Indemnification of Directors, Officers and Employees

1. 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 by reason of the fact that he or she is or was a trustee, officer, employee or agent of the University of Delaware, or is or was serving at the request of the University as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified by the University against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, if the director, officer or employee acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the University, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon 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 which he or she reasonably believed to be in or not opposed to the best interest of the University, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. Provided, however, if the action referred to above is brought by or in the right of the University to procure a judgment in its favor, no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his or her duty to the University unless and only to the extent that the Court of Chancery of the State of Delaware or the Court in which such action or suit was brought shall determine 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 that the said Court shall deem proper.
2. To the extent that any such person has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraph (A), or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys' fee) actually and reasonably incurred in connection therewith.
3. Except as provided in paragraph (B) or ordered by a Court, any indemnification authorized by paragraph (A) shall be made by the University only as authorized in the specific case upon a determination that indemnification of the trustee, officer or employee is proper in the circumstances because he or she has met the applicable standard of conduct set forth in paragraph (A). Such determination shall be made (1) by the Board of Trustees by a majority vote or a quorum consisting of trustees who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or even if obtainable a quorum of disinterested trustees so directs, by independent legal counsel in a written opinion.
4. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the University in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Trustees in the manner provided in paragraph (C) upon receipt of an undertaking by or on behalf of the trustee, officer or employee to repay such amount unless it shall ultimately be determined that he or she is entitled to be indemnified by the University as authorized in these bylaws.
5. The foregoing right of indemnification shall in no way be exclusive of any other rights of indemnification to which any such trustee, officer or employee may be entitled, under any other bylaw, agreement, vote or disinterested trustees or otherwise, and shall continue as to a person who has ceased to be a trustee, officer, employee or agent, and shall inure to the benefit of the heirs, executors and administrators of such a person.