Harley Davidson 2012 Annual Report Download - page 134
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13
Breach of Duty and, therefore, whether indemnification should be denied
hereunder.
(d) (i) If the Board does not authorize an Authority to determine the Director’s or
Officer’s right to indemnification hereunder within such period and/
or (ii) if indemnification of the requested amount of Liabilities is paid by the
Corporation, then it shall be conclusively presumed for all purposes that a
Disinterested Quorum has affirmatively determined that the Director or Officer
did not engage in misconduct constituting a Breach of Duty and, in the case of
subsection (i) above (but not subsection (ii)), indemnification by the
Corporation of the requested amount of Liabilities shall be paid to the Director
or Officer immediately.
5.04 Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a Director’s or Officer’s
right to indemnification pursuant to Section 5.03, then the Director or Officer
requesting indemnification shall have the absolute discretionary authority to
select one of the following as such Authority:
(i) An independent legal counsel; provided, that such counsel shall be
mutually selected by such Director or Officer and by a majority vote of
a Disinterested Quorum or, if a Disinterested Quorum cannot be
obtained, then by a majority vote of the Board;
(ii) A panel of three arbitrators selected from the panels of arbitrators of the
American Arbitration Association in Wisconsin; provided, that (A) one
arbitrator shall be selected by such Director or Officer, the second
arbitrator shall be selected by a majority vote of a Disinterested
Quorum or, if a Disinterested Quorum cannot be obtained, then by a
majority vote of the Board, and the third arbitrator shall be selected by
the two previously selected arbitrators, and (B) in all other respects
(other than this Article V), such panel shall be governed by the
American Arbitration Association’s then existing Commercial
Arbitration Rules; or
(iii) A court pursuant to and in accordance with Section 180.0854 of the
Statute.
(b) In any such determination by the selected Authority, there shall exist a
rebuttable presumption that the Director’s or Officer’s conduct did not
constitute a Breach of Duty and that indemnification against the requested
amount of Liabilities is required. The burden of rebutting such a presumption
by clear and convincing evidence shall be on the Corporation or such other
party asserting that such indemnification should not be allowed.
(c) The Authority shall make its determination within sixty days of being selected
and shall submit a written opinion of its conclusion simultaneously to both the
Corporation and the Director or Officer.