Bylaws of the National Christmas Tree Association, Inc. (As amended August 2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 Bylaws of the National Christmas Tree Association, Inc. (As amended August 2010) CHANGE TO: (As amended July 2015) Article I Name and Offices Section 1. Name - The name of the Association shall be the National Christmas Tree Association, Inc. (NCTA). Section 2. Offices - NCTA shall maintain a registered office in the State of Wisconsin and a registered agent at such office. NCTA may have other offices within or without the state. Article II Purposes Purposes - The purposes of NCTA shall be as set forth in the Articles of Incorporation of NCTA. Article III Membership Section 1. Categories of Membership - NCTA shall have five categories of membership. The designation of such categories, the qualifications of the members of such categories, and the rights of the members of such categories shall be as follows: Industry Membership - Individuals, corporations, partnerships or other entities who are engaged in: a) The production of Christmas Trees; or b) The sale of Christmas Trees Each Industry Member shall be entitled to one vote on each matter submitted to a vote of the members having voting rights. Professional Membership - Individuals, corporations, partnerships or other entities who are engaged in: a) The production of Christmas Trees; or b) The sale of Christmas Trees. Each Professional Member shall be entitled to one vote on each matter submitted to a vote of the members having voting rights. Supplier Membership - Individuals, corporations, partnerships or other entities who are engaged in the sale of goods, products, or services to the Christmas Tree industry.

43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 Each Supplier Member shall be entitled to one vote on each matter submitted to a vote of the members having voting rights. Supplier Members are not eligible to be Directors or to enter the National Tree & Wreath Contests. Introductory Membership - Individuals or corporations working in or retired from areas related to the Christmas Tree industry and not in the membership categories above. Each Introductory Member shall be entitled to one vote on each matter submitted to a vote of the members having voting rights. Introductory Members are not eligible to be Directors or to enter the National Tree & Wreath Contests. Researcher Membership - Individuals or organizations working in areas of research related to the Christmas Tree industry. Research Members shall be entitled to all rights and privileges of Industry Membership except that Research Members shall have no right to vote. Research Members must have an active email address ending in the.edu designation of a university personnel or a.gov designation or a public sector employee. Researcher Members are not eligible to be Directors or to enter the National Tree & Wreath Contests. Participation of the membership categories in ancillary programs sponsored by NCTA shall be determined by policies established by the Board. Section 2. Application for Membership - All applications for membership shall be subject to approval according to the policies established by the NCTA Board of Directors (Board). Any corporation, partnership or other entity that becomes a member of NCTA may appoint a person to act on its behalf either at the time of its joining NCTA or at any subsequent time, by giving notice of the identity of the person to exercise such rights at least five (5) days prior to the exercising of such rights. In the event the member is a corporation, partnership or other entity, an Officer of the entity shall supply the information. All members shall annually complete the membership information form supplied by NCTA. Section 3. Termination of Membership - Membership in NCTA may terminate by voluntary resignation or as otherwise provided in these Bylaws. All rights, privileges and interests of a member in or to NCTA shall cease upon termination of membership. Section 4. Voluntary Resignation - Any member wishing to resign must file a written resignation with the VP of Finance. Such resignation shall not relieve the member so resigning of the obligation to pay any dues or other charges accrued and unpaid prior to the notice of resignation. Section 5. Censure, Suspension and Expulsion - The Board may, by affirmative vote of two-thirds of all the Directors, censure, suspend or expel a member for cause after an appropriate hearing, conducted in accordance with procedures adopted by the Board. In the event any member becomes ineligible for membership, the Board may, by a majority vote of the Directors present at a meeting at which a quorum is present, terminate the membership. Section 6. Reinstatement - Upon written request signed by a former member and filed with the VP of Finance, the Board may, by affirmative vote of two-thirds of the Directors present at a meeting at which a quorum is present, reinstate a former member to membership upon such terms as the Board may deem appropriate.

