EXHIBIT 3
SAFEKEEPING AGREEMENT
BETWEEN
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
AND
LINCOLN NATIONAL VARIABLE ANNUITY FUND A
AND
BANKERS TRUST COMPANY
AS APPROVED BY THE COMMISSIONER OF INSURANCE OF INDIANA
On September 16, 1966 The Lincoln National Life Insurance Company (the
"Company") established a segregated investment account of the Company pursuant
to provisions of the statutes of Indiana governing life insurance companies for
the purposes of engaging in a variable annuity business. That account has been
named "Lincoln National Variable Annuity Fund A" (the "Fund"). The Company will
perform investment management services for the Fund. A part of those services
will be executing a program of investment for the Fund by purchasing and selling
securities. The purpose of this agreement is to make arrangements for the
safekeeping of the securities and other assets in the Fund and for the
disposition of those securities in accordance with the conduct of a variable
annuity business.
This agreement, when executed by the Company, by the Fund and by Bankers
Trust Company ("Bankers"), of the City of New York, New York and when approved
by the Commissioner of Insurance of the State of Indiana ("Commissioner"), shall
constitute the Safekeeping Agreement:
2
1. The term "Security" or "Securities" as used in this agreement shall
include all bonds., coupons, debentures., notes, drafts., bills of exchange,
certificates of stock, currency and all. negotiable and non- negotiable
instruments, documents, contracts or property of whatsoever kind or character
representing or evidencing money, property rights or indebtedness., except money
deposited into the Fund Bank Account (as such term is defined in paragraph 7).
2. Bankers shall establish and maintain for purposes of this agreement
two safekeeping accounts, one to be known as the Joint Account and the other as
the Fund Bank Account. All Securities held for the account of the Fund shall be
held jointly with the Department of Insurance of the State of Indiana (the
"Department") for the benefit of only the holders of, or participants in,
variable annuity contracts, whose contributions have been placed in the Fund,
and shall constitute the Joint Account. All other assets held for the account of
the Fund shall be held in the Fund Bank Account in accordance with paragraph 7.
All Securities and other assets held for the account of the Fund under this
AGREEMENT ARE referred to as "Assets in the Fund".
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3. All Assets in the Fund shall be deposited with Bankers for
safekeeping under this agreement.
4. The custody of Bankers under any account established under this
agreement shall be deemed to have commenced concurrently with the receipt of
delivery, irrespective of the place or time of delivery, of any Asset in the
Fund delivered to Bankers or its agents or representatives by Company, by the
Fund or by any other person, firm, corporation or governmental agency, authority
or subdivision. The custody of Bankers shall continue until Bankers shall have
made an authorized delivery of the Assets in the Fund.
5. Bankers agrees to receive and to safely keep and preserve all Assets
in the Fund delivered to Bankers and to take all action with respect thereto,
all as provided in this agreement. Bankers assumes full responsibility for the
safekeeping of all Securities in the custody of Bankers under this agreement and
for the performance and completion of any transaction relating to any such
Security, except that BANKERS SHALL not be responsible for any lose directly
resulting from war, civil war, insurrection, or military, naval
4
4. or usurped power.
6. Bankers agrees to place and hold the Securities delivered to it under
this agreement in its bank vault situated on or within its premises at ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, and to safeguard the Securities in the same
manner as like securities of, Bankers. Bankers AGREES NOT to remove such
Securities to vaults situated elsewhere without having first procured the
consent of the Company and of the Department. Such Securities shall at all times
be physically segregated from the securities of Bankers and of other persons,
firms or corporations and of other accounts so that at all times such Securities
may be identified as Securities deposited for safekeeping in the Joint Account.
7. A bank account with Bankers (the "Fund Bank Account") shall receive
money and credit on behalf of the Fund and shall disburse funds or be charged on
behalf of the Fund, all as directed by Authorized Persons (as defined in
paragraph 8).
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8. The Board of Managers of the Fund shall authorize by resolution not
more than five persons who are officers or responsible employees of the Fund and
of the Company, to direct (a) the purchase, sale, delivery or exchange of
Securities and (b) a charge or credit to the Fund Bank Account. Any two of such
persons so authorized shall act jointly, but one of the persons so acting shall
be an officer of the Fund and of the Company. Any group of two or more such
persons, one being an officer of the Fund and of the Company, is referred to in
this agreement as "Authorized Persons". The Board of Managers of the Fund shall
from time to time furnish Bankers with a certificate or certificates setting
forth the names and signing signatures of the Authorized Persons. Each of the
Authorized Persons shall be bonded as required by the Investment Company Act of
1940, as amended, and the rules and regulations promulgated thereunder.
