; or (ii) inclusion of the securities of the issuer in indexes created by index providers that select those indexes on a primarily nonpecuniary basis or that include such securities in any index on a primarily nonpecuniary basis. (2) Demand excused For the purpose of determining whether demand is excused with respect to a covered claim, there shall be a presumption that a director is not independent if the director is employed, controlled, or nominated by, or otherwise has a history of affiliation with a nonpecuniary investment entity or any affiliate of a nonpecuniary investment entity. (d) Rules of construction Nothing in this section may be construed— (1) to limit the exercise of religion, as defined in section 5 of the Religious Freedom Restoration Act of 1993 ( 42 U.S.C. 2000bb–2 ) of any issuer or any director, officer, or affiliate of an issuer; or (2) as establishing a fiduciary duty by any corporate defendant or corporate actor. .