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38 <br /> by any party seeking derivatively to enforce a liability of <br /> such a person to the corporation, shall be entitled to <br /> indemnification, or reimbursement by the corporation for any <br /> expenses, including attorneys' fees, or any liabilities which <br /> the Director, officer, employee or agent may have incurred in <br /> consequence of such action, suit or proceeding, under the <br /> following conditions: <br /> (1) If such person is wholly successful in such person's <br /> defense on the merits, or if the proceeding is an <br /> administrative or investigative proceeding which does not <br /> result in the indictment, fine or penalty of such person, such <br /> person is entitled to reimbursement from the corporation of <br /> all reasonable expenses of defense or participation, including <br /> attorneys' fees. <br /> (2) If such person is wholly successful in such person's <br /> defense otherwise than solely on the merits, the corporation <br /> may pay or agree to pay to such person such expenses of <br /> defense or participation, including attorneys' fees, as the <br /> Board of Directors in good faith deems reasonable, regardless <br /> of any adverse interest of any or all of the Directors. <br /> (3) If such person is not wholly successful or is <br /> unsuccessful in such person's defense, or if the proceeding to <br /> which such person is a party results in such person's <br /> indictment, fine or penalty, the corporation may pay or agree <br /> to pay, in whole or in part, such expenses of defense or <br /> participation, including attorneys' fees, and the amount of <br /> RaI2\R55090-006\0047496.06\10-07-94 29 <br />