Not applicable.
| Item 6. |
Indemnification of Directors and Officers
|
Article XI of the Company’s Amended and Restated Certificate of Incorporation provides that, to the fullest extent that the Business Corporation Law of the State of New York, as
it may be amended (the “NYBCL”), permits the elimination or a limitation of the liabilities of directors, no director of the Company shall be liable to the Company, or its shareholders for any breach of duty in such capacity.
Pursuant to Section 13.1(a) of the Company’s Bylaws, the Company has agreed to indemnify to the fullest extent provided for or permitted by law each person involved in, or made
or threatened to be made a party to, any action, suit, claim or proceeding, arbitration, alternative dispute resolution mechanism, investigation, administrative or legislative hearing or any other actual, threatened, pending or completed proceeding,
whether civil, at law, in equity, criminal, administrative investigative or otherwise, or whether formal or informal, and including an action by or in the right of the Company or any other corporation, or any partnership, joint venture, trust,
employee benefit plan or other enterprise, whether profit or non-profit (an “Enterprise”) and including appeals therein (any such process, a “Proceeding”), by reason of the fact that such person (i) is or was a director or officer of the Company, or
(ii) while serving as a director or officer of the Company, is or was serving, at the request of the Company, as director, officer or in any other capacity, any other Enterprise, including attorney’s fees, actually and reasonably incurred as a result
of or in connection with any Proceeding, or any appeal therein, subject to certain exceptions. Specifically, pursuant to Section 13.1(b) of the Company’s Bylaws, no indemnification may be made to or on behalf of any such person if a judgment or other
final adjudication adverse to such person establishes that (i) such person’s acts were committed in bad faith; (ii) were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated; (iii) that such person
gained in fact in a financial profit or other advantage to which such person was not legally entitled; or (iv) in the event of criminal charges, that the person had reason to believe that such conduct was unlawful. In addition, no indemnification
may be made with respect to any Proceeding initiated by any such person against the Company, or a director or officer of the Company, other than to enforce their right to indemnification, unless such Proceeding was authorized by the board of
directors. Further, no indemnification may be made with respect to any settlement or compromise of any Proceeding unless and until the Company has consented to such settlement or compromise, which consent may not be unreasonably withheld. Moreover,
pursuant to Section 13.4 of the Company’s Bylaws, except as otherwise permitted by 12 U.S.C. Section 1828(k) (or any successor provision thereto) and the regulations promulgated thereunder, the Company may not indemnify directors, officers or
employees against expenses, penalties or other payments incurred in an administrative proceeding or action instituted by an appropriate bank regulatory agency which proceeding or action results in a final order assessing civil money penalties or
requiring affirmative action by an individual or individuals in the form of payments to the Company.
Section 13.1(c) of the Company’s Bylaws provides that a person who has been successful, on the merits or otherwise, in the defense of a Proceeding shall be entitled to
indemnification under the Company’s Bylaws. Except as provided in the preceding sentence and unless ordered by a court, indemnification shall be made by the Company if, and only if, authorized in the specific case: (i) by the board of directors
acting by a quorum consisting of directors who are not parties to such Proceeding upon a finding that the conduct of the director or officer was not such that indemnification would be prohibited pursuant to Section 13.1(b) of the Company’s Bylaws
(set forth above), or (ii) if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs (A) by the board upon the opinion in writing of independent legal counsel that indemnification is proper in the
circumstances because the conduct of the director or officer was not such that indemnification would be prohibited pursuant to Section 13.1(b), or (B) by the shareholders upon a finding that the conduct of the director or officer was not such that
indemnification would be prohibited pursuant to Section 13.1(b).
Section 13.1(d) of the Company’s Bylaws provides that persons covered under Section 13.1(a) of the Company’s Bylaws shall be entitled to indemnification for any part of any
Proceeding for which it is found that the conduct of the director or officer was not such that indemnification would be prohibited pursuant to Section 13.1(b) of the Company’s Bylaws. In making any determination regarding any person’s entitlement to
indemnification, each charge, claim, or issue shall be reviewed individually under Section 13.1(c) of the Bylaws (as described above).
Section 13.1(e) of the Company’s Bylaws sets forth details regarding the Company’s participation in or assumption of a defense of any Proceeding and Section 13.1(f) of the
Company’s Bylaws provides that, in making any determination regarding any person’s entitlement to indemnification hereunder, it shall be presumed that such person is entitled to indemnification, and the Company shall have the burden of proving the
contrary.
Section 13.2 of the Company’s Bylaws sets forth details regarding Company’s advancement or reimbursement of expenses to directors and officers defending any Proceeding in advance
of the final disposition of such Proceeding.
Section 13.3 of the Company’s Bylaws provides, among other items, that the rights to indemnification and advancement of expenses granted by or pursuant to Article 13 of the
Bylaws: (i) shall not limit or exclude, but may be in addition to, any other rights which may be granted by or pursuant to any statute, corporation charter, bylaw, resolution of shareholders or directors or agreement; (ii) shall be deemed to
constitute contractual obligations of the Company to any director or officer who serves in a capacity referred to in Section 13.1 at any time during which Article 13 is in effect; (iii) shall continue to exist after the repeal or modification of this
Article 13 with respect to events occurring prior thereto; and (iv) shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the estate, spouse, heirs, executors, administrators or assigns of such
person.
