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Article XIV

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ARTICLE XIV INDEMNIFICATION

           SECTION 1.0 The chamber shall indemnify any Director, officer, employee, or agent of the chamber made a party of threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (regardless whether or not an action or suit by, or in the right of, the chamber), by reason of the fact that he or she is or was a Director, officer, employee, or agent of the chamber or is or was serving at the request of the chamber as a director, officer, employee, or agent of any other corporation, partnership, joint venture, trust or other enterprise against expenses (including attorney’s fees), judgments, fines, taxes, penalties and interest thereon, and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit, or proceeding, including any appeal thereof, if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the chamber, and with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, except that no indemnification shall be made in an action or suit by, or in the fight of, the chamber if the person is adjudged liable for fraud, gross negligence, or willful misconduct in the performance, of his or her duty to the corporation unless and only to the extent that the circuit court of the county in which the registered office of the chamber is located or the court in which such suit or action 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 indemnification as the court deems proper.  The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, in itself, create a presumption that any such Director, officer, employee, or agent of the chamber did not act in good faith in a manner he or she reasonably believed to be in, or not opposed to , the best interests of the chamber or with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful.

1.1  Any indemnification under Section 1 of this article, unless pursuant to a determination by a court, shall be made by the chamber only as authorized in the specific case upon a determination by the Directors (exclusive of any Director seeking indemnification) that indemnification of the Director, officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in such Section 1, and when in addition to such determination, one or more of the following circumstances exists:

 a.       The chamber receives actual written notice form the party potentially to be indemnified, or his or her representative, of the pendency or threat of such action, suit, or proceeding within such time as to enable the chamber to assert any applicable defense and/or counterclaim to such action, suit, or proceeding; or

b.      Upon settlement of such action, suit, or preceding, provided that the chamber has received prior written notice of all of the terms and the pendency of such settlement, and has approved such settlement by action of at least a majority of all of the Directors; or

c.       Upon settlement of such action, suit, or proceeding without notice to the chamber when, and only when, the chamber, by action of the Directors (exclusive of any Director seeking indemnification), ratifies the terms of such settlement after the fact.

1.2  The chamber shall be entitled to assume the defense of any person seeking indemnification pursuant to the provisions of Section 1 of this article, above upon a preliminary determination by the Directors (exclusive of any Director seeking indemnification) that such person has met the applicable standard of conduct set forth in Section 1 of this article , and upon receipt of an undertaking by such person to repay all amounts expended by the corporation in such defense unless it shall ultimately be determined that such person is entitled to be indemnified by the corporation as authorized in this article.  If the chamber elects to assume the defense, such defense shall be conducted by counsel chosen by the chamber and not objected to in writing for valid reasons by such person.  In the event the chamber elects to assume the defense of any such person and retain such counsel, such person shall bear the fees and expenses of any additional counsel retained by him.

1.3  The foregoing provisions of this article shall be deemed to be contact between the chamber and each Director, officer, employee or agent of the Chamber, in such a capacity at any time while this article is in effect.  Any repeal or modification of this article or any applicable provision of the law of West Virginia shall not affect any rights or obligations then existing as it relates to any action or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.  The foregoing rights of indemnification shall be subordinate to and in excess of any valid and collectible insurance.

1.4  Except as otherwise provided in Section 1 of this article, a person subject to this article shall not be entitled to indemnification under any circumstances when that person has been adjudged guilty of fraud, willful misconduct, or gross negligence in the performance of any action or duty on behalf of the chamber.

1.5  Committee members shall be entitled to indemnification as are Directors under this Article, to the fullest extent allowed by law.