The validity of
the Common Stock registered hereby, shares of which are issuable by the Registrant pursuant to the 2016 Plan, is being passed on
by Daniel S. Jonas, Executive Vice President – Legal Affairs & General Counsel of the Registrant, who is an executive
officer of the Registrant.
Item 6.
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Indemnification of Directors and Officers
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Section 722 of the
New York Business Corporation Law (the “BCL”) provides that a corporation may indemnify an officer or director, in
the case of third party actions, against judgments, fines, amounts paid in settlement and reasonable expenses and, in the case
of derivative actions, against amounts paid in settlement and reasonable expenses, if the director or officer “acted, in
good faith, for a purpose which he reasonably believed to be in . . . the best interests of the corporation” and, in the
case of criminal actions, in addition, “had no reasonable cause to believe that his conduct was unlawful.” Statutory
indemnification may not be provided in derivative actions in respect of a threatened action, or a pending action which is settled
or otherwise disposed of, or any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation,
unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent
jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such portion of the settlement and expenses as the court deems proper.
As contemplated
by BCL Section 721, the Registrant’s 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 person’s 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 person’s 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.
For purposes
of this by-law, the Corporation shall be deemed to have requested a person to serve an employee benefit plan where the performance
by such person of his or her duties to the Corporation also imposes duties on, or otherwise involves services by, such person to
the plan or participants or beneficiaries of the plan, and excise taxes assessed on a person with respect to an employee benefit
plan pursuant to applicable law shall be considered indemnifiable expenses. For purposes of this by-law, the term “Corporation”
shall include any legal successor to the Corporation, including any corporation which acquires all or substantially all of the
assets of the Corporation in one or more transactions.”
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the Registration Statement;
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, 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; and
(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 of 1933,
each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the 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 of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.