Section 13.5 of the Company’s Bylaws provides that the Company may, with the approval of the board of directors, enter into an agreement with any person who is, or is about to
become, a director, officer, employee or agent of the Company, or who is serving, or is about to serve, at the request of the Company, as a director, officer or in any other capacity, any other Enterprise; which agreement may provide for
indemnification of such person and advancement of expenses to such person upon terms, and the extent, not prohibited by law. The failure to enter into any such agreement may not affect or limit the rights of any such person to indemnification under
Article 13 of the Bylaws.
Sections 721-725 of the New York Business Corporation Law (“NYBCL”) provide for or permit the indemnification of directors and officers of the Company under certain
circumstances. Specifically, Section 721 of the NYBCL provides that indemnification pursuant to, or provided by, such article of the NYBCL shall not be deemed exclusive of any other rights to which a director or officer seeking indemnification or
advancement of expenses may be entitled, whether contained in the entity’s certificate of incorporation or bylaws or, when authorized by such certificate of incorporation or bylaws, (i) a resolution of shareholders, (ii) a resolution of directors, or
(iii) an agreement providing for such indemnification, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his 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 personally gained in fact a financial profit or other advantage to which he was not legally entitled.
Section 722(a) of the NYBCL provides that a corporation may indemnify any person made, or threatened to be made, a party to an action or proceeding (other than one by or in the
right of the corporation to procure a judgment in its favor), whether civil or criminal, including an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise, which any director or officer of the corporation served in any capacity at the request of the corporation, by reason of the fact that he, his testator or intestate, was a director or officer of the corporation, or
served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and
necessarily incurred as a result of such action or proceeding, or any appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise, 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 conduct was
unlawful. Section 722(b) of the NYBCL provides that the termination of any such civil or criminal action or proceeding by judgment, settlement, conviction or upon a plea of nolo contendere, or its equivalent, shall not in itself create a presumption
that any such director or officer did not act, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other corporation or any partnership, joint venture, trust, employee benefit plan or other
enterprise, not opposed to, the best interests of the corporation or that he had reasonable cause to believe that his conduct was unlawful.
Section 722(c) of the NYBCL provides that a corporation may indemnify any person made, or threatened to be made, a party to an action by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he, his testator or intestate, is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of any other corporation of
any type or kind, domestic or foreign, of any partnership, joint venture, trust, employee benefit plan or other enterprise, against amounts paid in settlement and reasonable expenses, including attorneys’ fees, actually and necessarily incurred by
him in connection with the defense or settlement of such action, or in connection with an appeal therein, if such director or officer acted, in good faith, for a purpose which he reasonably believed to be in, or, in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation, except that no indemnification under this paragraph shall be made in respect of (i) a threatened
action, or a pending action which is settled or otherwise disposed of, or (ii) 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 amount and expenses as the court deems proper.
Section 723 of the NYBCL specifies, among other things, the manner in which the corporation may authorize payment of such indemnification. It provides that a director or officer
who has been successful, whether on the merits or otherwise, in defending an action or proceeding of the character described in Section 722 of the NYBCL, shall be entitled to indemnification by the corporation. Except as provided in the preceding
sentence, indemnification may be made by the corporation only if authorized in the specific case by one of the corporate actions set forth in Section 723 (unless ordered by a court under Section 724 of the NYBCL).
Section 724 of the NYBCL provides, among other things, that upon proper application by a director or officer, indemnification shall be awarded by a court to the extent authorized
under Sections 722 and 723(a) of the NYBCL.
Section 725 of the NYBCL contains, among other things, certain other miscellaneous provisions affecting the indemnification of directors and officers, including provision for the
return of amounts paid as indemnification if any such person is ultimately found not to be entitled to the indemnification.
Section 726(a) of the NYBCL authorizes the purchase and maintenance of insurance to indemnify (i) a corporation for any obligation which it incurs as a result of the
indemnification of directors and officers under the above sections, (ii) directors and officers in instances in which they may be indemnified by a corporation under such sections, and (iii) directors and officers in instances in which they may not
otherwise be indemnified by a corporation under such sections, provided the contract of insurance covering such directors and officers provides, in a manner acceptable to the superintendent of financial services, for a retention amount and for
co-insurance. Section 13.6 of the Company’s Bylaws authorizes the Company to purchase and maintain insurance (i) to indemnify itself against any obligation it incurs as a result of indemnification of any person, as authorized herein, and (ii) to,
subject to certain exceptions, indemnify any person who is a director, officer, employee, or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another Enterprise against any
liability asserted against such person and incurred by such person in such capacity or arising out of such status. The Company currently maintains an insurance policy with appropriate limits to insure the directors and officers of the Company,
subject to the limits, exceptions and other terms and conditions of such policy, against liability for claims made against them for any actual or alleged error or misstatement or misleading statement or act or omission or neglect or breach of duty
while acting in their individual or collective capacities as directors or officers.
In addition, Section 402(b) of the NYBCL provides that a corporation may include a provision in its certificate of incorporation eliminating or limiting the liability of its
directors to the corporation or its shareholders for damages for the breach of any duty, except for a breach involving bad faith, intentional misconduct, a knowing violation of law or receipt of an improper personal benefit or for certain illegal
dividends, loans or stock repurchases.