MYL_EX10.38_2013.12.31-10K

WHEREAS, such Bylaws, and Chapter 17, Subchapter D, of the Pennsylvania Business Corporation Law of 1988, as amended (the “BCL”), specifically provide that the indemnification and advancement of expenses provided by or pursuant to the BCL is not exclusive of any other rights to which any person may be entitled under any agreement, and thus contemplate that agreements may be entered into with respect to indemnification and advancement of expenses; and

(a) “Proceeding” shall mean any threatened, pending or completed claim, action, suit or proceeding, alternative dispute resolution mechanism, or any hearing, inquiry or investigation, that Indemnitee in good faith believes might lead to the institution of any such claim, action, suit, proceeding, hearing, inquiry, investigation, or alternative dispute mechanism, whether civil, criminal, administrative, investigative or otherwise, whether brought by a third party, in the name of the Corporation or otherwise, or by the Indemnitee.

(b) “Expenses” shall mean all expenses, liability and loss (including, without limitation, attorneys’ fees and disbursements and all other costs, expenses and obligations incurred in connection with investigating, defending, being a witness or potential witness in or participating in (including, without limitation, on appeal), or preparing to defend, to be a witness or potential witness in or participate in, any actual, threatened or completed action, suit, or proceeding, or any alternative dispute resolution mechanism, hearing or investigation), judgments, fines, awards, penalties, ERISA excise taxes

or penalties, amounts paid in settlement (if such settlement is approved by the Corporation, which approval shall not be unreasonably withheld) and punitive and exemplary damages, actually incurred, in respect of any Proceeding, and any federal, state, local or foreign income taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement or otherwise in respect of indemnification (and any federal, state, local or foreign income taxes attributable thereto).

(a) The Corporation shall hold harmless and indemnify the Indemnitee against any and all Expenses actually incurred by Indemnitee in connection with any Proceeding to which the Indemnitee is, was or at any time becomes a party, or is threatened to be made a party or is involved (as a witness, potential witness or otherwise) by reason of (or arising as a whole or in part out of) the fact that Indemnitee is or was a director or officer of the Corporation or of any subsidiary of the Corporation, or is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including, without limitation, service with respect to an employee benefit plan, whether the basis of such Proceeding is alleged action or the failure to take action in Indemnitee’s official capacity, or in any other capacity while serving as a director, officer, trustee, employee or agent (an “Indemnifiable Event”); provided, however, the Corporation shall indemnify Indemnitee hereunder in connection with any Proceeding (or part thereof) initiated by Indemnitee only if such Proceeding (or part thereof) was authorized by the Board of Directors of the Corporation, or except as otherwise provided herein.

(b) Notwithstanding the provisions of Paragraph 2(a), in the event of a determination by a court (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee’s act or failure to act giving rise to the claim for indemnification constituted willful misconduct or recklessness, any such claim shall not constitute an Indemnifiable Event and the Corporation shall have no obligation to indemnify Indemnitee hereunder against any Expenses in connection with such claim; provided, however, that such claim shall constitute an “Indemnifiable Event” and the Corporation shall indemnify Indemnitee for all Expenses hereunder in connection with such claim if and to the same extent that, notwithstanding such final judicial determination, such court or the Corporation shall have determined that indemnification of some or all Expenses incurred by Indemnitee is appropriate and permitted under applicable law.

(c) Without limiting the effect of any other provision of this Agreement, and in addition to the rights of Indemnitee elsewhere set forth in this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Paragraph 2(a) or in defense of any claim, issue or matter therein, Indemnitee shall be indemnified against Expenses actually and reasonably incurred by Indemnitee in connection therewith. For purposes of this Paragraph 2(c), the term “successful on the merits or otherwise” shall include (i) any termination, withdrawal, dismissal, or other resolution (with or without prejudice) of any Proceeding against Indemnitee without any express finding of willful misconduct or recklessness leading to liability or guilt against him, or (ii) the expiration of a reasonable period of time after the making of any claim or threat of a Proceeding without the institution of the same and without any promise or payment made to induce a settlement. The Corporation acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee based on a finding of willful misconduct or recklessness by Indemnitee (including, without limitation, settlement of such Proceeding, with or without payment of money or other consideration, as long as the Corporation has approved the settlement, which approval shall not be unreasonably withheld) it shall be presumed that Indemnitee has been successful on the merits or

(d) Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of (or arising as a whole or in part out of) the fact that Indemnitee is or was a director or officer of the Corporation or of any subsidiary of the Corporation, or is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including, without limitation, service with respect to an employee benefit plan, a witness or a potential witness, or is made (or asked) to respond to discovery requests, in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.

