Item 6.
|
Indemnification of Directors and Officers
|
The New York Business Corporation Law (“
NYBCL
”)
in general permits a New York corporation to indemnify any person made, or threatened to be made, a party to an action or proceeding by reason of the fact that he or she was a director or officer of the corporation, or served another entity in any
capacity at the request of the corporation, against any judgment, fines, amounts paid in settlement and reasonable expenses, including attorney’s fees actually and necessarily incurred as a result of such action or proceeding, or any appeal
therein, if such person acted in good faith, for a purpose he or she reasonably believed to be in, or, in the case of service for another entity, not opposed to, the best interests of the corporation and, in criminal actions or proceedings, in
addition had no reasonable cause to believe that his or her conduct was unlawful. The NYBCL generally permits a corporation to grant other rights to indemnification through its certificate of incorporation or by-laws, or by resolution of
shareholders or directors or by agreement to corporate officers and directors except in instances where a judgment or other final adjudication adverse to the officer or director establishes that (i) his or her acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or (ii) the officer or director personally gained in fact a financial profit or other advantage to which he or she was not legally
entitled.
The Registrant’s Restated Certificate of Incorporation (as amended, the “
Restated Certificate of Incorporation
”) permits the Registrant to indemnify any officer, director or other person to the fullest extent from time to
time permitted by law, and provides that, to the extent consistent therewith, the Registrant shall indemnify or advance expenses to any officer, director or other person to the fullest extent required by or pursuant to any present or future by-law
of the Registrant, agreement approved by the Board of Directors, or resolution of shareholders or directors.
In general, the Registrant’s Amended and Restated By-Laws (the “
By-laws
”) provide that the Registrant shall indemnify each corporate officer and director (as well as any person serving another entity, trust or employee benefit
plan in any capacity at the Registrant’s request) against judgments, fines, amounts paid in settlement and reasonable expenses incurred in connection with the defense or as a result of any threatened, pending or completed action, suit or proceeding
(including civil, criminal, administrative or investigative and actions by or in the right of the Registrant or other entity, trust or employee benefit plan) to which the person seeking indemnification is made or threatened to be made a party by
virtue of serving in any of those capacities, except in instances where the NYBCL prohibits indemnification.
In addition, the Registrant’s Restated Certificate of Incorporation provides that
directors shall not be liable to the Registrant or its shareholders for damages for any breach of duty as a director, except for liability a director may have for any act or omission prior to the effectiveness of the Restated Certificate of
Incorporation or if a judgment or other final adjudication adverse to the director establishes that: (i) the director’s acts or omissions were in bad faith or involved intentional misconduct or a knowing violation of law; (ii) the director
personally gained in fact a financial profit or other advantage to which the director was not legally entitled; or (iii) the director’s acts violated NYBCL Section 719 (which imposes liability on transactions when contrary to NYBCL provisions).
This provision also provides that if the Registrant may by law be permitted to further eliminate or limit the personal liability of directors, then the liability of a director shall, at such time, automatically be further eliminated or limited to
the fullest extent permitted by law.
As permitted by the Registrant’s By-Laws, the Registrant has entered or will enter into
indemnification agreements with each of its directors and executive officers. These agreements generally require the Registrant to indemnify its directors and executive officers against all expenses (including attorney’s fees) actually and
reasonably incurred by such directors and executive officers in connection with the defense or settlement of any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative, arbitrative, investigative or
other), whether instituted by or in the right of the Registrant or any other person, or any inquiry or investigation, whether instituted by the Registrant or any other person in which such person is or was a party or is threatened to be made a
party or in good faith believes might lead to the institution of any such action, suit or proceeding, by reason of the fact that such person is or was a director, officer, employee or agent of the Registrant (or any subsidiary of the Registrant),
or is or was serving at the request of the Registrant as a director, officer, employee, member, manager, trustee, agent or fiduciary (or in any other capacity) of another enterprise (a “Claim”); provided, however, that no indemnification is
permitted if a judgment or other final adjudication adverse to such directors or executive officers establishes that (i) his or her acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were
material to the cause of action so adjudicated, or (ii) he or she personally gained in fact a financial profit or other advantage to which he or she was not legally entitled unless and only to the extent that the court in which such Claim was
brought, or, if no action was brought, any court of competent jurisdiction determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, he or she is fairly and reasonably entitled to
indemnity and the amount of the indemnifiable losses which the court shall deem proper.
As permitted by New York law, the Registrant maintains certain insurance covering the
Registrant’s obligation to indemnify directors and officers and also covering directors and officers individually, subject to certain limitations, in instances in which they may not otherwise be indemnified by the Registrant.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
(iii) to include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided
,
however
, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liabilities under the Securities Act, each
such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrant
’
s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where applicable,
each filing of an employee benefit plan
’
s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.