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laws (Article XIII), as in effect at that time. In relevant
part, Article XIII provides as follows:
ARTICLE XIII
INDEMNIFICATION
SECTION 1. Except to the extent expressly
prohibited by the New York Business Corporation Law,
the corporation shall indemnify each person made or
threatened to be made a party to any action or
proceeding, whether civil or criminal, by reason of the
fact that such person * * * is or was a director or
officer of the corporation, against judgments, fines
* * * penalties, amounts paid in settlement and
reasonable expenses, including attorneys’ fees,
actually and necessarily incurred in connection with
such action or proceeding, or any appeal therefrom
* * *
Section 2. The corporation shall advance or
promptly reimburse upon request any person entitled
to indemnification hereunder for all expenses,
including attorneys’ fees, reasonably incurred in
defending any action or proceeding in advance of the
final disposition thereof upon receipt of an
undertaking by or on behalf of such person * * * to
repay such amount if such person is ultimately found
not to be entitled to indemnification or, where
indemnification is granted, to the extent the
expenses so advanced or reimbursed exceed the amount
to which such person is entitled * * *
Nomura’s memorandum in opposition to petitioner’s motion and in
support of its own motion for partial summary judgment argues
that, in Article XIII, Nomura “never intended to bear the legal
fees of an employee incurred in his action against Nomura”.
Before the arbitrator could decide the partial summary
judgment motions, the parties ended the arbitration proceeding by
agreeing to settle their dispute (the settlement).
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Last modified: May 25, 2011