3. Advancement of Expenses. The Corporation shall promptly pay (or reimburse Indemnitee for) all Expenses incurred by Indemnitee from time to time by reason of Indemnitee’s actual or threatened participation (as a party, witness or potential witness, or other participant) in any Proceeding (including, without limitation, appellate Proceedings) for which a claim for indemnification is made hereunder, in advance of the final disposition of such Proceeding. Unless otherwise agreed by Indemnitee and the Corporation, Indemnitee will request third parties to furnish invoices relating to amounts incurred as Expenses directly to the Corporation, which shall promptly make payment thereon directly to such third parties without any out-of-pocket Expenses being incurred by Indemnitee.

(a) In the event of a determination by a court (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee’s conduct relating to any claim for indemnification constituted willful misconduct or recklessness, the Indemnitee shall repay to the Corporation such amount of the Expenses or the appropriate portion thereof, so paid or advanced; provided, however, that Indemnitee shall not be obligated to make such repayment if and to the same extent that, notwithstanding such final judicial determination, such court or the Corporation shall have determined that indemnification of some or all Expenses incurred by Indemnitee is appropriate and permitted under applicable law.

(a) Indemnitee shall be entitled to be indemnified for, and the Corporation shall be obligated to pay, any and all Expenses incurred by Indemnitee in connection with any action, suit or proceeding commenced by Indemnitee (and including, without limitation, such Expenses with respect to any appellate proceeding commenced thereon by either party) to enforce rights or to collect monies under, or interpret any of the terms of, this Agreement, the Corporation’s Articles of Incorporation or its Bylaws, applicable law (including, without limitation, the BCL) or under any liability insurance policies maintained by the Corporation; provided, however, that Indemnitee shall not be entitled to be indemnified for any such amount if, as a part of such action, suit or proceeding, a final judicial determination shall be made (as to which all rights of appeal therefrom have been exhausted or lapsed) that each and every material assertion made by Indemnitee as a basis of such action, suit or proceeding was frivolous. The Corporation shall pay all such amounts in advance of the judicial determination of any such action, suit or proceeding contemplated in this paragraph (including, without limitation, appellate proceedings) in accordance with Paragraph 3 hereof.

not paid in full by the Corporation within twenty (20) days after a written claim has been received by the Corporation, Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, Indemnitee also shall be entitled to be paid the expense of prosecuting or defending such suit, including, without limitation, attorney’s fees.

6. Procedures and Presumptions for Determination of Entitlement to Indemnification. It is the intent of the parties to this Agreement to secure rights of Indemnitee to indemnification that are as favorable as may be permitted under the BCL and public policy of the Commonwealth of Pennsylvania. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:

(a) Procedures. Indemnitee shall present in writing any claims for repayment or advancement of Expenses in connection with a Proceeding to the Executive Committee of the Corporations’ Board of Directors (the “Executive Committee”), unless the Indemnitee is a member of the Executive Committee, in which case the claim for repayment or advancement of Expenses shall be presented to the full Board of Directors. Provided the claims meet the other requirements of this Agreement, the Executive Committee or the Board of Directors, as the case may be, shall then approve payment by the Corporation of those claims and so notify the Indemnitee within ten (10) days of its receipt of the claims for repayment or advancement.

(b) Presumption. It is presumed that Indemnitee is entitled to indemnification by the Corporation for the Expenses actually incurred by Indemnitee in respect of any Proceeding. For the purposes of this Paragraph 6, the Corporation shall have the burden of proof and the burden of persuasion by clear and convincing evidence to establish that Indemnitee is not entitled to be indemnified for any amount of Expenses actually incurred by Indemnitee in respect of any Proceedings.

(c) Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Corporation for some or a portion of the Expenses actually incurred by Indemnitee in respect of any Proceeding, but not for the total amount of such Expenses, the Corporation shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled.

