Under the Registrant’s Articles and Section 160 of the Act, subject to
Section 163 of the Act, the Registrant may:
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a) |
indemnify an individual who: |
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i. |
is or was a director or officer of the Registrant, |
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ii. |
is or was a director or officer of another corporation (A) at a time when such corporation is or was an
affiliate of the Registrant; or (B) at the Registrant’s request, or |
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iii. |
at the Registrant’s request, is or was, or holds or held a position equivalent to that of, a director or
officer of a partnership, trust, joint venture or other unincorporated entity, |
including, subject to certain limited
exceptions, the heirs and personal or other legal representatives of that individual (collectively, an “eligible party”), against all eligible penalties, defined below, to which the eligible party is or may be liable;
and
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b) |
after final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by an
eligible party in respect of that proceeding, where: |
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i. |
“eligible penalty” means a judgment, penalty or fine awarded or imposed in, or an
amount paid in settlement of, an eligible proceeding, |
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ii. |
“eligible proceeding” means a proceeding in which an eligible party or any of the heirs
and personal or other legal representatives of the eligible party, by reason of the eligible party being or having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, the Registrant or
an associated corporation (A) is or may be joined as a party, or (B) is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding, |
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iii. |
“expenses” includes costs, charges and expenses, including legal and other fees, but
does not include judgments, penalties, fines or amounts paid in settlement of a proceeding, and |
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iv. |
“proceeding” includes any legal proceeding or investigative action, whether current,
threatened, pending or completed. |
Under the Registrant’s Articles, the Registrant may also indemnify any employee,
agent or representative of the Registrant subject to any restrictions under the Act.
Under the Registrant’s articles and
Section 161 of the Act, and subject to Section 163 of the Act, the Registrant must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by an eligible party in respect of that proceeding
if the eligible party (a) has not been reimbursed for those expenses, and (b) is wholly successful, on the merits or otherwise, in the outcome of the proceeding or is substantially successful on the merits in the outcome of the proceeding.
Under Section 162 of the Act, and subject to Section 163 of the Act, the Registrant may pay, as they are incurred in advance of
the final disposition of an eligible proceeding, the expenses actually and reasonably incurred by an eligible party in respect of the proceeding, provided that the Registrant must not make such payments unless the Registrant first receive from the
eligible party a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited under Section 163 of the Act, the eligible party will repay the amounts advanced.
Under Section 163 of the Act, the Registrant must not indemnify an eligible party against eligible penalties to which the eligible party
is or may be liable or pay the expenses of an eligible party in respect of that proceeding under Sections 160, 161 or 162 of the Act, as the case may be, if any of the following circumstances apply:
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a) |
if the indemnity or payment is made under an earlier agreement to indemnify or pay expenses and, at the time
that the agreement to indemnify or pay expenses was made, the Registrant was prohibited from giving the indemnity or paying the expenses by the Registrant’s memorandum or articles; |