6
9. The two following persons, the Chairman of the Board of Managers and
the Secretary to the Board of Managers of the Fund., Jointly,, are authorized
and permitted to have access to the Securities deposited in the Joint Account,
for the purpose of inspection, but only when accompanied by (a) a duly
authorized representative of the Department, and (b) a duly authorized officer
or employee of Bankers .
10. Access to Securities deposited in the Joint Account shall be
permitted to the duly authorized officers and employees of Bankers for purposes
of this agreement.
11. Access to Securities deposited in the Joint Account shall be
permitted, jointly with any officer or employee of Bankers., to an independent
public accountant for the purpose of the examination of the Securities of the
Fund required by the rules and regulations of the Securities and Exchange
Commission.
12. The Securities deposited in the Joint Account shall at all times be
subject to inspection by the Securities and Exchange Commission through its
authorized employees or agents accompanied, unless
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otherwise directed by order of the Commission, by one or more of the duly
authorized officers or employees of Bankers.
13. The Securities in the Joint Account shall be verified by complete
examination of an independent public accountant retained by the Fund at least
three times during each fiscal year of the Fund, at least two of which times
shall be chosen by the accountant without prior notice to the Fund or to the
Company. A certificate of such accountant, stating that he has made an
examination of the Securities and describing the nature and extent of the
examination, shall be transmitted to the Securities and Exchange Commission by
the accountant promptly after each such examination.
14. Upon the receipt of the written instructions of Authorized Persons
Bankers will undertake to complete the purchase of Securities for the account of
the Fund, and will comply fully with such instructions and will assume full
responsibility for performance of such instructions relating to the completion
of purchase of those Securities,including, without limitation, (a) the payment
for those Securities and (b) the charging of the Fund Bank Account for such
purchase and the brokerage fees and other costs of such purchase (except those
Costs to be borne by the Company pursuant to paragraph 27 of this agreement)
8
and (c) the acceptance and delivery of Securities and (d) their transportation
to Bankers' vaults. Upon completion of each purchase transaction or upon receipt
of a Security deposited in the Joint Account, Bankers shall supply each of the
Company, the Fund and the Department with a custody receipt, in the joint names
of the Company, the Fund and the Department, (i) identifying the Security and
(ii) certifying that Bankers has received the Security and has placed it in the
Joint Account in accordance with this agreement, and (iii) stating the amount
for which the Fund Bank Account has been charged.
15. Upon receipt of written instructions of Authorized Persons, Bankers
will undertake to complete any sale or other disposition of Securities in the
Joint Account, and will comply fully with such instructions and will. assume
full responsibility for the completion of such transaction. Bankers will not be
obligated to act unless and until it has received the written authorization for
such sale or other disposition of an authorized representative of the
Department. Upon completion of sale or other disposition of Securities in the
Joint Account Bankers will deposit in the Fund Bank Account, or credit the
9
Fund Bank Account with, the net proceeds of sale or other disposition and will
supply Company and the Fund with a credit advice, showing (a) delivery and (b)
the receipt of cash or credits in the amount for which the Fund Bank Account has
been credited. Brokerage fees, transfer taxes and other costs of sale or other
disposition, except those costs to be borne by the Company pursuant to paragraph
27 of this agreement, shall be deducted from the proceeds of sale or' charged to
the Fund Bank Account.
16. Upon receipt of instructions from Authorized Persons pertaining to
the purchase of a Security or to the sale of any Security in the Joint Account,
Bankers may decline to act in relation to such purchase or sale and will
promptly advise the Authorized Persons of its decision. If, however, Bankers
assumes to act with respect to any such transaction, it assumes full
responsibility for completion of the transaction, except only that Bankers shall
not be liable for losses arising directly from war, civil war, insurrection, or
military, naval or usurped power.
17. With respect to any securities in the Joint Account directed by
Authorized Persons to be delivered to any person, FIRM OR corporation, Bankers
assumes full responsibility for the PROPER DELIVERY to the person to whom such
delivery is directed, including but not by way of limitation, the receipt and
collection of funds payable on delivery.
10
18. Each person., when depositing Securities in or withdrawing them from
Bankers or when ordering their withdrawal and delivery from the safekeeping of
Bankers, shall sign a notation in respect of such deposit., withdrawal or order
which shall show (a) the date and time of the deposit, withdrawal or order, (b)
the title and amount of the Securities deposited, withdrawn or ordered to be
withdrawn, and an identification thereof by certificate numbers or otherwise,
(c) the manner of acquisition,of the Securities deposited or the purpose for
which they have been withdrawn, or ordered to be withdrawn, and (d) if withdrawn
and delivered to another person, the name of such person. Such notation shall be
transmitted promptly to an officer of the Fund or a member of the Board of
Managers of the Fund designated by resolution of its Board of Managers. The
person so designated shall not be a person authorized to have access to the
Securities on behalf of the Fund. The notation shall be on serially numbered
forms and shall be preserved for at least one year.
