As contemplated by BCL Section 721, the Registrants
By-Laws,
as amended and restated on April 29, 2011, provide a broader basis for indemnification in accordance with and as permitted by BCL Article 7.
Section 6.6 of the
By-Laws
of the Registrant (referred to in the
By-Laws
as the Corporation) provides as follows:
Section 6.6. Indemnification. The Corporation shall indemnify each person made or threatened to be made a party to
any action or proceeding, whether civil or criminal, by reason of the fact that such person or such persons testator or intestate is or was a director or officer of the Corporation, or serves or served at the request of the Corporation, any
other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, penalties, amounts paid in settlement and reasonable expenses, including attorneys fees, incurred in
connection with such action or proceeding, or any appeal therein, provided that no such indemnification shall be made if a judgment or other final adjudication adverse to such person establishes that 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 that he or she personally gained in fact a financial profit or other advantage to which he or she was not legally entitled, and provided
further that no such indemnification shall be required with respect to any settlement or other nonadjudicated disposition of any threatened or pending action or proceeding unless the Corporation has given its prior consent to such settlement or
other disposition.
The Corporation may advance or promptly reimburse upon request any person entitled to indemnification
hereunder for all expenses, including attorneys fees, reasonably incurred in defending any action or proceeding in advance of the final disposition thereof upon receipt of an undertaking by or on behalf of such person to repay such amount if
such person is ultimately found not to be entitled to indemnification or, where indemnification is granted, to the extent the expenses so advanced or reimbursed exceed the amount to which such person is entitled, provided, however, that such person
shall cooperate in good faith with any request by the Corporation that common counsel be utilized by the parties to an action or proceeding who are similarly situated unless to do so would be inappropriate due to actual or potential differing
interests between or among such parties.
Anything in these
by-laws
to the contrary
notwithstanding, no elimination of this
by-law,
and no amendment of this
by-law
adversely affecting the right of any person to indemnification or advancement of expenses
hereunder shall be effective until the 60th day following notice to such person of such action, and no elimination of or amendment to this
by-law
shall deprive any person of his or her rights hereunder arising
out of alleged or actual occurrences, acts or failures to act prior to such 60th day.
The Corporation shall not, except by
elimination or amendment of this
by-law
in a manner consistent with the preceding paragraph, take any corporate action or enter into any agreement which prohibits, or otherwise limits the rights of any person
to, indemnification in accordance with the provisions of this
by-law.
The indemnification of any person provided by this
by-law
shall continue after such person has
ceased to be a director, officer or employee of the Corporation and shall inure to the benefit of such persons heirs, executors, administrators and legal representatives.
The Corporation is authorized to enter into agreements with any of its directors, officers or employees extending rights to
indemnification and advancement of expenses to such person to the fullest extent permitted by applicable law as it currently exists, but the failure to enter into any such agreement, shall not affect or limit the rights of such person pursuant to
this
by-law,
it being expressly recognized hereby that all directors, officers and employees of the Corporation, by serving as such after the adoption hereof, are acting in reliance hereon and that the
Corporation is estopped to contend otherwise.
In case any provision in this
by-law
shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest possible enforcement in the circumstances, it being
the intention of the Corporation to afford indemnification and advancement of expenses to its directors, officers and employees, acting in such capacities or in the other capacities mentioned herein, to the fullest extent permitted by law.
II-2