93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 Section 7. Transfer of Membership - Membership in NCTA is not transferable or assignable. Article IV Chartered Associations Section 1. Chartered Associations - Associations which meet the requirements outlined in these Bylaws may serve as chartered associations. Associations may become chartered associations by; a) having a minimum of twenty (20) NCTA members of any class who pay NCTA dues equal to twenty (20) times the minimum Industry Membership dues; and b) making application by letter to the NCTA Board; and c) paying a US$50 non-refundable fee; and d) receiving approval of the NCTA Board. A chartered association's status may be terminated by a two-thirds (2/3) vote of the Board after a hearing. Written notice of the hearing shall be forwarded to the President(s) and Secretary(s) of the chartered association, and to the Board thirty (30) days prior to the hearing. Section 2. Geographic Area - The chartered association area is the geographic area to be served by a chartered association. No new association shall be granted status as a chartered association in a geographic area served by a chartered association without a two-thirds (2/3) majority vote of the Board. The Board may change the chartered association's area by a majority vote provided that no new association charter is granted for the changed area and all chartered associations affected by the change have consented to such change. Article V Membership Dues Section 1. Membership Dues Members shall pay annual dues based on the type of membership they select. Annual dues and fees shall be set at an appropriate time each year by the Board. A majority vote of the Directors present at a meeting in which a quorum is present is required to set the dues and fee schedule. Section 2. Group Dues - The Board may specify reduced NCTA dues for members of chartered associations where NCTA membership is mandatory for all members of the chartered association. Section 3. Employees & Partners - Any employee of an individual who is a member in good standing who is not otherwise involved in the Christmas Tree business in their individual capacity shall pay the minimum dues for the class of membership selected. Any partner or employee of a partnership in which one of the partners is a member in good standing who is not otherwise involved in the Christmas Tree business in their individual capacity shall pay the minimum dues for the class of membership selected. Any Officer or employee of a corporation that is a member in good standing who is not otherwise involved in the Christmas Tree business in their individual capacity shall pay the minimum dues for the class of membership selected. Section 4. Termination for Failure to Pay Dues - Dues shall be paid by December 31 of each year for membership the following year. If dues are not received by February 15, the member shall be deemed to have resigned from membership and, without further notice and without a hearing, be dropped from the rolls and thereupon forfeit all rights and privileges of membership. Delinquent members may reinstate

141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 their membership by paying the full annual dues for the year of reinstatement. The Board may, however, from time to time, prescribe procedures for extending the time for payment of dues and continuation of membership privileges upon request of a member and for good cause shown. Article VI Board of Directors Section 1. Number of Directors - The Board of up to thirty-nine (39) shall be responsible for the affairs of the organization. Each Director shall be a member of NCTA. Section 2. Eligibility - Any member of a chartered association is eligible to be a candidate to be elected NCTA Director representing said chartered association providing the candidate has paid NCTA member dues by February 15 of the year in which the election is held. Section 3. Term of Office - Each Director, shall serve for a term of four (4) years or until the Director s successor is duly elected and qualified or until the Director s death, resignation or removal, whichever is earlier. Beginning with those elected in 1999, Directors shall be limited to a maximum of three (3) successive terms. After being off of the Board for a minimum of four years, the person shall again be eligible for election to the Board. A Director elected to serve as an Officer shall be exempted from this term limit for the duration of the Director s tenure as an Officer. Each four-year term of a Director shall commence on the first day of the calendar year following their election and shall terminate at midnight of the last day of the fourth year of their term. Section 4. Elections - Each chartered association shall elect the NCTA Director according to that association s election procedure. The president of said chartered association shall notify the NCTA President (in writing) of a chartered association s election results by August 1 of the year preceding the start of that Director s new 4-year term. Section 5. Vacancies - Any vacancy occurring on the Board or any Directorship shall be filled by the entity from which the vacancy originated. Section 6. At-large Directors - In addition, five (5) additional at-large Board seats will be elected. Election of at-large Directors must be from Industry, Professional or Supplier category. Nominations for at-large Directors are made by a nominating committee of current board members appointed by the President. Also, a notice to all members must be sent announcing that nominations are open. All nominations for at-large Directors must be received by the Association not less than 30 days prior to the advertised date of the annual meeting of the Association. Elections for at-large Directors shall be held at the annual business meeting using the method determined by a majority vote of the members present. Section 7. Alternate Director - An Alternate Director may be designated to attend any Board meeting in place of the elected Director. The Alternate Director, who must be an Active Member of NCTA, shall have credentials signed by the elected Director. If the elected Director is unable to designate an alternate, such designation may be made by the president of the chartered association. Section 8. Vote - Each person serving on the NCTA Board shall have one (1) vote at all meetings, even if elected to serve in multiple positions.