19. Bankers is authorized and empowered to exchange Securities in the
Joint Account in temporary form for like Securities in definitive form, and if
the stated or par value
11
of any shares of stock is changed, to effect the exchange of the certificates of
stock. Bankers shall make such other exchanges in such Securities as may be
specifically directed by Authorized Persons.
20. Bankers is authorized to accept payment of dividends and interest on
all securities, registered or otherwise, which are deposited in the Joint
Account, which sums shall be placed in the Fund Bank Account. Bankers shall
likewise be authorized and empowered to clip interest coupons as they become
due, to make collections thereof, to make collections of all such maturing
Securities and all such Securi- ties called for redemption and to credit the
Fund Bank Account with such collections. Bankers shall be empowered to endorse
payments upon any Securities in the Joint Account payable in installments as may
be required by the terms of such documents. In accepting payments on account of
any such security, Bankers accepts full responsibility for the correctness of
the amount of interest or principal so collected, for adequacy of the
collection, and with respect to whether the amount so collected 13 at the time
of payment to Bankers properly payable under the terms of the Security.
12
21. As Bankers may receive dividend checks, stock dividends, stock
rights, notices, proxies and communications directed to Company or the Fund
respecting Securities in the Joint Account, Bankers may accept and open all mail
so addressed. Bankers shall handle such mail as shall be proper for Bankers to
handle. Other mail and communications shall be promptly transmitted to the
Company or to the Fund, as the case may be, at the address of the party
concerned as specified by this agreement.
22. Bankers shall be under no duty to supervise the investment of or to
advise or make any recommendations to the Company or the Fund with respect to
any purchase, sale or other acquisition or disposition of any Security at any
time. Company assumes the duty of filing any and all tax reports and returns and
of paying all taxes other than transfer taxes payable by the Company or the Fund
on account of any Securities in the Joint Account or the income therefrom, and
on any transactions which Bankers may handle under this agreement for the
account of the Fund in respect of any Security in the Joint Account.
13
23. Bankers shall from time to time as needed or requested by the Company
or the Fund, supply to (a) the Company, (b) the Fund, (c) the insurance
department, the insurance commissioner or any other similarly designated
official of any state or (d) the Securities and Exchange Commission.,
verification certificates executed by a responsible officer of Bankers listing
and identifying the Securities held in the Joint Account.
24. With respect to the Securities deposited in the Joint Account, the
Department shall allow full credit to the Company for all eligible Securities of
the Fund so deposited, to the same extent and subject to the same limitations as
if deposited with the Department in the State of Indiana according to the law
governing required deposits to cover reserves. It is understood that the
Department shall have and possess no greater rights and powers with respect to
the Securities on deposit in the Joint Account than it would have if the
Securities were deposited within the State of Indiana as a credit on required
deposits to COVER RESERVES; AND it is further understood that the
14
Securities deposited in the Joint Account are for the benefit of only the
holders of, or participants in, variable annuity contracts, whose contributions
have been placed in the Fund. Bankers is and shall be absolved from all
responsibility respecting the eligibility of any Security deposited with it in
the Joint Account as a credit on required deposits.
25. Orders authorizing withdrawal of Securities in the Joint Account free
of payment or against payment shall only be on the signatures of Authorized
Persons and an authorized representative of the Department. A telegram, which
shall include a confidential key word supplied by the Department and a
confidential key word supplied by Authorized Persons, shall be considered and
have like full force as a signed order, such telegram to be confirmed
immediately by mail by authorized signatures of the Department and of Authorized
Persons. The method of determining key words shall be delivered to the
Department direct by Bankers. The Department shall execute orders for withdrawal
from the Joint Account on request therefor by Authorized Persons in accordance
with the customary method
15
adopted for the withdrawal of Securities on deposit with the Department other
than those deposited with Bankers, but Bankers shall not be required to see to
it that all of the usual regulations governing withdrawals have been met and
Bankers shall be released from all responsibility for the methods employed by
Authorized Persons in obtaining the Department's approval of withdrawals.
26. Securities in registered form deposited in the Joint Account are to
be transferred by Bankers to the name of: Lincoln National Variable Annuity Fund
A of The Lincoln National Life Insurance Company.
27. Bankers may advance and charge the Company's account with Bankers for
all sums advanced by Bankers for postage, shipping charges and insurance upon
securities during transit.
