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SECTION 6.02. Indemnification.
Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative or investigative (hereinafter a
“proceeding”), by reason of the fact that he or she, or a person of whom he or she is the
legal representative, is or was (i) a director or officer of the Company or (ii) serving at the
request of the Company as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service with respect
to employee benefit plans, or person, in each case whether the basis of such proceeding is
alleged action in an official capacity as a Director, director, officer, employee or agent or
in any other capacity while serving as a Director, director, officer, employee or agent,
shall be indemnified and held harmless by the Company to the fullest extent authorized
by the New York Business Corporation Law (the “NYBCL”) as the same exists or may
hereafter be amended (but, in the case of any such amendment, to the fullest extent
permitted by law, only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the Company to provide
prior to such amendment), if the Company were a corporation organized under the
NYBCL, against all expense, liability and loss (including attorneys’ fees, judgments,
fines, amounts paid or to be paid in settlement and excise taxes or penalties arising under
the Employee Retirement Income Security Act of 1974) reasonably incurred or suffered
by such person in connection therewith and such indemnification shall continue as to a
person who has ceased to be a Director, director, officer, employee or agent and shall
inure to the benefit of his or her heirs, executors and administrators; provided, however,
that except as provided in Section 6.02(c), the Company shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the Board. The
right to indemnification conferred in this Section 6.02 shall be a contract right and shall
include the right to be paid by the Company the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that, if the NYBCL
requires, the payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a proceeding shall be
made only upon delivery to the Company of an undertaking by or on behalf of person
director or officer to repay all amounts so advanced if it shall ultimately be determined
that such director or officer is not entitled to be indemnified under this Section 6.02 or
otherwise. The Company may, by action of the Board, provide indemnification to
employees and agents of the Company with the same scope and effect as the foregoing
indemnification of directors and officers. For purposes of this Article VI, the term
“Company” shall include any predecessor of the Company and any constituent
corporation (including any constituent of a constituent) absorbed by the Company in a
consolidation or merger.
(b) To obtain indemnification under this Section 6.02, a claimant shall
submit to the Company a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is
reasonably necessary to determine whether and to what extent the claimant is entitled to
indemnification. Upon written request by a claimant for indemnification pursuant to the