7. Cooperation; Settlement. Indemnitee shall not make any admission or effect any settlement with respect to any Proceeding without the Corporation’s prior written consent. The Corporation shall not settle any such Proceeding in any manner which would impose any penalty or limitation on Indemnitee without Indemnitee’s prior written consent. The Executive Committee shall have the authority to make decisions for the Corporation with respect to any settlement relating to a Proceeding covered by this Agreement; provided, however, that if the Indemnitee is a member of the Executive Committee, then the full Board of Directors shall have such authority. Neither the Corporation nor Indemnitee will unreasonably withhold consent to any proposed settlement; provided, however, that if the Corporation withholds its consent to any settlement proposed by Indemnitee reasonably and in good faith, the Corporation shall thereafter, to the fullest extent permitted by law and this Agreement, (i) advance attorneys’ fees and all other costs in the manner provided in Paragraph 3 hereof, with respect to any separate counsel thereafter retained by Indemnitee in connection with such Proceeding, and (ii) confirm in a manner reasonably satisfactory to Indemnitee that, with respect to such Proceeding, the Corporation shall provide indemnification and/or advancement of Expenses to Indemnitee without regard to any defense, offset, counterclaim or any other basis for which the Corporation may otherwise contest Indemnitee’s entitlement to such amounts. Indemnitee shall cooperate to the extent reasonably possible with the Corporation and its insurers in attempts to defend or settle such Proceeding.

involving Indemnitee for which Indemnitee may be entitled to be indemnified, Indemnitee shall notify the Corporation in writing of the commencement thereof (but the failure to notify the Corporation shall not relieve it from any liability which it may have under this Agreement unless and to the extent that it has been prejudiced in a material respect by such failure or from the forfeiture of substantial rights and defenses). The Corporation will be entitled to participate therein, and to the extent it may elect by written notice delivered to Indemnitee after receiving the aforesaid notice from Indemnitee, to assume the defense thereof with counsel reasonably satisfactory to Indemnitee, which may be the same counsel as counsel to the Corporation. Notwithstanding the foregoing, Indemnitee shall have the right to employ such Indemnitee’s own counsel in any such case, but the fees and costs of such counsel shall be at the expense of Indemnitee unless (i) the employment of such counsel shall have been authorized in writing by the Corporation, or (ii) the Corporation shall not have employed counsel reasonably satisfactory to Indemnitee to take charge of the defense of such action within a reasonable time after notice of commencement of the action, or (iii) Indemnitee shall have retained such counsel pursuant to the provisions of Paragraph 7 hereof, or (iv) Indemnitee shall have reasonably concluded, based upon the written advice of counsel to Indemnitee, that a conflict of interest exists which makes representation by counsel chosen by the Corporation not advisable. In any of the events referred to in (i) through (iv) in the preceding sentence, the Corporation shall not have the right to direct the defense of such action on behalf of Indemnitee, and the fees and costs of one separate counsel retained by Indemnitee shall be borne by the Corporation.

(a) In the event of payment under this Agreement, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including, without limitation, the execution of such documents necessary to enable the Corporation effectively to bring suit to enforce such rights.

10. Contribution. If the indemnification provided in Paragraph 2 is unavailable and may not be paid to Indemnitee because such indemnification is not permitted by law or otherwise under the provisions of this Agreement, then in respect of any Proceeding in which the Corporation is jointly liable with Indemnitee (or would be if joined in such action, suit, or proceeding), the Corporation shall contribute to the fullest extent permitted by law, to the amount of Expenses incurred and paid or payable by Indemnitee in such Proceeding in such proportion as is appropriate to reflect (i) the relative benefits received by the Corporation on the one hand and Indemnitee on the other hand from the transaction from which such Proceeding arose, and (ii) the relative fault of the Corporation on the one hand and of Indemnitee on the other in connection with the events which resulted in such Expenses, as well as any other relevant equitable considerations. The relative fault of the Corporation on the one hand and of Indemnitee on the other shall be determined by reference to among other things, the parties’ relative intent, knowledge, access to information, involvement, and opportunity to correct or prevent the circumstances resulting in such Expenses. The Corporation agrees that it would not be just and equitable if contribution pursuant to this Paragraph 10 were determined by pro rata allocation or any other method of allocation, which does not take account of the foregoing equitable considerations.

with reputable insurance companies providing the directors of the Corporation with coverage for losses from wrongful acts, or to ensure the Corporation’s performance of its indemnification obligations under this Agreement. Among other considerations, the Corporation will weigh the costs of obtaining such insurance coverage against the protection afforded by such coverage. In all policies of directors’ and officers’ liability insurance, Indemnitee shall be insured in such a manner as to provide Indemnitee the same rights and benefits as are accorded to the most favorably insured of the Corporation’s officers or directors.