28. The Company shall pay to Bankers as compensation for the services of
Bankers to be performed under this agreement a fee computed at the rates agreed
upon
16
or to be agreed upon by Company and Bankers from time to time, and Bankers is
authorized to charge the Company's account semiannually with the amount due
Bankers under this provision.
29. With respect to future deposits this agreement may be terminated by
the Company, the Fund or Bankers at any time upon not less than 30 days' written
notice to other parties. Notwithstanding termination, subsequent withdrawals
from any account established under this agreement cannot be effected except in
the manner provided in this agreement.
30. All receipts, notices or communications which Bankers shall be
obligated to deliver under this agreement shall be sent by first class mail and
(a) if to the Company, addressed to the Company at P. 0. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, attention Treasurer; and (b) if to the Fund, addressed to Lincoln
National Variable Annuity Fund A, c/o The Lincoln National Life Insurance
Company, P. 0. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: Chairman, Board
of Managers; and (c) if to the Department, addressed to the authorized
representative of the department of insurance, state of
17
Indiana, as the Department may from time to time direct; and if any of the
Company or the Fund or the Department shall designate for itself any other
address in writing to Bankers, to such other address.
Dated this 12th day of January 1967
---- --------------------
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By /s/ ▇. ▇. ▇▇▇▇▇▇
---------------------------------------
▇. ▇. ▇▇▇▇▇▇, Vice President and
Treasurer
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Assistant Secretary
WITNESS LINCOLN NATIONAL VARIABLE ANNUITY FUND
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------- -------------------------------
Secretary to Chairman of Board of Managers
Board of Managers, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BANKERS TRUST COMPANY
By Signature Illegible
--------------------------
Vice President
APPROVED Feb. 13, 1967
---------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
COMMISSIONER OF INSURANCE
DEPARTMENT OF INSURANCE OF THE
STATE OF INDIANA
18
AMENDMENT NO. 1
TO
SAFEKEEPING AGREEMENT
BETWEEN
THIE LINCOLN NATIONAL LIFE INSURANCE COMPANY
AND
LINCOLN NATIONAL VARIABLE ANNUITY FUND A
AND
BANKERS TRUST COMPANY
AS APPROVED BY THE COMMISSIONER OF INSURANCE OF INDIANA
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, ("The Lincoln") LINCOLN
NATIONAL VARIABLE ANNUITY FUND A, (the "Fund") and BANKERS TRUST COMPANY
("Bankers") entered into a Safekeeping Agreement dated January 12, 1967. That
agreement was approved by the Commissioner of Insurance, Department of Insurance
of the State of Indiana (the "Department") on February 13, 1967. That agreement
as so approved is referred to as the "Safekeeping Agreement."
Paragraph 26 of the Safekeeping Agreement requires in effect that
Securities (as that term is defined in the Safekeeping Agreement) be registered
in the name of: "Lincoln National Variable Annuity A of The Lincoln National
Life Insurance Company". Since that requirement may result in a refusal by some
transfer agents to register Securities in that name or may prevent Securities
registered in that name from being readily transferred when sold - all to the
detriment
19
of theFund, the parties to the Safekeeping Agreement desire to amend paragraph
26 to provide for the holding of Securities in the name of a nominee.
Therefore, the parties agree that:
1. Paragraph 26 of the Safekeeping Agreement shall be amended to read:
"26. Except when Authorized Persons shall specify that Securities be
registered in the name of 'Lincoln National Variable Annuity Fund A of The
Lincoln National Life Insurance Company', Securities in registered form
deposited in the Joint Account shall be registered in the name of a nominee
which shall at all times meet all of the following requirements:
(1) The nominee shall be a partnership organized or formed by
Bankers;
(2) The nominee shall have as its sole purpose the holding in its
name of Securities deposited under this agreement;
(3) Each member of the nominee partnership SHALL be an officer of
Bankers;
(4) No person shall be a member of the nominee partnership if he
has, under the established rules and procedures Of Bankers relating to
safekeeping or custody; any access to the Securities deposited under this
agreement;
20
(5) The nominee partnership shall conduct no business other than the
holding of registered title to registered Securities deposited under this
agreement.
Bankers shall or form and maintain a nominee partnership or partnerships,
as requcsted by Aluthorized Persons, conforming in all respects to the
requirements set forth above and further shall, in respect of each nominee,
(a) upon the death. retirement or disability of a member of the nominee
partnership, effectively appoint or cause to be appointed a qualified
person to replace the member who died, retired or became disabled, so
that at all times a nominee partnership will be in existence and able to
perform its functions;
(b) bear all expenses of the nominee partnership; and
(c) cause its rec~rds to show clearly and at all times that ownership of
Socurities held in the name of the norninee is in: The Lincoln National
Life Insurance Company - Lincoln National Variable Annuity Fund A.