190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 Section 9. Compensation - Directors shall not receive any stated salaries for their services, but by resolution of the Board a fixed sum and expenses of attendance, if any, may be paid for each regular or special meeting of the Board, provided that nothing herein contained shall be construed to preclude any Director from serving NCTA in any other capacity and receiving reasonable compensation therefor except as limited by Board policy. Article VII Meetings of the Board Section 1. Annual Meeting - An annual meeting of the Board shall be held without other notice than these Bylaws, at the date, time and place established by the Board. Section 2. Other Regular Meetings - The Board may provide by resolution the date, time and place for the holding of additional regular meetings of the Board without other notice than such resolution. Section 3. Special Meetings - Special meetings of the Board may be called by the President, the Executive Committee or on written request of five (5) Directors. Section 4. Notice - Notice of any special meeting of the Board shall be given at least two (2) days previous thereto by written notice to each Director at the address shown for such Director on the records of NCTA. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail in a sealed envelope so addressed, with postage thereon prepaid. If notice shall be given by telephone, such notice shall be deemed to be delivered when the call is made. If notice shall be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Notice of any special meeting of the Board may be waived in writing, signed by the person or persons entitled to such notice either before or after the time of the meeting. The attendance of a Director at any meeting shall constitute a waiver of notice of such meeting, except where a Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the notice or waiver of notice of such meeting, unless specifically required by law or by these Bylaws. Section 5. Quorum - At all meetings of the Board, a majority of the total number of Directors in office shall constitute a quorum for the transaction of business, provided that if less than a majority of the Directors is present at said meeting, a majority of the Directors present may adjourn the meeting to another time without further notice. Section 6. Manner of Action - The act of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board, unless the act of a greater number is required by statute, the Articles of Incorporation or these Bylaws. Section 7. Action Without Meeting - Any action required to be taken at a meeting of the Directors of NCTA, or any other action which may be taken at a meeting of Directors, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all the Directors entitled to vote with respect to the subject matter thereof. Section 8. Attendance by Telephone - Directors may participate in any meeting through the use of a conference telephone or similar communications equipment by means of which all persons participating

239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. Article VIII Officers Section 1. Titles - The Officers of NCTA shall be a President, a President Elect, a Vice President of Finance, and two additional Vice Presidents, who must be Directors of NCTA, and who shall be elected by the Board. Section 2. Elections - The Officers shall be elected at the annual meeting of the Board and shall serve for a term of two (2) years. Their term of office shall commence on the first day of the calendar year following elections and shall terminate two (2) years hence, at midnight on the last day of the year in which elections are next held or until their successors are elected and qualified or until their death, resignation or removal, whichever is earlier. Vacancies may be filled or new offices created and filled at any meeting of the Board. The Board, through policy, shall establish procedures for election of Officers. Election of an Officer shall not of itself create contract rights. Any Officer elected by the Board may be removed by two-thirds majority of the Board whenever in its judgment the best interests of NCTA would be served by such removal. Such removal shall be without prejudice to the contract rights, if any, of the person so removed. No person shall serve more than one (1) successive term as President. Section 3. President - The President shall preside at all meetings of NCTA and the Board and shall have general charge and supervision of the affairs of the Association, together with such duties as may, from time to time, be delegated to him by the Board. The President shall appoint all standing committees and shall be an ex-officio member of all committees. Except in those instances in which the authority to execute is expressly delegated to another Officer or agent of NCTA or a different mode of execution is expressly prescribed by the Board, the President may execute for NCTA any contracts, deeds, mortgages, bonds, or other instruments which the Board has authorized to be executed, and the President may accomplish such execution either under or without the seal of NCTA and either individually or with the VP of Finance, any Assistant VP of Finance, or any other Officer as authorized by the Board, according to the requirements of the form of the instrument. The President may vote all securities which NCTA is entitled to vote except as and to the extent such authority shall be vested in a different Officer or agent of NCTA by the Board. Section 4. President Elect - The President Elect shall assume the duties of the President in the President s absence, or death, or at the President's request. The President Elect may also perform other duties as delegated by the President. The President Elect shall automatically succeed to the office of President on the first day of the calendar year following the meeting when election of officers is held. Section 5. Vice Presidents - The Vice Presidents shall perform duties as delegated by the President and/or established in Board policy. Section 6. Vice President of Finance - The VP of Finance shall keep a record of all transactions of the meetings of the Board and Executive Committee in the record books of NCTA. The VP of Finance shall see that proper notice is given of all meetings of the NCTA Board and the Executive Committee. The VP