(b) Notwithstanding the foregoing, the Corporation shall have no obligation to obtain or maintain such insurance if the Corporation determines in good faith that such insurance is not reasonably available, if the premium costs for such insurance are disproportionate to the amount of coverage provided, if the coverage provided by such insurance is limited by exclusions so as to provide an insufficient benefit, or if Indemnitee is covered by similar insurance maintained by an affiliate of the Corporation. If such insurance is not obtained or maintained, then Indemnitee must be notified in advance in writing and, if and as requested by Indemnitee, the Corporation shall establish a trust fund or other comparable arrangement to support the indemnification obligations of the Corporation under this Agreement in an amount comparable to the highest amount of coverage previously secured through insurance during the three preceding years. The amount of funds to be contributed by the Corporation to such a trust fund or other comparable arrangement shall be determined by counsel mutually agreeable to the Corporation and the Indemnitee.

(c) If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Corporation has directors’ and officers’ liability insurance in effect, the Corporation shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Corporation shall thereafter take all necessary action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.

(a) Scope. Notwithstanding any other provision of this Agreement that may limit, or appear to have the effect of limiting the Indemnitee’s right to indemnification by the Corporation pursuant to the BCL or the public policy of the Commonwealth of Pennsylvania, the Corporation shall indemnify Indemnitee to the fullest extent permitted by law and public policy, notwithstanding that such indemnification is not specifically authorized by law, the other provisions of this Agreement, the Corporation’s Articles of Incorporation, its Bylaws, any insurance policy, any agreement, any vote of shareholders of the Corporation or disinterested directors, or otherwise.

(b) Non-exclusivity. The right to indemnification and advancement of Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which the Indemnitee may be entitled under the Corporation’s Articles of Incorporation or its Bylaws, any applicable laws and regulations in effect now or in the future, any insurance policy, any agreement, any vote of shareholders of the Corporation or disinterested directors, or otherwise, both as to actions in Indemnitee’s official capacity and as to actions in another capacity while holding such office. The protection and rights provided by this Agreement and all such other protections and rights are intended to be cumulative.

(c) Subsequent Changes in the Law. In the event of any change, after the date of this Agreement, in any applicable law, statute, or rule, or the interpretation thereof, which expands the right of the Corporation to indemnify the Indemnitee or any other person serving in a capacity referred to in Paragraph 2 hereof, such change shall be deemed to have been made to Indemnitee’s rights, and the Corporation’s obligations, respectively, under this Agreement. In the event of any change in any applicable law, statute, or rule, or the interpretation thereof, which narrows the right of the Indemnitee to receive indemnification and/or the advancement of Expenses hereunder, such change, to the extent not

13. Continuation of Indemnity. All agreements and obligations of the Corporation and of the Indemnitee contained in this Agreement shall continue during the period the Indemnitee is a director or officer of the Corporation or any subsidiary (or is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including, without limitation, any employee benefit plan) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee was a director or officer of the Corporation or serving in any other capacity referred to above and in any case for at least six years following the termination of the Indemnitee’s service as a director or officer of the Corporation or any subsidiary.

(b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.

18. Binding Effect; Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns, including, without limitation, any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Corporation, spouses, heirs, and personal and legal representatives. The Corporation shall require and cause any successor (whether direct

or indirect by purchase, merger, consolidation or otherwise) to all, substantially all, or a substantial part, of the business and/or assets of the Corporation, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume all of the Corporation’s obligations under and agree to perform this Agreement in the same manner, and to the same extent that the Corporation would be required to perform if no such succession had taken place, and thereafter the term “Corporation” whenever used in this Agreement shall mean and include any such successor or transferee.

20. Amendment and Termination. No amendment, modification, termination or cancellation of this Agreement shall be effective unless it is in writing signed by both the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.