Andrew S. and Linda Hayworth Brenner - Page 6

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          laws (Article XIII), as in effect at that time.  In relevant                
          part, Article XIII provides as follows:                                     
                                    ARTICLE XIII                                      
                    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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