287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 of Finance shall be custodian of the records of NCTA and shall perform such other duties as may be assigned by the President. The VP of Finance shall supervise receipt of all moneys and the deposit of same to the credit of NCTA in such depository as may be designated by the Board. The VP of Finance shall authorize payment of all bills. The VP of Finance shall make reports to the annual meeting of the Board. The books of the VP of Finance shall be open at all times to the Board and shall be audited once each year by an Audit Committee appointed by the President, or by a Certified Public Accountant approved by the Board. The VP of Finance and the Executive Director, shall give bond with a commercial bonding company, the premium to be paid by NCTA. The amount of bond and the bonding company shall be approved by the Board. Section 8. Executive Director - The Board shall have the power to employ an Executive Director or contract with an association management company, who shall not be a member of the Board, to assist the Officers in carrying out the functions of their offices and perform such other functions as from time to time may be assigned by the Board. Article IX Executive Committee Section 1. Membership - There shall be an Executive Committee composed of five (5) elected Directors of NCTA. The five (5) elected Committee members shall include the President, President Elect, a Vice President of Finance and two (2) additional Vice Presidents elected by the Board. The Immediate Past President will serve on the Executive Committee as an ex-officio, non-voting member. One (1) member of the elected Executive Committee must be an at large director. Each individual who is a member of the Executive Committee shall have only one vote, except the Immediate Past President who shall be a non-voting member. Section 2. Election - The five (5) elected Committee members of the Executive Committee shall be elected biennially and assume office on the first day of the calendar year following their election. The term will end at midnight on the last day of the year following the date of assuming office, i.e, a two (2) year term. The Immediate Past President automatically stays on the Executive Committee for the next two year term. Section 3. Functions - The Executive Committee shall handle such functions as delegated to it by the Board and serve in case of need between meetings of the Board. Article X Meetings of Members Section 1. Annual Meeting - An annual meeting of the members shall be held on such date, time and place as established by the Board. Section 2. Special Meetings - Special meetings of the members may be called by the President, the Board, or not less than one-tenth of the Active Members having voting rights. Section 3. Notice of Meetings - Written notice stating the place, date, and hour of any meeting of members shall be delivered to each member entitled to vote at such meeting not less than ten (10) nor

334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 more than sixty (60) days before the date of such meeting, or in the case of a removal of one or more Directors, a merger, consolidation, dissolution or sale, lease or exchange of assets, not less than twenty (20) nor more than sixty (60) days before the date of such meeting. In case of a special meeting or when required by statute or by these Bylaws, the purpose for which the meeting is called shall be stated in the notice. If mailed, the notice of a meeting shall be deemed delivered when deposited in the United States mail addressed to the member at their address as it appears on the records of NCTA, with postage thereon prepaid. Section 4. Record Date - The record date for any meeting of the members shall be the date on which notice is delivered. Section 5. Quorum - The members holding one-twentieth (1/20) of the votes which may be cast at any meeting shall constitute a quorum at such meeting. If a quorum is not present at any meeting of members, a majority of the members present may adjourn the meeting at any time without further notice. At any adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the original meeting; withdrawal of members from any meeting shall not cause failure of a duly constituted quorum at that meeting. Section 6. Action Without Meeting - Any action required to be taken at a meeting of the members of NCTA, or any other action which may be taken at a meeting of members, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed either by all of the members entitled to vote with respect to the subject matter thereof, or by the members having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all members entitled to vote thereon were present and voting. If a consent is signed by less than all of the members entitled to vote, then at least five (5) days prior to the effective date of such consent a notice in writing of the proposed action shall be delivered to all of the members entitled to vote with respect to the action taken. Notice shall also be given, promptly after the effective date of such consent, to all members entitled to vote who have not consented. Section 7. Attendance by Telephone - Members may participate in any meeting through the use of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. Section 8. Proxy Voting - Members are not entitled to vote by proxy. Section 9. Voting Agreements - Members are not entitled to enter into or vote by voting agreements. Article XI General Provisions Section 1. Contracts - The Board may authorize any Officer or Officers or agent or agents of NCTA to enter into any contract or execute and deliver any instrument in the name of and on behalf of NCTA and such authority may be general or confined to specific instances. Section 2. Checks, Drafts, Etc. - All funds of NCTA shall be deposited from time to time to the credit of NCTA in such banks, trust companies, or other depositories as the Board may select. All checks, drafts or

