Section 21
Indemnification
21.1
The Corporation shall indemnify each person who at any time has served (a) as a member of the Corporation; (b) on any committee of the Corporation; (c ) as an officer of the Corporation; or (d) at the request of the Corporation as an officer, individual trustee, director, or member of any organization with respect to which the Corporation has interests, including any trust or association established in connection with a retirement plan for employees of MIT (each, a “Corporation Indemnitee”) on the terms of this Section 21. The Corporation, shall pay or advance funds for all amounts paid or payable by that Corporation Indemnitee (x) as a judgment, penalty, or fine (including an excise tax assessed with respect to an employee benefit plan); (y) as reasonable amounts paid in settlement; or (z) as reasonable expenses, including legal fees and disbursements, that arise out of any claim or proceeding , whether civil, criminal, investigative, or administrative (a “Claim”), brought or threatened against them in their capacity as a Corporation Indemnitee.
21.2
The Corporation may, in the discretion of the Executive Committee, indemnify any employee or agent (person who acts at the express direction of MIT) of MIT not described in Section 21.1 who acts in good faith within the scope of their role as an employee or agent (each, an “Agent”) for all amounts paid or payable as amounts described in clauses (x)-(z) of Section 21.1 that arise out of any Claim brought or threatened against them in their capacity as an Agent of MIT. The Vice President and General Counsel (“VPGC”) may retain or pay for outside counsel, at MIT’s expense, on behalf of the Agent and may commit to advance funds to pay for the amounts described in clauses (x)-(z) of Section 21.1 without obtaining prior approval from the Executive Committee if in the judgment of the VPGC, based on the information available at the time the Claim is asserted, the Claim does not arise out of conduct that would make it ineligible for indemnification under Section 21.3.
21.3
Notwithstanding any other provision of this Section 21, the Corporation shall not indemnify any Corporation Indemnitee or Agent (each, an “Indemnitee”) for:
(a) any Claim asserted by MIT against an Indemnitee, unless the Indemnitee is wholly successful on the merits in the Claim;
(b) any act or omission by an Indemnitee that:
(i) was undertaken knowingly against the interests of MIT, or knowingly in violation of law or MIT policy;
(ii) constitutes criminal misconduct, intentional wrongdoing, or recklessness; or
(iii) resulted in an improper personal benefit directly or indirectly to the Indemnitee;
(c) any Claim brought by the Indemnitee against MIT, any of its affiliated entities, or any of its or their members, directors, officers, employees, agents, or students.
21.4
The Corporation may impose reasonable conditions or limitations on a decision on indemnification, including without limitation requiring that the Indemnitee cooperate with MIT on the defense of any Claim; provide written assurances that they believe none of the exclusions set forth in Section 21.3 apply; and commit in writing that funds will be repaid if it is later determined by the Executive Committee or adjudicated by a court that indemnification was improper. The Executive Committee, minus any interested members, shall act on behalf of the Corporation for the purposes of this Section 21. In the event there are fewer than three disinterested members of the Executive Committee, the disinterested members shall delegate this responsibility to the VPGC, or, if the VPGC is conflicted or interested, retain special outside legal counsel to provide advice for this purpose.
21.5
Any right of indemnification granted under Section 21 to any Indemnitee shall extend to that person’s heirs, executors, and administrators and shall be without prejudice to any other rights that person may have.
21.6
The Corporation may purchase and maintain insurance and pay retentions on that insurance to cover possible costs that could arise under this Section 21.
21.7
Notwithstanding any other provision of this Section 21, indemnification shall be provided under this Section 21 only (i) to the extent permitted by law; (ii) to the extent that the status of the Corporation as an organization exempt from Federal income taxation or to which contributions are deductible under the Internal Revenue Code is not adversely affected by such indemnification; and (iii) to the extent that no tax under Section 4958 or its successor Section of the Internal Revenue Code, as in effect from time to time, is owed as a result of such indemnification.