Apple 1997 Annual Report Download - page 111

any action or inaction on the part of Indemnitee while a director, officer, employee or agent or by reason of the fact that Indemnitee is or was
serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including reasonable attorneys' fees) and, to the fullest extent permitted by law, amounts paid in settlement, in
each case to the extent actually and reasonably incurred by Indemnitee in connection with the defense or settlement of such action or
proceeding unless the Company shall establish, in accordance with the procedures described in subsection 2(c) of this Agreement, that
Indemnitee did not act in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the Company and its
shareholders, except that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been
adjudged to be liable to the Company in the performance of Indemnitee's duty to the Company or any Subsidiary of the Company unless and
only to the extent that the court in which such action or proceeding is or was pending shall determine upon application that, in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for expenses or amounts paid in settlement and then only to
the extent that the court shall determine.
2. EXPENSES; INDEMNIFICATION PROCEDURE.
(a) ADVANCEMENT OF EXPENSES. The Company shall advance all reasonable expenses incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of any civil or criminal action or proceeding referenced in subsection 1(a) or 1(b) of this Agreement
(but not amounts actually paid in settlement of any such action or proceeding). Indemnitee hereby undertakes to repay such amounts advanced
only if, and to the extent that, it shall ultimately be determined that Indemnitee is not entitled to be indemnified by the Company as authorized
hereby. The advances to be made hereunder shall be paid by the Company to Indemnitee within twenty (20) days following delivery of a
written request therefor by Indemnitee to the Company.
(b) NOTICE/COOPERATION BY INDEMNITEE. Indemnitee shall, as a condition precedent to his right to be indemnified or be advanced
expenses under this Agreement, give the Company notice in writing as soon as practicable of any claim made against Indemnitee for which
indemnification will or could be sought under this Agreement. Notice to the Company shall be directed to the Chief Executive Officer of the
Company at the address shown on the signature page of this Agreement (or such other address as the Company shall designate in writing to
Indemnitee). In addition, Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be
within Indemnitee's power.
(c) PROCEDURE. Any indemnification provided for in Section 1 of this Agreement shall be made no later than forty-five (45) days after the
resolution (by judgment, settlement, dismissal or otherwise) of the claim to which indemnification is sought. If a claim under this Agreement,
under any statute, or under any provision of the Company's Articles of Incorporation or By-laws providing for indemnification, is not paid in
full by the Company within such period, Indemnitee may, but need not, at any time thereafter bring an action against the Company to recover
the unpaid amount of the claim and, subject to
Section 14 of this Agreement, Indemnitee shall also be entitled to be paid for the expenses (including reasonable attorneys' fees) of bringing
such action. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in connection with
any action or proceeding in advance of its final disposition) that Indemnitee has not met the standards of conduct which make it permissible
under applicable law for the Company to indemnify Indemnitee for the amount claimed, but the burden of proving such defense shall be on the
Company, and Indemnitee shall be entitled to receive interim payments of expenses pursuant to subsection 2(a) of this Agreement unless and
until such defense may be finally adjudicated by court order or judgment from which no further right of appeal exists. It is the parties' intention
that if the Company contests Indemnitee's right to indemnification, the question of Indemnitee's right to indemnification shall be for the court to
decide, and neither the failure of the Company (including its Board of Directors, any committee or subgroup of the Board of Directors,
independent legal counsel, or its shareholders) to have made a determination that indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct required by applicable law, nor an actual determination by the Company
(including its Board of Directors, any committee or subgroup of the Board of Directors, independent legal counsel, or its shareholders) that
Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has or has not met the applicable
standard of conduct.
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