383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 other orders for the payment of money, notes or other evidences of indebtedness issued in the name of NCTA shall be signed by such Officer or Officers or agent or agents of NCTA and in such manner as shall, from time to time, be determined by resolution of the Board. In the absence of such determination by the Board, such instruments shall be signed by the VP of Finance and countersigned by the President of NCTA. Section 3. Fiscal Year - The fiscal year of NCTA shall begin on January 1 of each year and shall continue through December 31. Section 4. Seal - On the corporate seal shall be inscribed the name of the association and the words "Corporate Seal" and "Wisconsin." Section 5. Waiver of Notice - Whenever any notice is required to be given under law, the Articles of Incorporation or the Bylaws of NCTA, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Section 6. Use of Funds and Dissolution - NCTA shall use its funds only to accomplish the objectives and purposes specified in its Articles of Incorporation, and no part of its funds shall inure or be distributed to the members of NCTA. Upon dissolution of NCTA, any funds remaining after the payment or provision for the payment of all the liabilities of NCTA shall be distributed in the manner specified in the Articles of Incorporation of NCTA or to such organization or organizations as shall at the time qualify as an exempt organization or organizations under Section 501(c) (3) of the Internal Revenue Code of 1986, as amended (or any corresponding provision of any future United States Internal Revenue law), as the Board of NCTA shall determine. Section 7. Amendments - The power to alter, amend, or repeal the Bylaws or adopt new Bylaws shall be vested in the Board. Such action may be taken at a regular or special meeting for which written notice of the purpose shall be given. A two-thirds (2/3) vote of the Directors present and voting is required to alter, amend or repeal the Bylaws. The Bylaws may contain any provisions for the regulation and management of the affairs of NCTA not inconsistent with law or the Articles of Incorporation. Section 8. Bonding - The Board may require any Officer, Director, employee, or agent of NCTA, to furnish at the expense of NCTA, a fidelity bond, in such a sum as the Board shall prescribe. Section 9. Procedure - All meetings of NCTA shall be governed by parliamentary law as set forth in the most recent edition of Robert's Rules of Order when not inconsistent with law or these Bylaws. Article XII Liability, Indemnification and Insurance Section 1. Actions by Third Parties - NCTA may indemnify 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 (other than an action by or in the right of NCTA) by reason of the fact that he or she is or was a Director, Officer, employee or agent of NCTA, or is or was serving at the request of NCTA as a Director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such

432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 action, suit or proceeding, 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 NCTA, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a 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 they reasonably believed to be in, or not opposed to, the best interests of NCTA, or, with respect to any criminal action or proceeding, that the person had reasonable cause to believe that their conduct was unlawful. Section 2. Actions by or in the Right of NCTA - NCTA may indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of NCTA to procure a judgment in its favor by reason of the fact that such person is or was a Director, Officer, employee or agent of NCTA, or is or was serving at the request of NCTA as a Director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, 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 NCTA, provided that 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 their duty to NCTA, unless, and only to the extent that 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 as the court shall deem proper. Section 3. Successful Defense - To the extent that a Director, Officer, employee or agent of NCTA has been successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to in Sections (1) and (2) of this Article, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. Section 4. Authorization - Any indemnification under Sections (1) and (2) of this Article (unless ordered by a court) shall be made by NCTA only as authorized in the specific case, upon a determination 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 Sections (1) and (2) of this Article. Such determination shall be made (i) by the Board by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested Directors so directs, by independent legal counsel in a written opinion, or (iii) by the members entitled to vote, if any. Section 5. Advance Payments - Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by NCTA in advance of the final disposition of such action, suit or proceeding, as authorized by the Board in the specific case, upon receipt of an undertaking by or on behalf of the Director, Officer, employee or agent to repay such amount, unless it shall ultimately be determined that he or she is entitled to be indemnified by NCTA as authorized in this Article. Section 6. Non-exclusivity - The indemnification provided by this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any agreement, vote of disinterested Directors, or otherwise, both as to action in their official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased

481 482 483 484 485 486 487 488 489 490 491 492 493 to be a Director, Officer, employee or agent, and shall inure to the benefit of the heirs, executors and administrators of such a person. Section 7. Insurance - NCTA may purchase and maintain insurance on behalf of any person who is or was a Director, Officer, employee or agent of NCTA, or who is or was serving at the request of NCTA as a Director, Officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of their status as such, whether or not NCTA would have the power to indemnify such person against such liability under the provisions of this Article. Section 8. Reports - If NCTA has paid indemnity or has advanced expenses under this Article to a Director, Officer, employee or agent, NCTA shall report the indemnification or advance in writing to the members entitled to vote with or before the notice of the next meeting of such members.