With respect to Securities rogisterad in the name of a nominee, Bankers
specifically accapts the same responsibilities as if such Securities were
registered in the name of Lincoln National Variable Annuity Fund A of The
Lincoln National Life Insurance Company.
21
When Securities are registered in the name of a nominee, Bankers may require the
transfer of any Security so registered before surrendering possession thereof.
Nothing in this paragraph 26 shall prevent the organization or formation and the
functioning of more than one nominee, provided that all of the provisions of
this paragraph 26 are complied with."
2. The amendment made by this instrument shall not be or become
effective unless and until the Commissioner of Insurance, Department of
Insurance of the State of Indiana shall have approved this instrument as
provided below.
3. Except as amended by this instrument, the Safekeeping Agreement shall
be and remain in all other respsects in full force and effect.
Dated this 1st day of May, 1967.
------ ----------
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By Signature Illegible
---------------------------------------
Senior Vice President
ATTEST:
Signature Illegible
-------------------------------
Assistant Secretary
THE LINCOLN NATIONAL VAREIABLE ANNUITY FUND A
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Chairman of Board of Managers
WITNESS:
Signature Illegible
--------------------------------
Secretary to Board of Managers
BANKERS TRUST COMPANY
By Signature Illegible
------------------------------
Vice President
APPROVED May 5, 1967.
-------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
COMMISSIONER OF INSURANCE
DEPARTMENT OF INSURANCE
OF THE STATE OF INDIANA
[from the bylaws of The Lincoln National Life Insurance Company,
as last amended May 12, 1977]
[from the bylaws of The Lincoln National Life Insurance Company, as last amended
May 12, 1977]
ARTICLE VI
LIABILITY
SECTION 1.-LIABILITY. No person or his personal representatives shall be liable
to the company for any loss or damage suffered by it on account of any action
taken or omitted to be taken by such person in good faith as a director, officer
or employee of the company, or of any other company, partnership, joint venture,
trust or other enterprise which he serves or served as a director, officer,
employee, partner or trustee at the written request of the company, if such
person (a) exercised and used the same degree of care and skill as a prudent man
would have exercised and used under like circumstances, charged with a like
duty, or (b) took or omitted to take such action in reliance upon advice of
counsel for the company or such enterprise or upon statements made or
information furnished by persons employed or retained by the company or such
enterprise upon which he had reasonable grounds to rely. The foregoing shall not
be exclusive of other rights and defenses to which such person or his personal
representatives may be entitled under law.
ARTICLE VII
INDEMNIFICATION
SECTION 1.-ACTIONS BY A THIRD PARTY. The company shall indemnify any person who
is or was a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the company) by
reason of the fact that he is or was a director, officer or employee of the
company, or is or was serving at the written request of the company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contenclere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 2.-ACTIONS BY OR IN THE RIGHT OF THE COMPANY. The company shall
indemnify any person who is or was a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
company to procure a judgment in its favor by reason of the fact that he is or
was a director, officer or employee of the company, or is or was serving at the
written request of the company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the company and except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the company unless and only to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
SECTION 3-METHOD OF DETERMINING WHETHER STANDARDS FOR INDEMNIFICATION HAVE BEEN
MET. Any indemnification under Sections 1 or 2 (unless ordered by a court) shall
be made by the company only as authorized in the specific case upon a
determination that indemnification of the director, officer or employee is
proper in the circumstances because he has met the applicable standards of
conduct set forth in Sections 1 or 2. In the case of directors of the company,
such determination shall be made (1) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion. In the case of individuals who are not directors
of the company, such determination shall be made (1) by the chief executive
officer of the company or (2) if the chief executive officer so directs or in
his absence in the manner it would be made if the individual were a director of
the company.
SECTION 4.-ADVANCEMENT OF DEFENSE EXPENSES. Expenses (including attorneys' fees)
incurred in defending a civil or criminal action, suit or proceeding may be paid
by the company in advance of the final disposition of such action, suit or
proceeding as authorized in the manner provided in Section 3 upon receipt of an
undertaking by or on behalf of the director, officer or employee to repay such
amount unless it shall ultimately be determined that he is entitled to be
indemnified by the company as authorized in this Article.
SECTION 5.-NON-EXCLUSIVENESS OF INDEMNIFICATION. The indemnification provided by
this Article shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under law both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a director, officer or employee and
shall inure to the benefit of the heirs, executors and administrators of such a
person.