the Corporation may indemnify an individual made a party to a proceeding because the individual is or was a Director against liability incurred in any proceeding if the individual:
(a) Conducted himself or herself in good faith; and
(b) Reasonably believed: (i) in the case of conduct in his or her official capacity with the Corporation, that his or her conduct was in the Corporation’s best interest; and (ii) in all other cases, that his or her conduct was at least not opposed to the Corporation’s best interests; and
(c) In the case of any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, be determinative that the Director did not meet the standard of conduct set forth in this Section.
Indemnification permitted under this Section in connection with a proceeding by or in the right of the Corporation shall be limited to reasonable expenses incurred in connection with the proceeding.
Section 3: MANDATORY INDEMNIFICATION OF DIRECTORS
Unless limited by the Articles of Incorporation, the Corporation shall indemnify a Director who was wholly successful, on the merits or otherwise, in defense of any proceeding to which the Director was a party because he or she is or was a Director of the Corporation against reasonable expenses incurred by the Director in connection with the proceeding.
Section 4: PROHIBITED INDEMNIFICATION OF DIRECTORS
The Corporation may not indemnify a Director under Section 2 of this Article:
(a) In connection with a proceeding by or in the right of the Corporation in which the Director was adjudged liable to the Corporation; or
(b) In connection with any other proceeding charging improper personal benefit to the Director, whether or not involving action in his or her official capacity, in which the Director was adjudged liable on the basis that personal benefit was improperly received by the Director.
Section 5: AUTHORITY FOR PERMISSIVE INDEMNIFICATION OF DIRECTORS
The Corporation may not indemnify a Director under Section 2 of this Article unless authorized in the specific case after a determination has been made that indemnification of the Director is permissible in the circumstances because the Director has met the standard of conduct set forth in Section 2 of this Article. The determination required to be made by this Section shall be made:
(a) By the whole Board of Directors by a majority vote of a quorum consisting of all Directors not at the time parties to the proceeding;
(b) If a quorum cannot be obtained, by majority vote of a committee of the Board of Directors designated by the Board of Directors (in which designation Directors who are parties may participate), consisting solely of two or more Directors not at the time parties to the proceeding;
(c) By special legal counsel: (I) selected by the Board of directors or its committee in the manner specified in subsections (a) and (b) of this Section 5; or (ii) if a quorum of the Board of Directors cannot be obtained and a committee cannot be designated, selected by a majority vote of the full Board of Directors (in which designation Directors who are parties may participate).
Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible; except that, if the determination that indemnification is permissible is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by the body that selected said counsel.
Section 6: INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS
The Corporation shall have the following powers and duties of indemnification with respect to Officers, employees and agents:
(a) An Officer of the Corporation who is not a Director shall be entitled to mandatory indemnification pursuant to Section 3 of this Article;
(b) The Corporation may indemnify and advance expenses pursuant to Section 6 of this Article to an Officer, employee, or agent of the Corporation who is not a Director to the same extent as a Director; and
(c) The Corporation may indemnify and advance expenses to an Officer, employee, or agent of the Corporation who is not a Director to the extent, consistent with public policy, that may be provided by the Articles of Incorporation, these Bylaws, general or specific action of the Board of Directors, or contract.
Section 7: RIGHTS, POWERS, AND DUTIES NOT EXCLUSIVE
The indemnification provided by this Article shall not be construed to limit any other rights of indemnification to which Directors, Officers, employees and agents of the Corporation may be entitled under the laws of the State of Colorado; nor shall the indemnification provided by this Article be construed to limit any other of the Corporation’s power to indemnify its Directors, Officers, employees and agents as may be provided by the laws of the State of Colorado.
